International

CriminalTribunalfor Rwanda
Tribunalp~nalinternational
pour le Rwanda
UI~TEDNATIONS
NATIONSUNIES

Original:
English

TRIAL CHAMBER I

Before: JudgeErikMose,Presiding
JudgeAsokade Z. Gunawardana
JudgeMehmetGiiney

Registry: Mr AdamaDieng

Decision
of: 7 June2001

THE PROSECUTOR
VERSUS
IGNACE BAGILISHEMA

Case No. ICTR-95-1A-T

JUDGEMENT

TheOffice
oftheProsecutor:

Ms Anywar Adong
Mr Charles
Adeogun-Phillips
Mr WallaceKapaya
Ms Boi-Tia
Stevens

Counsel
fortheaccused:

Mr Francois
Roux
Mr Maroufa
Diabira
Ms H61eyn
Ufiac
Mr WayneJordash

\ \
\\
 ,/ .-~: ~a~’~e~ ICTR-95-1A-T

TABLE OF CONTENTS
CHAPTER
I.INTRODUCTION
........................................................
5
1.TheInternational
Criminal
Tribunal
forRwanda
........................................
5
2.Indictment
...............................................................
6
3.Jurisdiction
ofthe
Tribunal
.....................................................
6
4.The
Accused
..............................................................
7
CHAPTER
II.
PROCEEDINGS
........................................................
8
1.Procedural
Background
.........................................................
8
2.Evidentiary
Matters
..........................................................
14
CHAPTER
HI.APPLICABLE
LAW......................................................
16
1.Individual
Criminal
Responsibility
..................................................
16
1.1Responsibility
under
Article
6(1)oftheStatute
.........................................
17
1.2Responsibility
under
Article
6(3)oftheStatute
.........................................
20
1.2.1
Superior-Subordinate
Relationship
...............................................
20
1.2.2
Knowing
orHaving
Reason
toKnow...............................................
23
1.2.3
Failing
toPrevent
orPunish
...................................................
24
2.TheCrime
ofGenocide
(Article
2 oftheStatute)
........................................
25
2.1
Genocide
................................................................
25
2.1.1
Underlying
Acts
..........................................................
27
2.1.2
Dolus
Specialis
..........................................................
28
2.2 Complicity to Commit Genocide ........................ 30
3.Crimes
against
Humanity
(Article
3 oftheStatute)
.......................................
32
3.1The
Broader
Attack
...........................................................
33
3.1.1
Widespread
orSystematic
.....................................................
33
3.1.2
Against
anyCivilian
Population
.................................................
34
3.1.3
OnDiscriminatory
Grounds
....................................................
35
3.2
Underlying
Acts
............................................................
36
3.3
Mental
Element
.............................................................
38
4.Violations
oftheGenevaConventions
andAdditional
Protocol
II....................
39
4.1
Applicability
..............................................................
40
4.2
Material
Requirements
.........................................................
40
5.Cumulative
Charging
...........................................................
43
 ~’ ~ ICTR-95-1A-T
~:

.........................................................................................................................................

CHAPTER
IV.GENERAL
ISSUES
......................................................
44
1.Introductory
Remarks
.........................................................
44
2.Character
oftheAccused
prior
totheEvents
in1994
.....................................
44
3.Decision
oftheAccused
toremain
inhisPost
ofBourgmestre
............................
50
3.1
Introduction
.............................................................
50
3.2
Significance
ofthe
Decision
.....................................................
53
3.3
Conclusion
..............................................................
56
4.Possible
Subordinates
ofthe
Accused
................................................
56
4.1
Introduction
.............................................................
56
4.2
Communal
Staff
............................................................
58
4.3
Communal
Police
............................................................
63
4.4
Gendarmerie
Nationale
.........................................................
65
4.5
Reservists
..............................................................
68
4.6.
Interahamwe
.............................................................
69
4.7.
Abakiga
...............................................................
73
5.Measures
taken
bytheAccused
toPrevent
Crimes
........................................
83
5.1 Introduction ............ 83
5.2
Powers
and
Resources
ofthe
Accused
.................................................
84
5.3
Prevention
ofCrimes
bythe
Accused
.................................................
85
5.4
Meetings
...............................................................
96
6.TheAecused’s
Relationship
with
C~lestin
Semanza
.......................................
108
7.Letter
of24June
1994
.........................................................
116
8.Conclusions
...............................................................
118
CHAPTER V. FACTUAL AND LEGAL FINDINGS SPECIFIC EVENTS .....119

1.Introduction
..............................................................
119
2.Events
between
6 and
12April
1994
..................................................
120
2.1Attacks
inMabanza
Commune
......................................................
120
2.2
Attacks
atNyububare
Hill
.......................................................
120
2.3
Night
Patrols
.............................................................
123
2.4
Security
Meeting
on9 April
1994
...................................................
124
2.5Refugees
fleeing
toMabanza
Communal
Office
...........................................
126
2.6Meeting
between
theAccused
andthePrefect
on12April
1994.........................
134
3.Events
inKibuyeTownfrom
13to19April
1994.........................................
148
3.1Movementof RefugeesfromMabanzaCommunalOffice
to Kibuye
Town........
148
 ICTR-95-1A-T

3¯2 D et entl°n and Maltreatment

o f Refu-gees"at"Ga~o’Stadit~i-’i~bl-/~~
13-17 "
April
1994 " , " uyeTown.
............................................................
i....
157
3.2.1
Introduction
.........................................................
3.2.2A Preconceived Plan?........... 157
"............................
3.2.3
Description
ofGatwaro
Stadi~
................................................. 158
3.2.4
Conditions
atthe Stadium
- Deliber~’ti~
..........................................
160
3.2.5Condit:ons at theStadium Ge ....
"~Y"~" 161
.....................................
¯ --11cl~u
rlnolngs.............................
(1) Werethe Refugees detained at the Stadium9................ 167
(ii)TheTreatment
ofthe
Refugees ..............
¯.......
.......
.......
.......
...
............................................... 167
(iii) WastheMaltreatment InflictedupontheRefugees suchastoReach the168
LegalThreshold of"Inhumane Acts"9
3.2.6
WastheAccused Present
atthe Stad[t~
"~’~,’’;’~’’~’’’’’.’,’’:’-’-’’-
.......... 169
"..............
~1~~ j-~ / ,’~pm I y94’!
- Delit~erations
170
Wednesday
13April1994.....................................................
Thursday 14April1994............................ 170
Friday 15 April1994..... 176
’...................................
Saturday16April
1994 ..................................................... 179
Sunday17April
::::::::::::::::::::::::
.............................................
180
3.2.7
Findingsonthe Accused’s
Res,on.~ih]’i~:
...........................................
180
(i)General Observations
............
"~.....-.:.~.:::::.::::::’::
.................................
(ii) Presenceof theAccusedonW-A=~o~^--,
::’S":;"~’22’: ~8~
...............................
¯.. ,*,-~uay
io-,’-tprll
lye4.........................
(nl) Presence oftheAccusedonThursday14April 1994..............................
(iv)Conclusion
.......................................................... I~
3.3Attack on Refugees at HomeSt.JeanComplex, Kibuye Town,17 April1994... 189
188
3.3.1
Introduction
............................................................
3.3.2
Deliberations
........................................................... 189
3.3.3
Findings
.............................................................. 190
3.4Attack on Refugees at GatwaroStadium, Kibuye Town, 18-19 April1994........
.........
193
3.4.1
Introduction
............................................................ 194
3.4.2
Deliberations
........................................................... 194
3.4.3Findings ontheAccused’s Responsibility
................ .196
(i)Generalobservations
................ 204
".............................
204
!!i). PresenceofAccusedattheStadiumon18"A?ni’i’994
..............................
w22 :::::::::::::
.............................
Witness
G ..... 214
’........................................................
(iii)
Conclusion
:::::::::
......................................................
216
3.4.4
Conclusions
...............
".................................................
220
(!!Cumulative
effect
of’evidence’:::::::::: 220
............................................
(10Summary
offindings
inrelation
toPara~a;hs’412i’i4128
..........................
220
oftheIndictment
........................................................
(iii)
Further
grounds
ofliability
........... 221
¯.."" ’11111.1.11.11.11111111111122
4.Events
inMabanzaCommnue
from13April
toJuly1994
...............................
230
4.IKilling
ofKartmgu
............................................................
........
230
 .....~-~’~x~ ICTR-95-1A-T

4.2Killing
ofPastorMuganga
......................................................
4.3Killing ofRefugees atCommunal Office;
BurialinMassGrave 243
.........................
4.4
Attacks
atBisesero 255
.........................................................
264
4.5
Killing
ofKanyabugosi
........................................................
272
4.6 Killing
ofthe Sons
ofWitness
B..................................................
4.7KillingofTutsi concealed
atthe House
ofHabayo 275
.......................................
4.8TheDetention
andFateofHabayo 282
..................................................
288
5.RoadblocksinMabanzaCommune
...................................................
293
5.1Introduction
.............................................................
5.2General
Observations
onRoadblocks 293
.................................................
5.2.1Roadblocks
andtheCivilDefenceProgram 295
..........................................
5.2.2Roadblocks
SightedinMabanza Commune 295
...........................................
5.3Liability
forRoadblock-Related
Crimes 297
...............................................
5.3.1
LiabilityunderArticles
6(1)and6(3)
oftheStatute 298
...................................
5.3.2Distinctionbetween"Official"and"Unofficial"
Roadblocks 298
.......................
5.4TrafiproRoadblock- Establishment
andPurpose 300
.........................................
5.4.1
Settingupand Staffing
ofTrafipro
Roadblock 301
........................................
5.4.2
Purpose
ofTrafiproRoadblock
..................................................
302
5.5Trafipro Roadblock- Accuseds Complicity
inKilling
ofBigirimana 308
................
5.6Trafipro Roadblock- Accused’sComplicity
inKilling
ofJudith 312
........................
5.7Killings ofBigirimana andJudith -Accused’s
Responsibility
asSuperior 315
.........
5.8Gitikinini
Roadblock 320
..........................................................
5.9GacacaRoadblock
......................... 327
5.10 RoadblocksGenerally-Accused s Responsibility 330
~............................................
inNegligence
.....................
5.11Conclusions 331
..............................................................
337
VI.VERDICT
................................................................
341
SEPARATE OPINION OF JUDGE ASOKA DE Z. GUNAWARDANA...........
SEPARATE AND DISSENTING OPINION OF JUDGE MEHMET GUNEY .....1
1
ANNEX A INDICTMENT
ANNEX B GLOSSARY
 CHAPTER I. INTRODUCTION

1. TheInternational
Criminal
Tribunal
forRwanda

1. ThisJudgement
is rendered
by TrialChamber
I of theInternational
Criminal
Tribunal
forRwanda
(the"Tribunal"),
composed
of JudgeErikMose,presiding,
Judge
Asokade ZoysaGunawardana,
andJudgeMehmet
Gttney,
in thecaseof TheProsecutor
v. Ignace
Bagilishema.

2. TheTribunal
wasestablished
by United
Nations
Security
Council
Resolution
955
of 8 November
19941afterofficial
UnitedNations
reports
revealed
thatgenocide
and
other
widespread,
systematic,
andflagrant
violations
of international
humanitarian
law
hadbeencommitted
in Rwanda.
2 TheSecurity
Council
determined
thatthissituation
constituted
a threat
to international
peaceandsecurity,
andwasconvinced
thatthe
prosecution
of persons
responsible
forserious
violations
of international
humanitarian
lawwould
contribute
totheprocess
of national
reconciliation
andto therestoration
and
maintenance
of peacein Rwanda.
Accordingly,
theSecurity
Council
established
the
Tribunal,
pursuant
to Chapter
VIIof theUnited
Nations
Charter.

3. TheTribunal
is governed
by itsStatute
(the"Statute")
annexed
to Security
Council
Resolution
955,andby itsRulesof Procedure
andEvidence
(the"Rules"),
which
3 wereadopted
by theJudges
on 5 July1995andsubsequently
amended.

IUN Document S/RES/955of 8 November1994.

2preliminary
ReportoftheCommissionofExpertsestablished
pursuant
toSecurityCouncil
Resolution
935
(1994),FinalReportoftheCommission
of Experts
established
pursuant
toSecurityCouncilResolution
935
(1994)(DocumentS/1994/1405)
andReportsof theSpecial
Rapporteur
forRwanda of theUnited
Nations
Commissionon HumanRights(DocumentS/1994/1157,
AnnexesI andII).
3 TheRuleswereamended on 12 January
1996,15 May1996,4 July1996,5 June1997,8 June1998,4
June1999,18 February,
26Juneand3 November
2000and31 May2001.
 "~/"~"~
*’~ ~
ICTR-95-1A-T

2. Indictment

4. Theinitial
Indictment
against
Ignace
Bagilishema
andsevenotheraccused
was
confirmed
by JudgeNavanethem
Pillayon 28 November
1995.
4 It was subsequently
amended
on 29 April1996and confirmed
by the sameJudgeon 6 May 1996.On 17
September
1999,following
a further
request
by theProsecution,
leaveto amendthe
Indictment
wasgranted
by thisTrial
Chamber.
5 ThisIndictment,
which
issetoutinfull
asAnnex
A to thisJudgement,
provides
thebasis
forthecriminal
proceedings
against
the
Accused,
before
thisChamber.

3. Jurisdiction
of theTribunal

5. Pursuant
to theStatute,
theTribunal
hastheauthority
to prosecute
persons
responsible
forserious
violations
of international
humanitarian
lawcommitted
in the
territory
of Rwanda.
TheStatute
alsoempowers
theTribunal
withtheauthority
to
prosecute
Rwandan
citizens,
whoarenatural
persons,
responsible
forsuchviolations
committed
intheterritory
ofneighbouring
States.
UnderArticle
7 of theStatute,
the
Tribunal’s
temporal
jurisdiction
limits
prosecution
to actscommitted
between
1 January
1994and31 December
1994.Individual
criminal
responsibility,
pursuant
to Article
6,
shall
be established
foractsfalling
within
theTribunal’s
material
jurisdiction,
as
provided
in Articles
2,3 and4.These
provisions
arereproduced
inChapter
3 (Applicable
Law)ofthepresent
Judgement.

4
5 "Decision
on thereviewof theIndictment",
CaseNo.ICTR95-1-I.
OralDecisionon theProsecutor’s
request
forleaveto filean amendment
indictment.
6. Although
the International
Criminal
Tribunal
for Rwandaand national
courts
shallhaveconcurrent
jurisdiction
to prosecute
persons
suspected
of serious
violations
of
international
humanitarian
law,theTribunal
shallhaveprimacy
overthenational
courts
of allStates
pursuant
to Article
8 of theStatute
andmayformally
request
thatnational
courts
deferto itscompetence.

4. The Accused

7. The Accused,
IgnaceBagilishema
was bom on 21 May1955in Rubengera
sector,
Mabanza
Commune,
KibuyePrefecture.
Afterattending
military
school(dcolesupdrieure
militaire)
foronlytwoyears,
Bagilishema
worked
as a civilservant
fortheMinistry
of
Youthin Rwandafrom 1978 to 1980.On 8 February1980,at the age of 25, he was
appointed
Bourgmestre
of MabanzaCommune,
a postthathe helduntilthe middleof
July1994whenhe wentintoexile.
He is married
andhassixchildren.
 CHAPTER II. PROCEEDINGS

1. Procedural
Background

8. On 9 February
1999,Ignace
Bagilishema
wasarrested
in theRepublic
of South
Africa
pursuant
to an arrest
warrant
issued
by JudgeNavanethem
Pillay
on 14 December
1998.He wastransferred
to theTribunal
on 20 February
1999.Hisinitial
appearance
occurred
on 1 April1999before
former
TrialChamber
II,composed
of JudgeWilliam
Sekule,
presiding,
JudgeYakovOstrovsky
andJudge
Tafazzal
Khan.At thehearing,
the
Accused
wasrepresented
by dutycounsel
andentered
a pleaof notguilty
to allthirteen
counts
6 oftheIndictment,
asamended
on29 April
1996.

9. On 15 September
1999,thepresent
TrialChamber
granted
theProsecution
leave
tosevertheAccused
fromtheprevious
Indictment
anddirected
theRegistry
toassign
a
newcasenumber
fortheseparate
trialof theAccused.
7 On thesameday,theRegistry
designated
ICTR-95-1A-I
as the new casenumberin respectof the Accused.
By
Decision
of 17 September
1999,the Prosecution
was granted
leaveto amendthe
Indictment
andto proceed
withallthecounts
in theproposed
amended
Indictment,
with
theexception
of thecountof Conspiracy
to commit
Genocide.
Thenextday,on 18
September
1999,the Accused
pleaded
not guiltyto all sevenCountsin the new
Indictment.
Pre-Trial
Conferences,
pursuant
to Rule73bis
of theRules,
tookplace
on18
September
and 25 October
1999.The trialof theAccused
commenced
on 27 October
1999withtheProsecution’s
opening
statement.

10. From1 to 4 November

1999,all threeJudgesof the Chamber
visited
Kibuye
Prefecture,
Rwanda,
inorder
toseethelocations
ofcertain
alleged
events
ofrelevance
in

6
Section
1.2of thepresent
Judgement.
 ~ *, x::~* ICTR-95-1A-T

thecase,
andthusto better
appreciate
theevidence
to beadduced
during
thetrial.
The
visit
hadbeenrequested
bytheDefence,
andtheProsecution
hadnoobjections.
Thiswas
thefirst
such
visit
bya Trial
Chamber
inconnection
witha trial.

11. On 23 November
1999,the Chamberrendered
an OralDecision
conceming
the
number
ofwitnesses
theProsecution
wasentitled
tocallduring
thetrial.
During
a Status
Conference
heldon 13August
1999,
theProsecution
hadthenstated
itsintention
tocall
16 witnesses.
Thenumber
was22 in itspre-trial
briefof17 September
1999,
whereas
a
listof 27 witnesses
wassubmitted
during
thePre-Trial
Conference
of 25 October
1999.
TheChamber
didnotconsider
theProsecution
boundby itssubmissions
during
the
Status
Conference.
Thefinal
listofwitnesses
fortheChamber
inrelation
to Rule73his
of theRuleswasthatof 17 September
1999,as modified
on 25 October
1999.However,
theChamber
heldthattheProsecution
wasentitled
tocallonlywitnesses
whosewritten
statements
hadbeendisclosed
totheDefence
by27 August
1999,
i.e.60daysbefore
the
datesetfortrial
asrequired
byRule66(A)(ii).
Additional
witnesses
could
becalled
withleave
of theChamber,
provided
thattheProsecution
hadshown
"goodcause"
to do
soinaccordance
8 withthatprovision.

12.Consequently,
theProsecution
requested
leaveto relyon additional
witnesses’
statements
anda document
whichweredisclosed
after27 August
1999.Themotion
was
heardon 30 November
1999.In its OralDecision
of 2 December
1999,the Chamber
considered
whether
theProsecution
hadshown"goodcause"
underRule66(A)(ii)
relation
to eachof thewitness
statements
andthedocument.
TheChamber
stated,
inter
alia,
thata merereference
toon-going
investigations
wasnotinitself
a sufficient
reason
to admit
newstatements
afterthe60 daytimelimitsetoutin Rule66 hadlapsed.
The
Chambergrantedleaveto relyon statements
of Witnesses
AA, Y and Z, which
according
to theProsecution
contained
information
relevant
to command
responsibility
of theAccused
under
Article
6(3)oftheStatute.
Thecharges
under
thatprovision
were

7 OralDecision
of15 September
1999ontheProsecutor’s
request
forseverance.
8 OralDecision
of23 November
1999on theRule73 motion
oftheDefence.
included
in theamended
Indictment
of 17 September
1999following
theChamber’s
decision
ofthatdate,
andfurther
investigations
werecarried
outshortly
thereafter
bythe
Office
of theProsecutor.
TheChamber
denied
theProsecution
leave
to relyon theother
wimess
statements
contained
inan annex
to itsmotion,
withtheexception
ofstatements
entered
9 asDefence
exhibits.

13. No Prosecution
witnesseswere availablefrom30 November1999.On 6
December
1999,theProsecution,
following
theChamber’s
instructions,
submitted
a
revised
listof witnesses.
It included
Witnesses
T, U, X andW. TheDefence
fileda
motion
requesting
theChamber
tofindthatthese
witnesses
could
notbe called
totestify
attrial.
TheProsecution
conceded
thatthe60daytimelimit
inRule66(A)(ii)
concerning
thedisclosure
ofwitness
statements
hadbeenviolated,
butargued
thatthiscould
notin
itself
automatically
beheldto estop
theProsecution
fromcalling
additional
witnesses
andpresenting
theiroraltestimony
during
trial.
Thehearings
resumed
on 24 January
2000.
In itsOralDecision
thefollowing
day,theChamber
ruledthatWitnesses
T, U, X
andW could
notbecalled
totestify
attrial.
Itnoted
that
the60daytime
limit
inthefirst
sentence
ofRule66(A)(ii)
wasformulated
in absolute
terms.
According
to theChamber,
thepurpose
ofthatprovision
istoensure
thattheDefence
isafforded
sufficient
notice
of
thealleged
facts
towhich
allwitnesses
arelikely
totestify,
inorder
tohaveadequate
timeandfacilities
forthepreparation
of theDefence.
However,
theChamber
recalled
that,
under
thesecond
partofRule66(A)(ii),
ithasthediscretion,
uponshowing
of
causeby theProsecution,
to orderthedisclosure
to theDefence
of statements
of
additional
Prosecution
witnesses
thatwerenotmadeavailable
within
the60 daytime
limit.l°

14. On 17 February
2000,the Chamberrendered
an OralDecision
on a Defence
motion
to haveatitsdisposal
as manyinvestigators,
assistants
andCounsel
asdoesthe
Office
oftheProsecutor.
TheChamber
observed
thattheprinciple
ofequality
ofarmsis

9 Oral
Decision
of2 December
1999.
10OralDecision
of25January
2000ontheDefence
motion
filed
under
Rule
73oftheRules.

10
 ICTR-95-1A-T

~~
.......
.........................................................................................................................................
aninherent
element
oftheright
toa fairtrial,
which
isguaranteed
inmanyinternational
instruments.
However,
present
humanrights
caselawdoesnotrequire
thatbothparties
ina caseshall
be granted
thesamelevel
ofmaterial
means
andresources,
forinstance
in
relation
to lawyers
and investigators.
TheChamber
sawno reason
to givea wider
interpretation
oftheprinciple
ofequality
ofarmswithin
thespecific
context
ofArticle
20oftheStatute.
11

15.TheProsecution
closed
itscaseon 18 February
2000,afterhaving
presented
18
witnesses,
including
twoof itsinvestigators
andoneexpert
witness.
TheDefence
then
requested
thatthetrial
beadjourned
toallow
sufficient
timetoprepare
itscase.
Inthis
context,
theDefence
referred
toa recent
plane
crash
during
which
oneofitsinvestigators
wasinjured
andfiles
werelost.

16.AfterthePre-Defence
Conference
on 30 March2000,heldpursuant
to Rule73ter
of the Rules,the Defence
casecommenced
on 25 April2000.Following
a break
requested
by theDefence
from4 to 22 May2000,
theDefence
closed
itscaseon9 June
2000.
Inall,15testimonies
wereheard,
including
expert
witnesses
andtheAccused.

17.Amongthemotions
decided
during
thepresentation
of the Defence
casewasa
request
by theDefence
to obtain
a United
Nations
memorandum
prepared
by Michael
Hourigan,a formerinvestigator.
The memorandum
allegedlyconcernedthe
circumstances
of the shooting
downon 6 April1994of theairplane
carrying
the
Presidents
of Rwanda
andBurundi.
It hadbeentransmitted
to theTribunal
fromUnited
Nations
Headquarters
in NewYorkso thatif thismatter
wereto be raised
before
the
Tribunal,
theappropriate
TrialChamber
coulddecide
whether
thedocument
wouldbe
relevant
to thedefence
of anyof theaccused.
ThePresident
of theTribunal,
after
consultation
withtheotherJudges,
placed
thedocument
undersealinthePresident’s
Office
immediately
uponitsarrival;
thePresident
stated
thatneither
shenoranyofthe

ll
Oraldecisionof 17 February
2000 on the Defencemotiondated28 January2000on equality
of arms
between
theparties.

11
 ~’~ ICTR-95-1A-T

.........................................................................................................................................
otherJudgeshad readthe memorandum.
On 8 June2000,the TrialChamber
in the
present
case,by a majority,
Judge
MoseandJudgeGunawardana,
directed
theRegistrar
to servetheDefence
witha copyof thememorandum
forthwith,
andto makeavailable
a
copyofthememorandum
totheProsecution,
ifitsodesired.
Intheviewofthemajority,
the memorandum
mightbe relevant
to the Defence.
Irrespective
of whetherthe
document
wouldin theeventhavea bearing
on theoutcome
of thecase,themajority
wasoftheopinion
that,
todeprive
theDefence,
atthisstage
ofthetrial,
of access
to
specific
documentation
inthepossession
of theTribunal,
mightaffect
theright
of the
Accused
to a fairtrial.
JudgeGttney
expressed
a separate
anddissenting
opinion,
according
to whichtheDefence
hadfailed
to prove
therelevance
of thememorandum
in
theinstant
matter.a2
Following
thedecision,
theDefence
entered
thememorandum
as an
exhibit.

18.On 8 June2000,theChamber
alsoruledon Defence
motion
fordisclosure
by the
Prosecution
of theadmissions
ofguilt
of Witnesses
Y, Z andAA,allpresently
detained
inRwanda.
Initsreply,
theProsecution
stated
thatitwasnotinpossession
ofthewritten
confessions
of thesewitnesses.
TheChamber
dismissed
themotion
of theDefence,
whichwasbasedon Rule68 of theRules.
However,
theChamber
wasof theviewthat
theconfessions
couldbe material
in evaluating
thecredibility
of saidProsecution
witnesses.
Ittherefore
ordered,
proprio
motu,
theProsecution,
pursuant
toRule98,to
takethenecessary
steps
to obtain
thewritten
confessions
ofthethree
witnessesJ
3 Asthe
Prosecution
wasabletoretrieve
thedocuments,
theDefence
subsequently
tendered
these
three
confessions
asexhibits.

19.Furthermore,
by Decision
of 8 June2000,theChamber
dismissed
a request
of the
Defence
underRule54 of the Rulesto summon
threewitnesses,
all of whomwere
personnel
of theUnited
Nations
Assistance
Mission
in Rwanda
(UNAMIR)
in Kibuye

12 "Decision
on the Requestof the Defencefor an Orderfor Serviceof a UnitedNationsMemorandum
prepared
by Michael
Hourigan,
formerICTRInvestigator"
of 8 June2000.

12
 ICTR-95-1A-T

1994.
However,
theChamber
ordered
theProsecution,
pursuant
to Rule98,to takethe
necessary
stepsto obtainthe minutes
of a Security
Council
meeting
in Kibuye
Prefecture,
heldon 9 April1994.14
TheProsecution
subsequently
informed
theChamber
that
itsinvestigations
hadborne
noresults.

20.On 11 July2000,theChamber
dismissed
a Defence
motion
requesting
theTrial
Chamber
to direct
theProsecution
to investigate
whether
a witness
hadgivenfalse
testimony.
The Chamber
heldthatthesubmissions
of theDefence
did nottendto
demonstrate
thatthewitness
hadknowingly
andwillfully
givenfalsetestimony,
as
interpreted
15 bycaselawunder
Rule91(B)oftheRules.

21.Closing
arguments
werescheduled
from10 to 14 July2000.TheProsecution
filed
itsbriefwithclosing
remarks
on 30 June2000.However,
contrary
to theChamber’s
order,
it wasfiledin English
only.Translation
of thevoluminous
document
required
time,andthehearing
waspostponed.
Newdeadlines
fortheparties
wereset.The
Defence
submitted
itsextensive
closing
brief
on 4 August
2000,which
thenalsoneeded
translation.
Theoralhearings
ontheclosing
arguments
tookplace
from4 to 7 September
2000.On 7 September,
theChamber
by majority,
JudgeMosedissenting,
ordered
the
Prosecution
to filewritten
rebuttal
closing
arguments
by 14 September
2000.The
Defence
wasgranted
oneweekfromreceipt
ofthetranslated
version
of these
arguments
in whichto reply.
Theparties
metthefiling
deadlines
andtheoralarguments
were
subsequently
heardon18and19October
2000.
Inall,thetrial
included
60daysin court
between
27 October
1999and19 October
2000.

13 "Decision
on theRequest
of theDefence
foran OrderforDisclosure
by theProsecutor
of the
Admissions
ofGuiltof Witnesses
Y, Z,andAA"of 8 June2000.
14"Decision
ontheRequestoftheDefence
pursuanttoRule73 oftheRules
ofProcedure
andEvidence
for
Summonsof Witnesses"
of 8 June2000.
15 "Decision
on theRequestof theDefence
fortheChamber
to Direct
theProsecution
toinvestigate
a
matterwitha viewtothePreparationandSubmission
of anIndictment
forFalseTestimony"
of 11July
2000.

13
 ICTR-95-1.A-T

~i~

2. Evidentiary
Matters

22.Thecaselawof theTribunal
hasestablished
general
principles
concerning
the
assessment
of evidence.
TheAkayesu
Judgement
contained
important
statements
on,
inter
alia,
theprobative
value
ofevidence;
witness
statements;
theimpact
oftrauma
on
thetestimony
of witnesses;
interpretation
fromKinyarwanda
intoFrench
andEnglish;
andcultural
factors
affecting
theevidence
ofwitnesses.
16 Subsequent
jurisprudence
of
theTribunal
hasdeveloped
theseprinciples
relating
to evidentiary
matters,
themost
recent
authority
beingtheMusema
Judgement.
17 TheChamber
willreturn
to themto the
extent
necessary.

23.Inthiscontext,
theChamber
simply
recalls
that,under
Rule89(A)
of theRules,
is notboundby anynational
rulesof evidence.
TheChamber
hasthusapplied,
in
accordance
withRule89,therulesof evidence
whichin itsviewbestfavour
a fair
determination
ofthematter
before
itandwhich
areconsonant
withthespirit
andgeneral
principles
ofthelaw.

24.Regarding
in particular
theassessment
of testimony,
theChamber
observes
that,
during
thepresent
trial,
previous
written
statements
ofmostwitnesses
appearing
in this
caseweretendered
in their
textual
entirety
asexhibits.
Onoccasions,
theparties
and,
where
appropriate,
theChamber,
haveraised
inconsistencies
between
thecontent
of an
earlier
statement
andthetestimony
during
thetrial.
TheChamber’s
pointofdeparture
whenassessing
theaccount
givenby a witness
is hisor hertestimony
in court.
Of
course,
differences
between
earlier
written
statements
andlater
testimony
in court
may
beexplained
bymanyfactors,
suchasthelapse
oftime,
thelanguage
used,
thequestions

16
TheProsecutor
v. Jean-PaulAkayesu,
Judgement
of 2 September1998,CaseNo. ICTR-96-4-T
[henceforth
Akayesu
(TC)]paras.
130-156.
17 TheProsecutor
v. Kayishema
and Ruzindana,
Judgement
of 21 May1999,ICTR-95-1-T
[henceforth
KayishemaandRuzindana (TC)],paras.65-80;TheProsecutor
v. GeorgesRutaganda,
Judgementof 6
December1999,ICTR-96-3-T [henceforthRutaganda]paras.15-23;and TheProsecutor
v. Alfred
Musema,
Judgementof 27 January2000,ICTR-96-13-T
[henceforth
Musema]
paras.31-105.

14
 ICTR-95-1A-T
~

puttothewimess
andtheaccuracy
ofinterpretation
andtranscription,
andtheimpact
of
trauma
on thewitnesses.
However,
where
theinconsistencies
cannot
be so explained
to
thesatisfaction
oftheChamber,
thereliability
ofwitness’
testimony
maybequestioned.

25.Finally,
theChamber
notesthathearsay
evidence
is notinadmissible
perse,even
whenitis notcorroborated
by direct
evidence.
Rather,
theChamber
hasconsidered
such
hearsay
evidence
withcaution,
in accordance
withRule89.Whenrelied
upon,such
evidence
has,asallother
evidence,
beensubject
tothetests
ofrelevance,
probative
value
andreliability.

15
 CHAPTER III. APPLICABLE LAW

1. Individual
Criminal
Responsibility

26. Article
6 of theStatute
reads
as follows:

"1.A person
whoplanned,
instigated,
ordered,
committed
or otherwise
aidedandabetted
in
theplanning,
preparation
orexecution
ofa crime
referred
toinarticles
2 to4 ofthepresent
Statute,
shall
beindividually
responsible
forthecrime.
2.Theofficial
position
of anyaccused
person,
whether
asHeadofstateor government
oras
a responsible
government
official,
shall
notrelieve
suchperson
ofcriminal
responsibility
nor
mitigate
punishment.
3.Thefactthatanyof theactsreferred
to inarticles
2 to4 of thepresentStatute
was
committed
bya subordinate
doesnotrelieve
hisorhersuperior
ofcriminal responsibility
if
heor sheknewor hadreason
toknowthatthesubordinate
wasabout to commit
suchactsor
haddoneso andthesuperior
failedtotakethenecessary
andreasonable measures
toprevent
suchacts
ortopunishtheperpetrators
thereof.
4. Thefactthatan accusedperson
actedpursuant
to an orderof a Government
or of a
superior
shallnotrelieve
himor herofcriminal
responsibility,
butmaybeconsidered in
mitigation
of punishment
if theInternational
Tribunal
forRwandadetermines
thatjusticeso
requires."

27. Article6 definesthe modalities

of participation
thatgiveriseto individual
responsibility
forcrimes
under
theStatute.18

28.In the presentcase,eachcountof the Indictment

allegesthat the Accusedis
criminally
responsible
pursuant
to paragraphs
(1)and(3)of Article
6 of theStatute.
headsof responsibility
applicable
to thepresent
casearebriefly
examined
below.

18Forexample,
accomplices
aswell
asprincipal
perpetrators
mayattract
responsibility
forthecommission
ofa crime.
Moreover,
traditional
routes
ofevasionofresponsibility
areblocked
offbyArticle6.Thusan
accusedheadofstateorothergovernment
officialcannot
evade
orexpecta lesser
punishmentonthe
grounds
merelythat
heorshe, atthetimeofcommission
ofthecrime,
heldsuchoffice;
a superior
cannot
evaderesponsibility
forthecriminal
actions
ofhisorhersubordinates
undercertain
conditions;
andan
accused
actingpursuant
toanorder
ofa superior
cannotdeny
culpability
forhaving
soacted.TheChamber
notestheopinion of theAppealsChamberof theICTYProsecutor
v. DuskoTadie, 15 July1999
[henceforth
Tadic(AC)]para.
190,thatthemodalities
ofparticipation
notexplicitly
referredtointhe
provision
arenotnecessarily
excluded.
16
 ~*’~ ICTR-95-
IA-T

1.1Responsibility
underArticle
6(1)oftheStatute

Committing

29. Theactual
perpetrator
mayincur
responsibility
forcommitting
a crime
under
the
bymeans
Statute ofan unlawful
actor omission.L9

Planning,
instigating,
ordering

30.An individual
whoparticipates
directly
in planning
to commit
a crimeunderthe
Statute
incurs
responsibility
forthatcrime
evenwhenitisactually
committed
byanother
person.
Thelevel
ofparticipation
mustbesubstantial,
suchasformulating
a criminal
plan
orendorsing
a planproposed
by another.
2° An individual
whoinstigates
another
person
tocommit
a crime
incurs
responsibility
forthatcrime.
Byurging
orencouraging
another
person
to commit
a crime,
theinstigator
maycontribute
substantially
tothecommission
of thecrime.
Proofisrequired
of a causal
connection
between
theinstigation
andthe
actus
reusof thecrime.
Theprinciple
of criminal
responsibility
applies
alsoto an
individual
whoisina position
ofauthority,
andwhouseshisorherauthority
toorder,
andthuscompel
21 a person
subject
tothatauthority,
tocommit
a crime.

31.Proof
is required
thatwhoever
planned,
instigated,
orordered
thecommission
of a
crime
possessed
criminal
intent,
thatis,thathe or sheintended
thatthecrimebe
committed.

19Anindividual
incurs
criminal
responsibility
foranomission
byfailing
toperform
anactinviolation
of
hisorherdutyto performsuchan act.As statedbytheNuremberg
Tribunal,
"international
lawimposes
duties
andliabilities
uponindividuals"
(TrialoftheMajorWarCriminals
Before
theInternational
Military
Tribunal,
Nuremberg,14 November
1945- 1 October 1946,vol.22,p. 65),whotherefore
maybe held
~,~rsonally
responsible
forfailing
toperformthoseduties.
SeeProsecutor
v.Zlatko Aleksovski,
Judgementof25June1999[henceforth
Aleksovski
(TC)]
para.61.

17
 Aiding
andAbetting
in thePlanning,
Preparation,
or Execution

32.An accomplice
mustknowingly
provide
assistance
to theperpetrator
of thecrime,
thatis,he or shemustknowthatit willcontribute
2 to thecriminal
actof theprincipal)
Additionally,
the accomplice
musthaveintended
to providethe assistance,
or as a
minimum,
accepted
thatsuchassistance
wouldbe a possible
andforeseeable
consequence
of hisconductY

33.Foran accomplice
to be foundresponsible
fora crimeundertheStatute,
he or she

mustassist
thecommission
of thecrime;
theassistance
musthavea substantial
effect
on
thecommission
of thecrime.
24 TheChamber,
however,
agrees
withtheviewexpressed
in
Furundzija,
that the assistance
givenby the accomplice
need not constitute
an
indispensable
element,
i.e.a eonditio
sinequanon,of the actsof theperpetratorY
Further,
theparticipation
in thecommission
of a crimedoesnotrequire
actual
physical
presence
or physical
assistance.
26 Mereencouragement
or moralsupport
by an aiderand
abettor
mayamountto "assistance".
27 Theaccomplice
needonlybe "concerned
withthe
killing".
28 Theassistance
neednotbe provided
at thesametimethattheoffenceis
committed.

21
SeeTheProsecutor
v. Georges
Rutaganda,
Judgement
of6 December
1999[henceforth
Rutaganda]
~ra.39.
Onthecustomary
nature
ofthese
principles,
seeProsecutor
v.Dusko
Tadic,
Judgement
of7 May1997
[henceforth
Tadic
(TC)]
paras.
667-669
and675£
23TheProsecutor
v.Tihomir
Blaskie,
Judgement
of3 March
2000
[henceforth
Blasla’c]
para.
286.
24
25For
a survey
Furundzo.ofthe
a (TC) early
para. case-law
209. onthisquestion,
seeProsecutor
v.Anto
Furundzija,
Judgement
of10
December
1998[henceforth
Furundzij’a
(TC)]
paras.
212-226.
26
InTadic(TC)para.687,toillustrate
this
point,
theChamber
cited
thecasewhere
a French
military
tribunal
convicteda Naziparty
administrator
foraiding
andassisting
inthearrest
anddeportation
of
civilians.
Inthatcasetheaccused
created
andsubmitted
lists
toarresting
authorities
andreported
French
youths
whorejectedhisattempts
togetthemtojointheGerman
army;
thevictims
werethenarrested,
interned
andforcibly drafted,
their
families
deported
toGermany.
Though
notpresent
whenthecrimes
were
committed,
theaccusedwas"concerned
with"
andcontributed
substantially
tothedeportations.
See
also
thecase-law
citedintheTadic(TC)
para.
678fand
Aleksovski
(TC)para.
62.
27Furundzija
(TC)para. 199£
28Tadic
(TC)para.691.

18
 /76q:
34. The Chamberagreeswiththe conclusions
in Furundzija
and Akayesuthat
presence,
whencombined
withauthority,
mayconstitute
assistance
(theactus
reusofthe
offence)
in theformof moralsupport.
In Furundzija,
theChamber
inferred
fromthe
Synagogue
casethatan "approving
spectator
whois heldin suchrespect
by other
perpetrators
thathispresence
encourages
themintheir
conduct,
maybeguilty
ina crime
against
humanity".
29 Insignificant
status
may,however,
putthe"silent
approval"
below
thethreshold
necessary
forthe3°
actus
reus.

35. In Akayesu,
the Chamberfoundthatthe Accusedaidedand abettedin the
commission
ofacts"byallowing
themto takeplace
onor nearthepremises
ofthebureau
communal,
whilehe waspresent
on the premises..,
and in his presence...,
andby
facilitating
thecommission
of theseactsthrough
hiswordsof encouragement
in other
actsofsexual
violence,
which,
byvirtue
ofhisauthority,
senta clear
signal
ofofficial
tolerance
1 forsexual
violence,
without
which
these
actswould
nothavetaken
place9

36.Theapproving
spectator
musttherefore
nothavean insignificant
status
if hisor
herpresence
isto havetherequired
effect
on theperpetrators,
suchasencouragement,
moral
support
or tacit
approval.
As longas theaccomplice
hastherequisite
menstea,
which
includes
knowing
thathispresence
wouldbe seenby theperpetrator
of thecrime
as encouragement
or support,
allactsof assistance
thatlendencouragement
or support
willconstitute
aiding
andabetting,
evenwherethe"act"is merepresence.
However,
liability
foraiding
andabetting
asan "approving
spectator"
presupposes
actual
presence
atthescene
ofthecrime,
oratleast
presence
intheimmediate
vicinity
ofthescene
ofthe
crime.
Themensteaof theapproving
spectator
maybe deduced
fromthecircumstances,
and mayinclude
priorconcomitant
behaviour,
forinstance
allowing
crimes
to go
unpunished
or providing
verbal
encouragement.

29 Furundzija
(TC)para.207.
30 Ibid.para.208.Reference
is madeto thePig-cartparade
casealsoheardby theGermanSupreme
Court
in BritishOccupiedZoneunderthe termsof the ControlCouncilLaw No. 10, in whichthe Accusedwas
foundnot guiltyforhavingfollowedonlyas a spectator
in civilian
clothes, ’parade’duringwhichtwo
political
opponentswerepublicly
humiliated
A kayesu(TC)para.692.
1

19
 1.2Responsibility
underArticle
6(3)of theStatute

37.Article6(3)incorporates
the customary
lawdoctrine
of commandresponsibility.
Thisdoctrine
is predicated
uponthepowerof thesuperior
to control
or influence
theacts
of subordinates.
Failure
by thesuperior
to prevent,
suppress,
or punish
crimes
committed
by subordinates
is a dereliction
of duty that may invokeindividualcriminal
3z
responsibility.

38.The Chamberwillnow consider,

in turn,thethreeessential
elements
of command
responsibility,
namely:

(i)theexistence
of a superior-subordinate
relationship
of effective
control
between
the
accused
andtheperpetrator
ofthecrime;
and,
(ii)theknowledge,
orconstructive
knowledge,
oftheaccused
thatthecrime
wasabout
tobe,
wasbeing,orhadbeencommitted;
and,
(iii)
thefailure
of theaccused
totakethenecessary
andreasonable
measures
toprevent
stop
33 thecrime,
ortopunish theperpetrator.

1.2.1Superior-Subordinate
Relationship

39. A position
of commandis a necessary
conditionfor the imposition
of command
responsibility,
buttheexistence
of sucha position
cannot
be detemained
by reference
to

32Asdemonstrated
inProsecutorv.ZejnilDelalic,ZdravkoMucic,HazimDelic, andEsadLandzo,
Judgement
of16November 1998,[henceforth
Celebici
(TC)]paras. 333-343.
Thisfoundationof the
doctrine
isapparent
alsointheYamashita
case,wherethemilitary
commission
characterised
theaccused’s
failure
toprevent
thecommission
ofatrocities
byforcesunder
hiscommand
asa breach ofhis"duty"as
commander
(InreYamashita,327U.S.1 (1946),pp.13-14).TheU.S.Supreme Court,ina decision
denying
Yamashita’s
writofhabeas
corpus,
statedthat
a precedent
forimposing
sucha dutyexisted
inthe
Hague
ConventionIV of1907(Inre Yamashita,pp.15-16).Inexpoundinga rationaleforcommand
responsibility,
thecourtobserved
that
giventhatthepurpose
ofthelawofwarwastoprotect civilian
populations
andprisoners
ofwarfrombrutality,
thiswouldlargely
bedefeatedifthecommanderofan
invading
armycould
withimpunity
"neglect"
totakereasonable
measures
fortheirprotection
(p.15).
33SeeCelebici
(TC)para.346;Blaskic
para.294.Seealso Aleksovski
(TC)para.69;confirmed
bythe
Appeals
Chamber
inProsecutor
v.Zlatko
Aleksovski,
24March
2000[henceforth
Aleksovski
(AC)]
para.
72.Thethree
constituent
elements
clearly
drawfromArticle
86para.2,ofAdditional
Protocol
I,and

20
 / ~.~ ICTR-95-1A-T

formal
status
alone.
Thefactor
thatdetermines
liability
is theactual
possession,
or non-
possession,
of a position
of command
oversubordinates.
Therefore,
although
a person’s
de jureposition
as a commander
in certain
circumstances
maybe sufficient
to invoke
responsibility
underArticle
6(3),ultimately
it is theactual
relationship
of command
(whether
de jureor de facto)
thatis required
forcommand
responsibility.
34 Thedecisive
criterion
in determining
whois a superior
is hisor herability,
as demonstrated
by duties
andcompetence,
35 to effectively
control
hisor hersubordinates.

Command
Responsibility
of Civilian
Superiors

40. Althoughthe doctrineof commandresponsibility

was appliedoriginally
in a
military
context,
Article
6(3)contains
no express
limitation
restricting
thescopeof this
typeof responsibility
to military
commanders
or to situations
arising
undermilitary
command.However,the broadeningof the case-lawof commandresponsibility
to
include
civilians,
hasproceeded
withcaution.
In Akayesu,
theChamber
stated
that"the
application
of theprinciple
of individual
criminal
responsibility,
enshrined
in Article
6(3),
’’36tocivilians
remains
contentious.

41. The firstguiltyverdictby an International

Tribunalunderthe doctrineof
commandresponsibility
was enteredin the ICTY’sCelebici
case.Mucic,a civilian
warden
of a prison-camp,
washeldresponsible
fortheill-treatment
of prisoners
by camp
guards.
Although
theaccused
heldhispostwithout
a formal
appointment,
he manifested,
according
to theTrialChamber,
allthepowers
andfunctions
of a formal
appointment
as

Article
6 oftheDraft
CodeofCrimes
oftheInternational
LawCommission
(UNDoc.A/51/10,
1996).
They
arerepeated
inArticle
28oftheRome
Statute
oftheInternational
Criminal
Court.
34SeeCelebici
(TC)
para.
370;
Blaskie
para.
301.
35
36 SeeAleksovski
(TC)
para.
76.
Akayesu(TC)para.491.TheChambercitedJudgeR61ing’s
dissentintheHirota
caseofthe
International
Military
Tribunal
fortheFarEast,whichexpressed
concern
about
holding
government
officials
responsible
forthebehaviour
ofthearmy.
Intheevent,
theChamber
didnotconsider
thethree
counts
alleging
Akayesu’s
command
responsibility,
holding
thata superior/subordinate
relationship
between
theaccused
andthelocal
militia,
thoughconfirmed
bytheevidence
presented
inthecase,
hadnot
been
expressly
alleged
intheindictment
21
 ICTR-95-1A-T

.........................................................................................................................................

commander.
37 Since
theCelebici
judgement,
theICTYhasfoundanother
civilian
prison-
campwarden
guilty
on thegrounds
of superior
responsibility,
38 andtheICTRhasfound
twocivilians,
a prdfet
anda teafactory
director,
responsible
ascommanders
foratrocities
committed
39 in Rwanda.

42. Whiletherecan be no doubt,therefore,

that the doctrineof command
responsibility
extends
beyond
theresponsibility
of military
commanders
to encompass
civilian
superiors
in positions
of authority,
4° theChamber
agrees
withtheapproach
articulated
by theInternational
LawCommission,
41 and,morerecently,
in Celebici,
namely
thatthedoctrine
ofcommand
responsibility
"extends
to civilian
superiors
onlyto
theextent
thattheyexercise
a degree
ofcontrol
overtheir
subordinates
which
issimilar
to2
’’4
thatofmilitary
commanders.

43.According
to theTrialChamber
in Celebici,
fora civilian
superior’s
degree
of
control
to be "similar
to"thatof a military
commander,
thecontrol
oversubordinates
mustbe"effective",
43andthesuperior
must,
havethe"material
ability
’’44toprevent
and
punishany offences.
Furthermore,
the exercise
of de factoauthority
mustbe
accompanied
by "thetrappings
of theexercise
of de jureauthority".
45 Thepresent
Chamber
concurs.
TheChamber
isof theviewthatthesetrappings
of authority
include,
forexample,
awareness
of a chainof command,
thepractice
of issuing
andobeying
orders,
andtheexpectation
thatinsubordination
mayleadto disciplinary
action.
Itisby
these
trappings
thatthelawdistinguishes
civilian
superiors
frommererabble-rousers
or
other
persons
ofinfluence.

37
Celebici(TC)para.750.
38
SeeAleksovski(TC)para.118.
39
See Kayishemaand Ruzindana(TC) and Musema.
40
See Celebici
(TC)para.357-363.
41
Commentaryon the I996 Codeof Crimesagainstthe Peaceand Securityof Mankind:"Reportof the
InternationalLaw Commissionon the Workof its Forty-Eighth
Session,6 May-26June1996"[henceforth
I.L.C.DraftCodeof Crimes], U.N.Doc.A/51/10(1996),commentary
para.4 to Article
42 Celebici(TC)para.378.
43Ibid.
44Ibid.

22
 1.2.2Knowingor HavingReasonto Know

44. As to the mens tea,the standardthatthe doctrineof commandresponsibility

establishes
for superiors
who fail to preventor punishcrimescommitted
by their
subordinates
is notoneof strictliability.
TheU.S.Military
Tribunal
in the"High
Commandcase"held:

"Criminality
doesnotattach to everyindividual
in thischainof command
fromthatfact
alone.
Theremustbe a personal
dereliction.
Thatcanoccuronlywheretheactisdirectly
traceable
tohimor wherehisfailure to properly
supervise
hissubordinates
constitutes
criminal
’’46 negligence
onhispart.

45.It follows
thattheessential
element
is notwhether
a superior
hadauthority
overa
certain
geographical
area,butwhether
he or shehadeffective
control
overtheindividuals
whocommitted
thecrimes,and whether
he or she knewor hadreasonto knowthatthe
subordinates
werecommitting
or hadcommitted
a crimeundertheStatutes.
Although
an
individual’s
command
position
maybe a significant
indicator
thathe or sheknewabout
the crimes,suchknowledge
may not be presumed
on the basisof hisor her position
alone.

46.It is theChamber’s
viewthata superior
possesses
or willbe imputed
themensrea
required
to incur
criminal
liability
where:

he or shehadactualknowledge,
established
through
direct
or circumstantial
evidence,
that his or her subordinates
were aboutto commit,were committing,or had
committed,
a crimeunder
theStatutes;
47 or,
he or shehadinformation
whichputhimor heron noticeof theriskof suchoffences
by indicating
theneedforadditional
investigation
in orderto ascertain
whether
such

45Ibid.
para.
646.
46
U.S.A.v.
Wilhelm
vonLeeb
etal.,
inTrials
ofWarCriminals,
Vol.
XI,pp.543-544,
[henceforth
theHigh
Command case].
47
SeeCelebici
(TC)paras.
384-386.
23
 ICTR-95-1A-T

.........
:: J
_../__.7
.......
........................
offences
wereaboutto be committed,
werebeingcommitted,
or hadbeencommitted,
bysubordinates;
48or,
theabsence
ofknowledge
is theresult
ofnegligence
inthedischarge
ofthesuperior’s
duties;
thatis,where
thesuperior
failed
toexercise
themeans
available
tohimorher
tolearnoftheoffences,
andunderthecircumstances
he orsheshould
haveknown.
49

1.2.3
Failing
to Prevent
or Punish

47.Article
6(3)states
thata superior
is expected
to take"necessary
andreasonable
measures"
to prevent
or punish
crimes
undertheStatutes.
TheChamber
understands
"necessary"
to be thosemeasures
required
to discharge
theobligation
to prevent
or
punish
in thecircumstances
prevailing
at thetime;and,"reasonable"
to be those
measures
s° whichthecommander
wasin a position
to takeinthecircumstances,

48.A superior
maybe heldresponsible
forfailing
to takeonlysuchmeasures
that
werewithin
hisor herpowers.
51 Indeed,
it is thecommander’s
degree
of effective
control
- hisor hermaterial
ability
to control
subordinates
- whichwillguidethe
Chamber
in determining
whether
he or shetookreasonable
measures
to prevent,
stop,or
punishthesubordinates’
crimes.
Sucha material
ability
mustnotbe considered
abstractly,
butmustbe evaluated
on a case-by-case
basis,considering
allthe
circumstances.

49.In thisconnection,
theChamber
notesthattheobligation
to prevent
or punish
doesnotprovide
theAccused
withalternative
options.
Forexample,
wheretheAccused
kneworhadreason
to knowthathisor hersubordinates
wereabout
to commit
crimes
and
failed
toprevent
them,
theAccused
cannot
makeupforthefailure
toactbypunishing
the
subordinates
52 afterwards.

48
Ibid.para.390-393.
49
SeeBlaskicparas.314-332;
cf.Aleksovski
(TC)para.80.
50
SeeBlaskicpara.333.
51
SeeCelebici(TC)para.395.
52
SeeBlaskicpara.336.
24
 ICTR-95-1A-T
~,~, ~

50.TheChamber
is of theviewthat,in thecaseof failure
to punish,
a superior’s
responsibility
mayarise
fromhisorherfailure
tocreate
orsustain
among
thepersons
underhisor hercontrol,
an environment
of discipline
andrespect
forthelaw.For
example,
in Celebici,
theTrialChamber
citedevidence
thatMucic,
theaccused
prison
warden,
never
punished
guards,
wasfrequently
absent
fromthecampat night,
andfailed
toenforce
anyinstructions
he didhappen
togiveout:
3 In Blaskic,
theaccused
hadled
hissubordinates
to understand
thatcertain
types
ofillegal
conduct
wereacceptable
and
would
notresult
in punishment.
54 BothMucicandBlaskic
tolerated
indiscipline
among
their
subordinates,
causing
themto believe
thatactsin disregard
of thedictates
of
humanitarian
law wouldgo unpunished.
It follows
thatcommand
responsibility
for
failure
to punish
maybe triggered
bya broadly
based
pattern
of conduct
by a superior,
which
s5 ineffect
encourages
thecommission
ofatrocities
byhisorhersubordinates,

2. TheCrime
of Genocide
(Article
2 oftheStatute)

2.1 Genocide

51. Article
2 oftheStatute
reads:

"1.TheInternational
Tribunal
forRwanda shallhavethepowertoprosecute
persons
committing
genocide
asdefined
inparagraph2 ofthisArticle
orofcommitting
anyofthe
other
acts
enumerated
inparagraph
3 ofthis
Article
2.Genocide
means
anyofthefollowing
acts
committed
withintent
todestroy,
inwholeorin
part,
a national,
ethnical,
racial
orreligious
group,assuch:
Killing
members
ofthegroup;
Causing
serious
bodily
ormental
harmtomembers
ofthegroup;

53SeeCelebici(TC)paras.
772f.
54SeeBlaskicparas.487and494-495.
55 Thisposition
isevident
notonlyfromthecase-law,
butalsofromtheaimofArticle
6(3),
which
isnot
thatthecrimes
ofsubordinates
shouldbepunished
butthatsuperiors
should
ensure
thatthecrimes
donot
occur.SeealsoInre Yamashita
pp.14-16;
Akayesu
para.691;Celebici
(TC)paras.
772f;Blaskic
paras.
487f.
25
 Deliberately
inflicting
on thegroup
conditions
oflifecalculated
tobringabout
its
physical
destruction
inwhole
orinpart;
Imposing
measures
intended
to prevent
births
within
thegroup;
Forcibly
transferring
children
ofthegroup
toanother
group.
3.The
following
actsshall
bepunishable:
Genocide;
Conspiracy
to commit
genocide;
Direct
andpublic
incitement
tocommit
genocide;
Attempt
to commit
genocide;
Complicity
in genocide."

52. UnderCount1 of the Indictment,

the Prosecution
allegesthatthe Accusedis
responsible
underArticles
6(1)and6(3)forthekilling
or causing
of serious
bodily
mentalharmto members
of theTutsipopulation
andcharges
theAccused
withthecrime
of genocide
pursuant
to Article
2(3)(a)
oftheStatute.

53.Thedefinition
of genocide,
as provided
in Article
2 of theStatute,
cites,
verbatim,
Articles
2 and3 of theConvention
on the Prevention
and Punishment
of theCrimeof
Genocide
6 (the"Genocide
Convention"):

54. The Genocide Convention is undeniably considered part of customary

international
law,as reflected
in theadvisory
opinion
of theInternational
Court
of Justice
(1951)on reservations
to the Convention.
s7 The Chamberalso notesthat Rwanda
acceded,
by legislative
decree,
to theGenocide
Convention
on 12 February
1975,andthat
thecrimeof genocide
wastherefore
punishable
in Rwandain 1994.

55.Thedefinition
of thecrimeof genocide
hasbeeninterpreted
in thejurisprudence
of this Tribunal,
namelyin the Akayesu,Kayishemaand Ruzindana,
Rutaganda
and
MusemaJudgements.
TheChamberadheresto thedefinitions
of genocide
as elaborated

56
The Conventionon the Preventionand Punishmentof the Crime of Genocide,adoptedby the UN
GeneralAssembly,9 December1948.
57 SeealsotheUN Secretary-General’s
Reporton theestablishmentof theInternational
Criminal
Tribunal
for the FormerYugoslavia,
3 May 1993,U.NDoc. S/25704.
26
 ICTR-95-1
A-T
~~ ~

.........................................................................................................................................
in these
judgements.
It therefore
considers
thata crime
of genocide
isproven
if it is
established
beyond
reasonable
doubt,
firstly,
thatoneoftheactslisted
under
Article
2(2)
of theStatute
wascommitted
and,secondly,
thatthisactwascommitted
against
a
specifically
targeted
national,
ethnical,
racial
orreligious
group,
withthespecific
intent
todestroy,
in whole
orinpart,
thatgroup.
Genocide
therefore
invites
analysis
under
two
headings:
theprohibited
underlying
actsandthespecific
genocidal
intent
or dolus
specialis.

2.1.1Underlying
Acts

56. Theactsunderlying
the crimeof genocide
may in eachcasebe analysed
into
physical
andmental
elements.
Theoffences
relevant
tothepresent
caseareconsidered
below.

(i)Killing
-Article
2(2)(a)
oftheStatute

57.Article
2(2)(a)
of theStatute,
likethecorresponding
provisions
of theGenocide
Convention,
uses"meurtre"
in theFrench
version
and"killing"
intheEnglish
version.
Theconcept
of killing
includes
bothintentional
andunintentional
homicide,
whereas
meurtre
refers
exclusively
tohomicide
committed
withtheintent
to cause
death.
In such
a situation,
pursuant
to thegeneral
principles
of criminal
law,theversion
more
favourable
to theAccused
mustbe adopted.
TheChamber
alsonotestheCriminal
Code
ofRwanda,
whichprovides,
underArticle
311,that"Homicide
committed
withintent
to
cause
death
shall
betreated
asmurder".

58.TheChamber
therefore
finds
thatArticle
2(2)(a)
oftheStatute
mustbe interpreted
as a homicide
committed
withintent
tocause
death.
Furthermore,
to constitute
a crime
of
genocide,
theenumerated
actsunderArticle
2(2)(a)
mustbe committed
withintent
destroy
a specific
groupin wholeor in part.Therefore,
by theirverynature
the
enumerated
actsareconscious,
intentional,
volitional
actsthatan individual
cannot
commit
byaccident
or asa result
ofmerenegligence.

27
 (ii)Causing
Serious
Bodily
orMental
Harm-Article
2(2)(’o)
oftheStatute

59.Forthepurposes
of interpreting
Article
2(2)(’o)
of theStatute,
theChamber
construes
"serious
bodily
or mental
harm"to include
actsof bodily
or mental
torture,
inhumane
or degrading
treatment,
rape,sexualviolence,
andpersecution.
In the
Chamber’s
view,"serious
harm"entails
morethanminorimpairment
on mentalor
physical
faculties,
butitneednotamount
to permanent
orirremediable
harm.

2.1.2
Dolus
Specialis

60.Thedolus
specialis
of thecrimeofgenocide
is found
in the"intent
to destroy,
in
whole
orinpart,
a national,
ethnical,
racial
orreligious
group,
assuch".

61.Foroneoftheunderlying
actsto beconstitutive
ofthecrime
of genocide,
itmust
havebeencommitted
against
a person
because
thisperson
wasa member
of a specific
group,
andspecifically
because
ofhisorhermembership
of thisgroup.
Consequently,
the
perpetration
oftheactisin realisation
ofthepurpose
oftheperpetrator,
which
is to
destroy
thegroup
inwhole
orinpart.
Itfollows
thatthevictim
ofthecrime
ofgenocide
is
singled
outbytheoffender
notbyreason
ofhisorherindividual
identity,
butonaccount
ofhisorherbeing
a member
ofa national,
ethnical,
racial,
orreligious
group.
Thismeans
thatthevictim
of thecrime
of genocide
is notonlytheindividual
butalsothegroup
to
which
58 heor shebelongs.

62. On theissueof determining

theoffender’s
specific
intent,
theChamber
applies
thefollowing
reasoning,
as heldinAkayesu:

"[...]
intentisa mental
factor
which
isdifficult,
even
impossible,
todetermine.
This
isthe
reason
why,intheabsence
ofa confession
fromtheaccused,
hisintent
canbeinferred
froma
certain
numberofpresumptions
offact.
TheChamber
considers
that
itispossible
todeduce
thegenocidal
intentinherent
ina particular
actcharged
fromthegeneral
context
ofthe
perpetration
ofotherculpable
actssystematically
directed
against
that
samegroup,
whether
these
actswerecommitted
bythesameoffender
orbyothers.
Other
factors,
suchasthescale

58Akayesu
(TC)paras.
521-522.

28
 IC
R51A4
v
.........................................................................................................................................

ofatrocities
committed,
theirgeneral
nature,
ina region
ora country,
orfurthermore,
thefact
of deliberately
andsystematically
targeting
victims
on account
of theirmembership
of a
particulargroup,
whileexcluding
themembersofothergroups,
canenable theChamber
to
infer
’’s9 thegenocidal
intent
ofa particular
act.

63. Thusevidence
of thecontextof the allegedculpable
actsmayhelpthe Chamber
to determine
theintention
of theAccused,
especially
wheretheintention
of a person
is
notclearfromwhatthatpersonsaysor does.TheChamber
notes,however,
thattheuse
of context
to determine
theintent
of an accused
mustbe counterbalanced
withtheactual
conduct
of theAccused.
TheChamber
is of theopinion
thattheAccused’s
intentshould
be determined,
aboveall,fromhiswordsanddeeds,andshould
be evident
frompatterns
of purposeful
action.

64. As forthe meaningof the terms"in wholeor in part",the Chamberagreeswith

thestatement
of theInternational
LawCommission,
that"theintention
mustbe to destroy
the groupas such,meaningas a separate
and distinctentity,and not merelysome
individuals
becauseof theirmembership
in a particular
group".
6° Althoughthe
destruction
soughtneednotbe directed
at everymemberof the targeted
group,the
Chamber
considers
thattheintention
to destroy
musttarget
at leasta substantial
partof
thegroup.
61

65.TheChambernotesthatthe concepts
of national,
ethnical,
racial,andreligious
groups
enjoyno generally
or internationally
accepted
definition.
62 Eachof theseconcepts
mustbe assessed
in thelightof a particular
political,
social,
historical,
andcultural
context.
Although
membership
of thetargeted
groupmustbe an objective
feature
of the
societyin question,
thereis alsoa subjective
dimension.
63 A groupmay not have

59Akayesu
(TC)para.
523.
60ILC,
Draft
CodeofCrimes,
p.88,andAkayesu
(TC)
paras.
496-499.
61
Forexample,
theChamber
in Kayishema
andRuzindana
(TC)heldthattheaccused
musthavethe
intention
todestroy
a "considerable"
number
ofmembers
ofa group.
62Although
indicative
definitions
ofthese
four
terms
havebeenprovided,
forexample,
inAkayesu
paras.
512-515.
63Inthisregard,
theChamber
agrees
with
thecomment
oftheCommission
ofExperts
onRwanda
that"to
recognise
thatthere
exists
discrimination
onracial
orethnic
grounds,
itisnotnecessary
topresume
orposit
29
 ~,,~ ICTR-95-1
A-T
{~,s.f_w~’-,
~

.........................................................................................................................................

precisely
defined
boundaries
andtheremaybe occasions
whenit is difficult
to givea
definitive
answer
as to whether
or nota victim
wasa member
of a protected
group.
Moreover,
theperpetrators
of genocide
maycharacterize
thetargeted
group
in waysthat
do notfullycorrespond
to conceptions
of thegroupshared
generally,
or by other
segments
ofsociety.
Insucha case,
theChamber
isoftheopinion
that,
ontheevidence,
ifa victim
wasperceived
by a perpetrator
as belonging
to a protected
group,
thevictim
could
beconsidered
by theChamber
as a member
of theprotected
group,
forthepurposes
ofgenocide.

2.2Complicity
to CommitGenocide

66. By Count2 of the Indictment,

the Prosecutor
allegesthatthe Accusedis
responsible,
under
Articles
6(1)and6(3),
asanaccomplice
tothekilling
andcausing
serious
bodily
or mental
harmto members
of theTutsipopulation,
andcharges
the
Accused
withthecrimeof complicity
in genocide,
pursuant
to Article
2(3)(e)
of
Statute.

67.The Indictment
indicates
thatforthe charge
of complicity
in genocide,
the
Prosecution
relies
on thesameactsthatitrelies
onforthecharge
ofgenocide.
Inthe
Chamber’s
view,genocide
and complicity
in genocide
are two different
formsof
participation
in thesameoffence.
TheChamber
thusconcurs
withtheopinion
expressed
in Akayesu
that"anactwithwhichan Accused
is beingcharged
cannot,
therefore,
be
characterized
bothas anactof genocide
andanactofcomplicity
ingenocide
aspertains
tothisaccused.
Consequently,
sincethetwoaremutually
exclusive,
thesameindividual
cannot
be convicted
of bothcrimes
forthesameact".64 Therefore,
theChamber
finds
that
anaccused
cannot
beconvicted
of bothgenocide
andcomplicity
in genocide
on thebasis
ofthesame
acts.

theexistence
of raceor ethnicity
itself
as a scientifically
objective
fact":
Morris
andScharf,
The
International
CriminalTribunal
forRwanda,
vol.1,p.176.
64Akayesu
(TC)para.532.
3O
 68. The Chamberagreeswith the definition
of the elementsof the offenceof
complicity
in genocide
foundin thejurisprudence
of thisTribunal,
as,forexample,
in
65
Musema.

69.Withregardto theactusreusof complicity

in genocide,
the Chamber
notesthat,
underCommonLaw,theformsof accomplice
participation
areusually
defined
as "aiding
andabetting,
counselling
andprocuring".
On theotherhand,in mostCivilLawsystems,
threeformsof accomplice
participation
arerecognised:
complicity
by instigation,
by
aiding
andabetting,
andby procuring
means.
TheRwandan
PenalCode,in itsArticle
91,
defines,
inter
alia,
these
three
forms
of complicity:

"(a)Complicity
by procuring
means,
suchasweapons,
instruments
oranyother means,
used
to commit
genocide,
withtheaccomplice
knowing
thatsuchmeanswouldbe usedforsucha
purpose;
(b)Complicity
byknowingly
aiding
orabetting
a perpetrator
ofa genocide
intheplanning
enabling
actsthereof;
(c) Complicityby ~, for whicha personis liablewho, thoughnot directly
participating
in thecrimeofgenocide,
gaveinstructions
to commit
genocide,
through
gifts,
promises,
threats,abuseof authority
or power,
machinations
orculpable
artifice,
or who
directly
’’66 incited
thecommission
ofgenocide.

70. Takingnote of the fact that the CivilLaw and the CommonLaw definitions
of
complicity
are verysimilar,
the Chamberdefinesthe formsof complicity,
for the
purposes
of interpreting
Article2(3)(e)
of the Statute,
as complicity
by aiding
abetting,
67 by procuring
means,
or by instigation,
as defined
in theRwandan
PenalCode.

71. Themensreaof complicity

in genocide
liesin theaccomplice’s
knowledge
of the
commission
of thecrimeof genocide
by the principal
perpetrator.
68 Therefore,
the
accomplice
in genocide
neednotpossess
thedolusspecialis
of genocide;
rather
he or she,
knowingly,
aidsandabets,
instigates
or procures
foranother
in theknowledge
thatthe

65Musema
paras.168-175
66
Akayesu
(TC)para.
179.
67Ibid.
paras.
525-548.

31
other
person
intends
todestroy,
inwhole
orin part,
a national,
ethnical,
racial
or religious
groupas such.

3. Crimesagainst
Humanity
(Article
3 of theStatute)

72. Article
3 of theICTRStatute
reads:

"TheInternational
Tribunalfor Rwandashallhavethepowerto prosecute persons
responsible
forthefollowing
crimeswhencommitted
as partof a widespread
orsystematic
attack
against
anycivilian
population
on national,
political,
ethnic,racial
orreligious
grounds:
(a)Murder;
(b)Extermination;
(c)
Enslavement;
(d)Deportation;
(e)Imprisonment;
Torture;
(f)
(g)Rape;
(h)Persecutions
onpolitical,
racial
andreligious
grounds;
Otherinhumane
(i) acts."

73. TheAccusedin the presentcaseis chargedwiththreecountsof crimesagainst

humanity:
murder,
extermination,
andotherinhumane
acts,underArticle
3(a),(b),and
of theStatute,
respectively.
ThethreecountschargetheAccused
withresponsibility
under
Article
6(1)and6(3)of theStatute.

68Seeinter
alia
theconclusions
inAkayesu
(TC)
para.
540f.

32
74.ThetextofArticle
3 of theStatute
draws
primarily
on thebenchmark
definition
of
a crimeagainst
humanity
foundin Article
6(c)of theStatute
of the Nuremberg
Tribunal.
69 In customary
international
law,crimes
against
humanity
maybe directed
against
anycivilian
population
andareprohibited
regardless
of whether
theyare
committed
inan international
orinternal
armedconflict.
7°TheUN Security
Council,
in
deciding
thatcrimes
against
humanity
in theStatute
of thisTribunal
musthavebeen
committed
as partofa discriminatory
attack,
applied
a narrower
definition
thanthatin
customary
international
law.

75.A crimeagainst
humanity
is a prohibited
underlying
offence
committed
as partof
a broader
criminal
attack.
Thecrime
therefore
invites
definition
under
three
headings:
the
broader
attack,
theunderlying
offences,
andthemental
element.

3.1 The Broader

Attack

76.Theunderlying
offences
mustbe committed
as partof a widespread
or systematic
attack
against
anycivilian
population
onnational,
political,
ethnic,
racial,
orreligious
grounds.

3.1.1Widespread
or Systematic

77.A widespread
attack
is anattack
on a largescale
directed
against
a multiplicity
of
victims,
whereas
a systematic
attack
isonecarried
outpursuant
toa preconceived
policy
orplan.
71Toqualify,
theattack
mustbeatleast
widespread
orsystematic,
butneednotbe
both.
Nonetheless,
theChamber
notes
thatthecriteria
by which
oneortheother
aspects
oftheattack
isestablished
partially
overlap.
Asstated
inBlasMc:

69
Annexto the Agreementfor the Prosecution
and Punishment
of MajorWar Criminals
of the European
Axis,London,
8 August1945,p. 85.
70 Akayesu(TC) para. 565; The Prosecutorv. Dusko Tadic, Decisionon the DefenceMotionfor
Interlocutory
Appeal
on Jurisdiction,
2 October
1995,para.141.

33
 ,~ ~’~ ICTR-95-1A-T

"Thefact
still
remains
however
that,
inpractice,
thesetwocriteria
will
often
bedifficult
to
separate
since
a widespread
attack
targeting
a large
numberofvictims
generally
relies
on
someform
ofplanning
ororganisation.
Thequantitative
criterion
isnotobjectively
definable
aswitnessed
bythefact
thatneither
international
texts
norinternational
andnational
case-law
setanythreshold
’’7z starting
with
which
a crime
against
humanity
isconstituted.

78.Itis,therefore,
theChamber’s
viewthateither
of therequirements
ofwidespread
orsystematic
willbe enough
toexclude
actsnotcommitted
aspartofa broader
policy
or
plan.Also,therequirement
thattheattack
mustbe committed
against
a "civilian
population"
presupposes
a kindofplan;
andthediscriminatory
element
oftheattack
is,
by itsverynature,
onlypossible
as a consequence
of a policy.
Thusthepolicy
element
canbeseentobeaninherent
feature
oftheattack,
whether
theattack
becharacterised
as
widespread
or systematic.
73Further,
it isclear
fromArticle
3 oftheStatute
andrecent
caselaw
74thatsucha policy
maybeinstigated
ordirected
byanyorganisation
orgroup,
whether
ornotrepresenting
thegovernment
ofa State.

3.1.2Against
anyCivilian
Population

79.TheChamber
concurs
withthefinding
in Tadicthatthetargeted
population
must
bepredominantly
civilian
innature,
butthatthepresence
ofcertain
non-civilians
init
doesnotchange
itscivilian
character.
75Italsofollows,
as argued
inBlaskic,
"that
the
specific
situation
ofthevictim
at themoment
thecrimes
werecommitted,
rather
thanhis
status,
’’76 must
betaken
intoaccount
indetermining
hisstanding
asa civilian.

80. Therequirement
thattheprohibited
actsmustbe directed
against
a civilian

71
Forexample,theILCDraftCodeof Crimesdefines
systematic
as "meaning
pursuant
to a preconceived
planor policy.
Theimplementation
ofthisplanor policycouldresultintherepeatedorcontinuous
commission
ofinhumane
acts."Commentary
on Article
18,para.3.
72Blaskic
para.
207.
73AlthoughtheChamberconcurs
withthestatementin Kupreskic
et al,"thatalthough
theconceptof
crimes
againsthumanity
necessarily
implies
a policy
element,
there
issomedoubt
astowhether
itisstrictly
a requirement,
assuch,forcrimes
against
humanity",
para.
551.
74See,forexample,Tadic
(TC)para.654.
75Tadie(TC)para.638.

34
 ,,~i~ ICTR-95-1A-T

/
............................
..........................................................................................................

"population"
doesnotmeanthattheentire
population
ofa given
State
orterritory
mustbe
victimised
by these
actsin orderfortheactsto constitute
a crime
against
humanity.
Instead
the"population"
element
is intended
toimplycrimes
of a collective
nature
and
thusexcludes
single
orisolated
actswhich,
although
possibly
constituting
crimes
under
national
77 penal
legislation,
donotrise
tothelevel
ofcrimes
against
humanity.

3.1.3On Discriminatory
Grounds

81.TheStatute
contains
a requirement
that,thebroader
attack
mustbe conducted
on
national,
political,
ethnic,
racial,
orreligious 78 Tile
gronnds. Chamber
isoftheviewthat
thequalifier
"onnational,
political,
ethnic,
racial
orreligious
grounds",
which
ispeculiar
totheICTRStatute
should,
asa matter
of construction,
bereadasa characterisation
of
thenature
ofthe"attack"
rather
thanofthemensreaoftheperpetrator.
79Theperpetrator
maywellhavecommitted
an underlying
offence
on discriminatory
grounds
identical
to
those
ofthebroader
attack;
butneither
this,
norforthatmatter
anydiscriminatory
intent
whatsoever,
areprerequisites
of thecrime,
so longasit wascommitted
as partof the
broader
8° attack.

76Blaskic
para.
214.
77SeeTadic(TC)para.644.
78Thisrequirement
isadditional
totheNuremberg
Charter,
theICTYStatute,
andtheICCStatute.
79Hadthedrafters
oftheStatute
sought
tocharacterise
theindividual
actor’s
intent
asdiscriminatory,
they
wouldhaveinsertedtherelevant phrase immediately
after theword"committed", or theywouldhaveused
punctuation
tosetaside theinterveningdescription
oftheattack. Inaddition, theywould havetakencareto
modifyArticle
3(h)toredress theresultingrepetitionof qualifiers.AsnotedbytheAppeals Chamber
Tadic(correctingtheTrialChamber’s adoptionin thatcaseof a supposedly implicit requirementof
discriminatory
intentforallcrimes againsthumanity underArticle 5 of theICTYStatute), "alogical
construction
ofArticle5 alsoleads totheconclusionthat,generallyspeaking,thisrequirementisnotlaid
downforallcrimes againsthumanity.Indeed,if itwereotherwise, whyshould Article 5(h)specifythat
"persecutions"
fallunder theTribunal’s jurisdictionifcarried out’onpolitical, racial andreligious
grounds’?
Thisspecification
would beillogicalandsuperfluous.
Itisanelementary ruleofinterpretation
thatoneshould
notconstruea provisionorpartofa provisionasifitweresuperfluous andhencepointless:
thepresumptioniswarranted thatlaw-makers enactor agreeuponrulesthatarewellthought outand
meaningful
inalltheir elements."Tadic(AC)para.284.Seealsoibid. para.305;Kupreskie etaLpara. 558;
Blaskic
paras.244and260.
80 TheProsecutor
v. JeanPaulAkayesu, Judgementon appealof 1 June2001(CaseNo.96-4-A) para.469
(AC),andKayishema
andRuzindana
(TC)para.133-134.
35
 3.2 Underlying
Acts

82. As discussedabove,a crimeagainsthumanityis constituted

by an offence
committed
as partof a widespread
or systematic
attack
against
a civilian
population
on
national,
political,
ethnic,
racial,
or religious
grounds.
However,
an underlying
offence
need not containelementsof the broaderattack.For example,an offencemay be
committed
withoutdiscrimination,
or be neitherwidespread
norsystematic,
yetstill
constitutes
a crimeagainst
humanity
if theotherprerequisites
of theprincipal
crimeare
met.A single
actby a perpetrator
maythusconstitute
a crimeagainst
humanity.
81

83.Each enumerated
crimecontains
its own specific
mentaland physicalelements.
Thethreeunderlying
offences
charged
in theIndictment
aredescribed
below.

Murder

84. In Kayishema
andRuzindana,
theTrialChamber
foundthat:

"murderandassassinat
[thewordusedin theFrenchversion
of theStatute]
should
be
considered
together
inordertoascertain
thestandard
ofmens
teaintended
bythedrafters
and
demandedby theICTRStatute.Whenmurderis considered
alongwithassassinat
the
Chamber
findsthatthestandard
ofmens
rearequired
isintentional
andpremeditated
killing.
Theaccused
isguiltyofmurder
iftheaccused,
engaging
inconduct
whichisunlawful:
1.causes
thedeath
ofanother;
2.bya premeditated
actoromission;
and
3.intending
tokill
anyperson
or,
4.intending
tocause
grievous
bodily
harmtoanyperson.’82

85. ThisChamber
concurs
withtheabovedescription.

81TheProsecutor
v.MileMsksic,
Miroslav
Radic,
andVeselin
Sljivancanin,
Review
oftheIndictment
Pursuant
toRule61oftheRulesofProcedure
andEvidence,
3 April
1996(Case
IT-95-13-R61)
para.
andKupreskie
etal.para.
550.
82Kayishema
andRuzindana
(TC)para.
139-140.
36
 ICTR-95-1A-T
~ !

Extermination

86. Thereis verylittlejurisprudence

relating
to the essential
elements
of
extermination.
In Akayesu
theTrialChamber
stated
thatextermination
is a crimeby
def’mition
directed
against
a group
ofindividuals,
differing
frommurder
inrespect
ofthis
element
of massdestruction.
Jean-Panl
Akayesu
wasfoundguilty
of extermination
for
ordering
83 thekilling
ofsixteen
people.

87. TheChamber
agreesthatextemaination
is unlawful
killing
on a largescale.
"Large
scale"
doesnotsuggest
a numerical
minimum.
It mustbe determined
on a case-
by-case
basisusinga common-sense
approach.

88.A perpetrator
maynonetheless
be guilty
of extermination
if hekills,
or creates
the
conditions
oflife
thatkill,
a single
person,
providing
thattheperpetrator
isaware
that
his
orheractsoromissions
formpartofa masskilling
event,
namely
masskillings
thatare
proximate
in timeandplaceandthereby
arebestunderstood
as a single
or sustained
attack.

89. The Chamberthusadoptsthe threeelementsof the underlying

crimeof
extermination
articulated
in Kayishema
andRuzindana.
84 ThesearethattheAccused,
through
hisactsoromissions:

(i)participated
inthemasskilling
ofothers,
orinthecreation
ofconditions
oflife
leading
tothemasskilling
ofothers;
(ii)intended
thekillings,
or wasreckless,
orgrossly
negligent
asto whether
the
killings
would
result;
and,
(iii)
wasaware
thathisactsoromissions
formed
partofa masskilling
event.

90.The"creation
ofconditions
of lifeleading
to themasskilling"
ofothers
include,
forexample
imprisoning
a large
number
ofpeople
andwithholding
thenecessities
of life,

83 Akayesu
(TC)para.735-744.
84 Kayishema
and Ruzindana
(TC)para.144.

37
 ICTR-95-1A-T
i~.,x ~ ~1’~**

sothatmassdeath
results;
orintroducing
a deadly
virus
intoa population
andpreventing
medical
care,
withthesameresult.

OtherInhumane
Acts
91. Sincethe Nuremberg
Charter,
the category
"otherinhumane
acts"has been
retained
as a category
ofunspecified
actsofcomparable
gravity
totheother
enumerated
acts.
Article
7(k)oftheRomeStatute
of theInternational
Criminal
Court
characterises
"other
inhumane
acts"
withreference
toa preceding
listof offences
as"acts
ofa similar
character
intentionally
causing
great
suffering,
or serious
injury
to bodyorto mental
or
physical
health."
Commenting
on Article18 of its DraftCodeof Crimes,the
International
LawCommission
stated
that:

"...
this
category
ofactsisintended
toinclude
only
additional
actsthataresimilar
ingravity
tothose
listed
inthepreceding
subparagraphs.
Second,
theactmustinfactcause
injury
toa
human
being
interms
ofphysical
ormental
integrity,
health
orhumandignity"(para.
17).

92.TheChamber
therefore
is of theviewthat,"other
inhumane
acts"includes
acts
thatare of similar
gravity
and seriousness
to the enumerated
actsof murder,
extermination,
enslavement,
deportation,
imprisonment,
torture,
rape,
orpersecution
on
political,
racial,
andreligious
grounds.
These
willbeactsoromissions
thatdeliberately
cause
serious
mental
or physical
suffering
or injury
or constitute
a serious
attack
on
human
dignity.
As forwhichactsriseto thelevelof inhumane
acts,thisshould
be
determined
ona case-by-case
basis.

3.3MentalElement

93.A mental
factor
specific
to crimes
against
humanity
is required
tocreate
thenexus
between
an underlying
offence
andthebroader
criminal
context,
thustransforming
an
ordinary
crime
intoanattack
onhumanity
itself.

94. TheChamber
concurs
withthedescription
of themensreaof a crimeagainst
humanity
as stated
in Kayishema
andRuzindana
(which
wascitedwithapproval
in the

38
ICTYcasesofKupreskic
et al.85 andBlaskic86),
namely,
thattheAccused
mentally
must
include
hisactwithinthegreater
dimension
of criminal
conduct.
Thismeansthatthe
accusedmustknowthathis offenceformspartof thebroaderattack.By makinghis
criminal
actpartof theattack,
theperpetrator
necessarily
participates
in thebroader
attack.

95.It is worthnoting
thatthemotives
(asdistinct
fromtheintent)
of theAccused
are
of no relevance
to thelegalconstitution
of a crimeagainst
humanity.
87 Thispointwas
clarified
by theAppeals
Chamber
in Tadic,whichheldthatan actcommitted
forpurely
personal
motiveswasnotexcluded
frombeinga crimeagainst
humanity
as longas the
underlying
88 offence
wascommitted
by theperpetrator
as partof thebroader
attack.

4. Violations
of theGenevaConventions
and Additional
Protocol
II

96. Article
4 oftheStatute
reads:

"TheInternationalTribunal forRwandashallhavethepowerto prosecute persons

committing
or orderingto be committed
seriousviolations
of Article
3 commonto the
Geneva
Conventions
of 12August 1949fortheProtection
of WarVictims,
andof Additional
Protocol
IItheretoof8 June1977.These
violations
shall
include,
butshall
notbelimitedto:
a)Violence
to life,health
andphysical
or mental
well-being
ofpersons,
in particular
murder
as wellas cruel
treatment
suchas torture,
mutilation
or anyformof corporal
punishment;
b) Collective
punishments;
c)Taking
of hostages;
d)Actsofterrorism;
e)Outrages
uponpersonal
dignity,in particular
humiliating
anddegrading
treatment,
rape,
enforced
prostitution
andanyformofindecent
assault;
f)Pillage;

85Kupreskic
etal.para.
557.
86Blaskic
para.
249.
87Kupreskic
etal.para.
558.
88Tadic
(AC)paras.
271-272.
39
 ICTR-95-1A-T
i~

g)Thepassing
of sentences
andthecarrying
outof executions
without
previous
judgement
pronounced
bya regularly
constituted
court,affording
allthejudicial
guarantees
which
arerecognised
asindispensable
bycivilised
peoples;
h)Threats
tocommit
anyoftheforegoing
acts."

97.UnderCounts
6 and7 of theIndictment,
theProsecution
alleges
thattheAccused
isresponsible
under
Articles
6(1)and6(3)fortheserious
violations
ofCommon
Article
andAdditional
Protocol
IIpursuant
toArticles
4(a)and(e)oftheStatute.

4.1Applicability

98. Jurisprudence
of thisTribunal
has established
thatCommonArticle
3 and
Additional
Protocol
II wereapplicable
as a matter
of custom
andconvention
in Rwanda
in1994.
89 Consequently,
at thetimetheevents
in theIndictment
aresaidtohavetaken
place,persons
who violated
theseinstruments
wouldincurindividual
criminal
responsibility
andcould
beprosecuted
therefore.

4.2 Material
Requirements

99.Common
Article
3 andAdditional
Protocol
II afford
protection
to,interalia,
civilians,
non-combatants
andpersons
placed
horsdecombat,
inthecontext
ofinternal
armedconflicts.
Suchconflicts
mustmeeta minimum
threshold
requirement
to fall
within
theambit
of these
instruments.
Thelesser
threshold
isthatof Common
Article
3
which
simply
applies
toarmed
conflicts
"notofaninternational
character".
Thisrules
out
actsofbanditry
andinternal
disturbances
butcovers
hostilities
thatinvolve
armed
forces
organized
to a greater
or lesser
extent.
To be covered
by CommonArticle
3, the
hostilities
musttakeplace
within
theterritory
ofa single
State,
which,
inthepresent
matter
wouldbe thatof Rwanda.

100. Additional
Protocol
II offers
a higher
threshold
of applicability
inasmuch
it
applies
toconflicts
which
takeplace
intheterritory
ofa HighContracting
Party
between

4O
 ICTR-
95- 1A-T

itsarmedforces
anddissident
armedforces
or otherorgamzed
armedgroups
which,
under
responsible
command,
exercise
suchcontrol
overa partofitsterritory
asto enable
themto carryoutsustained
andconcerted
military
operations
andto implement
this
Protocol.
Again,
situations
ruledout as notbeingarmedconflicts
are"internal
disturbances
andtensions,
suchas riots,
isolated
andsporadic
actsofviolence
andother
actsofa similar
nature.
’’9°Considering
thehigher
threshold
ofapplicability
ofAdditional
Protocol
II,itisclear
thata conflict
thatmeets
itsmaterial
requirements
ofapplicability
willipsofacto
meetthoseofCommon
Article
3.

101.Whether
a conflict
meetsthematerial
requirements
of theaboveinstruments
is a
matter
ofobjective
evaluation
oftheorganization
andintensity
oftheconflict
andofthe
forces
opposing
oneandanother.
91 Oncethematerial
requirements
of Common
Article
3
or Additional
Protocol
II havebeenmet,theseinstruments
willimmediately
be
applicable
notonlywithin
thelimited
theatre
ofcombat
butalsointhewhole
territory
of
theState
engaged
intheconflict.
Consequently,
theparties
engaged
inthehostilities
are
bound
torespect
theprovisions
ofthese
instruments
throughout
therelevant
territory.

102.Fora violation
to be covered
by Article
4 of theStatute
it mustbe deemed
serious.
On this,theChamber
follows
thedefinition
advanced
in Akayesu,
inwhichthe
Chamber
stated
thata serious
violation
is"abreach
of a ruleprotecting
important
values
whichmustinvolve
graveconsequences
forthevictim".
92 Regarding
theelements
of
murder,
ascovered
byArticle
4(a)oftheStatute,
theChamber
refers
toitsdefinition
murder
in 3.2above.

103.Common
Article
3 andAdditional
Protocol
II afford
protection
primarily
to
victims
or potential
victims
of armed
conflicts.
Inthecaseof Common
Article
3, these

89 SeeAkayesu
(TC)paras.
608-610,
Kayishema
andRuzindana
(TC)para.156andMusemaparas.970-
971.
90 SeeArticle
1 ofAdditional
Protocol
IIandAkayesu
(TC)paras.
625-626.
91Akayesu(TC)para.624.
92Akayesu(TC)para.616.
41
 individuals
arepersons
taking
no active
partin thehostilities
93 and,underAdditional
Protocol
II,theprotection
is extended
to allpersons
whodo nottakeor whohaveceased
to takepartin thehostilities.
94 In thepresent
matter,
it is clear
thatthevictims
of the
events
alleged
areunarmed
men,women,
andchildren,
allcivilians.

104.To takea direct

or active
partin thehostilities
covers
actswhichby theirvery
natureor purposeare likelyto causeharmto personnel
and equipment
of the armed
forces.
In assessing
whether
or notan individual
canbe classed
as beinga civilian,
the
overallhumanitarian
purposeof theGenevaConventions
and theirProtocols
shouldbe
takenintoaccount.
To giveeffect
to thispurpose,
a civilian
should
be considered
to be
any one who is not a memberof the "armedforces",
as described
above,or any one
placed
horsde combat.
95

105.Fora crimeto constitute

a serious
violation
of CommonArticle
3 andAdditional
Protocol
II, theremustbe a nexusbetweentheoffenceandthe armedconflict.
The
"nexus"
requirement
is metwhentheoffence
is closelyrelated
to thehostilities
or
committed
in conjunction
withthearmedconflict.
The AppealsChamberin Tadicheld
thatitis "sufficient
thatthealleged
crimes
wereclosely
related
to thehostilities
occurring
inother
parts
of theterritories
controlled
by theparties
totheconflict".
96As such,
itis
not necessary
thatactualarmedhostilities
havebrokenout in Mabanzacommuneand
Kibuye
Prefecture
forArticle
4 of theStatute
to be applicable,
iVIoreover,
it is nota

requirement
thatfighting
wastakingplacein theexacttime-period
whentheactsthe
offences
allegedoccurred
wereperpetrated.
The Chamberwilldetermine
whetherthe
alleged
actswerecommitted
against
thevictims
because
of theconflict
at issue.

106. Theburden
restson theProsecutor
to establish
thatsucha nexus
exists.

93Common
Article
3 (1).
94
Article
4.
95See1977
Additional
Protocol
I Articles
43and44asregards
requirements
forrecognition
ofcombatant
status
andRutaganda
paras.
100and101.
96TheProsecutor
v.Tadic,
"Decision
onthedefence
motion
forinterlocutory
appeal
onjurisdiction"
of
2 October
1995
para.
70.
42
5. Cumulative
Charging

107.TheAccused
is cumulatively
charged
withsevencountson thebasisof hisactsas
alleged
in paragraphs
4.10to 4.31of theIndictment
(although
theComplicity
to commit
genocide
is basedonlyon paragraphs
4.14to 4.25).

108. Withregard
to cumulative
charging,
theICTYAppeals
Chamber
in Celebici
held:

"Cumulative
charging
istobeallowedinlight
ofthefactthat, priortothepresentation
ofall
oftheevidence,
it isnotpossible
todetermine
toa certaintywhichofthechargesbrought
against
anaccusedwillbe proven.
TheTrialChamberis betterpoised,
aftertheparties’
presentation
oftheevidence,toevaluate
whichof thechargesmaybe retained,
basedupon
thesufficiency
oftheevidence.
Inaddition,
cumulative
charging
constitutes
theusualpractice
ofboththisTribunal
andtheICTR."97

109.The Chamberconcurswith the holdingof the ICTY AppealsChamberendorsing

theprinciple
of cumulative
charging.
Therefore,
in thepresent
case,theChamber
will
consider
allthecharges
in theIndictment,
preferred
against
theAccused.

97
Celibici
(AC)para.
400.

43
 ICTR-95-1A-T
~ .....~ ~*’~

CHAPTER IV. GENERAL ISSUES

1. Introductory
Remarks

110.In thissection,
theChamber
willconsider
issues
of a general
nature
which
havebeenraised
by theparties
andwhicharerelevant
to establishing
whether
the
Accused
wasgenerally
supportive
of themassacres.
TheChamber
willassess
the
evidence
relating
to thecharacter
of theAccused
before
April1994,
hisdecision
to
remain
as bourgmestre
during
theevents,
hispossible
subordinates,
hisrelationship
withassistant
bourgmestre
Crlestin
Semanza,
theroleof theAbakiga,
andwhether
theAccused
effected
reasonable
measures
between
AprilandJuly1994to maintain
peaceand security
in the communeof Mabanza.
In ChapterV the Chamberwill
review
theevidence
presented
regarding
specific
events.

2. Character
of theAccused
priorto theEvents
in 1994

111.TheProsecution
didnotexplicitly
challenge
thegoodcharacter
of theAccused
priorto 1994or hiscompetence
as a bourgmestre.
Regarding
thespecific
actions
of
theAccused
before
12 April1994,the Prosecution
stated:
"Weaccept
thatmore
likely
thannot,upuntil
thattime[12April
1994],
hedidthatin goodfaith.
Wemake
no bonesaboutthat.AndI wantthatto be crystal
clear.
Thereis no evidence
to
suggest
’’98 otherwise.

112.FortheProsecution,
evidence
of thecharacter
of theAccused
is irrelevant
to
thedetermination
of hisguiltorinnocence
forthecrimes
forwhich
he ischarged
but
israther
99 anissue
tobeconsidered
atsentencing.

113.TheDefence
argues
thatin assessing
thecredibility
of thetestimony
of the
Accused,
the Chamber
musttakedue noticeof the previous
goodcharacter
and
attitude
oftheAccused
prior
totheevents
inApril
- July1994.
Itsubmits,
inter
alia,

98Transcripts
of 18October
2000pp.65-66.
99Prosecutor’s
Rebuttal
para.
11.

44
 ICTR-95-1A-T

~:

i! i

thatwherethegoodcharacter
of theAccused
hasbeenestablished,
theChamber
must
admit
thathe islesslikely
to havecommitted
thecrimes
perpetrated.
Thisapplies
in
particular
to situations
wheretheDefence
hasnotpresented
independent
proofto
rebuttheProsecution
evidence.
FortheDefence,
thefactthattheAccused
wasa
tolerant
person
whodidnotdiscriminate
against
ethnic
groups,
hasa direct
bearing
on establishing
whether
or nothe committed
thecrimes
forwhichhe is charged./°°
TheDefence
presented
documentary
evidence
to showthatduring
a period
of rising
tensions
from1990onwards
the Accused
carried
outhis dutiesin an objective
manner.

114.TheChamber
notesthatRule93 of theRulesof Procedure
andEvidence
is the
onlyRulethatdealswithevidence
of a consistent
pattern
of conduct.
However,
this
Ruleis relevant
not to evidence
of a pattern
of conduct
whichmay favourthe
Accused,
butrather
to evidence
todemonstrate
theexistence
of a consistent
practice
orsystematic
1°1 practice
so astoprove
a charge,
suchascrimes
against
humanity.

115.Thequestion
before
theChamber,
then,considering
thattheRulesaresilent
on theissue,
is whatweight
should
be attached
to theevidence
presented
by the
Defence
to counter
thecaseof theProsecution.
In its"Decision
on Evidence
of the
GoodCharacter
of the Accused
and the Defenceof Tu Quoque",
of 17 February
1999,
in thecaseofKupreskic
etal.,Trial
Chamber
IIof theICTYstated:

"...(i)generally
speaking,
evidence
oftheaccused’s
character
priortotheeventsfor
whichheisindicted
beforetheInternational
Tribunal
isnota relevantissue
inasmuch
as
(a)bytheirnatureascrimescommitted
inthecontext
ofwidespreadviolence
andduring
a national
orinternational
emergency,warcrimes
andcrimesagainst humanity
maybe
committedby personswithno priorconvictions
or historyof violence,andthat
consequently
evidence
ofpriorgood,orbad,conduct
onthepart oftheaccusedbefore
the
armedconflict
beganisrarelyofanyprobative
value
before
theInternationalTribunal,
and(b)asa general
principle
ofcriminallaw,
evidence
astothecharacter ofanaccused
is generallyinadmissible
to showtheaccused’spropensityto actin conformity
therewith;"

116.Thepresent
Chamber
concurs
withtheabovestatement,
particularly
in the
context
of serious
violations
of international
humanitarian
law,whereevidence
of

100Defence
Closing
Brief
pp.16-17
paras.
105-112
andDefence
Rejoinder
paras.
105-112.

45
 ~ ~:~P** ICTR-95-lA-T
~,

pnorgoodcharacter
is of little
or no probative
value.
However,
weresuchevidence
t 7’3’7
shownto be particularly
probative
to thecharges
at hand,thentheburden
willbe
upontheProsecutor
to dispel
anyresulting
doubts
there
mayberegarding
itscase.

117.Evidence
presented
to theChamber
by boththe Prosecution
andtheDefence
tendsto demonstrate
thatup untiltheevents
in 1994tileAccused
wasa competent
bourgmestre.
He didnotdiscriminate
between
theethnic
groups,
andthepopulation
of Mabanza
commune
respected
him.However,
from1990onwards,
as tensions
rose
between
the Rwandan
government
and the Rwandan
Patriotic
Front(RPF),inter
ethnic
suspicions
anddisputes
increased.
Documentary
evidence
waspresented
to
showhowtheAccused
dealtwiththesituation.

118.In October
1990,theAccused
senttwoletters
to theauthorities
in Kibuye
with
information
on individuals
suspected
either
of illegally
possessing
rifles
or of
supporting
theInkotanyi.
In thefirstletter,
dated9 October
1990andsentto the
prefect
of Kibuye,
theAccused
forwarded
a listof 26 persons,
mainly
teachers
and
Tutsi,
"suspected
ofholding
illegal
rifles".
1°2Ina concluding
notetotheletter,
the
Accused
stated
that"[a]search
ofrifles
hasbeencarried
outinalmost
alltheir
houses
butnosingle
rifle
hasbeenfound.
Wearestill
investigating
butitisnoteasytofind
rifles
withthosepeople.
Thepopulation
haveconfirmed
thattheymightpossess
rifles".
Apartfromthetestimony
of Witness
G (seeV.3.4),
1°3thereis no evidence
thatanyofthesuspects
wasactually
arrested.

119.In a second
letter,
dated20 October
1990,theAccused
sentto thePresident
of
the Security
Councilin Kibuye,
"a listof personswho are suspected
by the
population
...so that[he]couldfollow
theirbehaviour
whichis suspected
by the
population".
1°4Theletter
contains
thenamesof12 persons
allof whomwereteachers

101Onthisissue
seeICTYTranscripts
of 15February
1999inProsecutor
v.Kupreskic
etal,pp.6889-
6890.
102Prosecution
ExhibitNo.91.
103
Seetranscripts
of26January2000pp.14-15
(closed
session):
"Iwassaying
thatafter
1990,he did
notlikethetutsisanymore.Hehatedthem.Hethrewpeople
intoprison
andcalled
them- referredto
~he.m asaccomplices
oftheInkotanvi".
U4
Prosecution
Exhibit
No.90.

46
 ICTR-95-1A-T
~ ~t,~

andmainly
Tutsi.
In conclusion
to theletter,
theAccused
wrote
thathe sentthelist
"following
whatpeople
sayandknowaboutthembutI do notconfirm
forsurewhat
theyarecharged
withis really
true".
Consequently,
theletter
indicates
thatthe
Accused,
in hiscapacity
as headofthecommune,
wasforwarding
to theauthorities
in
Kibuye
information
he hadreceived
fromthepopulation
of Mabanza.

120. During
histestimony,
theAccused
stated:

"Itwasmy dutyasbourgmestre
to report
whatwashappening
inthecommune,whatthe
people
weresaying,whatwashappening
inthecommuneneeded
to be reported
to the
superiors,
’’1°5 depending
onthedevelopment
ofthesituation
inthecommune.

121.Askedwhetherhe checkedthe information

he receivedby conducting
searches,
hereplied:

"Itoldyouthattherewasanatmosphere
ofsuspicion within
theTutsisandHutus.And
theHutusweresaying
nowthattheTutsis hadweapons.AndtheHutuswantedtoattack
theTutsistorecover
these arms,these
weapons.Now,toresolve thesituation
orto
diffuse
thesituation,
wesetupa committeeofverification
toappease
theHutus,
andif
[there
were]weapons
[we]willfindthem,
andiftheydidnothavethen thisrumor
would
befoundtobebaseless.
Thatiswhywedrew upa listofpeoplewhoweretargeted
during
thatperiod.
Andweconducteda search,
butwefound nothing.
Andthatishowcomethe
situationwasdiffusedin [Mabanza],
contrary to whathappenedin neighbouring
communes
’’1°6 andelsewhere.

122.Thereis no conclusive
evidence
in thiscasethatindividuals
werearrested
or
ill-treated
inMabanza
before
or after
theforwarding
of thelistsbytheAccused,
or
thatby hisactions,
theAccused
accentuated
theinter-ethnic
suspicions.
In the
Chamber’s
view,thesetworeports
mustbe viewed
in thecontext
of thesituation
in
whichtheywerewritten.On 1 October1990,the RPF attackedRwandafrom
Uganda.
Insucha situation,
itisnotillegitimate,
onthefaceofit,forauthorities
to
search
forweapons
amongpersons
suspected
of beingsympathetic
to theattackers.
Bothreports
referto a "plan"
to attack
Rwanda.
Whether
themeasures
takenby the
Accused
in October
1990wereproportionate
or notwoulddepend
on an assessment

105Transcripts
of1 June2000pp.147.
106Ibid.
pp.147-148.

47
 IcrR-95-1A-r

I 3S
which
fallsoutside
thescope
of thepresent
case.1o7

123.In 1992and 1993,the Accusedsentto the Prefectfourlistsof personswho

weresaidto havejoined
theInkotanyi.
In theinitial
letterof 23 October
1992,the
Accusedwrote:

"...withreferenceto theprevailing
rumors
thatsomeyoung
menjointheInkontanyi, I
wouldliketo letyouknowthatI assigned
the"conseillers"
tofollow up thisissue
and
theysubmittedtome theattached
list....InMUSHUBATI
"secteur"itis reported
thatit
is a certainKUBWIMANAMathias[...]whotakesthemaway.We wouldliketo request
foryourassistance becausein BANDAMIKO
"cellule"
someparents arenothappywith
themandtheyarelamenting."

124.Attached
to theletter
wasa listof 26 persons
andnamesof others
suspected
to
haveleft.
1°8In threefollow-up
letters
sentto thePrefect,
anddated30 December
1992,14 January1993 and 12 March1993,respectively,
the Accusedforwardeda
further
threelistsof persons,
including
twoHums,whoweresaidto havejoined
the
Inkotanyi.
1°9At thestartof eachlettertheAccused
wrote"I feelsorryto sendyou
againanotherlist of youngmen" who have joinedthe Inkotanyi.
The evidence
suggests
thatby usingthetermInkotanyi,
theAccused
wasreferring
to theRPF,and
thusthelistsidentified
people
whohadsecretly
joined
them.Thereis no evidence
in
thiscasetoestablish
thattheAccused
actedimproperly
in relation
to thelists.

125.Documentary
evidence
presented
by the Defencealsoshowsthatin early1993
attackswerebeingperpetrated
by Hutuon Tutsiand theirproperty
and that the
Accusedattempted
to preventsuchoccurrences.
The Accusedpresented
a reportof
suchincidents
in a letter
to thePrefect
dated7 January
1993anddescribed
how,with
thehelpof threepolicemen
andan Inspecteur
de PoliceJudiciaire,
theylaidambush
to one of the attacks.However,
regarding
otherattacks,
the Accusedwrotethat
security
officers
wereunable
to helpas "theyarenotwellinformed
of thesitesof the
attacks
andalsobecause
thesectoris immense".
According
to theletter,
thePrefect

107Ithasbeen
submitted
thatinsomeparts
ofRwanda
large-scale
imprisonment
ofTutsi
fromOctober
1990tookpartunder
thepretext
ofassuring
security.
SeedesForges:
Leave
NonetoTelltheStory
t1999)
p.49. Exhibit
o8Prosecution No.80.
109Prosecution
Exhibit
Nos.
81,82and83.

48
hadpromised
to sendsoldiers
buttheyhadneverarrived.
In conclusion,
theAccused
asked
forcontinued
assistance
fromthePrefect
inorder
torestoresecurity)
l°

126.According
to theAccused,
by April1994,confidence,
albeit
nottotal,
had
beenrestored
in thecommune
ofMabanza,
m Prosecution
Witness
I testified:

"Bagilishema
wassomeone[who]waslovedby allthepeoplebothHumsandTutsis.
Whentheyhadproblems
theywouldgo to himforadviceandhe wouldprovidesuch
advise.
Andduringthewarwhenin 1994houses
started
to bedestroyedpeoplefled
towards
thebureau
communal
inlargenumbers.
Thismeans
thathewasloved bya lotof
people
andnobodythoughtthatanyharmwouldcometo himselfin thepresenceof
Bagilishema.’l
lz

127.Defence
Witness
KC stated
thattheAccused,
fromthetimehe wasappointed
as bourgmestre
"wasappreciated
by thepopulation,
by the people,
the entire
population",
m For DefenceWitnessTP, the Accused"wasa devotedman who
carried
out hisworkwitha senseof commitment
and fairness.
Someone
who was
listened
to,who hada goodreputation
in his commune".
114 According
to Defence
WitnessBE, "duringhis fourteen
yearsat the helmof the commune,
Ignace
Bagilishema,
whoenjoyed
theconfidence
of alltheinhabitants..,
wasverycloseto
thepeople")
15 Defence
Witness
WE testified
that"fromthebeginning
...thepeople
respected
theAccused
andhe alsorespected
hispeople"J
16

128.In theopinion
of theChamber,
theaboveevidence
doesnotdemonstrate
that
theAccused
generally
discriminated
between
theethnic
groups,
to thedetriment
of
theTutsi,
priorto April1994.Thecorrespondence
regarding
persons
joining
the
Inkotanyi
andpersons
suspected
by thelocalpopulation
of either
hiding
weapons
or
of beingaccomplices
of the Inkotanyi,
doesnot establish
thatthe Accused
unjustifiably
targeted,
arrested
or ill-treated
Tutsi.
Although
thiscorrespondence
can
be subject
to interpretation,
theProsecution
hasnotledsufficient
evidence
to

110
Defence
Exhibit90.
1llTranscripts
of1 June2000pp.148-149.
112
Transcripts
of 23 November
1999p. 27.
113
Transcripts
of28 April2000pp.11-13.
114Transcripts
of27April2000p.133.
115Ibid.
pp.28-29and35.

49
 ICTR-95-1A-T

convincethe Chamberthatthe actionsof the Accusedin 1990-1993

werein
furtherance
toa policy
ofpurposively
singling
outTutsi
as alleged
RPFaccomplices.
Theletter
of 7 January
1993to the Prefect
showsthattheAccused
attempted
to
prevent
Hutufromattacking
Tutsi.
Also,according
to thisletter,
theAccused
requested
additional
soldiers
fromthePrefect,
without
success.
TheChamber
notes
thatevenduring
a period
of relative
calm,theAccused
feltthathehadinsufficient
resources.

3. Decision
of theAccused
to remain
in hisPostof Bourgmestre

3.1Introduction

129.Thequestion
considered
hereis whether
theAccused’s
continued
occupancy
of a centrally
appointed
position
in Rwanda’s
powerstructure
during
themassacres
givesriseto his personal
responsibility
forthe crimescommitted
in Mabanza
commune
intheperiod
April
toJuly1994.
Thisissue
is notrelated
toa specific
part
of theIndictment,
butwasraised
by theProsecution
in thecourse
of trialand
countered
by theDefence.

130.TheProsecution
argues
thattheDefence’s
strategy
hasbeento downplay
the
Accused’s
powers
as bourgmestre
during
theperiod
fromAprilto July1994,thus
aiming
to diminish
theAccused’s
responsibility
formanyof theatrocities
committed
in Kibuye
prefecture
as alleged
in theIndictment.
117 In fact,according
to the
Prosecution,
theAccused
remained
in hisofficial
position
of hisownfreewill,thus
signalling
to the government
of Rwanda
thathe waswilling
to serveit andto
conform
to itsplans,
n8 He was responsible
fortheimplementation
of government
policies
throughout
his tenure.
119 "Thosewho remained
in government
did so
because
I2° theysupported
the[Hutu-power]
ideology.
Theyhadto".

116
Transcripts
of 23 May 2000p. 34.
117Prosecution’s
written ClosingRemarks
p. 41 para.256.
118Transcripts
of 8 June2000p. 75.
119 Prosecution’s
writtenClosing
Remarksp. 41 para.259 andp. 43 para.265.
120 Transcripts
of 4 September
2000p. 38.

5O
 - ~’~ ICTR-95-1A-T

.........................................................................................................................................

131.TheDefence
submitted
thattheAccused
didnottaketheeasyoption
in not
resigning,
andthathe "decided
to remain
on dutyto tryandprotect
as wellas he
couldthepopulation
he hadserved
for14 yearsandthussavedapproximately
nearly
200Tutsi".
In otherwords,
theAccused
as bourgmestre
did allthathe couldto
manage
thesituation
andsavethegreatest
number
of liveswiththelimited
means
and resources
available)
21 The Defence
indicated
thatthe Accused
was being
reproached
by theProsecution
bothfornotdoing
enough
whilein thejobandfornot
resigning
hispost.12e

132.The Accusedtestified
thatsincethe adventof multipartism
in 1991,
bourgmestres
wereexpected
to remain
politically
neutral,
irrespective
of personal
political
affiliations,
andthatthenceforth
he reduced
hisinvolvement
withthe
MRNDparty.
123 The Accusedclaimedto haveremained
bourgmestre
afterthe
formation
of theso-called
interim
government
in April1994forthe purpose
of
"serving
thepeople",
notthe government;
12425
he stayed
on "tosavehumanlives"]
Whileallowing
thatas bourgmestre
he hadto follow
"some"
government
directives,
theAccused
denied
thathe wouldeverimplement
a policy
thatwentagainst
his
conscience.
126

133.During
histestimony
theAccused
spokeof hisintention
on twooccasions
to
resign
fromhispostas bourgmestre.
Referring
firstly
to theperiod
1990to 1994- the
period
of"war",
as hecalled
it- theAccused
said:

"...atthis
timeI hadproblems
ofinter-ethnic
conflicts,
butthere
was,inparticular,
the
problems
amongsttheparties.
Theopposition
parties
werefightingto geta hold,
a
foothold
inMabanzaCommune.
AndasfarasI amconcerned
in1993,I wanted
toresign,
and7
’’12
I wasgoing
toworkfora Dutch
project
which
wasbeingruninCyangugu.

12IDefence
Closing
Briefparas.302-315.
122Transcripts
of 19 October
2000p. 146.
123
Transcripts
of 8 June2000p. 76.
124Ibid.
125
Ibid.p. 77;seealsotranscriptsof 7 September
2000pp.108-109.
126
Transcripts
of 8 June2000pp.76-77.
127
Transcripts
of 1 June2000p. 146.

51
 ICTR-95-1A-T
~,~ ~e~

.........................................................................................................................................

134.TheAccused
wasputoutby thefactthat"management
at thattimewasvery,
verydifficult".
128ThenexttimetheAccused
cameclose
to quitting,
thereason
again
wasoneof management.
On thenightof 12 April1994,according
to theAccused,
aftersupervising
nightpatrols,
he returned
to the bureaucommunal
at around
midnight
to findthata busload
of onehundred
refugees
or more,senttherebyorder
ofthePrefect,
hadarrived
fromRutsiro
(seeV.2.6).
Thenewarrivals
joined
thelarge
massof refugees
already
gathered
at thebureau
communal.
TheAccused
telephoned
thePrefect:

"Iaskedhimwhyhedidn’t contact
metotakethenecessarymeasures
to receive
these
refugeesbecauseI myself
wasoverwhelmed
bythemanagement
ofthose refugees
I had
inMabanzaandI alsofurther
asked
himwhyhenevercametolookatthesituation
thatI
washandling
andthensendthereinforcement
thatI wasrequesting
orfooditems
whichI
requested
for.Hetoldmethathedidnotfindanything. SoI asked
himwhyhe putme
before
’’129a further
complication
before
consulting
me.

135.The Accusedclaimedthatseveraltimesbeforehe had invitedPrefect

Kayishema
to thecommune
forhimto seeforhimself
theconditions
underwhichthe
Accused
wasworking;
butthatthePrefect
nevercame.13° Instead
of reinforcements
andsupplies
he wasbeingsentmoredisplaced
persons
to carefor.TheAccused
informed
thePrefect
thathe wasnotprepared
to accept
soleresponsibility
forthe
management
of therefugees,
andthatif thePrefect
didnotassist
himhe was"ready
toresign".
131

136.On themorning
of 13 April1994,as theAccused
allegedly
prepared
to tender
hisresignation
to thePrefect
("togo andgivehimthekeysto the commune"),
132he
received
a telephone
callfromthebourgmestre
ofRutsiro
warning
himthatassailants
wereon theirwayto Mabanza
to killtheAccused
andtherefugees
sheltering
at the
bureau
communal.
133TheAccused
thereupon
sawto theimmediate
departure
of the
refugees
southtowards
Kibuye,
butdidnothimself
follow
them(seeV.3.1).
Instead:

128Ibid.
129Transcripts
of8 June2000p.187.
130Transcripts
of 5 June2000pp.30-31.
131Ibid.
p.31.
132Ibid.
p.32.
133Ibid.
pp.32-33.

52
 "Ilefttogoandseefriendstoaskforadvice,
tothepastorwhowasnearby
andtoshare
withhimmyideas.
He toldmeitwasnotreally
thebesttimetoabandon
uslikethat;
take
courage.
’’134 Heencouraged
meandI, therefore,
decided
tostickwithmyjob.

137. In the event,the Accusedremainedbourgmestre

of Mabanzacommuneuntil
around15 July1994,whenhe fledto Zaa’re.
135The Accused
testified:
"I remained
bourgmestre,
’’~36 despite
myself,
anddespite
theconditions
thatI foundmyself
in.

138.The abovetestimony
of the Accusedsupports
theconclusion
thathe remained
at his postvoluntarily.
He was underno pressure
to continue
as bourgmestre.
His
testimony
also establishes
that in both casespractical
ratherthanprincipled
considerations
brought
theAccused
to thevergeof quitting.
It wasnotthegrainof
governmental
policythatdisturbed
him,buthe feltthathiscapacity
to managehad
beenexceeded.
The Accusedapparently
didnot seriously
contemplate
resigning
his
position
after13 April1994.

3.2Significance
of theDecision

139.The Prosecution
emphasised
thatthe Accusedheldthe post ofbourgmestre
of
Mabanza
commune
foralmostfourteen
anda halfyears.
137In relation
to thesupposed
significance
of thisstaying
in power,the Prosecution
reliedon itsexpertwitness
Professor
Andr6Guichaoua.
138 He testified
thattheposition
of bourgmestre
"is a
majoraspectof thechainof commandwhichis centralized",
139 butalsothat"the
bourgmestrehas power which is personaland which is proportionalto the
relationships
thathe hadwiththenational
leaders".
14°Withreference
to theAccused,
in particular,
Professor
Guichaoua
said:

134Ibid.
p.83.
135Transcripts
of8 June
2000p.23.
136Ibid.
p.75.
137Seee.g.
transcripts
of1 June
2000
p.30.
138Prosecution’s
written
Closing
Remarks
pp.42-43
paras.
260-268.
139Transcripts
of14February
2000p.15.
140
ibid.p.24.

53
 "Asfaras I am concemedallthosewhoheldpolitical office
duringthegenocide could
notremovethemselvesfromresponsibility,disclaimresponsibility.
Theyneeded to see
whatwashappeningintheirenvironment
inorder tohelpinthepoliticalradicalization.
I
willtakean examplethat theBourgmester of Kivumuwho was knownas Juvenile
Rwanzegushira
...preferredto resignin 1993becausehe believed
he waspowerlessin the
faceof theviolentactsthatweretaking place.AlltheBourgmester[s]
neededto analyze
thesituationandsomeone with14 yearsexperience behindhimshouldto my mindbe
abletohavethose
’d41 capabilities
ofanalysis.

140. The Prosecution

endorsedits expert’sreasoningand suggestedthat the
Accusedwas a politicalconformistwhose longevityin office hingedon his
continuingobeisanceto higher authorities:"This is a man who remained
Burgomaster
for 14 years.It takesan art giventhe historyof Rwanda,giventhe
situation
in Rwanda".
142Andin relation
to theperiod
following
6 April1994:

"[TheAccused] hadno ideahowthings weregoingto turnoutandhavingdecided to

remainin hisposition,
it is my submission
on behalf
of theProsecutor,
thathe hadto
conformanddo allthatwasnecessary to maintain
theconfidence
of hissuperiorsin
,,143
him.

141.The Prosecution
has not arguedthatthe Accusedis responsible
becausethe
interimgovernment
was, at the timeof the eventsallegedin the Indictment,
an
organization
witha criminal
purpose.
Rather,
theProsecution
seemsto arguethatin
orderto stayon as bourgmestre,
theAccused
hadto expressly
support,
by wordsand
actions,
thepolicyand purposeof theinterimgovernment.
Thisallegation
is not
explicitly
coveredby the Indictment.
The responsibility
of the Accusedmust be
basedon specific
actswhicharecovered
by theIndictment.
Theseactsaredealtwith
in ChapterV below.

142. A tangentissueis whetherby remainingas bourgmestre,

with the full

141
Ibid.pp.91-92.French
reads:
"Amonsens, tonsceuxquiontoccup6
desresponsabilitrs
politiques
pendant
laprriodedugrnocidenepeuventpasdrgager
leurimplication
ouleurresponsabilit~.
Ilsont
eudeuxartsdevanteuxpourvoir
quelle~taitl’rvolution
quised~roulait
dans1cur
environnement,
pour
assister
h laradicalisation
politique,
etjeprendraiunexemple...,
maislebourgmestre
deKivumu,
qui
s’appelait
Juvrnal
Rwanzegushira
...a prrfrr6drmissionner
en1993,
parcequ’il
s’estimait
impuissant
faceauxexactions
qui6taientcommises.
Doric,jelerrpbte,
tousles
responsables
onteu2 ansdevant
euxpour...jedirais comprendre,
analyser,
etquelqu’un
quia 14ansd’exp~rience
derri6re
lui,doit
lq4uand
m@me,~ mort
2 Transcripts sens,
of18 possrder
October ses
2000 attributions"
p.238. (pp.110-11).
143
Transcripts
of19October
2000p.159.

54
 ICTR-95-1A-T
~:~,~. ~ ,~g~

knowledge
of theinterim
government’s
criminal
objectives,
givesriseto personal
liability.
Thisissueis notnovel.
TheNuremberg
military
tribunals
adopted
the
guiding
principle
that,
toestablish
individual
criminal
liability,
theprosecution
must
demonstrate
theintentional
commission
of a criminal
actor thewanton
failure
to
fulfill
a legalduty.In theHighCommand
case,theprosecution
wasrequired
to
demonstrate
"personal
dereliction.
Thatcanoccuronlywheretheactis directly
traceable
to him or wherehis failure
to properly
supervise
his subordinates
constitutes
criminal
negligence
onhis part".
144TheTribunal
added
that"[a]ny
other
interpretation
of international
lawwouldgo farbeyond
thebasicprinciples
of
criminal
4s lawas known
to civilized
nations")

143.Theapplication
of thisgeneral
principle
of individual
responsibility
to
defendants
whoknewof illegal
activities
of theirorganisations
butwholacked
authority
andpoweroverthoseactions
resulted
in numerous
acquittals.
In the
Hostage
case,
defendant
Frrtsch,
whoserved
as chief
of staff
tovarious
generals,
was
acquitted
despite
passing
onorders
instructing
subordinate
units
to takehostages
and
toexact
reprisals
inoccupied
territories)
46TheTribunal
held:

"Theevidence
fails
toshowthecommission
ofan unlawfulactwhichwastheresultof
anyaction,
affirmative
orpassive,
onthepartofthisdefendant.
Hismereknowledge
of
thehappening
ofunlawful
actsdoesnotmeettherequirements
ofcriminallaw.Hemust
beonewhoorders,
abets,
ortakesa consenting
partinthecrime.
Wecannotsaythatthe
defendant
mettheforegoing
requirements
as toparticipation.
Wearerequired tosay
therefore
thattheevidence
doesnotshowbeyonda reasonable
doubtthatthedefendant
Foertsch
47 isguiltyonanyofthecountscharged")

144.Thusa personfoundto haveknowingly

beenpartof an organisation
with
criminal
objectives
willnotnecessarily
incurresponsibility.
Theperson
musthave
positively
participated
in thegroup’s
crimes
by substantially
contributing
to the
crimes
or by influencing
thecourse
of related
events;
alternatively
theremusthave
beenpersonal
dereliction.
Consequently,
thereis a needfora concrete
assessment
of

144UnitedStates
v. Wilhelm
vonLeeb[theHighCommand
case],Trials
of WarCriminals
Beforethe
Nuernberg
Military
Tribunals
UnderControl
Council
LawNo.10,vol.11 (1950),
pp.543-544.
145Ibid.
p.489.
146UnitedStates
v. Wilhelm
List[theHostage
case],
Trialsof WarCriminals
BeforetheNuernberg
Military
Tribunals
UnderControl
Council
LawNo.10,vol.11 (1950).
147Ibid.
p.1286.

55
 145.Thisapproach
is alsoapplicable
in relation
tothesituation
in Rwanda
in1994.
In thisregard,
theChamber
notesthattheDefence
submitted
theJudgement
in the
matter
of ThePublic
Prosecutor
v. Ignaee
Banyaga,
delivered
on 26 June1999by
theCourtofFirstInstance
148 of theSpecialised
Chamber
sitting
in Kibuye,
Rwanda.
FromAprilto July1994,Banyaga
wasan assistant
secretary
withtheprefectural
authority
of Kibuye.
In May1994,he became
responsible
forthesecurity
of a certain
locality
in Kibuye.
In acquitting
Banyaga
ofcharges
ofgenocide,
theCourt
looked
to
Banyaga’s
conduct.
Finding
no evidence
of criminality,
theaccused
wasacquitted.
TheTrialChamber
wasinformed
thatthejudgement
is on appeal.

3.3 Conclusion

146.The Chamberfindsthat,whilethe Accusedhad linkswiththe interim

government
by virtue
of hisposition,
theProsecution
hasnotledevidence
in support
of the contention
thatthe Accusedwas therebyassociated
witha criminal
"conspiracy"
whichhe positively
assisted
or fromwhichhe declined
to extricate
himself.

4. Possible
Subordinates
of theAccused

4.1Introduction

Submissions

147.TheIndictment
suggests
thattheAccused
wasthesuperior
of at leastfive
groupsof persons:
the employees
of Mabanza
commune,
the communal
policemen,
membersof the Gendarmerie
nationale,
Interahamwe
militiamen,
and "armed
civilians".
149 Threemembers
of the firstgroupare named:Nzanana
(communal
accountant),
Semanza
andNsengimana
(assistant
bourgmestres).

148DefenceExhibit
No.104.
149See,forexample,
paras.
3.2,3.3,4.16,
4.19,
4.24and4.26.

56
 ICTR-95-1A-T

148.The Prosecution’s
closing
briefaddedmoregroups
to theabovelist:"the
residents
of Mabanza
andtheAbakiga";
15°and"civilians
answerable
to theaccused
in his capacity
as Bourgmestre")
51 The briefnamed,amongotherindividuals,
Nkiriyumwami
(conseiller)
andHakizimana
(brigadier);
152 Nshimyimana
(communal
driver);
153 Rwamakubaand Munyandamutsa
(communalpolicemen);
154 and
Witnesses
Y andZ (roadblock
attendants).155

149. Initsconcluding
oralargument,
theProsecution
offered
thissummary:

"Theissueof thesubordinates
...as perevidence
ledbytheprosecution,
arethe
following;
ThetwoAssistant Burgomasters,
theotherstaffof thecommune,
the
communalpolicemen,thegendarmes
whowerestationedin Mabanza,
thelocalHum
civilians,
betheytheAbakigas
ortheInterahamwe,
andtheHutumilitia
whoweretrained
under
thecivil defence
programme
aswellasthereserve
whose
services
wereresorted
to
during
’’I56thematerial
time.

150.TheDefence
contends
thattheProsecution
failed
to distinguish
between
thede
jureadministrative
authority
andinfluence
of theAccused,
on theonehand,andhis
superior
authority
or effective
command
overthegroups
andindividuals
identified
above,
ontheother)
57Itisthelatter
kindofauthority
thatisa prerequisite
forArticle
6(3)responsibility.
Itis evidenced,
inter
alia,
byde jurepowers
toissue
orders
and
discipline
disobedience)
58 TheDefence
concludes
thatof allthede jurepowers
of
theAccused,
it wasonlyhisauthority
overthecommunal
police
whichjustifies
the
conclusion
thatmembers
ofthatgroup
werehistruesubordinates.
159

150
Prosecution’s
writtenClosing
Remarksp.87para.52.
151Ibid.
p.95para.108.
I52Ibid.
p.95para.106.
153Ibid.
p.95para.108.
154Ibid.
p.96para.110.
I55Ibid.
p.116paras.267-269.
156Transcripts
of 18October
2000pp.210-211.
I57Defence
ClosingBriefp.
98para.150.
t58Ibid.
p.96para.138andp.99para.158.
159Defence
ClosingBriefp.
112para.280.

57
Preliminary
remarks

151.Thelawrelating
to Article
6(3)oftheStatute
wasdiscussed
underIII.1.2
The
condition
of subordination
iseffective
control.
Toreiterate,
a civilian
superior
will
haveexercised
effective
control
overhisor hersubordinates
in the concrete
circumstances
if bothde factocontrol
andthetrappings
of de jureauthority
are
present
andsimilar
tothose
found
ina military
context.

152.In whatfollows,
theChamber
willconsider
thecharacter
of thede jureor de
jure-like
relationships
between
the Accusedand groupsof personswhichthe
Prosecution
hasalleged
wereat various
times"subordinate"
to him,in thesenseof
Article
6(3)of theStatute.
Thediscovery
ofde jureaspects
is onlythefirststep
towards
satisfying
theformal
condition
of subordination;
forthecharacter
of a
civilian’s
de jureauthority
(whether
realor contrived)
mustbe comparable
to that
exercised
ina military
context.
Iftherelationship
oftheAccused
toa particular
group
hadno de jureaspects,
andif moreover
it lacked
eventhetrappings
of de jure
command,thenby definition
no memberof that groupcan be considered
a
subordinate
of theAccused.
Therelationship
willhavebeentoodissimilar
to that
enjoyed
by a de jurecommander.

153.Theexistence
of thesecond
element
of subordination,
namely
de factocontrol,
willbe considered,
as necessary,
on a case-by-case
basis,
in thecourse
of the
Chamber’s
analysisof the Prosecution’s
factualallegations
(ChapterV).
Additionally,
therelationship
between
theAccused
androadblock
attendants
withbe
dealt
withinV.5.

4.2 CommunalStaff

154.For the periodcovered

by the Indictment,
the administration
of Mabanza
communewas,according
to Rwandanlaw,underthe directauthority
of the

58
 ~ ~) ICTR-95-1A-T

bourgmestre.
~6° Thestaffing
of the communal
administration
wassubject
to the
following
general
principles,
setoutin Articles
92 to 94 of thelawof 23 November
1963,on theorganisation
of communes:

"92.Communes
mayemploy
personnel
to perform
communal
functions.
Furthermore,
should
there
beneed,representatives
fromState
Administrative
Services
maybeassigned
toCommunal
Administrative
positions,
pursuant
tostatutory
provisions.
93.Thebourgmestre
hastheauthority
toemploy,
suspend
orterminate
[personnel],
after
conferring
withCommunalCouncil
pursuant
to instructions
fromtheMinister
ofthe
Interior.
94.Alldecisions
inregardtoemployment,
suspension,
ortermination
ofpersonnel
must
beapproved
bythePrefect
orhisrepresentative.
’’161
(Non-official
translation.)

155.The communal
staffwas subdivided
intothreegroupings.
Therewerethe
"personnel
administratif’
(comprising
thesecretarial
andaccounting
staff),
the
"personnel
technique"
(technical
staff),
and the "police
communale"
(communal
policeforce)J
62 Membersof the "personnel
technique"
werespecialists
in
agricultural,
63 social,
economic
andcultural
fieldsJ

156.Additionally,
in April1994,theAccused
hadthreeassistant
bourgmestres.
Therewasa special
procedure
by whichassistants
wereappointed
and,potentially,
dismissed.
TheAccused’s
threeassistants
wereappointed
in 1988by theMinistry
of
theInteriorJ
64TheAccused
saidthathisinput
regarding
theirselection
waslimited
to giving
advice
- it wasup to theMinistry,
finally,
to hireandfireassistant
bourgmestresJ
65 TheAccused
didnotindicate
whether
theMinistry
of theInterior
routinely
actedupontheadvice
of thebourgmestre
in suchmatters.
Nevertheless,
in
1988,theMinistry
appears
to haveappointed
thethreecandidates
proposed
by the
bourgmestre
fortheassistants’
postsJ
66 TheAccused
madethefollowing
observation

160Organisation
communale,
23 Novembre
1963,Disposition
organique,
Article
60;reprinted
in F.
Reyntjens
andJ. Gorus(ed.),Codeset loisdu Rwanda,
2nded.(Butare:
Universit6
Nationale
du
Rwanda,
1995),
vol.II,pp.914-20.
161Ibid.
162Ibid.
Articles
3 and4.
163
Ibid.
Article
5.
164Transcripts
of1 June2000p.68.
165Ibid.
p.69.
166Ibid.
p.70.

59
 ..... ~lt,r~ ICTR-95-1A-T

about
theday-to-day
management
of hisassistants:

"Itwasthebourgmestre
whoshould
havemanaged
these
assistants
buteachtimethere
wasa problem,
it wasnecessary
to follow
thehierarchical
structures
throughthe
prefecture
’’167 totheministry
uptothecivilauthority.

157.However,
theChamber
notesthatin Article
58 of thelawon theorganisation
of communes:
"Thebourgmestre
is particularly
responsible...
11) to exercise
administrative
authority
overaffected
Staterepresentatives
within
thecommune"
(non-official
translation).

158.The commune’s
decision-making
bodywas the Conseilcommunal.
16s It was
composed
of oneconseiller
persecteur,
elected
by thepeople
fora termof five
years.
169The communal
council
waschaired
by ’thebourgmestre
andmet twicea
monthin opensession.
Decisions
weretakenby majority
vote.Thevotewassecret
whenthematter
related
to thenomination
or removal
ofpersormel.

159. Havingbrieflyconsideredcertainformalaspectsof the communal

administration,
theChamber
willnowlookat thepurpose
of thisstaff,
placed
by
statute
underthe authority
of the bourgmestre.
Article
57 of the law on the
organisation
of communes
states:

"Thebourgmestre
isresponsible
byvirtue
ofhissuperior
administrative
authority
forthe
economic,
social
andcultural
development
ofthecommune
andfortheexecution
oflaws
andregulations."
(Non-official
translation.)

160.Leaving
asidethebourgmestre’s
law-enforcement
authority
(whichwillbe
considered
in thenextsection
on communal
police),
theChamber
is in no doubtthat
Mabanza
commune
wasorganised
andwasrun,at leastuntilApril1994,in a fashion
consistent
withitsintended
purpose,
namely,
communal
economic
development.
On
thebasisof theavailable
evidence,
theChamber
cannot
conclude
thattheAccused’s
de jureauthority
overhiscommunal
employees
hadmartial
features.

167Ibid.
p.69.
168Organisation
communale,
Articles
3-37.
169Organisation
desdlections
desconseillers
communaux,
13 Novernbre
1979,Ddcret-loi
no.36/79,
Article
8;in Reyntjens
& Goruspp.921-927.

60
 ICTR-95-1A-T

161. Prosecution
Expert
Witness
Guichaoua
wrotein a paperon localgovernment
in Rwanda:

"[Inthelate1970s]theroleofthecommunes
as agents
of development
wasenhanced
withthecreation
ofnewbodies
withaneconomic
rather
thanadministrative
mandate.
It
wasprimarily
inthissphere
thattheinstitutional
autonomy
ofthecommunes
wastobe
exercised
fromthenon....Thecommunal
smacture
wasexplicitly
organised
around
development
activities",
t 70

162.Defence
ExpertWitness
C16ment,
who workedin Rwandaduringthe period
1989to 1994,assisted
communes,
including
Mabanza,
in development
planning.
In
histestimony
he referred
to theoperations
of Mabanza’s
Development
Council
and
Technical
CommissionJ
71 He offered
thefollowing
assessment
of theAccused:

"TheBourgmestre
of Mabanza
wasof theninecommunes
theBourgmestre
whogotmore
involved
’’172 andwithmoresuccess
intheplanning
ofthedevelopment
ofhiscommune.

163.Bothin lawandin practice,

therefore,
theAccused’s
formal
relationship
with
hisadministrative
andtechnical
staff,
at least
until
April
1994,
appears
to havebeen
equivalent
to thatof a general
manager
of a public
agency
focused
essentially
on
social
development.
173Thismodelimplies
thattheAccused’s
de jureauthority
over
lower-level
staffwasaltogether
different
fromthatof a military
commander
over
subordinates.

164.Of course,
thisfinding
doesnotexclude
thepossibility
thattheAccused,
at
sometimeearlyin 1994,appropriated
theready-made
staffing
structure
of the
communal
administration
andcontorted
it intoa quasi-militia.
However,
in the
present
case,sucha transformation
or adaptation
of theadministration’s
personnel
could
nothavebeenachieved
quietly
or overnight.
TheProsecution’s
concession
that
the Accusedactedin goodfaithup until12 April1994suggeststhatany

170ProsecutionExhibit
No.71 pp.2 and 5.
171
Transcripts
of 29 May 2000pp.43f.
I72Ibid.pp.53-54.
173
Notethe similarstatementin Akayesu(TC)para.62: "Therelationshipbetweena bourgmestxe
and
the communalworkforce... is very much a relationship
of employerand employeeand, therefore,

61
 165.In anycase,theChamber
is unable
to conclude
fromtheevidence
before
it
thattheemployees
of Mabanza
commune
were,vis-~t-vis
theAccused,
in a de jure-
likerelationship,
whether
pre-existing
orcontrived,
thatborethemarks
ofa military-
stylecommand.
TheProsecution
hasnotadduced
sufficient
proofon thispoint,
even
thoughits chargesof commandresponsibility
presuppose
suchevidence.
The
Chamberthereforefindsthat no administrative
communalemployeeswere
subordinates
oftheAccused
inthesense
required
byArticle
6(3)of theStatute.

166.Moreover,
contrary
to theProsecution’s
submission,
it is clearthatmembers
of theConseil
communal,
an elected
advisory
bodyof sectoral
representatives,
were
notdejuresubordinates
oftheAccused
in thesense
of Article
6(3)eventhough
each
member’s
workwassupervised
by thebourgmestre,
whowasentitled
to a quarterly
report
onhisorheractivities.
174Thisfollows
fromtheapplicable
legislation:
"The
bourgmestre
is responsible,
generally,
forexecuting
thedecisions
of theCommunal
Council.
’’175
(Non-official
translation.)

167.A different
question
to thatconsidered
aboveconcems
theAccused’s
dutyto
keeppersonnel,
withwhomhe hada supervisory
relationship,
in line.Thereis no
doubtof the existence
of sucha dutyin Rwandan
law.Thebourgmestre’s
general
law-enforcement
obligation
was citedabove.Moreover,
"anybreachof the
[communal]
representative’s
dutyconstitutes
a disciplinary
matter"
(non-official
translation),
whichonlythebourgmestre
could punish.
176Thisimplies
thathe was
undera dutyto punish
wheretheneedarose.
In relation
to communal
staff,
the
Accused
couldcontrol
inappropriate
or illicit
conduct
bymeansof fivecategories
of
statutory
sanctions
(discussed
in thenextsection);
formoreserious
infractions
could
fallbackonhisbroader
powers
ofdetention
or referral
toprosecution.

strictlylimited to the scopeof employment."

The TrialChamberin Akayesuchosenot to consider
the
responsibility
of theAccusedunderArticle6(3).
174
See,for example, Organisationcommunale,
Article37.
175Ibid.Article
58.
176 Statutdu personnel communal,25 Novembre1975,Arr~tdprdsidentielno. 254/03,Article32; in

Reyntjens
& Goruspp. 943-946.

62
 168. Nevertheless,
in legalterms,the Accused’s
possible
breachof his dutyto
control
staff(orpersons
generally)
whowerenothistruesubordinates
doesnotcome
underthepurview
of Article
6(3).If anything,
it is a matter
forArticle
6(1),in
eventthat it can be shownthat the Accused,althoughreasonably
able in the
circumstances
to do so,omitted
to punish
hisstaffbecanse
he didnotwishto obstruct
theircriminal
behaviour.

4.3 CommunalPolice

169. In April1994,accordingto the Accused,Mabanza’scommunalpoliceforce

hada totalof eightmembers,
including
a brigadier
andan assistant
brigadier.
177In
this perioda bourgmestre’s
formalrelationship
with the communalpolicewas
described
in Articles
1 and 4 of a 1977statuteon the organisation
of the Police
eommunale:178

"1.Thecommunal
police
force,
whichis organized
at thecommunal
level,is subject
to
theauthority
of thebourgmestre,
whousesthepolice in hisdutyto maintain
andre-
establish
public
order
andtoexecute
lawsandregulations.
4.Thebourgmestre
bearsfullresponsibility
fortheorganisation,
operation
andcontrol
of
thecommunal
police
corps.
Heisassisted,
inhisduty,
bythebrigadier.
’’179
(Non-official
translation.)

170.In the courseof his testimony,

the Accusedsaidthatthebrigadier
was the
direct
supervisor
of thecommunal
police,
i80Moreaccurately,
underlaw,he wastheir
"commander".
18I The brigadierwas supervised
by the bourgmestre.
The Accused
saidthathisresponsibility
in thisregard
wasto ensure
that"thebrigadier
didhisjob

properly
of coordinating
theactivities
of thepolicein termsof themaintenance
of
public
182 lawandorderandsecurity".

177
Transcripts
of1 June2000p.56.
178
Organisation
de la Policecommunale,
40etobre
1977,Arr~t~
prOsidentiel
no.285/03;
in
Reyntjens
& Gorus
pp.946-949.Seealsodiscussion
inAkayesu
(TC)para.
65.
179Thetasks
ofthecommunalpolice
aresetoutingreater
detailinOrganisation
communale,
Article
109.
180Transcripts
of1 June
2000
p.53.
181
SeeOrganisation
communale,
Article
108.

63
 ICTR-95-1A-T
~
¢

!!

171.Thatthe communal
policewasquasi-militaristic
in structure
andoperation
is
evident
fromthetermsof thestatute.
Forexample,
a brigadier
preferably
wasto be
an armyreservist;
183 he wasresponsible
for thetransmission
of "orders"
fromthe
bourgmestre,
the maintenance
of weapons,and the conductof trainingand parade
drills;
184andthequarterly
reports
on theperformance
of thecommunal
police,
which
fellto thebourgmestre
to prepare
fortheattention
of thePrefect,
werecopied
to the
Gendarmerie
nationale.185

172. A memberof the communalpolicewas, underRwandanlaw, an employeeof

the communeand subjectto the same basicconditionsof employmentas other
communal
staff.
Is6 Thebourgmestre’s
powerto discipline
membersof the communal
policewas the same as for otherstaff.The law prescribed
five categories
of
sanctions,as shown below.Whileit was the bourgmestre
who was exclusively
empowered
to discipline
communal
staff,sanctions
described
in thefourthandfifth
categories
couldbe imposedby the bourgmestre
onlyon theadviceof theConseil
communal
andwiththepriorapproval
187 of thePrefect:

"1) warning;
2) withholding
of onequarter
salary
foronemonthmaximum;
3) disciplinary
suspension
foronemonthmaximum;
thissanction
involves
prohibition
fromexercising
anyduties
andwithholding
ofsalary;
4) extended
disciplinary
actionforan indeterminate
period;
thissanction
involves
termination
ofallsalary
andofallindemnities;
5)termination
ofservice.
’’188
(Non-official
translation.)

173. Theseweresubstantial
penaltiesthatcouldbe used by the bourgmestre
to
regulatethe conductof communalpolicemen.
The Accused’sauthorityto impose
penalties
forindiscipline,
whilenota sufficient
indicator
of command
responsibility,

182
Transcripts
of 1 June2000p. 53.
183
Organisationde la Policecommunale,
Article7.
184
Ibid.Articles8, 12 and14-15.
185
Ibid.
Article16.
I86
Ibid.
Article
2.
187Statut
dupersonnel
communal,
Article
33.
188Ibid.
Article
32.

64
 ,,~
f~.~-~.
~,~ ICTR-95-1
A-T
~x

/
!

isnevertheless
a necessary
element,
anditisclearly
present
here.

174.In lightof theforegoing,

theChamber
findsthattherea de juresuperior-
subordinate
relationship
existed
between
theAccused
andmembers
of thecommunal
police
of Mabanza
commune
throughout
theperiod
in question.
Thisis notdisputed
by theDefence.
189

4.4 Gendarmerie
Nationale

175.The Accused
testified
thatduringa security
meeting
on 9 April1994in
Kibuye
he proposed
thatsecurity
efforts
andreinforcements
should
be concentrated
in sensitive
areas,
whichaccording
to himincluded
Rutsiro
andMabanza
communes.
However,
as otherbourgmestres
alsorequested
gendarmes,
his proposal
was
rejected.
Instead,
it wasdecided
to distribute
thegendarmes
to allthecommunes.
According
to theAccused,
he received
onlyfivegendarmes.
In hisview,thisnumber
wasinsufficient
tomeettheneeds
of thecommune,
andhetestified
thathe repeatedly
requested
moregendarmes
directly
fromthePrefect
up until12 April1994,without
success.
19°He gaveup requesting
whenthefivegendarmes
thathe hadbeengiven
"werewithdrawn
around
the13th and14th of April.
Thereason
thatwe weregiven
was thattheyhad beencalledto go to thewar frontby Kigali".
19a During
his
testimony,
theAccused
described
howhe deployed
theavailable
manpower
to deal
withthedeteriorating
security
situation.
192

176.TheProsecution
hasargued
thatthereis no evidence
to support
thetestimony
oftheAccused
thathe received
onlyfivesgendarmes,
thathe maderepeated
requests
to thePrefect
forreinforcements,
or thatthegendarmes
werewithdrawn
on 13 April
1994.193
Regarding
thesearguments
of theProsecution,
theChamber
recalls
thatthe
burden
is notupontheAccused
to provehiscase.Rather
it is on theProsecution
to

189Defence
ClosingBriefp.
89 para.71.
190Transcripts
of2 June2000pp.86-91.
191Transcripts
ofi June2000pp.133-137.
t92Transcripts
of2 June2000pp.78-86.
193Transcripts
of 4 September
2000pp.117-118.

65
refute
histestimony.
If theProsecution
believes
thatthisaspect
of thetestimony
of
theAccused
is false,
thenit mustso demonstrate
it.TheProsecution
cannot
simply
relyon therenotbeingevidence
to support
thestatements
of theAccused
as proof
to
discredit
him.Furthermore,
theChamber
notesthattheProsecution,
during
itsfinal
closing
arguments,
didnot specifically
contest
thenumberof gendarmes
at the
disposal
of the Accused
but ratherquestioned
theirdeployment
and use by the
Accused.194 Consequently,
the arguments
of the Prosecution
do not refutethe
testimony
of the Accusedas regards
the numberof gendarmes
at his disposal
between
9 and13 April1994.

177.At thetimeof theevents

of 1994,theGendarmerie
nationale
wasessentially
a
branch
of thenational
army.It wasaccountable
to theMinister
of Defence,
andits
memberswere"subject
to the decisions,
disciplinary
measures
and military
jurisdictions"
(non-official
translation).
195Theycould
beaskedtooperate
alongside
thearmy,wheretheneedaroseJ
96

178. The1963lawon communal

organisation
contains
provisions
fortheallocation
of members
of whatwasthenreferred
to as thePolice
nationale
to communes:
197

"103....Furthermore
thePrefect
maydispatch
constituents
oftheNational
Police
tothe
Commune.
104.Thebourgmestre
alonehasauthority
overmembers
ofthecommunal
Policeand,
upondesignation
bythePrefect,
over
theconstituents
oftheNational
Police
dispatched
to
thecommune
....
105.ThePrefect
will
continue
toadminister
allpersonnel
andresource
issues
inregard
to
theconstituents
oftheNational
Police
placed
under
theauthority
ofthebourgmestre...."
(Non-official
translation.)

179.Theseprovisions,
whichwerenotexplicitly
rescinded
whenthelawcreating
theGendarmerie
nationale
wasdecreed
in 1974,suggest
thata bourgmestre
had

194Transcripts
of18 October
2000pp.47-48.
195Creation
de laGendarmerie,
23 Janvier
1974,D~cret-loi,
Article
2;in Reyntjens
& Gorus
pp.735-
739.
196Ibid.
Articles
7 and45.
197ThePolice
nationalewasintegrated
intotheRwandan
armyin1973- seelntdgration
dela Police
clansl’Armde
Rwandaise,
26 Juin1973,Arr~tO
Prdsidentiel
no.86/08;
inReyntjens
& Gorusp.713.

66
 considerable
de jureauthority
overan allocated
detachment
of gendarmes.
However,
thelaterlawof 1974,whichby convention
mustbe understood
to prevail
overany
earlier
inconsistent
provisions,
makes
thisinterpretation
untenable.
Article
28ofthe
1974lawstates,
generally:

"Members
of theNational
Police
Force(Gendarmerie
Nationale)
aresubject
to the
exclusive
’’198 authority
oftheir
ranking
superiors
inorder
tocarry
outtheir
mission.
(Non-official
translation.)

180.In April1994,a bourgmestre,

notbeingpartof thegendarmerie’s
hierarchy,
couldnothavehadoperational
command
of theallocated
unit.Thelimited
nature
of
thede jurerelationship
existing
between
thetwosides
is evident
fromthefollowing
clause:

"Intheexecutionof a requisition,
theNational
Police mustmaintain
authority,
whileliaisingwiththeadministrative
authority
of thepetitionerandproviding
information,notwithstanding
exigent
circumstances,
regarding
themeansthat
it plansto use.Similarly,theadministrative
authority mustconveyto the
NationalPolicecommand alluseful
information
to accomplishthemission."
(non-official
199 translation)

181.Prosecution
WitnessN was, at the timeof his testimony,
a Rwandan
government
official
whoseknowledge
of current
ftmctions
of bourgmestres
is notin
dispute.
Thewitness
stated
thattheduties
of a bourgmestre
to maintain
peaceand
security
hadnotchanged
since1994andtherelevant
lawsremained
essentially
the
same.
2°°According
to thewitness,
thebourgmestre
hadto approach
otherofficials
if
he needed
military
assistance.
Reinforcements,
suchas gendarmes,
whocometo the
commune
to ensure
security
do "whatthebourgmestre
instructs
or orders.
Theydon’t
comejustto operate.
Theyoperate
according
to theinstructions
...". However,
the
bourgmestre
"cannotdirectly
prevent
a gendarme
fromcarrying
outan illegal
act".
In suchsituations,
thebourgmestre
hadto report
thegendarme
to thecommander
of
theunitsoasto bedisciplined.
2°1InAkayesu,
theChamber
stated:

198Crdation
de la Gendarmerie.
199
Ibid.
Article
39.
200Transcripts
of15 February
2000p.13.
201
Transcripts
of 15February
2000(closed
session)
pp.12-13and23-24.
 "Itis theprefect,notthebourgmestrewho canrequesttheinterventionof the
Gendarmerie.
TheGendarmes
putat thedisposal
of thecommuneat therequest
of the
prefect
operate
underthebourgmestre’s
authority.
Itis farfromclear,
however,
thatin
such circumstances
a bourgmestre
wouldhavecommandauthority overa military
,,202
force.

182. The Defencesubmittedthat whilethe bourgmestre

couldrequestgendarmes
fromthePrefect
to dealwithspecific
security
threats,
he no morethancollaborated
withtheofficer
in chargeof theunitdispatched
to thecommune.
TheAccusedwould
havehadto referanyproblems
thatemergedto the commander
of thegendarmerie
in
Kibuye
town.
2°3Thesesubmissions
appearto be accurate.

183.For the abovereasons,the Chamberfindsthat the Accuseddid not havede

jure authority over gendarmes assigned to Mabanza commune in i994. The

Prosecution
hasledno evidence
thattheAccused
soughtto establish
a contrived
de
jure-like
authorityover them.Therefore,
the gendarmeswere not the Accused’s
subordinates
andhe is notliable
underArticle
6(3)fortheiractions.

4.5Reservists

184.The foundational
statutes
of the Rwandanarmycreateda stricthierarchical
structure
of military
personnel:
"Theorganisation
of theArmedForcesis basedon a

hierarchy
in whicheachone’splaceis defined"
(non-official
translation).
2°4At every
levelof thisstructure
a subordinate’s
obedience
to theordersof hissuperiors
is
valuedhighly,
andanyinitiative
outsidetheframework
is opento punishment.
2°5 A
civilian
administrator
suchas theAccused
couldnothaveinterposed
himself
in the
structure.
Therefore
he couldnothavehadde jureauthority
oversoldiers.

202Akayesu
(TC)para.
69.
2o3Defence
Closing
Briefp.
90paras.
81-83.
204 , . . desForces
Reglement
dediczphne Armdes
Rwandaises,
Article
10.
205Ibid.
Article
15.SeealsoStatut
desOfficiers
desForces
Armdes
Rwandaises,
3 Janvier
1977,
Arr~td
Prdsidentiel
no.01/02,
Articles
13-16;
andStatut
desSous-Officiers
desForcesArmdes
Rwandaises,
3 Janvier
1977,Arr£t~
PrOsidentiel
no.02/02,
Articles
17-20,
inReyntjens
& Gorus
pp.
713-721
and724-731,
respectively.

68
 185.Reservists
of theRwandan
armycouldbe recalled
forthepurposes
listed
in
Article
8 ofthelawOrganisation
delar’eserve
del "Armee"
Rwandaise)
°6Upon
recall
theirexactrolewouldbe determined
by theregional
armycommander,
z°7Theywere
reabsorbed
intothearmy:
"Fortheduration
ofthecall-ups
[ofthereservists]
....the
soldiers
...weresubject
to alltheregulations
andorders
in forcein theRwandan
Army"
2°8 (non-official
translation).

186.The Chamber
findsthattheAccused,
as bourgmestre,
didnot havede jure
authority
overreservists
in Mabanza
commune
in thesenseof Article
6(3)of the
Statute.

4.6 Interahamwe

187.The term"Interahamwe"
usuallyrefersto the youthwingof the MRND
(Mouvement
rdvolutionnaire
national
pourle ddveloppement)
party.
2°9However,
in
thepresent
case,a number
of witnesses
didnotdistinguish
between
Interahamwe,
Abala’ga
andcitizens
of Mabanza.

188.Prosecution
Witness
AB testified
thattheInterahamwe
wereHutumembers
of
"thepartycalled
PowerandMRND".
21°Shestated
thattheywerearmedwithclubs,
machetes
andbamboo
sticks,
andabouttheirclothing
shesaid:"...theInterahamwe
woredried
banana
leaves.
They...hadthisontheir
headandon their
waist.
Thisused
to be a distinctive
signfor the HutuInterahamwe".
211 Membership
of the
Interahamwe
wasverybroad:
"There
wereallsortsof people.
Men,women,
children.
Onlytheelderly,
oldmenandoldwomen,
were...excluded.
’’212Theyoungest
child-
Interahamwe
wasabouttwelve
213 yearsold.

206
2 Janvier
1963,Arr~t~Ministdriel
no.3/11,inReyntjens
& Gorusp.712.
2o7
Ibid.
Article
7.
2o8
Ibid.
Article
14.
209
SeeforinstanceRutaganda
para.378.
210Transcriptsof 15November
1999p. 62.
211Ibid.p.64;seealsop.98.
212Ibid.p.64.
213Ibid.p.122.

69
 ICTR-95-1A-T
~, ~ ~’~

189.Prosecution
Witness
AC testified
thatby Interahamwe
she meantthoseHutu
whokilled
Tutsi.
Thedifference
between
Interahamwe
and ordinary
Hutuwasthat
theformer
"werearmed
to kill"
whereas
thelatter
carried
no weapons.
214Thewitness
followed
thisup witha seemingly
different
definition:
"Inmy language
Interahamwe
meansmembersof the MRND partywho wereopposedto the Tutsiswho were
members
of theLiberal
party".
215Lateron shegavethefollowing
description:
"...
the Interahamwe
cameand theysurrounded
the stadium.
Someof themwerein
vehicles,
others
wereon foot,andon theirheadstheyworeleaves,
andtheywere
armed
216 withspears,
machetes,
clubs,
sticks
andaxes".

190.TheChamber
notesthatthedescriptions
of bothwitnesses
varied
between
a
broadunderstanding
of Interahamwe,
denoting
anyonewho attacked
Tutsi,anda
party-political
definition
of membership
of the group.A thirdvariation
was
introduced
withthemention
by bothwitnesses
of decorative
features
associated
with
theAbakiga.

191.Prosecution
Witness
I alsoseemed
to be referring
to Abakiga
(discussed
under
IV.4.7
below)whenshe testified
thatimmediately
afterthe deathof President
Habyarimana,
"Interahamwe"
fromGisenyi
Prefecture
pursued
the fleeing
Tutsi
south,
allthewayto Mabanza.
217Similarly,
Prosecution
Witness
K stated
thaton the
morning
of 13 April1994,theAccused
toldrefugees
at thebureau
communal
thatthe
"Interahamwe"
werecoming,
and wouldkillthemif theydid notfleeto Kibuye
town.
21sIncross-examination
he insisted
thatthiswasthetermusedby theAccused
andnot"Abakiga".
219(Aswillbe seenlater
in thischapter,
theconsensus
account
is
thatAbakiga
invadedMabanza
communefromthe northon 13 April1994.)When
askedwhatshe understood
by the termInterahamwe,
WitnessI stated:"The
Interahamwe
are youthswho werefoundthroughout
the countryand who were

214Transcripts
of 18 November
1999p. 47.
215Ibid.
216Ibid.
p.49.
217
Transcripts
of 23November1999p. 20.
218
Transcripts
of 25January2000p.88.

7O
 ~ ~’~ ICTR-95-1A-T

formedby the MRNDparty.Theydid jobsaskedof themby the MRND.And when

theystarted
these
youths
weretrained
tokillandtheydidkill.
’’22°
Later
shecameto
distinguish
between
Abakiga
(people
"fromthehills")
and Interahamwe
("ayouth
221
group").

192.Defence
Witness
WE wasthe onlywitness
who usedthe terms"Abakiga"
and
"Interahamwe"
almost
as synonyms
throughout
his testimony,
twicereducing
them
to a hyphenated
noun- "the222
Abakiga
Interahamwe".

193.Prosecution
Witness
Z was askedaboutthe relationship
between
theMRND
partyandtheInterahamwe.
He replied
thattheInterahamwe
wastheyouthwingof
theparty.
223ThattheAccused
hada long-standing
association
withtheMRNDis not
in dispute;
at thetimeoftheevents
inquestion
hewasa member
of theparty’s
local
committee.
224Witness
Z saidthatpriorto 1994therehadbeenno military
training
for Interahamwe
youth.
Thiscommenced
at the beginning
of 1994,whenall young
Hutubegan
225 toreceive
military
training
- "itusedtobecalled
civil
defence".

194.Prosecution
Witness
A wasa survivor
of the attackon KibuyeStadium.
He
returned
to hidein Mabanza
at around
theendof April1994.Froma placecalled
Kunyenyeri
he couldobserve
a fieldwherecivildefence
personnel
werebeing
trained.
Thewitness
said:"I sawtheBurgomaster
Bagilishema
having
theseyoung
Interahamwe
trained.
I sawthemaboutfourtimes.
’’226Thetrainees
carried
fake
woodenrifleswitha stringfora shoulder
strap.On one occasion
thewitness
allegedly
sawtheAccused
firefroma firearm
whiletheyoungmenstoodby hisside
watching.
At othertimestheyengaged
in physical
exercises
("somersaults"
and

219
Ibid.
p.96.
220
Transcripts
of 23 November
1999pp.21-22.
221Ibid.
pp.36-37.
222
Transcripts
of23 May2000pp.21and63.
223Transcripts
of8 February2000p. 90.
224Transcripts
of1 June2000p.139.
225
Transcripts
of8 February2000p.91.
226Transcripts
of 17 November
1999p. 55.

71
 195.Prosecution
Witness
Q alsotestified
to seeing
the Interahamwe
training
in
Mabanza
commune.
The training
sessions
involved
persons
fromvarious
secteurs
who wouldmaketheirway to the communal
officecarrying
"sticks
shapedlike
guns".
Thiswasat thebeginning
of June1994.
2z8Thewitness
saidthatthetraining
wasconducted
by thesecretary
of thecommune,
Hakizimana,
as wellas the"leader"
of theInterahamwe,
assistant
bourgmestre
Appolinaire
2z9 Nsengimana.

196.Two otherwitnessestestified
to Nsengimana’s
association
with the
Interahamwe.
Witness
I saidthattheassistant
bourgmestre
had(atsomeunspecified
time)takenoverthe leadership
of the MRNDpartyin Mabanza
froman infirm
incumbent,
and thathe was alsothe "leader"
of theInterahamwe.
23° Witness
B
referred
to a meeting
thattheAccused
held"withtheassistant
whowasthechief
of
theInterahamwe.
HisnamewasAppolinaire
131 Nsengimana".

197.Finally,
someevidence
suggests
thatthe termInterahamwe
was givento
people
staffing
roadblocks,
whether
or nottheywereInterahamwe
in theformal
sense.
Defence
Witness
WE,whowasfromKigali
andhadseentheroadblocks
there,
said:
"...inKigali
it’sthepeople
whowerekilling
oneanother
....mostof thepeople
involved
had giventhemselves
the nameInterahamwe".
z32 DefenceWitnessRJ
described
a roadblock
shecrossed
in Mabanza,
after
paying
a visitto theAccused
at
hishome.
233Theroadblock
wasat a placecalled
Gashyushya,
aboutthreekilometres
fromthe bureaucommunal.
She saidthatthe roadblock
was attended
by three
Interahamwe:
"That’s
’’234 whatnamewe gaveto thosepeople.

227Ibid.
pp.55-56.
228
Transcripts
of25 January2000pp.29-30.
229Ibid.
p.30.
230Transcripts
of 23November1999p. 29;seealsop.48.
231
Transcripts
of24 January
2000p.63;seealsopp.64and66.
232Transcripts
of 23May2000p.36.
233Ibid.
p.29(closedsession).
234Ibid.
p.30(closedsession).

72
 .,~x ICTR-95-IA-T

198.In conclusion,
whilemanywitnesses
stated
thatInterahamwe
werepresent
in
Mabanza
during
theevents
in question,
manyemployed
thetermbroadly
to connote
persons
who attacked
Tutsi.TheAccused
cannot
havehadcommand
responsibility
overanunspecified
assortment
ofattackers.

199.Regarding
the Interahamwe
as a branchof the MRNDyouthwingor more
broadly
asa civil
defence
force,
fivewitnesses
(Z,A, Q,I andB)alluded
toa formal
organisation
of Interahamwe
in Mabanza
commune.
Onewitness
suggested
thatit
wasunderthecommand
of theAccused,
andthreeothers
stated
thattheorganisation
wasaccountable
to oneof theassistant
bourgmestres.
Theevidence
isinsufficient
to
establish
thatthatthere
existed
a de juresuperior
subordinate
relationship
between
theAccused
andtheInterahamwe.
Whether
theAccused
excercised
de factocontrol
andauthority
overthemmustbe addressed
on a casebycasebasis(Chapter
V).

4.7.Abakiga

200.The Prosecution
alleges
thatthe Accused
had the ability
to control
the
activities
of theAbakiga.
He exercised
5 thiscontrol
"whentheoccasion
demanded"Y
ThustheAbaMga
obeyed
hisorders
to stopharming
Hutuin Mabanza
andinstead
to
attack
Tutsigathered
in a neighbouring
commune.
Witness
N testified:

"Normally
theterm[Abakiga]
isfor...theinhabitants
ofthehighlands
...Even
nowif
yougotothehighmountains
youwillmeetsuchpeople.
[They]
arepart
andparcel
ofthe
society
justasallothers
andtheBourgemesterofthecommune
where
theylivewills
power
overthem
justastheothermembers
ofthe...commune.
[InApril
toJuly1994,the
bourgrnestre]
’’236 could
prevent
themfromkilling
orparticipating
inmassacres.

201.According
to the Prosecution,
the Abakigawere"invaders"
in Mabanza
commune.
237 When WitnessN was askedwhereAbakigacamefromduringthe
eventsof 1994,he replied:
"In my own commune
Mabanza,
whenyou talkabout
Abakiga
youarereferring
specifically
to theinhabitants
of thecommune
closeto us

235
Transcripts
of 18October
2000pp.217-18.
236Transcripts
of15 February
2000pp.19-20.
237
Prosecufion’s
written
Closing
Remarks
p.1 para.
9.

73
 ,~*,~r. ICTR-95-1A-T

thatisRutsiro".
238Rutsiro
islocated
tothenorth
ofMabanza.

202.Of otherProsecution
witnesses,
Witness
K saidthattheAbakiga
who"within
theweekafterthedeathof thepresident"
commenced
attacks
in Mabanza
camefrom
RutsiroY
9 WitnessAA alsospokeof Rutsiroand othernorthern
communes,
but
addedthatAbakiga
alsocamefromMabanza
itself.
24°Witness
H testified
thatthe
Abakiga
wereHutuwho"livedin the highforestlandsof the Mabanza
commune,
theyalsolivein theRutsiro
region".
241Witness
Z saidthattheAbakiga
camefrom
thenorthern
prefecture
of Gisenyi
butcouldalsobe found
around
theGisenyi-Kibuye
border.
242Witness
I testified
thattheyoriginated
in Gisenyi
andthe"highlands"
of
the Urukugaregion,and thattheyweremainlyHum.243 Womenand children
accompanied
them"tohelpthemto carrytheirloot".244 Witness
AB alsomentioned
Urukuga
as a homeland
of theAbakiga;
shesaidthattherewassomeoverlap
between
thatregion
andMabanza.
Othergroups
of Abakiga
camefromGisenyi
andelsewhere
northof Mabanza.
245

203.FortheDefence,
Witness
AS stated
thattheAbakiga
originated
fromthenorth
- theywerenotknownlocally.
246Witness
BE testified
that"inourregion,
whenwe
talkabout
theAbakT"ga,
we arereferring
tothose
fromRutsiro,
allthewaytoKayove,
Gisenyi,
Ruhengeri,
and even Byumba".
247 Witness
RA explained
thatshe knew
Abakiga
frombefore
theoutbreak
of violence,
whentheywouldcomefromRutsiro
andothernorthern
partsto Mabanza
to sellpotatoes.
248TheAccused
testified
that
Abakiga
covered
theirbodies
withleaves
found"onthehighmountains
of Gisenyi,

238
Transcripts
of15 February2000p.25.
239Transcripts
of25January2000pp.85-86.
240Transcripts
of10February2000p.17.
241Transcripts
of 19November1999p. 18.
242Transcripts
of 8 February
2000p.21.
243Transcriptsof23 November
1999pp.31and36-37.
244Ibid.
p.32.
245Transcriptsof15 November
1999pp.80-81.
246Transcripts
of 25April2000pp.27-28.
247Transcripts
of27April 2000p.103.
248Transcripts
of2 May2000pp.120-121.

74
 ICTR-95-1A-T
~i ~ ~ ~t ~,~

Rutsiroand Mabanza".
249 Theywereknownas peoplefromthe northof the
country.
25°Likeotherwimesses,
he described
theAbakiga
"arriving",
completing
their
25t attacks,
then"departing".

204.The Abakiga
havenot expressly
featured
in previous
judgements
of this
Tribunal.
Despite
thenumberof witnesses
who spokeaboutthe Abakiga
in the
present
case,
theidentity
of these
people
"from
thenorth"
is still
somewhat
unclear.
Prosecution
expert
witness
Guichaoua
saidthat"north"
in thiscontext
hadspecial
connotations
in Rwanda:

"Itwasnormallysaidthat[theAbakiga]werepeoplefromtheNorthbuttheNorthwas
anythingthatwasn’thome.In otherwordstheycamefromcommunes of Gisenyiand
Ruhengeri
....inmanyreportsmention
ismade ofthefactthatdisorder
cameabout
from
banditswhocamefromothercommunes. So that’s
whatwassaidin thecommunes,
especially
inMabanza.Nowinthecommunes inthesouth,
itwassaidthatthesepeople
camefromRutsiro, MabanzaandKivumu communes.
In otherwordsthecommunesfrom
theNorth.So eachpersonhadone’sownimage ofwhatwastheNorth.TheNorthbeing
...theplacewhere
badpeoplecamefrom.
’’252

205.The majority
of the witnesses
wereof the viewthatthe Abakigawere
strangers
to mainstream
Mabanzan
society;
theybelonged
forthemostpart,if not
entirely,
to othercommunes
or prefectures;
theydressed
in an unusual
manner;
and
theywereregarded
withsuspicion,
if notdread,
bymanyof Mabanza’s
residents,
and
notjusttheTutsi.
Nowitness
identified
an Abakiga
byname.

206.The mainsourceof the Chamber’s

uncertainty
aboutthe Abakigais the
unresolved
questions
abouttheirorganisation,
leadership
andobjectives.
Witness
Z
saidthatitwasverydifficult
to identify
a leader
among
theAbakiga
because
theyall
dressed
in thesamefashion
andlooked
alike,
z53TheAccused
testified
thatabout
100
Abakiga
cameto hishouseon 13 April1994.Theywanted
to knowwhathe haddone
withtherefugees
sheltering
atthebureau
communal:
"I wasnotableto identify
the

249
Transcripts
of5 June2000p.111.
250Ibid.
p.107.
251
See,forexample,
transcripts
of5 June2000pp.106-113.
252Transcripts
of14 February
2000p. 113.
253
Transcripts
of8 February
2000p. 24.

75
 ICTR-95-1A-T
L~e~,~.. ~’~

leader
butallof themwerespeaking
at thesametime.So,I triedto calmthem
down".254 On the otherhand,Witness
I maintained
thatthe groupsof Abakiga
visiting
Mabanza
didhaveleaders:
"...thisleader
wassaying
thathehada listwith
namesof people
whosehouses
hadto be destroyed
andpeople
whohadto be killed.
So itwasthischief...whogavetheinstruction
which
hadto befollowed
andthat’s
whyI thinktheywereorganised".
255Witness
I believed
alsothattheobjective
of the
Abakiga
in coming
to Mabanza
wasto avengethedeathof President
Habyarimana,
whowasa native
256 of theirareaandwhomtheyconsidered
a "brother".

207.Witness
AA saidof theAccused
thathe had"invited"
theAbakiga
to Mabanza
to killTutsi.
257Witness
Z wentfurther,
asserting
thattheAccused’s
family
cameto
settle
in Mabanza
fromtheregion
of theAbakiga,
andthattheAccused
had"absolute
power"
overthem,illustrating
thiswithan example
of how theyhad obeyed
the
bourgmestre’s
request
to desist
fromlocal
attacks,
andattack
Tutsi
elsewhere.
258At
othertimesthe Abakiga
couldbe persuaded
withmoney,
and bothWitness
RA and
the Accusedgaveexamples
of how the Abakiga
couldbe madeto moveon for a
smallsum.
259 The Accused
testified
thaton 13 April1994,aboutone hundred
Abakiga
cameto hishouseandthreatened
himandtoldhimthathe wasan Inyenzi
andan [tzkotanyi.
260Hisfamily
wasinside.
TheAbakiga
wereasking
himwherehe
hadhidden
theTutsiwhohadbeenat thecommunal 261 TheAccused
office. testified
that"seeing
howferocious
theywere,I gavethemtenthousand
Francs
forthemto
leave
262 my house
andtheyleft".

208.Defence
Witness
RJ,a Tutsi,
whoat thetimewashiding
withherTutsicousin
named
Chantal
in theservants’
quarters
attheresidence
oftheAccused,
testified
that
oneday(shedidnotgivea date)
theAccused
"cametoseeus ...because
theAbakiga

254Transcripts
of5 June2000p. 108.
255Transcripts
of 23 November1999p. 32.
256Ibid.
pp.35-36.
257Transcripts
of10 February2000p.17.
258Transcripts
of8 February2000pp.21-23.
259RA:transcripts
of2 May2000pp.46-47; Accused:
transcripts
of5 June2000p.109.
26OTranscripts
of 5 June2000pp.107and108.
261Ibid.
pp.108-109.

76
 "Headvised
ustoclose
thedoor,andthat’s
what
wedid....Weheard
thenoise
thatthey
weremaking
during
theattacks,
andwecould
alsohearthewhistles
theywereblowing,
butwedidn’t
seethem
withourowneyes.
’’263

209. Whateverone makesof the Accused’sclaimto have been personally

threatened
by theAbakiga,
there
islittle
doubt
thatthe"invaders"
cameintoconflict
withthelocal
authority.
Defence
Witness
ZJdescribed
a scuffle
atKibilizi
market
in
April1994between
Abakiga
and shop-owners
supported
by communal
policemen:

"Atthattime,theywantedtoloota shopbutthecommunal
policemen
prevented
them.
Theyfiredintotheair.Thereweretwocommunal policemen.
Theattackerswerenot
abletolootastheywantedtodo.Thefirst waveofattackers
left.Theywenttowards
Kibilizi,
Gitarama,
and,theywentthroughthecommune.
Thereafter,
a second
waveof
attackers
arrived.
Regarding
these
attackers
whowereverymany,
thepolicemenandthe
traders
tried
tofightthemoffbutthiswasnotpossible
....BythatI meantthatthe
policemen
andthetradersattempted
topreventtheAbakiga
fromlootingandthatwas
whenthetwogendarmes, whocame~omtheKibuye road,arrived.Thetwogroups
couldnotagree.
Theynearlyfought.
And,itwasatthatstagethatthepolicemen
were
notabletofight
offtheAbakiga.
AndtheAbakigawent
ontoloot."
264

210.TheAccused
testified
thaton 18 April1994,at around
8 a.m.,he confronted
theAbakiga
at Rubengera
parish.
He wasin thecompany
of a number
of pastors,
a
certain
HubertBigaruka,
the conseiIlers
of Gacacaand of Rubengera,
and two
policemen.
Therewereabouttwohundred
Abakiga.
TheAccused
testified
thathe
toldtheAbakiga
that"wehadhad enough
of them,and thatwe wereaskingthem
neverto comebackagainto Mabanza".
Oneof theAbakiga
saidto theAccused
that
he "hadno rightto stopthemto movewherevertheywanted.Theycouldgo
anywhere
in thecountry."
TheAccused
explained
thathe thentoldthemthatthey
wereunwanted
in Mabanza:
"Youarelooking
forenemies,
andthereareno enemies
in Mabanza".
However,
according
to theAccused,
theAbakiga
"revolted"
andtold
him thathe couldnot stopthemfromusinga public
road.TheAccused
explained
thataftertheAbakiga
left,he felthumiliated
in frontof his"people"as
he hadno

262Ibid.
pp.107and109.
263
Transcripts
of 23May2000p.15.
264
Transcripts
of3 May2000pp.74-75.

77
 211.Otherevidence
supports
thetestimony
of theAccused
thatduring
theevents
in
1994,he addressed
the Abakiga
in Mabanza
andaskedthemto leavethe commune.
Prosecution
Witness
Z testified
thatonemorning
before
"thepeople
fromGatwaro
werekilled"
(V.3.),
the Accused
helda meeting
at Rubengera
parishwhere
addressed
theAbakiga:
According
to thewitness,
theAccused
toldtheAbakiga
that
he had"hadenough
of theirkillings
andthattheyshould
stopthekillings
andthat
theyshouldno longerworrypeopleby goingthrough
the pathsin between
the
house".
According
to thewitness,
theAbakiga
"never
againtooksheepfrompeople
and theyusedthe mainroadgoingtowardsKarongito go to Kibuye
’’z66The
Chamber
notesthatit is unclear
fromhisevidence
whether
thewitness
waspresent
whenthemeeting
occurred.

212.DefenceWitnessRA testified
thatin the morningof 18 April1994the
Accused,
in thecompany
of pastor
Eliphas,
a policeman
andtheheadmaster
of the
college,
attempted
to talkwiththeAbakiga.
Shestated
thataround
10 a.m.thepastor
explained
to herwhathadhappened:

"Whenhe cameback,he saidthattheydidas wasdiscussed.Theyattempted

to
negotiate
ordiscuss
with theAbakigas,
andtogetthemtodesistfrom
their
ravages
in
thecommunity,
inRu[b]engera.
And,inthatrespect
theywere--theyagreed
notto
gotothecommunity.
But,thatdidnotpreventthemfromgoing
elsewhere."267

213.Prosecution
Witness
J described
a meeting
involving
theAbala’ga
and the
Accused
at "Hutujunction",
theGisenyi
junction
road.It occurred
"after
thepeople
camebackfromGatwaro".
The witness
stated:
"TheAbakiga
tookinterest
in the
killing
butthe[mother-in-law
ofthe]burgomaster
wasa Tutsiandhe wasscared
that
he mightbe killed".
Then,according
to thewitness,
theAccused
toldtheAbakiga
that"theremaining
Tutsis
should
be leftandhe wouldtakecareofthempersonally.

265 Transcripts
of 5 June2000pp. 136-141.
266
Transcripts
of 8 February
2000pp.21-23.
267Transcripts
of 2 May2000p. 63.

78
 ,,t z,~x~ ~L,~ ICTR-95-1A-T

17-oq
...we knowwheretheremaining
268 Tutsis
areandwewillkillthemourselves".

214.Incontrast
to theabove,
Witness
J alsotestified
thatmeetings
wereheld,
three
timesa weekon occasions,
in the hallat the Rubengera
schoolcompound.
She
explained
that"...theattacks
lasted
overseveral
months
andeachtimetheyneeded
to giveinstructions
to theInterahamwe
a meeting
was held".
Themeetings
were
called
to incite
theInterahamwe
to killtheTutsi,
and"thepeople
wereincited
to
revolt
andkill".
According
to thewitness,
"a vehicle
of thecommune
cameby witha
megaphone
inviting
peopleto themeeting."
The witness
stated
thatshesaw the
Accused
at thesemeetings
andthat"thecommune
vehicle
alwayscameroundand
the announcement
was giventhat- - callingpeopleto the meetingthatthe
Burgomaster
wantedto meetthe people.
So it was the Burgomaster
who heldthe
meetings".
Although
thewitness
wasnotableto seethehall,
shewasableto"clearly
hearwhattheywerediscussing
as theywereusinga megaphone".
Withregard
to the
Abakiga,
Witness
J testified
thattheywerealsopresent
at themeetings,
"where
they
weretoldwhatto do"andtheAbakiga
were"called
upon...tokilltheTutsi".

215.TheChamber
notes
thatthistestimony
of Witness
J suffers
fromfrailties.
Itis
unclear
whether
sheactually
sawtheAccused
during
thesemeetings,
eventhough
shestated
thatshedid.Indeed,
thewitness
didnotattend
anyof themeetings
and
onlyheardthemas megaphones
wereused.Questioned
as to thepresence
of the
Accused,
Witness
J explained
thatbecause
the announcement
fromthe commune
vehicle
invited
people
to meetings
ledby theAccused,
logically,
theAccused
must
haveheldthe meeting.However,no otherwitnesstestified
abouthearing
announcements
fromthecommune
vehicle
inviting
persons
to suchmeetings.
Thisis
somewhat
surprising,
considering
thatthesemeetings
allegedly
occurred
up to three
timesa weekin a central
location,
anda number
ofotherwitnesses
havetestified
to
being
in thecentre
ofMabanza
during
therelevant
period.
Additionally,
itispeculiar,

268Transcripts
of 31 January
2000pp.8-13(closed
session).
TheChamber
notesthatin theFrench
version
ofthetranscripts,
reference
ismadetothemotherin-lawoftheAccused
beingTutsi
andnotto
theAccused
himself
being
Tutsi.Itreads:
"Oui,
ily a euuner6unionaucarrefour,
lgoffsetrouve..,au
niveau
delaroutequivientdeGisenyi,
c’esttoutprosdechezmoi,etlesAbakiga
avaient
prisgofitaux
tueries.
Alors
guncertainmoment,
Bagilishema
a eupeurparcequesabelle-mere
6taitTutsie,alorsil

79
 - ~- ~*’.*~ ICTR-95-IA-T

17-o
if Witness
J is to be fullybelieved,
thattheAccused,
on theonehand,
incited
the
Abakiga
to killat Rubengera,
andon theotherhand,toldthemto leaveMabanza
and
stopkilling,
whenatthe"Humjunction".

216.Prosecution
Witness
H alsotestified
to a meeting
in Aprilat Rubengera
secteur
on theGisenyi
road.During
thismeeting,
theAccused
toldtheAbakiga
to
leavefor Bisesero
(V.4.4).
According
to the witness,
the Accused
wantedthe
Abakiga
to leavethecommune
because
theyhadstarted
to eatHutulivestock
andthis
wascausing
trouble.
269Thewitness
added:

"Hetoldthemthattheyshould
gotoBisesero
while
thelocalpopulation
wasgoing
todo
thejobitself.
Thepopulation
itself
wasgoing
todothejob.
Sothesearch
started
andthe
people
werekilled...".

217.Witness
H explained
thataftertheAbakiga
hadleft,houses,
sorghum
fields
andthebanana
plantation
weresearched
in pursuit
of Tutsis.
27oWitness
H is theonly
witness
to state
thatfollowing
a meeting
between
theAccused
andAbakiga,
thelocal
population
started
seeking
outTutsi.
Also,
there
is noother
evidence
tosuggest
thatit
wasthe intention
of the Accused
thatthe localpopulation,
as a result
of his
confrontations
withtheAbakiga,
should
startseeking
outTutsito be killed.
The
evidence
is alsoinsufficient
toestablish
thatpeople
started
looting
andkilling
as a
direct
consequence
of whattheAccused
hadsaidto theAbakiga.

218.Thereis alsoevidence
to suggestthatC61estin
Semanza,
the assistant
bourgmestre,
hadsomecontrol
overtheAbakiga.
Witness
AA testified
thaton 17
April1994,thedaybefore
theattack
on theStadium
(V.3.3),
he visited
assistant
bourgmestre
Semanza’s
house,
wherehe foundaboutfortyAbakiga.
271

219. Defence
Witness
KA testified
abouta meeting
he attended
in Mabanza,
which

avaitpeurqu’on
nela me.IIa dit: "Maintenant,
lesTutsis
quirestent
noussavons
offilssont,
nous
allonsnousoccuper
d’euxpersonnellement"
(p.22).
269Transcripts
of 19 November
1999pp.40-41.
27oIbid.
p.45.
271Transcripts
of 10February
2000p. 24.

80
 cR-95-(t
k2"IA’T
occurred
soonaftermid-April
1994behind
theRubengera
school
building.
He stated
thathe wason hiswayto Gitikinini
whenhe cameacross
approximately
50 to 100
youngpeople,
whohadgathered
outside
within
theschool
premises.
He stayed
and
listened
for abouttwentyminutes.Amongthe crowdwereAbakiga,
whomthe
witness
recognised
by theirdressof leaves.
Theywerealsoarmedwithmachetes
and
bamboosticks.
272 The witness
did not see the Accused,
or any conseillers
de
secteurs,
communal
police
or heads
ofcellule.
273

220.WitnessKA testified
thatwhenhe arrivedat the meeting,
Semanzawas
already
speaking.
According
to thewitness,
"theissueat handwasthatyoungpeople
werebeingtoldto go and helptheAbakiga
to kill."The witness
thought
that
Semanza
"wasspeaking
to theseyouths
as a political
leader".
274Witness
KA based
hisassessment
on thefactthatthemeeting
hadnotbeenannounced
to thelocal
people,
because
theAbakiga
’’whocamefromtheNorth"
werepresent
andbecause
Semanza
was a memberof the MDR political
party.Thewitness
stated
that"the
otherconclusion
I drawwasthatgiventhefactthatSemanza
himself
wasmember
of
theAbakiga
he camefromthatareaof theAbakiga,
and thatmostpeople
at the
meeting
werealsoAbakiga,
I concluded
thathe hadthispolitical
responsibility
of
speaking
to thesepeople".
Thewitness
addedthatwhenSemanza
"started
talking
aboutkilling
theTutsis
I became
furious
because
my mother
is Tutsi,
andso I left
immediately".
275TheProsecution
did notspecifically
contest
thatthismeeting
occurred,
butquestioned
thewitness’
conclusion
thatitwasasa political
meeting
per
se,276
orthatSemanza
organised
it.

Conclusion

221.In theChamber’s
opinion,
taking
account
of alltheevidence,
an impression
remains
of theAbakiga
as roaming
opportunistic
bands,
generally
unknown
to their
victims,
withdiverse
butuncertain
origins,
lacking
in hierarchy
or organisation,

272
Transcripts
of 22May2000pp.26-32.
273Ibid.
p.53.
274
Ibid.
p.30.
275Ibid.
p.37.

81
 ICTR-95-1
A-T
~i~ :~r~

roused
rather
thanled,thriving
intherelative
anarchy
ofthetimes,
withessentially
twoaims:
theelimination
ofTutsi,
andgeneral
looting.

222.The evidencehas shownthaton 13 April1994the Abakigaarrivedin

Mabanza
wheretheyproceeded
to killandloot.Although
thereis someevidence
that
Mabanza
commune
may havebeenexperiencing
someattacks
fromAbakiga
as late
as24 June1994,wellafterthedestruction
of itsTutsi
population
277,theevidence
suggests
thattheattacks
fromtheAbakiga
hadreceded
considerably
by theendof
April1994.

223.Theevidence
doesnotestablish
thattheAbakiga
werede juresubordinates
of
theAccused
orthathe exerted
de facto
control
overthem.

224.Regarding
theoccasions
on whichtheAccused
addressed
the Abakiga,
in the
opinion
of the Chamber,
theresubsists
a doubtas to whether
the Accused
led
meetings
at Rubengera
schoolinciting
Interahamwe
andAbakiga
to killTutsi.
However,
theevidence
doesestablish
thattheAccused
confronted
theAbakiga
in
Rubengera
on or about18 April1994.

225.TheChamber
findsthatit is reasonably
possible
thattheAbakiga
ignored
the
request
of theAccused
to leavethecommune
as a whole,
stating
thattheywerefree
to go wheretheypleased.
However,
on thebasisof thetestimony
of Witness
RA,it
wouldappear
thattheAbakiga
agreed
notto attack
thereligious
community.
278The
evidence
isinsufficient
todemonstrate
thatas a result
ofconfrontation(s)
between
the
Accused
andtheAbakiga,
thelatter
leftthecommune
of Mabanza
anddesisted
from
further
attacks
after
18April
1994.

276
Ibid.
pp.97-100.
277SeeProsecution
Exhibit
94.
278
Transcripts
of 3 May2000p. 130.

82
 !: ~’~ ICTR-95-1A-T

.... 1"4oo
5. Measures
takenby the Accused
to Prevent
Crimes

5.1.Introduction

226.FortheProsecution,
theAccused
wasin complete
control
of thesituation
in
Mabanza
commune
throughout
the period
of April,MayandJuneuntilthe timehe
fled.
279Itis theProsecution’s
casethattheAccused
as a powerful
andwell-respected
localgovernment
official
was capable
of morally
supporting
the commission
of
criminal
actsby hismerepresence
andthattheAccused,
as bourgmestre,
exerted
authority
andcontrol
overthepeople
of Mabanza
commune.
TheProsecution
alleges
thatbetween
April
andJune1994,rather
thanprotect
theTutsi
civilian
population
in
Mabanza
commune,
theAccused
encouraged
othermembers
of thepopulation
to kill
them.TheProsecution
alleges
thattheAccused
selectively
exercised
hisauthority
and control
to protect
onlythechosenfew.According
to the Prosecution,
the
Accused
wasin a position
to putan endtoattacks
ifhe so chose.
28°TheProsecution
stated:

"Thetestimony
ofseveral
defence
andprosecution
witnesses
isindicative
oftheselective
approach
utilised
bytheaccused
inadministering
Mabanza
commune
andwhichheused
extensively
toprotect
onlythechosen
few.Inparticular,
Defence
witnesses,
WE,RA,
ZDandKC,testified
astohowtheaccused
wasabletoprovide
themortheirassociates
with
28~false
identity
cards".

227.However,
the Defence
contends
thatthe measures
takenby theAccused
were
of a general
nature
andthathetookthenecessary
andreasonable
measures
to prevent
andpunish
offences,
withtheresources
available
to him.TheDefence
denies
thatthe
Accused
eversaidanything
to encourage
Hututo attack
Tutsior to destroy
the
latter’s
properties.
According
to theDefence,
theonlymeetings
convened
by the
Accused
wereforpacification
andsecurity 282 TheDefence
purposes. stated:

279Transcripts
of 18 October
2000pp.260-262.
280Prosecutor’s
writtenClosing
Remarks
p. 5 para33;p. 11para.74;pp.14-15
paras.
91-100;
p.17
paras.107-113;pp.68-70paras.369-381;pp 98-105paras.102-110,
112-114,
147-148
and 193;
Rebuttal
pp.9-10para.
31.
281Prosecutor’s
writtenClosing
Remarks
p.49 para.
293.
282DefenceClosing
Briefpp.40-47paras.
300-374.

83
 ICTR-95-1A-T

"Becauseof thescantmeansat hisdisposalBagilishema

wasnotableto reestablish
securityin hiscommune
forallthetimethattheAbakiga werethere,i.e.untilabout
25 April1994.Afterthatdate,thesituation
in thecommune
wasa bitlesschaotic
and
Bagilishema didallhe couldto resumehis activities
as bourgmestre
despitethe
difficulties
andthreats
stillmadeagainst
him."
283

5.2 Powersand Resourcesof the Accused

228.As bourgmestre,
the Accusedwieldedconsiderable
de factoandde jurepower
in his commune and "embodie[d]the communal authority".
284 In Akayesu,
bourgmestres
weredescribed
as "themostimportant
representatives"
of the central
power.
285According
to theexpertwitness
in Akayesu,
"thebourgrnestre
wasthemost
importantauthorityfor the ordinarycitizensof a Commune,who in some sense
exercised
286 thepowers
of a chiefin pre-colonial
time".

229. Accordingto Prosecution

ExpertWitnessProfessorGuichaoua,
the Accused
"wasin secondposition
amongthemostefficient
burgomasters".
He statedthatthe
Accused’’wasa man consideredto be powerful,supported,and obviouslyhis
activism
in theareawasappreciated
by the people".
287The witness
opinedthatto
remainbourgmestre
for14 yearswas "because
one hasbeenableto establish
in his
owncommunea strongpowerbasewhichensuresa certainlegitimacy
in relation
to
theoutside".

230.The manpoweravailable
to the Accusedhas beenconsidered
above(IV.4).
forotherresources,
theevidence
presented
by theDefenceExpertWitnessFrangois
C16mentshows that therewere only one or two vehiclesbelongingto Mabanza
Commune,
and thatthepolicedid nothave theirown vehicle.
288 According
to the
Accused,the communehad a blue ToyotaHiluxand an ambulance,althoughthe

283Defence
Closing
Briefp.
114paras.
300-301.
284SeeLoidu23novembre
1963surl’organisation
communale
(reprinted
inCodes
etLoisduRwanda,
Reyntjens,
F.etGorus,
J.(eds.),
1995).
Article
56:"Lebourgmestre
est...lafoireprrsentant
~ouvoir
centrale
285Akayesu
(TC)clans
la
paras.commune
60-61.etpersounification
del’autorit6
communale."
286Ibid.
para.
73.
287
Transcripts
of14February
2000pp.44-45.
288
Transcripts
29May2000p.22

84
 ICTR-95-1A-T

~-~..~ ,cL*~.

latter
289 hadbroken
down.

5.3 Prevention
of Crimesby theAccused

231.TheChamber
willnowconsider
theevidence
relating
to themeasures
saidto
havebeentakenby theAccused
to prevent
crimes
fromAprilto July1994.

Witness
Q

232.Prosecution
Witness
Q testified
thatsoonafterthePresident’s
death,
Hutu
began
killing
Tutsi.
As a result
of thedisturbances
Tutsifledtheir
homes
andsought
refuge
in various
partsof thecommune.
Thewitness,
whois Tutsi,
herhusband,
who
is Hutu,andhertwochildren,
wentto thehomeof herhusband’s
parents,
whoare
alsoHum.Thewitness
saidthatshespentaboutthreeweeksthere,
untiltheendof
29°
April.

233.WitnessQ statedthatshe survived

attacks
afterseeking
helpfromthe
Accused.
Sheexplained
that"people
wereobviously
beingkilledandtheywere
almost
allfinished
andtheyhadevenstarted
attacking
womenwhoweremarried
to
hutus
....the husbands
wereagainst
thatattempt
and thatis why therewas a
misunderstanding
between
thehutusthemselves
on thisparticular
issue."
Thewitness
testified
that,
as a consequence,
a meeting
ledby theAccused
washeldat thebureau
communal.
The Chamber
notesthatfromthe context
of her testimony,
thiswould
havetaken
placeabouttheendof April.
Partof thepopulation
wassaying
thateven
Tutsiwomenmarried
to Hummenshould
be killed.
Others
wereagainst
thisas "that
wasnota goodthingbecause
theirhums,theirhusbands,
weregoingto attack
the
otherhums.In otherwords,
thehutuswouldbe killing
oneanother".
It wasdecided
at themeeting
thatwomenmarried
to Hutumenshould
be spared.
291

289
Transcripts
of 1 June2000pp.142-143.
290 Transcripts
of 25 January
2000pp.14-18andp. 35.
291Ibid.pp.19-20.

85
 ICTR-95-1A-T

234.Witness
Q explained
thatlaterin the dayat her parents
in-law’s
house,
attackers
whowerefiredfromlooting
andkilling
hadtoldthewitness
andherfamily
thattheywould
return
thenextmorning
withreinforcements
tore-launch
theattack.
Thewitness
stated
thatbetween
2 and3 p.m."’theconseiIlers
of thesectors
when
theylearnt
thatpeople
hadcometo killme,theyarrived
andtheyannounced
the
decision
whichhad beentakenduringthe meeting".
Thatevening,
she and her
husband
292 wentbackto theirownhouse.

235.Earlythenextmorning,
herhusband
wentto seetheAccused
and askedhim
fordocumentation
to provethatthedecision
to spareTutsiwomenmarried
to Hutu
menhadbeentaken.According
to thewitness,
the Accused
gaveher husband
two
letters,
thefirst
tobereadoutbytheconseiller
to theassailants
whowereintent
on
attacking
herhouse,
andtheotherwasdestined
to thepeople
fromtheareawhowere
denouncing
Tutsi.
Shetestified:

"Theconseiller
readtheletterbefore
thepeople
atthemarketplace.
Thesewerepeople
whohadbeenpartoftheattackthedaybefore.
Itwasexplained
tothemthattheletter
cameexpresslyfromtheburgomaster
Bagilishema
statingthattheyshouldno longer
participate
inthekillings.
Andthere
wasalso
thecontents
ofthesecondletter
whichsaid
thatthere
shouldnolonger
besearch[es]
fortutsis
tobekilled
andthatintheeventthat
suchsearches
didtakeplace,
persons
responsible
would
havetoanswer
fortheiractions.
But3
’’29
atthat
pointintimeinfact,almost
allthetutsis
hadbeenexterminated.

236.Witness
Q testified
thatshecontinued
tohideuntil
thetimethat"allthepeople
fled".
Thewitness
testified
thatshewasidentified
asa Hutuonheridentity
card.
She
explained
thathergrandfather
changed
theirethnic
groupandit helped
themgain
access
to education
andemployment.
However,
according
to thewitness,
thisdidnot
sparethemfrominsults
as "fromtimeto timebecause
thepeople,
ourneighbours,
knewusbyface...,,.294

292Ibid.
pp.21-22
andp.34.
293Ibid.
pp.22-23.

86
 237.Prosecution
Witness
J testified
thaton 13 April1994,shewasattacked
by
Interahamwe
at her home,whichwas thenlooted.She explained
thatas the
Interahamwe
had removedher property
outside,
the Accused,
MajorJabo,the
commander
of thegendarmerie
in Kibuye,
andtwopolicemen
arrived.
According
to
thewitness,
MajorJabostated
thatas shewasthewifeof a Hutu,nothing
should
happen
to her,whiletheAccused
said"thathe wastherepresentative
of thePrtfet
whohadannounced
thatthetimeof theTutsis
hadcome".
Thewitness
addedthatthe
Accused
saidthat:
"...theproperty
belonged
to theHutuandthattheproperty
of the
Tutsi
should
staythere,
while
theTutsis
whowereto bekilled
would
be sentoff.And
thentheBurgomaster
sentoneof theInterahamwe
whowasin thehouseto go and
fetchmy husband
so thathe couldcomeandlookafterhishouse- keepit in safe
custody
as I myself
wasgoingto die".TheAccused,
MajorJabo,thepolicemen
and
thegendarmes
thenleft.Herhusband,
on returning
to thehouse,
gavesomeof the
Interahamwe
money,
195 whilst
others
preferred
totakesomeoftheproperty.

238.Oneotherwitness
testified
aboutthisincident.
Defence
Witness
AS described
howon hearing
Witness
J shout,
he rantowards
herhouse.
As he climbed
through
an
opening
in thefence,
he sawa groupof attackers
leaving
andhe noticed
thattwoof
themwereholding
"somecurrency
in theirhands".
Witness
AS stated
thatWitness
J,
whosehandwaswounded,
"wasat the entrance
to herhouse,
trying
to explain
to
thosewho hadcome...whathadhappened
to her".According
to the witness
the
attackers
werenotAbakiga
andwerenotdressed
likethem,butwere"delinquent
people
whowereattacking
people
in their
houses".

239.Thewitness
testified
that,by thetimehe arrived,
theAccused
wasalready
at
WitnessJ’s house,where"theissuewas one of knowingwhere[Witness
J’s]
husband
was".TheAccused
ordered
that"theygo andlookforhim".Thewitness
did
notknowwhowentto fetchthe husband
as the Accused
spokegenerally
to those
present.
TheAccused
alsoposted
a police
officer
to waitat thehouseuntilthe

294Ibid.
p.26.
295
Transcripts
of 31 January
2000pp.3-8(closed
session).

87
 husband
returned.
According
to thew~tness,
theAccused,
on departing,
askedill

otherpersons
to leave.
Thewitness
didnotremember
seeing
thecommander
of the
gendarmerie.
296Thetestimony
of theAccused
conforms
to thatof Witness
AS (see
V.3.2.6
below).

240.TheChamber
notesthatthetestimonies
of thetwowitnesses
do notcoincide
in detail.
According
to Witness
J, theInterahamwe,
whohadattacked
her,stayed
at
herhousein thepresence
of theAccused.
However,
according
to Witness
AS,the
attackers
fledthehouseanddidnotstaywiththeAccused.
Witness
J testified
that,
although
theAccused
haddeparted,
theInterahamwe
onlyleftafter
beingpaidby her
husband
whenhe returned,
whereas,
by WitnessAS’saccount,
the Accused,
on
departing,
toldeveryone
elseto leave.
A police
officer
wasposted
at thehouseto
waituntilthereturn
of thehusband.
Unlike
Witness
J, Witness
AS didnotseethe
commander
of the gendarmerie.

241.Eventhough
Witness
AS wasnotpresent
during
thewholeincident,
theabove
inconsistencies
between
histestimony
andthatofWitness
J create
anunclear
picture,
andthusdoubt,
as to whatactually
happened
during
theattack
onWitness
J’shouse.
The Prosecution
has not dispelled
thisdoubt.Also,as a resultof these
inconsistencies,
andbecause
Witness
J is aloneinso testifying,
theChamber
is not
convinced
thattheAccused
announced
that"thetimeof theTutsihadcome"andthat
Tutsiwhowereto be killed
wouldbe sentaway.In theopinion
of theChamber,
all
thatcanbe saidwithcertainty
is that,
in themorning
of 13April
1994,thehouse
of
Witness
J wasattacked
andthattheAccused
intervened.

WitnessKC

242.Defence
Witness
KC,whoknewthe Accused
as an "official",
explained
that
he fledKigali
on 6 April1994andrejoined
hisfamily
in Gitarama.
On 23 Maythey
travelled
to Mabanza
andrentedsomeaccommodation
in a "home"in Gitikinini,
Rubengera.
Heretheymet,amongst
manyothers,
the bourgmestre
of Tambwe,
his

296
Transcripts
of 26 April2000pp. 41-44,110-110
and 115(closed
session).
 wifeandhismother-in-law,
anda medical
assistant,
alsofromTambwe.
Thewitness
testified
thatwhilst
atthe"home"
a group
ofAbakiga
camelooking
forTutsi
"inorder
to
takethemawaywiththem".
Thewitness
andothers
intervened
to prevent
thosebeing
searched
forfrombeing
taken
awayandpaidtheAbakiga
10000
Francs.

243.As the bourgmestre

of Tambwewantedto go to Cyangugu
withhis family,
andas it wasdifficult
forpeople
to travel
without
documents,
at theirrequest,
Witness
KC wentto seetheAccused
so as to obtain
thenecessary
travel
documents.
Witness
KC confirmed
thattheAccused
wasawarethatthetwo womenwereTutsi,
as he had to produce
theiridentity
cardsat the bureaucommunal.
Thewitness
explained
to theAccused
that"neighbours
hadbeenthreatened
by theattackers
and
thattheneighbours
needed
laissez-passers
to continue
on theirway".TheAccused
issued
thelaissez-passer
andthebourgmestre
of Tambwe,
hiswife,hismother-in-
law,andthemedical
297 assistant
thenleftMabanza.

Witness
RJ

244.Defence
Witness
RJ,a Tutsi,
whoat thetimewasliving
withherhusband
in
Kigali,
butwho had returned
to Mabanza
commune
in March1994,testified
that
whensomemembers
of herfamilywentto thebureaucommunal,
on 8 April1994,
sheandtwoof herchildren
sought
refuge
at thehouse
of theAccused.
298Thewifeof
theAccused
wasa childhood
friend
of thewitness.
299Theyhidin theservants’
quarters
in thecourtyard
of themainhouse.
Aftertwodaysa cousin
of Witness
RJ
namedChantal,
alsoa Tutsi,
joined
them.
3°° Shewaspregnant.
Theyremained
in
hiding
in theAccused’s
houseforonemonth.
3°]During
histestimony,
theAccused
confirmed
3°2 thathehadhidden
them.

297Transcripts
of28 April2000pp.11,16-20,
and48-53.
298
Transcripts
of23May2000(closed session)
pp.6-8,10and12-13.
299Ibid.
p.21.
3OO
Ibid.
p.17.
3olIbid.
p.14.
3o2
Transcripts
of 5 June2000pp.19-24

89
 ¯ ~ : ! ~¢~’~: ICTR-95-1A-T

Witness
AS

245.According
to DefenceWitnessAS, the Accusedprovidedhelpto people
during
the massacres.
Amongst
themwereWitness
RJ andChantal,
andan orphaned
Muslim
3°3 child,
andthewifeof Pastor
Albert
Muganga,
including
herchildren.

WitnessWE

246.Defence
Witness
WE testified
thathe wentto Kibuye,
hisprefecture
of origin,
twiceduringthewar.On the firstoccasion,
11 April1994,he visited
Mabanza
commune.
As he was leaving
Kigali,
a neighbour
of his,a Hutumanwitha Tutsi
wife,askedhim"tohelpbecause
thewifehada problem"
withherID card,andthey
feared
thatshewouldbe killed
by theInterahamwe.
Thehusband
gavethewitness
a
letter
addressed
totheAccused.

247.Thewitness
stated
thathe spoketo a communal
officer
andtoldhimthathe
wantedto see the Accused.
The communal
officer
tookhim to the officeof the
Accused.
Thewitness
gavetheAccused
theletter
andwaited
about40 minutes
for
thedocument
he hadrequested.
Thewitness
addedthatwhentheAccused
returned:

" ...hegavemetheIDcard ofthelady thatI referred

to,thelady I referred
toatthe
beginning.
ButwhenI methim,I toldhimthattherewerea lotofproblemsinKigali,and
thattherewereotherpeoplewhocould beinthesamesituationastheladywhosentme
tohim.So,I askedhimifitwere possible
togive meotherIDcardstobegiven tothis
ladywhocould inturngivethemtoother peoplewhomight havethesameproblem ....
AftergivingmetheIDcardforthelady, hegavemetenother IDcards signedbyhimto
befilledinbythepeople whowere...toreceive them....Thebourgmestretoldmethat
anyonewhowantedassistance,
similar assistance,
should
contactthelady, andthatthey
should
fillintheIDcard, affix thephotograph,
andsendthemtothecommunalofficefor
thecommunalstamp....Amongother recommendations,
hetoldmetokeepthisa secret
becauseiftheInterahamweorAbakiga wereto findtheseID cards,hislifeandmine
couldbe indanger ....WhenI wasspeaking withthebourgmestre he toldme quite
clearlythatI should
asktheladyinquestiontobecareful andonlytogivethese extra
cardsto people whowereoriginally fromMabanza commune whowerein similar
difficulties
asthoseshehadencountered."

303Transcripts
of26 April
2000pp.18-21.
SeeChapter
V.4.2
regarding
thekilling
of Pastor
Muganga.

90
 ~lt~/~.~., ~lt ,~.~ ICTR-95-1A-T

248.Wimess
WE wasableto return
to Kigali
wherehe gavetheladytheidentity
cards)
°4 TheWitness
asserted
thathe hadno family
tieswiththeAccused,
andthat
he wentto seehimbecause
3°s he was"anofficial
in Mabanza".

Witness
RA

249.DefenceWitnessRA testified
thatthe Tutsisistersfroma religious
community
decided
thattheywanted
to findrefuge
in Kibuye
as theydidnotwant
thewholecommunity
to be killed
because
of them.On 17 April1994,thewitness
wentwithPastor
Eliphas
andfivesisters
todiscuss
thesituation
withtheAccused.
At
his officehe warnedthemnot to go to Kibuyebecause
of the roadblocks.
The
Accused
gavethema roomin whichto hide.Theystayed
therefortheday,before
leaving
withPastor
Eliphas
underthecoverofdarkness.
Oneof thesisters
asked
the
Accused
"ifit werepossible
forhimto change
heridentity
cardforher.He agreed,
anddidthat".
Sheleftthenextday.
306

Witness
ZD

250.Defence
Witness
ZD testified
thatin themiddle
of May,hisfamily
cameto
joinhiminhisvillage
oforigin
in Mabanza.
As theyhadarrived
latethenight
before,
they"passed
through
thehomeof theAccused".
Thenextmorning
theAccused
and
hiswifeaccompanied
thewitness’
family
to him.Thewitness
testified
thathiswife
toldhimthatin thehomeof theAccused
"there
wereTutsis
whowerehiding":

"Shespoke
tomeofwomenand,inturn,
I toldherthatthatwasn’t
surprising
because
I
hadheard
itsaid
ofhimthat
hewasdoing
that....Atthatpoint
intime
itwassaidthat
he
distributed
false
identity
cardsbearing
Hututribe
toTutsissothat
theycould
behelped
to
cross
’’3°7
theroad
blocks
andflee.

251.Thewitness
gavetheexample
of an individual,
originally
fromKibuye,
who
hadgoneto Mabanza
"inorderto obtain
fromIgnace
Bagilishema
a falseidentity

304 Transcripts
of 23 May 2000pp. 14-33.
3o5Ibid.
p.58.
306
Transcripts
of 2 May2000(closedsession)
p. 5
307
Transcripts
of 3 May 2000pp.24-25.

91
 cardbearing
3°8 themention
of Hutuforhismother-in-law
whowasa Tutsi".

252.Witness
ZD statedthatbefore17 April1994,he personally
heardthe RPF
radio,Muhabura,
thank"theBourgmestre
of Mabanza
commune
for the mannerin
whichhe behaved
in order
to contain
thesituation
andto protect
thepopulation,
and
...encouraged
3°9 [other
authorities]
todoashedid".

Witness
ZJ

253.Defence
Witness
ZJ testified
thathisbrother-in-law
whowasliving
in Kigali,
andwhosewifewasTutsi,
didnot"knowhowto bringhiswifeto Kibuye
because
of
theroadblocks".
According
to thewitness,
hisbrother-in-law
cameto Mabanza
in the
lastdaysof May,andtheAccused
provided
himwith"anidentity
cardwhichwould
haveHutuwritten
onit".Thewitness
stated
thathepersonally
sawthecard.
310

Witness
BE

254.Defence
Witness
BE testified
thatoneweekafterthedeathof thePresident,
theRPFradio,
Muhabura,
congratulated
theAccused.
According
to thewitness,
"[i]t
wasbeingsaidthathe isnotliketheotherBurgomaster
whowascausing
thekilling
of the othermembers
of thepopulation".
The witness
stated
thathe "heard
the
portion
whichsaidthatalltheotherBurgomasters
should
follow
theexample
of the
Burgomaster
of Mabanza".311

The Accused

255.TheAccused
testified
thatduring
themassacres
he issued
in totalabout100
laissez-passers
or feuille
de routeto persons
fromoutside
Mabanza
commune
and
identity
cards
topersons
living
in thecommune.
Hestated
that"I knewverywellthat

308Ibid.p.26.
309
Ibid.
pp.25-26.
310
Transcripts
of 3 May2000pp.82-83.
311
Transcripts
of 27April2000pp.30-34.

92
 ICTR-95-1A-T

itwasillegal
....Butinorder
tosavelives,
I wasready
tolieinorder
tosavepeople".
He explained:

"Ihadmanyrequestsfromthepeople whonolongerhadidentity
cards,
eitherbecause
theyhadlostthemorbecausetheAbakigahaddestroyed
theiridentity
cards.So,itwas
important
thattheyhadotheridentity
cardsissued
tothem.Butfurthermore,
there
were
persons
whowereindanger, whowantedtoescapeandfleetootherplaces,
andI knew
thesepeople
wereTutsis.
I knewverywellthesepeople
wereTutsis,
butI wrote
ontheir
cardsthat
theywereHutus."

256.He addedthathe senta number

of blanksigned
identity
cardswithWitness
WE,so asto helpcitizens
ofMabanza
whowereliving
in Kigali.
312

257.The Accusedalsotestified
thathe falsified
the commune’s
register
of
residents.
313People
whosenameswereentered
in theregister
wereissued
witha
resident’s
cardthatcouldbe shownto authorities
requesting
an identity
card.The
Accused
gavetheexample
oftheindividual
at entry
75oftheRegister,
identified
as a
Hututherein,
andstated
thathe wasin facta Tutsi.
TheAccused
didnotpersonally
knowthisperson.
TheAccused
testified
thathestarted
tofalsify
theregister
asearly
as in1990,
at thestart
of thewar,andthatup to60%ofindividuals
in theRegister
wereactually
Tutsi.The Accused
addedthathe helpedonlythosepersons
who
specifically
asked
himto.314 FortheProsecution,
thefalsification
ofthepopulation
census
by theAccused
supports
itsargument
thattheAccused
selectively
exercised
hisauthority
3a5 andcontrol.

258.TheDefence
referred
to thecommune’s
register
of outgoing
mailto showthat
theAccused
alsotookmeasure
to punish
crimes
fromabout27 April,
oncehe had
beenabletoregain
someof hisauthority
inthecommune.
316TheAccused
alsostated
thatthe commune
had beenparalysed
between13 and 25 Aprildue to the many

312
Transcripts
of 6 June2000pp.40-60.
313
Defence
ExhibitNo.93.
314
Transcripts
of6 June2000pp.60-94.
315
Prosecution
writtenClosingRemarks
para.292.
316
DefenceExhibitNo.18.

93
 ¯a ,e!~!pn~ ICTR-95-1
A-T

assailants
317 fromtheNorth
whomtheycould
notidentify.

259.On 27 April1994,the Accused

wroteto theProcureur
de la Rdpublique
in
Kibuyetown regardingthe transferof the assassinsof Biziyaremye
and
Bamporineza.
TheChamber
notesthatthereis no information
as to theethnicity
of
the victims.
318 On 2 May 1994,he suspended
the communaldriver,Ephrem
Nshimiyimana,
and a communal
policeman,
Munyandamutsa,
for havingstolenthe
engine
froma vehicle
leftat thecommunal 319 Theletters
office. written
tothedriver
andthepolicemen
werefiledin support.
320On 3 May1994,theAccused
senta letter
to theProcureur
de la R@ublique
at Kibuye,
regarding
thetransfer
of fivepersons
accused
of having
assassinated
a certain
Kangabe.
According
to theAccused,
he was
killed
forethnic
reasons.
321On 5 May,theAccused
senta letter
regarding
the
investigations
intothestolen
cowsof a certain
Karekezi,
whowasTutsiY
z On the
samedayhe wroteto theconseiller
of Mushubati
andto a certain
Nyakabande
for
special
protection
fora family
thathadhidden
Tutsiwithin
their
home.According
to
theAccused,
theTutsiwerestillwiththefamily.
323On 9 May,theAccused
wrotea
similar
letter
totheconseiller
of Buhinga
regarding
theprotection
of a resident
of
Buhinga.
TheAccused
explained
thattheresident
was% Tutsiwoman,
married
to a
Hutu,whowasthreatened.
324Twodayslater,
theAccused
wroteto thebourgmestre
of Gitesi
to inform
himabouta murder
by a soldier.
According
to theAccused,
the
soldier
had killedsomeone
in Mabanza
andthenfledto Gitesicommune.
32s The
Accused,
on 19 May,senta letter
to theconseiller
of Gihara
secteur
requesting
to
ensure
theprotection
ofproperty
leftbehind
by Tutsi.
326Thedayafter,
theAccused
wroteto thegendarmerie
commander
of theareaso thathe couldtakethenecessary
measures
against
gendarmes
who had injured
the president
of the CDRpartywho

317
Transcripts
of 6 June2000p. 105andpp.116-117.
318Defence
ExhibitNo.18at 0279.
319
Ibid.
at0280and0281.
320
Defence
ExhibitNos.94and95.
321Defence
ExhibitNo.18at0286.Transcriptsof 6 June2000p.116.
322Defence
ExhibitNo.18 at 0289.
323Ibid.
at0291.Transcripts
of7 June2000p.16.
324Defence
ExhibitNo.18at 0294.Transcripts
of 7 June2000p.18.
325Defence
ExhibitNo.18at0297.Transcriptsof 7 June2000pp.19-20.
326
Defence
ExhibitNo.18 at0308.

94
hadtriedtostoptheirvandalism
7 of property
in MabanzaY

260.On 20 May1994,theAccused
wroteto thecommittee
established
to dealwith
therecovery
of property
abandoned
by displaced
persons.
TheAccused
testified
that
thecommittee
wasto ensure
thattheproperty
"could
be stored
or keptunderthe
custody
of the commune
to avoid[its]misappropriation".
3z8 According
to the
Accused,
people
hadstarted
fighting
overtheproperty".
329On 24 May,theAccused
wroteto the conseiller
of Rubengera
to "call... to order"membersof the
"Committee
fortheRestoration
of Peaceof Kabatare,
Kibanda
andKigabiro"
who
had attackedRubengera
hospital.
According
to the Accused,membersof the
committee
established
at thebeginning
of May 1994"’were
notfulfilling
their
functions
properly’’
andhadattacked
theRubengera
Health
Center.
TheAccused
was
therefore
requesting
theconseiller
to3
’’3
"call
° thiscommittee
toorder.

261.TheChamber
notesthattheregister
of outgoing
mailshowsthattheAccused
continued
to takemeansin order
to restore
security
inthecommune
of Mabanza
until
14 July1994.In particular,
theChamber
notesthaton 24 May,27 May,6 June,13
June,
14 June,
21June,
28 Juneand12July,
theAccused
sentletters
totheProcureur
de la Rdpublique
at Kibuye
regarding
thetransfer
of numerous
individuals
accused
of
crimes,
varying
fromkilling
others
tostealing
331
COWS,

262.The Accused
testified
thathe was perceived
as an accomplice
of the RPF,
partly
because
RadioMuhabura
hadbroadcast
thathe was"a goodbourgmestre"
and
that
332 heprotected
theTutsi.

Conclusion

263. In theopinion
of theChamber,
theaboveevidence
doesnotsupport
thecase

327Ibid.
at0309.Transcripts
of7 June2000pp.26-27.
328Defence
Exhibit
No.18at 0311.
329Transcripts
of7 June2000pp.31-33.
330Defence
Exhibit
No.18at0313.Transcripts of 7 June2000pp.34-35.
331Defence
ExhibitNo.18 at0315,0320,0332,0340,0341,0353,0367,0368and0377.
332Transcripts
of7 June2000pp.105-106.
 ~*~$~ ICTR-95-1
A-T

~~O , 16 7-
of theProsecution
thattheAccused
actedselectively
to aid a chosen
few.The
testimony
of Prosecution
Witness
Q alonecastsdoubton theProsecution’s
position.
Although
thereisno evidence
to support
thecontention
of theAccused
thathe issued
atleast
100identity
cards
andlaissez-passers
tohelpindividuals,
thereisnoevidence
torefute
it.

264.The evidence
alsoshowsthatthe Accusedwas praisedby the RPF radio
Muhabura,
albeit
before17 April1994,whentherefugees
werekilled
at Kibuye
stadium
(seeV.3.4).
The Chamber
notesthatthe Prosecution
didnot expressly
address
theissueof whether
thisradiobroadcast
actually
occurred.
333Similarly,
regarding
thecommune’s
register
of residents,
theChamber
findsthatthereis a
possibility
thattheAccused
falsified
theregister
toprotect
Tutsi.

265.Withrespect
to theconduct
of theAccused
after27 April1994,as shownby
thecommune’s
register
of outgoing
mail,theevidence
demonstrates
thattheAccused
tookmeasures
to restore
lawandorderin thecommune
of Mabanza.
It hasnotbeen
established
by theProsecution
thatin doing
so theAccused
actedtothedetriment
of
theTutsi.
However,
theChamber
notesthatthemajority
of thecrimes
forwhichthe
Accused
is specifically
charged
in theIndictment
occurred
before
27 April.
Also,
fromtheevidence,
by thisdate,a substantial
percentage
of theTutsihadfledthe
commune.
Hisliability
therefor
isdiscussed
inChapter
V.

5.4Meetings

266.According
to theProsecution,
theAccused
helda number
of meetings
during
whichhe encouraged
thelocalpopulation
to killtheTutsi.
Regarding
so-called
"pacification"
meetings,
theProsecution
didnotcontest
thattheyoccurred.
Rather,
theProsecution
argued
thattheAccused
didnotthreaten
to impose
sanctions
on
persons
breaching
hisadvice.
334However,
theDefence
contended
thattheAccused
helda number
of pacification
meetings
in an attempt
to restore
security
andethnic

333Transcripts
of 18October
2000pp.232-233.
334Prosecution
writtenClosing
Remarks
paras.
369-381.

96
harmonyin Mabanza.

Witness
J

267.Witness
J testified
thata meeting
washeldat a placereferred
to as CERAI.
People
werecalled
to thesemeetings
as "theywerescattered
around
looking
for
people
to kill".
Thewitness
explained
thatpeople
weresensitized
to go outandkill
andthat"they
useda strategy
thatpeace
hadreturned
to getthose
people
hiding
in
thesorghum
fields
to comeoutandthosehiding
in ceilings
to comeoutandthose
whocameoutwerekilled."
335 Thewitness
didnotattend
thismeeting.

268.The testimony
of Witness
J aboutthismeeting
is sketchy
andof a general
nature.
As shedidnotattend
themeeting
herself,
hertestimony
ishearsay,
andit is
wholly
uncorroborated.
Consequently,
theChamber
finds
thatthere
is is a doubtasto
whether
the Accusedhelda meeting
at CERAIduringwhichpersons,
including
Abakiga,
wereincited
tokillTutsi.

Witness
H

269.Prosecution
Witness
H testified
thatthe Accused
helda meeting
in Gacaca
commune.
According
to thewitness,
theAccused
"saidallTutsihouses
whichwere
destroyed
andwhichwereclose
to theroad,should
be cleared
offcompletely
because
apparently
therewas a commission
of whitemen whichwas to comeand gather
information
on theowners
ofthesehouses".
Thewitness
stated
thattheinstructions
were followed.
336

270.The Chamber
notesthatthe testimony
of Witness
H is uncorroborated
and
sketchy,
andit is unclear
whenthemeeting
occurred,
whether
he waspresent
at the
meeting
or whether
hisevidence
is hearsay.
Consequently,
theChamber
findsthata
doubtsubsists
as to whether
theAccused
heldsucha meeting
at Gacaca,
andwhat
mayhavebeensaidat themeeting.

335Transcripts
of31January
2000pp.23-25andpp.15-16(closed
session).

97 ~L
Witness
KA

271.Defence
Witness
KA testified
thata meeting
washeldin Gihara
secteur
at the
endof Mayor earlyin June,"whentherewasa calm,a lullin thekillings".
337He
wentwithhis mother
and hismaternal
uncle.
The witness
sawthe conseiller
of
Gihara,
somesecteur
officials
andcommunal
policemen.
According
to thewitness,
whosemother
andunclewereTutsi,
amongthecrowdwereorphaned
Tutsichildren
andTwa.Theconseiller
of Gihara
opened
themeeting
andintroduced
theAccused.
Thewitness
stated
thattheAccused:

"[...]
emphasised
tothepeople ofKijoy
andGihara
thatthatiswheretheAbakigas
normally
cometo -- thatiswheretheynormally
camefromso hetoldthemto do
everything
possible to prevent
themfromkillingandlootingandhe fiarther
emphasised
bytellingthemthattheyshould
ensure
their
ownsecurity
andprevent
the
Abakigas
from
’’338
passing
throughtogointothevarious
houses
tokillandloot.

272.Witness
KA addedthatthe Accused
toldthe peoplewhowereableto do so
thattheyshould
takeintotheircareoneor twoof theorphaned
Tutsichildren
and
"keepthemand educate
themas theirown children".
Consequently,
he and his
mothertooktwochildren.
The Accused
alsoexplained
to thosegathered
how to
ensure
theirownsecurity
within
thesub-celhg[es.339 TheChamber
notesthatthe
Prosecution
didnotspecifically
refute
thetestimony
of thewitness
regarding
this
meeting.

WitnessWE

273.Defence
Witness
WE whohadfledfromKigali
at thestartof themassacres,
testified
that,
towards
theendof themonth
ofApril,
heattended
a meeting
ledby the
Accused
in Mabanza.
Thewitness
explained
thathe wentto visita friend
whowas
hiding
inKibilizi.
Afterspeaking
withhisfriend,
he cameacross
about100people,

336
Transcripts
of19November
1999pp.61-62.
337
Transcripts
of22May2000
pp.40-41.
338
Ibid.
p.58.

98
 ICTR-95-1A-T

somestanding,
others
sitting,
at Kibilizi
market.
On hearing
someone
address
the
crowd,
he approached
andsawtheAccused
speaking.
34°Thewitness
stated:

"Hewasspeaking
tothepeople
outloud,
andhewastellingthemtodistinguish
between
theenemy,theenemies
ofthepeople,
andhesaidtheenemiesofthepeople werethe
RPF,whereas
theTutsis
werenervous
justlikeothers
andthattheyshouldcooperate
to
resolve
theirday-to-day
problems,
andthattheyshould
notlistentothepropaganda
of
peoplefromoutside,
thatistheAbakigaandthe[nterahamwe,whocameto killand
,,341
loot.

274.Witness
WE alsosawtwopolicemen.
He stayedforapproximately
15 minutes
anddidnotheartheAccused
342 threaten
topunish
anyone
hefound
outkilling.

275.Thereis no evidence
thatannouncements
weremadeinviting
peopleto the
meeting
or thattherewereotherauthorities
present.
Although
the testimony
of
Witness
WE is notcorroborated,
it is consistent
withhisstatement
of 13 December
1999.
343Additionally,
therewereno specific
challenges
by theProsecution
during
cross-examination
regarding
theveracity
of thewitness’
description
ofthemeeting.

WitnessKC

276.Defence
Witness
KC testified
thathe attended
twomeetings.
Thefirsttook
placenearthe"Islam
camp"at thebeginning
of themonthof June.The witness
stated
thattherewereabout150men,womenandyoungpeople
sitting
andstanding.
He waswithfourfriends.
Thewitness
hadnotheardan announcement
convening
the
meeting.
The witnesssaw the Accused,
the assistant
bourgmestre
Ant&eand
communal
policemen.
He didnotseeanyTutsiduring
themeeting.

339Ibid.
pp.60-62.
340
Transcripts
of 23May2000pp.38-39.
341Ibid.
p.41.
342Ibid.
pp.60-65.

99
277.WitnessKC statedthatthe Accused
spokewithout
a megaphone
or a loud
speaker.
344Thewitness
stated:

"Iremember
thathewastelling
thepeoplethattheyshould
notlistentothepeople
who
camefromtheNorth,
those
I referredto astheAbakiga
whoweretryingtodividethe
people.
He exhorted
themtocontinuelivingtogether
in peaceandadded
thattheonly
enemywastheRPFandthatthearmywasfacing upto themon thewarfront
andtheir
duty,
345 theirrole
wastoremain
united".

278.Thewitness
testified
thattheAccused,
in answer
to questions,
toldthecrowd
thattheyshould
notoccupy
thelandof Tutsi
whohadfledordestroy
anything
on the
landas theywouldreturn
one day.
346Witness
KC stated
that"nobody
complained
becausethosewho had problemswerealwaysin hiding.So thosewho could
complain,
347 whohadanything
to complain
aboutwerealways
in hiding".

279.Witness
KC saidthathe attended
another
meeting
oneor two dayslaterat
Kibilizi
market
wherehe hadgoneto buybeer.He explained
thattheAccused
and
hisassistant
werepresent
andabout200hundred
people
hadgathered.
According
to
thewitness,
theAccused
spokewithout
usinga megaphone,
andrepeated
whathe
hadsaidduring
thefirst
meeting.
Thewitness
leftbefore
theendofthemeeting.

Witness
K

280.Prosecution
Witness
K, whowasthenhiding
withtheMuslims,
testified
that
sheattended
a meeting
at a clinic
addressed
by theAccused.
Thewitness
explained
thatshewasdressed
up likea Muslim
"andasked...to jointhecrowd",
andthatit
washopedthatduring
themeeting
"theywoulddeclare
peace".
Shedidnotknowin
whichmonththistookplaceandwhether
therewereanyotherauthorities
present
or
anyotherTutsi.
TheChamber
notesthataccording
to herwritten
witness
statement

343
Defence
Exhibit
No.78.
344
Transcripts
of28April2000pp.20-24
andp.27.
345Ibid.
p.25.
346
Ibid.
pp.25-26.
347Ibid.
p.32.

100
 ~, "- ’e~L~ ICTR-95-1A-T

I
of 10July1999themeeting
348 occurred
in early
June1994.

281.Although
shecouldnotheareverything
thatwasbeingsaid,thewitness
heard
someof thewordsof theAccused.
Shestated,
in cross-examination,
thattheAccused
wasusinga megaphone
at themeeting.
349Thewitness
testified:
"I heardhimsayto
thepeople
to destroy
allthehouses
andrazethemdownto theground."
Thewitness
understood
thehouses
to be those
of theTutsi.
According
to thewitness,
theAccused
explained
"white
people
mightcomeandaskto whomthesehouses
belong,
therefore
these
3s° houses
hadto bedestroyed
so thatsuchquestions
could
beavoided".

282.Witness
K testified
thatmembers
of thecrowdaskeda number
of questions.
Oneindividual
who was takingcareof two Tutsichildren
who had "losttheir
mother",
askedwhether
theAccused
couldhelpeducate
andraisethem.In response,
according
tothewitness,
theAccused
said"thathe wasnottheredcrosswhoshould
provide
themwitheducation
andthatif therewerepossibilities
he should
takethem
to Kinihira
...".By Kinihira
thewitness
understood
"thelargemassgraves
into
which
’’351
Tutsis
wereplaced
after
theyhadbeenkilled.

283.Witness
K statedthatanother
memberof thecrowdaskedthe Accused
what
should
happen
to people
foundhiding
in sorghum
fields
as theharvest
approached.
TheAccused
mocked
"theperson
asking
thequestion
andtoldhimto takethemto
Kinihira."
Thewitness
tookfright
andwenttohide.
352

Witness
ZD

284.Defence
Witness
ZD testified
thathe participated
in twomeetings
in May-
June1994.Thefirstmeeting
tookplaceat Ryanyirakabano
in Rubengera
secteur.
Thewitness
explained
thatoneafternoon
he wasreturning
fromvisiting
hiscousin
in

348Defence
ExhibitNo.14.
349
Transcripts
of25 January
2000pp.56-57andpp.100-101.
35o
Ibid.
pp.57-58.
351Ibid.
p.60.

101
 Gitikinini
whentheAccused,
whowastravelling
in thesamedirection,
gavehima
lift.Thewitness
wentwithhimto themeeting.
He stated
thattherewereabouta
hundred
men,womenandchildren.
According
to thewitness,
theAccused
wanted
to
askthepeople
to stoppursuing
theTutsi.
He stated
thathe "...understood
thathe
wanted
to transmit
thismessage
to thepeople
so thatthepeople
alsocanpassthe
message
ontoassailants
whowanted,
thistimearound,
to attack
families
suspected
of
hiding
Tutsis.
I think
themessage
waswellreceived,
andsurvivors
cantestify
tothat
353
fact,,.

285.Witness
ZD saidthattheAccused
did notspeakthrough
a megaphone.
Others
present
included
the policebodyguard
of the Accused,
the conseiller
of the
Rubengera
cellule
andmembers
of othercellules.
354

286.Withregard
to thesecond
meeting,
thewitness
testified
thattheconseillers
andheadsof cellules
advised
thepopulation
thattheAccused
wasto holda meeting
in Mushubati.
Themeeting
concerned
therestoration
of peace.
He stated
thatthe
Accused
asked"theheadsof the[N]yumbakumi
andtheleaders
of thecellules,
to
makean inventory
of theproperty
[t]hat
wasthereso thatthese
properties
couldbe
rented
at a smallamount
of moneyandthefundsthusmade- - transmitted
to the
Mabanza
communeso thatan end can be put to the disputes
surrounding
these
5
properties"Y

287.Theaudience
wasHutuas "atthatpointin timeTutsis
hadbeenkilled
and
others
hadfledandothers
stillwerehiding
elsewhere."
Witness
ZD agreed
thatthe
effect
of thearrangement
suggested
by theAccused
wouldbe thatthelandwouldgo
backto theHutu.However,
he addedthat"theobjective
wasto putan endto the
disputes
amongst
theHumswho hadappropriated
thebelongings
of thosewhowere
nolonger
there,
those
whohadalready
diedor hadfled".
356Thewitness
added:

352Ibid.
p.61.
353
Transcripts
of 3 May2000pp.38-39.
354Ibid.
p.40.
355Ibid.p.42.Thetermnyumbakumirefers
toa neighbourhood
consisting
oftenhouses.
356Ibid.
pp.44-45.

JZ.
 ICTR-95-1A-T
O 161~

~) ~ !~

"Infact,hewanted,
inonewayoranother,
todelegate
power,
tohavea solution
tothis
problem
concerning
theuseofproperty
byaskingtheconseiller
andtheleadersofthe
Nyumbakumi
thatfromhenceforth
theyshould
distribute
theproperty,
because
itwasn’t
possible
thateachperson
cancomeandpossess
halfa
village.
Hewanted these
peopleto
cometosolvingthemselves
thisproblem
concerning
property
withoutimposing
himself
asanauthority.
Hewantedtoaskthem,
tosaythatthisproperty
wasnolongergoingto
befree,itwasgoingtoberented,
andifthere’s
anyfunds,thiswouldbegiventothe
commune.
’’357 Sohewanted togive
thepeople
a choice
ofa solution
tothelocal leaders.

288.Thewitness
stated
thattheproperty
wasalready
in thehandsoftheHutu,
so it
wasnota matter
358 of giving
landto theHutubutto ensure
better
distribution.
Witness
ZD wasunaware
of anymeetings
saidto havebeenheldby theAccused
in
Rubengera
school.

Witness
ZI

289.Defence
Witness
ZJ testified
thathe participated
as a member
of a political
partyin a meeting
at thebeginning
of themonthof Mayheldin themeeting
hallof
thebureau
communal.
Themeeting
wascalled
by theAccused
andit wasattended
by
allthemembers
of thecommittees
of allthepolitical
parties
within
thecommune,
including
the MDR(Mouvement
ddmocratique
rdpublicain),
thePSD (Patti
social-
d~mocrate),the MRND (Mouvementr~volutionnairenational pour le
ddveloppement),
and theCDR (Coalition
pourla ddfense
de la r~publique).
The
witness
couldnotremember
whether
thePL (Partiliberal)
wasrepresented.
The
witness
stated:

"TheBourgrnestre
explained
thesituation
whichwasprevailing
withinthecommune,
and
hesaidthatsince
everybody
hadseenthisandwasaware,
thesecurity
hadbeendisturbed
bythosewhocamefromoutside
thecommune,
andheinsistedthatpeople
cometogether,
andtheyshould
nolonger
fightoneagainst
theother,
andtheyshould
betogether
sothat
theycanensuresecurity.
Hesaidthatthose whohadnotbeenkilled,
andwhowerein
hiding
shouldbekeptwell,
andhesaidthathenolongerwanted
tohearofanykillings.

357Ibid.
p.48.
358Ibid.
p.49.

103
 -, ~,~, ~*~ ICTR-95-1A-T
~
Hespoke
ofa project
which
would
involve
setting
upcommittees
insectors
andcellules
in59
’’3
order
tosafeguard
theproperty
ofthese
people.

According
36° to thewitness,
everyone
accepted
theideaof theAccused.

The Accused

290. TheAccused
stated
that:

"TherewereTutsiextremists;therewereHumextremists. AndI hadto manage that

situation.
Andstilloperating
a newtrialmannerandshowfaimess
without
showingbias,
without
favourforanyside.Butthere wereextremistsonbothsides,
HumandTutsi, as
well....Duringthatperiod,therewererumors thattheRPFweregoingtoinvade the
wholecountryin lessthanthreedays.Among theTutsis,thereweresomewhowere
bragging
thatRPFwasgoingtotakeover thecountryinlessthanthree
days.Andyoucan
imagine
thesituation
I wasupagainst.
I hadabout 70percent
Hutus
and30percentTutsi.
I hadtoappease
theHutu, particularly,
byconvincing
themthattheenemyisnottheir
neighbour,
buttheenemy,theonecoming fromoutside,attacking
fromoutside.Andon
the1
’’36
otherhand,
I hadtostoptheTutsiwhowere generating
hatred
among
thepeople.

291.TheAccused
testified
thaton 4 May1994he sentout a letter
to political
parties,
religious
denominations,
conseillers,
headsof departments
andceIlule
committees,
asking
themto cometo a meeting
on 6 May.The letter
is entered
at
0287in the commune’s
register
of incoming
and outgoing
mail.
362 The Accused
explained
thatthe purposeof the meetingwas to try "to put an end to the
disturbances
in thecommune".
He stated
that"[a]tanylevelof thecommune,
we
wanted
to speakthesamelanguage,
we wanted
to sendthesamemessage
thatthe
killing
couldbe stopped,
massacres
whichhadtakenplaceduringthemonthof
April".
Soasto prepare
forthemeeting
of6 May,theAccused
invited,
alsoby letter,
representatives
of political
parties
to a meeting
on5 May.
363TheAccused
explained
thathe wanted
theserepresentatives
andhimto "speak
thesamelanguage
before
the
nextmeeting".
He stated
thatduring
themeeting
of 5 May,"there
weredifferences
of

359Transcripts
of 3 May2000pp.79-80.
360Ibid.
p.80.
361Transcripts
of 6 June2000pp.20-21.
362
Defence
Exhibit No.18.

104
 ....~,i~
l,*-~---, ICTR-95-1A-T

opinion,
accusations
andcounter
accusations"
by thevarious
political
parties.
The
Accused
added:

"MRNDforexamplewassayingthatDRDwastryingtokill--CDRwassayingthatthey
knewthattheotherpartyhada listofpeople
thathadtobeeliminated
fromamongthe
opponents.Thismeetingwasheldon theprevious
day,andwe knewthatthesewere
rumourstobring
aboutconfusion
inthepopulation.
Afterweidentified
thisproblem,
we
helda meeting
ofthe6,thistimeround witheverybody
knowing
wherethemainproblem
whichwasdividingus wascomingfrom."

292. TheAccused
testified
thatat theendof themeetings,
"everybody
adopted
the
sameobjective,
thatisof stopping
thekillings
inMabanza
364
commune".

293.Although
WitnessZJ did not specifyexactlyon whichdatethe meeting
occurred,
he placed
it at thebeginning
of May.Histestimony
coincides
in much
detail
withthatof theAccused
regarding
themeeting
of 5 May,in particular
on the
identity
of theparticipants,
whowererepresentatives
of political
parties,
andthe
objective
of themeeting,
namely
toputanendto thekillings
anddisturbances.

294.Thereis no independent
corroboration
aboutwhatoccurred
at themeeting
of 6
May at the bureaucommunal.
However,
the Chamber
is of the opinion
thatthe
evidence
regarding
thefirst
meeting,
in particular
thetestimony
of Witness
Z J, is
suchthatthetestimony
of theAccused
thatthesecond
meeting
wasalsoheldfor
legitimate
security
reasons,
cannot
be rejected
as implausible.
Consequently,
the
Chamber
findsthattheevidence
relating
to thesetwomeetings
doesnotsupport
the
allegation
thattheAccused
encouraged
individuals
to seekoutandkillTutsi.
The
Prosecution
365 didnotspecifically
contest
thatthese
meetings
occurred.

295.In a letter
dated1 June1994,andaddressed
to theconseillers
of Kibilizi,
Rubengera
and Gacaca,the Accusedcalleda "meeting
of the peoplewiththe
bourgmestre".
366 The Accused
testified
thatthiswas one of the"pacification

363
Ibid.
at0288.
364
Transcripts
of 6 Jtme2000pp.118-121
andof9 June2000p.67.
365
Prosecition
writtenClosingRemarks
para.373.
366
DefenceExhibitNo.18 at 0324.

105
 ~’Se*~ ICTR-95
- 1 A-T

meetings"
andexplained:

"Yes,
itisoneofthese
meetings
thatI chaired
inthesecteurs
toappraise
myself
with
thesituation
ontheground,
discuss
withthepeople
andresolve
theirproblems
and,
above
all,
togivethem
instructions
tobefollowed
during
that
’’367
period.

296.The meeting
was heldat Kunyenyeri
located
in theGacacasecteur.
Present
weretheconseillers
ofthesecteurs,
members
of thecellules,
committee
de cellules
of
thosesecteurs
as wellas thepeople
of thethreesecteurs,
including
someTutsiwho
hadremained
in thecommune.
TheAccused
testified
thatas thereweremanypeople,
he addressed
thecrowdwitha megaphone.
He stated:

"That
dayitwasa meetingofpacification.
I wasasking
thepeople
nottomistake
their
neighbours
fortheenemy.I wassaying
thattheenemywastheRPF,which
wasattacking
thecountryfromoutside.
I,therefore,
asked
themnottoattack
theirneighbours
because
those
days theywere
identifying
theTutsis
asRPFagents.
Generally
thatwasthegeneral
trendof themeeting,
thegeneral themeof themeeting,
butthepeoplealsoasked
’’36s
questions.

297.Individuals
askedquestions
aboutproperty
thathad beenabandoned
by the
refugees
andaboutthegeneral
situation
of insecurity.
TheAccused
testified
that
people
complained
aboutthe"people
fromtheNorth"
andrequested
himto ensure
thattheydidnotreturn
to "create
chaos".
According
to theAccused,
"...theywanted
to pointout the bandits
and delinquents
thatwe knewin Mabanza
andwhomwe
coulddealwith".
Noneof theTutsiin attendance
askedthe Accused
why he had
failed
369 toprotect
theTutsi.

298.TheAccused
testified
thathe alsoorganised
meetings
in Mukaru
andKigeyo
secteurs.
He explained
thathe toldtheHutu"notto usetheideaof accomplice
to
kill"
° as "insodoing
theywerekilling
their
ownbrothers
andsisters’S

367
Transcripts
of7 June2000pp.51-52.
368Ibid.
pp.52-53.
369
Ibid.
pp.54-59.
370Ibid.
p.63.

106
 ICTR-95-1A-T
~} ¢~:~"--~. ~¢J-~}~

299.Stillaccording
to theAccused,
on Friday
10 June1994,theAccused
helda
meeting
"withthe people"at Kabugain Giharasecteur.
The meetinghad been
arranged
by lettersentout on 7 Juneto the conseillers
of Kigayuand Gihara
371 Present
secteurs. at themeeting
weretheconseiller
ofthesecteur,
a member
ofthe
cellule
committee
andmanyinhabitants.
TheAccused
testified
thathismessage
was
thesameas during
hisprevious
meetings.
He explained
thathe wasaskedaboutthe
security
situation,
themisappropriation
ofproperty,
people
being
wrongly
accused
of
beingaccomplices
anddisagreements
between
various
individuals
of thesecteurs.
372

300.TheAccused
testified
thathe heldtwomeetings
on 30 June1994,onein the
morning
andonein theafternoon.
Theletter
convening
thesemeetings
wassentout
on 28 June1994andaddressed
to theconseillers
ofKibingo,
Rukaragata,
Nyagatovu,
Buhingaand Mushubati.
373 The subjectwas "thatof bringing
aboutpeace".
Regarding
questions
frompersons
whoattended
thesemeetings,
theAccused
stated:

"Examples
would
be,forinstance,
inKibingosector,
it’squiteclose
toKayovecommune,
I wasspeaking
tothemaboutrestoring
peaceandrespect
forone’sneighbour.
Andthey
wereaskingme whyI wastelling
themthatwhereas in theothercommunesthesame
language
wasnotbeing usedto.So,I wastryingtomakethemaware,I wastryingto
explain
tothemhowwe shouldbehavegiventhedisturbances
thatweareexperiencing
butitwasdifficult.
Itwasdifficult
becausethis
isanareawhichneighbours
Kayove
and
,,374
Rutsiro.

301.During
cross-examination,
theAccused
confirmed
thathe heldonemeeting
in
theMoslem
quarter.
He couldnotremember
whether
it tookplacebefore
or afterthe
Habayoincident
(section
V.4.7)but recalled
thathe heldit "because
of the
differences
between
the Moslempopulation
and the neighbouring
people".
The
Accused
explained:

"Duringthatperiod,
therewerea lotofwardisplaced
people
whowerefleeing
fromthe
warfront, fromKigali,
fromGitarama,
andtheother
regions
ofthecountry.
So there
werea lotofvehicles
parked
anda lotofpeople
whohadgathered
inthatplace,
andasI
havesaid, amongmypeoplethere weredeliquents,
therewerethieves
whowantedto

37lDefence
ExhibitNo.18 at0335.
372Transcripts
of 7 June2000pp.76-78.
373Defence
ExhibitNo.18 at0369.
374Transcripts
of 7 June2000pp.128-129.

107
 : ’= ~ ~ ICTR-95-1A-T

extortmoneyfromthesepeople,andwhoweresayingthat-- whoclaimed
thatthe
Moslemswherehidingguns and weapons,and that they even had radio
telecommunication
facilities
tocommunicate
withtheRPF,soI hadtoholda meeting
theretoletthemknowthatthese
rumours
wereunfounded
andthatthesepeople
whohave
cometousaredisplacedpeople
whohaveproblems,
andthatonthecontrary
weneeded
to7
’’3
help
5 thembecause
theywerepeople
whowereindanger.

Conclusion

302.In theopinion
of theChamber,
theaboveevidence,
except
forthetestimony
of
Witness
K, abouttheso-called
"pacification"
meetings
of May-June,
givessome
support
totheposition
of theAccused
thatheacted
toprevent
killings
of Tutsi
andto
re-establish
lawandorder.
Thefactthatabandoned
property
wasdistributed
toHutn
appearsas a means to ending the disturbancesbetweenthe Hutu over
misappropriated
property.

303.Theonlywitness
whohasa different
recollection
of themeetings
is Witness
K. Hertestimony
is uncorroborated
andsketchy.
Sheis unable
to remember
in which
month
themeeting
sheattended
occurred,
despite
stating
itwasinJunein herwitness
statement.
Shedidnotknowwhether,
apartfromtheAccused,
otherauthorities
were
present.
Considering
thisandthefactthatherdescription
ofthemeeting
isin stark
contrast
withthedescriptions
of alltheothermeetings
presented
by Witnesses
KA,
KC, ZD, and RA, who havenot beenfoundto be unreliable,
theChamber
cannot
attach
decisive
weight
tohertestimony
regarding
themeeting
attheMoslem
quarter.

6. TheAceused’s
Relationship
withC~lestin
Semanza

304.It is allegedby the Prosecution

thatthe Accusedand the assistant
bourgmestre,
Celestin
Semanza,
wereimplicated
in various
atrocities
committed
in
Mabanzacommuneand Kibuyeprefecture
betweenApriland June 1994.The
Defence
submits
thatfollowing
the introduction
of multipartism
in 1992,the
relationship
between
C61estin
Semanza
and the Accused,
wastense,verging
on

375Transcripts
of9 June
2000
pp.68-70.

108
 ICTR-95-1A-T

~~~ @
16-t¢
.........................................................................................................................................

insubordination.
Thispersisted
untilthedeparture
of theAccused
in July1994.The
Defence
maintains
thatthe evidence
beforethe Chamber
demonstrates
thatthe
Accused
376 hadno realauthority
or effective
control
overSemanza.

305.The Accusedexplained
thatwiththe adventof multipartism,
eachparty
wanted
to establish
itself
in a given
region
or area.Twooutof histhreeassistant
bourgmestres
werefromthe MDRparty,whereas
Appolinaire
Nsengimana
and the
Accused
belonged
to theMRNDparty.
TheAccused
explained
thatas hisco-workers
belonged
todifferent
political
parties,
"[i]n
their
work,
theybecame
[u]ndisciplined,
theydidnotwantto obeymy orders
anymore.
I always
hadproblems
withthem...
so muchso thatI hadwanted
themto be sentbackto theMinistry".
Withregard
to
Semanza,
theAccused
addedthathe "became
unmanageable.
I triedto manage
him,
so I hadsuggested
thathe be sentbackto theMinistry,
thecivilservice
but,the
Prefet
...didnotcomply
withmy request.
He didnotwantto support
my proposal
which
I hadsentin".
377

306.TheAccused
testified
thatC61estin
Semanza
wasdoingeverything
to sabotage
his work.He explained
that Semanza,Munyadola
Etienneand Habiyaremye,
respectively
Secretary,
Chairman
andTreasurer
of theMDRpartyin Mabanza,
wrote
a rebuttal
on 1 September
1992toa confidential
report
hehadsenttothePrefect
of
Kibuye.
378According
totheAccused,
hisreport
hadcomeafterhe hadrequested
that
Semanza
be withdrawn
as assistant
bourgmestre.
As such,"Semanza
wanted,
by all
means,
totakevengeance".
379Intherebuttal
thesignatories
wrote:

"Wetakethis
oppommity,
Mr.Prefdt,
toinform[you]
that
thisreportisbased
onliesand
onthefactthattheBourgmestre
wantstovindicate
himself
fromthefailuretotransmit
thetruereports
within
thesettime-limits
....Mr.Prdfet,
we feelthatit wouldbe
advisable
thatyouyourself
conductyourowninvestigations
on whathappened
inthis
Commune
aswellasontheBourgmestre’s
statements
soastoestablishthetruth,
given
thattheoutdated
reports
theyaresubmitting
toyouareinaccurate
andaimatdiscrediting
theMDR,thereby
giving
theimpression
thatthelatter
isthesourceoftheriots,
whereas

376Prosecutor’s
Closing
Remarks
pp.45-47paras.
277-285;
Defence
Closing
Briefpp.103-107
paras.
190-228.
377
Transcripts
of I June2000pp.71-72.
378Defence
ExhibitNo.57.
379
Transcripts
of1 June2000pp.81-91.

109
 ,- ~!’~ ICTR-95-1A-T

! i
inreality,
hehimself
caused
thesituation
because
hefailed
tomeetthepopulation
soasto
hear
their
opinions
andtoseektogether
with
them
solutions
totheir
problems."

307.According
to theDefence,
thestrained
relationship
between
Semanza
andthe
Accusedcan alsobe seenin correspondence
overSemanza’s
embezzlement
of
commune
fundsandhisfailure
to report
to work.In a letter
dated3 June1992from
theAccused
to Prefect
Kayishema,
theAccused
askedthePrefect
to request
the
Ministry
of Public
Service
to helpin therecovery
of 133400Rwandan
Francs
from
Semanza.
Thismoneyhadbeenmisappropriated
by Semanza
whilstthe Accountant
wason leave)
s° ThethenPrefect
of Kibuye,
Pierre
Kayondo,
followed
up thisissue
witha letter
to theMinister
of theInterior
andCommunal
Development
on 10 June
1992,
withcopyto theAccused.
In theletter,
herequested
theMinister
to order
the
"proper
deduction
of thismoneyfromthesalary
of theemployee,
Semanza
C61estin,
inorder
thatthefunds
bepaidbackintotheTreasury
ofthecommune".
381

308.On 9 November
1992,Semanza
addressed
a letter
to the Accused
in whichhe
explained
whythere
wasa deficit
in thefunds.
He added
thathe wasin theprocess
of
regularising
the situation
and intended
to reimburse
on a monthlybasisthe
outstanding
claims.
382However,
by letter
of 14 November
1992fromtheAccused
to
Semanza,
Bagilishema
intimated
thatSemanza
actedwithpremeditation.
He also
notedthathe hadyetto receive
anypayments
fromSemanza
despite
thelatter’s
promise.
383On thesameday,theAccused
senta letter
totheMinister
of theInterior
andCommunal
Development
in Kigali
againrequesting
helpin recovering
thesum
owedby Semanza
andin imposing
a financial
penalty
uponhim.TheAccused
noted
hisintention
to takethematter
tocourtif noadministrative
measures
weretaken
in
384
time.

309.TheAccused
testified
thatSemanza
finally
agreed
to payhisdebt.A contract
was drawnup between
the communeand Semanza,
wherebySemanzaagreedto pay

380Defence
Exhibit
No.31.
381Defence
Exhibit
No.30.
382Defence
Exhibit
No.29.
383Defence
Exhibit
No.38.

110
 ,~/~,~) ~’~ ICTR-95-1A-T

t 67z.
byinstalments
3s5 thebalance
ofhisdeficit.

310.Reference
to themisappropriated
fundsis madein an "Evaluation
Sheet"
for
Semanza
covering
theperiodof 1 April1993to 31 March1994andsignedby the
Accused
on 6 November
1992.
386In theevaluation,
theAccused
stated
that"[i]tis
difficult
forthisbadexample,
which
mayspread
among
thetaxcollection
staff
ofthis
Commune
Treasury,
to disappear".
Askedby theProsecution
why theAccused
had
recommended
Semanzato be fit for promotion
in the evaluation,
the Accused
explained
"[q]uite
frankly,
I saidthatitwaspremature
butlater
on I seethatit has
beencrossed
out and "fit"... has replaced
the"premature".
I don’tknowwhy
premature
hasbeencrossed
out".TheAccused
couldnotremember
exactly
whenhe
filled
in thedocument
or whether
he madethechanges,
although
he confirmed
that
on thebasisof theoverall
rating
in theevaluation,
it waspremature
to promote
Semanza.
387TheChamber
notesthattherearethree"veryhigh"andfive"average"
ratings,
withtheoverall
grade
being
"good".

311.In further
support
of thetenserelationship
between
theAccused
andSemanza,
theAccused
tendered
a number
of letters
relating
to Semanza’s
absence
fromwork
on 15 December
1992.By letterdated16 December
1992to Semanza,
the Accused
demanded
an immediate
explanation
fromSemanza
forhisabsence.
388In thereply
thereto,
dated17 December
1992,Semanza
explained
thattheAccused
hadverbally
granted
himpermission
to attend
ceremonies
in Kibuye.
Semanza
addedthat:"...if
youwerenotsetting
a trapforme,it wouldbe incomprehensible
thatyoushould
be
denying
thatyouactually
gaveme permission
yourself’.
3s9On 19 December
1992,in
a letter
toSemanza,
theAccused
responded:

384
DefenceExhibitNo. 27.
385 Defence
ExhibitNos.25 and 26.
386
DefenceExhibitNo. 20. The Frenchoriginalreads"Bulletinde Signalement
valablepour la
~86riodedu [...]
ofler
7 Transcripts Avril
9 June 1993
2000 au107-111.
pp. 31 Mars1994".

388 Defence
ExhibitNo.24.
389 Defence
ExhibitNo.23.

111
 "Iamsorrytoinformyouthatitisnotgoodtolieandespeciallytolieinorderto
incriminate
yoursuperior
....Sinceyouhavealways
triedtooutsmart
yoursuperior
and
shyawayfromotherimportant,
official
duties,
I am forced
to sendyoubackatthe
disposal
39° ofthesupervisory
ministries
whichemployed
you".

312.TheAccused
testified
thathe hadsentthisletter
to theMinistry
of Interior
witha viewto having
Semanza
withdrawn
fromservice,
butthathe hadnotreceived
a response.
TheAccused
explained
that,following
therefusal
of hissuperiors
to
remove
Semanza,
Semanza
felt"untouchable
and didwhatever
pleased
him".
391In
thisregard,
the Chamber
notesthatProsecution
ExpertWitness
Andr~Guichaoua
stated
thata bourgmestre’s
powerwasproportional
to therelationship
thathe had
withthenational
39z leaders.

313.According
to the Defence,
the sourceof muchof the tension
between
the
Accused
andSemanza
emanated
frompolitical
differences
following
theadvent
of
multipartism.
TheAccused,
whowasa member
of theMRNDparty,
pointed
outthat
Semanza
wastheSecretary
of theMDRpartyin Mabanza.
He addedthateachof the
political
parties
wanted
to havea representative
inthecommune,
andthat"their
tactic
initially
wasto be ableto remove
[representatives
fromotherparties]
withpeople
fromtheirownparties".
393TheAccused
explained
that"eachpartywanted
to acquire
thecommune
... theMDRwantedto havethecommune
andthesamethingwiththe
other
394 parties.
Sothisledtoconfrontation
between
theparties".

314.Witness
ZD wasa senior
official
of an opposition
political
partyfrom1992
until
thetimeoftheevents.
Hetestified
thatthestrategy
oftheopposition
parties
was
to replace
theAccused
withtheMDRcandidate,
Semanza,
andthatSemanza
hadthe
support
of themostof theMDRleaders.
Witness
ZD explained
that"well,
I saidif
whenyouwantpowerit’sno longer
a matter
of saying
thisoneis my friend.
We
wantedpower.And we wantedgrassroot-- we wantedpositions
at the grass-

390
Defence
Exhibit
No.22.
391
Transcripts
of1 June
2000
pp.84-85.
392
Transcripts
of14February
2000p.24.
393
Transcripts
of1 June
2000
pp.71-72.
394
Ibid.
p.140.
112
 ICTR-95-1A-T

..............................

"Itoldyouthat
ourobjective
wastoget[the Accused]
outofthatseat.
I’msorry
tosay
this.Unfortunately,
thepersonwe wantedto propose
wasbehavingin anirreverent
manner,
particularly
in1994.Thatiswhatweobserved. Maybe
thisproposal,
thisidea
of proposing
himtoreplacethebourgmestregotintohishead. ThiswasSemanzawho
was6
’’39
supported
bya topparty
official
andI don’twant
tomentionhisname.

315.Witness
ZD stated
thatin 1994mostof thepeople
in Mabanza
belonged
to the
MDRparty.
397

316.Defence
Witness
KA testified
thatwiththeadvent
of multipartism,
"people
werehappywiththeMDRparty".
He testified
thatduring
themassacres
theMRND
didnothaveanypower.
He stated
that"theexample
is thatin Aprilduring
the
killings
whenSemanza
was holding
meetings
thiswas showing
thathe hadpower
because
theBourgmestre
neverheldanymeetings
during
thisperiod
of time".
He
addedthattheAccused
didnotcallanymeetings
whilst
theAbakiga
werein the
398
commune.

317. Witness
KA explained
thatin mid-April
"theMDRwas stronger
because
the
MDRmembers
were...in themajority
in thecommune
....Semanza
was,therefore,
the favourite
of the people,
so to speak,and had an eye on the position
of
bourgmestre".
Thewitness
addedthatduring
thepolitical
meetings
of theMDR,the
members
usedto sing"thatthebourgmestre
should
399
resign".

318.DefenceExpertWitness
Frangois
C16ment,
a doctorof sociology
who had
workedin Rwanda,
including
Mabanza,
between
1989and1994,testified
thatas
Semanza
andtheAccused
camefromtwodifferent
parties,
tension
builtup between
them.
4°° He explained
thatduringmeetings
Semanzawouldchallenge
whatthe

395
Transcripts
of3 May2000(closedsession)
pp.35-36.
396Ibid.
p.41.
397Ibid.
p.32.
398Transcripts
of22 May2000p.40.
399Ibid.
pp.105-106.
4o0Transcripts
of 29May2000pp.95-96.

113
 ICTR-95-1A-T

leo 6"1
...........................
Accused
wassaying,
"challenges
whichdidnotappear
credible
andwhichappeared
tobe a bitoverthetopandwhich
brought
thetwomenin opposition".
In hisopinion,
"there
4°1 wasa political
opposition
in thebackground".

319.Defence
Expert
Witness
Jean-Francois
Rouxwho,up to April1994,headed
a
development
project
in Kibuye
prefecture,
dealtwithSemanza
regarding
planning
issues.
Thewitness
confirmed
thattherehadbeena political
conflict
between
the
Accused
andSemanza
asthelatter
belonged
to a party
thatwasopposed
to thatof the
Accused.
He addedthathe hadpersonally
received
a letter
fromSemanza
regarding
theproject
4°2 in which
Semanza
questioned
theconduct
andattitude
of theAccused.

320.TheAccused
testified
thathisfractious
relationship
withSemanza
continued
up untilJuly1994.In a letter
dated24 June1994,fromtheAccused
to Prefect
Kayishema,
theAccused
intimated
hisproblems
withhispolitical
rivals:
"I would
liketo inform
youthatthisrumour
is spread
outby my political
opponents
whose
intention
is to takemy place".
4°3In testimony,
he explained
thathe hadin mind,
amongst
others,
Semanza.
Inresponse
to a question
fromtheBench,
"[a]nd
thatis the
position
thatyouaretaking
up in thisCourteventoday,
thatSemanza
wasdesigning
orplanning
4°4 to takeoverfromyou?"
theAccused
answered
in theaffirmative.

321.In hisletter
dated27 April1994addressed
to all thePrefects,
the Prime
Minister
indicated
thatallthepolitical
parties
forming
theGovernment
hadmetand
discussed
howtodealwiththelossofthemainleaders
of thecountry.
ThePrefect
of
Kibuye
forwarded
theletter
to allthebourgmestres
in thecommune.
4°5TheAccused
explained
thatdespite
thefactthatthepolitical
parties
wereconsulting
at national
level
on howto manage
thecountry,
the"opposition
parties,
by allmeans,
wanted
to
wintheelections
andtakethepresidential
seat".
4°6As to whether
thishadany
repercussions
atlocal
level,
hestated:

401Ibid.
p.99.
402 Transcripts
of 4 May 2000pp.19-23.
403
Prosecution
ExhibitNo. 84 (IV.7below).
404
Transcripts
of 7 June2000pp.111-112.
405 Prosecution
Exhibit No. 77B.

114
 "Iwillsayit didnotchange
anything,
or didnotchange
my relationship
withMr.
Semanza.
Whatwashappening,
wastotryandstopthedisturbances,
buttheopposition
still
persisted.
[...]
Theobjective
wasstilltotake
overpolitical
power,
sonobody
was
happy
tosharepower
withothers.
Eachparty
wanted
towinandtakeover
allthepolitical
power.’4°7

Conclusion

322.In the opinion

of the Chamber,
theevidence
showsthattheAccused
hada
strainedrelationship
with CrlestinSemanza,whichat timesvergedon
insubordination.
It is clear
thatSemanza,
as a member
of MDR,hadhisownpolitical
agenda,
andthathewassupported
in thiscause
byother
parties.
There
is insufficient
evidence
toestablish
thattheAccused
wasindirect
conflict
withSemanza,
orthatthe
latter
stopped
carrying
outhisduties
as anassistant
bourgmestre,
or thathewas"out
of control".
On theotherhand,theevidence
doesnotsupport
theposition
of the
Prosecution
that,during
thetrial,
theAccused
purposively
"went
to great
lengths"
to
distance
himself
fromtheactions
of Semanza.
4°sWhether
or nottheAccused
maybe
heldresponsible
forcriminal
actsperpetrated
byhisassistant
during
April-June
1994
willbe discussed
in Chapter
V below.

406Transcripts
of8 June2000pp.86-88.
407Ibid.
pp.89-90.
408Prosecution’s
written
ClosingRemarks
para.277.

115
 ICTR-95-1A-T

7. Letterof 24 June1994

323.Duringthe trialbothpartiesreferred
to a letterof 24 June1994fromthe
Accused
to thePrefect
of Kibuye.
4°9Copiesweresentto thebourgmestres
of Rutsiro

and of Kayovecommunes.The Chamberdeemsit usefulto quotethe letterin its

entirety:

"ThePr6fet
of Prefecture
KIBUYE

Mr Pr~fet,

According
to theinformation
atourdisposal,
thepreparations
of a seriesofattacks
are
reportedlyunder way in ZONE MURUNDAand ZONE RUTSIRO(NorthernRUTSIRO)
of RUTSIROcommune;theattackstargetMABANZAcommunebetween1stand 5th July
1994,underthepretext
thataccomplices
arestillhidden
in Mabanza;theyhavealsodared
to include
myselfamongtheaccomplices
stating
thatI am marriedto a Tutsiwoman.

I am sorryto inform
youthatthere is no moreaccomplice
in Mabanza.
Evenifthiswere
true, thepopulation
ofMabanzaisselfsufficient.
We donotwantto beconsidered
asthe
defeated so thatpeoplefromKAYOVEandRUTSIROcommunes needto cometo lootat
anytime and anyhowin our commune.Thatis the reasonwhy,Honourable Pr6fet,I
requestyou,to warnthe peoplefromKAYOVEand RUTSIROcommunes so thatthey
stoptheirattacksagainstMABANZAcommune, becausepeopleof our communeare
ableto checkthemselveswhetherthereis anyaccomplicehidingamongthem.

Concerning
theproblemof mywife,peoplebelievethatsheisa Tutsiandthatleadsthem
to thinkthatI am an accomplice
andthatI support HutuwhomarriedTutsiwomenand
theTutsipopulation. I wouldliketo informyouthatthisrumoris spread outby my
politicalopponentswhoseintentionis to takemy place.My wifeis a Humfromthe
BAGIGAfamily,a verylargefamilyresiding at Rubengera
in Mabanzacommune.

Asforthosepretextingthatmymother-in-law
is a Tutsi,
thisisnotsound at all,evenif
shewerea Tutsi,
a child belongstothefathernotto themother;
those whomaintainthat
thatmy mother-in-lawis Tutsiarewrongsincesheis nativefromsector RURAGWE,
Gitesicommunefromthe BARENGA family,a well-known familyof Hutuas confirmed
by theBourgmestre
of Gitesicommunein hisletter no.D 249/04.05/3
dated06/06/1994,
addressed
to theConseiller of sectorRURAGWEa copyof whichwasreserved to you.

409 Prosecution
Exhibit
No.84.

116
 Therefore,
I would
likeHonourable
Pr~fet,
torequestyoutodoyourutmost
tostopthose
attacks.
Otherwise,
thepopulation
ofMabanza
communewoulddefend
itself,
whichcan
result
ina confrontation
between
theHutuwhereas,
whatwepresently
needed
themostis
their
unitytofacetheInyenzi-Nkotanyi.
Wecannot
fightagainst
theInyenzi-Nkotanyi
whoarethreatening
toattack
fromGitarama
Prefecture
and,atthesametime,
counter-
attacktheHumfromKAYOVEandRUTSIRO.Thatis whyyourassistance
is urgently
sollicitated.

Thank
’’4t°
youinadvance.

324.TheChamber
notes
thatthisletter
canbe interpreted
invarious
ways.First,
it
confirms
theAccused’s
testimony
thathe wasaccused
of beinga Tutsiaccomplice.
Ontheother
hand,
theletter
alsoshows
thathestrongly
refuted
thisaccusation,
butin
viewof theprevailing
circumstances
in 1994it is difficult
to consider
thisas a
decisive
argument
against
him.Second,
theAccused
wrotethattherewereno more
accomplices
leftin Mabanza
in June1994andthathiscommune
wasableto deal
withthemalone.Thiswouldseemto supportthe Prosecution’s
case,but the
statement
mayalsobe seenas a wayto avoidfurther
attacks
against
hiscommune.
Third,
theletter
offers
somesupport
to theAccused’s
testimony
thatpolitical
opponents
triedto takeoverhisposition
as bourgmestre
(seeIV.6aboveabout
Semanza).
Fourth,
it givesthe impression
thatone of the Accused’s
primary
considerations
wasto avoidinternal
confrontation
amongst
theHutuin orderto
mountan efficient
defence
against
theInyenzi-Inkotanyi.
Readalone,
thiscould
convey
theimpression
thattheAccused
wasfighting
Tutsiin general,
butitfollows
fromthecontext
thathe wasreferring
to attackers
coming
fromanother
prefecture
andnotTutsiinside
hisowncommune.

325.In thepresent
case,theProsecution
didnotproduce
anyevidence
concerning
theuseof "double
language"
inRwanda.
However,
eveninterpreting
theletter
in the
lightof thispossibility
theChamber
concludes
thattheletter
of 24 June1994does
notinitself
provide
clear
support
fortheProsecution’s
case.

410Frenchoriginal.

117 ~
 ICTR-95-1A-T

8. Conclusions

326.On thebasisof theaboveevidence,

it is clearthattheAccused
hadlimited
resources
at hisdisposal
duringtheperiod
April- July1994.In essence,
his
resources
consisted
of one vehicle
andeightcommunal
policemen.
Thegendarmes
thathadbeengiven
to himby theauthorities
of Kibuye
on 9 Aprilwerewithdrawn
at
a timewhenthesecurity
situation
wasstill
precarious,
thereby
limiting
themeasures
theAccused
couldreasonably
be expected
to effect.
Moreover,
theevidence
suggests
thatC61estin
Semanza
hadsomeinfluence
overtheAbakiga.

327.Thereis evidence
thattheAccused
helped
manyindividuals,
including
Tutsi,
during
thepeakof themassacres.
Theevidence
doesnotsupport
a finding
thatthe
Accused
dispensed
thishelpin a selective
manner
to a chosen
few,to thedetriment
of Tutsi.
After27 April1994,theAccused
tooksomemeasures
to restore
lawand
order
andinstill
a sense
of normality
in thecommune.

328.Theevidence
discussed
in thissection
hasnotdemonstrated
thattheAccused
generally
actedin an outright
discriminatory
manner
against
theTutsior thathe
generally
encouraged
theirkilling
before
or afterApril1994.Theevidence
is also
insufficient
to establish
thattheAccused
generally
turned
a blind
eyetothekillings
ofTutsi
andthereby
acquiesced
tothemassacres.

329.TheProsecution
hasledevidence
implicating
theAccused
in specific
events
against
Tutsi.
TheChamber
willconsider
theseevents
in Chapter
V below.
 CHAPTER V. FACTUAL AND LEGAL FINDINGS

SPECIFIC EVENTS

1. Introduction

330.In thepresent
Chapter,
theChamber
shallassess
theevidence
presented
in the
approximate
chronological
orderof thespecific
eventsalleged.
TheChapter
is
divided
intofourmainsections:

- Thefirstsection
covers
eventsin Mabanza
commune
following
thedeathon 6
April1994of President
Habyarimana
of Rwanda.
Thefocusis on theperiod
from6
to12 April
1994(seeV.2);

- Theevents
in Kibuye
townfrom13 to 19 April1994aredealtwithin thesecond
section.
It includes
themovement
of"refugees
’’411outof Mabanza
commune
andthe
attacks
at theHomeSt.JeanComplex
andKibuye
Stadium
(seeV.3);

- Thethirdsection
covers
a period
fromthemiddle
of ApriluntilJuly1994and
relates
to specific
events
saidto haveoccurred
in Mabanza
commune,
in thecourse
ofwhichpersons
werekilled
(seeV.4);

- Thefinal
section
deals
withmatters
thatareclosely
related
to thesetting
upand
operation
of roadblocks
in Mabanza
commune
(seeV.5).

411Theterm"refugee"
isusedin thisJudgement
withthemeaning
of "a person
seeking
refuge"
and
notinthedictionary
definition
of"apersonwhohasbeenforcedtoleavetheircountry
..."(Concise
Oxford).
Thereason
forthisisthattheIndictment
employsthetermin theformer
sense,andit was
subsequently
usedinthissense
bybothParties
throughout
thetrial.

119 ~L
 ICTR-95-1A-T

~ ~

2. Events
between
6 and12 April1994

2.1 Attacksin MabanzaCommune

TheIndictment

331.The earlyattacks
in Mabanza
commune
are covered
in paragraph
4.7of the
Indictment:

"On6 April1994,theplanetransporting
President
Juv6nal
Habyarimana
of Rwanda
crashed
onitsapproach
toKigaliairport,
Rwanda.
Attacks
andkillings
ofcivilians
began
soonthereafter
throughout
Rwanda."

332.According
to the Prosecution,
manywitnesses,
including
Witnesses
A, AA,
AB,AC,G, H,I, J,K, andO testified
thatfollowing
theplanecrash
on6 April
1994,
Tutsicivilians
wereattacked
andtheirproperties
destroyed.
TheDefence
didnot
challenge
theallegation
thatTutsifromMabanza
commune
wereattacked
in thedays
following
6 April1994butaddedthatHutuandTwawerealsoattacked.

333.The Chamber
findsparagraph
4.7 to havebeenproved.
TheProsecution
has
notalleged
thattheAccused
wasdirectly
involved
in theseearlyattacks,
andthe
Chamber
notesthatthereis no evidence
supporting
hisinvolvement.

2.2Attacks
at Nyububare
Hill

TheIndictment

334.TheProsecution
refers
to attacks
around
8 April1994against
members
of the
Tutsipopulation
at Nyububare
Hill,Buhinga
secteur,
in Mabanza
commune.
412This
incident
comesunder
paragraph
4.10of theIndictment,
which
reads:

412Prosecution’s
written
Closing
Remarks,
filed
on 30June2000,
p.10 para.
69.

120 /~L
 "InMabanzacommune,
membersoftheTutsipopulation
soughtrefuge
in various
areas
withinthe13 secteurs
of thecommune.
Theseindividuals
wereregularlyattacked,
throughout
theperiodof9 April
1994through
to30June1994.
Theattackers,
comprising
of membersof theGendarmerieNationale,
communalpolicemenandInterahamwe
militiamen,
usedguns,grenades,
machetes,
spears,
pangas,
cudgels
andother
weapons
to
killtheTutsisinMabanzacommune."

Submmsions
of theParties

335.TheProsecution
relies
on Witness
AC,who,withmembers
of herfamily,
fled
to Nyububare
Hill.Thereshefoundhundreds
of Tutsimen,womenandchildren
who
werealsoseeking
refuge
fromattacks.
Whileat Nyububare
Hill,therefugees
were
attacked
by Hutucivilians
andtwo communal
policemen.
The Hutuattackers
used
traditional
weapons.
Thepolicemen,
acting
undertheauthority
andcontrol
of the
Accused,
usedguns.Manyrefugees,
including
Witness
AC andherfamily,
thenfled
to the bureau
communal
in Mabanza.
413 TheProsecution
charges
theAccused
with
genocide
andcrimes
against
humanity
in relation
tothisevent.

336.TheDefence
asserts
thatWitness
AC’stestimony
cannot
be givenweightin
relation
totheactivities
of thepolicemen.
If thewitness
werecorrect
thatover300
persons
had soughtrefugeat Nyububare
Hill,thetwo policemen
couldnothave
"surrounded
them".The Defence
alsonotesthataccording
to WitnessAC, the
alleged
attack
by thepolicemen
waslimited
to gunshots
firedintotheair.The
refugees’
reaction
wasto headforthebureau
communal.
Thisindicates
thatthey
trusted
thecommunal
authorities
andthepolicemen,
andthattheshotsfiredwere
intended
414 tochase
awaytheattackers.

Deliberations

337. According
to the testimony
of WitnessAC, she and her familyreached

413
TheFrenchexpression "bureaucommunal"broadly
refersto thecompound
containing
theoffices
andotherbuildings of theadministration
of Mabanza
commune.
Theofficeof theAccused
waswithin
a buildingin thebureaucommunal. In thetextof theJudgement,the bureaucommunal
oftenis
referred
to simplyas"communaloffice".
414
Defence
Closing Briefpp.30-31paras.209-213.

121
 ICTR-95-1A-T

.........................................................................................................................................

Nyububare
Hillon 8 April1994,wheretheyfoundthreeto fourhundred
other
refugees.
Theywereattacked
by Hutufromher area.Theattackon therefugees
continued
thenextday.On thesecondday,the witness
saw the arrival
of two
communal
policemen.
She identified
themas Rwamakuba
and Munyandamutsa.
She
testified
that"[t]hey
cametrying
tocircle
thehillonwhich
we werehiding".
Shealso
saidthattheywanted
"toshootat us buttheydidn’t.
Instead
theyfiredintothe
415
air...".

338.Thewitness
didnotclaimthatanyinjuries
or deaths
weresustained
by the
refugees
during
thetwodays.Shedidnottestify
thattheAccused
was directly
involved
intheattacks
orthathe ordered
orsomehow
provisioned
theattacks.

339.TheChamber
notesthatin herstatement
to investigators
of 21 June1999the
witness
stated
that"thebourgmestre
dispatched
thepolicemen".
416Shedidnotstate
howshe acquired
thisinformation,
andin her testimony
she didnotrepeatthe
allegation.
Thereis no specific
information
thatthecommunal
policemen
- forwhose
actions
the Accusedmay be responsible
- committed
any offences
againstthe
refugees.
Moreover,
thereis no evidence
thatthepolicemen
wereacting
underthe
direction
or control
oftheAccused
during
theattack.
TheChamber
alsonotes
thatthe
Prosecution,
in itsfinal
oralsubmission,
didnotdispute
thattheAccused
actedin
goodfaithprior
to12 April
1994(seeIV.2aboveandpara.
354below).

Finding_s

340.Witness
AC did not specifyany crimescommitted
at Nyububare
Hill.She
identified
thecommunal
policemen
butsaidthattheyonlyfiredintotheair.She
madeonlygeneral
reference
to Hutuattackers,
without
indicating
whotheywereor
whattheydid.Theevidence
ledin thepresent
casefailsto demonstrate
thatany
crimes
committed
at Nyububare
Hillcanbe attributed
to theAccused.
Therefore,
the
Chamber
findsthatthe Prosecution’s
chargesof genocide
and crimesagainst
humanity
forthealleged
attack
on Nyububare
Hillcannot
be sustained.

415 Transcripts
of 18 November
1999p. 20.
 2.3NightPatrols

341.According
to theProsecution,
following
thecrashof thepresidential
planeon
6 April1994,theAccused
instructed
conseillers
in Mabanza
commune
to organise
nightpatrols
in theirspheres
of operation.
Between
7 and11 April1994,Tutsiand
Humpatrolled
together.
Thereafter,
Hutustarted
attacking
Tutsiin thecommune,
forcing
themtofleeto thecommunal
office
forsafety.
There
isnospecific
allegation
as to anywrongdoing
7 by theAccused
in thisregardf

342.Prosecution
Witness
Z testified
thata meeting
washeldby theAccused
during
thenightof 7 April1994.It involved
neighbours
in thecellule
of thewitness,
including
theconseiller
Daniel
Nkiriyumwami,
Daniel
Sebuhoro,
headof thecellule,
and headsof the neighbourhoods
consisting
of ten houses(nyumbakumi).
The
witness
described
how themeeting
was "impromptu"
and had beencalledby the
Accused
who was presentin his capacity
as a neighbour
and in orderto give
advicef
8 Duringthe meeting,
the Accused
askedthosegathered
to be of good
behaviour
andto start
night
patrols.
Heexplained
thatthenight
rounds
wererequired
forthesecurity
of theareaanditspeople.
Until
11April
1994,
according
toWitness
Z, thenightpatrols
werecarried
outby HutuandTutsitogether.
He explained
that
theTutsistopped
participating
in thepatrols
probably
because
theywereafraid,
following
9 attacks
against
themin Kayove
andGisenyif

343.Defence
Witness
BE alsotestified
thaton thenightof 7 April1994oneof his
neighbours
called
a security
meeting
of abouttwelve
neighbours,
including
Hutuand
Tutsi.TheAccused
passedby,and theyaskedhimto jointhem.He stopped
and
madea fewsuggestions.
TheAccused
explained
thatthe enemywanted
to drivea
wedgebetween
HutuandTutsi.
He askedthepeople
at themeeting
to ensure
that
there
wasno discrimination
between
theethnic
groups.
He alsosaidthattheyshould

416Defence
Exhibit
No.8.
417
Prosecution’s
written
Closing
Remarks
p. 8 para.
55.
418
Transcripts
of9 February
2000p.12.
419
Transcripts
of8 February
2000p.11.

123
 ,_ ICTR-95-1A-T
~,~

t
.........................................................................................................................................

maintain
security
foroneanother,
as he hadno otheravailable
means,
andshould
report
to himanyproblems
thatarose
to enable
himto resolve
them.
According
to the
witness,
the Accusedaddedthathe had giventhe sameadviceto peoplein
Mushubafi.
4z° After
themeeting,
thegroup
ofneighbours
started
night
patrols.

344.According
to Witness
BE,thenightpatrols
stopped
operating
on thenightof
12 April
1994.Thiswasbecause
Abakiga
fromRutsiro
saidthattheyintended
to kill
therefugees
at Mabanza’s
communal
office,
as wellas anyHumwhodidnotassist
theminthistask.
42l Thewitness
wenthomeearly
thatnight
as hewasafraid.

345.TheAccused
testified
thatthepopulation
of Mabanza
commune
endeavoured,
through
patrols,
to prevent
attackers
fromentering
thecommune.
422 He didnot
specify
theperiod
overwhich
thepatrols
operated,
although
he indicated
thathe was
involved
423 inthepatrols
onthenight
of12April
1994.

Finding_s

346.TheChamber
findsthatthetestimonies
of Witnesses
Z andBE showthatthe
Accused
supported
the constitution
of nightpatrols
by bothHutuand Tutsiin
Mabanza
commune,
from7 to 11 April1994.Thesepatrols
weresetup to protect
the
commune’s
population,
irrespective
of ethnicity.

2.4Security
Meeting
on 9 April1994

347. Paragraph
4.8oftheIndictment
reads:

"Following
thenewsofthedeath
ofPresident
Habyarimana,
Ignace
Bagilishema
between
9-13April1994,attended
several
meetings
withtheprefet
of Kibuye,
Clement
Kayishema
andotherlocalauthorities
including
theCommanding
officer
of the
Gendarmerie
Nationale
stationed
inKibuye
Prefecture."

420Transcripts
of 27April2000pp.41-47.
421Ibid.
pp.48-49.
422
Transcripts
of2 June2000p.52.
423Transcripts
of5 June2000p.29.

124
 348.Evidence
waspresented
during
trial
as to a security
meeting
thattookplaceon
9 April1994.In itsfinalwritten
submission,
theProsecution
argued
that"inthe
absence
of theMinutes
of thisMeeting
theassumption
thatthemeeting
wasnotto
concert
witha viewto carrying
outgenocide
is unattainable".
4z4Thisstatement
suggests
thatin theProsecution’s
viewtheAccused
contributed
to theformation
ofa
genocidal
planas earlyas 9 April1994.During
finaloralremarks,
theProsecution
stressed
thattheplanto massacre
theTutsiat theStadium
andtheHomeSt.Jean
complexwas agreedto duringa meetingbetweenthe Accusedand Prefect
Kayishema
on 12 April1994.

349.TheAccused
admitted
attending
a meeting
on 9 April1994in Kibuyetown.
He explained
thatduringthe meetinghe proposed
thatsecurity
effortsand
reinforcements
should
be concentrated
in sensitive
areas,
which,
according
to him,
included
Rutsiro
andMabanza
communes.
But otherbourgmestres
alsorequested
gendarmes,
so hisproposal
wasrejected.
Instead,
it wasdecided
to distribute
the
gendarmes
to allthecommunes.
TheAccused
received
onlyfive.Thisnumber
was,
in hisview,insufficient
to meettheneedsof thecommune.
He testified
thathe
repeatedly
requested
moregendarmes
directly
fromthePrefect
up to 12 April1994,
without
success.

350.In support
of theargument
thatthemeeting
addressed
conventional
security
concerns,
theDefence
relied
on a letter
anda report
on thesecurity
situation
in
Kibuye,
bothdated10 April1994,whichweresentby Prefect
Kayishema
to the
Minister
of the Interior
and Communal
Development.
425 The reportcontains
a
summary
account
of a "restricted"
meeting
of the Prefectural
Security
Council
(Conseil
deSdcurit6
Prrfectoral
restreint),
heldon 8 April
1994at 10a.m.Attheend
ofthisaccount
thereport
indicates
thata meeting
oftheso-called
security
committee
(comitd
de sdcuritr)
wouldtakeplaceon 9 April1994.Amongst
thoseexpected
to
attend
weremembers
oftherestricted
Prefectural
Security
Council,
bourgmestres
and

424Prosecution’s
Rebuttal
of14September
2000
p.4 para.
14.
425Prosecution
Exhibit
76.

125
 Kibuye-based
representatives
of theUnited
Nations
Assistance
Mission
in Rwanda
(UNAMIR).
The Accused
testified
thatthreeUNAMIRrepresentatives
cameto the
meeting.

Findings

351.The Chamber
findsthatit has beenestablished
thatthe Accused
metwith
Prefect
Kayishema,
amongst
others,
on 9 April1994.

352.However,
theProsecution
didnotpresent
anyevidence
to theeffect
thatthe
meeting
of 9 April1994washeldin furtherance
of a planto massacre
Tutsi.
The
Defence
arguedthatthepresence
of threeUNAMIRrepresentatives
rulesout the
possibility
thatthepurpose
of themeeting
wasto plangenocide.
In theChamber’s
view,theinvitation
to UNAMIR
to attend
themeeting
wouldseemto suggest
thatit
washeldforsecurity
purposes
only.
Thereis noevidence
tocontradict
thetestimony
of theAccused
thatUNAMIR
representatives
werepresent.

2.5 Refugees
fleeing
to MabanzaCommunal
Office

TheIndictment

353. Paragraphs
4.18and4.19oftheIndictment
read:

"4.18From9 April1994,IgnaceBagilishema
encouraged
thousandsof Tutsimen,
womenandchildren
seeking
refuge
fromtheattacks
inthecommune,
to seeksaferefuge
withinthepremises
ofthecommunal
office
atMabanza.
Manyothers,
whohadfledtothe
hills,
wereontheinstructions
ofIgnace
Bagilishema,
ferried
backtothecommunal
office
in vehicles
belonging
to thecommune
andconfined
to thejailhousetherein
on the
instructions
ofIgnace
Bagilishema.

4.19By11 April
1994,Ignace
Bagilishema
hadplacedcommunal
policemen
outside
the
commune
office
withinstructions
tothemtopreventtherefugees
gathered
therein
from
leaving
thesaidoffice.
Ignace
Bagilishema
alsoinstructed
thecommunal
policemen
to
admit
incoming
refugees
tothecommunal
office."

126
 ~/~ ~

ICTR-95-1A-TI~~
!!
.........................................................................................................................................

Submissions
of theParties

354.At thebeginning
of trialtheProsecution
argued
thatin encouraging
theTutsi
to gather
at thecommunal
office,
theAccused
knewor hadreason
to knowthefate
thatawaitedthem,namely,thattheywereto be sentto Kibuyetownto be
massacred.
426However,
in itsoralclosing
arguments,
theProsecution
conceded
that
there
waslackofevidence
in relation
toparagraph
4.18of theIndictment:

"Ithinkthatmylearned
friend
seemstogettheimpression
that...wearesaying thatthe
witnessesweredeliberately
gatheredat theMabanzaCommuneoffice as a scheme
to
eliminate
them.
Wedon’tsaythat.
Weaccept thatmore
likely
thannot, upuntilthat
time,
hedidthatingoodfaith. Wemakenobones aboutthat.AndI wantthattobecrystal
clear.
Thereisnoevidence
tosuggestotherwise.
Noevidence
tosuggest thatupuntil
that
time,hewasgathering
peopletherewitha viewto,youknow- no,no,no,no.Wesay
thateverything
changed
atthattime,
after thatmeeting,
andeverything that
happens
flows
onfromthere.Wemakethatcleardistinction.
Sowhentheycomeandsaywell, heisa
manofgoodcharacter,
thisdoesn’t
help...I makenobones
about’’427
that.

355.TheProsecution
laterstated:
"Theevidence
at leastadduced
in thiscourt,
whichwe as theProsecution
cannot
manufacture
eventually
hasnotsupported
point
4.18
’’42s
initstotality.

356.TheDefence
submits
thatTutsiwentto thecommunal
office
notas a result
of
theAccused’s
encouragement,
butof theirownaccord,
because
theythought
they
wouldbe safewiththeauthorities.
TheDefence
argues
thatthereis no evidence
to
support
theallegation
thatrefugees
wereferried
inofficial
communal
vehicles
tothe
bureau
communal
andsubsequently
confined
in thejailhouse,
on theinstructions
of
the Accused.
Moreover,
refugees
werefreeto comeand go fromthe communal
office,
429 as shown
bythetestimonies
of Prosecution
witnesses.

Deliberations

357. TheChamber
willfirstsummarise
therelevant
testimonies.

426
Transcripts
of 27October1999pp.27-28.
427Transcripts
of 18October2000pp.65-66.
428Ibid.
pp.73-74.
429Defence
ClosingBriefpp.59-60paras.
497-505.

127
 - ~ ICTR-95-1A-T

t
Witness
AC

358.Prosecution
Witness
AC,afterfleeing
Nyububare
Hill,sought
refuge
at the
bureau
communal
on 10 April1994,whereshefoundotherTutsiandtheirlivestock.
Shetestified
thatonarrival
theconditions
at thecommunal
office
were"badbecause
we hadnothing
to eat".Therefugees
weredivided
intotwogroups,
onein frontof
thecommunal
office
andtheotherneartheso-called
IGAbuilding.
On 12 April,
the
refugees
wereserved
inedible
ricesmelling
of wasteoilfromthecontainer
in which
it wascooked.
Thiswastheonlytimetherefugees
received
ricefromthecommunal
authorities.
Therefugees,
somewiththeircattle,
wereunable
to leaveduring
this
period,
not evento buy foodstuffs,
because
threepolicemen
wereguarding
the
bureaucommunal
compound.
Although
therewas no enclosure
aroundthe communal
office,
thethreepolicemen
"played
theroleof an enclosure
because
theystopped
us
fromleaving".
Nonetheless,
according
to thewitness,
someHutuattackers
wereable
tosteal
43° cattle.

Witness
AB

359.Prosecution
Witness
AB,a Tutsiwomanbornin 1964,testified
thatshesought
refuge
at thebureau
communal
on 9 April1994,withabouttwenty
members
of her
family,
including
herparents.
Herhusband
andchildren
joined
herthenextday.

360.During
hertestimony,
Witness
AB described
how,on 10 April1994,she and
otherrefugees
metwiththeAccused
to explain
to himthatbecause
theirhouses
had
beenpillaged
andtheir
cattle
stolen,
theyhadtaken
refuge
withtheauthorities
atthe
bureau
communal.
TheAccused
toldthemnotto be afraid.
Sincetheywerein the
presence
of authority
theywouldno longerhaveanyproblems.
Whenthe Accused
learned
fromtherefugees
thatsomeTutsi
werestill
in their
homes,
hegavetheorder
thatallremaining
refugees
hadto cometo thecommunal
office
fortheirsecurity
to

430Transcripts
of 18November
1999pp.23and87,respectively.

128
 be ensured.
Laterthatday,thewitness
sawthecommunal
vehicles
-a Hiluxanda
Daihatsu-
transport
somerefugees
to thebureaucommunal.
She explained
thata
certain
Michael,
whowasaboard
oneof thevehicles,
toldherthathe andothers
had
beenfleeing
to the communal
officewhentheywereambushed.
Somepeoplewere
killed,
but Michelmanaged
to getto the vehicle
thattransported
him to the
communal
431
office.

361.Witness
AB testified
thatfrom11 April1994refugees
werenot allowed
to
leave
thecommunal
office.
Shestated
thattherefugees
weretoldthattheyhadtostay
there
fortheir
ownprotection,
soas notto bekilled.
Thewitness
heardtheAccused
ordera policeman
notto allowanyone
out,butto allowrefugees
in.Shenamedtwo
policemen
at the bureaucommunal
as Rwamakuba
and Munyandamutsa.
The witness
testified
thatshedidnotleave
thecommunal
office
until
13 April
1994.
432However,
in herwritten
statement
of 1 February
1996,thewitness
stated:
"OnTuesday,
the
12th,whileI was on my way to the commercial
centreof Rubengera,
I saw
gendarmes
arriving
in Mabanza
commune
at 1 p.m.aboarda red Toyota".
433 This
seemsto contradict
herassertion
thattherefugees
wereprevented
fromleaving
the
compound;
in cross-examination
thewitness
didnotoffera satisfactory
explanation
of thisinconsistency.
434Thefirstmention
of anyrestrictions
on theirfreedom
of
movement
435 occurred
in thewitness’s
second
statement,
dated22 June1999.

362.Witness
AB testified
thaton 11 April1994,because
the children
at the
compound
werestillhungry,a numberof refugees
approached
the Accused
and
askedhimforfood.He ordered
thatricebe distributed
to thechildren.
However,
according
to thewitness,
thericewasuncooked.
Thecansgivento therefugees
for
boiling
thericeinhadremnants
ofcoaltar.
436

431
Transcripts
of 15 November1999 pp. 34-35.
432
Ibid.
p.41.
433 Defence
Exhibit No.2.
434
Transcriptsof 16 November1999pp. 35-41.
435
DefenceExhibitNo. 3.
436
Transcriptsof 15 November
1999 p. 42.

129
 Otherwitnesses

363.Prosecution
Witness
O sought
refuge
at thebureau
communal
on 9 April1994
withhertwochildren
andotherfamily
members,
wheresheremained
until13 April
1994.Thewitness
testified
thattherewereapproximately
1,500refugees
at the
communal
office
during
thatperiod.
Thecowsof therefugees
wereableto grazein a
neighbouring
areacalled
"Nyenyeri".
The owners
of thecowstookthemto graze,
following
437 instructions
of thecommunal
policeman.

364.Defence
Witness
BE stated
thathe wentat leasttwiceto thebureau
communal
to see if therewas anyonetherewhomhe knew.He had convinced
someof the
refugees
at thebureau
communal
to hidein hishouse,
andgavefoodto others.
He
explained
thatwhenthefirstrefugees
arrived
at thecommunal
office
theconditions
werenotbad,butthattheyworsened
whenlargenumbers
of refugees
arrived
with
their
438 livestock.

365.DefenceWitnesses
BE and ZJ bothtestified
abouta communiqud
fromthe
Accused
whichwasreadoutat manychurches,
requesting
thepopulation
to assist
the
refugees.
439Thetwowitnesses
saidthattherefugees,
whoweremainly
Tutsi,
were
freeto comeandgo fromthebureau
communal.
Theircattle
initially
grazed
on land
around
thecommunal
office
andlater,
whenthenumber
of refugees
increased,
at
"Kunyenyeri"
Hill.Witness
ZJ explained
thaton 10 April1994he wentto the
communal
office
andspoketo refugees
whomhe knew.Theytoldhimthattheyhad
gonetothemarket
andhadbeenableto purchase
440
beer.

366.Defence
Witness
RA, who wentto the communal
officeon 11 April1994or
thereabout,
described
thesituation
as "terrible".
ShespokewiththeAccused
for

437
Transcripts
of 24 November
1999p. 79.
438
Transcripts
of27April 2000p.51.
439Ibid.
p.52;andtranscripts
of3 May2000pp.62-63.
440Transcripts
of 3 May2000p. 63.

130
 abouthalfan honr.44I According
to thewitness,
theAccused
hadmadean appeal
to
thecommunity
forassistance
andwasdoingallthathe couldwithin
hispowers
to
manage
thesituation.
He triedto ensure
security
withthefewpolicemen
at his
disposal.
Witness
RA stated
thatafter
theirdiscussion
theAccused
senta policeman
to accompany
oneof thepastors
to themarket
to buysomericeandbeans,
andsaid
thathe woulddo whathe couldto acquire
somefirewood.
Shealsostated
thatshe
knewof certain
442 refugees
whowereableto leavethecommunal
compound.

367.Prosecution
Witness
H testified
thatrefugees
started
arriving
withtheircattle
at thecommunal
office
on a Thursday
andstayed
untilTuesday,
whentheyleftfor
Kibuye
town.He indicated
thaton somedayspersons
brought
themfood.
443

The Accused

368. The AccusedtestifiedthatrefugeesfromKayove,Gisenyi,Kibingo,

Nyagatovu
andKibishito
started
arriving
at thebureau
communal
from8 April1994
onwards.444 By the evening
of 12 April1994,theynumbered
between
1,000and
1,500.
Thesanitary
conditions
werea problem,
there
onlybeing
sixor seven
toilets
at
thecommunal
office.
Regarding
foodfortherefugees,
theAccused
explained
thathe
wasableto obtain
somefooditemsfromMushubati
parish
wheretherewasa storeof
fooddonated
by Caritas.
Thecommunal
authorities
alsobought
somefooditemsat
theKibilizi
commercial
centre
andreceived
helpfromtheSeventh
DayAdventists
andothers.
445

369.TheAccused,
according
to histestimony,
organised
therefugees
intogroups
according
totheireellule
of origin.
Whenever
he hadsomething
to telltherefugees,
he called
their
representatives
to discuss
whatcouldbe done.
If hehadsomefoodto
givethem,the Accused
showedthemwhathe hadand thentheydiscussed
how to

441
Transcripts
of2 May2000
p.18(closed
session).
442
Ibid.
p.20.
443
Transcripts
of19November
1999
pp.14and77.
444
Transcripts
of8 June2000
p.107.
445
Transcripts
of2 June
2000p.94.

131
distribute
it.TheAccused
testified
thatas thecommunal
office
didnothaveany
meansto cookforthe refugees,
he had requested
the localpopulation
to bring
cooking
potsfortherefugees
to do theircooking,
withfirewood
brought
to the
communal
446
office.

370.TheAccused
testified
thatduring
thedaytime
thelivestock
of therefugees
grazed
on landat Nyenyeri,
whilst
at nighttheanimals
werekeptnearthebureau
communal.
The refugeeswerefreeto comeand go from the groundsof the
communal
office,
whichwasnotfenced.
If therewasrelative
calm,manywouldgo
homeduring
thedayandreturn
to thecommunal
office
at nightforprotection
from
theattackers.
447

Findings

371.TheChamber
findsthattheabovewitnesses,
savefor Witnesses
AB andAC,
gavea similar
account
of thetreatment
of therefugees
at thebureau
communal.
According
to their
evidence,
therefugees
began
arriving
oftheirownvolition
atthe
communal
office
withtheircattle
andgoodson 8 and9 April1994.Although
they
arrived
in smallnumbers
at first,
theybeganto arrive
by thehundreds
as security
quickly
deteriorated
in theregion.
By thenightof 12April1994,between
1,000
and
1,500refugees
had gathered
in thecommunal
office
compound.
Thesanitation
and
supply
of foodworsened.
It appears
thattheAccused
struggled
to copeandresorted
to seeking
helpfromthelocalcommunity.
Witnesses
testified
thattheAccused
sent
outa communiqu~
to various
churches
requesting
assistance.
Fooditemsandcooking
utensils,
mainly
pots,werebrought
by members
of thelocalpopulation.
(Witness
AC
saidthattherefugees
wereprovided
withfoodby thecommunal
authorities
onlyon
12 April1994,butthisis notcorroborated.)
Moreover,
theevidence
showsthatthe
refugees
couldcomeandgo,andthattheirlivestock
couldgrazeon grounds
around
thecommunal
office
andin an areacalled
"Nyenyeri"
or "Kunyenyeri".

446
Ibid.
p.95.

132
 372.In relation
to thetestimonies
of Witnesses
AB andAC,thattherefugees
were
unableto leave the bureaucommunal,the Chambermakes the following
observations.
Witness
AB wasexplicit
in herstatement
of 1 February
1996thatshe
wasableto go to theRubengera
commercial
centre
on 12 April1994,despite
having
already
sought
refuge
at thecommunal
office.
Witness
ACtestified
thattherefugees
wereunable
to leave
because
threepolicemen
"played
therole"of an enclosure.
This
isinclear
contrast
withthetestimony
oftheother
witnesses.

373.Apartfromthetestimony
of Witness
AB, no evidence
hasbeenpresented
to
demonstrate
thatthe Accused
"encouraged"
thousands
of Tutsimen,womenand
children
to seekrefuge
at thebureau
communal,
as alleged
in theIndictment.

374.Moreover,
Witness
AB is alonein alleging
thattheAccused
ordered
thatTutsi
wereto be brought
to thecommunal
office.
Shewasalsotheonlywitness
to testify
thatcommunal
vehicles
brought
Tutsito thebureau
communal.
Herevidence
in this
regard
is limited
anddoesnotestablish
thattheAccused
gaveinstructions
that
refugees
whohadfledto thehillshadto be "ferried
back"to thecommunal
office.
No evidence
hasbeenpresented
to support
theallegation
thatindividuals
whomay
havebeen"ferried"
thereweresubsequently
confined
to thecommunal
jail.The
Chamber
takesnotethatthetestimony
of Witness
AB wasin several
respects
at odds
withthatof otherwitnesses
andon onepointalsoinconsistent
withherprevious
written
statement.

375.Considering
alltheaboveevidence,
theChamber
findsthattheallegations
against
theAccused
in paragraphs
4.18and4.19of theIndictment
havenotbeen
established
beyond
reasonable
doubt.

447Ibid.pp,96-97.

133
 ICTR-95-1A-T
.~2~ /~.,.

2.6Meeting
between
theAccused
andthePrefect
on 12 April1994

TheIndictment

376. Paragraph
4.20of theIndictment
reads:

"On12 April1994,Ignace Bagilishema

metwithPrefet ClementKayishema,during
whichthelatter commentedthatMabanza communewasthe onlycommune leftin
Kibuyewith’scumandfilth’.
Therefugees
thathadsoughtrefuge
inthecommunaloffice
inMabanzawereontheinstruction
ofIgnace
Bagilishema
dividedinto2 groups.
Thefirst
groupcomprising
ofintellectuals
wereputina military
truckanddriventowards
Kibuye
andwerenever seenagain.
Thesecondgroupofrefugeescomprising
mostlyofpeasants
weredetainedatthecommunaloffice
inMabanza andweresubsequently
transferred
to
Gatwarostadiumin Kibuye
Townwheretheywerekilled."

377.Onlythefirstsentence
of thisparagraph
relates
to thealleged
meeting
on 12
April1994.
Theremainder
of theparagraph
willbe considered
in section
V.3.1.

Submissions
of theParties

378.The Prosecution’s
caseis thatthe meeting
on 12 April1994between
the
Accused
andPrefect
Kayishema
is crucial
to the demonstration
of thegenocidal
intent
of theAccused.
Thismeeting
andthesubsequent
transfer
of therefugees
from
theMabanza
communal
office
to Kibuye
townshowthattheAccused
waspartyto a
planto exterminate
theTutsi.

379.The Defence
submits
thatKayishema
didnotvisitthebureau
communal
on 12
April1994andthattheAccused
didnotholda meeting
withthe Prefect
on that
448
day.

Deliberations

380. Witnesses
O,AB andZ andtheAccused
testified
in relation
to thisevent.

134
 ICTR-95-1A-T

~ ~~)

Witness
0

381.Prosecution
Witness
O, a Tutsiwomanbornin 1967,testified
thaton 9 April
1994,following
attacks
against
houses
of Tutsi,
shesought
refuge
withhertwo
sisters,
one of whomwaspregnant,
and theirrespective
children
at the bureau
communal.
Theystayed
449 therewithmanyotherrefugees
until13 April1994.

382.Thewitness
testified
thatthree
daysafter
herarrival,
ataround
6 p.m.,
whilst
standing
nextto the building
of thecommunal
office,
she saw theAccused
and
Kayishema,
in thecompany
of gendarmes,
arrive
fromthedirection
of Rutsiro.
She
specified
thatthe Accused,
Kayishema,
one gendarme
and a driverwerein one
vehicle,
a double
cabinpick-up.
Threegendarmes
anda driver
(Nshimyimana)
were
in theothervehicle,
a blueHilux,
whichbelonged
to thecommune.
Thegendarmes
werearmedandworekhakiuniforms
andred berets.
Theyalighted
thevehicles.
Somepersons
saidthatPrefect
Kayishema
hadarrived.
Although
thewitness
hadnot
seenhimbefore,
45° sheknewhimby nameto be thePrefect
of Kibuye.

383.According
to Witness
O, as the arrivals
walkedoverto theIGA building,
wheremanyof therefugees
weregathered,
Kayishema
said"remove
thefilth",
and
addedthatthereweremoreInyenzi
herethanin RutsiroY
1 Thewitness
saidlaterin
hertestimony
thatKayishema
hadusedthewords"dirtandfilth".
452 Shewalked
behind
themwhentheyleftthevehicles.
In cross-examination
sheaffirmed
thatshe
was unaccompanied
whenshe walkedtowardsthe IGA building.
Kayishema,
the
Accused
andanother
person
entered
a roomin thebuilding.
Shewentto a window
so
thatshecouldhearwhattheyweresaying.
Heroldersister,
whowasaboutto give
birth,
453 wasalsonearby.

448DefenceClosingBriefpp.63-65paras.
526-545.
449Transcripts
of 24 November
1999pp.15-16.
450Ibid.
p.17.
451Ibid.TheFrenchversion
reads:
"enlevez
lasalet6;
iciily a plusd’Inyenzi
qu’il
yena ~tRutsiro"

lpp.17-18).
2 TheFrench
version
ofthetranscripts
reads:
"ila faitr6f&ence/i
lasalet6
et/tlavermine"
(ibid.
p.20).

135
 .........................................................................................................................................

384. Witness
O testified
thatshestood
aloneoutside
thewindow
of theroomof the
IGAbuilding
wherea meeting
tookplace.
Although
thecurtains
weredrawnshut,
thereremained
a gapforherto seeinside
thelitroom.Shespecified
in cross-
examination
thattherewas a gendarmein the roomwithKayishema
and the
Accused,who wereseated.According
to the witness,the Accusedsaid,in
Kinyarwanda:

"MrPrefect,
thisplaceistoosmall
andifwekill
allthese people
whoaresomany
here,
thecommune
willbe destroyed
andwewillprefer
to takethemto Kibuye
because
it’s
bigger.
,,454

385.This,according
to thewitness,
wasin replyto thePrefect’s
initial
statement
uponarrival
thatthereweretoomanyInyenzi
there.
Shealleged
thatno oneelse
spokeaftertheAccused,
andthatKayishema
"accepted"
whathe hadsaid.
455The
wholemeeting
lasted
twoto threeminutes,
butthewitness
became
scared
andleft
beforethe mencameoutof theroom.Shetoldmembers
of her familyand other
refugees
whowerenearby
thattheAccused
wanted
to sendthemto Kibuye
townto
bekilled.
There
wasnoreaction
ontheir
part.
Thewitness
saidthatshewasnotable
to circulate
theinformation
morewidely
amongalltherefugees.
4s6Shespentthe
nightatthebureau
communal.
Hersister
gavebirtharound
3 a.m.

386.The witness
explained
thatwhenthe Accused
askedtherefugees
to go to
Kibuyetownthe nextmorning,
the otherrefugees
left,but she stayedbehind
"because
I couldnotleavemy bigsister
behind
andshecouldnotgo allthewayto
Kibuye".
457Therefugees
wholeftincluded
manymembers
of her family:
her two
children,
her fourgrandchildren,
hersister’s
threechildren
and hersister’s
458
husband.

453Ibid.
p.18.
454Ibid.pp.29-30.
TheFrench
version
is moreprecise:
"Monsieur
le pr6fet,
cetendroit
esttrbspetit.
Si
noustuonstousces gensqui sont trbsnombreuxici,la Communesera d6truite,
et mon avis est que
vouslesameniez
h Kibuye,
parcequec’estplusgrand"(p.30).
455Ibid.
p.27.
456Ibid.p.100.
457
Ibid.
p.33.
458Ibid.
p.15.

136
 387. In view of the criticalimportance
of WitnessO’s testimonyto the
Prosecution’s
case,the Chamber
willnow compare
it withher earlier
written
statements
to Prosecution
investigators,
filedas exhibits
in their
textual
entirety.
Thesewereat issueduringhertestimony.
Her firststatement
was takenon 17
October
1995.Shedescribed
howon 11 April1994,whilst
standing
in frontof the
bureau
communal
withhersister,
shesawPrefect
Kayishema
arrive
in theevening
withthreegendarmes
in a vehicle.
Nearby
wasanother
vehicle
withmoregendarmes.
In thisstatement,
unlike
in hertestimony,
shestated
thatshewasoutside
the
communal
office
withhersister,
notalone,
andthatKayishema
arrived
on 11,not12,
April
459 1994.

388.In her subsequent

statement
of 23 and 24 February
1998,Witness
O again
datedtheeventto 11,not12,April1994.In thisstatement
shedescribed
howboth
Kayishema
andtheAccused
cameto thecommunal
office
together
fromRutsiro
with
a gendarme
in an unspecified
vehicle.
Sheaddedthattherewerethreegendarmes
following
in a blueHiluxbelonging
to Mabanza
commune.
Thisversion,
takennearly
fouryears
aftertheevents,
is consistent
withhertestimony,
butdifferent
fromher
statement
46° taken
onlyeighteen
months
after
theevents.

389.In herstatement
of 1995,Witness
O didnotexplicitly
statethatKayishema
hadmadeany derogatory
remarks.
Themeeting
between
himandtheAccused
in the
presence
of three
- notone- gendarmes,
issaidby thewitness
to havetaken
place
in
theoffice
oftheAccused,
notintheIGAbuilding.
Moreover,
thewitness
stated
that
sheoverheard
Kayishema
telltheAccused
thathe and thegendarmes
had cometo
killtherefugees.
Thisformulation
is absent
fromhertestimony
before
theChamber.
Stillaccording
to the1995statement,
theAccused
answered
thattherewasnot
enough
spacein thecommune
buildings
foralltherefugees.
He addedthatif the
killing
wereto be carried
outthere,
thebuildings
wouldbe damaged.
TheAccused
thensuggested
thattherefugees
should
be takento Kibuye
town.Kayishema
toldthe

459Defence
Exhibit
No.11.
460Prosecution
Exhibit
No.62.

137
 ICTR-95
- 1 A-T

.........................................................................................................................................

Accused
to sendthemtherethenextmorning.
However,
in hertestimony
before
the
Chamber,
Witness
O madeno mention
of thesealleged
finalinstructions
by the
Prefect.

390.It wasonlyin herstatement

of February
1998,nearly
twoanda halfyears
afterherinitial
interview,
thatWitness
O first
quoted
Kayishema
as saying,
before
going
intotheIGAbuilding:
"Let’s
getridofthegarbage;
thisplace
hasmoreInyenzi
thanRutsiro."
Thewitness
alsoallegedly
recalled
theAccused
saying
wordsto the
effect
thatMabanza’s
bureau
communal
wastoosmallfortherefugees
to be killed
there.
The1998statement
didnotmakereference
to anyresponse
by theAccused,
or
to anyorders
givenby Kayishema.

391.Theparties
referred
to thetestimony
of Witness
O in thetrialof Kayishema
andRuzindana
(where
herdesignation
wasWitness
WW).Shetestified
in thatcase
on 19 February
1998,a few daysbeforeher aforementioned
statement
of 23-24
February
1998.Butforonesignificant
exception
(below)
thatwritten
statement
reflected
hertestimony
inthe1998trial.

392.The Chambernotesthatthe Kayishema

and Ruzindana
Judgement
doesnot
referto refugees
gathering
at thebureau
communal
in Mabanza,
andno mention
is
madein thatjudgement
of Ignace
Bagilishema,
or of anymeeting
between
himand
Kayishema.
461Thereis alsono reference
in thatjudgement
to thetestimony
givenby
WitnessWW. Nevertheless,
the Chamberhas comparedthe transcripts
of her
testimony
in thetrialof Kayishema
andRuzindana
withhertestimony
in thepresent
case,andhasnotedcertain
differences.
Regarding
thearrival
of Kayishema
andthe
Accused
fromRutsiro,
thewitness,
whentestifying
in theearlier
trial,
didnot
specifically
identify
thetwovehicles.
Shedescribed
thevehicle
of Kayishema
and
theAccused
as beingan "almost
white"
pick-up.
Whenaskedfordetails
aboutthe
second
vehicle,
carrying
thegendarmes,
shestated:
"Wewereso afraid.
We didnot
havetimeto payattention
to vehicles."
She"didnotremember
thecolour
of that

461SeeKayishema
andRuzindana
Judgement,
in particular
paras.
296,304-306
and322.

138 V
/~.lb-
 d/,~-’~x.
~. ~* !P~ ICTR-95-1A-T

".--’--’: :......... "...........

.......
vehicle
. This is m ....................
"----;,’46)-
..... contrast .............
O s;.........
withWitness :...........................
testimony
an thepresent
case,and
herstatement
of February
1998,whereshedescribed
thesecond
vehicle
as a blue
Hiluxbelonging
to Mabanza
commune.

393.Further,
whenin thetrialof Kayishema
andRuzindana,
thewitness
described
themeeting
between
thePrefect
andtheAccused,
sheat firstindicated
thatthere
wereno curtainson the windowof the roomof the IGA building.
In cross-
examination
in thesametrial,
thewitness
saidthatthere
werecurtains,
butthatthey
werenotfullydrawn,
andthatthewindow
waspartly
open.Finally,
againin the
Kayishema
andRuzindana
case,thewitness
estimated
thattheconversation
between
Kayishema
andthe Accused
lasted
between
10 and15 minutes.
By contrast,
in the
present
463 case,
"theentire
conversation"
lasted
between
twoandthree
minutes.

Witness
AB

394.According
to Prosecution
Witness
AB, on 12 April1994,between
4 and 5
p.m.,Prefect
Kayishema
arrived
at the communal
office
witharmedgendarmes
in
khakiuniformsand red berets.The Accusedwas in an officein the bureau
communal.
The witness
was standing
in frontof thecommunal
officetowards
the
avocado
trees.464 ShenotedthatKayishema
wasangryandheardhimsay:"Whatis
thisfilthdoingherein theMabanza
commune?
We havealready
cleared
thefilthin
theRutsiro
commune".
465By filth,
thewitness
understood
"Tutsi".
Therefugees
said
that"wecannot
leave
thisplace,
theyaregoing
tokillUS",
466

395.Witness
AB explained
thatafterhavingmadethosestatements,
Kayishema
andthe gendarmes
entered
thebureaucommunal.
The witness
was unableto hear

462Defence
Exhibit
No.12:Transcripts
ofWitness
WW’stestimony
on 19 February
1998inthetrial
of Kayishema
andRuzindanapp.52 and57.
463
Transcripts
of24 November
1999p. 28.
464
TheEnglish
versionof thetranscripts
of 16 November
1999incorrectly
refersto "peartrees"
(4P6
53).
Transcripts
of 15 November
1999pp.49-50.
Frenchversion:
"Quefaitcettesalet6
icidansla
commune
de Mabanza?
Nousavonsd6j/terdev6
lasalet6
de lacommune
de Rutsiro"
(p.57).

139
 ,_ ICTR-95-1A-T
~,~

.........................................................................................................................................

anything
as thereweretoomanypersons
present.
Aftera while,
Kayishema
andthe
gendarmes
leftthecommunal
office.
TheAccused
leftin a vehicle
soonthereafter.
Immediately
afterthe departure
of Kayishema,
lnterahamwe
armedwithclubs
arrived.
Theythrew
stones
attherefugees
andtried
to steal
their
cattle.
Someof the
refugees
467 wereabletorunawayandhideintheforest.

396.TheChamber
notedabove(V.2.5)
thatWitness
AB gavea picture
thatdiffered
fromthatof otherwitnesses
as to theconditions
at thecommunal
office.
Moreover,
whenthe witness
was questioned
in cross-examination
aboutan inconsistency
between
hertestimony
andherearlier
statement
of 1 February
1996,shegavean
unsatisfactory
reply.
468TheChamber
againnotesthatin thesamestatement
the
witness
gavea description
at variance
withhertestimony:
Kayishema
apparently
spoketwice
withtheAccused,
notjustoncein hisoffice;
andmoreover,
he addressed
therefugees
469 after
having
gathered
themtogether.

397.In hersecond
statement,
of 22 June1999,Witness
AB indicated,
forthefirst
time,thaton 12 April1994Interahamwe
cameto thebureaucommunal.
Theytold
therefugees
thattheysmeltbadandthatthey(theInterahamwe)
wouldcomebackto
cleanup thescumat thecommunal
office.
Around
4 p.m.,Prefect
Kayishema,
the
Accusedand gendarmes
cameto the bureaucommunal.
The Prefectspoketo the
Accused
in thepresence
of therefugees,
saying
thatonlyMabanza
commune
stillhad
scumbecause
elsewhere
thescumhadbeencleaned
up.
47°Kayishema
thenwentinto
theoffice
oftheAccused
andthereafter
leftforKibuye
town.

398.Thus,according
to thewitness’s
second
written
statement,
unlike
thatof 1996
andhertestimony
before
theChamber,
theAccused
arrived
withKayishema
at the
communal
office
andwasnotalready
therewhenKayishema
arrived.

466Transcripts
of 15 November
1999p. 51.Frenchversion:"Caen estfaitde nous,nousavons6t6
livr6s,
nousnepourrons
passortir
d’ici,
ilsvontnoustuer"
(p.59).
467Ibid.
pp.52-53.
468Transcripts
of 16 November
1999pp.39-40.
469
Defence
Exhibit No.2.
470Defence
Exhibit No.2.

140
 399.Prosecution
Witness
Z, a Hutu,wasat thetimeof histestimony
detained
in
Rwanda
forhaving
confessed
to killing
threepersons
in Mabanza
commune
in 1994.

400.Witness
Z testified
thaton thenightof 12 April1994Prefect
Kayishema
came
in hisvehicle
to thebureau
communal.
Thewitness,
whowasthenat a placecalled
Gitikinini
(morethan150meters
away),
wentto seeif Kayishema
wouldaddress
the
refugees.
He arrived
as theAccused
andthePrefect
cameoutof theAccused’s
office
to standin thecourtyard
of thebureau
communal.
TheAccused
askedtherefugees
to
comecloser
andsaid:

"ThePrefect
hasjustsaidthatforreasons
ofyourownsecurity
youshould
allgoto
Kibuye
becauseherethere
arenotenough persons
toensureyoursecurity
whereas
in
Kibuye
therewillbeenoughpeople
to protect
you.Soyoushould
betherebytomorrow
morning
’’471 at[the]stadium,
Kibuye
stadium.

401.Witness
Z testified
thatKayishema
didnothimself
address
therefugees.
The
witness
addedthattwoassistant
bourgmestres
anda conseiller
werepresent,
in
addition
to theAccused
andKayishema.
AftertheAccused
spoke,
Kayishema
leftin
a vehicle
withgendarmes.

402.Witness
Z, whosecredibility
hasbeenquestioned
in otherpartsof thepresent
Judgement
(seein particular
V.4.2,
V.5.5and5.6)madea written
statement
on
September
1999.
472Although
thisstatement
wastakenlessthanfivemonths
before
histestimony
incourt,
thereareinconsistencies
between
thetwo.Witness
Z indicated
in his statement
thathe learnedthatPrefectKayishema
was at the Mabanza
communal
office
and"Ithuswentthere,
as manyothers,
to hearwhathe hadto say".
Hethenstated:

"Addressing
therefugees,
he saidthathe wasgoingto lookintotheirproblem
[together]
withthe Bourgmestre;
I waspresentwhenhe saidthat.He andthe Bourgmestre
wentinto

471
Transcripts
of 9 February2000p. 22.
472DefenceExhibit No. 65.

141
 thelatter’s
office.
Whentheycameout,theBourgmestre
tolda policeman
toblowhis
whistle
toattract
thepeople[’s]
attention.
Headdressed
therefugees
andtoldthemto
spend
thenightatthecommune
office,adding
thatthey
weretoleave
veryearly
thenext
morning
473 forKibuye
stadium,
where
theirsecurity
would
beensured".

403.Thus,according
to WitnessZ’s writtenstatement,
Kayishema
himself
addressed
thecrowdof refugees
before
goingintotheAccused’s
office.
According
to
Witness
Z’stestimony,
by contrast,
thewitness
arrived
at thebureau
communal
when
theAccused
andKayishema
wereexiting
thebuilding;
andit wastheAccused
who
addressed
thecrowd.
(Inthe1999statement
thereis alsomention
of a whistle
used
by a policeman
to gather
therefugees,
a factomitted
during
testimony.)

OtherWitnesses

404.Prosecution
Witness
A, who tookrefugeat the bureaucommunal
for three
days,
until
he leftforKibuye
townwiththeother
refugees
in themorning
of13 April
1994,testified
thathe didnotseeKayishema
at thebureau
communal
during
this
period.
474Prosecution
Witness
AC,a refugee
at thecommunal
office
from10 to 13
April1994,madeno mentionof a visitby Kayishema.
A numberof Defence
witnesses
whowerein Mabanza
commune
duringthisperiod,
including
Witnesses
RA,BE,KA andAS,alsodidnot indicate
thattheywereawareof a visitby the
Prefect.

405.Finally,
in contrast
withWitnesses
O, AB andZ, Prosecution
Witness
G, who
in thisperiod
hadsought
refuge
at thebureau
communal,
referred
in hertestimony
notto a meeting
butrather
to a telephone
conversation
between
thePrefect
andthe
Accused.
475Thewitness
affirmed
therelevant
passage
in herpriorwritten
statement
of 19 June1999,whichreads:

"Before
they[theattackers
fromRutsiro
andKivumocommunes]
came,bourgmestre
Bagilishema
telephoned
Prdfet
Kayishema
andasked
formilitary
reinforcements
toguard

473
Ibid.
474Transcripts
of17 November
1999p. 71.
475Transcripts
of26January2000(Closedsession)
pp.33-34.

142
 t G4.o
therefugees
at theMabanza
communeoffice.
ThePrOfet
answered
thathe wastheonly
onewith’scum’in hisareato sendhimthescumforcleaning.
Theseremarkswere
reported
toPastorSimron...whointurninformed
thepeople
hewashidinginhishome
about
’’476
theremarks.

The Accused

406.TheAccused
testified
thatin theevening
of 12 April1994he wassupervising
nightpatrols.
On hisreturn
to thebureau
communal,
he wasastonished
to seethat
morethan100refugees
fromRutsiro
hadbeensenttherein a busby theprefectural
authorities.
TheAccused
telephoned
thePrefect,
eventhough
it wasaround
midnight,
foranexplanation.
477

407.TheAccused
testified
thathe hadaskedthePrefect
on several
occasions
for
security
reinforcements,
whichhe didnotreceive.
He hadalsoaskedthattherelief
organisations
be alerted
so thattheycouldcometo theassistance
of therefugees.
Instead,
morerefugees
werebeing
sentto thecommune.
478

408.TheAccused
toldthe Prefect
on thephonethathe wasunable
to workunder
theseconditions,
whenno reinforcements
wereforthcoming,
especially
in viewof
rumours
of an imminent
attack
on Mabanza
commune.
If thesoleresponsibility
for
thepopulation
wereplaced
on him,he wouldrather
resign.
He askedthePrefect
to
seethesituation
forhimself.
479TheAccused
added:
"I expressed
thisandI eventold
himthatI wasgoingto bringhimthekeysof thecommune
thefollowing
dayon the
13thbecause
’’48° I wastired
ofworking
inthatmanner.

409.The Accused
asserted
thathe did not see the Prefecton 12 April1994.
However,
theAccused
indicated
thathe hadbeeninformed
thaton thisparticular
day
thePrefect
hadpassed
by thecommunal
office
on theroadon hiswayto Rutsiro,
but

476
Prosecution
Exhibit
No.65.
477
Transcriptsof 5 June 2000 pp. 29-30.
478 Ibid.p. 30.
479 Ibid.p. 32.
480Transcripts
of8 June
2000
p.188.

143
 thatKayishema
"didn’t
evenwantto lookat thebureau
481
communar’.

Findings

410.As discussed
above,
therearea number
of inconsistencies
in thetestimonies
of Witnesses
O, AB andZ. Notonlyaretherediscrepancies
amongthetestimonies
of
these
threewitnesses,
there
arealsodifferences
between
thestatements
given
by each
witness
andthatwitness’s
testimony.

411.The Chamber’s
pointof departure
whenassessing
the accountgivenby a
witness
ishisorhertestimony
incourt.
Itshould
be recalled
thatdifferences
between
earlier
written
statements
andlatertestimony
in courtmaybe explained
by many
factors,
suchas thelanguage
used,
thequestions
puttothewitness
andtheaccuracy
of interpretation
andtranscription.
Theimpact
of trauma
onthewitnesses
should
not
be overlooked
(see,in general,
aboveII.2).
However,
somediscrepancies
cannot
thusexplained.

412.WitnessO, uponwhomthe Prosecution

reliesmostheavily,
presented
a
contradictory
account.
According
to hertestimony
before
theChamber
andher1998
statement,
theAccused
travelled
to Mabanza
commune
fromRutsiro
withKayishema
andgendarmes
in twovehicles,
including
a blueHiluxbelonging
to thecommune.
Thewitness
wasalonewhenshesawthemarrive
andwhensheoverheard
Kayishema
speakof "scumand filth".
Themeeting
between
theAccused
andthePrefect
took
placein theIGAbuilding,
whichis some150to 200metres
awayfromtheAccused’s
office.

413.By contrast,
according
to her1995statement,
thewitness
waswithhersister
whenKayishema
arrived.
Thewitness
wasnotexplicit
as to anyderogatory
remarks
by thePrefect.
Thecontext
of herstatement
indicates
thathe wasunaccompanied
by
theAccused.
Thereis no mention
of a communal
vehicle.
Themeeting
between
the
Accused
andKayishema
tookplacein theoffice
of theAccused
(which
wasnotin
theIGAbuilding).
Here,
according
tothestatement,
thePrefect
toldtheAccused
that

48l
Transcripts
of5 June2000pp.39.

144
 ~#,~,~ ICTR-95-1A-T

.........................................................................................................................................

he had comewiththe gendarmes

to killthe refugees.
Duringtestimony
in the
Kayishema
andRuzindana
casein 1998,givenfourdaysbefore
her second
written
statement,
Witness
O wasaskedaboutthetwovehicles
thatarrived
at thecommunal
office.
Sheanswered
thatshewastooafraid
to payanyattention
to thevehicles
and
didnotknowthecolour
of thesecond
vehicle;
in hersecond
statement
andin her
testimony
inthepresent
trial
shestated
thatitwasa blueHilux.

414.In bothherstatements
andhertestimony
thewitness
is consistent
aboutthe
Accused’s
remark
thattherefugees
should
notbe killed
in thecommune
butshould
be takento Kibuye
town.However,
onlyaccording
to her 1995statement
didshe
hearKayishema
tellthe Accused
to sendthe refugees
to Kibuyetownthe next
morning.

415.Witness
AB,forher part,testified
thatKayishema
cameto Mabanza
commune
unaccompanied
by theAccused.
He wasangry,
uttered
derogatory
remarks
aboutthe
Tutsi,
referring
tothemas"filth",
andthenmetwiththeAccused
in hisoffice.
The
witness
didnotobserve
themeeting.
However,
according
to her1996statement,
whileKayishema
arrived
alone,
he metoncewiththeAccused
outside
thebureau
communal
afterhaving
firstgathered
therefugees.
He thenwentintotheoffice.
By
contrast,
in thestatement
of 1999,Witness
AB statedthattheAccused
himself
arrived
fromRutsiro
withKayishema.
Then,in frontof therefugees,
theyspoke
between
themselves
aboutthefilthto be cleaned
up,afterwhichtheyhada meeting
in theoffice
oftheAccused.
Again,
theChamber
notes
several
differences.

416.Witness
Z stated
in histestimony
of 8 February
2000that,
fromhislocation
at
Gitikinini,
he sawKayishema’s
car.He wentto thebureau
communal
in timeto see
theAccused
comeoutof hisoffice
withthePrefect.
Unlike
Witnesses
O andAB,
Witness
Z testified
thattheAccused,
withKayishema,
gathered
together
therefugees
andtoldthemthattheyshould
travelto Kibuye
townthenextday.In his1999
statement,
thewitness
didnotseeKayishema’s
car,butrather
wastoldofhisarrival
at the commune.
Witness
Z’s statement,
in further
contrast
withhistestimony,
continues
thatKayishema
addressed
therefugees
before
going
intotheoffice,
andnot

145
 ~q~E,J~ ICTR-95-1A-T
~ ~’b, ~.,
\4

onlyafterthemeeting
withtheAccused;
andthestatement
mentions
a policeman
blowing
a whistle
togather
therefugees,
a detail
absent
fromthewitness’s
testimony.

417.WitnessZ, unlikeWitnesses
AB and O, did not mentionany derogatory
remarks
madeby Kayishema,
either
in hisstatements
or in histestimony.
However,
in his1999statement,
thewitness
explained
thatthePrefect
addressed
therefugees,
saying
thathe and theAccused
weregoingto lookintotheirproblems.
No other
witness
presented
a similar
account.

418.The Chamber
hasnotedthatWitnesses
O, AB andZ maintained
thattherewas
a meetingbetweenthe Kayishema
and Accusedon 12 April1994.As mentioned
above,
thecredibility
ofWitnesses
AB andZ hasbeenquestioned
in relation
toother
events.
Moreover,
thetestimonies
givenby thethreewitnesses
before
theChamber
differ
in various
respects,
andovertime.Evenif someof thedifferences
maybe
explained
by thepassage
of time,trauma
suffered
by witnesses,
andthecontext
in
whichquestions
wereposed,
theChamber
findsthatso manyinconsistencies
give
risetodoubtas totheaccuracy
of anyoneversion
concerning
thealleged
meeting
of
12 April1994.Evenassuming
thattherewas sucha meeting,
onlyWitnessO
supposedly
overheard
theconversation
between
thetwomen.Butshegavediffering
accounts
as to wherethemeeting
tookplace,
andshewastheonlywitness
during
the
trial
totestify
thatit occurred
in theIGAbuilding.
Furthermore,
shewastheonly
witness
whotestified
thatKayishema
andtheAccused
arrived
together
at thebureau
communal.

419. Two Prosecution

Witnesses,A and AC, who were also at the bureau
communal
during
thepertinent
period,
didnotrecall
anyvisitbyKayishema.
Thefact
thattheydid not see Kayishema
at the communal
officedoesnot excludethe
possibility
thathe wasthere.
However,
theChamber
is of theviewthata meeting
involving
themostsenior
executive
authorities
of thePrefecture
andthecommune
at
sucha critical
timewouldhavebecome
general
knowledge
amongtherefugees
at the
bureau
communal.
Further
doubtis addedby Prosecution
Witness
G, whoreferred
nottoa meeting
butto a telephone
conversation
during
whichthePrefect
stated
that

146
 ~~f\’~@~ .,~

ICTR-95-1A-TI6~

theAccused
wastheonlyoneleftwith"scum"
in hisarea.

420.Another
remarkable
feature
of the evidence
is Witness
O’s claimto have
overheard
a conversation
to theeffect
thattherefugees
wereto be transported
to
Kibuye
townwheretheywouldbe killed.
Thisinformation
wasvitalto thesurvival
of therefugees.
Thewitness
stated
thatsheinformed
herfamily
members
andother
refugees
nearby.
However,
thereis no evidence
beforetheChamber
thatthe few
refugees
whoallegedly
received
thisinformation
discussed
it amongthemselves,
passed
it on to otherrefugees,
or declined
to leavethebureau
communal
forKibuye
town.Askedwhyshe did not departMabanza
commune
thenextmorning
withthe
otherrefugees,
Witness
O stated,
incongruously
in theChamber’s
view,thatshehad
to staybehind
to attend
to hersister
whohadjustgivenbirth.
Herotherfamily
members
leftforKibuye
town.

Conclusion

421.Taking
all theaboveintoaccount,
the Chamber
findsthatit has notbeen
established
beyond
reasonable
doubtthaton 12 April1994theAccused
andPrefect
Kayishema
helda meetingat the Mabanzabureaucommunalduringwhichthey
discussed
how to killthe Tutsiwho weregathered
at the communaloffice.
Consequently,
theallegation
in thefirst
sentence
of paragraph
4.20of theIndictment
hasnotbeendemonstrated.
Theremainder
of paragraph
4.20,concerning
thedivision
oftherefugees
intogroups
andtheir
transfer
toKibuye
town,
willbe considered
next.

147
3. Eventsin KibuyeTown from 13 to 19 April1994

3.1 Movementof Refugeesfrom Mabanza CommunalOffice to Kibuye Town

The Indictment

422. Thiseventis covered

in paragraphs
4.20to 4.22of theIndictment:

"4.20...Therefugees
thathadsought refugein thecommunal
officein Mabanza
wereon
theinstruction
of IgnaceBagilishema
dividedinto2 groups.
Thefirstgroupcomprising
of
intellectuals
wereputina militarytruckanddriventowardsKibuye
andwerenever seen
again.Thesecondgroupof refugees
comprising
mostlyof peasants
weredetainedat the
communaloffice
in Mabanza andweresubsequentlytransferred
to Gatwarostadium in
KibuyeTownwheretheywerekilled.
4.21On or about13 April1994,IgnaceBagilishemaordered
membersof the Tutsi
population,
whoat hisrequest,
hadgathered
at thecommunal
officeforprotection,
to go
to Gatwaro
stadiumin KibuyeTown,Gitesicommune.
4.22On arrival
in Kibuyetown,Gitesi
commune,
on 13 April1994,Ignace Bagilishema
actingin concertwithothersincluding ClementKayishema, SemanzaCelestin,
NsengimanaApollinaire,
NzananaEmileandMunyampundu,dividedtherefugees into
twogroups.Ignace
Bagilishemaordered
thefirstgroupto seekrefugeat theCatholic
ChurchandHomeSt.Jeancomplex(hereinafter
’thecomplex’);andthesecond group
Gatwarostadium
(hereinafter,
’theStadium’)
bothin Kibuye townGitesi
commune."

Submissions
of theParties

423. The Prosecutionallegedthat on 13 April 1994 the Accusedorderedthe

refugees
gathered
at thebureaucommunal
to go to the Stadiumin Kibuyetown.The
Accusedfollowedthem in the communalvehicle,and policemenpreventedthe
refugees
fromdeparting
fromthemainroad.Whentherefugees
reachedthetown,the
Accused,in concertwith others,dividedthem into two groups.One groupwas
directedtowardsthe Home St. Jean complex,the othertowardsthe Stadium.The
Prosecution
submitted
thattheAccusedactedpursuant
to a plandecideduponat a
meetingwith PrefectKayishemaon 12 April1994,and that the Accusedknew or

oughtto haveknownwhatwouldhappento therefugees

in Kibuyetown.482

482See,inparticular,
Prosecution’s
written
Closing
Remarks
pp.27-28
paras.
166-173,
p.29paras.
179-184,
pp.59-62
paras.
330-339
andpara.
345.

148 ~,~/j
.....
_............................
16s4
"Ithinkifyouacceptthatthegenocidal
intenthasbeenformedonthe12thApril,...itis
immaterialwhetheror nothe wasfollowing themin a vehicle.Whichwasallin the
schemeof things.If he didn’t
follow themhimself, he askedthecommunalpoliceto
follow
them....[I]sitmaterialalsoto thiscasethattheAccusedwasperhaps
standing
at
theroundabout
in Kibuyedirecting
thegendarmesto sendthesepeople
in onedirection
or
the3
’’48
other?
I sayno.

424.Duringfinalclosingarguments,
the Prosecution
emphasised
that"it was all
donepursuant
to a schemeto getthesepeopleto KibuyeStadium,
a schemethatthe
Accused
was partyto,havingagreedwiththePrefect".
484 Lessemphasis
wasputon
theallegation
thattheAccused
himself
accompanied
therefugees.

425. The Defencesubmittedthatthe Accuseddecidedin the morningof 13 April

1994,following
a telephone
callfromthebourgmestre
of Rutsiro,
to advise
refugees
to go south,towardsKibuyetown,as he fearedthat they wouldbe attackedby
Abakigacomingfromthe north.The Accuseddidnotordertherefugees
specifically
to go to KibuyeStadium,and he did not accompanythem therehimself.For the
Defence,
had the Accusednot sentthe refugeesto Kibuyetown,they would,more
likelythan not,havebeenkilledby the Abakigawho attacked
Mabanzacommuneon
13 April1994and on following
days.Consequently,
the Accuseddidwhathe could
to savethe refugees.
The Defence
admitted
thattheAccusedaskedtwopolicemen
to
escort the refugeeshalfway,to the border of Gitesi commune.The Accused
telephoned
PrefectKayishema
to informhim of the arrivalof the refugees
and to
ensure
485 thatthePrefect
wouldprovide
an escort
fortherestof thejourney.

Deliberations

Witnesses

426. Prosecution
WitnessA, AB, AC, G, K and O had all soughtrefugeat the
Mabanzabureaucommunal
in therelevant
period.

483
Ibid.
p.51.
484Transcripts
of18October
2000p.49.
485See,
inparticular,
Defence
Closing
Brief
pp.65-67
paras.
547-566
andp.73paras.
613-620.

149 ~. ~,/,
 ............................................................................................................................

427. WitnessA testified

thatin the momingof 13 April1994the Accused
addressed
therefugees
andtoldthemto go to Kibuye
wheretheywouldbe safe.
486

Therefugees
departed
on footalongthemainroad.According
to thewitness,
the
Accused
followed
in a vehicle.
487Witness
A wastheonlywitness
to havemadethis
allegation,
whichwillbe examined
in greater
detail
below(V.3.2).
Thewitness
testified
thatat theKibuye-town
roundabout,
gendarmes
directed
refugees
towards
theHomeSt.Jeancomplex.
Theroadleading
to theStadium
eventually
wasopened
andthegendarmes
directed
488 refugees
towards
theStadium
by shooting
intotheair.

428.Witness
AC testified
thaton Wednesday
13 April1994,at 8.30a.m.,the
Accused,
in thecompany
of a communal
policeman,
raised
a flagandassembled
the
refugees
by blowing
a whistle.
489TheAccused
toldthemthattheywereto takethe
roadto Kibuye
town,where"theauthorities
hadthepossibilities
of ensuring
their
security
andthat...oursecurity
would
be ensured
by thesoldiers
inKibuye".
490 The

refugees
werenotto usethepathways
thatwentthrough
thehills.
491Thewitness
and
herfamily
madethejourney
withtheother
refugees.
Shestated
thatthere
was"along
queueof animals
and persons,
whoever
couldmoveforward
moved,therewas no
particular
orderin whichpeople
wentabout".
492On arriving
at thetownroundabout,
gendarmes
directed
therefugees
to theStadium.

429.Witness
O testified
thaton 13 April1994at around6 a.m.,the Accused
organised
a meeting
in front
oftheIGAbuilding.
493He saidthattherefugees
"should
go to theKibuyestadium"
wheretheirsecurity
couldbe ensured
andwherethey
couldbe assisted.
He alsostated
thattherewasnotenough
spaceat thecommunal
office,
494 thattheplacewasbecoming
dirtyandthatsomepeople
werefalling
sick.
Therefugees
leftshortly
thereafter.
Thewitness
stayed
in Mabanza
commune
to care

486
Transcripts
of17 November
1999p.11.
487
Ibid.
p.13.
488Ibid.pp.17-18.
489
Transcripts
of 18 November
1999p. 33.
490Ibid.
p.101.
491Ibid.
p.33.
492
Ibid.
p.34.
493
Transcripts
of 24 November
1999pp.32 and101-102.
494Ibid.
p.32.

150
 :~ ~’~’~ ICTR-95-1A-T

forhersister
whohadgivenbirththenight
before.
ShedidnotknowiftheAccused
or gendarmes
accompanied
495 therefugees.

430.Withreference
to thenightof 12 April1994,Witness
AB testified
thatthe
Interahamwe
arrived
at the communal
office.
Theywerearmedwithclubs,threw
stones
attherefugees
andtried
to steal
their
COWS.496 NO other
witness
recalled
such
an incident.
Thenextmorning,
according
to Witness
AB, at 6 a.m.,she hearda
whistle;
theAccused
gathered
therefugees
together
andtoldthemto go to Kibuye
townas therewasnotenough
foodor spaceat thecommunal
office
andtherewasno
onetoensure
their
security.
497Therefugees
responded
thattheyfeared
beingkilled
alongthe way,for already
theyhad beenattacked
at the communal
office.
The
Accused
saidthatif therefugees
remained,
attackers
wouldarrive
andkillthem
there.498 According
to the witness,
theAccused
addedthathe wouldprovide
the
refugees
withgendarmes
to accompany
them,and thatnothing
wouldhappento
them.TheAccused
alsosaidthatallrefugees
wholefttheroadshould
be foundand
askedto jointhemain group.
499Therefugees
leftthecommunal
office
on foot.
Gendarmes
stayed
s°° withthempartof theway.

431.Witness
AB did notgo to Kibuye
town.At Kayenzi,
sheboarded
a bustaking
soldiers
to Kigali.
Thesoldiers,
learning
thatthewitness
hadbeengoing
to Kibuye
town,warned
hernotto go thereas thesecurity
situation
waspoor.
Thewitness
got
offatGitikinini
(inMabanza
commune)
andwenttohidein a sorghum
5°1 field.

432.Witness
K testified
thatearlyin themorning
of 13 April1994theAccused
announced
to therefugees
thattheInterahamwe
wouldkillthemif theystayed
at the
communal
office,
forhe didnothaveenough
soldiers
to protect
them.TheAccused
toldthemto go to Kibuye
townwheretherewereenough
soldiers
to ensure
their

495Ibid.
pp.32-33.
496Transcripts
of 15 November
1999pp.52-53.
497Ibid.
pp.53-54.
498Ibid.
p.54.
499
Transcripts
of16 November
1999p. 66.
5ooTranscripts
of 15November
1999pp.56.
501Ibid.
pp.58-62.

151
 ..........................
!6
436.Of otherHuturesidents
of Mabanza
commune,
Prosecution
Witness
Z testified
thaton 13 April1994thekilling
hadalready
begun,
particularly
around
Gitikinini.
PeoplecamefromGiharaand Mushubati.
They"wereBakigapeople",
who chased
and killedall Tutsitheymet on theirway.
51° Prosecution
Witness
I, without
specifying
511 a date,
also
testified
toseeing
attackers.

437.A numberof Defence

witnesses
testified
aboutattacks
in Mabanza
commune
following
thedeparture
oftherefugees
forKibuye
town.

438.Witness
RA spokeof Abakiga
arriving
in thecommune
on or after13 April
1994.
51zWitness
ZJ wastoldby tworefugees,
at around
7 a.m.(dateunspecified),
thatthosegathered
at thebureau
communal
haddeparted
thatsamemorning.
Thetwo
refugees
hadstayed
behind
to gather
theirproperty.
Theytoldhimthattheywould
follow
theotherrefugees
as therewasno longer
anysecurity
in thecommune.
Their
explanation
wasthatsomerefugees
fromRutsiro
andMushubati
hadsaidthatthey
hadseenmanypeoplepursuethem,and thatif thosepeople
arrived
in Mabanza
commune
therewouldbe no security.
Thetwo hadtherefore
decided
to go to the
Prefecture
513 where
theywould
be afforded
better
security.

439.Witness
TP testified
thatonemorning
around
13 April1994,between
9 and10
a.m.,he saw manypersons,
somecarrying
sticks,
others
machetes,
goingtowards
Kibuye
townon footwiththeircattle.
According
to thewitness,
theyweregoingto
thetownof theirownfreewill.Therefugees
werenotledby police
or gendarmes,
norweretheybeingattacked.
514Thewitness
stated
thathe didnotseethecommunal
vehicle
or theAccused
alongtheroute.
51sLater,
afterhe returned
home,twoTutsi
whomhe knewcameto visithim.Theysaidthatdueto insecurity
in Rutsiro
they
werefleeing
theAbakiga.
In Mabanza
theydidnothavesufficient
protection
because

510Transcripts
of8 February
2000p.20.
51I
Transcripts
of 23 November
1999p. 32.
512Transcripts
of2 May2000p.43.
513
Transcripts
of 3 May2000pp.67-68.
514~
lranscnpts
of 27April2000pp.136-137.
515Ibid.
p.146.

153
 ~ ~ ~’~’~ ICTR-95-1A-T
~

t6 l
security.
5°2Therefugees
leftimmediately,
although
without
Witness
K. Shewentto
fetchhermother
andfourchildren
whowerehiding
elsewhere.
Seeing
a largegroup
of attackers
5°3 approaching,
theytoosetoutforKibuye
town.

433.In theKibilizi
sector,
around
10 a.m.,Witness
K andherfamily
cameacross
theAccused
andothers
in a vehicle.
"Itoldthemto takeme to Kibuye
andtheytold
metheywerenotgoingthere.
’’5°4
Theywerenevertheless
takena veryshort
distance
by theAccused,
after
whichthewitness
andherfamily
fledthrough
thehills
towards
Kibuye
town.Before
reaching
thetowntheyturned
backandlaterhidin a banana
5°5
plantation.

434.Witness
G testified
thaton 11 April1994,at around8 a.m.,the Accused
addressed
therefugees
in thegrounds
of thebureau
communal.
He toldthemto go to
Kibuyetownwheretheywouldbe betterprotected.
5°6 Witness
G walkedamong
thoseat thefrontof thecolumn
of refugees.
ShedidnotseetheAccused
alongthe
way.At the roundabout
shesaw gendarmes.
Shetestified
thatsheknewnothing
aboutrefugees
beingdirected
to HomeSt.Jean.Shecontinued
on theroadto the
5°7
Stadium.

435.Prosecution
Witness
AA,a Huturesident
of Mabanza
commune,
testified
that
therefugees
lefton footfor Kibuye
townwiththeirlivestock,
accompanied
by
soldiers
andgendarmes,
s°8According
to thewitness,
"...thereweresomegendarmes
andsoldiers
whowanted
to kill[therefugees]
thereat theCommunal
office
but
Bagilishema
saidI willbe sending
youto Kibuye
andthatis wherethePrefet
is
goingto resolve
yourproblem".
5°9Thisallegation
wasnotcorroborated
by another
witness.
Thereliability
of Witness
AA’stestimony
is called
intoquestion
below
(V.3.4).

502
Transcripts
of25 January
2000p. 88.
503Ibid.
p.52.
5o4Ibid.
p.53.
5o5Ibid.
pp.53-54.
5o6Transcripts
of26 January
2000p. 12.
5o7Ibid.
p.49.
508Transcripts
of 10February
2000pp.12-15.
5O9Ibid.
p.13.

152
these
516 attackers
wereveryfast.
Hence
theywould
seekrefuge
at thePrefecture.

440.DefenceWimessBE testified
thatthe refugeesbeganleavingMabanza
commune
in themorning
of 13 April1994.He didnot knowwhy theyleftor why
theywentto Kibuye
town,though
he hadheardthatthesecurity
forces
of Mabanza
communewerenot in a position
to protectthe refugees
fromthe advancing
attackers.
517Thewitness
saidthattheAbakiga
arrived
about
onehourafterthelast
refugees
hadleft,around9 a.m.He saw themsearching,
looting
and destroying
houses.
The witness
saidhe hid fromthem,eventhoughhe was a Hutu,as the
Abakiga
had announced
thatHutuwho didnotco-operate
withthemwouldalsorun
into
518 trouble.

The Accused

441.TheAccused
testified
thatearlyin themorning
of 13 April1994he received
a
telephone
callfromthe bourgmestre
of Rutsiro
commune,
informing
him of the
imminent
arrival
in Mabanza
of attackers
fromthenorth.
519TheAccused
thereupon
askeda policeman
to assemble
therefugees
by blowing
hiswhistle.
TheAccused
climbed
on a stackof woodandtoldtherefugees
thattheywerein danger
because
assailants
in large
numbers
werecoming
to killthem.
52°He advised
themtogo south,
specifically
to Kibuye
town,
where
theauthorities
could
provide
better
protection.
He
askedtwopolicemen
to accompany
therefugees
halfway
to Gitesicommune,
this
beinga distance
of approximately
tenkilometers.
The Accused
remained
at the
bureaucommunalwithone policeman.
He did not havetime to contactthe
gendarmes
stationed
521 in Mushubati.

442.TheAccused
explained
thathe thought
therefugees
wouldbe better
protected
in Kibuye
townbecause
a company
of gendarmes
wasstationed
there.
He thought
his
decision
wascorrect
giventhesituation,
andthattherewouldhavebeena massacre

516Ibid.
p.140.
517Ibid.
p.58.
518Ibid.
pp.59-64.
519
Transcripts
of5 June2000p.32.
520Ibid.
p.35.

154
 ICTR-95-1A-T

!
............................................................................................................................
had the refugees
stayedat the Mabanzacommunal
office.Afterspeakl~g~
the

refugees,
theAccused
testified
thathe called
Prefect
Kayishema
at around
6.30a.m.
to inform
himthatthe refugees
wereon theirwayto Kibuye
townbecause
of the
threat
of attack
by persons
coming
fromRutsiro
commune.
He alleged
thathe had
asked
522 thePrefect
to ensure
thesecurity
oftherefugees
travelling
toKibuye
town.

Findin_.gs

443.The evidence
establishes
thatearlyin themorning
of 13 April1994,the
Accused
addressed
therefugees
andtoldthemthattheyshould
go to Kibuye
town
where
theauthorities
would
ensure
their
security.
Therefugees,
withtheir
livestock,
as wellas two communal
policemen
thereupon
leftfor the townon foot.The
Chamber
hasnotedthatWitness
O testified
thattheAccused
specifically
directed
the
refugees
to go to Kibuye
Stadium.
Thereliability
of hertestimony
hasbeencalled
intoquestion
above(V.2.6).
Moreover,
sheis notcorroborated
on thisparticular
point.
Therefore,
ithasnotbeenestablished
thattheAccused
ordered
therefugees
to
go totheStadium,
as alleged
inparagraph
4.21oftheIndictment.

444.It is thecontention
of theProsecution
thattheAccused
actedpursuant
to a
planto massacre
therefugees,
andtherefore
knewor oughtto haveknownwhatwas
goingto happento themat KibuyeStadium.
However,
theChamber
has concluded
thata meeting
between
Kayishema
andtheAccused
at whicha planwasagreed
upon
hasnotbeenproved
beyond
reasonable
doubt(V.2.6).
TheAccused
testified
that
acted
outof concern
forthesafety
of therefugees
gathered
at thecommunal
office
as
he hadbeeninformed
by thebourgmestre
of Rutsiro
aboutimminent
attacks.
Several
witnesses
confirmed
thatin themorning
of 13 April1994theAccused
referred
to
attackers.
Witnesses
K, Z and BE actually
sawattackers
or AbaMgain Mabanza
commune
thatmorning.
Witness
ZJ testified
in the sameway on the basisof a
conversation
withtworefugees.
Otherwitnesses
gavesimilar
testimonies,
butwere
lesspreciseaboutthe date.Moreover,
refugees
who remained
at the bureau
communal
werekilledby attackers
on 13 and 14 April(seeV.4.3).
Underthese

521
Ibid.
pp.39-40.
522Ibid.
pp.37and40-41.

155
~(~’, ~
ICTR-95-1A-TI6z~
.......................................................................................................
i ....................
circumstances,
theAccused’s
explanation
cannot
be rejected
as implausible,
evenif
thewitnesses
didnot mention
thathe referred
specifically
to theAbakiga
when
directing
therefugees
togo toKibuye
town.

445.TheProsecution’s
allegation
thattheAccused
by sending
awaytherefugees
was actingpursuantto a preconceived
plan with Kayishemahas not been
demonstrated.
Moreover,
the evidence
considered
thisfardoesnotshowthatthe
Accused
oughtto haveknownwhatwouldhappento the refugees
oncein Kibuye
town.

446.TheChamber
findsno evidence
to support
theallegation
in paragraph
4.20of
theIndictment
thattherefugees
at thebureau
communal,
on theinstructions
of the
Accused,
weredivided
intotwogroups:
intellectuals
andpeasants.

447.The Accuseddeniedthathe wentwiththe refugees

to Kibuyetown.Only
Witness
A testified
thattheAccused
travelled
withtherefugees.
As discussed
below
(V.3.2),
it cannot
be ruledoutthattheAccused
mayhaveaccompanied
therefugees
partof theway,buttheevidence
isnotconclusive.

448.Finally,
no evidence
hasbeenpresented
thattheAccused
divided
therefugees
intotwogroups
at theKibuye-town
roundabout.
Theallegations
in paragraph
4.22of
theIndictment
therefore
havenotbeensubstantiated.

156
 3.2 Detentionand Maltreatmentof Refugeesat GatwaroStadium,Kibuye Town,
13-17April1994

3.2.1Introduction

The Indictment

449. The Accused’sallegedliabilityfor inhumaneacts committedagainstTutsi

refugees
at GatwaroStadium(the"Stadium")
in Kibuyetownis setout in paragraphs
4.23,4.24and4.31of theIndictment:

"4.23By about17 April1994,thousands of men,womenand childrenfromvarious

locations
soughtrefugein theCatholic
ChurchandHomeSt.JeanComplex(theComplex)
andat theGatwarostadiumlocated
in Kibuyetown.Thesemen,womenandchildren
were
unarmedandwerepredominantlyTutsis.Theywerein theComplexseekingprotection
fromattacks
on Tutsis
whichhadoccurred
throughout
thePrefecture
of Kibuye.

4.24Afterpeoplegathered in thecomplexandat thestadium,

theselocations were
surroundedby personsunderIgnaceBagilishema’s
control,
includingmembersof the
GendarmerieNationale and communalpolicemen.
Thesepersonspreventedthe men,
womenandchildrenheldthereinfromleaving,
thusdenying
themaccess
to basicamenities
suchfoodandwaterforseveraldays.

4.31IgnaceBagilishema,
duringthemonths of April, May,andJune1994,in Mabanza,
Gitesi,
andGisovucommunes,
Kibuye
Prefecture, in theTerritory
of Rwanda,
didcommit
otherinhumane
actsincluding
butnotlimited to,persistentlysearching
forTutsis,
separating
Tutsis
fromotherethnic
or racialgroups, beating
Tutsis,knowingly
leading
Tutsis
tothemassacre
sites,
andunlawfully
confining theTutsis
atthecommune
officeand
Gatwaro
Stadium
without
water,sanitation
or food,therebyforcing
theTutsis
toeatgrass."

Submissions
of theParties

450.According
to the Prosecution,
following
the dispatch
of refugees
fromMabanza
to the Stadiumin Kibuyetown,personsunderthe Accused’scontrol,including
gendarmesand communalpolicemen,
detainedthe refugeeswithinthe Stadiumand
denied
themaccess
to basicamenities
forseveral
days.
s23TheProsecution
alleges
that
thisunlawful
confinement
of Tutsicivilians
at theStadium
without
water,
sanitation
or

157
 ~ ~*’~ ICTR-95-1A-T

............................................................................................................................

food,whichwasthecauseof greatsuffering,
amounts
to a crimeagainst
humanity
(inhumane
524 acts),
forwhich
theAccused
isliable.

451.The Defencedoesnot contestthe allegation

at paragraph
4.23 of the
Indictment.
525However,
theAccused,
according
to theDefence,
didnotgo to Kibuye
townin the period13 Aprilto 19 April1994.
526 The Defencesubmits
thatthe
Prosecution
hasfailedto provebeyond
reasonable
doubtthatsubordinates
of the
Accused
detained
therefugees
at theStadium.
527TheDefence
disagrees
thatrefugees
wereprevented
fromleaving
theStadium
or thattheyweredyingof hunger,
andstates
thatup to 18 April1994onlytwogendarmes
wereguarding
the Stadium.
528At any
rate,theAccused
cannot
be heldresponsible
forwhatallegedly
happened
at the
Stadium
because
he exercised
neither
de jurenordefactoauthority
overpersons
inthe
commune
of Gitesi,
529 whereKibuye
townandtheStadium
weresituated.

Deliberations

3.2.2A Preconceived
Plan?

452.TheProsecution
argued
thattheStadium-related
crimes
occurred
pursuant
to a
preconceived
plan,
andthattheAccused
wasawareofthisplan.
In support
of this,the
Prosecution
argued,
in thefirst
instance,
thata decision
to massacre
Tutsi
wastaken
at
a security
meeting
on 9 April1994in Kibuye,
at whichtheAccused
waspresent.
The
Chamber
hassetthisallegation
aside
as unsubstantiated
(seeV.2.4
above).

453. The Prosecution

alsoallegedthat a meetingbetweenthe Accusedand
Kayishema
took placein the eveningof 12 April1994,at Mabanza’sbureau

523
Prosecution’s
written
Closing
Remarks
pp.30-32
paras.189-198
andpp.109-110
paras.
206-209.
524
SeealsoCount
5 oftheIndictment.
525
Defence
Closing
Briefp.67para.
566.
526
Ibid.,
forexample,
p.67para.
564,
p.69para.
584andp.72para.
612;Rejoinder
para.
249.
527
Defence
Closing
Briefp.68para.
574.
528
Ibid.
pp.68-69
paras.
577-580.
529
Ibid.
p.68paras.
573and575.

158
 ICTR-95-1A-T
. ,~(~j~, .g~’~

............................................................................................................................

communal.
Thiswasemphasised,
s3° in particular,
during
theoralclosing
arguments,
According
to theProsecution,
it wasat thismeeting
thatKayishema
andtheAccused
decided
to sendtherefugees
to Kibuye,
whereultimately
theywouldbe killed.
The
Prosecution
argued
thattheAccused
formed
hisgenocidal
intent
at thealleged
meeting.
TheChamber
hasfoundthattheProsecution
failed
to provethatsucha meeting
took
place
(seeV.2.6
above).

454.Furthermore,
theProsecution
submitted
thatthe Accused
attended
a security
meeting
in Kibuyetownon 13 April1994,convened
by Prefect
Kayishema.
It was
attended
by thebourgmestres
of theninecommunes
of Kibuye,
including
theAccused,
Commander
Jaboof thegendarmerie
andtheProsecutor
of Kibuye.
At themeeting
the
decision
allegedly
wastakento killtheTutsigathered
at theHomeSt.Jeancomplex
(the"Complex")
andthe Stadium.
TheProsecution
reliedon Kayishema’s
testimony
during
histrialthata security
meeting
washeldinKibuye
townon 13 April
1994.The
Prosecution
alsoargued
thatthemeeting
of 13 April1994wouldcorrespond
to that
referred
to in anentryintheregister
of Mabanza
commune’s
out-going
mail,
indicating
thaton 12 April1994theAccused
wroteto conseillers
andpolitical
partyleaders
in
Mabanza
commune
informing
TM themof a planned
security
meeting.

455.In reply,
theDefence
argued
thatwhilethetranscripts
of thedirect
examination
of Kayishema
do referto a "security
council
meeting"
of 13 April1994,themeeting
was"restricted",
meaning
thatbourgmestres
werenotinvited
to participate.
532In
relation
totheregister
of out-going
mail,theAccused
testified
thatbecause
communal
staffhadnotcometo workon 12 April1994,on thatdayhe wroteto themrequiring
them"tocometo workas quickly
as possible
on 13 April".
533He alsowrotea second
letter
on thesameday,calling
allconseillers
andpolitical
party
leaders
toa security
meeting
on 13 April1994.
TM Thiswasnotrelated
to therestricted
security
meeting
in
Kibuye
535 town.

530Transcripts
of18October2000,inparticular
pp.7-12.
531Prosecution’s
writtenClosingRemarkspp.62-63paras.
346-347.
532Transcripts
of 4 September
2000p. 148and5 September
2000pp.188-120.
533Entry0277of Mabanzacommune’s
out-goingmailregister
(Defence
Exhibit
No.18).
534Ibid.
entry
0278.
535Transcripts
of 6 June2000pp.97-100.

159 "~. ~LV’.

456.TheChamber
notesthattheProsecution
didnotfollow
up theaboveallegation
duringits closing
arguments
on 18 October
2000.Entryno. 0278in the Mabanza
commune
register
of out-going
maildoesnotreferto a security
meeting
of thePrefect
withbourgmestres
in Kibuye
townbutonlyto a security
meeting
of conseillers
and
political
partyleaders
in Mabanza
commune.
Theregister
of in-coming
maildoesnot
mention
536 anyletter
inviting
theAccused
to a security
meeting
on 13 April1994.
Therefore,
theChamber
finds
thattheProsecution
hasfailed
to provethattheAccused
participated
in a security
meeting
inKibuye
townonthatday.

457.Thereis no otherevidence
thatthe Accusedtookpartin a plan,or had
knowledge
of a preconceived
plan,to exterminate
theTutsirefugees
at theStadium,
or
elsewhere
in Kibuye
town,in April1994.TheProsecution
arguedthatthe Accused
wouldnot havesenta largenumberof refugeesto Kibuyetownwithoutprior
consultation,
537 andthatthesubsequent
massacres
indicate
thatthere
wassucha plan.
TheAccused’s
version
wasthathe received
a telephone
callfromhis colleague
in
Rutsiro
in themorning
of 13 April
1994alerting
himto thefactthattheAbakiga
were
headingto Mabanzacommune.
The Accusedtherefore
advisedthe refugees
to go
towards
Kibuye
town.He alsotestified
thathe informed
thePrefect
oncetherefugees
hadleftthecommunal
office.
TheChamber
notesthata number
of Tutsiremaining
in
the commune
werein factkilledby the Abakiga
on 13 April1994.Therefore,
the
evidence
supports
theAccused’s
version.

458.Consequently,
theChamber
is unable
to conclude
thattheAccused
wasawareof
a plantoexterminate
therefugees
by 13April
1994.
Hiscriminal
liability,
ifany,must
therefore
bedecided
onthebasis
ofthesubsequent
events.

3.2.3Description
of Gatwaro
Stadium

459.By wayof introduction,

theChamber
willgivea briefdescription
of Gatwaro
Stadium
in Kibuye
town.Thedescription
is basedon theevidence
produced
in court,

536Defence
Exhibit
No.19.

160
N~ N"~ ICTR-95-1A-T

............................................................................................................................

including
photographic
exhibits,
as wellas theChamber’s
visitto Kibuye
Prefecture
(II.1
above).
Thestadium
is anenclosed
rectangular
field,
approximately
100metres
itseast-west
sidesand80 metres
north-south.
Itsnorthern
sideborders
a steephill,
Gatwaro
Hill,whichrisesat a sharpangle
fromtheedgeof thefield.
A brickwallof
variable
height,
generally
between
2 to 3 metres
high,defines
theothersidesof the
Stadium.

460.Twospectator
stands
faceeachotherat opposite
endsof thefield.
The"smaller
stand",
abutting
theeastern
wall,
hastheappearance
ofa longshed.
Itisa lowstructure
witha corrugated-iron
roofsupported
by numerous
columns.
Apartfromthewallat its
back,
itssidesareopen.A lipon thewestern
edgeoftheroofslopes
downtowards
the
field.
A six-metre
long,two-metre
wideporchprojects
outintothefieldfromthe
middle
of thestructure,
itsroofcontinuing
fromthelipandsloping
downat thesame
angle.

461.The"larger
stand"
abutsthewestern
wall.It is a modemstructure,
withstepped
seating
anda highroofsloping
up fromthewall,overthefield.
By contrast
withthe
smaller
stand,
ithasfewer
andfiner
structural
supports
andoffers
excellent
visibility
ontothefield
andgoodvisibility
on itstwosides.
Thelarger
stand
is closest
to the
Stadium’s
"mainentrance",
whichis a fewmetres
eastof thesouth-western
comerof
thefield.

462.Twootherentrances,
on either
sideof thesmaller
stand,
weresealed
andnot
usedduring
theevents.
A hospital
waslocated
immediately
to thewestof theStadium.
Parallel
tothesouthern
wallof theStadium
runsa roadwhich
risestowards
theeast.
About
53s 700metres
away,in theeastem
direction,
is Kibuye
townroundabout.

3.2.4Conditions
at theStadium
- Deliberations

463.The Chamber
willfirstassessthe evidence
in orderto decidewhether
the
refugees
weredetained
at theStadium,
whether
theyweretreated
inhumanely,
and
whether
anymaltreatment
inflicted
uponthemwassuchas to reachthelegalthreshold

537Transcripts
of18October
2000p.38.

161
 IGZ,
I
............................................................................................................................

of "inhumane
acts".The testimonies
of Prosecution
Witnesses
A, AC and G, and
Defence
Witness
CP,arerelevant
to thesequestions.
TheChamber
willthenconsider
whether
theAccused
canbe heldcriminally
responsible
forsuchacts.

Witness
A

464.Prosecution
Witness
A, who in 1994wassixteen
yearsold,travelled
withthe
massof refugees
fromMabanza’s
bureaucommunal
to Kibuye
townon 13 April1994.
He wastrailing
thecrowdwhenhe setout:"I wasbehind
butas we movedon,I was
goingfastandI overtook
certain
people".
539Thewitness
testified
thattheywere
followed
by thecommunal
vehicle.
Travelling
in it weretheAccused,
a policeman,
two
gendarmes
andthe communal
driver,
Nshimyimana.
The policeman
andthe gendarmes
werearmed.
54°By thetimethewitness
reached
Kibuye
townhe was"inthemiddle
of
theconvoy
of refugees".
541(Thequestion
of thepresence
oftheAccused
at theStadium
willbe discussed
below.)

465.Witness
A did not recallhow longthe joumeyto Kibuyetowntook,"butit
[was]
a longdistance".
542Hesaidthatasheandhisfellow
refugees
arrived
intown,
the
roadto theComplex
wasbeingblocked
off,andtherefugees
wereforcibly
directed
by
gendarmes
towards
theStadium.
543Whenthewitness
arrived
at theStadium,
thegates
wereclosed.
He estimated
thatit wasaround
2 p.m.butaddedthat"I didn’t
havea
watchwithme and thehourI havegivenis a roughestimate".
544Armedgendarmes
dulyopenedthegates.
Theysearched
forand tookawaytherefugees’
traditional
weapons
before
allowing
theminside.
Therefugees
fromMabanza
werethefirstto
arrive
545 attheStadium.

538Transcripts
of27 October
1999p. 123.
539
Transcripts
of 17 November
1999p. 17.
540Ibid.pp.12-14and72-73.
541Ibid.
p.75.
542Ibid.
p.15.
543Ibid.pp.17-18. According
to thewitness,
shotswereftredby thegendarmes
to redirect
refugees
towards
theStadium.
544Ibid.
p.74.
545Ibid.
pp.19-20.

162
 ICTR-95-IA-T

466.Witness
A testified
thatgendarmes
guarded
themainentrance
andallowed
only
refugees
to enter.
He didnotleavetheStadium.
546Somemanaged
to fetchwaterfrom
thenearbyhospital,
froma pathbehindthe Stadium.
Whenaskedif he had water
himself,
Witness
A saidthatit wasthe"young
people
whocouldgo andfetchsome
fromthehospital
whohadsome".
547Of thosewhoattempted
to fetchwaterin this
manner
somewerebeaten
withclubsor killed
by assailants
running
afterthemand
hitting
themwithbladed
weapons.
548It is notclearfromWitness
A’stestimony
who
these
attackers
were.Thewitness
described
howsomerefugees
resorted
to eating
their
cattle.
The animals
wereslaughtered
withweapons
whichrefugees
hadmanaged
to
bringintothe Stadium.
s49 The meatwas not wellcookedbecause
of the lackof
firewood.
55° Leaves
wereusedtolight
fires.

467.Askedwhethergovernment
officials
tookany measures
to preventcriminal
activity
against
therefugees
at theStadium,
thewitness
replied:
"NoI didn’t
seeany
authority
or anyofficial
taking
theinitiative
toensure
thesecurity
of therefugees.
However
eventhe Interahamwe
thatwe ourselves
arrested
werereleased.
’’551The
witness
wasnotasked
toclarify
thislastpoint.

Witness
AC

468.Prosecution
Witness
AC testified
thaton Wednesday,
13 April1994,at around
8.30a.m.,the refugees
leftMabanza’s
bureaucommunal
for KibuyetownY
z She
walked
s53 in themiddle
of thegroupandcouldnotseewhatwashappening
behind
her.
Thewitness
testified
that"[w]ecouldseeHutusalongside
theroad";
theseonlookers
madeattempts
to stealtherefugees’
cattle.
According
to thewitness,
fourrefugees
werekilled
trying
torecover
their
cattle,
including
oneKalinda
fromBuhinga
secteur,

546Ibid.
p.25.
547Ibid.
p.26.
548Ibid.
p.27.
549Ibid.
p.63.
55OIbid.
pp.25-26.
55tIbid.
p.63.
552Transcripts
of 18 November
1999p. 94.
553
Ibid.
p.35.

163
 who was knownto the witnessY
4 She alsomemioned
thatshe met a vehiclewith
gendarmes
heading
5 in theopposite
direction
to thatof thewitnessY

469.Uponarriving
in town,Witness
AC and othersweredirected
by gendarmes
to
theStadium.
556Theyarrived
at itsgatesat around
3 p.m.(Incross-examination,
the
witness
saidthattheyarrived
there
at 11a.m.
557)Allmachetes,
sticks
andspears
hadto
be leftat theentranceY
8 On thesameday,in theafternoon,
somerefugees
werehitby
gendarmes
when theyattempted
to followthe Accusedas he was leavingthe
Stadium.
559(Thealleged
presence
of theAccused
willbe examined
below.)
Afterthe
Accused
hadleft,thegendarmes,
whowerepositioned
on either
sideof theentrance,
saidthatno onewasto leavetheStadium.
Theyonlyallowed
people
in.Thegendarmes
werejoined
by soldiers
on Thursday,
andcivilians
andpolicemen
on Friday.

470.According
to thewitness,
whileat theStadium,
sheandtheotherrefugees
"lived
likeanimals".
56°Theyategrass:
"Wegathered
thegrass,
we chewed
it andswallowed
thejuicefromit.
’’561Theyhadno privacy:
"wewereshowna certain
area.Therewas
nohole.
56z [P]eople
intheneighbourhood
couldseeyouattending
tothecallofnature".
Theywerenotallowed
563 togo outtogetdrinking
water.

471.Thewitness
testified
thaton Friday,
15 April1994,someHutucameto stealthe
refugees’
cattle.
By Saturday
rooming
people
werefeeling
veryhungry.
Thewitness
andothers
killed
a cow,usingmachetes
theyhadmanaged
to bringin withthem,and
atetheroasted 564 Therefugees
meat. tookturns
slaughtering
theircows.
Those
whohad
no meatcontinued
to eatgrass.
565Thewitness
saidthatsheatemoregrasson Sunday,

554
Ibid.pp.35-36.
555Ibid.pp.35-36.
556Ibid.pp.36-37.
557
Ibid.
p.93.
558
Ibid.
pp.37-39.
559
Ibid.
p.68.
56o
Ibid.
p.42.
561Ibid.
562/bid.
563
Ibid.
pp.42-43.
564Ibid.
p.46.
565
Ibid.

164
17 April1994.
566

472.Askedif law-enforcement
officers
or anyotherofficials,
including
theAccused,
took any measuresto preventcriminalactivityand to ensurethe securityof the
refugees
’’567 at theStadium,
thewitness
replied:
"I didn’t
seeanyone.

WitnessG

473.Prosecution
Witness
G testified
thatshereachedtheStadium
withotherrefugees
fromMabanzaon 11 April1994.This,according
to thewitness,
wasthedateon which
refugees
leftMabanza’s
bureaucommunal
for Kibuyetown.Theyremained
thereuntil
18 April 1994.568 The refugees encounteredgendarmesat the Kibuye town
roundabout.
569Whentheyarrived
at theStadium,
soldiers
ushered
theminside.

474.The refugees
"hada difficult
life"at theStadium.
57°The soldiers
maltreated

themas theyentered,
hitting
themwiththebuttsof theirrifles.
At othertimesthey
stepped
on thefeetof thosesitting
on theground.
Thewitness
estimated
thattherewere
about20,000Tutsimen,womenandchildren
in the Stadium.
571Theywerenotallowed
to leave.
572Somehadbeenableto bringa cowor a mattress
or otherbelongings
onto
thegrounds.
5v3 Thewitness
saidshenoticed
thatpeople
weredyingof hunger.

WitnessCP

475. DefenceWitnessCP was a civil servantwho lived in Kibuyetown. 574 He

566Ibid.
p.49.
567Ibid.
p.100.
568Transcripts
of26January
2000pp.11and14.
569
Ibid.
p.49.
57oIbid.
p.13.
571Ibid.
572Ibid.
p.2 I.
573Ibid.
574Transcripts
of24May2000p.7.Witness
CP’s
earlier
statement
of27February
2000
indicates
thatin
April1994hewasa teacher
(Defence
Exhibit
No.79).
575Transcripts
of24May2000p.8.
576Ibid.
pp.9-11.

165
~,,.~’~, -~ ICTR-95-1A-T

testified
thaton 17April1994,
at about
10 a.m.,
he wenttothetownroundabout.
This
wasa placewherelocals
likedto meet.
575 Aftera whilehe sawa largenumber
of
peoplecomingalongthe Mabanza-to-Kibuye
townroad.Thewitness
estimated
that
therewereaboutfiveto sixhundred
men,dressed
in an unusual
manner:
covered
with
branches,
wearing
banana
leaves,
andeachwitha string
around
hishead.Theywere
armedwithtraditional
weapons
andweresinging
"letus exterminate
them".576 The

witness
later
referred
to these
menasAbakiga.
577

476.TheAbakiga
tried
toenlist
others
at theroundabout
to assist
themintheir
cause.
Thewitness
did not see the Accused
in the crowd.He did not see any officials
attempting
to control
thisactivity.
57sHe hurried
away.
Noteveryone
followed
suit,
with
theresult
thatsomeof those
present
("bandits",
according
tothewitness)
wereforced
to jointhe Abakiga.
579 Thewitness
wentto theGitesibureaucommunal
wherehe
stayed
fortwotothree
hours.

477.Witness
CP didnotgo to theStadium
until18 April1994.
580As he walked
back
pasttheStadium
he sawthatthegateswereopen.Thereweretwogendarmes
guarding
theentrance.
581There
wereno vehicles
about.
582Thewitness
noticed
livestock
withthe
refugees
inside
theStadium.
583Oneof therefugees
called
outto Witness
CP from
within
the Stadium.
It was a formerschoolmate.
His friendaskeda gendarme
for
permission
584 tospeak
to thewitness
and,onceauthorised,
he wasableto stepoutside.
Thewitness
testified:

577Ibid.
pp.70and76.
578
Ibid.
pp.21and86-88.
579Ibid.
pp.15and24.
580Ibid.
p.36.
581Ibid.
pp.31and39.
582Ibid.
p.38.
583Ibid.pp.47,57 and71-72.Ina statement
takenon27 February
2000,Witness
CP declared
aboutthe
division
of refugeesat thetownroundabout:
"Onarrivingin Kibuye,
thosewhoownedsmallor major
livestockmovedtowardsthestadium.
Therewasenoughspacefortheirlivestockin thestadium.The
others
wenttothechurch premises
andto’HomeSt.Jean’."(Defence
Exhibit
No.79.)
584Transcripts
of24 May2000pp.39-40.
585Ibid.
p.32.

166
 :~’~* ICTR-95-1A-T

"FromwhatI know,I knowpeople,otherpeople

I knewwhocouldgo in andoutofthe
I¢ot(
............................................................................................................................

stadium
withoutanyhindrance.
I do notknowwhether
thesepeople
needed authorization
before
leavingthestadiumbutI knowthatwhere
welivedtherewerepeoplewhocameto
seeusandgobackwithout
5s5 anyhindrance".

478.Thewitness
addedthatrefugees
couldleavetheStadium,
go to theirhomes,
and
thenreturn.
(Hedidnotrefer
tohisownexperience
toillustrate
hisstatement).
Healso
stated
thatsomerefugees
cameto hishouse.
586Thewitness
nevertheless
acknowledged
thattheremusthavebeenconstraints
on therefugees’
freedom
of movement,
"orthey
would
587 havebeenableto goelsewhere.
I don’t
knowhowallthiswasorganised".

3.2.5Conditions
at theStadium
- General
Findings

479.TheChamber
willnowconsider
thethreequestions
setoutat theheadof this
section
(seeparagraph
463).

(i)WeretheRefugees
detained
at theStadium?

480.It is clearthatthe refugees

fromMabanzacommunewho endedup at the
Stadium
weredirected
to go to there.
Witness
A testified
thaton approaching
Kibuye
townhe and othersweresteered
to the Stadium
by gendarmes
who had blocked
off
otherroutes
andwereforcibly
directing
thecrowd.
Thisearlyassumption
of control
overtherefugees
wasconfirmed
alsoby Witnesses
AC andG.

481.Entryinto,andexitfrom,theStadium
werestrictly
controlled.
Witnesses
A and
AC testified
thatgendarmes
searched
or removed
weaponsfromrefugees
as they
entered
the Stadium.
Gendarmes
remained
on guardat the gates.To obtainwater
refugees
hadto leavetheStadium
surreptitiously.
Thosediscovered
werebeaten
or
killed.
Therefugees
werenotallowed
to go outtoobtain
food.
Their
onlyoptions
were
to eat theircattleor to eat grass.According
to Witness
AC, somerefugees
who
attempted
to follow
theAccused
outof theStadium
werebeaten
backby theguards.

586
Ibid.
p.66.

167
 ................................
482. Witness
CP,whowasa resident
of Kibuye
town,saidthatrefugees
couldleave
I¢
t$
the Stadium
as theywished.
He did not provide
a concrete
example
of suchfree
movement.
He conceded
thatauthorisation
mayhavebeennecessary.
Thisis indeed
apparent
fromthewitness’s
onlyexample
ofcontact
witha refugee
attheStadium:
his
former
school
acquaintance
hadto obtain
thepermission
of a gendarme
before
he was
allowed
outtospeak
tothewitness.

483.Armedgendarmes
remained
at thegateof theStadium
up untiltheday of the
attack
(Witness
CP).Theywerejoined
by soldiers
on thesecond
day,policemen
and
civilians
on thethirdday(Witness
AC).On thedayof theattack
theStadium
was
sealed
off(seeV.3.4
below).

484.In the Chamber’s

view,it has beenestablished
thatrefugees
fromMabanza
commune
wereeffectively
detained
at theStadium
fromthemoment
of theirarrival
there
on13 April
1994until
thedayof theattack,
on18April
1994.

(ii)TheTreatment
oftheRefugees

485.ThethreeProsecution
witnesses
whowererefugees
at theStadium
testified
as to
difficult
living
conditions
there.
It appears
thata large
number,
perhaps
thousands,
of
refugees
hadbeendirected
to theStadium
on andfollowing
13 April1994.Food,water
andsanitary
facilities
wereinshort
supply
ornon-existent.

486.Witness
A testified
thatsomerefugees
whoattempted
to fetchwaterfromthe
nearby
hospital
werechased
downandbeaten
or killed.
Witnesses
AC andG testified
thattheguards
wereviolent.
According
to Witnesses
A andAC,theauthorities
tookno
measures
tostemthisviolence
ortoprovide
forthesafety
of refugees.

487.Thoseresponsible
forthe detention
of therefugees
didnotsupply
themwith
foodor water.
Witnesses
A, AC andG testified
thatsomerefugees
wereableto feed
offlivestock
theyhadbrought
withthem.However,
others
wenthungry
andthirsty

587Ibid.
p.64.

168
 ICTR-95-1A-T

...........
:..........................................
-
overthefivedayspriortotheattack.
Witness
AC saidthattherefugees
chewed
grass
foritsjuice
andforsustenance.
There
werenosanitary
facilities
attheStadium.

488.TheChamber
is convinced
by theevidence
thatthetreatment
of refugees
at the
Stadium
wasunacceptable.

(iii)WastheMaltreatment
Inflicted
upontheRefugees
suchas to ReachtheLegal
Threshold
of "Inhumane
Acts"?

489. TheChamber’s
definition
of"inhumane
acts"waspresented
above(seeIII.3.2):

"’[O]ther
inhumane
acts’
includes
actsthatareofsimilar
gravity
andseriousness
tothe
enumerated
actsofmurder,
extermination,
enslavement,
deportation,
imprisonment,
torture,
rape,orpersecution
onpolitical,
racial,andreligious
grounds.
Thesewillbeactsor
omissions
that
deliberately
causeserious
mental
orphysical
suffering
orinjury
orconstitute
a serious
attack
onhuman
dignity.
Asforwhich
actsrise
tothelevel
ofinhumane
acts,
this
shouldbedetermined
ona case-by-case
basis."

490.Theconfinement
of a largenumber
of people
on exposed
ground
without
water,
foodorsanitary
facilities
willamount
toaninhumane
actiftheactisdeliberate
andits
consequences
areserious
mental
or physical
suffering
or a serious
attack
on human
dignity.
"Seriousness"
is to be understood
as beingona parwithotheractsproscribed
byArticle
3 oftheStatute.

491.In thepresent
case,
theconfinement
lasted
at leastfivedays.In thisamount
of
timea person
maydieof thirst,
or maysuffer
seriously
fromhunger.
Thereis no
evidence
thatanyrefugee
actually
diedforlackofwater
orfood,
although,
according
to
Witness
A, somepeople
werekilled
whiletrying
to fetchwater.
Nevertheless,
the
evidence
suggests
thatby thefifthdaythephysical
suffering
of mostrefugees
must
havebeenextreme.

492. Moreover,
confinement
of a largenumber
of people
underconditions
described
abovenecessarily
constitutes
a serious
attack
onhuman
dignity.

169
 ~.~~ ~* ICTR-95-1A-T

493.Thereis no doubtthattherefugees
of Mabanza
wereconfined
at theStadium
deliberately.
Thereis no evidence
of anycareextended
to the refugees.
On the
contrary,
theevidence
isof anintensifying
assault
onthephysical
andmental
condition
andhuman
dignity
oftherefugees,
culminating
in anall-out
attack
on18 April
1994.

494.TheChamber
therefore
findsthatthemaltreatment
of refugees
at the Stadium
during
theperiod
13 April1994up untilthedayof the attack,
on 18 April1994,
amounts
to"inhumane
acts",
as covered
byArticle
3 (i)of theStatute.

3.2.6Wasthe Accused
Present
at theStadium
13-17April1994?- Deliberations

495.In viewof the abovefinding,

the Chamberwillnow consider
whetherthe
Accused
waspresent
at theStadium
in theperiod
of 13-17April1994andwhether
he
in any way contributed
or consented
to the maltreatment
of the refugees.
As a
preliminary
point,the Chamber
notesthatWitnesses
G and CP, two of the five
witnesses
giving
evidence
relevant
to thisperiod,
did notsee the Accused.
The
Accused’s
responsibility
fortheconduct
of otherpersons
willbe considered
further
below.
TheChamber
willnowconsider
theevidence
as to thelocation
andactions
of
theAccused
intheperiod
13to 17 April
1994

Wednesday
13 April1994

496.Witness
A testified
thattheAccused
followed
the refugees
in a vehicle
from
Mabanza
communetowardsKibuyetown.At somepointalongthe way the witness
passed
twobusescarrying
gendarmes.
TheAccused
588 stopped
alongside
themto talk.
Witness
A confirmed
thathe had witnessed
thisscene.
589(Witness
AB, a fellow
refugee,
encountered
a bustransporting
"soldiers"
coming
fromthedirection
of Kibuye
town.
59°)It wouldseemthatthiswasthelasttimethatWitness
A sawtheAccused

588
Transcripts
of17November
1999p.31.
589
Ibid.
p.74.
590
Transcripts
of15November
1999p.59.
591,,[Q.]
DidMr.Bagilishema
followyouallthewaytoKibuye
Stadium
onthe13th?
[A.]
Yes,he
 ICTR-95-1A-T

............................................................................................................................

beforereachingthe Stadium.
591 Whilehe was waitingfor the Stadiumgatesto be
opened,
592 at around
2 p.m.by hisestimation,
he sawtheAccused.

497. Laterin the courseof his testimony,

WitnessA insistedthat therewas no
question
as to hisability
to recognise
theAccused:

"[Q.]Witness,
howcanyou be so surethatit wasBagilishema
yousawon allthese
occasions,
whatmakesyouso sure?
[A.]I knewhimbefore
then.
[Q.]Howwelldidyouknowhimbefore
then?
[A.]It’snotpossiblethatI wouldnotknowourBurgomaster
andI wasso closeto these
people
’’593thatI could
identify
theirfaces.

498. WitnessA’s earlierstatements

of 1 February1996 and 29 June 1999 do not
allegethatthe Accused
594 followed
therefugees
anypartof theway to theStadium.
Nordo theystatethatthewitness
sawtheAccused
at theStadium
on 13 April1994.

499.WitnessAC testified
thatat around3 p.m.on thisday,shewas in the Stadium
closeto thegateswhenshesaw theAccused,
in civilian
clothing,
andSemanza
arrive
in the communalvehicle.
The Accused,who was unarmed,
"at one pointattempted
to
enterthestadium
buthe didn’t".
Shetestified
thathe "spoke
to thepeople
whowerein
thestadium
595 andaskedif thepeople
whohe senthadarrived".

followed
ustoKibuye,butalongthewayweencountered
twobusestransporting
gendarmes.
Hestopped
tospeak.He thenjoined
usinKibuye.Butthatwasbeforethegates oftheStadiumwereopened."
Transcripts
of17November
1999p.31.TheEnglish
version
hasbeenalignedtotheFrench
text(p.37).
592Ibid.
593Ibid.
p.56.Moreover,
inhisstatement
of29June1999,
WitnessA declared
thattheAccused
"was
a
family
friend"
(Defence
Exhibit
No.7).
594Defence
Exhibits
6 and7,respectively.
595Transcripts
of18November
1999p.39.French
version:
"Bagilishema
a fait
quelques
pas,comme
s’il
voulait
entrer
austade,
maisiln’yestpasentr6.
Mais,
parcontre,
ils’estadress6
anxgendarmes
qui
gardaient
lestade
etleur
a dernand6:
’est-ce
quelesgens
quej’ai
envoy6s
sont
arriv6s?’"
 ICTR-95-1A-T
,,~ ~"*’~

............................................................................................................................

500.The witnessmarkeda photograph

indicating
the location
whereshe was
standing
whenshesawtheAccused.
596Shesaid:"Hecameandhe entered,
he tooka
fewstepsintotheStadium.’’597 Shealsoindicated
theplacewheretheAccused’s
vehicle
wasparked
outside
thewallenclosing
theStadium.
Sheexplained:
"Thewallis
not veryhigh,but someone
who is insidecannotseea personwho is outside
the
wall".
598Askedhowshecouldhaveseena carparked
on theroadoutside,
shereplied
thattheAccused
camein andwentoutagain,
andas he leftsomerefugees
including
herself
followed
himtowards
theentrance.
Thegendarmes
hitthem.At theentrance
shesawtheAccused
getting
intothevehicle.
599"After
hisdeparture
thegendarme[s]
saidno onewasto getoutof thestadium".
6°°Apartfromthegendarmes
guarding
the
gate,
thewitness
stated
thatshedidnotseeanyother
security
personnel
onthatday.

501.Witness
G testified
thatshedidnotseetheAccused
whentherefugees
leftfor
Kibuye
town:"Welefthimat thecommunal
office.
He hadjusttoldus to leavefor
Kibuye.
6°1 HowcouldI haveseenhimon theroad?"
sheexclaimed.

502.OtherProsecution
witnesses,
whodidnotgo to Kibuye
townon 13 April1994,
testified
as to theAccused’s
presence
in Mabanza
commune
at various
timesduring
that
day.Witness
AB, without
specifying
a time,saidthatfromher hidingplaceat
Gitikinini
she saw theAccused
inciting
peopleto attack Kanlngtl.
602 Witness
H
testified
thatat around
8 a.m.on 13 April1994,he sawtheAccused
in thecommunal
vehicle
withInterahamwe
goingin the direction
of Kartmgu’s
house(seeV.4.1
6°3
below).

596Ibid.pp.63-67,
andProsecution
Exhibit
No.60.Themarked
photograph
is in thepossession
of the
Chamber.
597Ibid.
p.67.French
version:
"I1estvenu,
ilestentr~,
ila faitquelques
pasversl’interieur
dustade"

~.883).
Transcripts
of18 November
1999p.67.
599Ibid.
p.68.French
version:
"Lebourgmestre
Bagilishema
ilestvenu,
ilestentrr,
ila ditlesroots
dont

j6
e vous
00 ai
Ibid. dit..,
p.39.parlr,ensuite
ilestsortie"
(p.84).
601Transcripts
of26January 2000p.49.
602
Transcripts
of 15November 1999p. 74.
603Transcriptsof 19 November1999pp.37-38and40 and22 November
1999pp.9-10.

172 ~. ~1/
503.Witness
K alleged
thatsheandherfamily
werestillin Mabanza
commune
on 13
April1994,whenat around
10 a.m.or,at any rate,"a longtime"aftertheother
refugees
departed
forKibuye
town,theyencountered
theAccused
driving
a vehicle
withmany personson board,includingassistantbourgmestres
Semanzaand
Nsengimana.
6°4 The witness
assumed
thatthe Accused
washeadedfor Kibuyetown
andrequested
6°5 thatshebe takentheretoobecause
theattackers
werecloseby.
However,
"theytoldme theywerenotgoingthere".606 Witness
K boarded
thevehicle
anyway
andwastakena shortdistance
to a placecloseto Kibilizi
Church,
wherethe
Accused
toldherto "getdown".
607

504.Prosecution
Witness
J testified
thaton 13 April1994Interahamwe
fromthe
Gitikinini
neighbourhood
arrived
at herhousein Rubengera
andproceeded
to beather
andloother house.608 Aftertheincident,
whenthe lnterahamwe
hadremoved
her
property
outside
thehouse,
thewitness
sawtheAccused
arrive
on footin thecompany
of Commander
Jaboandtwopolicemen.
6°9Shecouldseethecommunal
vehicle
in the
distance.
Thetimewasaround
10a.m.
61°Thewitness
said:

"Onthatday,people
wentto thestadium.
They[referenceincludes
theAccused]
accompanied
thepeople
allthewaytothestadium.
Theycameto...myhouse
after
having
accompanied
6H thepeople
tothestadium".

505.Witness
J alleged
thattheAccused
arrived
at herhousewhentheInterahamwe
and
theproperty
theyhadtakenwerestillat thesceneand"theBurgomaster
saidthatthe
property
oftheTutsi
should
staythere,
while
...theTutsis
whowereto bekilled
would
be sentoff.
’’612TheAccused
dispatched
oneof theInterahamwe
to fetchWitness
J’s
husband,
613 afterwhich
theAccused
andJabo"leftimmediately".

604
Transcripts
of 25January
2000pp.90-91.
605Ibid.pp.52-53.
606Ibid.
p.53.
607Ibid.
p.92.
608Transcripts
of31January
2000p.4 (closed
session).
609Ibid.pp.5-6and41.
610Ibid.
p.43.
611Ibid.
p.45.
612
Ibid.
p.6.

173
 506.In herearlier
written
statement
of 8 July1999,whichwasgenerally
consistent
withhertestimony,
Witness
J described
thesameincident
without
beingprecise
about
thetime(from
thecontext
itisclear,
however,
thatitoccurred
before
2 p.m.).
614

507.TheAccused
testified
thaton 13 April1994he wokeup intending
to resign
his
post.
615 At 6 a.m.he received
a callfromthe bourgmestre
of the neighbouring
commune
of Rutsiro,
who informed
him thatthe Abakiga
wereheadedfor Mabanza
commune
withtheintention
to killtherefugees
at thecommunal
office
andalsoto kill
theAccused
forhispractice
of hiding
Tutsi.
616TheAccused
wentto thecommunal
office
to warntherefugees
of thedanger.
617He assembled
themandaskedthemto flee
south,
towards
Kibuye
town.
618He assigned
twopolicemen
to accompany
thempartof
theway,whilehe remained
withone policeman
at thebureaucommunal
(seeV.3.1
619
above).

508.TheAccused
testified
thatafterthedeparture
of therefugees,
at around
6.30
a.m.,
he telephoned
thePrefect.
Fromthecommunal
office
he wentto Pastor
Cyuma’s
houseto ask forhis advice.
In the meantime,
according
to the Accused,
Mabanza
commune
wasinvaded
62° by a largenumber
of attackers
fromRutsiro.

509.TheAccused
saidthatfromthePastor’s
househe saw,at Gitikinini,
a crowdof
people
armedwithtraditional
weapons
goingin thedirection
of thebureau
communal.
TheAccused
wenthometo hisfamily.
6zITheAbakiga,
on theirwayto thecommunal
office,
foundsome"peasants"
in hiding,
whothenfledtowards
thebureau
communal
andsevenor eightof themwerekilled
there.
622WhentheAbakiga
foundthecommunal
office
otherwise
deserted,
theysplitintoseveral
groups,
somegoingoffto find

613Ibid.
p.8.
614DefenceExhibitNo.63.
615
Transcripts
of5 June2000pp.32-33.
616Ibid.
p.33.
617Ibid.
pp.35-36.
618Ibid.
p.37.
619Ibid.
p.40.
620Ibid.
pp.14-15.
621Ibid.
pp.47-48 and106;transcripts
of8 June2000p.195.
622Transcripts
of 5 June2000pp.125and129;8 June2000pp,196-197.

174
~ ~*’* ICTR-95-1A-T

.................
.....__-
!
.......................................................................
|
Karungn
(seeV.4.1below)
andothers
coming
to thehouseof theAccused.623

51 0. In frontof hishouse,
aboutonehundred
Abakiga
’‘threatened
me,telling
me I
am an Lnyenzi,
an Inkotanyi".
624TheAccused’s
family
wasinside.
TheAbakz’ga
were
asking
himwherehe hadhidtheTutsiwhohadbeenat thecommunal
office.625 The

Accused
testified:
"seeing
howferocious
theywere,I gavethemtenthousand
Francs
forthemtoleave
myhouse
andtheyleft".
626

511.Defence
Witness
RJ,a Tutsi,
who at thetimewasliving
withherhusband
in
Kigali,
butwhohadreturned
to Mabanza
commune
in March1994,testified
thaton 8
April1994,whensomeof herfamily
wentto thebureau
communal,
sheandtwoof her
children
sought
refuge
at thehouseof theAccused.
627Thewifeof theAccused
wasa
childhood
friend
ofthewitness.
628Theyhidin theservants’
quarters
inthecourtyard
of
themainhouse.
Aftertwodaysa cousin
of Witness
RJ namedChantal,
alsoa Tutsi,
joined
themY
9 Shewaspregnant.
Theyremained
in hiding
in theAccused’s
housefor
onemonth.
63°Witness
RJ saidthatoneday(shedidnotgivea date)theAccused
"came
toseeus...because
theAbakiga
werecoming
to attack
andhe wanted
towarnus":

"Headvised
ustoclosethedoor,
andthat’s
whatwedid....Weheard
thenoisethatthey
weremaking
duringtheattacks,
andwecould
alsohearthewhistles
theywereblowing,
but
wedidn’t
seethemwith
ourowneyes.
’’631

512.According
to theAccused,
theAbakiga
brought
"total
chaos"
to Mabanza.
632 As

theydeparted
thecommune,
delinquents
andthieves
beganpillaging
everywhere.
The
Accused
saidthathe wentfromplaceto placetrying
to stopthem.
633At theschool
complex
he met Witness
J, who had beenattacked;
"whenthe bandits
saw me they

623Transcripts
of5 June2000pp.48;8 June2000pp.206-207.
624
Transcripts
of5 June2000pp.107and108.
625Ibid.pp.108-109.
626Ibid.pp.107and109.
627
Transcripts
of23 May2000pp.6-8,10and12-13.
628Ibid.
p.21.
629
Ibid.
p.17.
63o
Ibid.
p.14.
631Ibid.
p.15.Seealso(inanother context)
IV.4.7
ofthepresent
Judgement.
632
Transcripts
of 23 May2000p. 113.

175
 fled".
634 Thetimewasbetween
11 a.m.andnoon.635 TheAccused
lefta policeman
with
Witness
J to fendoffanyfurther
attacks.
He thenwentto thebureau
communal
where
he hopedto findmorepolicemen
to helphimwiththesituation.
636At theoffice
he
cameuponMajorJabo,thegendarmerie
commander
basedin Kibuyetown.Jabotold
him"thattherefugees
hadgotto Kibuye
andthathe wascoming
to assess
thesecurity
situation
in Mabanza".
637 (TheAccused
sought
todiscredit
Witness
J’sallegation
that
Jabowaswithhimwhenhecameto herhouseearlier
that day.
638)

513.TheAccused
testified
as to havinggonetogether
withJaboto theKibilizi
commercial
centre
in Rubengera,
andlaterin theafternoon
to Mushubati
to see"the
damages
that[theAbakiga]
hadcaused".
639Whenhe reached
Mushubati,
at around
1 or
2 p.m.,Jabotookthegendarmes
stationed
therebackto Kibuye
town,
explaining
to the
Accused
thatthegendarmes
hadanother
64° mission.

514.Later,
the Accused
sentthe communal
driverwitha message
to the "Chinese
camp"
to borrow
an excavator
to burytherefugees
killed
in themorning
raid:"wedug
a holein frontof thebureaucommunal
and we buriedthe eightbodies"(see
also
V.4.3).
641Throughout
therestof theafternoon,
untiltheevening,
theAccused
remained
at thecommunal
office
wherehe listened
to "complaints"
aboutlostidentity
cards.
Thenhe wenthome,ateandrested.
642

Thursday
14 April1994

515.Witness
A testified
thaton Thursday,
14 April,
fromthetopof thelarger
stand
of the Stadium,
he saw the Mabanza
commune
vehiclebringing
morerefugees.
He

633Ibid.
pp.113-114.
634Ibid.
p.114.
635Transcripts
of8 June2000p.198.
636Transcripts
of5 June2000p.115.Seealso(inanother
context)
IV.5.3
ofthepresent
Judgement.
637Ibid.
p.115;
alsop.56.
638Transcripts
of8 June2000pp.201-202.
639Transcripts
of5 June2000p.116;alsop.49.
640Transcripts
of1 June2000p.137and5 June2000pp.117-118.
641
Transcripts
of5 June2000p.131.
642
Transcripts
of8 June2000p. 203,

176
 ICTR-95-1A-T

twicesawthecommunal
vehicle
transporting
refugees
to theStadium
on this day.
643
Thewitness
didnotspecify
thetimeof day.

516. At somepoint,Witness
A saw the Accused,
Semanza
and Dr.Leonard
cometo
theStadium.
Therefugees
inside
theStadium
cried
out:theyare"coming
to killUS".
644

The Accusedand the othersemergedfromthe communal

vehicleand wentto the
entrance
of theStadium
wheretheyspoketo gendarmes.
Thewitness
stated
thathe
could
nothearwhatwasbeingsaid.
645Thevisitors
movedintoa position
fromwhere
theycould
646 observe
therefugees
inside
theStadium.

517.Witness
AC testified
thaton thisdaygendarmes
continued
to allowrefugees
to
enter
theStadium,
while
prohibiting
those
already
inside
fromleaving.
647Soldiers
later
joined
thegendarmes.
648Thewitness
saidthatat 9 a.m.shewascloseto thegatesof
the Stadium
whenshe saw the Accused
withSemanza,
the communal
driverandtwo
communal
policemen
aboard"Bagilishema’s
vehicle",
stoppingand speaking
to
gendarmes.
649Thewitness
at firstsaidthatthisvisitoccured
on a Friday.
Latershe
corrected
65° ittoThursday.

5 1 8. According
to Witness
AC,theAccused
wasdressed
in civilian
clothing
andwas
unarmed;
thepolicemen
werearmed.
TM Thewitness
testified
thatshecouldnothear
whatwasbeingsaid.
652Fromherlocation,
thecommunal
vehicle
anditspassengers
werevisible.
Usinga photograph,
thewitness
indicated
thatthevehicle
wasparked
alongside
thewallof theStadium,
further
awayfromtheentrance
thanon theprevious
day(seeabove).
653

643Transcriptsof 17 November
1999pp.21-22.
644Ibid.p.28.
645
Ibid.
pp.22,27-29 and48-49
(fortheposition
oftheparked
vehicle).
646
Ibid.
pp.28-29.
647
Transcripts
of18 November
1999p. 41.
648
Ibid.
p.43.
649Ibid.pp.43-44.
650
Ibid.
p.68.
651Ibid.p.95.
652Ibid.pp.43-44.
653
Seeibid.pp.68-69, andProsecution
Exhibit
No.60.Themarked
photograph
is in thepossession
of
theChamber.

177 ~
 519.OtherProsecution
witnesses
testified
as to theAccused’s
presence
in Mabanza
commune
at various
timesduringThursday
14 April1994.According
to Witness
AB,
theattack
against
Karungu
continued
on thisday.It waslaunched
by theAccused
and
lasted
thewholeday,from9 a.m.to 5 p.m.(seeV.4.1below).
654Witness
H testified
thattheAccused
followed
the attackers
heading
forKarungu’s
houseon 14 April
1994.
655Witness
Z testified
thathe waspresent
on themorning
of thatdaywhena
communal
policeman
delivered
a message
fromtheAccused
to theeffect
thatPastor
Muganga
656 should
be killed
(seeV.4.2below).

520.The Accused
testified
thaton 14 April1994theAbakiga
returned
to Mabanza
commune
in greater
numbers
thanthedaybefore.
657Theyarrived
at around
8 a.m.The
Accusedwas at home.
65s Somepolicemen
who wereat the bureaucommunal
tried
without
success
to repel
theAbakiga
by shooting
intotheair.Thepolicemen
retreated,
andtheAbakiga
againwentto Karungu’s
659 house.

521.At around
thesametime,another
groupof "peasants"
who hadbeenin hiding
returned
to the bureau
communal
andweretakenby surprise
by theAbakiga.
While
attempting
to fleetowards
theKibilizi
market,
theywereattacked
fromthefootball
fieldandsevenor eightwerekilled,
including,
according
to theAccused,
Pastor
Muganga
(seeV.4.2below).
66°Later,
as theAbakiga
withdrew
fromthecommune,
they
looted
andattacked
people
without
discrimination.
Theyallegedly
evenlooted
the
houseof theAccused’s
parents,
fromwheretheystolesofas,
chairs,
foodandother
661
items.

522.The Accusedtestified
as to havingaskedpolicemen
and membersof the
Kamuvunyi
cellule
committee
to callon thepeople
to helpburythosekilled
in the

654Transcripts
of 15 November1999p. 85.
655Transcripts
of19 November1999pp.39-40.
656Transcripts
of9 February2000p.72.
657Transcripts
of 5 June2000pp.113and121.
658Ibid.
p.121.
659Ibid.
p.122.
660Ibid.
pp.125-126and129;transcripts
of8 June2000p. 225.
661
Transcripts
of5 June2000p.125.

178
 IOT
951AT
morning’s
raid.PastorMuganga’s
bodyand thatof anotherwereclaimed.
Thebodies
thatwerenotclaimed
662 wereburied
closeto thefootball
field.

523. The Accusedstated that on this day a Tutsi named ChantalMukasanoand

another(unnamed)
Tutsiwho was an officerof the communal
administration
came
wellto seekrefugeat theAccused’s
residence.
663Mukasano
allegedly
stayedwiththe
Accuseduntilhe arranged
for her to be takento safetyin Gitarama.
(As mentioned
above,Witness
RJ testified
thathercousinChantal
soughtrefugeat thehouseof the
Accused
twodaysaftersheherself
hidthereon 8 April1994.)

Friday15 April1994

524. No witness testifiedas to having seen the Accused,Mabanzacommunal

authorities,
or the communal
vehicleat the Stadiumon this day.The onlyalleged
sighting
of the Accusedon 15 April1994was at the bureaucommunal
of Mabanza,
by
Witness
AB,in connection
withthekilling
of Pastor
Muganga
(V.4.2).

525.The Accusedofferedno accountof his actionson thisor the nextday.Other

potential
664 sources
of information,
suchas theAccused’s
diary(towhichhe referred),
or thecommune’s
register
of incoming
andoutgoing
mail,
665alsoareof no assistance.

662Ibid.
p.133.
663Ibid.
pp.19-24.
664Prosecution
Exhibit
No.85consists
ofphotocopied
pagesofthediary
keptbytheAccused
in1994.
In
fact,theprinted
diary
isfortheyear
1991,
buttheAccused
adapted
itforusein1994bydating
hisentries
- oratleastsomeofthem- byhand
(seetranscripts
of6 June2000
p.29).Thediarydoesnotappear
containanyentriesfortheperiod
inquestion.
Onthepagemarked 107(tinsbeinga filereference
number)
thereareentries
for8,10and9 April
1994,inthatsequence.
Thenext dated
entryisonp.108
andrelates
to20April1994.
665
Duringtheexamination-in-cinef
oftheAccused,
thereoccurred
thefollowingexchange:
"[Q.]
How
doyouexplainthisgapbetween
thedateof12April1994and27April1994?[A.]Between
the12and27
April1994thatindicatesthechaoswinchwasprevailing
inthecommune. Thecommunewastotally
paralysed.
Thesecretariat
wasnotfunctioning.
Allthecommunaldepartments
wereparalysed.
Thatis
whybetweenthe12and27thereisnoletter,there
isnoother letter
winchwentoutofthecommune."
(Transcripts
of6 June2000
p.100;seealso
8 June
2000p.260.)

179 ~, ~
 526.According
to Witness
AC,in the afternoon
of thisday,theMabanza
communal
vehicle
arrived
at theStadium
transporting
threepolicemen
and"armed
Hutuswho
wereplanning
to kill".
666 Amongthemwerefiveor six Interahamwe,
who moved
around
brandishing
machetes
andspears.
Thevisitors
didnotstay- they"wentback
thewaytheycame...thatis towards
Mabanza",
at around
5 p.m.
667Soonaftertheir
departure
thewitness
heardgunshots
coming
fromthe"catholic
church";
laterthat
evening
somewounded
peoplecamefromthe churchandsaidthatothershadbeen
killed
66s there.

Sunday
1 7April
1994

527.Witness
Z testified
thathe wasstationed
at theTrafipro
roadblock
in Mabanza
fromthedayit waserected
on 14 April1994untilit wasdismantled
by theFrench
in
July(seeV.5.4 below).
669He saidthattheAccused
regularly
stopped
to exchange
greetings
withthoseworking
at theroadblock.
EachtimetheAccused
wentto Kibuye
townhe wouldask theTrafipro
staffto tellanyone
looking
forhim wherehe had
gone.
67°Thisencounter
andrequest
alsooccurred
on thedayof theattack
on the
Complex
or - thewitness
couldnotremember
clearly
- on thedayof theattack
on the
Stadium.
On thisday (whichever
it was)the Accused
was in thecommunal
vehicle
withSemanza
andsomeAbal~’ga.
TheAccused
wasarmedandoneof theAbal~’ga
was
alsocarrying
a gun.671 Witness
Z’stestimony
wasgenerally
consistent
withhisearlier
statement
672 of 18 September
1999.

528.WitnessAA indicated
thathe arrived
withthe Accusedat the Kibuyetown
roundabout
in theafternoon
or evening
of 17 April1994.Thewitness
didnotallege

666Transcripts
of18November
1999pp.46-47.
667
Ibid.
p.48.
668Ibid.
669
Transcripts
of8 February
2000
p.50.
670
Ibid.
p.53.
671
Ibid.
pp.53-54.

180
.e:~M
" ’~’~¢
ICTR-95-1A-T

thattheAccused
visited
theStadium
onthisday(see3.3.2
below).

529.TheAccused
testified
thatveryearlyin themorning
of 17 April1994Pastor
Eliphas
andsomeTutsi
nunscametoaskforhisprotection.
Hehidthemin anoffice
of
thebureau
communal.
Ataround
9 p.m.theyreturned
totheirparish.
673

530.In thisconnection,
Defence
Witness
RA testified
thatveryearlyon 17 April
1994,
after
theAbakiga
hadthreatened
tokilltheTutsinunsif theywerestill
around
whenthatgroupof attackers
returned,
shewenttogether
withthefivenunsandPastor
Elephas
to thecommunal
office.
TheAccused
discouraged
themfromgoingto Kibuye
townbecause
of theroadblocks
alongtheway.Instead,
he provided
themwitha room
in the IGA building
wheretheyremained
hiddenthe wholeday.He changedthe
identity
cardof oneof thenuns.At nightthefugitives
wentto thehouseof Pastor
Elephas,
andfromthere
theywentagain
intohiding.
674

3.2.7Findings
on theAceused’s
Responsibility

(i)General
Observations

531.Thequestion
whether
theAccused
waspresent
at theStadium
is critical
to all
thecharges
covering
theperiod
13 to18 April1994.
It follows
fromcaselawthatmere
presence
atthescene
ofcriminal
events
is notinitself
incriminating
(seeIII.l.1).
One
obvious
reason
for thisis thatpresence
mayhavethe purpose
of preventing
the
commission
of crimes.
Nonetheless,
if theProsecution
canestablish
thattheAccused
wasattheStadium
during
thecritical
period
in question,
other
elements
of participation
in thecrimemaybe presumable
or imputable.
A personin authority,
suchas the
Accused,
runstheriskofbeing
identified
withtheperpetrators
of thecrimes
unless
he
is seentobe actively
anddemonstrably
opposing
thecrimes.
Therefore,
theProsecution
mustleadsufficient
evidence
to convince
theChamber
beyond
reasonable
doubtthat
theAccused
waspresent
attheStadium
at somepoint
during
therelevant
period.

672Defence
Exhibit
No.65.
673Transcripts
of5 June
2000
pp.134-135
and8 June
2000
p.248.

18I
 ~ ~’~ ICTR-95-1A-T

............................................................................................................................

532.In viewofthis,theChamber
willhaveto treat
a bareallegation
of presence
with
caution.
Putdifferently,
a lackof detail
willraisedoubts.
TheChamber
willthen
examine
thetestimonies
of other
witnesses,
orlooktoprior
statements
toclarify
ortest
a witness’s
allegations.
If corroboration
isnotfound
through
thisprocess,
doubts
will
remain
andpresence
willnothavebeenestablished.
It is incumbent
on theProsecution
to adduce
sufficient
evidence
to convince
theChamber
thattheAccused
waspresent
and,ifso,todemonstrate
hisroleduring
theevents.

(ii)Presence
of theAccused
on Wednesday
13 April1994

533.Two Prosecution
witnesses,
A andAC, testified
thatthe Accused
wasat the
Stadium
at around
2 p.m.and3 p.m.,respectively,
in theafternoon
of 13 April1994.
Otherwitnesses
claimed
to haveseenhimin Mabanza
commune
on thisday,andthe
Accused
statedthathe was therethe wholeday.The Chamber
willfirstexamine
whether
the evidence
relating
to theAccused’s
presence
in Mabanza
commune
rules
outthepossibility
thathe wasat theStadium.
In thiscontext,
theChamber
observes
thatthedistance
between
Mabanza’s
bureau
communal
andKibuye
townis onlyabout
16 km.TheChamber
willthenassess
theevidence
of thetwowitnesses
whoallegedly
sawtheAccused
at theStadium.

534.According
to theAccused,
he spenttheafternoon
of 13 April1994dealing
with
theaftermath
of theattack
by theAbakiga.
He wasin Mushubati
at around
1 or 2 p.m.
andat thebureau
communal
during
therestof theafternoon.

535.With regardto the morning,WitnessJ testifiedthatthe Accusedand

Commander
Jabocameto her houseat around
10 a.m.,afterit had beenlooted
by
Interahamwe.
675TheAccused
saidthathisvisitto Witness
J occurred
between
11 a.m.
and noonof thatday.Of otherProsecution
witnesses,
Witness
K claimed
to have
encountered
the Accused
in Mabanza
commune
around10 a.m.,whileWitnesses
AB
and H implicated
the Accused
in the attackagainst
Karungu,
the formerwithout
specifying
thetimeandthelatter
stating
thatitwasaround
8 a.m.Bethatasitmay,the

674Transcripts
of2 May2000
pp.49-51.

182
 ~,~)~ ICTR-95-1A-T

IGOO
Chamber
observes
thatthereare no confirmed
sightings
of the Accused
in Mabanza
commune
during
theafternoon.

536.Of the two witnesses

whoclaimed
to haveseenthe Accused
at the Stadium,
Witness
A madethesighting
ataround
2 p.m.,
as therefugees
waited
forthegates
tobe
opened.
According
to thiswitness,
theAccused
hadfollowed
therefugees
fromthe
communal
office
in Mabanza.
No otherwitness
testified
to having
seentheAccused
on
thewayto Kibuye
town(seeV.3.1).
In theChamber’s
viewthisis notsignificant.
The
witness
wasat therearwhentherefugees
leftthecommunal
office.
If theAccused
followed
thecrowd,
thiswouldexplain
whyWitness
G, whowasin thefront,
didnot
seehim.Moreover,
according
to Witness
A’stestimony,
alongthewaytherefugees
cameupongendarmes
in twobuses,
withwhomtheAccused
stopped
to talk.
676It is
possible
thattheAccused,
afterfirst
having
followed
thecrowd,
turned
backandthen
rejoined
itlater,
whentherefugees
wereinfront
oftheStadium.

537.The Chamber
notesthatWitness
A’sobservation
of theAccused
wasrecounted
withthe minimumamountof information.
The witnessdid not mentionwhatthe
Accused
wasdoing,
whether
he wasaccompanied
or alone,
whether
he wasstanding
or
sitting
in a vehicle,
whether
he wasarmedor unarmed.
Infact,theProsecution
adduced
nota single
detail
overandabovethemereallegation
thatWitness
A sawtheAccused
in theproximity
oftheStadium
gates.

538.In thisconnection
the Chamberobserves
thatin noneof his two previous
statements
to investigators
didWitness
A mention
anysighting
of theAccused
on 13
April1994.His secondstatement,
dated29 June1999,dealtwithinformation
specifically
about
theAccused.
Thewitness
there
stated
that"wewalked
tothestadium
and[theAccused]
joined
us therethefollowing
day,thatis,Thursday".
677Thus,a
statement
takenlessthanfivemonthspriorto his testimony
beforethe Chamber
indicates
thatthe Accusedcameto the Stadiumnot on the Wednesday
withthe
refugees,
asWitness
A testified,
butonThursday,
thedayafter
their
arrival.
Thiswould

675Transcripts
of31January
2000,in-camera
session,
pp.4-7and43.
676Alsoin hisstatement
of 1 February
1996,thewitness
statedthattherefugees
passed
"twobuses
transporting
soldiers"
(Defence
Exhibit
No.6).

183
 IoTR951AT
coincide
withhistestimony
thaton 14 Aprilhe sawtheAccused,
Crlestin
Semanza
and
Dr.Leonard
arrive
attheStadium
(seebelow).
In hisfirst
statement,
dated1 February
1996,thewitness
indicated
that"by16 April"
he hadseentheAccused,
Semanza
and
Doctor
Hitimana
Leonard
andothers
aboard
a Toyota
Hiluxaround
theStadium.
67sIt
wasonlyduring
histestimony
thatWitness
A stated
thathe sawtheAccused
on both
13 and14 April.
TheChamber
findsthatthiscreates
somedoubtas to whether
the
recollection
ofthewitness
wascorrect
whenhetestified
thathe sawtheAccused
at the
Stadium
on 13 April1994.

539.Also,WitnessAC testified
to seeingthe Accusedon 13 April1994at the
Stadium,
butat around
3 p.m.TheChamber
doesnotattach
significance
to thefactthat
Witness
A madehisobservation
at 2 p.m.,whereas
Witness
AC apparently
sawhimat
3 p.m.Witness
A testified
thathe wasgiving
onlyan estimate,
as he hadno watch.
Moreover,
itis quite
understandable
ifbothwitnesses
haddifficulties
inrecalling
the
exacttimeof theirobservation
almost
sixyearsaftertheevent.
However,
Witness
A
testified
thattheAccused
joined
therefugees
("nous
a retrouvr")
at around
2 p.m.
before
thegatesof theStadium
wereopened,
whereas
Witness
AC observed
himarrive
at around
3 p.m.aftertherefugees
werealready
inside.
Moreover,
if theAccused
was
present
whenthe refugees
fromMabanza
wereaboutto entertheStadium,
it seems
unlikely
thathewouldreturn
at a laterstage
to askwhether
therefugees
he hadsent
hadarrived,
as suggested
by Witness
AC.

540.Witness
AC provided
somewhat
moredetailaboutheralleged
sighting
of the
Accused
on 13 April1994.However,
thedetail
is inconsistent
bothin hertestimony
andwhencompared
withherearlier
statement
of 21 June1999,whereshedeclared:

"Ataround 3:00p.m.,Bourgmestre
BAGILISHEMA
andhisdeputy, SEMANZA,arrived
atthestadiumina commune
vehicle.
Theyentered
thestadiumandstopped
a fewmetres
fromthegate.Addressing
thegendarmes,
hetoldthem:"Wehavesentyouthepeople
you
requested."
Heleftafter
saying
that
tothegendarmes.
I heard
himmakethose
remarks."679

677
Defence
Exhibit
No.79 (emphasis
added).
678Defence
Exhibit
No.6.
679
Defence
Exhibit
No.8.

184
 ._ .~,.T~,,
ICTR-95-1A-T

............................................................................................................................

541.During
hertestimony,
thewitness
at firstsaidthattheAccused
attempted
to
enter
theStadium
butdidnot.Later
in testimony
shesaidthattheAccused
took"afew
steps"
intotheStadium.
(Herstatement
of 21 June1999alsohastheAccused
entering
theStadium.)
Moreover,
according
to thestatement,
thewitness
overheard
theAccused
tellgendarmes
that"[w]ehavesentyouthepeople
yourequested".
According
to her
testimony,
however,
theAccused
instead
askeda question,
namely
whether
"thepeople
whohe senthad arrived".
Witness
AC testified
thatshe and otherswerehit by
gendarmes
as theyattempted
to followtheAccused
towards
the entrance,
butthe
witness
wasnotaskedwhether
theAccused
hadnoticed
thecommotion
or thebeatings.
Theevidence
adduced
by theProsecution
in relation
to thisvisit
is a baresketch.
In
manywaysit is similar
to thesketch
provided
by Witness
AC forthealleged
visiton
14 April1994(seebelow).
In theabsence
of detail,
thiscoincidence
in itself
is
concern,
forit raises
thereasonable
possibility
thatthewitness
wrongly
remembered
a
single
visit
astwoseparate
visits.

542.ThefactthatWitness
G didnotmention
seeing
theAccused
at theStadium
on
anydaypriorto 18 April1994doesnotcastdoubton theclaims
of Witnesses
A and
AC.Depending
on a person’s
location
within
theStadium,
thecrowded
circumstances
there
would
notruleoutthata brief
visit
could
gounnoticed.

543.Forthe abovereasons,
theChamber
findsthatit has notbeenproved
beyond
reasonable
doubtthattheAccused
waspresent
at theStadium
in Kibuye
on 13 April
1994.
Evenassuming
thathe wasthere,
thetestimonies
of thewitnesses
provided
little
information
aboutthepurpose
of thevisit.
Witness
AC’stestimony
seemsto indicate
thathe simply
cametoverify
whether
therefugees
hadarrived
attheStadium.
Thereis
insufficient
evidence
of criminal
intent.
No crimesundertheStatute
had been
committed
at theStadium
by thatstage.
Therefore,
there
canbeno question
of liability.

(iii)
Presence
of theAccused
on Thursday
14 April1994

544.Witnesses
A andAC testified
to seeing
the Accused
againon 14 April1994at
theStadium.
Witness
AC alleged
thatshesawhimarrive
in thecommunal
vehicle
with

185 "~/L V .
 ICTR-95-1A-T

............................................................................................................................

Semanza
at 9 a.m.Witness
A claimed
to haveseentheAccused
andSemanza
arrive
at
a timehedidnotspecify;
Dr.Leonard
waswiththem.

545.Two Prosecution
witnesses
located
the Accused
in Mabanza
communeon this
day.Witness
AB testified
thattheattack
against
Karungu
waslaunched
by theAccused
at around
9 a.m.Witness
H testified
thattheAccused
followed
Karungu’s
attackers
on
themorning
of 14 April1994.

546.TheAccused
didnot account
for hismovements
on 14 April1994,asidefrom
locating
himself
at hishomeat 8 a.m.andtending
to theburial
of victims
of the
Abakiga
atsomeunspecified
timelater
intheday.

547.Thecircumstances
of Witness
A’ssighting
of theAccused
on thisday arenot
clear.
He purported
to haveseenthecommunal
vehicle
arrive
twicecarrying
refugees.
It is unclear
fromthewitness’s
account
whether
theAccused
wason boardon oneor
boththeseoccasions,
or whether
he cameat another
time.Thewitness
wason the
larger
stand(across
fromtheStadium’s
mainentrance)
whenhe sawtheAccused.
hasnotbeenestablished
wherethewitness
stoodalongthelength
ofthestand,
andin
particular,
whether
hewascloser
tothegate-side
orhill-side
endofthestand.

548.AsfortheAccused’s
conduct
andotherdetails
concerning
thecourse
ofhisvisit,
theinformation
supplied
by Witness
A wasverylimited.
TheAccused
wentfromthe
communal
vehicle
to themainentrance,
wherehe spoketo gendarmes.
At thispointthe
refugees
criedout:theyare "comingto killus".Fromthe gatesthe Accused
repositioned
himself
(toan unspecified
place)
so asto havea viewof therefugees.
fu_n_her
details
were
provided.

549.In theabsence
of details,
theChamber
haslooked
intothewitness’s
previous
written
statements.
Thechronology
of visits
by theAccused
as foundin Witness
A’s
testimony
doesnot coincide
withthatof hisstatement
of 29 June1999.In this
statement,
Witness
A mentioned
a visiton Thursday
14 April1994by theAccused
to
theStadium,
appearing
to suggest
thatthiswastheAccused’s
firstsuchvisit
since
the
refugees
departed
Mabanza
commune:

186
 "Wewalked
tothestadium
andhejoinedustherethefollowing
day,thatis,Thursday.
He
waswithhisdeputy,
Semanza,
andDr L6onard
...Theystopped
at thestadium
entrance.
Whentherefugees
shouted:
’Theyhavecometokillus’thethree
menleft.Thefollowing
day,theBourgmestre
cameback,thistimeonlywithhisdeputy,
buttheyleftwithout
entering
’’68° thestadium.

550.Thesecond
visit,
according
to thetestimony,
appears
to be thesameas thefirst
visit,
according
to thestatement
(bothmention
Dr.Leonard
andtherefugees’
vocal
reaction).
In theearlier
of Witness
A’stwostatements,
dated1 February
1996,
reference
apparently
tothisvisit
states
thatit tookplace
"by16 April";
thevisitors
included
"a fewInterakamwe";
andtherefugees
pelted
themwithstones.
681

551.Witness
AC testified
thatthe Accused,
Semanza,
thecommunal
driver
andtwo
communal
policemen
arrivedin a car at the mainentrance
of the Stadium.
They
stopped
to speakto gendarmes.
The Accused
was unarmed
and dressed
in civilian
clothing.
Thewitness
observed
thiseventfromherground-level
position
closeto the
gates.
It is notclearto theChamber
howshewasableto seetheAccused
through
the
Stadium
gates,
or indeed
howshesawthecar,whichwasparked
on theothersideof
theStadium
wall.Witness
AC’stestimony
doesnotconvincingly
corroborate
thatof
WitnessA. ApartfromSemanza,the personswho arrivedwiththe Accusedare
different
in eachaccount.
AndWitness
AC didnotinclude
a moststriking
andrelevant
detail
alleged
by Witness
A, namely
therefugees’
criesthatthevisitors
hadcometo
killthem.

552.Witness
AC atfirst
testified
thatthevisitinquestion
tookplace
on Friday,
that
is, on 15 April1994.Latershe changedthe day to Thursday.
The doubtin the
Chamber’s
mindis notdispelled
by consideration
of thewitness’s
statement
of 21 June
1999.
Thereshedeclared
thatit wasthePrefect
(rather
thantheAccused)
whocame
theStadium
on14 April,
encircling
it withsoldiers
andgendarmes.
In other
words,
five
months
before
hertestimony,
in a statement
thatspecifically
related
totheAccused,
the
witness
didnotmention
hispresence
on thatday.According
to thestatement,
the
Accused’s
second
visitto theStadium
after13 April1994didnotoccuruntil"16

680Defence
Exhibit
No.7.

187
 ....................
:....................................
:........................
pnl. However,
thlsdatealsocreates
mlce~mnty,
as thewitness
declared
thatthe
attack
on theComplex
occurred
onthisdate,
whereas
thefacts
of thecasereveal
thatit
occurred
on 17 April1994.

553.In lightof theabove,

theChamber
doesnotfindthatit hasbeenestablished
beyondreasonable
doubtthatthe Accused
was present
at the Stadium
on 14 April
1994.The paucity
of the evidence
as to the Accused’s
presence
(including
the
conditions
of observation
in a crowded
Stadium)
adduced
by theProsecution
from
Witnesses
A andAC,whenconsidered
together
withthelackof mutual
corroboration,
thesigns
ofuncertainty
intheaccounts
ofbothwitnesses
asto thedateofthesighting,
and the suggestion
by two otherProsecution
witnesses
thatthe Accusedwas in
Mabanza
commune
at 9 a.m.on the day in question,
meansthatthe Prosecution’s
evidence
of theAccused’s
presence
at theStadium
on 14 April1994fallsshortof the
applicable
standard
of proof.

554.Thereis no witness
testimony
before
theChamber
of sightings
theAccused
at
theStadium
on 15-17April1994.Consequently,
theChamber
findsthatit hasnotbeen
established
beyond
reasonable
doubtthattheAccused
waspresent
at theStadium
on
15-17
April1994.

(iv)Conclusion

555.ThefactthattheProsecution
hasnotbeenableto demonstrate
thattheAccused
wasat theStadium
at somepointduring
theperiod
13 to 17 April1994meansthatthe
Accused
cannot
beardirect
responsibility
forthedetention
of therefugees
orforthe
conditions
oftheir
detention.
Ina later
section
(V.3.4.4(iii)),
theChamber
willconsider
further
grounds
ofliability
of theAccused
intheKibuye-town
events.

681Defence
Exhibit
No.6.
682Defence
Exhibit
No.8.

188
 3.3 Attackon Refugees
at HomeSt. JeanComplex,
KibuyeTown,17 April1994

3.3.1Introduction

TheIndictment

556. Paragraphs
4.25and4.28of theIndictment
read:

"4.25On17April1994those
individuals
whowereordered
byIgnaceBagilishema
toseek
refugeatthecomplex,
wereattacked
bya combinedforce
of attackers
consisting
ofthe
Gendarmerie
Nationale,
communal
police,
Interahamwe
andarmedcivilians.
Theattackers
used
guns,grenades,
machetes,
spears,
cudgels
andotherweapons
tokillthepeople
inthe
Complex.

4.28In ordering
theTutsi
menwomenandchildren
tothecomplex
andstadium,
Ignace
Bagilishema
kneworhadreason
toknowthatattacks
atthese
locations
[were]
imminent."

Submissions
of theParties

557.TheProsecution
alleges
thaton 17 April1994Mabanza
refugees
directed
to the
Complex
wereattacked
and killedby gendarmes,
communal
police,
Interahamwe
and
armed
civilians.
683TheProsecution
appears
nottoallege
thattheAccused
participated
in killings
at theComplex.
Thisis evident
fromthewording
of paragraphs
4.25and
4.28of theIndictment,
andfromoralsubmissions:
"...it is theProsecution
casethat
notonlydidtheAccused
ensure
thattheTutsis
reachKibuyestadium
and the...
complex,
butalsothathe participated
in theattack
on the Tutsis
at theKibuye
684 TheProsecution
stadium". does,however,
suggest
thattheAccused
mayhavevisited
theComplex
on 17 April1994,aftertheattack
hadended.
685TheProsecution
charges
theAccused
686 withgenocide
in relation
tothisevent.

683
684Prosecutor’s
writtenClosing
Remarksp.32paras.
200-203.
Transcripts
of 4 September
2000(oralclosing
arguments)
p.75,emphasis
added.
685
Transcripts
of18October2000(oralclosing
arguments)
p.58.

189
 "~"~’

~) ICTR-95-1A-T

!
m
~ f’l~

558.TheDefence
argues
thattheProsecution
hasfailed
to present
anyevidence
to
prove
thattheAccused
ordered
refugees
to go to theComplex.
687TheAccused
didnot
in any way participate
in theattackon theComplex.
On 17 April1994he was in
Mabanza
commune
assisting
a pastor
andfiveTutsisisters
to hidefromtheAbakiga.
688

3.3.2Deliberations

559.Of all Prosecution

witnesses,
onlyWitnessAA suggested
thatthe Accused
foundoutaboutthemassacre
at theComplex
on thedayit occurred,
namely,
on the
afternoon
before
theattack
ontheStadium.

Witness
AA

560.WitnessAA claimedto havejoineda numberof Abakigafor the purpose

of
killing
refugees
gathered
in Kibuye
town.Hesaidthaton thedaybefore
theattack
on
the Stadium,
on his way backfromworkat around2 p.m.,he visited
assistant
bourgmestre
Semanza’s
house,wherehe foundaboutfortyAbakiga.
689 Theywere
armedwithgrenades,
clubsandsticks.
69°FromSemanza’s
housetheyallwentto the
bureaucommunal.
The witnesswas armedwitha club.He saidthatthe Accused
distributed
firearms
to "soldiers"
froma stockbrought
to thecommune
by a certain
Munyampundu.
691In cross-examination,
thewitness
indicated
thathe didnotactually
seethealleged
distribution
takeplace,
forhe wasstanding
outside
thecommunal
692
office.

686Prosecution’s
written
ClosingRemarksp. 90paras.69and71.
687DefenceClosingBriefp.
69 para.582.
688Ibid.paras.583-584.
689
Transcripts
of10 February
2000p. 24.Thewitness actually
said"18ofApril". Laterinexamination-
in-chief
(p.33),ittranspired thatthewitness herewasreferring
tothedaybefore theattack
on the
Stadium,whichaccorffmg
to theProsecution’s chronology
occurred
on 18 April1994.Laterstill,the
witness
affirmedthattheattackon theStadiumoccurred
on18April,thedayafter hisrecruitment
bythe
Abakiga,
whichtherefore
mustbedated17 April 1994(p.51).
690Transcripts
of10February2000p.16.
691Ibid.pp.21-22and11February 2000pp.21-25.
692Transcripts
of 11February
2000pp.20-21.

190
 icwR95
1AT
561.Witness
AA and hiscompanions,
including
theAccused
andSemanza,
allegedly
leftMabanza
forKibuye
townin twocars.Thewitness
travelled
in a bluecommunal
vehicle
drivenby Nshimyimana;
the Accused
was in the secondvehicle,
a green
Daihatsu;
others
- thewitness
estimated
a totalof "10thousand"
attackers
- wenton
693Thewitness
foot. thenclarified
thathe andtheAccused
in facttravelled
together,
in
thecommunal
vehicle.
Semanza
boarded
theothervehicle.
694Thewitness
couldnot
recall
69s thetime
oftheir
departure.

562.On reachingKibuyetownroundabout,
WitnessAA and his companions
saw
manybodieson theroad:"Thewholeroadgoingto theHomeSt. Jeanwas fullof
bodies.
’’696
Thevehicle
hadto stopsoasnottorunthemover.
Thewitness
gotout.The
Accused
droveoffinthecar"inthedirection
of thestadium
...Maybe
he wenttowards
thePrefecture".
697Thewitness
andothers
walked
to theComplex.
Theretheysawmore
bodies
and wounded
people.
Inside
the church
the witness
encountered
someof the
killers,
whowerecooking
riceandbeans.
Thewitness
alsowentdownto LakeKivu,
where
698 he sawmorebodies.
Fromthere
he returned
to theroundabout.

563.Witness
AA duringthistimedidnot see the Accused
at the Complex.
699 He
spent
thenight
atthecourt
building
nextto theStadium.
The"authorities"
directed
him
andothers
to staythere]
°° He wastoldby thecommunal
driver
thattheAccused
would
overnight
7°1 at theBethanie
hotel
in Kibuye
town.

Witness
A

564.Witness
A testified
thaton thenightof Sunday
17 April1994,whileat the
Stadium,
he heardgunshots
andexplosions
andsawvehicles
on theroadtransporting

693
Transcripts
of10 February
2000pp.18and27-28.
694Ibid.pp.29-30and11February
2000p.30.
695Transcripts
of10 February
2000p.30.
696Ibid.
p.32.
697Ibid.p.33and11February2000pp.33-34.
698Transcripts
of10February2000p.32.
699
Transcripts
of11February2000p.33.
7o0
Transcripts
of 10February
2000p. 35and11 February
2000p.35.

191
 ICTR-95
- 1A-T
¯ ~(’~ t~

.............................
gendarmes,
policemen,
andpeople
tr’q
armedwithclubsandsticks.
Thewitness
saidthat
twopeople
camefromHomeSt.Jeanthrough
thebushto theStadium
saying
thatthey
weretheonlysurvivors
7°2 of anattack
on theComplex
- theothers
hadbeenshot.

Witness
AC

565.Witness
AC testified
thaton "Saturday",
at around
5 p.m.,she"heard
gunshots
andpeople
who werewithme saidthosegunshots
camefromthechurch".
7°3During
thenight,wounded
peoplecameto theStadium.
Theysaidthattheycamefromthe
Catholic
Church
andthatseveral
other
people
hadbeenkilled
there.
7°4Thewitness
said
thatthe arrivals
were"manyin number",
but wasnotableto givean approximate
figure.
7°5Shedidnotmention
seeing
theAccused
on thedaysheheardgunshots
from
thechurch.

Witness
CP

566.Afterretreating
fromKibuyeroundabout
on 17 April1994(seeV.3.2.4),
Witness
CP wentto hideat theGitesi
bureau
communal,
whichafforded
hima viewof
thesurrounding
area,including
theroundabout.
7°6Thetimewasbetween
10 and11
a.m.He stayed
therefortwoto threehours.
7°7He sawthegroupof Abakiga
at the
roundabout
splitintotwo.Onehalftooktheroadto thePrefecture,
theotherheaded
towards
LakeKivu.Thewitness
stated
thathe didnotseetheAccused,
theMabanza
commune
vehicle
or anyothervehicle
on theroadat thattime.
7°8Nordidhe seethe
Prefect.
7°9Fromhisvantage
pointthewitness
alsohada partially
obstructed
viewof

701
Transcriptsof10 February
2000pp.35-36.
702Transcriptsof 17November1999pp.29-30.
7o3Transcripts
of18 November1999p. 48.Saturday
was16 April1994,thedaybefore
theattack
onthe
Complex,
according to theProsecution’s
chronology.
704Transcriptsof 18November1999p. 48.
7o5Ibid.
p.92.
706Transcripts
of 24May2000p.22.
707
Ibid.
p.26.
7o8Ibid.
pp.23-24and83-84.
709Ibid.
p.78.

192
 the churchcourtyard
at HomeSt. Jean.He knewthatrefugees
werelodgedthere
because
he livedcloseby andhadvisited
acquaintances
of hiswhoweresheltering
at
theComplex.
71°He hadnotthenseenanygendarmes
at theComplex.
711

567.Fromthe groundsof Gitesi’s

communal
office,WitnessCP heardgrenade
explosions
comingfromthe direction
of the Complex.
712 He saw peoplefromthe
church
713 running
downthehillto LakeKivu,whereattackers
werewaiting
forthem.
Thewitness
added:
"...we couldseepeople
fighting
whereas
whatwashappening
in
theHomewasnotveryclearly
visible
because
ofthelocation
...However
....youcould
seepeople
714 throwing
themselves
inLakeKivuandit isclear
thatpeople
werekilled".

568.The Accused’s
account
of his whereabouts
on 17 April1994was considered
under
section
V.3.2.6
above.
(Hewasat thebureau
communal
in Mabanza
earlyin the
morning,
whenfiveTutsinunswerebrought
to himforhiding.
Thisconforms
withthe
testimony
of Defence
Witness
RA.)

3.3.3Findings

569.Theparties
agreethaton 17 April1994therefugees
at theComplex
cameunder
attack.
Itstime-period
is notclearfromtheevidence.
Witness
A indicated
thatthe
attack
started
at "night";
Witness
AC saidaround
5 p.m.Witness
CP hada viewof the
unfolding
attack
fromGitesi’s
bureau
communal,
wherehe indicated
thathe remained
until
about2 p.m.Witness
AA’stestimony
doesnotgivethetimeofhisalleged
arrival
in Kibuye
townon 17 April1994,butin hiswritten
statement
of 22-23September
1999
he declared
thatit wasaround
3 p.m.By thetimeWitness
AA arrived
at theComplex,
theattack
wasalready
over.

710Ibid.
pp.34and62.
711Ibid.
p.31.
712
Ibid.
pp.33-34.
713Ibid.
pp.28and35.
714
Ibid.
pp.28-29.

193
 ICTR-95-1A-T
~ ~

570.TheProsecution
hasnotdemonstrated
beyond
reasonable
doubtthattheAccused
ordered
refugees
gathered
at Mabanza’s
bureau
communal
to assemble
at theComplex
in Kibuye
town(seeV.3.1above).
Noris thereanyevidence
to showthattheAccused
knewin advance
thatan attack
on theComplex
wasimminent
(seeV.3.2above).

571.No witness
alleged
thatthe attackon theComplex
was conducted
underthe
authority
or withtheparticipation
oftheAccused.
Witness
CPobserved
theattack
from
a distance.
Hisaccount
didnotimplicate
theAccused
in anyway.Witness
AA wasnot
present
duringthe attack.
He merelywitnessed
its aftermath.
According
to the
testimony
of thiswitness,
at thetimeof theattack
on theComplex
he waseither
in
Mabanza
commune
or travelling
fromthecommune
to Kibuyetownin the company
of
theAccused.

572.Moreover,
the Accusedwas not at the Complex,
according
to WitnessAA’s
testimony.
Thereis no testimonial
evidence
thatthe Accused
was present
at the
Complex
at any timeduring
the period13 to 17 April1994.Equally,
thereis no
evidence
thatsubordinates
of theAccused
participated
intheattack
on theComplex.

573.Therefore,
the Chamberfindsthatthe Prosecution
has not shownbeyond
reasonable
doubt
thattheAccused
is liable
fortheassembly
of andattack
on refugees
at theComplex.
TheChamber
willpostpone
untilsection
V.3.4itsconsideration
of
Witness
AA’sallegation
thattheAccused
wasin Kibuye
townon 17 April1994.

3.4 Attackon Refugees

at Gatwaro
Stadium,
KibuyeTown,18-19April1994

3.4.1Introduction

TheIndictment

574. Paragraphs
4.26and4.27of theIndictment
read:

"4.26
On18 April
1994,Ignace
Bagilishema,
acting
inconcert
withothers,
including,
Clement
Kayishema,
SemanzaCelestin,
Nsengimana
Apollinaire,
NzananaEmileand
Munyampundu,
brought
to Gatwaro
stadium,
theGendarmerie
Nationale,
communal
police,

194
~~ ICTR-95-1A-T/~~
Interahamwe
andarmed
civilians,
anddirected
themtoattack
thepeople
seeking
refuge
there.

4.27In addition,
IgnaceBagilishema,
on18and19April1994,
personally
attacked
and
killed
personsseeking
refuge
atGatwaro
stadium,
Kibuye
town.
Theattack
onrefugees
at
GatwarotheStadium
continued
on19April
1994."

Submissions
of theParties

575.According
to the Prosecution,
the Accusedwas presentat the Stadiumon
Monday
18 April1994,thefirstdayof theattack
on therefugees
confined
there.
Acting
in concert
withothers,
theAccused
directly
participated
in theattack,
which
continued
to a lesser
extent
on 19 April1994.
715TheProsecution
alleges
thatthe
Accused
consulted
withgendarmes
andotherattackers,
telling
themwhereto position
themselves
during
theattack.
716Thousands
werekilled.
TheProsecution
charges
the
Accused
717 withgenocide
andcrimes
against
humanity
in relation
tothisevent.

576.Initsclosing
arguments
theProsecution
stated
that"[b]y
hisbeing
present
there,
we say,he knewor oughtto haveknownthattherewasgoingto be an attack
at the
Stadium
shortly
after
twoo’clock;
’mSandthat"byhispresence
alone,
before
andatthe
beginning
of theattack,
theAccused
knowingly
andwillingly
lenthisauthority
to the
saidattack".
719But besides
knowing
andapproving
presence,
theProsecution
also
argued
fora morepotent
formofliability,
consistent
withtheIndictment:

"Now,whatwasBagilishema
doingthere?Hewasobviouslydirecting
theattacks.Hewas
notaninnocent
bystander
whojusthappened
tobewalking by,andthatiswhywesay,that
if younowconsider
hispresenceatKibuyeStadiumon the18thandyounowrewind to
whatI havetoldyouaboutthe12thof April,it clearlysupports
whatwe sayabout
genocidal
intent.
Itclearly
does.Youenterintoanagreement,
youactpursuanttothat
agreement
thefollowing
day;threedayslateryouaretheretoseethattheagreementis
,,720
executed.

715
Prosecution’s
written
Closing
Remarks
pp.33-36
paras.
206-227.
716
Ibid.
pp.34-35
paras.
216-219.
717
Prosecution’s
written
Closing
Remarks
pp.90-91
paras.
69-76;
pp.109-110
paras.
205and210-212.
718
Transcripts
of18October
2000
p.80.
719
Transcripts
of4 September
2000
pp.75-76.
720
Transcripts
of18October
2000
pp.82-83.

195
 ~#~M ~r~,~ ICTR-95-1A-T

577.TheDefence
submits
thatthe Accused
was notin Kibuye
townat thematerial
times.
72IIn fact,
theposition
of theDefence
isthattheAccused
didnotgo toKibuye
townat allbetween
7z2 9 and25April1994.

578.Moreover,
the Defence
contends
thattheProsecution
has notproved
thatthe
Accused
acted
inconcert
withothers
during
theattacks.
Noneofthewitnesses
testified
as to having
seentheAccused
issueorders
to thosewhoattacked
therefugees
at the
Stadium.
723It submits
thatnoclearaccount
of theAccused’s
alleged
participation
in
theattack
emerges
fromthetestimonies
of Prosecution
witnesses.
724At best,the
evidence
adduced
by someunreliable
witnesses
places
theAccused
at theStadium
in a
passive
role.
725Thisdoesnotestablish
thattheAccused
hadanycontrol
whatsoever
overtheassailants,
nordoesitprove,
ifitwereestablished
thathewaspresent,
thathe
wasnotin factattempting
to persuade
others
to desist
fromattacking.
726Nordoesthe
evidence,
according
to theDefence,
provethatSemanza
participated
in theattack,
or
thatcommunalpolicemen
or gendarmes
basedin Mabanzacommunewerepresent
during
727 theattack.

3.4.2
Deliberations

579.TheChamber
willconsider
theevidence
on thealleged
killing
of refugees
at the
Stadium
on 18 and19 April
1994.It willalsoexamine
theevidence
on thelocation
and
actions
of theAccused
on those
days.

721
DefenceClosingBriefp.70 paras.585-588;
Rejoinder
para.249.
722
Seetranscripts
of 6 June2000p. 101.
723 Defence
ClosingBriefp.69 para.585.
724Ibid.pp.70-71paras.589-604.
725Transcripts
of 19 October
2000pp.94-95.
726DefenceClosingBriefp.123 para.76.
727Ibid.

196
 IOT
951AT

WitnessAA

580.Prosecution
WitnessAA testified
thatthedecision
to attacktherefugees
at the
Stadiumwas taken on 18 April 1994. Soldiers,gendarmes,prisonwardensand
policemen,
"allthesepeople
decided
to killtheTutsis.
I think
it is theofficial
in charge
of thistownwhodecided’.
728

581. The witness estimatedthat at around 1 p.m the attack on the Stadium
commenced.
729 Amongthe attackerswere officials,
soldiers,gendarmes,
communal
policemen,
and Abakiga.
73° Some of them were from Mabanza.
731 A certainsoldier
Muzehe,standing
aheadof the witness,
firedthefirstshot.
732 Therefugees
in the
Stadium- about2,000by the witness’s
reckoning
- beganto defendthemselves
by
throwing
stones.
733Thisresistance
ledtheattackers
to change
theirtactics,
withsome
movingon to thehillbordering
theStadium.
Fromthisheighttheycontinued
shooting
at therefugees,
andthrewgrenades
andspread
teargasintothecrowd.
734Thewitness
was with Semanzaand some Abakigaat the entranceto the Stadium.
735 The Abakiga
werecryingout,"Killeveryone!".
Thewitnessclubbed
to deathsomeone
attempting
to
flee.
736Aftermostof the refugees
had beenkilled,Abakiga,
soldiers
and ordinary
civilians
entered
theStadium
to finish
offthesurvivors.
737The"hutukillers"
worea
ropearound
738 their
neckso as to beeasily
identifiable.

582. Witness
AA testified
as to thepresence
of theAccused
at theStadium
afterthe
had begun.The witnesswaspositioned
739
attack outsidethegateson a smallmound.

728Transcripts
ofI0February
2000p.34.
729Ibid.
pp.38and40.
730Ibid.
pp.41-42.
731Ibid.
p.42.
732Ibid.
pp.38-39;
and11February
2000p.38.
733
Transcripts
of10February
2000pp.39-40;
and11February
2000pp.41-42.
734Transcripts
of10February
2000p.39;and11February
2000p.39.
735Transcripts
of11February
2000p.37.
736Transcripts
of10February
2000pp.49-51;
and11February
2000p.42.
737Transcripts
of10February
2000pp.41and51-53.
738Ibid.
pp.53-54.
739Transcripts
of11February
2000pp.43and45.

197
.~,,~’~ "~- ICTR-95-1A-T

HesawtheAccused
74° passinfront
of him,going
in thedirection
ofthecourt
building.
Thewitness
saidthattheAccused
waswearing
a military
jacket.
He didnotseehim
carrying
a weapon.
TheAccused
cameto a stopcloseto thecourtbuilding,
v41He and
theattackers,
including
Kayishema
andsomesoldiers,
consulted
amongthemselves.
The witnesshad not seenKayishemabefore,but cameto knowwho he was by
overhearing
others.742
Thewitness
didnotseeprecisely
where
these
officials
met.
743He
saidthatafterthe consultation
therewasa changein strategy
thatledto the
redeployment
offorces
to thehillabove
theStadium.
744Thewitness
explained:

"Ibelieve
thisnewstrategywastheresultofa consultation
between
theKibuye
authorities.
I didn’t
knowthemmyself but[I]simplysawsoldiers
ofhighrank...inthecompanyof
persons
wholookedrespectableandI sawthemconsult
andI thought
theywerediscussing
thestrategy
andI believethestrategywastheresult
oftheirconsultations
...he[the
Accused]
waspartof the group.
’’745

583.Thewitness
saidthathe lefttheStadium
aftertheattack,
to go home.Many
other
people
leftwithhim.He reached
Mabanza
at around
6 p.m.
746Thenexttimehe
sawtheAccused
wasat thelatter’s
house.
TheAccused
wastelling
Semanza
to take
possession
747 oftheproperty
ofTutsi,
andtorentouttheir
fields.

584.Witness
AA’sstatement
doesnot mention
Kayishema,
nor doesit referto any
change
of tactics
achieved
through
consultation
involving
theAccused.
Orders
appear
tohavebeenissued
by soldiers
andbySemanza.
748

Witness
A

585.Prosecution
Witness
A saidthatbetween
1 and 2 p.m.on 18 April1994people
cameto collect
thetraditional
weapons
leftby therefugees
outside
theStadium.
The

740Ibid.
p.44.
741Transcripts
of10 February
2000pp.44-45.
742
Ibid.
p.44;and11February2000p.47.
743Transcripts
of11 February
2000p.51.
744
Transcripts
of 10February
2000pp.43-44and46-48;
and11February
2000p. 40.
745Transcripts
of10 February
2000p.48.
746Ibid.
p.54;and11February2000p.55.
747
Transcripts
of10February
2000p.54.

198
 ............................................................................................................................

attackers
positioned
themselves
"onthesidewheretherewerehouses
andalsoon the
sideof thehillwheretherewasa forest".
749 Thewitness
described
seeing
attackers
wearing
driedbanana
leaves,
shooting,
throwing
teargasandgrenades,
andshouting
whiletryingto enterthe Stadium.
TM Amongst
the attackers
werealsogendarmes,
policemen,
TM prison
guards
andarmedcivilians.

586.Witness
A descended
thelarger
stand,
fromwherehe hadbeenobserving
these
events,
to joinhisfamily.
Therefugees
wereatfirst
afraid
thattheircattle
would
be
stolen,
andresponded
to theattackers
by throwing
stones.
People
andcattle
wereshot.
Someof therefugees
were,according
to thewitness,
killed
by stampeding
cattle.
The
attack
lasted
untilnightfall,
whentheattackers
wenthome.Witness
A testified
that
afterhavingexplained
to his mother
why he wantedto escape,
she gavehim some
money
752 andhe fledto Gatwaro
Hill.

587.Witness
A testified
thathe sawtheAccused
withSemanza
and policemen
in a
vehicle
on themorning
of 18 April
1994,before
theattack
ontheStadium.
Thevehicle
cameto a stopoutside
theStadium
andthewitness
andothers
ranto thetopof the
larger
standto look.Thewitness
explained
thatwhentheAccused
heardthepeople
shouting
he left.753 Witness
A didnotseetheAccused
during
theactual
attack.
TM Nor

didheseethePrefect
755 oranyother
authorities
- hewastoobusytrying
totakecover.

Witness
G

588.Prosecution
Witness
G testified
thattherefugees
at theStadium
wereattacked
on 18 April1994.
756Between
9 a.m.and2 p.m,attackers
armedwithmachetes,
spears
andgunsarrived.
Later
in examination-in-chief,
thewitness
saidthatshedidnotsee

748DefenceExhibitNo.66.
749
Transcripts
of 17 November
1999pp.31-32.
750Ibid.pp.32-33.
751Ibid.pp.35-36.
752Ibid.
p.33.
753Ibid.
pp.36-37.
754Ibid.
pp.52-53.
755Ibid.
p.85.

199
 ~ ~’w~ ICTR-95-1A-T

anyattackers
untiltheafternoon.
7s7Theattackers
numbered
between
1,000andseveral
thousands,
according
to thewitnessY
8 Theyencircled
theStadium.
Theattack
beganat
around
2 p.m.andlasted
untilnightfall
- "whenonewouldn’t
be abletoseewhether
a
person
wasalive
or dead".
759Theattackers
didnotentertheStadium.
Rather
theyused
guns,grenades
andteargasto killtheirvictims.
People
attempting
to escape
the
grounds
76° werekilled
withtraditional
weapons.

589.Witness
G indicated
thatthreequarters
of the20,000
refugees
at theStadium
werekilled.
761It was"pure
chance"
thatshesurvived.
762 In thecourse
of thenight
of
18 April1994,Witness
G fledtheStadium
andhidin Gatwaro
Hill.Sheleftwitha
group
of about
fifty
people,
whodispersed
as theywerepursued.
763Shetestified
asto
having
seena large
yellow
vehicle
cometotheStadium
thenextdayin order
to collect
deadbodies.
764

590.Witness
G identified
Prefect
Kayishema
and theAccused
amongthe attackers
positioned
on Gatwaro
Hill.Theyweretogether
before
theattack
started.
Thewitness
was not far fromthem.She saw the Accused
alsowhenthe attackbegan:"He was
standing.
’’765
Shedidnotseehimcarrying
anyweapon.
766According
to thewitness,
the
Prefect
launched
theattack
and"theothers
followed
by doing
thejobtheyhadcometo
do andtheyshottheirguns".
767Thewitness
marked
a photograph
showing
herlocation
andthatof theAccused
andKayishema
on Gatwaro
Hill.
768It appears
thatshewason
thefirst
rankofthesmaller
stand,
ontheeastem
edgeofthefield.

756Transcripts
of26January
2000p.15.
757Ibid.
pp.17-18.
758Ibid.
p.20.
759Ibid.
p.17.
760Ibid.
pp.24-25.
761Ibid.
p.17.
762Ibid.
p.22.
763Ibid.
p.21.
764Ibid.
pp.18-23.
765Ibid.
p.16.
766Ibid.
p.17.
767Ibid.
p.15.
768Prosecution
Exhibit
No.65;seetranscripts
of26January
2000p.31.Themarked
photograph
is inthe
possession
of theChamber.

200 ~ ~1~ ~
 591.Prosecution
Witness
AC didnotseetheAccused
on thedayof theattack.
She
testified
thaton17 (apparently
in reference
to 18)April
1994,
at about
10a.m.,armed
Interahamwe
surrounded
the Stadium.
769 Someof themwerein vehicles,
otherson
foot.At around
3 p.m.,soldiers
cameto jointheInterahamwe.
77°Theywerecarrying
guns.
Otherattackers
werearmedwithgrenades,
guns,bladed
weapons
andsticks.TM A
whistle
wasblown,
andthesoldiers
commenced
theattack
by shooting
andthrowing
grenades
intotheStadium.
According
to thewitness:
"Those
whocouldescape
from
thestadium
wereattacked
withbladed
weapons
by theinterahamwe".
772 Theattackers

weresinging
"letus exterminate
them".
People
werekilled.
Thewitness
hidunderthe
deadbodyof a victimof a grenade.
Herown leg was injured
by shrapnel
froma
grenade.

592.Witness
AC saidshe sawSemanza
in theMabanza
commune
vehicle,
beforethe
attack,
transporting
Interahamwe
fromMabanza
commune.
The vehicle
stopped
close
totheentrance
773 totheStadium.

593.Whentheattack
wasover,at around
8 p.m.,Witness
AC wasableto leavethe
Stadium
in thedark.
TM (Incross-examination,
thewitness
saidthatsheleftaround
10
p.m.
TM)

Witness
CP

594.As mentioned
above(see4.3.2),
on 18 April1994,afterleaving
hishouse
around
1 p.m.,Defence
Witness
CP stopped
to converse
withan acquaintance
outside

769
Transcripts
of 18 November
1999p. 49.
770Ibid.
771Ibid.
p.50.
772Ibid.
p.49.
773
Ibid.
p.50.
774
Transcripts
of 18November
1999p. 52.
775
Ibid.
p.97.

201
 ,/~, ~x2~ .-f~’, ICTR-95-1A-T

............................................................................................................................

theentrance
to theStadium.
7% Theirconversation
wasalmost
immediately
interrupted
by the approach
of a largegroupof Abala’ga
comingfromthe direction
of the
roundabout.
It wasthesamegroupthatthewitness
hadseenon thedaybefore,
when
theComplex 777 He didnotseetheAccused
was attacked. amongthecrowd.
778

595.The witness
set offhomeandhisacquaintance
re-entered
the Stadium.
About
one hundred
metersawayfromtheStadium
road,on a pathon theslopeof a hill,
WitnessCP heardgunshots
comingfromGatwaroHill,on the othersideof the
Stadium.
He testified
thathe wassurprised
to heargunshots
as thosehe hadseen
advancing
on theStadium
didnothaveguns.
77978°
He alsoheardgrenade
explosions.
TheStadium
wassurrounded
by a largenumber
of attackers.
781He couldnotidentify
thepeople
whowereshooting,
norcould
he identify
anyof thepeople
standing
in front
of theStadium.
Thewitness
wastoofarawayto seetheirfaces.
782Fromhisvantage
pointhe couldseegeneral
commotion
inside
theStadium
andthepeople
running
to
takecover.
By thistimeit waslateafternoon,
between
3 and4 p.m.
783Thewitness
estimated
thattheattack
commenced
between
2 and3 p.m.
TM

596.Witness
CPtestified
thathe didnotseeanyauthorities
at theStadium
apart
from
thetwo gendarmes
stationed
outside
thegates.
785He didnotseetheAccused,
the
Mabanza
commune
vehicle,
or anyothervehicle
in theproximity
of theStadium
during
theattack.
786787
Thewitness’s
statement
of 27 February
2000paints
a similar
picture.
On 19 April1994,thewitness
returned
to theStadium.
He noticed
members
of theRed
Crosstrying
to getsurvivors
outof theStadium
andintovehicles.
788He saw"dead

776
Transcripts
of 24May2000p.40.
777Ibid.
p.40.
778Ibid.
p.43.
779Ibid.pp.43-44.
78oIbid.
p.46.
781Ibid.
p.51.
782Ibid.pp.52and55.
783Ibid.pp.47and50.
784Ibid.
p.50.
785Ibid.
pp.53-54.
786Ibid.pp.40-43,55,59and83-84.
787DefenceExhibitNo.79.
788
Transcripts
of 24May2000p.57.
 (~) ICTR-95-1A-T

bodies
789 allovertheplace",
tookfright
andwenthomeagain.
tS’o
TheAceused’s
Account
of hisWhereabouts,
18-19April1994

597.The Accuseddid not contestthe allegation

thatrefugeesfromMabanza
commune
werekilled
at theComplex
andtheStadium.
79°He saidthaton themorning
of 19 April1994he received
information
thatkillings
hadoccurred
in Kibuye
town,
although
theinformation
wasnotspecifically
abouttheevents
at theComplex
or the
791
Stadium.

598.TheAccused
testified
thaton 18 April1994at 8 a.m.,in thecompany
of two
policemen,
Pastor
Elephas
of Rubengera
parish
andtwoeonseillers,
he wentto askthe
Abakigato withdrawfromMabanzacommune.
792 The Accusedand his companions
cameacrosstwohundred
or so Abakiga
at Rubengera.
TheAccused
claimed
to have
admonished
them"never
to comebackagainto Mabanza",
andin addition
toldthem:
"Youarelooking
forenemies,
andthere[are]no enemies
in Mabanza".
793TheAbakiga
refused
to listen
- according
to theAccused,
theyrevolted.
TheysaidthattheAccused
hadno rightto stopthemfromusingtheroad.794 TheAccused
testified
thathe felt
humiliated,
hadno authority,
thathe "wasnothing
in frontof my people".
795The
Abala’ga
continued
in thedirection
ofKibuye
796
town.

599.In thisconnection,
theChamber
recalls
thetestimony
of Defence
Witness
RA,
whotestified
thataround
10 a.m.on 18April
1994,Pastor
Eliphas
cametotellherthat
theAccused
hadtriedto stoptheAbakiga
earlier
thesamemorning.
797ThePastor
was
present
at theconfrontation
withtheAbakiga.
He toldthewitness
thattheAccused
and
hisfollowing
attempted
to convince
theAbakiga
to desist
fromfurther
ravages
in

789Ibid.
p.56.
790
Transcripts
of 8 June2000p.253.
79lTranscripts
of 5 June2000pp.53and57-58;
and8 June2000p.250.
792Transcripts
of5 June2000pp.135-137.
793Ibid.
p.139.
794Ibid.
pp.139-140.
795Ibid.
pp.140-141.
796Ibid.
pp.141-142.

203
l~/~ -’~!~ "- ICTR-95-1A-T

............................................................................................................................

Mabanza
commune.
The Abakiga
appeared
to honourhis request,
but "thatdid not
prevent
themfromgoingelsewhere",
v98 Defence
Witness
AS referred
to a similar
incident
involving
the Accused
andthe Abakiga,
but did notprecisely
datethe
incident.
799(SeeChapter
IV.4.7.)

600.TheAccused
testified
thathe remained
at the communal
office
untilmidday.
People
cameto seehimabouttheirproblems,
andespecially
to askhimto reissue
them
withidentity
cards.
8°°In theafternoon
he returned
home.He continued
to seepeople
about
their
problems
(hedidnotspecify
thenature
oftheseproblems)
andwrote
letters
tocouncillors
andto members
ofthecellule
committees,
8°t asking
themtostand
united.

3.4.3Findings
on theAccused’s
Responsibility

(i)General
observations

601.TheChamber
willfirst
briefly
stateitsfindings
on thebasisof theevidence
as
summarised
above.
Therecanbe no doubtthata massive
attack
against
refugees
at the
Stadium
occurred
in theafternoon
of 18 April1994.Essentially
thesametimeof
commencement
is foundin the testimonies
of Witnesses
A, AC, G, AA and CP -
namely,
between
1 and3 p.m.Allwitnesses
agreethatgunsandgrenades
wereusedto
killtherefugees.
Onother
points
there
islesscoincidence
intheir
testimonies.

602.Witness
A testified
thattheattackers
consisted
of gendarmes,
policemen,
prison
guards
andcivilians.
Witness
AA addedsoldiers
andAbakiga
to thislist.Witness
AC
spoke
of Interahamwe
surrounding
theStadium,
soonjoined
by soldiers.
Witness
G did
notcategorise
theattackers
butsaidthattheir
number
wasveryhighandthattheyhad
encircled
theStadium.
Witness
CP maintained
thatAbakiga
andunidentified
people
withfirearms
on theslopes
of Gatwaro
Hillwerethemainperpetrators
of theattack.

797Transcripts
of2 May2000pp.62-64.
798Ibid.
p.63.
799Transcripts
of25April2000pp.30-32
(closed
session);
and.26April
2000pp.5-8.
8ooTranscripts
of5 June2000p.142.
sotIbid.
p.143.

204
 Thewitness
claimed
notto haveseenany"peace
officers",
suchas soldiers,
policemen
or gendarmes,
except
forthetwogendarmes
guarding
thegatesof theStadium.
8°2The
attackers
camefromthedirection
of theKibuye
townroundabout
(A,CP).

603.On thetactics
employed,
it seemsthattheslopes
of Gatwaro
Hillserved
as a
kindof shooting
gallery
fortheattackers.
Evidently
itwasthesafest
option
forthem,
given
thattherefugees
proved
willing
to defend
themselves
withstones.
Thosearmed
onlywithtraditional
weapons
remained
on theperiphery
of theStadium,
killing
anyone
whoattempted
toflee.
Thefirst
dayoftheattack
lasted
until
nightfall.

604.Onlytwo witnesses
(G and CP) had anything
to say aboutactivity
at the
Stadium
on 19 April1994.Witness
G saw a truckremovebodies- survivors
were
killed.
Witness
CP sawmembers
of theRedCrossremoving
survivors.
He sawthatthe
deadwereeverywhere.
Thereis no testimonial
evidence
before
theChamber
thatthe
attack
of 18 April1994continued
intothenextday.It follows,
in theChamber’s
opinion,
thatthemajority
of refugees
at theStadium,
numbering
manyhundreds,
were
killed
in theafternoon
on 18 April1994.Thisis a crimeundertheStatute
of the
Tribunal.

(ii)Presence
of Accused
at theStadium
on 18 April
1994

605.To a largeextent
theresponsibility
of theAccused
depends
on whether
he was
present
during
theattack
at thestadium.
(Other
possible
grounds
ofliability
willbe
considered
below.)

606.TheChamber
recalls
thatthreewitnesses
testified
thattheysawtheAccused
at
theStadium
on 18 April1994:Witness
A, Witness
G andWitness
AA.

802Transcripts
of24 May2000pp.53-54.

205
 - ~ ’~*’~* ICTR-95-1A-T

Witness
AA

607.Witness
8°3 AA hasbeendetained
in Rwanda
since1996on charges
of genocide.
TheChamber
willassess
histestimony
andanycredibility
issues
thatmayariseas a
wholein chronological
order.
Hisstatements
concerning
thepresence
of theAccused
on 18April
1994willbedealtwithtowards
theend.

608.In relation
to theearlier
events
alleged
in theIndictment,
Witness
AA testified
thatwhenthe refugees
firstarrivedat Mabanza’s
bureaucommunal
therewere
gendarmes
andsoldiers
present
whowanted
to killthemat thecommunal
office;
"but
Bagilishema
saidI willbe sending
youto Kibuye
andthatis where
thePrefet
is going
to resolve
yourproblem".
8°4However,
no otherwitness
spokeof gendarmes
or soldiers
being
present
at thebureau
communal
or abouttheirwishto havetherefugees
killed
there
(see
V.3.1).

609.Witness
AA is alsoalonein hisclaimthatSemanza
ledtherefugees
on footto
Kibuye
town.
s°5 The witness
testified:
"Theylefton foot.Bagilishema
spoketo
Semanza
andSemanza
[wentinfrontof]thesepeople
andthentheyleft.
’’s°6
He further
added:
"Semanza
wasaheadof therefugees,
Bagilishema
remained
in theoffice
butI
don’tknowwhether
he followed
themlateron.’’8°7As indicated
above(3.2.4),
Prosecution
Witnesses
A, AC and G, who,unlikeWitnessAA, actually
madethe
journey
to Kibuye
townwiththerefugees,
didnotmention
Semanza
as beingpresent,
eventhough
8°8 allwitnesses
knewhimandWitness
G wasat thefrontof thecrowd.

610.Of greater
significance,
in theChamber’s
view,is thedoubtful
allegation
made
by Witness
AA abouttheAccused’s
distribution
of weapons
to persons
assembled
in
Mabanza
commune
in preparation
fortheattack
on theStadium.
Thewitness
testified:

803Transcripts
of10February
2000
p.12.
8o4Ibid.
p.13.Inthis
connection,
Witness
AA’s
earlier
statement
of22-23
September
1999
refers
to
~endarmes
only,
notsoldiers
805The witness (Defence
Exhibit
No.66).
" statement
’s earlier declares
thattheAccused
ordered
Semanza
andthegendarmes
to
accompany
therefugees
toKibuye
town
(ibid.).
806Transcripts
of10February
2000
p.13.(The
English
version
hasbeen
corrected.)
8o7
Ibid.
p.15.
808
Transcripts
of26January
2000p.49.

206
 "[A.]...whenwe gotto theBureauCommunalbeforeleavingforKibuye,Bagilishema
distributed
weapons
to thosewhodidn’t
havefirearms.Thesefirearms
camefroma stock
whichhad beenbroughtby a certainMunyampundu[...]Bagilishemawastherefore
distributing
theremainder
oftheweapons
tothosewhodidn’thaveany....
[Q.]DidBagilishema
distribute
these
weapons
in person?
[A.]Actually,
there[were]
somesoldiers
amongthosewhowerepresent..,
theyaskedhim
for9
’’8°
weapons
andhewentto fetch
themhimself
anddistributed
theweapons
to them.

611.WitnessAA’s testimony
suggeststhat he saw the Accusedpersonally
handout
armsto theprospective
attackers.
In cross-examination
it emerged
thatthiswasnotthe
case:

"...I sawpeopleleavethebureau
communal
together
withtheweapons.I don’tknowfrom
wherethe weaponscame.I ... simplysaw peoplebringingthemout of the bureau
communal....I can’ttellyoueither
fromwhichroomor officetheseweaponshadbeen
stored.
"810

612.In his statement

to investigators
of 22-23September
1999the witnessdidnot
mention
thattheAccused
distributed
weapons:

"We wentto the communal officein Mabanza, wherewe weregiventwo vehiclesto

transportusto Kibuye.
Those wereToyota
vans,andoneof them,theblueone,belonged
to
Mabanzacommune. Beforewe wentto Kibuye,
Bagilishema
said:"Wearegoingto Kibuye
now."He didnotsaywhy,butwe knewthereason before
...Bagilishema
joinedus,entered
the1
’’81
blueToyotavan,weleftMabanza andarrived
to Kibuye
at around
15,00hrs.

613. WitnessAA was asked in directexamination

why he had not mentionedthe
distribution
of weapons
in hiswritten
statement.
He replied:

"Iremember
thatI saidthis.I donotknowwhether
thenotesweretaken
down.
In anyevent
theinvestigators
promisedthattheywouldcomeback.Whentheycamebacktheymadeus
signthestatements.
’’81z I dont knowwhether
theyincluded
thisinformation
ornot.

614.Askedagainduringcross-examination
he answered:
"I said nothingaboutthe
rapeof womenor girlsor thedistribution
of weapons
to girlsbutI didsaythatI knew

809Transcripts
of10February
2000pp.21-22.
810Transcripts
of11February
2000pp.20-21.
811Defence
Exhibit
No.66.

207
 ICTR-95-1A-T

:~!~

about
’’813
distribution
ofweapons
atthecommunal
office.

615.TheChamber
doesnot findtheseresponses
convincing.
Witness
AA’swritten
statement
specifically
related
to theAccused.
Itslastsentence
reads:
"I do notknow
anything
aboutthetraining
andweapon
distribution,
or victims
of...rape(emphasis
added).
’’814Hadthewitness
in thecourse
of theinterview
alleged
thattheAccused
distributed
weapons,
there
is every
reason
tobelieve
thattheinvestigators
wouldhave
recorded
thisimportant
element.

616.It follows
fromthestatement
thattheinterview
wasconducted
in English
and
Kinyarwanda,
thatthe statement
was recorded
in Englishand translated
into
Kinyarwanda
in the presence
of the witness,
who acknowledged
thatthe factsas
recorded
reflected
whathe knew.Ashe wasanilliterate,
he signed
by adding
histhumb
print
s15 tothedocument,

617.Witness
AA at firstcouldnotremember
thedateof thealleged
distribution
of
weapons.
TheProsecution
suggested
thatthedistribution
mayhaveoccurred
on theday
on whichthewitness
travelled
to Kibuye
town,to whichthewitness
agreed.
He was
thenaskedwhether
he recalled
thedatewhenhe arrived
in Kibuye.
He answered
thatit
wason 18April.
s16Thiswascorrected
by further
questioning
bytheProsecution:

"[Q.]
Mr.Witness,
doyourecall
thedateoftheattack
atKibuye
stadium?
[A.]
Itwasthe18thApril.
[Q.]
WhenI asked
youearlier
what
dateitwasthatyouleftMabanza,
I recall
thatyoutold
methatitwasthe18thofApril
andthiswasthedaybefore
theattack.
Wereyoutherefore
mistaken
whenyoumentioned
the18thofAprilinretrospect?
[A.]No,I’mnotconfusing
anydates
atall.Weleftthebureau
communal
onthe17thand
theattack
onthestadium
tookplace
onthe18th.
’’817

812Transcripts
of11February
2000pp.26-27.
813Ibid.
pp.27-28.
814
Defence
Exhibit
No.66.
815Transcripts
of10 February
2000pp.6-8.
816Transcripts
of10 February
2000p.24.
817
Ibid.
p.51.

208
 618.TheChamber
notesthatWitness
AA did,in fact,confuse
thedates;
andthathe
refused
to acknowledge
themistake.
Thiswouldbe of little
importance
wereit notfor
theadditional
factthatthewitness,
in hisconfession
of 11 November
1999to the
Rwandan
authorities,
indicated
thathe madethejourney
to Kibuye
townon thesame
dayastheattack
sis ontheStadium
(that
is,on18April
1994),
andnotthedaybefore,

619.The assessment
of Witness
AA’stestimony
so farhas shownthatit shouldbe
treated
withcaution,
andtheChamber
willseekcorroboration
fromothersources.
The
witness’s
contention
thatthe Accused
travelled
withhim and otherprospective
attackers
to Kibuyetownon 17 April1994is onlyweakly
corroborated
by hearsay
evidence
fromthetestimony
of Witness
Z:

"Iwillnotalwaysrecallcorrectly
butI knowthathewould
passbytheroadblock
andhe
wasinthecommunevehicle.
Itwasa Hiluxpick-up
andhetoldushewasgoingtoKibuye.
I knowthathe wasin thecompany
of assistant
bourgmestre,
Semanza.
At thatmoment
thereweresomeAbakigawhowerestayingwithSemanza
andat thetime....theywere
leaving
’’819 together
onthevehicle.

620.The ChambernotesthatwhereasWitnessAA statedthatthe Accusedand

Semanza
leftin separate
vehicles,
Witness
Z mentioned
onlyonevehicle
in whichboth
travelled
together
atanunspecified
date.

621.Witness
AA testified
thathe spentthenightbetween
17 and18 April1994in
Kibuye
town,
at theTribunal
ofFirst
Instance
(also
referred
to as"thecourthouse").
wastoldby theAccused’s
driver
thattheAccused
wouldovernight
at the Bethanie
Hotel.
82° Thisis hearsay
and mustbe treated
withcaution.
No othertestimony
corroborates
theallegation.
Moreover,
it is difficult
toreconcile
withtheAccused’s
statement
thathe mettheAbakiga
earlyin themorning
of 18 April1994,whichis
corroborated
by otherwitnesses(seeabove,The Accused’sAccountof His
Whereabouts,
18-19April1994.)

818
Defence
Exhibit
No.114.
819Transcripts
of8 February
2000pp.53-54.
820
Transcripts
of 10February
2000p. 35.

209
622. The courthouse
was situatedvery closeto the Stadium,and WitnessAA was
askedthefollowing
question:

"[Q.]
Areyouabletotelluswhetheror notas youproceeded
fromtheroundabout
to this
courthouse
youwereaware
of thepresence
ofanybodyin thestadium
at thistime?
[A.]Atthattime,
’’821 I wasstill
notsureifthere
werepeople
inthestadium.

However,
in hiswritten
statement
of 22-23September
1999he declared:

"Wecamebackto the roundabout,

andproceededtowards
theTribunal’sbuilding.We
passedby Gatwaro
stadium,
whichwasalreadypacked
withtheTutsirefugees(emphasis
added).The stadiumwassurrounded
by the military
and gendarmes
who carriedthe
,,822
guns.

623. The two versionssuggesta contradiction

betweenWitnessAA’s testimony
before
theChamber
andhiswritten
statement.

624.TheChamberwillnow addressWitnessAA’sdescription
of the initialphaseof
the attack.The following
key paragraph
introduces
the themeof an earlytactical
change,
whichis unique
to thiswitness’s
account:

"Thesituation
as itwasisthatatthetimeoftheattack, everybody
gatheredanda certain
soldier
...fireda shotandthentheothers startedshooting
butthosewhowerein the
stadium
startedto defendthemselves
by throwing
stones.Whentheattackersrealised
that
theywerebeingattackedwithstones,
theyrealisedthattherefugees
couldescapeso they
decided
to go on topof thehillandfromthere,theystartedshooting
intothestadium,
throwing
grenadesintothestadium
andteargas.,,823

625. The gistof WitnessAA’stestimony

is thatthereoccurred
a repositioning
of
assailants
as a result
of a strategy
meeting
in whichtheAccused
himself
participated.
Such a tacticalchangewouldimplythatthe Accusedwas implicated
in the overall
planning
andexecution
of theattack:

821Ibid.
p.38.This
position
iscontradicted
byWitnesses
A,ACandG.
822Defence
Exhibit
No.66.
823Transcripts
of10February
2000pp.38-39.

210
 ICTR-95-1A-T
:N@ Ig z
........................................................................................................................

"[Q.]
Whatexactly
didyouseeBagilishema
doing?
[A.]I sawhimatthetimewhenhewasgoing
uptogetherwiththesoldiers
toconsult
because
beforethat,
theassailants
hadpositioned
themselves
opposite
theentrytothe
stadium
andaccording
totheir
[new]strategy,
onepartofthemshould
have
remained
atthe
entrance
to thestadium
whereas
theothers
wouldshootfromtheothersideintothe
’’824
stadium.

[A.]I believethisnewstrategywastheresultofa consultation

between
theKibuye
authorities.
I didn’t
knowthem myself
butI [simply]
sawsoldiers
ofhighrankandinthe
company
ofpersonswholooked respectable
andI sawthemconsult
andI thoughttheywere
discussing
thestrategy
andI believe
thestrategy
wastheresult
oftheir
consultations.
[Q.]WasMrBagilishema
partofthisgroup
thatwasbeing
consulted?
Yesorno?...
[A.]
’’825
Yes,
hewaspart
ofthegroup.

626.Witness
AA’stheory
thata forceof attackers
wasdirected
awayfromtheroad-
sideof theStadium
to takeup a newoffensive
position
on Gatwaro
Hillis made
doubtful
bytheevidence
of other
witnesses.
826Witness
A, likeWitness
AA,referred
to
refugees
throwing
stones
in theirdefence,
butaccording
to Witness
A attackers
were
positioned
on GatwaroHillalreadyfromthe beginning.
827 DefenceWitnessCP
testified
thatthe attackcommenced
withshotsfiredfromGatwaro
Hill.
828 And
Prosecution
WitnessG locatedthe AccusedwithKayishema
amongthe attackers
positioned
s29 onGatwaro
Hillimmediately
before
andafter
thebeginning
of theattack,
Shetestified:

"They[theattackers]
remained
onGatwarohillandit’sfromthere
thattheylaunched
the
attack...Theassailants
didnotcomedownfromthehillbutonthecontrary,
theywere
killing
"83° people
whowanted
toleavethestadium.

627.ThatWitness
AA’saccount
conflicts
withthatof Witness
G is apparent
also
fromthefollowing
exchanges
withhim:

824
Ibid.
pp.45-46.
825
Ibid.
pp.47-48.
826
Thenewstrategy
doesnotappear
inhisstatement
of22-23
September
1999
(Defence
Exhibit
No.66).
827
Transcripts
of17November
1999p.32.
828
Transcripts
of24May2000pp.43-44.
829
Transcripts
of26January
2000pp.15-16.
830
Ibid.
pp.24-25.

211
 _,
......
_........
..... ........................
"[Q.]
Where
weretheattackers
standing
atthetime[oftheattack]?
[A.]Theattackers
’’83I wereinfront
ofthestadium
gate.

"[Q.]Atwhatstage
of theattack
didyouseeBagilishema?
[A.]I sawhimwhenthegunshots
started
because
theothers
resisted
andthere
wasa kindof
confrontationandalltheauthorities
ranup so thattheycouldadvise
thosewhowere
shootingto moveawayandplace
themselves
on thehilloverlooking
thestadium
andthat’s
whenI sawhim.
’’832

628. Anotheruncorroborated
aspectof WitnessAA’saccountis his claimthat the
attackers
camecloseto losing
thebattle
withtherefugees:

"[Q.]Youjustsaidthateverything
wasdoneaccording
to a welldesigned
strategy.
Who
wasthemaster
ofsuchstrategy
that[youwere]
talking
about?
[A.]Theauthors
of thatstrategy
werethesoldiers
andtheprefet.Everyone
wassaying
that
theyweregoing
to beseeingthepreferbecause
theywereabout
to loose
thebattle
withthe
refugees
’’833 despite
thefactthattheAbakigahadsurrounded
thestadium
completely.

629.No otherwitnesssuggested
that the refugeesever had the upperhandat the
Stadium.

630.An important
allegation
in WitnessAA’s testimony
is that the Accusedwas at
the Stadiumin the companyof Kayishema.
The witnesswas engagedin the following
exchange:

"[Q.]WasBagilishema
withyouas well?
[A.]Hewastherebecause
inordertochangeour- thestrategy
andtogoontop[of]thishill
closeto thestadium,
we needed
to consult
andBagilishema
consulted
withKayishema
and
others.
I sawthemmoving
towards
thestadium,
discussing,
trying
todecide
ona strategy
to
attack."
[Q.]Did you say you saw Bagilishema
withKayishema.
I thoughtyou didn’tknow
Kayishema?
[A.]Thesoldiers
saidthattheyneededto consult
amongstthemselves
andtheymoved
towards
thecourthouse
tomeettheprefer
andthatishowI explained
it.
[Q.]DidyouseeMr.Bagilishema
yourself?.
[A.]I sawhim.Theonlyperson
I didnotseewastheprefet.’834

831
Transcripts
of10February
2000p.41.TheEnglish
translation
hasbeencorrected.
832Ibid.
pp.45.
833Transcripts
of10February
2000pp.46-47.

212
 14~ ~*’~ ICTR-95-1A-T

............................
631.Afterthe clarification
thatWitnessAA did not actually
see Kayishema
(as he
didnotknowhim),the witness
was askedhow he couldclaimthatKayishema
tookpart
in theplanning
meeting
neartheStadium,
rather
closeto thecourthouse:

"[Q.]Howdo youknowthatKayishema
wastherebecause
youtoldus earlier
thatyou
didn’tknowhim?
[A.]I heardit saidaround me thattheorderto attack
wassupposedto be givenby the
Prefet.
Thesoldiers
didn’ttaketheinitiative
themselves
toattack.Therefore,
if,ashadbeen
saidif theyattacked
it musthavebeenbecausethePrefet
wasthereandhe gavetheorder."
[...]Whenyouhearpeople say:"GoandseethePrefet’, youseethemcomeback,youhear
people
say:"ThePrefet is rightthere,butyouthinktherewerekilometers
separatingus.
They
wererightthere.
,,835

632. The witnesswas not able preciselyto locatethe allegedmeetingof the

authorities:

"I havealreadyexplained
thatto you.Allthese
authorities
werecalled
uponto goto the
courtroomto lookintothestrategywhichmighthelpthemcometo finish
offthepeople
whowerein thestadium.I don’tknowwhetherit wasin thecourtroom
or notbutI know
thatthese
’’s36 people
leftandtheydiscussed.

633. On the basisof this analysisof WitnessAA’s testimonythe Chambermust

concludethat WitnessAA did not actuallysee Kayishemain the presenceof the

Accused,
as he didnotknowthePrefect.
Also,thewitness
didnotseeor overhear
the
meeting
of high-ranking
officials.

634.In thisconnection,
the Chamber
observes
thatin Witness
AA’swritten
statement
of 22 and23 June1999,whichspecifically
relates
to the Accused,
no mention
is made
of Kayishema
or of the Accusedconsulting
with him. Thereis no reference
to any
meeting
or changeof strategy.
Theonlyreference
to theAccused
is thefollowing:
"At
[a] certainmoment,Bagilishema
walkedby the stadiumwhilethe shooting
was going

834Ibid.
pp.43-44.
Thewitness
hadpreviously
informed
theChamber
thathedidnotknowKayishema
(p.35).
83sTranscripts
of11February
2000
pp.47-48.
TheEnglish
translation
hasbeenaligned
totheFrench
text,
whichreads:"Quand
vousentendez
lesgensdire:
<<Allez
voirlepr~fet>>,
vouslesvoyez
revenir,
vous
entendez
lesgensdire:
<<Le
pr~fet
estjuste/~
c6t6>>,
mais
vous
pensez
qu’il
y avait
deskilom~tres
entre
les
deuxendroits?
C’6tait
juste
~ c6t6."
836Transcripts
of11February
2000p.51.

213
~..,L -
 ....................
,__,......................................................
-~.......................................
~....¢~Y ~ I
on,andhe sawthekillings.
’’837Here,incontrast
withthetestimony,
theAccused
is
depicted
as a passive
observer
andnotanorchestrator
oftheattack.

635.Additionally,
Witness
AA’sconfessional
statement
of 11 November
1999to the
Rwandan
authorities
corroborates
the statement
of 22-23September
1999aboutthe
passiveroleof the AccusedY
s No mentionis madethereof Kayishema,
or of a
consultation
involving
himandtheAccused:

"Atabout3 pro,soldiers
andtheInterahamwe
shotattherefugees.
Wewerejustonlookers,
forwe discovered
therethatotherpeoplehadbeendispatched
fromButare-Cyangugu
and
otherregions.
Theytoldustostandattheentrance
tothestadium
andtokillwhoever
came
out.Bagi[1]ishema
sawwhatwashappening
....Whennight
fell,theylocked
thestadium.
Bagi[l]ishema
spentthenightatBethanie
andweattheCourtofFirstInstance
....Inthe
morning,
theyresumed
thekillings
andtoldustobevigilant
andnottomove....
Atorabout
8am,wereturned
’’839 toRubengera
inlargenumbers
onfoot.

636.In viewof the considerable

numberandvariety
of difficulties
presented
by
Witness
AA’stestimony
theChamber
is unable
to accept
anyof itselements
unless
theyare strongly
corroborated
by othersources.
No otherwitness
statedthat
Kayishema
andtheAccused
consulted
in theproximity
of thecourthouse
during
the
early
stages
of theattack.
Witness
A testified
to seeing
theAccused
at theStadium
priorto thecommencement
of theattack.
Witness
G alleged
thatshesawtheAccused
andKayishema
standing
together
on Gatwaro
Hillat around
thestartof theattack.
These
testimonies
do notcorroborate
thatof Witness
AA.

637.Consequently,
theChamber
doesnot findthaton 17 Aprilthe Accused
was in
Kibuye
andon 18 April1994at theStadium
on thebasisof Witness
AA’stestimony.

Witness
A

638.Witness
A testified
thathe saw theAccused
withSemanza
and policemen
in a
vehicle
on themorning
of 18 April1994,before
theattack
on theStadium.
According

837
Defence
Exhibit
No.66.
838Defence
Exhibit
No.114.
839
Ibid.

214
 to thewitness,
theAccused
leftwhenhe heardtherefugees
shouting,
andthewitness
didnotseehimagain
during
theattack.
Consequently,
thistestimony
offers
nobasis
for
finding
theAccused
present
during
theattack.

639.Regarding
theAccused’s
alleged
presence
before
theattack,
theChamber
notes
thatWitness
A’stestimony
wasverybrief.
He simply
stated
thathe andothers
ranto
thetopofthelarger
stand
inorder
tolook,
andthattheAccused
leftwhenheheard
the
refugees
shouting.
No otherinformation
abouttheAccused’s
briefvisitwasprovided.
Moreover,
in an apparent
reference
to theAccused,
Dr.Lronard
andSemanza,
he said
thatbetween
13 and18 April1994"theycamebackto saythatwe couldgo home,we
could
go backhomebecause
peacehadbeenrestored".
84°In hiswritten
statement
dated
29 June1999thewitness
wasmorespecific:

"On18 April,Bagilishema
camebackwiththedoctor[Dr.Lronard]
andhisdeputy and
asked
ustogohome, claiming
thatcalmhadbeenrestored.
Werefused
toleave andshortly
thereafter,
inthepresence
oftheseofficials,
theassailants
launched
anattack.Theattack
which
startedaround
2 p.m.,
didnotenduntilaround
6:30p.m.Aswasthecaseformost
people,
allmyfamily
members
werekilled
there;
I amtheonlysurvivor.
I leftthestadium
atnightwhentheattack
stopped.
I hidina forest
andremained
therefora week.Ata
distance,
I couldseethecommunevehicle
movingaround
butcouldnotrecognise the
people
’’841
init.

640.Thiselement
of information
givenby Witness
A is difficult
to interpret.
On the
onehand,suchan "invitation"
to go homemaybe seenas an expression
of concern
on
behalf
of theAccused.
Thiswouldgo against
a finding
thattherewascriminal
intent
behind
theAccused’s
alleged
presence
at theStadium.
On theotherhand,therefugees
seemto haverejected
the Accused’s
suggestion
andrefused
to leave.
The alleged
invitation
isalsodifficult
toreconcile
withtheinformation
thata semblance
ofpeace
in
Mabanza
s42 wasnot restored
muchbefore
25 April1994according
to the Accused.
Further
confusion
is addedby thefactthataccording
to Witnesses
AB and J, the
announcement
that"peace
hasbeenrestored"
wasa rusepractised
at thattimeto lure

840Transcripts
of 17November 1999pp.23-24.
841Defence
Exhibit
No.7.
842Seetranscripts
of 6 June2000pp.96-97and6 September
2000pp.13-14.

215
....................................................................................................................
-
Tutsi
outofhiding
inorder
to killthem.
s43Ontheother
hand,
thisexplanation
doesnot
applyto the circumstances
of the Stadium.
It is indeeddifficult
to see why
representatives
of Mabanzacommuneshoulduse thismethodagainstan already
detained
groupofrefugees
whowereabout
to be killed
in a majoroffensive.
Therefore,
thealleged
remark
by theAccused,
irrespective
ofthedateonwhichit wasmadetothe
refugees,
castssomedoubtovertheProsecution’s
casethattheAccused
wascomplicit
incrimes
committed
against
therefugees
attheStadium.

641.Consequently,
theChamber
findsthattheevidence
provided
by Witness
A about
thepresence
oftheAccused
attheStadium
before
theattack
is unclear.

Witness
G

642. Thekeypassage
fromWitness
G’stestimony
reads:

"[Q.]
Madam,canyoubriefly describe
thatattack
whichtookplaceonthe18th?
[A.]Yes,on the18thof April...around 2 a.mthereweremanyattackerswhocame
carrying
different
weapons,
machetes,
spearsanddifferent
other
kindsofweapons
including
guns.So theseassailantscameandtheycircledthestadium attheentranceandeven
towards
theGatwaro hillsidethere
weremanyassailantsandwiththemwasKayishema
who
wastheKibuye Prefect
as wellasourleader Bagilishema
wasalsowiththem.Whenthey
arrived,
each onetookhisposition
andtheprefect
started
theattack,
launched
theattack
and
theothersfollowed
bydoingthejobtheyhadcometodoandtheyshot their
guns.
[Q.]MadamWitness,wherewasMr.Bagilishema
beforetheattackstarted?
[A.]
Hewastogether
with
theprefect.
[Q.]MadamWitness,
weretheyinside
thestadium
oroutside
thestadium?
[A.]TheywereonGatwaro
hill.
[Q.]Madam
Witness,
whatwasthedistance,
theapproximate
distance
between
youandMr.
Bagilishema
before
theattack
started?
[A.]
I cannot
give
youtheexact
distance
inmetres
butthedistance
wasnotgreat.
[Q.]Madam
Witness,
wasMr.Bagilishema
still
there
atthetimetheattack
started.
[A.]
Yes,hewasstill
there
atthebeginning
oftheattack.
[Q.]Madam
Witness,
didyounotice
MrBagilishema
doanything
during
thatperiod?

843Seetranscripts
of15November
1999pp.111-12
(for
Witness
AB)and31January
2000
p.16(closed
session)
(for
Witness
J).

216 f/~ L "

 .............................
[A.]He wasstanding.
’’844

643.Witness
G testified
thatthe Accused
was together
withKayishema
before
the
attack
andalsoafter
theattack
hadstarted.
Shesaid:
"HewasnexttoKayishema,
quite
closeto Kayishema.
’’845No otherwitness
observed
theAccused
withthePrefect
on
Gatwaro
846 Hillbefore
orduring
theattack.

644.TheChamber
willfirstconsider
certain
points
thatgo to thereliability
of
Witness
G’stestimony.
Shestated
incorrectly
thattherefugees
wenttoKibuye
townon
11 - not13 - April1994.
847Whilethetransfer
of therefugees
to theStadium
wasa
significant
event,
andtherefore
likely
to beremembered,
itdoesnotfollow
thatthedate
of theeventwillbe remembered
withprecision
aftera lapseof morethansixyears.
Therefore,
theChamber
attaches
no weight
to thisdiscrepancy.

645.Witness
G testified
thattheAccused’s
attitude
towards
theTutsichanged
after
thecommencement
of thewarin October
1990:

"Iwassaying
that
after
1990,
hedidnotlikethetutsis
anymore.
Hehated
them.
Hethrew
people
s48 into
prison
andcalled
them- referred
tothemasaccomplices
oftheInkotanyi".

646. Askedto clarifyher position,WitnessG explained

that the Accused,
accompanied
by thepolice
or assistants,
searched
houses
forweapons
earlyin the
morning
(about
6 a.m.)of an unspecified
dayafterthebeginning
of thewarinOctober
1990,
andthatpeople
werearrested
evenif weapons
werenotfound.
Shetestified
that
he targetted,
in particular,
"intellectuals".
Thewitness
stated
thatherunclewas
arrested,
and thatherown homehad alsobeensearched.
849 Documentary
evidence
supports
Witness
G’stestimony
aboutsearches
forweapons,
although
notaboutarrests

844
Transcripts
of 26 January
2000pp.15-16. TheEnglish
versionincorrectly
referred
to assailants
arriving
already
from9 a.rn.
Thishasbeencorrected.
845Ibid.
p.8 (closed
session).
846Witness
G’searlier statement
of 19June1999isevenmorecategorical:
"I wouldliketounderscore
thefactthatduringtheattackof 18 April,Bourgmestre
Bagilishema
waswithPrdfetKayishema
on
Gatwarohill."
847
Transcripts
of26January
2000p. 11-12.
848
Transcripts
of26January
2000pp.14-15(closed
session).
849Ibid.pp.15-17.

217
 ....
...........................
(seeIV.2).
TheChamber
observes
thattwoof hercloserelatives
wereaffected
by the
measures
adopted
in1990.850

647.During
cross-examination,
theDefence
triedto castdoubts
uponthetestimony
of Witness
G. She was questioned
in connection
withcertain
parts(whichwere
hearsay)
in herwritten
statement
andalsoabout
hertestimony
thattheAccused
carried
a gunat thebureau
communal.
85~TheChamber
findsno reason
to go intotheseissues,
butwillinstead
consider
herobservations
attheStadium
on 18April
1994.

648.Usinga photograph,
Witness
G marked
herown(pre-attack)
position
within
the
Stadium,
as wellas thelocation
of Kayishema
andtheAccused
on thesideof Gatwaro
Hill.
sSzThewitness
indicated
thatshewasstanding
on thefirststepof thesmaller
of
thetwospectator
stands.
As explained
above(seeV.3.2.3),
theeastern
standisa low-
roofed
colonnaded
building
witha six-metre
longporchprojecting
twometresout
midwayalongthestructure.
Thewestern
edgeof themainroofformsa downward-
sloping
overhang,
theporch’s
ownroofcontinuing
on thisdownward
slope.
As a matter
of appearance
rather
thanfunction,
thesmaller
standis bestdescribed
as a 25-metre
long,
four-metre
wideshed.A person
standing
inside
is afforded
goodprotection
from
theelements
butrather
poorvisibility
of thesurrounding
areas.
Witness
G’sposition
wasinside
themaincovered
areaofthestand,
close
tothecorner
formed
bythestand’s
western
edgeandthesouthern
sideoftheprotruding
porch
(that
is,thecorner
furthest
fromGatwaro
Hill).

649.In looking
towards
Gatwaro
Hillandthealleged
location
of theAccused
and
Kayishema,
Witness
G’slineof sight
wouldhavehadto travel
ata gentle
upward
angle
through
thelow-roofed
andpresumably
crowded
porchanditssupporting
columns,
out
overa 50-metre
stretch
of equally
crowded
field,
before
it reached
thesteepverdant
(andthusdark-coloured)
backdrop
of Gatwaro,
55 to 65 metres
away,wherehundreds
of attackers
weresaidto haveassembled.
Although
underfavourable
conditions
of
observation,
a familiar
facemay be easilyrecognisable,
albeitnot necessarily

850
Prosecution
Exhibits Nos.90 and91.
851
Transcripts
of 26 Januarypp.44-47.
852
Prosecution
Exhibit No. 65.

218
.............................
distinctive,
theChamber
is concerned
as to howthewitness
wasableto specifically
identify
theAccused
andKayishema
amongst
theattackers
overthisdistance.

650.According
to Witness
G, she knewthe Accused
wellpriorto the eventsin
questionY
3 TheChamber
accepts
thathe wasfamiliar
to thewitness.
Thesamecannot
be saidaboutKayishema.
TheProsecution
adduced
no evidence
aboutthewitness’s
prior
knowledge
of thePrefect.

651.As to theconditions
of observation,
Witness
G saidthattheattack
beganat
around
2 p.m.,at whichtimethelightmaybe assumed
to havebeenfavourable.
The
witness
asserted
thatthedistance
between
herandhersubjects
"wasnotgreat",
andin
an important
sensethatwastrue.Therefugees
werefullyexposed
andwithin
easy
reach
of therifles
andgrenades
ofthehillside
attackers;
Witness
G,though
under
the
cover
oftheshed,
musthavefeltacutely
vulnerable.

652.The Prosecution
didnot adduceanyfurther
information
aboutobservational
conditions
at the time.Basicquestions,
rendered
essential
by the particular
circumstances,
suchas whether
otherpersons
or structural
components
of thestand
wereinterposed
between
WitnessG and her subjects,
whether
the Accusedfaced
Witness
G or waslooking
in another
direction,
whether
thepresence
of thousands
of
terrified
refugees
wouldhaveobstructed
herviewandquestions
aboutthetime-period
andfrequency
ofvisual
contact,
werenotasked.
It wasincumbent
upontheProsecution
to dispel
reasonable
doubt
inrelation,
first,
tothespecific
conditions
of observation,
whichgrowin relevance
thegreater
thedistance
between
observer
andobserved,
and,
second,
to Witness
G’sability
to recognise
Kayishema.
Thewitness
mayhavebeen
ableto recognise
theAccused
in characteristic
signsof conduct
or attire,
butagain
these
matters
wereexplored
barely
ornotat all."Hewasstanding"
is nota behaviour
thatwould
helpdistinguish
theAccused.

653.No otherwitness
observed
theAccused
aloneor withthe Prefect
on Gatwaro
Hillbefore
or during
theattack,
so Witness
G’sallegation
is uncorroborated.
Her
observation
wasmadeovera longdistance
andthedescription
of whatshesawlacked

219
 ~V~ ,~, ICTR-95
- 1 A-T

.................
_,
........................
detail.
Therefore,
.!...a’
theChamber
doesnotfindbeyond
reasonable
doubt,
on thebasisof
hertestimony,
thaton 18 April1994theAccused
wason Gatwaro
Hill,in thecompany
of Kayishema,
at around
thetimewhentheattack
on theStadium
waslaunched.

(iiOConclusion

654.Having
assessed
thetestimonies
of Witnesses
AA, A, andG, theChamber
does
notfindbeyond
reasonable
doubtthattheAccused
waspresent
at theStadium
on 18
April
1994.

3.4.4Conclusions

(i)Cumulative
effect
of evidence

655.In an earlier
section
(V.3.2.7),
theChamber
concluded
thattherewasdoubtalso
as to whether
the Accusedvisited
the Stadiumon 13 and 14 April1994.These
conclusions
werebased
noton a finding
thattheAccused
waselsewhere
at thematerial
times,
butrather
on thepaucity
ofevidence
ledby theProsecution
in relation
to each
andevery
alleged
sighting
oftheAccused.

656.It is clearthattwosketchy
accounts
maygainin strength
wherethereis mutual
corroboration.
TheChamber
hasalready
considered
thispossibility
in relation
to each
of thepairsof sightings
on 13,14 and18 April1994.Thequestion
remains
whether
a
series
of inconclusive
sightings
of theAccused,
overa number
of days,whoseonly
common
element
is thepresence
of theAccused
at theStadium,
canbe combined
to
provetheproposition
thattheAccused
musthavebeenat theStadium
at sometime
during
therelevant
period.

657.In theChamber’s
view,thiscannot
be done.By definition,
an inconclusive
sightingcannotgainsupportfromanotherinconclusive
sightingunlessone

853Thereasons
areindicated
inthetranscripts
of26January
2000pp.14(closed
session).

220
............................................................................................................................

corroborates
theother.
Theproposition
thattheAccused
musthavebeenat theStadium
"atsometime"necessarily
mustbe understood
as presence
on oneor moreof thetimes
alleged
by thewitnesses.
No othertimesformpartof theProsecution’s
case.The
Chamber
hasalready
shownthatthealleged
sightings
areindividually
inconclusive
and
mutually
non-corroborative.
Therefore
theircombination
is alsoinconclusive.
Consequently,
theevidence
ledby theProsecution,
evenwhenconsidered
as a whole,
doesnotsupport
a finding
thattheAccused
waspresent
at the Stadium
during
the
period
13 to 18April1994.

(ii)Summary
of findings
inrelation
to paragraphs
4.21-4.
28of theIndictment

658.In theseconcluding
paragraphs
of section
3.2,theChamber
firsttakesstockof
theProsecution’s
allegations
in theIndictment
pertaining
to attacks
against
Tutsi
detained
in Kibuye
townbetween
13 and19 April1994.

659.TheProsecution
hasnotproved
thattheAccused
gathered
"athisrequest"
Tutsi
inhabitants
of Mabanza
commune
at the communal
office
andthen"ordered"
themto
go to Gatwaro
Stadium
(4.21).
It hasnotproved
thatuponarrival
in Kibuye
townthe
Accused,
"acting
in concert"
withothers,
divided
therefugees
intotwogroups,
sending
onegroupto theComplex
andtheotherto theStadium
(4.22).
It hasnotproved
that
"persons
under[theAccused’s]
control"
surrounded
thetwo locations,
causing
the
detention
andsuffering
of therefugees
(4.24).
TheProsecution
alsohasnotproved
that
theAccused
"acting
in concert"
withothers,
"brought"
armedgroups
to theStadium
and"directed"
themto attack
therefugees
(4.26).
Norhasit proved
thattheAccused
"personally
attacked
andkilled"
refugees
attheStadium
(4.27).

660.Theonlyremaining
allegation
in thiscategory
isthattheAccused,
"inordering"
therefugees
to theComplex
andtheStadium,
"knewor hadreason
to knowthatattacks
at these
locations
[were]
imminent"
(4.28).
Thistoomustbesetaside
asunproved.

221
 iO
urther
roun
o,abi,i
Presence
of otherMabanza
commune
officials
at theStadium

661.Twoallegations
madeby Witness
AC didnot directly
implicate
theAccused,
although
theycouldforma basisforpossible
liability
of theAccused
underArticles
6(1)or 6(3)of the Statute.
The firstallegation
was Witness
AC’ssighting
"Saturday"
(16April1994)of theMabanza
communal
vehicle
(seeV.3.2.4).
It arrived
at theStadium
transporting
threepolicemen
andarmedHutncivilians
including
fiveor
sixInterahamwe.
854Theincident
wasrecounted
by thewitness
withextreme
brevity.
TheProsecution
didnotpressfordetails.
Norwasthewitness
askedwhether
shehad
recognised
anyof thepolicemen.
Thevisitors
shortly
departed,
"towards
Mabanza".855

662.Fromtheevidence
of Witness
AC,it is unclear
exactly
whowerethepersons
aboard
thevehicle.
Thepolicemen
werenotidentified
as beingfromMabanza,
or under
thecontrol
andauthority
of the Accused.
Hutucivilians
andInterahamwe
arenon-
specific
individuals,
andno evidence
waspresented
regarding
anyrelationship
they
mayhavehadwiththeAccused.
Moreover,
it hasnotbeenshownwhether
theAccused
knewor should
haveknownof the useandwhereabouts
of the communal
vehicle,
or
whether
he latercameto knowthatthecommunal
vehicle
wasso used.Consequently,
there
isinsufficient
evidence
tolinktheAccused
tothisincident.

663.Witness
AC’ssecond
allegation
relates
to thedayof theattack
on theStadium.
According
to the witness,
it wasa Sunday.
856 Shetestified
thatshesaw Semanza
aboardthecommunal
vehicle
and thathe was transporting
the Interahamwe
coming
fromMabanza.
857However,
again,
it hasnotbeenshownwhether
theAccused
knewor
should
haveknownof thealleged
presence
of Semanza
at theStadium,
or whether
he
later
cameto knowof suchpresence.
Consequently,
theAccused
cannot
incurcriminal
responsibility
on thebasis
ofthisallegation
byWitness
AC.

854Transcripts
of 18 November
1999pp.46-48.
855Ibid.
p.48.
856
Transcripts
of18 November
1999p. 49.

222
~/g@, ~’~
..................... ICTR-95-1A-TI~
~............................................................
A.~E_...’Z=..
--
664.In relation
to evidence
concerning
alleged
presence
of othersubordinates
or
collaborators
of theAccused
at theStadium,
theChamber
recalls
thatcommunal
staff
cannot
be regarded
as subordinates
under
Article
6(3)oftheStatute.
Regarding
Article
6(1),
theChamber
hasalready
givenitsreasons
forfinding
thattheevidence
led
relation
tothese
allegations
isinsufficient
toestablish
thecriminal
responsibility
ofthe
Accused.

CouldtheAccused
havedonemore?

665.Questions
remain
abouttheconduct
of theAccused
vis-a-vis
theinhumane
acts
andmassacres
whichoccurred
at thestadium
in Kibuye.
ThefactthattheProsecution
hasfailed
to makea caseforthedirect
responsibility
of theAccused
forcrimes
committed
at theComplex
andtheStadium
doesnotexclude
thepossibility
thatthe
Accused’s
conduct
overtherelevant
period
encouraged
thosecrimes
or madehiman
accomplice
thereto.
Firstly,
it is arguable
thattheAccused
wasresponsible
forthe
security
andwellbeingof theMabanza
refugees
he sentto Kibuye,
and,as theywere
inhumanely
treated
and subsequently
killed,
he failed
in his dutytowards
them.
Secondly,
it couldbe contended
thatby nottaking
thenecessary
follow
up actions,
including
investigations
andcondemnation
of thekillings,
on finding
outaboutthe
massacres
at the Stadium,
the Accused
failedin his dutyas a localgovernment
representative.

666.Thereis no specific
charge
in theindictment
relating
to theAccused’
purported
failure
tofulfil
hisresponsibilities
atthetimeoftheevents.
Liability
could
beincurred
on thebasisof paragraph
4.13of theIndictment,
whichis general
in itscontent.
According
to thisparagraph,
throughout
April,May and June1994,the Accused
"encouraged
others
to capture,
torture
andkillTutsimen,womenandchildren
seeking
refuge
fromattacks
within
theareaof ...Kibuye
Prefecture".
Encouragement
could
include
voluntary
andpublic
inaction
in circumstances
wherethereis a dutyto act.
Suchencouragement
may represent
a formof aidingand abetting
if thenecessary
requirements
aremet.TheProsecution
didnotspecifically
raisethisissue
during
the

857
Ibid.
p.50("il
6tait
~bord
decev6hicule").

223
 (~~ ICTR-95-
IA-T
trial
or in itsclosing
arguments.
Initsclosing
arguments
theProsecution
onlystated
thatas theAccused
"didensure
thatallthesepeople
whoweregathered
in theKibuye
stadium,
they[were]
allattheHomeSt.John,
afterthe12thof April,
where
theywere
subsequently
massacred.
Thegenocide,
themassacre
contributing
to thegenocide
being
theultimate
85s crime".

667.A possible
argument
is thattheAccused
actedin extreme
carelessness,
in other
words
wasnegligent,
by sending
therefugees
to Kibuye,
andfornotfollowing
up on
their
well-being.
During
thetrial,
theChamber
askeda number
of questions
aboutthe
Accused’s
behaviour
in thisregard.
TheChamber
notesthatevenif suchnegligence
wereto be demonstrated,
it wouldnotsuffice
to meetthemensrearequirements
for
liability
asa principal
forgenocide
andcrimes
against
humanity.
Rather,
it would
goto
establishing
thattheAccused
is liable
as an accomplice,
underArticle
6(1)of the
Statute,
to theinhumane
treatment
andmassacres
at theStadium.

¯ Responsibility
fortherefugees

668.As theProsecution
hasnotshownthattheAccused
wasat theComplex
or at the
Stadium
at thetimeof theattacks,
thequestion
of himstopping
those
attacks
doesnot
arise.
Likewise,
it hasnotbeenestablished
thattheAccused
oughtto haveknown
that
therefugees
he sentto Kibuye
weregoingto be inhumanely
treated
andeventually
killed.
TheProsecution
alsohasnotshown
thattheAccused
wasputonnotice
thatthe
attacks
wereimminent
and,therefore,
potentially
preventable
by hisintervention.
The
issue,
then,is to whatextent
theAccused
wasresponsible
forthewell-being
of the
refugees
oncetheyhadleftKibuye.
TheDefence
didnotspecifically
address
thisissue
butrather
stated
generally
thattheAccused
didallinhispower
atthetimeoftheevents
to prevent
massacres.

669.It hasbeendemonstrated
thatbetween
1,000and1,500refugees
arrived
of their
ownvolition
at theMabanza
communal
office
between
8 and12 April1994.Dueto the
number
of refugees,
thesanitation
andthefoodsituation
worsened.
According
to the
Accused,
he struggled
to copeand soughthelpfromthe localcommunity.
On the

858
Transcripts
of18October
2000p.41.

224
 ~ ~"~’~ ICTR-95-1A-T

-m;’~l;n-g-’;f-
-- " "’th;-- :Cas;o
.............
--" "’hi;--c~;
"y urgmestre,
instructed
the
refugees
to go to Kibuye
town.He assigned
twopolicemen
to escort
themmid-way.

670.It is clearthattheAccused
wasresponsible
fortherefugees
whilst
theywereat
thebureau
communal.
ThefactthattheAccused
assigned
twopolicemen
to accompany
thempartof thewayalsogives
riseto a dutyofcareduring
thispartoftherefugees’
journey.
Theremaining
question
is whether
theAccused
wasalsoresponsible
forthe
refugeesoncetheyhad leftMabanzacommuneand arrivedin Gitesicommune,
specifically
in Kibuye
town.Fromthetestimony
of theAccused,
it wouldappear
that
hebelieved
thathehanded
overtheresponsibility
forthesecurity
oftherefugees
tothe
Prefect.
TheAccused
wasaskedin cross-examination
whether
officials
fromGitesi
commune
weremeantto assume
responsibility
forthesafety
of therefugees
oncethe
police
escort
fromMabanza
withdrew.
Thefollowing
exchange
occurred:

"[A.]
I requested
ourPr6fet
toensure
thesecurity
ofthese
refugees.
[Q.]Anddidyoufollow-up,
that
isthrough
theofficers
thatyoudetached
forthis
task,did
youfollow-up
tofindoutwhether
thesecurity
wasinsuredbyrelay
teamthatcamefrom
Gitesi?
[A.]Yes,I didsaythatin theafternoon
thecommander
of thegendarmerie
cameto
’’859 andreassured
Mabanza methatthepeople
arrived
inKibuye.

671.As such,by hisown account,

eventhoughthemeeting
withMajorJabowas a
chance
encounter,
theAccused
wasreassured
thattherefugees
reached
their
destination
safely.
It mightbe argued
thattheAccused
should
haveverified
himself
andthathe
should
haveensured
thatthePrefect
wasindeed
assuming
theresponsibility
fortheir
security.
However,
theevidence
oftheProsecution
onthisissue
isinsufficient.
It does
notrefute
thetestimony
oftheAccused
thatthePrefect,
hisdirect
hierarchical
superior,
wasgoingto assume
responsibility
fortherefugees,
or thattheAccused
should
not
haveassumed
so. The Chamber
alsonotesthatoutside
the boundaries
of Mabanza
commune,
theAccused
hadno formal
powers.
In Gitesi
commune,
thesepowers
fellto
thebourgmestre
of Gitesi
andto thePrefect
of Kibuye.
Consequently,
theChamber
cannot
findthattheAccused
wasresponsible
fortherefugees
oncetheyhadreached
Gitesi
commune,
specifically
Kibuye
town.

859Transcripts
of8 June2000p.34.

225
 672.It couldalsobe contended
thattheAccused
should
havevisited
therefugees
in
Kibuyetown,as manyof themwerefromMabanzacommune.
Duringthe trial,the
Accused
was askedwhy,according
to hisaccount,
he had notvisited
Kibuyetown
between
13 and17 April1994in orderto seewhatcouldbe doneforthesecurity
of
civilians
displaced
fromhiscommune.
TheAccused
replied:

"During
thistime,
I wasconfronted
withattacks
fromtheAbakiga
whowerethreatening
the
commune
everyday.
Theywerelootingandattacking
...So I wasdealing
withthose
who
were
leftinMabanza,
butinKibuye,
I wassure
that
theprefet
andother
prefectural
officials
would
dealwith
thesecurity
issue ,,
....860

673.TheAccused
stated
thaton everydayof therelevant
period
thecommune
came
underattack
by theAbakiga.
He didnotspecifically
assert
thatAbakiga
carried
out
attacks
in Mabanza
commune
on 15,16 or 17 April1994,buttheevidence
suggests
a
reasonable
likelihood
thatattacks
overthatperiod
continued.
Witness
AStestified:

"[Q.]Howmanydaysdidthese
attacks
last?
[A.]
Itisdifficult
todetermine
thenumber
ofdays,
butI dorecall
that
they
lasted
forsome
time.
[Q:]Wereyou,yourself,
attacked,
Witness
AS?
[A.]
I wasthevictim
ofattacks
onseveral
occasions.
[Q.]Whenyousayonseveral
occasions,
several
days,
isthatwhatyoumean?
[A.]
’’86~
Yes,indeed.
Infact,
itwasforseveral
days.

674.TheProsecution
hasnotrefuted
theAccused’s
contention
thatfrom13 Aprilto
18 April1994he waspreoccupied
withtheAbakiga
andotherpressing
matters
in the
commune
andthat,forthesereasons,
he wasunable
to render
anyassistance
to the
refugees
in Kibuye
town.TheProsecution
alsohas notshownthattheAccused
was
notified
or should
haveknownabouttheinhumane
conditions
at theStadium,
or about
theattack
on theComplex,
or abouttheimminent
attack
on theStadium.
Underthese
circumstances,
theexplanation
of theAccused
cannot
berejected
as implausible.

860Transcripts
of 5 June2000p. 42.
861Ibid.
p.9.

226
675.Another
question
is whether
the Accused
acquiesced
to themassacres
by not
taking
necessary
follow-up
actions
in hiscapacity
as bourgmestre.
Liability
would
comeunderArticle
6(1),whereby
acquiescence
by a senior
public
official
to crimes
which
he or shehasa dutyto punish
couldconstitute
a formof aiding
andabetting
if
thestandard
elements
- namely,
theactus
reusofsiabstantial
contribution
tothecrimes,
andthemensreaofknowing
support
fortheactsof theprincipals,
evenex postfacto,
-
could
be demonstrated.
Theaetus
reusmaybe a positive
actoran actofomission,
such
asanintentional
decision
nottoperform
a legal
duty.

676.Askedaboutthe attackon the Stadium,

the Accusedsaidthathe foundit
"strange"
thatnotonlyAbakiga
butalsogendarmes
hadattacked
therefugees.
He was
asked
if he hadtriedto findoutwhythiswasso.After
all,a largenumber
ofpeople
whose
security
originally
fellto theAccused
wereattacked
andkilled,
s62TheAccused
answered:

"Irealizedthatthesuperior
authorities
hadbeeninformed
andtheycametovisitKibuye.
AndI thought
thattheyweregoingtotakethenecessary
measures
attheirlevel.Thatis
whatI expected
....I thought
itwasuptothesuperior,
mysuperiors
totaketheinitiative
to
followuponwhathappened
intheprefecture.
That
wasnotthefirsttime
thatsuchatrocities
hadoccurred,
butnotonthatscale.
Oneachoccasion,
therewere
...decisions
toinvestigate
andfollowup;andI thought
that
wasexactlywhat
wasgoingtobedone,andthatI wasalso
goingtotestifyinthematter,
because
partoftheinformation
onwhathappened
waswithin
my6
’’8
knowledge.
3

677. The Accused

added:"I denounced
whathappened,
in the meetings
thatwere
heldafter
that,’’864 Hesaid
thaton25April
1994heattended
a meeting
atthePrefecture
of Kibuye.
s65Morethantwoweekshadelapsed,
by hisaccount,
sincehislastvisitto
thePrefecture.
s66Askedwhether
thekillings
at theStadium
hadbeena subject
of
discussion
at theprefectural
meeting,
he responded:
"During
thatmeeting,
we really
deploredwhathappenedand we made recommendations
intendedto informthe

862Transcripts
of5 June2000pp.60-61.
863Ibid.
pp.61-63.
864Ibid.
p.64.
865Transcripts
of 6 June2000pp.100-101.

227
 ICTR-95-1A-T
~ :
~/g@~ ~~

............................
superior
’’s67 authorities
toavert
such
situations
inthefuture.

678.The Accused
wasalsoaskedif the Prefect
had explained
why gendarmes
had
participated
intheattack
ontheStadium.
868Hereplied
thatthemeeting
wasbrief
(less
thanonehour)because
therewastension
between
thePrefect
andthebourgmestre
of
Gitesi.
Eachbourgmestre
gavea security
status
reporton hisowncommune.
Then,
whenthebourgmestres
inquired
aboutwhathadhappened
in Kibuye
townin theperiod
17 to 19 April1994,thePrefect
toldthemthattheattacks
at theStadium
hadbeen
carried
outby gendarmes,
Abakiga
anddelinquents
fromKibuye:

"ThePrefect
explained
tousthatthelocalCommander
wenttothebattlefield
on15April
andthat
afterhisdeparture
there
wasa meeting
within
theranks
ofthegendarmes
andthat
hehimself
s69 wasthreatened",

679.The Accusedaddedthathe "didnot haveany authority

overthe peopleof
Kibuye,and I had no authority
overthe bourgmestre
of GitesiCommune.
I only
denounced
what...washappening
there[inGitesi]".
s7°Askedif he enquired
aboutthe
number
ofpeople
killed,
theAccused
replied:
"Wedidn’t
askfortheexactnumber
....
We understood
thatit was horrible
and no one mentioned
any figures".
871 About
Kayishema
theAccused
said:

"[He]
wassayingthathewasgoing
toberesponsible
forwhathappened
inhisprefecture
andthatis whyhehadproblems
withtheBurgomaster
of Gitesi,
hewasaskinghimwhat
happened,
’’872 exactly
whathappened,
thenhehadproblems
explaining
whathappened.

680.On 3 May 1994,theAccused

wentto Kibuyetownto attenda meeting
withthe
PrimeMinister
of Rwanda’s
interimgovernment,
JeanKambanda.
873 The Accused
maintained
thathepursued
thematter
at themeeting
withthePrime
Minister:

866Ibid.
p.101.
867Transcripts
of5 June2000p.69.
868Transcripts
of6 June2000p.102.
869Ibid.
p.103;and8 June2000p.254.
87oTranscripts
of8 June2000p.252.
871Ibid.
p.256.
872Ibid.
p.104.
873Transcripts
of9 June2000p.60.

228
 ICTRi5-1A’T
~~
..................................................................................................................... ~. ~ ~1~
"’Ispokeabout
whatshouldbedone,whatneeds
tobedoneforthepeopleofKibuye
who
were
victims
oftheatrocities
perpetrated
intheregion
....[T]he
prime
minister
replied
by
saying
hewasgoing
todoeverything
possible
topunish
theperpetrators
oftheacts,
andthat
such
actsshould
stop,
’’874
forthwith.

681.TheAccused
stated
thathe "expected"
hissuperiors
to follow
up on whathad
happened.
It couldbe argued
thattheAccused
couldnothavereasonably
believed
that
hisduty,at leastto callforan investigation
intothecrimes
committed
against
the
formerinhabitants
of Mabanzacommune,was discharged
in the courseof his
conversation
withthePrimeMinister.

682.TheProsecution
hasnotdiscredited
theseelements
of theAccused’s
defence.
Although
the defence,
it couldbe argued,
mayappearsomewhat
questionable,
the
Prosecution
has notrefuted
them.Additionally,
theProsecution
haspresented
no
arguments
as to whatfurther
actions
theAccused
couldhavetakenin thecircumstances
in thefulfilment
ofhisduty.
Assuch,
histestimony
regarding
themeetings
of25 April
and 3 May 1994,castssomedoubton the proposition
thathe did not do enough
following
themassacres.
In particular,
theProsecution
hasnotdemonstrated
thatthe
Accused’s
inaction
amounted
to an acquiescence
positively
contributing
to the
commission
of theseor latercrimes.
Accordingly,
it hasnot beenshownthatthe
Accused
hadthemensreaofan aiderandabettor.

683.In light
of theabove,
andconsidering
thattheseissues
werenotaddressed
by the
parties,
theChamber
is notprepared
to makean adverse
finding
against
theAccused
fornothavingdoneenough
to punish
crimescommitted
against
refugees
in Kibuye
townbetween
13 and19 April1994.

874Transcripts
of5 June
2000
pp.66-67.

229
4.1Killing
of Karungu

TheIndictment

684.The killing
of Karungu,
a Tutsi,is alleged
to havetakenplacein Mabanza
commune
around
themiddle
of April1994.
875TheProsecution
brings
thiseventunder
paragraphs
4.12and4.13of theIndictment:

"4.12Inaddition,
IgnaceBagilishema
personally
attacked
andkilled
persons
residing
or
seekingrefugein Mabanza
commune.
4.13Throughout
April,MayandJune1994,Ignace
Bagilishema,
in concert
withothers,
committed
actsofMurderandencouraged
others
to capture,
tortureandkillTutsi
men,
womenandchildren,seeking
refugefromattacks
withintheareaof Mabanza,
Gitesi,
Gishyita
andGisovu communes,
KibuyePrefecture."

Submissions
oftheParties

685.According
to theProsecution,
theAccused
was involved
in an attack
overtwo
daysagainstKarungu.Takingpart,in addition
to the Accused,
wereMabanza
commune
officials
Nsengimana
(an assistant
bourgmestre),
Nzanana
(thecommunal
accountant),
Nshimyimana(the communaldriver),a communalpoliceman,
Interahamwe,
Abakiga
andothers.
Karungu
waskilled
during
theattack
andhishouse
wasdestroyed.
TheProsecution
alleges
thattheAccused
wasan armedparticipant
in
theattack.

686.In response
to theAccused’s
contention
thathe wasengaged
withothermatters
onthedaysoftheattack,
theProsecution
argues
that,
ifthatisso,theAccused
atleast
knewabouttheattack
whichoccurred
on 13 April1994buttookno measures
to protect
Karungu
on thefollowing
day.

687.TheProsecution
asserts
thatallpersons
whotookpartin theattack
either
were
civilians
answerable
to the Accused
in his capacity
as bourgmestre
or werehis

230
 ......................................................................................
_,___............
subordinates.
The Prosecution
charges
the Accused
withgenocide,
complicity
in
genocide
876 andcrimes
against
humanity
inrelation
tothisevent.

688.TheDefence
challenges
the credibility
of Prosecution
Witnesses
AB, H and O
on theground
thattheirtestimonies
wereinaccurate
andinconsistent.
TheDefence
alleges,
forexample,
thatthewitnesses
gavedifferent
accounts
aboutthemanner
in
whichtheAccused
accompanied
theattackers
to Karungu’s
house.
Furthermore,
none
of thethree
Prosecution
witnesses
actually
sawtheattack
on thehouse.

689.In relation
to theadditional
allegation
thatthe Accused
failedto provide
protection,
theDefence
replies
thattheProsecution
hasledno evidence
toshow,
first,
thattheAccused
knewthatKarungu
needed
assistance
on thefirst
dayoftheattack,
or
thathe knewthattheattackers
would
return
thenextday;second,
thereis noevidence
thatthe Accused
hadthenecessary
meansand wasin a position
to provide
Karungu
withprotection,
or,having
themeans,
thattheAccused
refused
orfailed
todoSO.
877

Deliberations

690.TheChamber
willconsider
thetestimonies
of Prosecution
Witnesses
AB,H and
O,followed
by thatof theAccused.

Witness
AB

691.In directexamination,
Witness
AB testified
thaton 13 April1994,fromher
hiding
placein theareaof Gitikinini,
shesawtheAccused,
together
withInterahamwe
and policemen,
aboardthecommune
vehicle
inciting
peopleto attack
Karungu.
The
vehicle,
drivenby Nshimyimana,
the communal
driver,
passedcloseby wherethe
witnesswas hiding,on the way to Karungu’s
house.A megaphone
was heldby a
policeman,
Munyandamutsa,
whowas calling
out thatKarungu
was a veryimportant

875Thefirstnameof thealleged
victimis notin evidence
beforetheChamber.
876
Prosecution’s
writtenClosingRemarks p. II para.75,p. 13 paras.88-89,p. 53 para.310,pp.63-64
paras.351-353,
p. 88 para.59, p. 92 para.86,p. 103para.150,p. 108 para.195,p. 115para.259 and
p. 118para.278.

231
 ICTR-95-1A-T

[nkotanyi.
By this,
878 according
to thewitness,
he meant
a dangerous
Tutsi.

692.Witness
AB maintained
thatuponhearing
theseexhortations
theInterahamwe
rushed
to Karungu’s
house.
Herhiding
placewasnotcloseto hishouse;
nevertheless,
fromwhereshewas,at an elevated
partof a sorghum
field,
she"could
seeallthose
going
to thehouse".
879 Theattackers
werenotableto killKartmgu
on thatday.The
witness
heardaboutthisfromherhiding
place,
forthelnterahamwe
on theirwayback
fromKarungu’s
houseweretalking
amongst
themselves,
saying
thattheyhad been
prevented
fromkilling
Karungu
by hisneighbours.

693.WitnessAB testified
thaton 14 April1994she was stillin hiding,now
alongside
theroadgoingtowards
Gisenyi,
at a placecalled
Kuibagiro.
88°Drumswere
beatenin the courseof the nightto summonpeople.
Everyone,
according
to the
witness,
including
children,
hurried
to thehouseof Karungu.
Thewitness
said:"I
witnessed
theattack
thatwaslaunched
atKarungu’s
house.
’’881Shealsotestified
that
theAccused
had"invited
allthesepeople",
thathe"launched
theattack",
andthathe
"played
a roleintheattack".
882However,
later
inexamination-in-chief,
thewitness
said
thatshedidnotseetheAccused
takepartin theattack
itself:
"I onlysawhimon the
vehicle
thatwastransporting
theInterahamwe.
’’883Within
hearing
distance
of her
hiding
place,
theAccused
allegedly
mettheAbakiga
andaskedthemto assist
him.

694.Witness
AB thendescribed
theattackof 14 April1994.It lasted
"thewhole
day",from9 a.m.to 5 p.m.
884Manypersons
tookpart.Theywerearmedwithallsorts
of weapons,and someworebananaleaves.Whistles
wereblownand drumswere
beaten
inthecourse
oftheattack.
Thewitness
didnotseetheactual
attack.
Shedidnot
witness
Karungu
beingkilled,
although,
onceagain,
shewasableto overhear
those

877
See,forinstance,Defence
Closing
Briefpp.33-36
paras.
223-266.
878Transcripts
of 15 November
1999p. 75.
879
Ibid.
p.78.
88oIbid.
p.84.
881Ibid.
p.81.
882Ibid.
pp.80-82.
883Ibid.
p.83.
884Ibid.
p.85.

232
~5~ "~" ICTR-95-1A-T

.......................................................................................................

returning
fromthe attackin theirvehicles
boasting
aboutwhattheyhad done.
Karungu’s
housewas destroyed.
The Abakiga,
on theirway backfromthe attack,
destroyed
otherhouses
alongthewayandkilled
whoever
wasin theneighbourhood.
Witness
AB admitted
thattherewasa "bigdistance"
between
herhiding
placeandthe
place
of theattack,
butstated
thatafter
theattack
shecould
seethatKarungu’s
house
wasinruins.
885

695.According
to thewitness,
Interahamwe
killed
Karungu,
burning
hishousewith
himinside.
Hisfamily
andtwoHutu,whoweredefending
him,werealsokilled.
The
sameevening,
PrefectKayishema
gavethosewho had participated
in the attack
vehicles
requisitioned
fromtheChinese
roadconstruction
company.
The jubilant
attackers
886 drove
thevehicles
awayfromthescene
oftheattack,
singing.

696.In cross-examination
Witness
AB testified
thatshe couldnot see Karungu’s
housefromherhiding
placeon 13 April1994.Askedhowsheknewthatthepersons
going
pastintended
to stopat thehouse,
sheclaimed
thattheyhadsaidso themselves.
Thewitness
addedthatby 14 April1994,shehadchanged
herhiding
place,
moving
a
little
further
up fromKuibagiro.
Fromthereshewasstillunable
to seeKarungu’s
house.
887Thewitness
appeared
to hesitate
toanswer
thequestion
whether
shehadseen
theAccused
atthehouseinthecourse
of theattack,
eventually
acknowledging
thatshe
wasnota witness
to it.
s88 Shealsoexplained
thatshehadnot seenKayishema
at
Karungu’s
housebutrather
sawhimin hisvehicle
driving
pastherhiding
place.
He
wasbeingthanked
by theInterahamwe
forgiving
889 thema vehicle
to go homein.

697.Already
theChamber
hasexpressed
itsdoubts
aboutthereliability
of Witness
AB’stestimony.
89°Hertestimony
onthekilling
of Karungu
addstothosedoubts.
First,
thewitness
gaveconflicting
accounts,
claiming
to havewitnessed
theattacks
against

885
Ibid.
p.86.
886
Ibid.
p.90.
887
Transcripts
of16November
1999pp.69-71.
888
Ibid.
pp.72-73.
889
Ibid.
pp.79-80.

233
 Karungu,
thendenying
thisin cross-examination.
Second,
thewitness
couldnotsee
Karungu’s
housefromeither
of herhiding
places.
Third,
whileat firstthewitness
testified
thattheAccused
launched
theattack,
shethenasserted
thatshehadseenhim
onlypassby on theroadin thedirection
of Karungu’s
house.
Herdescription
of the
actual
attack
on14 April1994madeno reference
to theAccused.

698.The Chamber
doesnot overlook
the possibility
thatWitness
AB couldhave
reconciled
or further
elucidated
elements
of heraccount
of thisevent.
However,
her
testimony
lefttheimpression
thatshewished
to convey
morethanshehadwitnessed.
TheChamber
doubts,
forexample,
thatthewitness
couldhavebecome
privyto sucha
remarkable
amount
of information
concerning
theattacksimply
by overhearing
the
conversations
ofthosepassing
by herhiding
place.
It cannot
be saidthatthewitness
waswellplaced
to overhear
distant
utterances
spoken
above
thedinofa largegroup
of
attackers.
Yet,according
to thewitness,
sheobtained
information
in thismanner
on at
least
fiveseparate
occasions.

699.In viewof the doubtsraisedby WitnessAB’stestimony,

the Chamberhas
compared
it withherearlier
statements
to Prosecution
investigators.
In thefirst
such
statement,
of 1 February
1996,thewitness
namedsixteen
victims
andtheplaces
at
whichtheywerekilled.
891Karungu
wasnot amongthem.Thewitness
mentioned
the
Accused
onlyin relation
to the meeting
withKayishema
on 12 April1994and the
departure
of therefugees
forKibuye
(V.2.6
and3.1).Inhernextstatement,
of 22 June
1999,
whichwasfocused
on actions
of theAccused,
thewitness
discussed
theattack
on
Karungu
in detail.
892Thisversion
is generally
in accord
withhertestimony,
although
the witnessstatedthatthe Accusedand PrefectKayishema
"werepresentwhen
Karungu
was attacked
andmurdered".

700.The Chamber
is mindful
thatWitness
AB did not see the actualattackson
Karungu.
Herstatements
thattheAccused
"played
a role"and"launched
an attack"
are

890SeeV.2.5andV.2.6.
SeealsoV.3.1,
whereononepointWitness
AB’stestimony
differs
fromthatof
allother
witnesses.
891
Defence
Exhibit
No.2.

234
 of a general
nature.
Hertestimony
is marked
by internal
variations
andelements
of
speculation
andhearsay
thatcastdoubt
onhercredibility
asan eyewitness
to theevents
shedescribed.
Herview,hidden
as shewasin a fieldandconcerned
notto be seenby
those
shewasobserving,
wasmuchlessthanideal,
andthismustbe takenintoaccount
by theChamber
whenassessing
herability
to identify
passers-by.

Witness
H

701.Witness
H testified
thatimmediately
following
thedeparture
of refugees
on 13
April1994,Abakiga
arrived
in Mabanza
commune
and proceeded
to Karungu’s
house.
Thewitness
wasstanding
on a hill.He testified
thathe "didnotseemuch.I onlysaw
people
there".
893Theattackers
wereunable
to findKarungu
on thefirstdaybutwere
successful
on thesecond,
whentheytorched
hishouse,
burning
himalive.
Witness
H
could
894 heartheattackers
shouting,
andsinging
"letus exterminate
them".

702.At thispointin theexamination,

Witness
H’s timing
of theKarungu
episode
became
unclear.
The Prosecution
referred
thewitness
to his statement
of 14 July
1999.
895Therehe stated
thattherefugees
leftMabanza
commune
on 13 April1994.
Thestatement
continued:

"After
theyleft,
a group
ofkillers
referred
toasAbakiga
arrived
from
RutsiroandGisenyi.
...Thatsameday,I sawBagilishema
go to Karungu’s
housetwicein a vehicle.
The
AbakigaonlyfoundKarungu
oneweeklaterandkilled
him.
896Twoof theHutus hiding
him...werealso
killed
forconspiring
with
theenemy."

703.Askedto comment
on thedateof thekilling,
Witness
H reiterated
thatKarungu
wasfoundandkilled
in theweekfollowing
thedeparture
of therefugees.
Askedagain,
he gavethesameanswer.
Fourrounds
of questioning
werenecessary
before
thewitness
indicated
thatwhathe meantwasthattheattack
on Karungu’s
houseoccurred
on the

892Defence
Exkibit No.3.
893
Transcripts
of 19 November
1999p. 18.
894Ibid.
p.19.
895
Defence
Exhibit No.10.

235
 dayof therefugees’
departure
forKibuye
town.Thewitness
finally
saidthatKarungu
waskilledon thenextday,a Thursday.
897TheChamber
notesthatin hiswritten
statement
of 14 July1999,Witness
H declared
without
ambiguity
thatKarungu
was
foundhiding
withHutuoneweekafterthewitness
hadseentheAccused
on thewayto
Karungu’s
house,
namely,
oneweekafter
thedayof therefugees’
departure.

704.Witness
898 H confirmed
thathe sawtheAccused
on thefirstdayof theattack.
He was following
the Abakigain the communal
vehicle,
whichwas drivenby the
communal
driver,
Nshimyimana.
Therewas a communal
policeman
on boardand more
thantenInterahamwe.
During
cross-examination,
thewitness
explained
thathe sawthe
Abakiga
passat around
6 a.m.,whereas
theAccused
cameafterthem("lessuivait")
sometimeafter8 a.m.
899Thewitness
testified
thathe sawtheAccused
travel
in the
direction
of Karungu’s
housealsoon thesecond
dayof theattack.
TheAccused
wasin
thesamecar,accompanied
by thesamepersons.
9°°Thewitness
didnotprovide
any
moredetails
about
thesecond
dayoftheattack.

705.Witness
H saidthatalthough
Karungu’s
housecouldnotbe seenfromwherethe
witness
wasliving,
he knewof a location
fromwherehe couldviewthehouse.
It was
fromthislocation
thathewitnessed
thefirst
dayoftheattack.
He saidthathesawthe
Abakiga
passin frontof hishouse,
which
wasby theroadside.
Fromthere,
hemovedto
hisobservation
pointto seewhatwashappening
at Kartmgu’s
house.

706.On the secondday,he saw the samescenefromhis house,namelya large

number
of Abakiga,
together
withlocalHum,walking
paston thewayto Karungu’s
house.Theywere singing.Behindthem camethe communalvehicledrivenby
9°1
Nshimyimana.

896French
version: "LesAbakiga
n’onttrouv6et tu6Kartmgu
qu’auboutd’unesemaine."
897
Transcripts
of 19 November
1999pp.31-36and40.
898Ibid.
p.37.
899Transcripts
of 22 November
1999pp.8-9.
9oo
Transcripts
of 19 November
1999pp.40 and84-86.
901
Transcripts
of 19 November
1999pp.85-86.

236
 .......................................................................................................

707.It hasbeenestablished
thatWitness
H wasnota closeeye-witness
totheattacks
on Karungu’s
house.
Histestimony
didnotcontain
anydetails
abouttheattacks,
except
forthetorching
of thehouse.
EveniftheChamber
accepts
thatWitness
H observed
the
attacks
fromhisvantage
pointon thehill,thewitness
couldnotconfirm
thatthe
Accused
waspresent
atthesiteoftheattacks
onKarungu.
Inrelation
tothefirst
attack,
thewitness
testified
thattheAccused
followed
in thepathof theAbakiga
onlytwo
hours
later.
Despite
seeing
"persons"
at thesite,he didnotseetheAccused.
This
creates
doubtas to whether
theAccused
actually
followed
theAbakiga
to Karungu’s
house.
Regarding
thesecond
attack,
thewitness
onlysawtheAccused
travel
"inthe
direction
ofKarungu’s
house".
This,
initself,
isinconclusive.

Witness
0

708.Witness
O testified
thatsometime
between
15 and18 April1994,at 10 a.m.,an
attack
wasmounted
fromGitikinini
to killKarungu,
a Tutsi.
Thewitness,
whowas
hiding
in a sorghum
field,
sawtheAccused
amonga crowdof people
moving
towards
Nyarugenge
secteur,
singing
"letus exterminate
them".
Present
withtheAccused
were
assistant
bourgmestres
Semanzaand Nsengimana,
and the communalaccountant
Nzanana.
TheAccused
wascarrying
a gun.
9°2 Duringcross-examination,
Witness
O
testified
thatthe crowdnumbered
approximately
one hundred.
The Accusedwas
following
thecrowd,
on foot.Thewitness
didnotexplain
howshecameto knowthat
thisgroup
9°3 of people
wason itswaytokillKarungu.

709.TheChamber
hasalready
foundreason
to doubtthereliability
of Witness
O’s
testimony
in relation
to thealleged
meeting
on 12 April1994between
theAccused
and
Kayishema
(V.2.6).
In thisconnection,
theChamber
notesthatthe witness’s
first
written
statement,
of 17 October
1995,didnotexplicitly
referto Karungu.
9°4The
episode
described
thereis of theAccused,
armedwitha gun,in thecompany
of three
assistants
- Nzanana,
Nsengimana
and Anthere- armedwithcudgels.
Theywere

902Transcripts
of 24 November
1999pp.44-46.
9O3Ibid.
pp.115-116.

237
 -’~ ~ ~ ICTR-95-1A-T

5"4
"looking
forpeople".

710.Thewitness
referred
to thekilling
of Kartmgu
onlyin hersecond
interview
with
Prosecution
investigators
on23 and24 February
1998.
9°s(Insomerespects
thisaccount
resembles
theepisode
mentioned
in herfirststatement;
in others
it is similar
to her
testimony.)
Thewitness
declared
in her second
statement
thatsometime
between
15
and18 April1994,fromherhiding
placein a sorghum
field,
shesawtheAccused
anda
crowd
of between
fiftyandonehundred
attackers
comefromGitikinini.
Shedidnotsee
any communalpolicemen.The Accusedcarrieda gun, but so did Semanza.
Nsengimana
hada club.Thewitness
didnotmention
Nzanana
or Anthere.
Shesaidthat
upontheir
return,
thegroup(herdeclaration
doesnotclarify
whether
it included
the
Accused)
9°6 wassinging
thatKarungu
hadbeenkilled.

The Accused

711.TheAccused
testified
thaton 13 April1994,having
overseen
thedeparture
of
therefugees
fromthebureau
communal,
he turned
hismindto theexpected
attack
by
theAbakiga.
Aftervisiting
Pastor
Cyumaforadvice,
theAccused
sawa largenumber
of people
armedwithtraditionalweapons.
907Theseassailants,
finding
no oneat the
communal
office,
dispersed,
someof themgoingto lookforKarungu,
others
heading
to
thehouseof theAccused.
TheAccused
testified
thathe heardexplosions
fromthe
direction
of Karungu’s
house,at a timethathe himself
was underthreatby the
Abakiga.
TheAccused
laterreceived
information
fromtheconseiller
of thesecteur
whereKarungu
livedthatKarungu
haddefended
himself
remarkably
well;he hadeven

904Defence
Exhibit
No.11.
905Prosecution
Exhibit
No.62.
906Witness
O’sstatement
ofFebruary
1998contains
thefollowing
sentence:
"Another
person
whocould
testify
aboutBagilishema’s
actionsduringthatperiodisnamed[WitnessAB]...We werenottogether
during
thoseevents,
butI believe
shewouldbewilling
totestify."
Asindicatedabove,
bythisdate(1998)
Witness
AB hadalreadymadea general
statement(February
1996)inwhichshemadeno referenceto the
Kartmgu
episode.Karungufirstappeared
in herstatement
of June1999,thatis,subsequenttoWitness
O’ssecondstatement.
It hasnotescapedtheChamber’s
noticethatthereis a possibility
of collusion
between
thetwowitnesses.
907Transcripts
of5 June2000pp.47-48.
712.Oncetheassailants
hadleft,theAccused
returned
to the bureau
communal
to
seewhathadoccurred
there.
He triedto contact
people
in Mushubati
to seehowthey
werecoping.
TheAccused
testified
thathe didnot visitKarungu,
although
he had
learned
oftheattack
later
onthesameday.He testified
that"tothecontrary,
I wentto
seepeople
whowerestillunderthreat, house....I went
whowerenotin Karungu’s
towards
thenorth,
justfollowing
theAbakiga
whoweregoingto theirownhomes,
who
weregoingaway".
9°9 The AccusedsaidaboutKarunguthathe was knownto the
Abakiga,
whohadbranded
him"anaccomplice
of theInkotanyi".
91°

713.TheAccused
testified
thathe didnotexpect
theAbakiga
to return
to Karungu’s
houseon 14 April1994.He wastoldthatKarungu
wasnotat homewhentheyarrived
on the secondday - he had goneintohiding.
He was alsotoldthatthe Abakiga
proceeded
to search
thehouses
in Kabuga
secteur,
untilKarungu
ranbackto hishouse
saying
thathisdayhadcome.TheAccused
testified
thathe wasinformed
thatKarungu
hadcommitted
suicide
by setting
hishouseon fireandthatsubsequently,
theAbakiga
attacked
Karnngu’
s neighbours.91
a

714.In cross-examination
the Accused
wasaskedaboutthe stepshe had takento
ensure
thatKarungu
wouldbe protected
froma follow-up
attack.
TheAccused
replied
thathe didnotknowthattheAbakiga
weregoingto return
thenextday;thatKarungu
haddefended
himself
well,so theAccused
didnotseetheneedto visithim;andthat
there
weremoreurgent
matters
to attend
to in thecommune.
912TheProsecution
also
asked
theAccused
to explain
whyhe hadprovided
police
protection
to Witness
RA and
Pastor
Eliphas
on 14 April1994butnoneto Karungu,
considering
thathe wastheone
whohadbeenattacked.
913 TheAccused
didnotprovide
a direct
answer
to thisquestion.

908Ibid.
pp.48,106-107,112-113;
andtranscripts
of8 June2000p.215.
909Transcripts
of5 June2000p.49.
9t0Ibid.
p.123.
911Ibid.
912Transcripts
of 8 June2000pp.215-218.
913Ibid.
p.224.

239
Findings

715.Fromthe abovesummary
it is evident
thatnoneof thethreewitness
sawthe
Accused
participate
in thephysical
attack
on Karungu’s
house.
Eachwitness
claimed
to
haveseentheAccused
go in thedirection
of thehouse,
butnonereported
seeing
him
return
(Witness
ABtestified
toseeing
Kayishema
return).
Theabsence
of thisdetail
is
significant
in thepresent
context,
wherewitnesses
occupied
vantage
points
alongthe
route
tothesite
oftheattacks
butwere
notpresent
atthesite
itself.

716.An additional
source
of doubtrelates
to thereliability
of thetestimonies
of
Witnesses
AB andO. Theunderlying
reasons
weresetoutaboveandalsoin sections
V.2.5
and2.6.Thisdoubt
necessarily
implies
thatin theabsence
of corroborating
detail
the Chamber
willbe unableto acceptan assertion
madeby eitherwitness.
The
Chamber
doesnot findthatthe testimonies
of Witnesses
AB and O are strongly
mutually
corroborative,
andbothdiffer
significantly
fromthatofWitness
H.

717.Onlylimitedevidence
was led on the roleof possible
collaborators
or
subordinates
of theAccused.
Thewitnesses
didnotidentify
thesamesetof persons
seekingKarungu.
WhileWitnesses
AB and H mentioned
the communal
driverand
policemen,
WitnessO saw the Accusedwalkingin the companyof two assistant
bourgmestres
andthecommunal
accountant,
and,in hersecond
statement,
thewitness
explicitly
declared
thatshehadnotseencommunal
policemen.
Thustheidentity
of any
subordinates
of theAccused
whoparticipated
in attacks
against
Karungu
remains
in
doubt.
Theevidence
on theirroles
leading
up to theattacks
wasevenmoresparse
than
thatconcerning
theAccused.
Again,
no witness
sawthesepersons
participate
in the
physical
attacks
against
Karungu
- theywereseenonlyen route,
allegedly
tothesiteof
theattacks.

718.Furthermore,
as explained
underIV.4.6and4.7,unlessthe evidence
in the
particular
instance
indicates
otherwise,
theChamber
willnotbe in a position
to find
 ICTR-95-1A-T

.....................................................................................
"222.....
thatpersons
referred
to as Abakiga
andInterahamwe
weresubordinates
of theAccused.
Theevidence
hereisinsufficient
to deviate
fromthispointofdeparture.
Nordoesthe
evidence
supportthe notionthatAbakigaor lnterahamwe
attacked
Karunguas
collaborators
oftheAccused.

719.Therefore
theChamber
cannot
findbeyond
reasonable
doubt,
on thebasisof the
testimonies
of Witnesses
AB,H andO, thattheAccused
organised,
led,participated
in
orisotherwise
liable
fortheattacks
resulting
inKarungu’s
death.

720.In itsfinalwritten
submissions
theProsecution
adopted
a two-pronged
approach
to theAccused’s
liability.
On theonehand,as discussed
above,
it alleged
thatthe
Accused
physically
tookpartin theattacks
against 914 On theother
Karungu. hand,it
argued
thattheAccused
knewor hadreason
to knowabouttheattack
on 14 April1994,
buttookno measures
to protect
Karungu.
Instead,
he provided
police
protection
to
Witness
RA andPastor
Eliphas.
In theProsecution’s
view,theAccused
wasunable
to
explain
915 thebasis
of thisaction
whenquestioned
during
testimony.

721.Theessence
of thesecondsubmission
of theProsecution
is thattheAccused
remained
passive
whenhe should
havebeenactive
in hisdutyto protect
thecivilian
population
of Mabanza
commune.
Thissuggests
thattheAccused,
by omitting
to actto
helpKarungu,
or by committing
hislimited
resources
to people
in lesserneedof
protection,
effectively
helpedKarungu’s
attackers.
Thisargument
is of course
diametrically
opposed
to thefirstsubmission
of theProsecution,
namely
thatthe
Accused
wasa principal
participant,
present
andactive
in thecourse
of theattack
leadingto Kartmgu’s
death.The evidence
adducedby the Prosecution
fromits
witnesses
related
to thisfirstsubmission.
Thesecond
argument,
by contrast,
rests
on
theAccused’s
ownadmissions,
thathe wasinformed
aboutthe13 April1994attack
andtookno measures
toprotect
Kartmgu
froman attack
thenextday.

914
Prosecution’s
written
Closing
Remarks,
forinstance,
p.88paras.
58-59
andp. 95para.
108.
915Ibid.
pp.63-64
paras.
351-353.

241 4~ l@,
 " ~ ~’V~*i ICTR-95-1A-T

.......................................................................................................
t;41
722.Leaving
asidethedifficulty
of reconciling
thetwoapproaches
adopted
by the
Prosecution,
thereis no evidence
in thecasethattheAccused
wasactually
informed,
on14 April1994,thata second
attack
wastaking
place
against
Karungu.
Thequestion,
therefore,
is whether
the13 April1994attack
should
havealerted
theAccused
to the
likelihood
of a further
attack
onthenextday,and,ifso,whether
theAccused
failed
to
takenecessary
andreasonable
measures
to prevent
theattack
or otherwise
protect
Karungn.

723.The criminal
responsibility
of the Accused
mustbe assessed
in viewof the
particular
circumstances
of Mabanza
commune
in April1994,whena largenumber
of
Tutsiwerebeingthreatened
or killed.
The Chamber
is mindful
of the dangerof
retrospectively
apportioning
blameto theAccused
forhisapparent
neglect
of Karungu
in a situation
where
he hadtheduty- butfewresources
- toprotect
a large
number
of
persons.

724.TheAccused
testified
thatKarungu’s
successful
self-defence
during
thefirst
attack
ledtheAccused
to believe
thattheAbakiga
would
notreturn.
At anyrate,there
weremoreurgentmatters
for the bourgmestre
to attendto in the commune.
This
explanation
isnot,initself,
implausible.
Butevenif theAccused
wasforewarned
ofthe
repeat
attack,
theProsecution
would
still
needtoshowthathe deliberately
utilised
the
resources
available
to himon 14 April1994in sucha wayas to expose
Karungu
to an
unacceptable
risk,orthathe withheld
protection
in order
to ensure
thatKarungu
would
bekilled.
There
is evidence
tosupport
theProsecution’s
contention
thattheAccused
on
14 April1994assigned
a policeman
to protectWitness
RA and PastorEliphas.
However,
according
to Witness
RA,thiswasin response
to a threat
by theAbakiga
to
killa community
of about40 persons,
including
HutuandTutsi.
916 Thereis no
evidence
thatthiswasa caseofselective
protection.

916Transcripts
of2 May2000
p.46.

242
 Conclusion

725. Consequently,
theProsecution’s
firstandsecond
submissions
in relation
to the
killing
of Karungu
havenotbeenproved
beyond
reasonable
doubt.

4.2 Killing
of Pastor
Muganga

TheIndictment

726.TheProsecution
implicates
theAccused
in thekilling
of Pastor
Albert
Muganga,
whichallegedly
occurred
on 14 or 15 April1994at a football
fieldnotfarfromthe
bureau
communal.
91~Paragraph
4.15of theIndictment
reads:

,’Ignace
Bagilishema
between
9 April
and30June1994detained
over100Tutsi
refugees
at
thecommune
office
jailhouse
atMabanza.On orabout
15April1994,
IgnaceBagilishema
allowed
Interahamwe
militiamen,
access
tothesaid jailhouse,
following
whichseveral
Tutsi
refugees
detained
therein,
were
tortured
andkilled."

Submissions
of theParties

727.TheProsecution
madereference
to thetestimonies
of Witnesses
AB, O and Z.
According
to thefirstwitness,
theAccused
removed
threepersons,
including
Pastor
Muganga,
fromthecommunal
jailhouse,
fromwheretheywereledawayto be killed.
Thesecond
witness
testified
thattheAccused
ordered
a communal
policeman
to guard
Muganga
whilehe wenttowards
theTrafipro
roadblock,
fromwherehe returned
with
sixInterahamwe
militiamen.
Thewitness
sawthementakeMuganga
awaytowards
the
football
fieldwhiletheAccused
followed
in a vehicle.
According
to Witness
Z, the

917Prosecution’s
written
Closing
Remarks
pp.22-23
paras.
134-142.

243
 Accused
ordered
thekilling
of Muganga.
Thewitness
andhisassociates
wentto the
communal
jailwherea policeman
handed
overthePastor.
He wastakenby thegroupto
a football
field
andkilled.

728.The Defencerelieson Witnesses

AS and RB, according
to whomthe Accused
maintained
goodrelations
withPastor
Muganga
andhiswife.Onenight,
a fewdays
following
the deathof President
Habyarimana,
Muganga’s
wifeand children
took
refuge
in the Accused’s
residence.
On 14 April1994the Accused
helpedMuganga’s
wifeandchildren
to fleefromMabanza
commune.
According
to the Defence,
it is
difficult
to accept
thattheAccused
could,
on theonehand,
assist
Muganga’s
wifeand
children,
and,ontheother
hand,
sendthePastor
tohisdeath.
TheDefence
points
outa
number
of inconsistencies
in thetestimonies
ofwitnesses
called
by theProsecution
and
claims
thatthereis muchimprecision
in theAccused’s
alleged
responsibility
forthe
offence
91s against
Muganga.

Deliberations

Witness
AB

729.Prosecution
Witness
AB testified
thaton 15 April1994shewitnessed
an attack
on Tutsidetained
at thebureaucommunal.
The persons
werelockedup in the IGA
building
and elsewhere
on the grounds
of the communal
office.
The perpetrators
consisted
of theAccused,
communal
policemen
andAbakiga.
Frombehind
a redmetal
doorof a roomin theIGAbuilding
theyletoutPastor
Muganga,
Hitimana
anda third
person
(agirl).
According
tothewitness,
theAccused
facilitated
therelease
ofthethree
persons.
919During
cross-examination,
thewitness
stated
thatshesawtheAccused
actually
unlock
thedoorof theholding
room.
92°Theprisoners
weretakenawayand
killed
neartheMabanza
commune
football
field.
Thewitness
did notsaywho took
themaway.Sheobserved
theincidents
shedescribed
fromherhiding
placein a nearby

918See,forinstance,
theDefence
Briefpp.57-58paras.
471-483.
919
Transcripts
of 15 November1999pp.91-93;and16 November
1999pp.88-89.
920Transcripts
of 16 November
1999p. 95.

244
dJ.~ ~’~ ICTR-95-1A-T

sorghum
9zI field.
Shedidnotseetheprisoners
being
killed.

730.TheChamber
922 hasnotedthatWitness
AB’stestimony
is notgenerally
reliable.
Inrelation
to thepresent
incident,
Witness
AB’sfirst
statement
to investigators
dated
1 February
1996madedetailed
reference
to several
incidents
thatallegedly
occurred
in
April
1994.Despite
thefactthattheAccused’s
namewasmentioned
in connection
with
someof these
923 incidents,
there
wasno reference
tothekilling
ofPastor
Muganga.

731.In hersubsequent
statement
of 22 June1999,whichdealtspecifically
withthe
Accused,
thewitness
madereference
to Muganga.
Thestatement
reveals
onlythatshe
heardfromthecommunal
driver
thattheAccused
opened
thejaildoorandgavethe
Interahamwe
access
totheprisoners.
Thisis incontrast
withhertestimony,
referred
to
above,
according
to whichsheherself
sawtheAccused
letoutMuganga.
Furthermore,
thesecond
statement
madeno mention
of communal
policemen
or Abakiga.
924

Witness
Z

732.Prosecution
WitnessZ testified
thaton the morningof 14 April1994a
communal
policeman
delivered
a message
to Semanza
fromtheAccused
to theeffect
thattheAccused
925 did"notwantto see"Muganga
whenhe returned
to his office.
Thereafter
Semanzacameupon WitnessZ and othersin the neighbourhood
of
Gitikinini,
wherehe repeated
theAccused’s
instructions
andaskedthemto taketheir
weapons
and accompany
him.At the bureaucommunal
the groupfounda policeman.
Semanza
askedhimto opentheprison
door,andMuganga
andotherdetainees
werelet
out (seealsoV.4.2).Semanza
handedthe prisoners
overto the groupwiththe
instruction
"toworkon them".
926ThegrouptookMuganga
to a football
fieldwhere
abouttwentybodieslay.A memberof the groupstruckMugangawitha sword.

921
Transcripts
of15 November
1999pp.92-93.
922
SeeV.2.5,2.6,
3.1and4.1.
923Defence
ExhibitNo.2.
924Defence
ExhibitNo.3.
925Transcripts
of8 February
2000p.45.

245
 .......................
According
to Witness
Z, "[w]ethenfollowed
hisexample
andwe finished
himup with
clubs
927 andthenlefthimthere,
dead".

733.In cross-examination,
Witness
Z saidthatMuganga
hadgoneto theAccused’s
house
to seekprotection.
Fromtherehe wasledto thebureau
communal
anddetained.
Thewitness
explained
thathe hadnothimself
seenthishappen
andthathe wasnot
present
whentheAccused
allegedly
gavethemessage
to thepoliceman.
However,
the
witness
claimed
thathe was present
whenthe Accused’s
message
was conveyed
to
Semanza.
Thisisin contrast
withhisaccount
in direct
examination,
wherehesaidthat
Semanza
92s foundhimin Gitikinini
andconveyed
themessage
to him.

734.The witness
addedthatPastorMugangawas takenfromthe bureaucommunal
barefoot
butotherwise
fully
clothed.
He waswearing
a pairof trousers,
a shirtanda
jacket.
Witness
Z said:"Afterwe killedAlbertMuganga
we did not undress
him
ourselves
buttheAbakiga
didso....In ourgroup,
in otherwordsthegroupwhichhad
leftGitikinini,
in thatgroupnobody
tookpartin theundressing
of Muganga".
929(The
significance
of thisstatement
willbecome
apparent
withWitnesses
O andB,below.)

735.The Chambernotesthatthe roleof Semanzais confirmed

in WitnessZ’s
statement
to investigators
of 18 September
1999.Witness
Z saidthat:"Bagilishema
askedhis deputy,
Semanza,
to lookintoAlbertMuganga’s
case.Semanza
cameto
Gitikinini
andaskedus (thethreepeople
namedaboveandmyself)
to accompany
him
to...Muganga
atthecommuneoffice.
’’93°

Witness
0

736. Following
the departure
of refugees
for Kibuyetownon 13 April1994,

926Ibid.
p.46.
927Transcripts
of 8 February
2000.Thewitness
namedthemembers
of thegroupas Ntirugiribambe
(or
Ntirugiribamze),
Samuel,EzekielKubwimana,AmzaGatsatsi
(orGatsatsa)
andHamdaMkobori.
928Seetranscripts
of9 February
2000p. 72and8 February
2000p.45,respectively.
929Transcripts
of 9 February
2000pp.94-95.
930Defence
Exhibit
No.65.Inthisversion there
isnointermediary
messenger
(i.e.
thepoliceman).

246 //~~-V¯
 ICTR-95-1A-T

Prosecution
Witness
O hidin fields.
Shetestified
thatshereturned
to thecommune
office"abouttwoweeks"later,afterwhichshewitnessed
thekilling
of Pastor
Muganga.
TM (Theaforementioned
witnesses
gavea muchearlier
datefortheincident:
14to 15April
1994.)

737.WitnessO testified
thatshe returned
to the bureaucommunal
witha male
relative,
andatfirst
sought
refuge
in a nearby
sorghum
field.
Therelative
convinced
a
policeman
to openoneof thecommunal
offices
forthem,wheretheygained
temporary
shelter.
932 Thefollowing
morning
Witness
O leftthebuilding.
Herrelative
remained.

738.Nexttimethewitness
sawherrelative,
fromherhiding
placein a field,
he was
in thecommunal
jailhouse.
On thisdaythewitness
sawtheAccused
at thedoorof the
prison
witha policeman.
Herrelative
andPastor
Muganga
emerged
fromthedoor.The
witness
testified
thatherrelative
waswearing
a jacket
sherecognised.
ThePastor
was
wearing
a blackjacket.
At thispointtheAccused
leftthebureau
communal
andwent
towards
theTrafipro
roadblock.
Thetwodetainees
remained
withthepoliceman.
The
witness
sawa conversation
takeplacebetween
the Accused
and thepeopleat the
roadblock.
TheAccused
returned
withsixarmedInterahamwe,
wholedthewitness’s
relative
andMuganga
to a football
field.
TheAccused
followed
themin thecommunal
vehicle.
Thewitness
wasnotableto seewhathappened
at thefootball
field.
In due
course,
theInterahamwe
returned
to theroadblock
in a vehicle,
whereupon
thewitness
noticed
933 thattwoof themenwerewearing
thejackets
of herrelative
andMuganga.

739.In herstatement
to investigators
of 23-24February
1998,Witness
O declared
thataftertheprisoners
weretakenawayby theInterahamwe,
theAccused
"returned
to
hisoffice".
Shefurther
stated:
"I sawthesameInterahamwe
returning
fromthesoccer
field
....
Later,
I sawBagilishema
taking
theInterahamwe
backto theroadblock
in the

931
Transcripts
of24November
1999
p.35.
932
Ibid.
pp.
35-37.
933Ibid.
pp.37-43.
Themembers
ofthegroup,
asrecalled
bythewitness,
wereAthere
(orIntare),
Gilbert,
Rushimba
(orLushimba),
Lukanosi
(orRukanuse),
Sanane
(orSanani)
andFinish.

247 ~. lq/.
bluecommuneHilux.’’934Witness
O didnotmention
theincident
withMuganga
in her
earlier
statement
of17 October
1995.

OtherProsecution
Witnesses

740.Forthesakeof completeness,
theChamber
willmention
theotherProsecution
witnesses
whoreferred
to thekilling
of Muganga,
eventhough
theProsecution
didnot
relyontheir
testimony
initsclosing
arguments.

741.Witness
B saidin cross-examination
thatshesawPastor
Muganga,
wearing
only
a brief,
anda girlnamedEsperance
beingescorted
awayfromtheGitikinini
roadblock
(V.5.8).
The witness
said:"He wasundressed
and wastakentowards
thecommune.
Later
’’935
on,theywent
tokill
himonthefootball
field.

742.Witness
J, alsoin cross-examination,
wasaskedwhether
shewaspresent
when,
asalleged
in herwritten
statement
of 8 July1999,
theAccused
brought
Muganga
to the
bureaucommunal,
supposedly
to protect
him,but insteadallowedthe communal
policemen
tohandMuganga
overto hiskillers.
93sThewitness
replied:
"Even
if I were
notpresent,
whathappened
wasknownsubsequently",
suggesting
thattheevidence
in
herstatement
washearsay.
AboutMuganga’s
death
thewitness
said:"Helefthishiding
place
andhe waspursued
by theassistant
Semanza
....Thosewho werechasing
him,
theInterahamwe
who7
’’93
wereaccompanying
Semanza,
tookhimto theburgomaster.

743.Witness
A testifed
thathe sawthebodyof Pastor
Muganga
in thefootball
field
of Mabanza
commune.
The witness
leftthecommune
on 13 April1994withthemass
of refugees.
He wasa survivor
of theattack
on Gatwaro
Stadium
on 18 April1994.By
thewitness’s
own account,
abouta weekaftertheattackhe returned
to Mabanza
commune.
He sawMuganga’s
body"as soonas I returned
fromKibuye".
He explained

934Prosecution
Exhibit
No.62.
935Transcripts
of 24January
2000p.94.
936Defence
Exhibit
No.63.
937Transcripts
of31January
2000p.36andpp.38-39.

248 t
Defence
Witnesses

744.Witness
AS testified
to theassistance
provided
by theAccused
to thewifeof
PastorMuganga.
The witness
saidthatfor sometimeMuganga’s
children
werein
hiding
in his(AS’s)
house,
whileMuganga’s
wifehidin theneighbouring
house
Pastor
Eliphas.
The witness
at the timedidnot knowthe whereabouts
of Muganga.
Following
a spateof attacks
on himself
andhisneighbours,
he wentto theAccused
to
askforhishelpwithMuganga’s
family.
TheAccused
visited
thePastor’s
wifeand
children
and wasableto findthema vehicle
in whichtheyescaped.
Thewitness
recalled
seeing
thevehicle
butwasnotableto identify
thedriver
or provide
other
details.
939 Hesaidthattwoyears
later
he again
sawMuganga’s
wife.

745.Witness
RB did nottestify
buttheChamber
accepted
herwritten
statement
of
26 March2000as evidence
in thetrial.
94°Theresheaffirmed
thatMuganga
hadgood
relations
withtheAccused
andhiswife.941 Shestated
thaton a certain
night
in April
1994,
soonafterthedeathof Habyarimana,
Muganga’s
wifeandherchildren
hidin the
residence
of theAccused.
On another
nighttheyhidin thehomeof Pastor
Eliphas.
On
thedayfollowing
thedeparture
of therefugees
forKibuye
town,Muganga’s
wifemet
the Accused
accompanied
by two soldiers
in a vehicle.
Witness
RB saidthatthe
soldiers
tookthePastor’s
wifeandchildren
to a commune
in Gitarama
prefecture.
In
theevent,
thesoldiers
robbed
themandabandoned
themon theroadside.
Fromthere
thePastor’s
family
wasabletoreach
therefugee
campat Kabgayi.

938
Transcriptsof 17November1999p. 112.
939Transcripts
of26April2000pp.20-24.
940
Oraldecisionof 8 June2000(seetranscripts
of samedate,pp.132-136).
TheChamberstated
that
accordancewithRule89,anyrelevant evidencehavingprobativevaluemaybe admitted
intoevidence
provided
thisisconsonantwiththerequirements
ofa fairtrial.Hearsay
evidence,
suchasthestatement
in
~uestion,
is notinadmissible
perse,butmustbe considered
with
caution.
941DefenceExhibit No.109.

@ l~b,
’
249
The Accused

746.In thecourse
of histestimony,
theAccused
saidthatPastor
Muganga
washis
friend
andthatMuganga’s
wifewastheteacher
of thesonof theAccused.
He stated
thatduring
theperiod
7-13April1994,Muganga’s
wifehadtakenrefuge
in hishouse.
At thistimetheAccused
didnotknowthewhereabouts
of Muganga.
He testified
that
he cameto knowof thePastor’s
deathon 14 or 15 April1994.TheAccused
added:
"It
washorrible
because
he wasa friend
andI wouldhavesavedhim,helped
himif I had
foundhim but unfortunately
I didnot findhim.
’’942According
to the Accused,
Muganga
and sevenotherspersons
in hidingwerediscovered
by the Abakiga
upon
their
return
to thecommune
on14 April1994.
Theyweretakentothefootball
fieldand
943
killed.

Findinzs

747.Whilethe Chamber
accepts
thatPastorMuganga
wastakenfromthecommunal
office
areatothecommunal
football
field
andkilled,
theevents
leading
uptohisdeath
areunclear.
Theonlypurported
eye-witness
to the killing
was Witness
Z, whose
testimony
theChamber
hasfoundto be unreliable
inrelation
to allegations
tending
to
incriminate
theAccused
(see,
inparticular,
V.5.5
and5.6).

748.WitnessZ admitted
to killingMuganga,
and the Chamber
seesno reasonto
doubt
thisclaim.
However,
otheraspects
of Witness
Z’sevidence
do notseemreliable.
According
to hisconfession
to theRwandan
authorities,
Muganga
sought
refuge
at the
houseof theAccused.
944 At thedirection
of Semanza,
Abakiga
arrived
at thehouse.
The Accusedbecamefrightened
by the disturbances
and took Mugangato the
communal
jail.Thisaccountseemsto portraythe Accusedas a personto whom
Muganga
wouldgo forprotection.
In histestimony,
by contrast,
Witness
Z didnot

942
Transcripts
of5 June
2000
p.17.
943
Ibid.
pp.125-126.
944
Defence
Exhibit
No.112.

250
,~¢~ "~ ~ ICTR-95-1A-T

.......................................................................................................

mention
thatMuganga
sought
refuge
at theAccused’s
house.
He stated
onlythatthe
Accused
did"notwantto see"Muganga
whenhe (theAccused)
returned
to hisoffice.
(Astheconfessional
statement
wasobtained
by theChamber
on a datesubsequent
to
Witness
Z’stestimony,
there
wasnoopportunity
to question
thewitness
on thismatter.)

749.Moreover,
according
to Witness
Z’stestimony,
Semanza
received
an orderfrom
theAccused
to killMuganga.
Thewitness
wasnotpresent
whentheAccused
allegedly
gavethisorder.
Butthewitness
gavetwoversions
as to howhe foundoutaboutit.
First,
he saidthatSemanza
cameto Gitikinini,
where
thewitness
was,andrepeated
the
orderof theAccused.
In thesecond
version,
thewitness
waspresent
withSemanza
whena policeman
conveyed
theAccused’s
order.
Thisshiftin accounts
between
direct
examination
andcross-examination
givestheimpression
of an attempt
by thewitness
to claimthathisknowledge
of theorderallegedly
issued
by the Accused
wasmore
immediate
thanitin factwas.Thiseffort
could
sternfroma desire
to incriminate
the
Accused
moredecisively,
although,
of course,
thehearsay
nature
of theallegation
remains
thesame.
Witness
Z’stestimony
onthispoint
is notcorroborated.
It cannot
be
accepted
without
corroboration.
ThustheChamber
findsthatit doesnotdemonstrate
thatthewitness
killed
Muganga
pursuant
to an order
of theAccused.

750.As illustrated
above,
thetestimonies
of Witnesses
AB andO, although
similar
in
broad
outline,
do notcoincide
in detail.
Thecredibility
of bothwitnesses
hasbeen
questioned.
945Neither
witness
sawMuganga
beingkilled.
Theytestified
to hisbeing
released
fromdifferent
buildings
in the communal
compound.
Theylocatedthe
Accused
at thebureau
communal,
alleging
thathe handed
overMuganga
to thepersons
whoeventually
killed
him,in contrast
withWitness
Z whostrongly
implied
thatthe
Accused
wasnotpresent
at thebureau
communal.
TheChamber
alsoobserves
thatthe
namesof themembers
of thegroupthatkilled
Muganga,
as recalled
by Witnesses
Z
andO, aredifferent,
although
thereis a possibility
thatWitness
Z wasamongthe
persons
namedby Witness
O.

251
 ICTR-95-1A-T

751.Thetestimonies
of Prosecution
Witnesses
B, J and A are sketchy.
Theformer
twowitnesses
claimed
to haveseencertain
events
leading
up to thekilling
of Muganga,
buttheir
accounts
arequite
different.
Witness
A sawthePastor’s
bodyat thefootball
field,
butthedatehegaveforthissighting,
24-25
April
1994,
ismuchlater
thanthat
givenby WitnessesAB and Z. AssumingthatWitnessA saw the body and was
mistaken
aboutthedateshistestimony
doesnotimplicate
theAccused
in relation
to
this
event.

752. The lack of mutualcorroboration

amongProsecution
witnessesmay be
contrasted
withthecoincidence
in theevidence
ledby theDefence.
Theassertion
of
Witness
AS,aboutthesupport
extended
by theAccused
to Muganga’s
family
is,in the
Chamber’s
opinion,
corroborated
by thewritten
statement
of Witness
RB,whowasa
close
relation
ofthePastor.
946Thelatter
witness
stated
thatMuganga
andhiswife"had
goodrelations"
withthe Accused
and hiswife.Soonafterthe attacks
on Tutsi
commenced
in earlyApril1994,Muganga’s
wifehidwithherchildren
at theresidence
of theAccused.
Evenif it wasnotuncommon
during
theevents
of 1994forTutsito be
selectively
spared,
it is doubtful
thattheAccused
wouldhaveordered
Muganga
killed
andsimultaneously
havetaken
active
steps
tosavehisfamily.

753.TheProsecution
argued
in thealternative
thattheAccused
failed
to prevent
or
punish
wrongful
acts,
including
thekilling
ofMuganga.
947Thisallegation
suggests
that
a subordinate
of theAccused
killed
Muganga
in circumstances
thatwouldmakethe
Accused
responsible
as a superior
underArticle
6(3).Thereare threepossible
subordinates
of theAccused
in thepresent
context:
Witness
Z, assistant
bourgmestre
Semanza,
andthe unnamed
communal
policeman
(according
to Z and O) or policemen
(AB).

945
See,
inparticular,
V.2.5,
2.6,
3.1
and
4.1.
946
Defence
Exhibit
No.109.

252
~,~ ,o~,~ ICTR-95-1A-T

754.TheChamber
accepts
thatWitness
Z wasa subordinate
of theAccused
forthe
periods
during
whichhe staffed
theTrafipro
roadblock
(V.5.4).
As explained
below,
theevidence
concerning
thatroadblock’s
dateofestablishment
is conflicting.
Witness
Z testified
thathewasordered
bytheAccused
tosetit upon14 April
1994,
andthathe
staffed
it thereon.
948TheChamber
hasfound
thatthishasnotbeenproved
(V.5.4.1).
anyrate,according
to Witness
Z’saccount,
Semanza
cameto findhimand hisco-
perpetrators
at Gitikinini
andnotat thesiteof theTrafipro
roadblock,
whichwas
proximate
to thebureau
communal.
TheProsecution
hasnotledevidence
of a superior-
subordinate
relationship
subsisting
between
Witness
Z andtheAccused
priorto the
establishment
of theroadblock
atTrafipro.

755.As forSemanza,
theChamber
recalls
itsdiscussion
in IV.4.2
thatthefactthathe
wasan employee
of thecommunal
administration
undertheauthority
of theAccused
is
notsufficient
to ground
a superior-subordinate
relationship
between
thetwomen.More
is needed
to demonstrate
thelegalrelationship
envisaged
by Article
6(3).Moreover
andthisgoesalsoto the likelihood
thatthe Accused
and Semanza
wereactingin
concert,
suchastobejointly
liable
under
Article
6(1)- there
isevidence
tosuggest
that
a strained
relationship
existed
between
thetwomenoverthisperiod
(IV.6).

756.Be thatas it may,for theAccused

to be liable
forSemanza’s
actions
under
Article6(3)he wouldhaveto havehad knowledge
of Semanza’s
leadingrole
(according
to theuncorroborated
testimony
of Witness
Z) in thekilling
of Muganga.
Thereis no evidence
thatSemanza
himself
informed
theAccused.
It couldbe argued
that,undernormal
circumstances,
theAccused
musthavefoundoutthathis deputy
removed
Muganga
fromthe communal
jail,fromwherehe was takenawayand killed.
Butthecircumstances
werefarfromnormal.
On 14 April1994(which
is Witness
Z’s
datefortheincident)
therewereattacks
by Abakiga
in theneighbourhood
ofthebureau
communal
(V.4.3).
Thereis evidence
to suggest
thata numberof refugees
in and
aroundthe communal
officewerediscovered
and killedby Abakiga.
The Accused

947 Prosecution’s
written
Closing
Remarks
p.97para.
101(genocide)
andp.116para.
270(crimes
a~sainst
humanity).
Transcripts
of8 February
2000pp.38-39.

253 ~,~"
 stified
that
he
believed
that
uganga
was
am°ng-t
e-
;-Eiim;
i2;i
E-lau-
-ble
andhasnotbeenrefuted
bytheProsecution.

757.Thatbeingsaid,theChamber
is notprepared
to findthatSemanza
played
a role
in the killingof Muganga.
WitnessZ’s allegation
to thiseffectis not only
uncorroborated
butis contradicted
by Witnesses
AB andO, whodidnotplaceSemanza
at thebureau
communal
at thetimewhenMuganga
washanded
overto hiskillers.

758.Finally,
Witnesses
AB, Z andO testified
to the involvement
of oneor more
policemen
in the eventsleadingup to Muganga’s
death.Thereis no doubtthat
communal
policemen
weretruesubordinates
of theAccused
(IV.4.3).

759.TheChamber
notesthatno witness
claimed
thata policeman
was amongthose
whoescorted
Muganga
to thefootball
field,
muchlessthata policeman
killed
the
Pastor.
It maybe thought
thattheoffence
forwhichtheAccused
maybe liable
as a
superior
underArticle
6(3)is thata policeman
collaborated
in themurder
of Muganga
by agreeing
to release
theprisoner
knowing
thathewastokilled.
Theproblem
withthis
lineof reasoning
is thattheProsecution’s
caseis thatthepoliceman
surrendered
Muganga
to noneotherthantheAccused
or,alternatively,
Semanza.
Superior
liability
would
arise
onlyin thelatter
case(intheformer
casetheAccused
would
be liable
as
principal
underArticle
6(1)).
Butforthereasons
givenabove,
theChamber
cannot
accept
thatSemanza
played
therolein thisincident
ascribed
tohimbyWitness
Z.

760.TheChamber
wishes,
in conclusion,
to emphasise
thatin relation
to thefacts
leading
up to thedeathof Muganga,
theProsecution
hasonlyproved
thatsometime
in
mid-April
1994,Muganga,
aftera briefstayon thepremises
of thebureau
communal,
wastakenawayandkilled
by a groupof people
possibly
including
Witness
Z, hisbody
thenleftat a football
field.
Theaccounts
given
by theProsecution’s
witnesses
differ
significantly
onefromtheother,
andinthefinal
analysis
theChamber,
presented
with
an array
of incompatible
stories,
cannot
findsufficient
evidence
to conclude
thatthe
Accused
is criminally
responsible
forthedeath
of Muganga.

254
~ "~’~ ICTR-95-1A-T

.......................................................................................................

761. TheChamber
therefore
findsthatthe Prosecution’s
charges
of genocide
and
crimes
against
humanity
in relation
tothisevent
areunsubstantiated.

4.3 Killing
of Refugees
at Communal
Office;
Burial
in MassGrave

TheIndictment

762.Paragraph
4.15of theIndictment
covers
events
alleged
to havetakenplaceat or
aroundMabanza’s
bureaucommunal
following
the departure
of the maingroupof
refugees
forKibuye
townon 13 April1994:

"4.15IgnaceBagilishema
between
9 Apriland30 June1994detained over100Tutsi
refugees
at thecommune
office
jailhouseat Mabanza.On or about15 April1994,
Bagilishema
allowed
Interahamwe
militiamen,
accessto thesaidjailhouse,following
which
several
Tutsi
refugees
detained
therein
were tortured
andkilled."

763.Paragraphs
4.16and4.17of theIndictment
allege
thattheAccused
oversaw
the
digging
of a massgrave,
on thegrounds
of thebureau
communal,
wherehe interred
the
bodies
ofTutsi
refugees
killed
during
attacks:

"4.16IgnaceBagilishemabetween
9 Apriland 30 June1994ordered
Interahamwe
militiamen
todiga massgrave
within
theprecinct
ofthecommuneoffice
inMabanza.

4.17Theremains
ofseveral
Tutsi
refugees
killedduring
attacks
atboththecommune
office
andelsewhere
within
Mabanza
commune,werebetween
9 April
and30June1994, withthe
knowledge,
consent
andacquiescence
ofIgnaceBagilishema,
buried
ina massgrave
within
theprecinct
ofthecommune
office
in Mabanza."

Submissions
of theParties

764.According
to theProsecution,
aftertherefugees
departed
on 13 April1994for
Kibuye
town,otherTutsirefugees
arrived
at thebureau
communal.
Theywerelocked
up intheIGAbuilding
andother
rooms.
TheProsecution
alleges,
first,
thattheAccused
wasresponsible
forthekilling
of theserefugees,
andsecond
thathe supervised
the
 I S"2":F
.......................................................................................................

digging
of a massgravein frontof thebureau
communal
intowhichseveral
of the
victims
wereburied.
TheProsecution
charges
theAccused
withgenocide,
complicity
in
genocide
949 andcrimes
against
humanity
in relation
tothese
events.

765.TheDefence
submits
thatrefugees
weresheltered
in various
buildings
of the
bureau
communal,
butwerenotlocked
up in thejail,andin anycasedenies
thatthe
Accused
allowedInterahamwe
accessto the jail.Regarding
the massgrave,the
Defence
argues
thatno charge
maybe leveled
against
theAccused.
In burying
victims
oftheAbakiga
he wasmerely
95° performing
hisduty.

Deliberations

Witness
AB

766.Prosecution
Witness
AB testified
thattherefugees
thatarrived
afterthemain
groupleftforKibuye
townwerenotallowed
to stayin thecourtyard
of thebureau
communal
but werelockedup in variousrooms,including
an officeof the IGA
building.
Thewitness
described
twoincidents
involving
thosewhowerelocked
up.The
first,on 15 April1994,was discussed
above(V.4.2).The witnesssaw armed
policemen,
theAccused
andAbakiga
release
andleadawayPastor
Muganga,
Hitimana
anda girl.
951 They
weretaken
toa football
field
andkilled.

767.Witness
AB addedthatat somepointbetween
15 and17 April1994theAccused
andpolicemen
allowed
attackers
access
to theroomswithin
whichrefugees
werebeing
held.
Shewasableto witness
thedoorof a particular
roomof theIGAbuilding
being
opened
andtherefugees
letout.Thewitness
testified
thatshedidnotknowifthedoor

949
SeeProsecution’s
written
Closing
Remarks
pp.22-23
paras.
138-141,
pp.23-24paras.
144-149,
pp.
88-89
paras.
60-61,
p.93para.
97,p.96para.
109,p.99para.
116,p.105para.
168,
p.108para.
198and
~5’
0115
Seepara.
260;
Rebuttal
Defence
Closingp.15para.
Briefp. 50and
p.16para.
56paras.
463-470, 54.
pp.29-30
paras.
200-208
andpp.58-59
paras
484-
493; Rejoinder
pp.22-23
paras.
223-227.
95I
Transcripts
of15November
1999
pp.91-93.

256 @. /t.~/..
 ICTR-95-1A-T

waslocked
witha keyor a padlock.
952Shedidnotseeanykillings
fromwhereshewas
hiding
butheardgunshots
fromthebureau
communal.
It is notclearwhensheheard
theshots.
Sheestimated
thataboutonehundred
persons
werekilled,
andlatersaw
bodies
being
putintoa massgrave
in front
of thecommunal
office.
953

768.According
to thewitness,
a bulldozer
belonging
to theChinese
wasusedto diga
holeinfrontof thecommunal
office
(bytheavocado
trees).
Aboutthirty
Interahamwe,
wearing
driedbanana
leaves,
placed
bodies
intothehole.Thewitness
wasaskedwhy
shethought
thatsomeof thosebodies
wereof people
killed
at thebureau
communal.
The witness
answered:
"I am sayingthatbecause
therewas a day whenwe heard
sustained
gunshots,
and clearly
thesegunshots
musthavecomefromthecommunal
office."
Thewitness
addedthatthepeople
carrying
thebodies
camefrombehind
the
communal
office
(herhiding
place
wasinfront
ofit).954

769.Thewitness
explained
thatafterthewarshewastoldthat"withrespect
to those
whowereat thebureau
communal
...it wasBagilishema
whoordered
thattheroomin
whichtheywerelocked
up be opened".
955The witness
confirmed
thatshehadheard
gunshots
butthatitwastwodayslater
thatshesawbodies
being
buried.

770.Witness
AB’swritten
statement
to investigators
of 22 June1999supplements
hertestimony.
There
shedeclared
thaton15 April
1994:

"...I sawthelnterahamwe
arrive
atthecommune
office
andgoinguptothejail.Twodays
thereafter,
I sawpeople
digging
a ditch
using
theexcavator
belonging
totheChinese...
Thereafter,
I sawtheInterahamwe
throwthebodies
ofthepeoplewhohadbeenlockedin
thejailintotheditch.Therewereapproximately
100people
in thejail;theywereall
exterminated.
Itwasreported
thatitwastheBourgmestre
Bagilishema
whoopenedthejail
andenabledtheInterahamwe
tocommittheir
heinous
crime.
I gotthatinformation
froma
mannamedNshimyimana,
whowastheBourgmestre’s
driver
’’956 atthetime.

952
Transcripts
of16 November
1999p.95.
953
Transcripts
of 15 November
1999pp.94-97;and16 November
1999pp.94-95.
954Transcripts
of 15 November
1999pp.97-100.
955
Transcripts
of16 November
1999pp.98-100.
956Defence
Exhibit
No.3.

257
 Witness
H

771.Prosecution
Witness
H testified
thattherefugees
thatarrived
after
thedeparture
of themaingroupexpected
that"inthebureau
communal
theycouldbe ableto find
security".
Theserefugees,
allTutsi,
continued
to arrive
"within
thatsamemonth"
in
"dribs
anddrabs".
957Theynumbered
fifty
intotal.

772.Thewitness
addedthattherefugees
werekilled
at a playing
field.
TheAccused
musthaveknownaboutthesekillings
forthe bureau
communal
continued
to operate
and "nothing
canhappen
or takeplacewithin
the commune
without
thebourgmestre
beingaware".
958 The refugees
werekilledwithbladedweapons.
959 The wimess
explained
thathe hadwitnessed
theeventfroma placecloseto a mosque
whichhada
goodviewoftheplaying
96° field.

Witness
Z

773.Prosecution
Witness
Z testified
thaton themorning
of 13 April1994,killings
beganaround
theGitikinini
area.Abakiga
fromMushubati
andGihara
"camechasing
theTutsis
andkilling
allTutsis
theymeton their
way.Theyevenchased
themintothe
bushandintosorghum
fields
andalong
theroadtheykilled
a lotofpeople,
particularly
nearthe parishandCommunal
office
of Rubengera
....
,,961Thewitness
claimed
to
haveseenbetween
fortyandsixtybodies
on theroadbetween
Rubengera
church
and
the commune.

774.Thewitness
testified
thatin theafternoon
of thesamedaytheAccused
cameto
Gitikinini.
On seeingthemanybodies,
he sentpolicemen
to theChinese
campto
collect
a machine
to burythem.Thewitness
explained
thatthemachine
arrived
a few

957
Transcripts
of19 November
1999p. 43.
958Ibid.
p.44.
959
Ibid.
p.91.
960
Ibid.
p.90.
961
Transcripts
of8 February
2000p.21.

258
 ~ ’q~*~ ICTR-95-1A-T

minutes
lateranda holewasdugin frontof thecommune,
by theflagpole
andavocado
962 Thewitness
trees. testified
thatallpassers-by
wereordered
to place
thebodies
into
thehole,afterwhichit wascovered
over.Thebodies
werecollected
fromthearea
between
Gitikinini
and thecommunal
office.
Witness
Z was unable
to estimate
the
number
ofbodies.
963Inhiswritten
statement
to investigators
of18 September
1999,
the
witness
declared
thattheAccused
instructed
thepopulation
toburythevictims
of the
Abakiga
butthatno massgravehadbeen dug.
964

775.As stated
above(V.4.2),
Witness
Z testified
thaton 14 April1994,
he andothers
tookPastor
Muganga
fromthecommune
jailto killhimat thefootball
field.
They
foundtwenty
bodiesthere,
someof whichhadbeenundressed.
The witness
did not
knowwherethesebodies
had965
come from.

Witness
AS

776.Defence
Witness
AS testified
thathe andothers
collected
thebodyof Pastor
Muganga
at nightfroma football
field.
He estimated
thattherewereanother
ten
corpses
966 inthevicinity.

Witness
AA

777.Without
givingan exactdate,Prosecution
Witness
AA testified
thathe saw
bodies
of people
of allagesnotfarfromtheTrafipro
roadblock.
In hisopinion
the
bodies
werethoseof refugees
"whowerenotableto go to Kibuye
andwhocamelate
andweretherefore
killed
there".
967Hedidnotcount
thebodies
"butI sawsomeon the

962Ibid.
p.27.
963
Ibid.
p.28.
964
Defence
ExhibitNo.65.
965
Transcripts
of 8 February
2000pp.46-47;
and9 February
2000p.92.
966
Transcripts
of 26April2000pp.22-23and84-90.
967
Transcripts
of10 February
2000p.58.

259
 ICTR-95-1A-T
,~¢~ ~i

.......................................................................................................

roadandwheretheyweregathered
thatis,closeto thebureau 96s He saw
communal".

"people
carrying
these
deadbodies
toa ...massgrave
thatwasdugclose
tothefootball
pitch".
969 He estimated
thatduringthe timethattheTrafipro
roadblock
was in
operation,
he sawthirty
or so bodies
closeto thebureau
communal.
Thewitness
stated
thathedidnotseeanyactual
killings.

The Accused

778.TheAccused
denied
thatpersons
werelockedin thecommunal
jail.He stated
that,
to thecontrary,
he waslooking
to protect
people:
"[W]ehadtriedtoshelter
the
refugees
everywhere
wherewe could,
we hadopened
allourdoors,
we didn’t
putthem
in prison
atall".
97°Healsotestified
thatnoprisoners
whatsoever
werepresent
at the
bureau
communal
during
thistimebecause
allpersons
arrested
prior
to thedisturbances
hadbeentransferred
directly
to Kibuye
97I
town.

779.According
to the Accused,
on 13 and14 April1994,a numberof persons
who
had beenin hidingwerefoundandkilledby Abakiga.
Afterthe departure
of the
Abakiga
on 13 April1994,the Accused
cameacrosssevenor eightbodiesat the
bureaucommunal.
He senta driverto the "Chinese
camp"witha requestfor a
bulldozer
to helpburythe bodies
whichwere"beginning
to decompose".
972 A mass
gravewas dug in frontof the bureaucommunal
betweentwo avocadotrees.The
Accused
claimed
thatthislocation
waschosen
because
"wewerenotableto touchthe
property
belonging
to individuals"
and"because
it wastheonlyplacewhichbelonged
to thecommune".
973

780.TheAccused
alsotestified
thaton 14 April1994morepeople
whohadbeenin
hiding
werefoundby theAbakiga.
Therefugees
triedto fleetowards
Kibilizi
market
but"they
weresurprised
fromthesideof thefootball
field
andthere
eight
people
were

968Ibid.
p.60.
969Ibid.
p.59.
97o
Transcripts
of5 June2000p.130.
971~
xranscnpts
of 8 June2000p.225.
972Transcripts
of5 June2000p.131.

260
 ~/,.~.:~’~ "~’~ ICTR-95-1A-T

killed,
including
Muganga".
974AftertheAbakiga
hadlefttheAccused
askedpeople
to
claim
thebodies
of theirrelatives.
He testified
thathe didnothavethecourage
to
identify
thevictims,
so he askedpolicemen
andmembers
of thecellule
committee
to
helpburythebodies.
975 Unclaimed
bodies
wereburied
close
tothefootball
field.

Investigator
Allagouma

781.The Prosecution
investigator
identified
locations
of massgravesaround
Mabanzacommune.
His knowledge
of the locations
was basedon information
he
received
duringinterviews
ratherthanfromexcavations
or exhumations.
The
investigator
stated
thatthere
wasa massgrave
at eachofthefollowing
places:
infront
of thecommunal
office,
underthenewly
builtpolice
complex
to onesideof thebureau
communal,
by theRubengera
football
pitchandin a septic
tankon landbelonging
to a
certain
Hitimana.
976A number
of exhibits
werefiledby theProsecution
to showthe
location
977 of massgraves
fromtheperiod,
including
theoneat thecommunal
office.
TheChamber
notesthatparagraphs
4.16and4.17referonlyto "a massgrave"
within
theprecinct
of thebureau
communal.

Findings

782.Witness
AB is theonlywitness
to havereferred
to onehundred
refugees
(the
figurein paragraph
4.15of theIndictment)
beingkilledat thebureaucommunal
following
thedeparture
of themaingroup.
Witness
H testified
thata totalof fifty
persons
arrived
at thebureau
communal
on 13 April1994or after.
According
to the
Accused,
eightpeople
werefoundandkilled
in theproximity
of thebureau
communal
on 13April1994andanother
eighton thefollowing
day.

973Ibid.
pp.130-131.
974Ibid.
pp.125-126.
975Ibid.
pp.132-133.
976Transcripts
of28 October
1999pp.96-114.
977Including
Prosecution
Exhibits
Nos.13,38(b),
38(c),
38(d),
39(c),
39(d),
39(e),
41(a),
42(b),
42(c),
43(a),
43(b)
and

261 ~.~
783.Although
theseversions
differ,
it seemsthata number
of refugees
continued
to
stream
intothebureau
communal
afterthedeparture
of themaingroupin theearly
morning
of 13 April1994.

784.TheAccused
admitted
thatsomepeople
weresheltered
in themainhallof the
communal
office
andin the IGAbuilding
but thatall thedoorswereunlocked.
By
contrast,
Witness
AB maintained
thatrefugees
werelocked
up in roomsof theIGA
building.
In cross-examination,
however,
thewitness
admitted
thatshedidnotknowif
theroomfromwhichshesawcertain
refugees
comeoutwaslocked.

785.Theonlyotherevidence
aboutpersons
beingunderlockat thebureau
communal
relates
to thekilling
of Pastor
Muganga
(V.4.2).
However,
evenherethetestimonies
theProsecution
witnesses
arenotconsistent.
Witness
AB testified
thatMuganga
was
takenoutfroma roomof theIGAbuilding
whereas
Witnesses
O andZ maintained
that
hewasbeing
heldin thecommunal
j all.

786.Witness
AB wastheonlywitness
to testify
to seeing
theAccused
andpolicemen
facilitate
attackers’
access
to theroomsof theIGAbuilding
within
whichTutsiwere
held.However,
cross-examination
revealed
thatthewitness
didnotherself
seethe
Accused
openthedoorbutrather
thatsheobtained
thisinformation
fromtheAccused’s
driver.
Her hearsay
evidence
is not corroborated.
TheChamber
recalls
thatthe
credibility
of Witness
AB hasbeencalled
intoquestion.
978Theallegation
in the
Indictment
thattheAccused
allowed
Interahamwe
militiamen
access
to buildings
of the
bureaucommunal
has not beenestablished
beyondreasonable
doubt.The related
allegation
thatInterahamwe
militiamen
tortured
andkilledTutsirefugees
hiding
therein
alsoremains
unproved.

787.As fortheallegation
thatpersons
werekilled
in or around
thebureau
communal,
theevidence
doesnotimplicate
theAccused.
No witness
sawtheAccused
thereduring
thekillings.
Neither
Witness
AB norWitness
AA claimed
to haveseenkillings
at or

262
 ~ ~’~ ICTR-95-1A-T

around
the communal
office
between
15 and17 April1994.Witness
Z wasalonein
associating
theAccused
withtheaboveevents.
He explained
thattheAccused
arrived
intheafternoon
on13April
1994,
apparently
after
thekillings
hadended.

788.Theevidence
as totheidentity
of thekillers
isscant.
Witness
Z andtheAccused
testified
thattherefugees
werekilled
by Abakiga.
Thereis no evidence
thatthe
Accused
or anyof hissubordinates
wasamongthosecommitting
thekillings.

789.It hasbeenestablished
thattheAccused
organized
thedigging
of a massgrave
outside
thebureau
communal.
At leasteightbodies,
possibly
more,foundbetween
the
communal
office
andGitikinini
wereinterred
in thegrave.
TheChamber
observes
that
interring
persons
ina massgrave
doesnotinitself
establish
criminal
liability.
However,
according
to Witness
AB, Interahamwe
wearing
bananaleaves(possibly
Abakiga)
participated
in themassburial
ordered
by theAccused.
Thiswouldindicate
thatthe
Accused
exerted
control
overa group
of possible
assailants.
Again,
thisobservation
by
Witness
AB givescausefor doubt.
It doesnotcoincide
withthe account
givenby
Witness
Z, whoin histestimony
spokeof passers-by
assisting
in theburial
andin his
previous
written
statement
referred
tothe"people
ofGitikinini"
performing
thetask.
979

Thereis alsoreason
to doubtthatWitness
AB actually
observed
themassburial
in
question.
Sheclaimed
thatit tookplacetwodaysafterthedateon whichsheheard
gunshots
fromthedirection
of thecommunal
office,
morethanfourdaysafterthedate
advanced
by theAccused
andWitness
Z. Consequently,
theChamber
cannot
findthat
theallegations
in paragraphs
4.16and4.17oftheIndictment
havebeenproved.

790.The questionwhetherthe Accused,as bourgmestre,

took necessary
and
reasonable
action
to protect
therefugees
whoarrived
afterthedeparture
of themain
grouphas not beenarguedby the Prosecution.
The Chambernevertheless
makes
reference
to evidence
considered
in various
partsof thisChapter
thatsuggests
that
Mabanza
commune
was besieged
by Abakiga
on or before13 and 14 April1994.
98o

978
See,inparticular,
V.2.5,
2.6,3.1and4.1.
979DefenceExhibit
No.65.
980See,inparticular,
IV.4.7
and5.2;and3.1-3.4.

263
 ICTR-95-1A-T

Thisevidence
addsupto a reasonable
possibility,
at least,
thattheAccused
wasnotin
fullcontrol
of thesecurity
situation
in Mabanza
commune
during
thetimein question.
TheProsecution
alsohasnotaddressed
thequestion
whether
theAccused
should
have
attempted
tofindtheperpetrators
andtakemeasures
against
them.

791.For the abovereasons,

the Chamberfindsthatthe chargesof genocide,
complicity
in genocide
andcrimes
against
humanity
in relation
to theevents
referred
to
inparagraphs
4.15to 4.17of theIndictment
mustbe dismissed.

4.4Attacks
at Bisesero

TheIndictment

792.According
to theProsecution,
by lateApril1994,manyTutsihadtakenrefuge
inthehills
of Bisesero,
wheretheyweresubsequently
attacked.
It is alleged
thatthe
Accused
supported
attacks
on therefugees
at Bisesero,
as a result
of whichthousands
losttheir
lives.
Paragraph
4.30oftheIndictment
reads:

"Throughout
April,MayandJune1994,
IgnaceBagilishema
acting
inconcert
withothers,
including
Clement
Kayishema,
Semanza
Celestin,
Nsengimana
Apollinaire,
Nzanana
Emile
andMunyampundu
brought
totheareaofBiseseroarmedindividuals,
including
members
of theGendarmerie
Nationale,communal
policemen
andInterahamwemilitiamen
and
directed
themtoattack
thepeopleseeking
refugethere.
Inaddition,
IgnaceBagilishema
personally
attacked
andkilled
persons
seeking
refuge
onGitwa
hill
intheareaofBisesero."

Submissions
oftheParties

793.Referring
to testimonies,
theProsecution
alleges
thatthe Mabanza
commune
driver
transported
attackers
toBisesero
tokilltherefugees
there.
Itwasalsoalleged
thattheAccused
was present
at a meeting
during
whichall able-bodied
youngmen
wereencouraged
to go toBisesero
to attack
refugees.
Another
witness
saidthatat the
end of April1994,sheheardInterahamwe
militiamen
bragging
aboutwhattheyhad
doneat Bisesero.
TheProsecution
alsocontends
thatwhentheAbakiga
beganstealing

264 ~/t.~.
 ICTR-95-1A-T

.......................................................................................................

cattle
fromHutuin Mabanza,
theAccused
instructed
themto go to Bisesero
to assist
thosefighting
theTutsithere.
Furthermore,
reference
is madeto onewitness
whosaw
twobusloadsof attackers
drive
pasthissecteur,
andsubsequently
learned
thatthese
vehicles
had goneto Bisesero.
Finally,
the Prosecution
alleges
thatarmsand
ammunition
weredistributed,
underthe supervision
of the Accused,
to Abakiga,
Interahamwe,
members
of thesecurity
forces
andotherHutucivilians
preparing
to go
to Bisesero
to takepartin theattacks.
TheProsecution
charges
theAccused
with
genocide,
complicity
in genocide
andcrimes
against
humanity.
981

794.TheDefence
argues
thatnoneof theProsecution
witnesses
wasan eyewitness
to
theeventsat Bisesero.
The witnesses
whoreferred
to Bisesero
eitherheardthe
Interahamwe
boasting
abouthaving
committed
crimes
there,
sawbusestransporting
the
Interahamwe
towardBisesero
or heardthe Accused
exhorting
the Abakiga
or the
population
to go to Bisesero.
However,
according
to theDefence,
the Prosecution
provided
no evidence
to showthatanyof thesepersons
actually
wentto Bisesero,
or
whattheymayhavepersonally
donethere.
It hasnotbeenproved
thatanycrimes
were
committed
there.
Therefore,
theallegations
withrespect
to Bisesero
mustbe discarded
forlackofevidence.
982

Deliberations

Witnesses

795.Witness
H, a Hutu,testified
thatafterthedeparture
of therefugees
forKibuye
(V.3.1)
andthesubsequent
attack
against
Karungu
(V.4.1),
Abak
igaleft
Maban
za
commune.
Thewitness
added:

981
See,
forinstance,
Prosecution’s
written
Closing
Remarks
p.12para.
83,pp.37-38
paras.
232-238,
p.
94para.94,p.100para.
97,p.103paras.
143-145,
p.106para.
177andp.103para.
246;
Rebuttal
paras.
12and17.
982
See,forinstance,
Defence
Briefp.
26paras.
172-174;
Rejoinder
paras.
121-126.
 ICTR-95-1A-T

I 17-
.......................................................................................................

"TheAbakiga
leftMabanzacommune
because
bourgrnestre
Bagilishema
hadhelda meeting
inRubengera
sectorandhehadtoldtheAbakiga
tocontinue
andtogoonwards
toBisesero
toassist
theHutus whowerefighting
theTutsis.Butthetruereason
forwhichhewas
sending
theseAbakigatherewasbecausetheseAbakigahadstarted
to eattheHutu
livestock.
TheHutuinMabanzastarted
tocomplain
andso thebourgmestre
askedthemto
leave
hiscommune.
’’983

Thewitness
saidthathehadattended
thismeeting.

796.On 13 April1994,WitnessA, who was then16 yearsold,leftthe bureau

communal
for Kibuyewiththe otherrefugees.
He was present
amongthe refugees
during
theattack
at Kibuye
Stadium
on 18 April1994,fromwherehe escaped.
After
spending
somedayshiding
in theforeston Gatwaro
Hill,the witness
returned
to
Mabanzacommune,wherehe soughtshelterat the houseof Nshimyimana,
the
communaldriver,who gavethe witnesssome foodbut refusedto hide him.
Nshimyimana
saidthat"he wasgoingto carrypeoplewhoweregoingto killother
people
in Bisesero."
Thewitness
leftimmediately.
Laterthesameday,fromhishiding
placein a forest,
thewitness
sawthecommunal
vehicle
transporting
Interahamwe:
"Thevehicle
’’984 wasontheKibuye
roadandit isthesameroadthatleads
toBisesero.

797.Witness
O sought
refuge
at thecommunal
office
on 9 April1994andlaterwent
intohiding
in sorghum
fields
in Mabanza
commune.
Onedayin April,
at 9 a.m.,there
wasa public
meeting
heldat a placecalled
Mukunyenyi.
Thewitness
didnotattend
or
observe
it,butshewasableto hearwhatwasbeingsaid.Themeeting
wasledby the
Accused’s
assistant,
Semanza,
who,usinga megaphone,
introduced
thebourgmestre
to
thosepresent.
Thewitness
recalled
theAccused
saying:
"TheTutsis
whointended
to
killtheHutushadbeendiscovered,
andthatwherever
theenemywas,he wasgoingto
be killed."Following
this,Munyampundu,
who was introduced
as a Memberof
Parliament,
exhorted
thosepresent
to lookeverywhere
forTutsiandkillthem.He then
stated
that"allable-bodied
youngmen should
meetin themorning
at thecommune

983Transcripts
of19November
1999p.41.Some
obvious
mistakes
intheEnglish
transcripts
have
been
rectified.
French
version:
"Mais
...lavraie
raison
pour
laquelle
ilenvoyait
cesAbakiga
1/t-bas,
c’est
parce
quecesAbakiga
avaientcommenc6
/~manger
leb&ail
desHums,leurcong~naire,
lesHumsdela
commune
deMabanza
etceux-ci
avaient
commenc6/l
seplaindre:
Alors,
lebourgmestre
luia demand6
dequitter
sacommune
(p.51).

266 ’~ ~.
 -’ *~’~ ICTR-95-1A-T

Jt
it..
,.."
.
office
to moveon to Bisesero.
’’985Thenextday,Witness
O sawmengather
at the
bureaucommunal.
As theywalkedpastthe fieldin whichshe was hiding,she
overheard
986 themtalkabout
their
intended
destination,
Bisesero.

798.TheChamber
notesthatin her earlier
statement
to investigators
on 23-24
February
1998,WitnessO explained
whathad happened
on the morning
afterthe
meeting:

"Thenextmorning,
I sawa large
crowd
goby,singing
...’Letusexterminate
them.’These
peoplecamefromRambaandRutsiroandwereheadingfortheMabanzacommuneoffice,
whereI could
seea largenumberofvehicles
....I knewthevehicles
werefromKibuye.
Someof themwerealsoshouting thatMtmyampundu
hadaskedthemto come.I do not
knowwhatthesepeopleassembled
atthecommune
officedid.
’’987
(Emphasis
added.)

799.Witness
Z testified
thatwhenhe wasat theTrafipro
roadblock
in May1994,
Eliezer
Niyitegeka
andCyprien
Munyampundu
at certain
timespassed
by on theirway
to thebourgmestre’s
office.988 Thewitness
saidthaton one occasion
Niyitegeka
broughtwithhim a numberof weaponsin a vehicle.
The Accusedorderedthose
present,
including
WitnessZ, to offloadthe weapons,
whichincluded
a box of
grenades,
andto placethemin hisoffice.
Thenextday,theAccused
together
withhis
assistant
C61estin
Semanza,
whoat thetimeprovided
housing
tomanyof theattackers,
began
to distribute
theweapons
to theAbakiga.
Witness
Z saidhe waspresent
at the
distribution
andreceived
three
grenades,
whichhetookwithhimto theroadblock,
even
thoughthe bourgmestre
had ordered
thatany personreceiving
weapons
wasto go
directly
toBisesero
tokilltheTutsi
gathered
there.
Thewitness
wasunable
toconfirm
thattheAccused
989 himself
wentto Bisesero
atthetime.

984Transcripts
of 17 November
1999p. 54.
985Transcripts
of 24November1999p.49andp.50,respectively.
986Ibid.
p.120.
987Prosecution
ExhibitNo.62.
988ThewitnessbelievedthatNiyitegeka
wastheMinister
of Information,
whereas
Munyampundu
wasa
secretary
oftheNational
Assembly.
989Transcripts
of8 February
2000.

267 ,~ ..
 .~, ~ ~’~ ICTR-95-1A-T

.......................................................................................................

800.In hisstatement
to investigators
of18 September
1999,thewitness
identified
the
persons
distributing
weapons
to theAbakiga
as theAccused,
Conseiller
Daniel,
deputy
bourgmestre
Apollinaire,
andoneNtirugaya.
TheChamber
notestheabsence
fromthis
account
of hisassistant
Semanza,
butthewitness
wasnotaskedto account
forthe
apparent
99° omission.

801.Threeotherwitnesses
mademinorcontributions
on the subject
of Bisesero.
Witness
AB saidthatwhilein hiding
closeto a roadat theendof themonthof April
sheoverheard
Interahamwe
"bragging
aboutwhattheydidin Bisesero
...,,.991
Defence
Witness
BE saidthataround
13 April1994heheardthattwofullbusespassing
through
Mabanza
commune
fromthedirection
of Gisenyi
wereheaded
forBisesero.
As faras
he knew,theydid notstopat thecommunal
office.
He didnot seetheAccused
on
board
them.
99zWitness
ACmadepassing
reference
to the"battle
of Bisesero",
to which
shewasaneyewitness,
993 butgavenoevidence
relating
tothisevent.

The Accused

802.In histestimony,
theAccused
denied
thathe hadgoneto Bisesero
during
the
period
in question.
Hisreferred
to hisdiary
andtheregister
ofincoming
andoutgoing
mail.
According
to theAccused,
no mention
wasmadethereof travel
to thatlocation.
As forGitwaHillin Bisesero,
referred
to in paragraph
4.30of theIndictment
(see
above),
he saidthathe had neverbeenthereanddidnot evenknowtheplace.He
challenged
allallegations
relating
totheparthe played
atBisesero.
He indicated
that,
on thecontrary,
he hadattempted
to prevent
attackers
passing
through
Mabanza
andto
protect
thepopulation
ofhiscommune.
In thisconnection
theAccused
testified
thaton
23 June1994,a bus fullof Interahamwe
fromGisenyi
passedthrough
Mabanza
on
theirwayto Bisesero,
stopping
to commit
"someatrocities"
in Mabanza
itself.
He

990Defence
ExhibitNo.65.
991
Transcripts
of 15 November
1999p. 103.
992Transcripts
of 27April2000.
993Transcripts
of 18November
1999p. 58.

268
 ~’~ ICTR-95-1A-T

claimed
thathe hadwritten
to thePrefect
on 24 June1994requesting
himto stop
"these
actsofbarbarism
beingcarried
outby theInterahamwe
in Mabanza.
994

803.In relation
to theallegation
thathe distributed
weapons
whichhe hadreceived
fromMunyampundu
andNiyitegeka,
the Accused
saidhe believed
thatMunyampundu
wasnotin thecountry
at therelevant
time.IfNiyitegeka,
a member
of theMDRparty,
had brought
weapons
to Mabanza,
"he wouldn’t
givethemto me, his opponent.
He
wouldgivethemto another
person
whowasfromthesameparty...Semanza".
995The
Accused
did,however,
recall
having
lenttwoweapons
to theparishes
of Mushubati
and
Rubengera,
tobeusedbyreservists
toprotect
thepopulation
there.

Findinzs

804.TheChamber
notesthatprevious
caselawhasestablished
thata largenumber
of Tutsiwereattacked
and killedat Bisesero
in 1994.Reference
is madeto the
Kayishema
and Ruzindana
Judgementparas.405-472and the MusemaJudgement
paras.
362-497
and649-796.
Thisis notin dispute
between
theparties.
Accordingly,
thequestion
atissue
inthepresent
caseistheroleoftheAccused,
ifany,inrelation
to
those
attacks.

805.According
to thelastsentence
of paragraph
4.30in theIndictment,
theAccused
personally
attacked
andkilled
persons
seeking
refuge
on GitwaHillin theareaof
Bisesero.
Noneof the witnesses
who testified
beforethe Chamberhad seenthe
Accused
in thatareaofBisesero
orknewthathe hadbeenthere.
AstheProsecution
has
notledanyevidence
forthisallegation,
theAccused
mustbeacquitted
onthispoint.

806.Inthefirst
sentence
of paragraph
4.30itis alleged
thattheAccused,
inconcert
withothers,
including
fivenamedpersons,
brought
armedindividuals
to Bisesero
and
directed
themto attack
therefugees
there.
Thereis no evidence
thattheAccused

994Transcripts
of7 June2000p.92.
995Ibid.
p.171.

269
himself
brought
anyone
to Bisesero.

807.However,
theProsecution
hasoffered
evidence
to theeffect
thattheAccused
instructed
persons
togo to Bisesero
andattack
therefugees.
Specifically,
Witnesses
H,
O and Z gaveevidence
thatthe Accusedorderedor was presentwhenHutuwere
instructed
to go to Bisesero.
Witness
H referred
to a meeting
he attended
in Rubengera
sector,
at whichtheAccused
ordered
theAbakiga
to go to Kibuye.
Witness
O testified
to a meeting
thatshe overheard
at Mukunyenyi,
involving
theAccused,
Semanza
and
Munyampundu.
Witness
Z explained
thattheAccused
distributed
weapons
andordered
that
Tutsi
bekilled
inBisesero.

808.Thesewitnesses
described
different
episodes.
If theAccused
is to be convicted
pursuant
to paragraph
4.30of theIndictment,
theProsecution
mustshowthatTutsi
wereattacked
at Bisesero
by persons
whohadbeenordered
to do so by theAccused.
In
thisconnection,
theChamber
notesthattheProsecution
hasnotcharged
theAccused
withdirect
andpublic
incitement
to commit
genocide
butwithgenocide
andcomplicity
in genocide.
Thewording
of theIndictment
is thattheAccused
"brought"
persons
to
Bisesero
and"directed"
themto attack.
TheProsecution
hasnotledsufficient
evidence
inthis
respect.

809.Witness
O testified
thatshewasprivyto a meeting
during
whichtheAccused
called
for theenemyto be sought
out.Shestated
thatshe alsoheardMunyampundu
instruct
young,able-bodied
mento gatherat the bureaucommunal
thenextday.
However,
thewitness
didnotactually
seeor observe
thismeeting.
Sheonlyheardit,
andwasableto identify
thespeakers
as theywereintroduced
before
addressing
the
crowd.
It is notmentioned
in hertestimony
whether
Semanza
wasintroduced
to the
crowd.
Itistherefore
doubtful
thatthewitness
wasableto identify
him.Intheopinion
of theChamber,
unlessthewitness
wascompletely
familiar
withhisvoice,
it is
questionable
thatshecouldidentify
Semanza
soassuredly
without
having
actually
seen
or observed
themeeting.
Witness
O alsotestified
thatthedayafterthemeeting,
she
overheard
menwhoweregathering
at thebureau
communal
talkaboutBisesero
as their
intended
destination.
Yet,in her1998statement
shemadeno mention
of Bisesero.
To
 .......................................................................................................

thecontrary,
sheindicated
thatshedidknowwhytheyweregathering
at thebureau
communal.
However,
thereis no evidence
thatthesemenactually
wentto Bisesero.
Her
testimony
is therefore
inconclusive.

810.Witness
H testified
thatalthough
theAccused
had toldthe Abakiga
to go to
Bisesero
to assist
I-tutu
fighting
theTutsi,
therealmotive
oftheAccused
wasto have
theAbakiga
leavethe commune,
as peoplein Mabanza
wereunhappy
withthemfor
appropriating
andeating
theirlivestock.
Again,
thereis no evidence
thatanyof the
Abakiga
whoparticipated
in thatmeeting
actually
wentto Bisesero.
Witness
H’s
testimony
is therefore
inconclusive.

811.Witness
A testified
thatthe communal
driver,
Nshimyimana,
saidthathe was
goingto transport
attackers
to Bisesero.
No mention
is madeof theAccused
in this
regard.
Thefactthatthecommunal
vehicle
waslaterseenby Witness
A transporting
Interahamwe
on theroadleading
toBisesero
isnotconclusive,
as thatroadalsoledto
Kibuye.
There
is no further
evidence
thatthisvehicle
orthepeople
aboard
didin fact
gotoBisesero.

812.WhileWitnessZ testified
as to weaponsdistributed
by the Accusedwith
instructions
to thosein receipt
to go to Bisesero,
thereis no evidence
thatanyone
followed
theseinstructions.
To thecontrary,
Witness
Z, whostated
thathe received
threegrenades
during
thisdistribution,
stayed
in Mabanza.
Regarding
Witnesses
AB,
AC andBE,thereis insufficient
evidence
to conclude
thatpersons
allegedly
receiving
instructions
fromtheAccused
committed
crimes
at Bisesero.
Moreover,
Witness
AC,
whoalonewitnessed
the"battle
of Bisesero",
didnotmention
anyparticipants
coming
fromMabanza.

Conclusion

813.Fortheabovereasons,
the Chamber
cannotfindbeyondreasonable
doubtthat
theAccused
committed
crimes
undertheStatute
in connection
withtheattacks
against
refugees
in Bisesero.

271
 814.Kanyabugosi
was a Tutsi,who was killedin Mabanzain May 1994.
996 The
Prosecution
bringsthiseventunderparagraphs
4.12and 4.13of the Indictment,
reproduced
above(V.4.1).

Submissions
of theParties

815.The Prosecution
refersto the testimony
of WitnessH, who described
how
Kanyabugosi
was takento the Accusedby two communalofficers,
conseiller
Nkiriyumwami
and the accountant
Nzanana.
TheyclaimedthatKanyabugosi
was an
Inkotanyi.
TheAccused
handed
himbackto histwosubordinates,
whokilled
him.As
theyhadreferred
to thevictim
as an Inkotanyi,
which,
according
to theProsecution,
meant
"collaborator
withtheRPF";andin viewof thecontext
of widespread
massacres
of Tutsiin Mabanzacommune,the Accusedknewor shouldhaveknownthathis
subordinates
wouldproceed
to killKanyabugosi.
TheProsecution
charges
theAccused
withgenocide
and violation
of Article
3 common
to the Geneva
Conventions
andof
Additional
Protocol
~.997

816.The DefencenotesthatonlyWitnessH testified

aboutKanyabugosi.
His
testimony
is unreliable
as a wholeandshould
be setaside.
At anyrate,
theProsecution
has not provedbeyondreasonable
doubtthata crimewas committedagainst
Kanyabugosi.
Thewitness
testified
thattheAccused
merely
handed
Kanyabugosi
over
to theconseiller
andtheaccountant.
Thewitness
didnotseetheactual
killing
or the
body.Thereis not sufficient
proofof command
responsibility.
According
to the
Defence,
thepreponderance
of the evidence
reveals
thattheAccused
tookaction
against
illegal
conduct
of communal
employees,
evenforminoroffences
suchas
stealing.
It followsthathe couldnot havecondonedthe allegedkillingof

996Thevictim’s
surname
isalso
spelt
"Kanyabugoyi"
inthetranscript.
TheChamber
hasnotbeen
informed
about
hisfirst
name.
Inthepresent
case,
hehasbeendescribed
asthedriver
ofGeneral
Romeo
Dallaire,
Commander
oftheUNAMIR
peacekeeping
force,
seebelow.

272
Deliberations

817.Prosecution
Witness
H testified
thatGeneral
Dailaire’s
driver,
Kanyabugosi,
wasa Tutsianda Muslim
fromGacaca
sector,
Mabanza
commune.
He sought
refuge
at
a mosque
in Mabanza
sometime
in May1994.Thewitness
andothers
looked
afterthe
refugee,
butneartheendof Mayhefellill.According
to thewitness,
after
prayers
one
evening,
Kanyabugosi
saidthatDallaire
had telephoned
him to informhim that
Kanyabugosi’s
moneywas at the bureaucommunal
and thathe shouldgo thereto
collect
it.Thewitness
thought
thatKanyabugosi
musthavebeendelirious
astherewas
no telephone
at themosque.
TheChamber
notesthataccording
to hisstatement
of
14 July1999givento investigators,
Kanyabugosi
wentto thebureau
communal
as he
"gottired
of remaining
in hiding
andwentto thecommune
office
to seekhelpfromthe
Bourgmestre.
’’999Therewasno mention
of a telephone
callfromDallaire
or themoney
saidto beat thebureau
communal.

818.WitnessH testified
thatthe nextmorning
Kanyabugosi
wentto the bureau
communal
andfoundtheAccused.
Whenthewitness
learnt
aboutthis,he followed
him
tothecommunal
office.
Inhistestimony,
thewitness
stated:

"Hearrivedat theMabanzabureaucommunalandhe foundthebourgmestre

there.The
bourgmestre
sawhim,theydidn’tdoanythingelse.Theyonlysaidthattheyhadfounda
majorInkotanyi.
Theywentto seewhothisInkotanyi
was,theconseiller
[Nkiriyumwami]
...waspresent aswellasstaff of thecommune.
Thebourgmestre
didnothingelse.He
simplygave[him]backtotheconseiller
aswellastotheaccountantofMabanza
commune.
Theytookhimawayandkilled him.Thenameof theaccountant
wasNzanana.Theytook
him°°
’’1°
awayandkilledhim....Weleftimmediately
because
wecould
donothingfurther.

997 ~ . ,
vrosecutxon
s written
Closing
Remarks
p.11 para.76,p.89 para.63 andp. 116para.272;Rebuttal
~gara.
29. Closing
8 Defence Briefp.
39paras.
290-293
andp.119paras.
61-62;
Rejoinder
p.17 paras.
170-172.
999Defence
Exhibit
No.10.
1000
Transcriptsof 19 November
1999pp. 48-49.TheChambernotes,in particular,thefollowing
sentences
in theFrench translation:
"Lebourgmestren’arienfaitd’autre,
ila simplement
promis
au
conseiller
ainsiqu’aucomptablede la commune
de Mabanza,
ilsFontamen6et Fonttu&Et,le nomdu

273 @,/b,~,.
 819.Witness
H saidthathe didnotgo to lookat thebody.He alsosaidthathe did
notseeKanyabugosi
again.

Findings

820.Witness
H, theonlywitness
in thematter
of Kanyabugosi’s
death,
provided
no
details
aboutthekilling.
During
histestimony,
thewitness
firstexplained
thatthe
conseiller
andtheaccountant
"tookhimawayandkilled
him".TheProsecution
then
asked
whether
he sawthebody.
Thewitness
responded
thathe "didn’t
go to lookat his
body’’.
Subsequently,
theProsecution
askedwhether
he hadseenKanyabugosi
again
since
thatday.Thewitness
answered
thathe didnotseehimagain.
Theseanswers
gave
theimpression
thathe didnotactually
seethekilling.
TheBench
thensought
toclarify
matters
by asking
thewitness
whether
he hadseentheevents
he justhaddescribed.
He
answered
yes,butno further
information
wasprovided,
either
during
examination-in-
chief
orcross-examination.

821.According
to Witness
H’sstatement
to investigators
of 14 July1999,thetwo
municipal
officers
killed
Kanyabugosi
"behind
the commune
office
withsmallhoes,
and the fatalblowwas givenby Nzananain the presence
of the conseiller
of
Gacaca".
1°°1As mentioned
above,
theProsecution
didnotfollow
thisup before
the
Chamber,
forinstance
by clarifying
whether
theversion
in thestatement
reflected
events
actually
seenby thewitness
or washearsay.
During
theoralclosing
arguments,
theProsecution
wasasked
whyit didnotleaddetailed
evidence
aboutthekilling.
After
several
evasive
answers
it wasfinally
clarified
thatthewitness
didnotseethekilling,
butthattheinformation
in thestatement
waspurely
hearsay
as theperson
wasnot
there.l°°2

coupable
6taitNzanana.
Ilsl’ont
amendet l’ont
tu6.Noussommes
toutde suitepartis
parce
quenousne
~0ouvions
rien
faixe
01Defence d’autre."
Exhibit
No.i0.
1002
Transcripts
of18 October
2000pp.149-158.

274 e
............................
822.Assuming
!__$-o._
thattheevents
unfolded
in themanner
described
by thewitness,
it
doesnotfollow
clearly
fromhistestimony
thatitwastheconseiller
andtheaccountant
whocalled
Kanyabugosi
an Inkotanyi,
asalleged
by theProsecution.
It isalsounclear
for whatpurposeKanyabugosi
was "handedover’’by the Accusedto the two
communal
officials,
andwhether
he waskilled
pursuant
to an instruction
givenby the
Accused
or withhisknowledge
andacquiescence.
Theevidence
submitted
in courtdid
notclearly
establish
thatKanyabugosi
waskilled
by communal
officers,
or thathe was
killed
at all.No further
evidence
wasprovided
by theProsecution,
which
didnoteven
address
theissueof thekilling
of Kanyabugosi
during
itscross-examination
of the
Accused.
TheChamber’s
doubtabouttheroleof theAccused
is increased
by thefact
thatWitness
H in relation
to otherevents
seemed
to implicate
theAccused
to a larger
extent
1°°3 thanthatbased
on hisactual
observations.

Conclusion

823.Consequently,
theChamber
mustconclude
thatthe Prosecution
hasnot shown
beyondreasonable
doubtthatthe Accused
committed
crimesunderthe Statute
in
connection
withthekilling
ofKanyabugosi.

4.6Killing
of theSonsof Witness
B

824.WitnessB, a Tutsi,described
how her threesonswerekilledin Mabanza
commune.
TheProsecution
brings
thiseventunderparagraph
4.13of theIndictment,
reproduced
above(V.4.1).
According
to theProsecution,
towards
theendof May1994,
Witness
B andherfivechildren
werein hiding
in a fieldin Mabanza
commune.
From
thislocation
the wimessobserved
several
meetings
hostedby the Accused
at his
residence.
Attacks
on Tutsiwouldintensify
following
eachmeeting.
The witness
returned
to herhousewithherchildren
in thehopethattheywouldbe killed
by her
neighbours
without
beingtortured.
WhentheAccused
wasinformed
of thishe ordered
thatthewitness’s
threesonsbe killed.
Theyweremurdered
in hispresence.
The
Prosecution
charges
theAccused
withgenocide,
complicity
in genocide
andcrimes

loo3
SeeV.4.1
and4.3.

275
 ICTR-95-1A-T
,¢f~ ’~,, ~’Z~,

against
°°4 humanity
inrelation
tothiseventJ

Submissions
of theParties

825.TheDefence
maintains
thatWitness
B’stestimony
is vagueandinaccurate.
It is
notpossible
to determine
whowaspresent
whenthechildren
weretakenawayto be
killed,
or whotheperpetrators
of thealleged
crimes
were.Thewitness
confirmed
that
shewasunable
to hearwhatwasbeingsaidat thealleged
meetings
at theAccused’s
house.
Sheconceded
thatshehadnotactually
seenthoseparticipating
butwastold
aboutthemby somebody
else.Shealsotestified
thatthemeetings
hadtakenplace
every
evening
frommid-April
to early
July,eventhough,
on heraccount,
shehadhidin
thefield
onlyuntil
theendof May.No other
witnesses
corroborated
these
events.
1005

Deliberations

826.Around
7 April1994,whenotherTutsiof Mabanza
commune
hadbegunto seek
refuge
at the bureau
communal,
Witness
B together
withherfivechildren
andher
husband
1°°6 wentto hidein theMuslim
quarter.

827.Abouta weeklater,
andshortly
aftertherefugees
at thecommunal
office
leftfor
Kibuye
town,Witness
B’shosts,
returning
froma meeting
in thecommune,
informed
herthattheAccused
hadtoldthemthat"allthetutsis
hadtodie"andthatallprotectors
of Tutsiwouldbe killed
alongwiththeTutsipeople.
1°°7Shewasthereby
forced
to
leavethishiding
place.
Herintention
wasto takeherfamily
to Kibuye
townto find
security
there.
However,
on theroadcloseto thebureau
communal
shecameacross
the
Accused.
He wasin a vehicle
calling
uponHututo armthemselves
andto killTutsi.
He

10o4
Prosecution’s
written
Closing
Remarks
p.14paras.
91-94,p.89para.
64,p.93para.
90,p.96para.
112,
p.99para117,
p.109para.
200,p.113para.
237andp.115para.
261;Rebuttal
para.
30.
lo05See,forinstance,
Defence
ClosingBrief
p.39paras.294-299
andpp.45-46paras.
347-363;
Rejoinder
paras.
173-174.
1006
Transcripts
of24January
2000pp.56-57.
1007
Ibid.
p.58.

276
wasusinga megaphone.
1°°8Thewitnessadded:

"Itwasthemarket dayandeverybody wasin themarketandthebourgmestre

hadjust
addressed
thepeopleinthemarket andthehutuswhowerethere
lefttheplace
veryangry...
Theywerein a hurryto go backhome,lookfortheirweapons
andseekthetutsis’
houses
and°9
’’1°
kill
them.

828. In cross-examination
thewitness
qualified
herearlier
account:

"I do notreallyrememberwhether
it wasa market
dayor notbecauseI was...undergoing
difficultsituations
...I didnotevengettothemarketbutwhenI sawhimspeakingtothe
people,it wason theroadleadingfromthemarket andhe wasthentalkingto people
who
could
1°1° notgetto themarket".

829.WitnessB testified
thereweremorethansixgendarmes
in thevehiclewiththe
Accused.
Shestatedthatthe gendarmes
were"insulting
us.Theywerepointing
their
fistsat us and they were sayingthat they were goingto exterminate
us". She
maintained
that theyweregendarmes
and not communal
°I1 policemen)

830. Insteadof goingto Kibuyetown,WitnessB and her familyagainwent into

hiding,in a fieldcloseto theirformerresidence.
Fromtherethewitnessand her
childrenfoundshelterin the houseof the eonseiIler
Nkiryumwami.
(WitnessB’s
husband
waschasedandkilledbeforereaching
thishouse.)
Whenthecouncillor,
outof
fear,askedthemto leavehisplace,
theyagaintookrefuge
in a field.
Thecouncillor’s
wifecontinued
to assistthem.Witness
B testified
thatsheandherchildren
remained
hiding
in thefield"fora longtime",
untiltheendof May.
1°12During
thislastphaseof
hiding,WitnessB allegedly
observed
numerous
meetings
takeplaceat the Accused’s
house:

"Theconsellier’s
wifecontinued
encouraging
me andeacheveningshetookme to a place
wherewe couldseepeople
goingformeetingswithBagilishema
andshetoldme thatthey
weregoingfora meeting
andthatthebourgmestre
wouldtellthemto stopkilling
andthen
sheandherhusband couldhelpthem.We realised
thataftereachmeeting thingsbecame

1008
Ibid.
pp.58-59.
1009
Ibid.
pp.59and87.
I01O
Ibid.
pp.86-87.
I011
Ibid.
p.84.
1012
Ibid.
p.62.

277
 ICTR-95-1A-T

worseandanyonewhowasfoundwaskilled
in a verywicked
manner
anda search
continued
’’1°13 everywhere
inanyplace
where
anyone
couldhide.

831.In cross-examination
thewitness
testified
thatthesemeetings
wouldnormally
commence
at 6 p.m.andendbetween
9 and10 p.m.Shecouldnothearwhatwasbeing
discussed,
buttheconseiller’s
wifegaveherregular 1014In attendance
reports. werethe
twoassistant
bourgmestres
Nsengimana
andSemanza,
theconseiller
Nkiryurnwami
(in
whose
houseshehadsought
shelter),
andother"leaders
of theattackers".
I°15"Itis
possible
thattheywenttoreport
ontheiractivities
or todrawup a newprogramme
but
in anycase,
every
evening
theywentthere.
’’1°16
Thewitness
asserted
thatthemeetings
continued
until
July1994,
wellafter
shehadleftthisparticular
hiding
place.

832.At theendof May1994,notbeingableto bearthesituation

anylonger,
Witness
B decided
to takeherchildren
backtoherformer
residence
because
shethought
thatat
least
there
shecould
arrange
forallofthemtobekilled
without
being
tortured.
1°17She
found
herneighbours
andaskedthemto killherandherchildren
in a humane
manner.
Herneighbours,
according
to thewitness,
tookpityon them,butnonetheless
informed
theAccused.
Thewitness
continued:

"Thebourgmestre
didnotsendpeopleto killme.Instead,hehelda meetingwithhis
assistant
whowasthechiefoftheInterahamwe.
HisnamewasAppolinaire
Nsengimana
...
andhewassayingthattheyshould
notpitythemales.Thepeopleaskedthattheyshould
havecompassion
onmeandthebabyI wascarrying onmy backbuttheysaidthiswasnot
possible
because
PaulKagamewhowasthechiefoftheInkotanyiwasa babywhenheleft
...Theytherefore
tookmyboys,mysons, theytookthemtotheruins ofourhouseand
killed
’’1°1s
them
there.

833.Thisisthefullextent
ofthewitness’s
testimony
onthekilling
ofherthree
sons.
TheProsecution
didnotinvite
thewitness
to supply
further
details,
notevenessential

1013Ibid.
TheFrench
version
ofthelastpart
ofthesecond
sentence
reads:
"Etcette
femme
duconseiller
medisait
<cPeut-~tre
comme
ilsvont
enr6union,
lebourgmestre
valeur
dired’arrSter
detuer
etainsi,
moi
etmonmarinous
pourrons
vous
cacher,
vousaider>>"
(p.63).
1014Ibid.
pp.89-90.
1015Ibid.
p.89.
1016Ibid.
p.91.
1017Ibid.
p.62.
1018Ibid.
pp.63-64.
Thetranslation
hasbeen
improved
withreference
totheFrench
transcri~ts.f

278 /~l/--,
 information
suchas who"they"
were.Theinexactness
of theevidence
is apparent
also
in thefollowing
passage
(again
it is notclearwho"they"
denotes),
whereWitness
explained
howsheherself
wasspared:

"Iimplored
themtokillmetoobuttheyrefused.Bagilishema
aswellasthechief
ofthe
Interahamwe,
toldthepeople
thatiftheydidnotkillmeitwouldbeontheir
headsbecause
theycouldleavemeandI wouldbecomemad.I continued
wanderingabout,
lookingfor
somebody
whocouldhavepityon meandkillmebuttheyrefusedbecause
theyweretold
notto killme because
theythoughtthatI wouldbecome
mad,andthatis howcomeI
’’1019
survived.

834.TheChamber
is unclear
alsoas to thesequence
of events
compressed
intothese
excerpts
fromWitness
B’stestimony.
Onepossible
sequence
is thefollowing:
First,
the
witness’s
neighbours
approached
the Accused.
Thisallegedly
was followed
by a
meeting
between
theAccused,
hisdeputy
andthe"people"
(theneighbours?),
at which
Nsengimana
saidthatno maleTutsishould
be spared.
Thepeople’s
callforcompassion
wasto no availand Witness
B’ssonsweretakenawayandkilled.
Thewitness
then
pleaded
forherowndeath.
TheAccused
atthispointgavethepeople
theoption
of not
killing
her,warning
them,however,
thatshewouldgo madifshewerespared.

835.In cross-examination,
thewitness
testified
thatshehadheardtheAccused
speak
at an open-air
gathering
of a large
number
of people.
Hiswords
wereto theeffect
that
it didnotmatter
if Witness
B werenotkilled
because
shewouldgo madanyway.
He
didnotspecifically
referto hersons.
Themeeting
washeldata placecalled
Rupango
andthespeakers
useda megaphone.
1°2°Thewitness
didnotsaywhotheotherspeakers
wereor whoelsewaspresent.
At thetimeshewaswithherchildren,
standing
on a
road,
looking
forsomeone
tokillher.Itisnotclear
ifherthree
sonswerestill
alive
at
thisstage.
Themeeting
touched
ona number
oftopics:

"Itwasveryclosetowhere
I was.I knew
thatweweretheobjects
ofthatmeeting
soI was
curious
toknowthedecisions
that
were going
tobetakenatthatmeeting
....Peopleasked
a
lotof questions
particularly
regardingHutuwomen
whoweremarriedto Tutsimen.The
answer
wasthattheyshouldkillthehusbandsevenif theyshould
pitythem,thatthey
should
destroy
thehousesandalsokillthechildren
leavingthegirls
andevenifa woman

1019
Ibid.p.64("J’ai
suppli6..."
inFrench
version).
lo20Ibid.
pp.97-98.

279
 werepregnant
andtheydidnotknowthesexoftheunborn
child,
thentheyshould
openup
thebelly
ofthewoman."1
o21

836.It is notobvious
to theChamber
howto reconcile
the versions
presented
in
direct
examination
andin cross-examination
should
be reconciled.
Forexample,
in the
latter
casethewitness
testified
to having
overheard
theproceedings
of a meeting
apparently
at somedistance
away.Intheformer
caseshe"implored
themto killme too
buttheyrefused".

Findings

837.TheissuefortheChamber
is whether
theProsecution
hasledsufficient
evidence
to demonstrate
thattheAccused
ordered,
incited,
participated
in,or is in someother
wayresponsible
asprincipal
orsuperior
forthealleged
killings
ofthesonsofWitness
B.

838.TheChamber
observes
thatin relation
to thismosthorrific
of blowsallegedly
suffered
by Witness
B, theProsecution
ledwhatamounts
tosevenlinesof evidence,
as
reproduced
above.

839.Witness
B’saccount
of themurder
of hersonsis scantanduncorroborated.
The
Chamber
cannot
findfromtheevidence
thattheAccused
himself
participated
in or was
present
during
thekilling
ofthechildren.
In Witness
B’sopinion,
as surmised
fromher
testimony,
theAccused
wasat theveryleast
responsible
forordering
thekilling
of her
sons.But thewitness
didnotindicate
howshecameto knowof thealledged
role
played,
according
to her,by theAccused
in thecrime.
In cross-examination
thewitness
testified
thatsheoverheard
a public
gathering
at whichtheAccused
addressed
the
question
whether
sheshould
be killed.
Shedidnotstate
clearly
thatthiswasalsothe
meeting
atwhich
thefateof hersonswasdetermined.
Shedidnotassert
thatsheherself
heard
theAccused
issue
anorder
thathersonsweretobe killed.
Ifthewitness
wasnot

1021Ibid.
pp.97-98.
Thetranslation
hasbeenimproved
withreference
totheFrench
tran~criPtts.

280 /4Lo
 ; ~ ~ ICTR-95-1A-T

, I
.......................................................................................................

present
whentheAccused
ordered
thekilling
of hersons,hercontention
is basedat
mostonhearsay.
Given
moreover
thatit isnotclear
thattheAccused
waspresent
at the
siteof thekillings
ataround
thetimewhentheyoccurred,
orthata subordinate
of the
Accused
committed
theoffences,
theliability
oftheAccused
hasnotbeenproved.

840.TheChamber
wouldalsopointto another
sourceof doubt.Witness
B claimed
thattheAccused
publicly
called
forthedeath
of allTutsi.
"Hewassaying
thatallhutns
should
allstandup,takeup armsandseekouttheenemy.
He alsosaidthattheenemy
wasnotfarand theenemywasin facttheirneighbour.
’’1°z2
Sheclaimed
thatthe
Accused
convoked
nightly
sessions
at hishousewhoseeffect
wasto fortify
thewillof
theattackers,
because
anyTutsifoundaftersuchsessions
werecruelly
killed.
The
sessions
ran,apparently
without
interruption,
frommid-April
to July1994.
Inaddition,
"there
wereoftenmeetings
between
theburgomaster
andtheleader
of theInterahamwe
...theywould
I°23 spendthedaylooking
forpeople
whohadbeenin hiding".

841.Thesestatements
mustbe assessed
in lightof thefactthatno otherwitness
testified
toseeing
or hearing
aboutnightly
sessions
at thehouseof theAccused
from
mid-April
to July1994.Thisis remarkable
especially
since,
according
to Witness
B,
suchmeetingsinvolved"allleaders",
includingthe Accusedand assistant
bourgmestres.
Thehouseof theAccused,
wherethedailyevening
meetings
allegedly
tookplace,
wassituated
in an areafrequented
by manyof thewitnesses
in thiscase.
Accordingly,
theChamber
wouldexpect
otherwitnesses
to testify
aboutsuchmeetings.
Moreover,
Witness
B’stestimony
thatthemeetings
continued
fortwomonths
aftershe
hadleftherhiding
placein theneighbourhood
of theAccused
raises
further
doubts
about
herreliability.
Moregenerally,
theChamber
holds
(IV.5)
thattheevidence
inthis
casedoesnotsupport
theconclusion
thattheAccused
publicly
incited
thekilling
ofall
Tutsi.

Conclusion

1022
Ibid.
p.82.
1023
Ibid.
p.66.

281
 ICTR-95-1A-T

842.In conclusion,
theChamber
is notconvinced
thattheAccused
participated
in the
killing
of thechildren
of Witness
B. Theextent
andquality
oftheevidence
ledcannot
support
sucha finding.
The Prosecutor’s
charges
of genocide
and crimesagainst
humanity
inrelation
tothisevent
therefore
mustfail.

4.7Killing
of Tutsiconcealed
at theHouseof Habayo

843.The Prosecution
bringsthiseventunderparagraphs
4.12and 4.13of the
Indictment,
cited
above
(V.4.1).

Submissions
of theParties

844.According
to the Prosecution,
on themorning
of 16 June1994,an attackwas
launched
on the Muslim
quarter
of Mabanza
commune.
Theattackers
discovered
and
arrested
several
Tutsicivilians,
including
somehiding
in thehouseof Selemani
Habayo.
Soonthereafter
theTutsifromHabayo’s
housewerekilled
in thepresence
of
theAccused.
TheProsecution
contends
thattheexactnumberandthenamesof the
people
killed
is notmaterial
because
theAccused
admitted
thattheTutsiwhowere
foundin theMuslim
quarter
werekilled.
TheProsecution
charges
theAccused
with
genocide
1°24 andcomplicity
ingenocide
inrelation
tothisevent.

845.According
to the Defence,
somepeoplein Mabanza
commune
believed
Habayo
to be an RPFaccomplice.
Theysearched
hishouseandfoundTutsihiding
there.
The
Tutsiwerekilled
andHabayo
wastakento thebureau
communal.
TheAccused
neither
playeda partin the searches,
nor was he present
whenthe Tutsirefugees
were
discovered
andkilled.
TheDefence
contends
thatWitnesses
H andO generally
arenot
credible
andthattheirtestimonies
should
be discounted.
TheDefence
argues
thatthe
testimonies
of witnesses
H andO areincompatible
in relation
bothto thenumber
of
Tutsi
1°25killed
andtothenames
ofthevictims
andtheir
assailants.

1024
Prosecution’s
written
Closing
Remarks
pp.11-13
paras.
77-87.
1025
Defence
Closing
Brief
pp.36-38
paras.
267-289.

282
 Witness
H

846.Witness
H testified
thaton 16 June1994,theMuslim
quarter
wasattacked
by a
groupledby theconseiller
of Gacaca
secteur,
Nkiriyumwami.
Theattack
included
the
brigadier
of thecommune,
thesecrgtaire
Hakizimana,
and others)
°26The attackers
encircled
thequarter
andbegansearching
forTutsi.
Fromthewitness’s
ownhousethe
attackers
tookawayhiswife,a Tutsi,
although
shemanaged
to escape
duringthe
commotion
ensuing
fromthesubsequent
searches.
Witness
H followed
theattackers,
who wenton to searchthehouseof Selemani
Habayo.
TheretheyfoundfourTutsi
hiding
inelaborately
concealed
holes.
People
whogathered
to watch
thisevent
saidthat
hiding
Tutsi
inthismanner
wasa military
tactic.

847.The witness
namedthe fourTutsifoundat Habayo’s
as Matabaro,
Ntaganira,
Mazimpaka,
and a younggirl,Uza Mukunda.
"Inthiscrowd,
therewerealsoNhawita
Kamabada
as wellas thepeople
whowerefoundin hishouse.
’’1°27
Theattackers
also
searched
the houseof one HamadaNtawuhiganumugabo
wheretheyfoundhis two
Tutsibrothers-in-law.
Thewitness
saidthatallthosefoundhiding
weretakenaway
together
withHamada
andHabayo.
TheTutsiwerekilled
on thesameday,though
the
witness
didnotclaim
tohaveseenthekillings
takeplace.
Inhiswritten
statement
of14
July1999,Witness
H declared
thatthefourTutsiconcealed
by Habayo
werekilled
nearthehouseofMatabaro’s
father
in Kamuvunyi
1°28
secteur.

Witness
0

848. Witness
O testified
to an eventshewitnessed
at theendof June1994,
fromher
hiding
place
in Gacaca
cellule,
Kamuvunyi
secteur,
near"Kinihira"
- "a place
...where

1026Transcripts
of19 November
1999p. 54.
1027
Ibid.
p.55.
I028Defence
Exhibit
No.10.

283
 ICTR-95-1A-T

.......................................................................................................

theynormally
killedpeople".
1°29Thewitness
saidthatshesawfiveTutsianda Hutu

beingledto Kinihira
fromtheMuslimquarterby a largenumberof people,including
the Accused,who was carryinga gun, his assistants
Semanzaand Nsengimana,
and
conseillerNkiriyumwami.
She named the Tutsi detaineesas Eugene,Matabaro,
Ntagenira,
Mukasine,
andRamazani,
andthe Hutuas Habayo.The witnesstestified
to
seeingsomeof thesepeoplebeingkilled.
ShesaidthatNsengimana
hadcarried
outone
of themurders,
butshedidnotfurther
implicate
theAccused.
Shetestified
thatthe
militiaman
NtarekilledMatabaro.
Askedwhetherthe Accusedhad punishedanybody

fortakingpartin any attackin the April-June

period,the witnessanswered:
’"He
punished
’’1°3° nobody.Howcouldhe do thatwhenhe himselfwaswiththem?

849.WitnessO, whosetestimony
mustbe treatedwith caution(V.2.6),
gavea more
detailed
accountof thiseventin herstatement
to investigators
dated23-24February
1998.1°31
Herethedetainee
Mukasine
is described
variously
as "daughter
of Ntaganira"
and"Mukasine’s
daughter".
The fiveTutsiandHabayoweretakento a septictank"at
Kinihira",
intowhichtheTutsiwerethrownas theywerebeingkilled.
Thebourgmestre
was present,
together
withsomearmedgendarmes;
thesemen did notkillany of the
victims.
Nsengimana
struck
Eugene
witha largestick.Ntareattacked
hisvictims
witha
clubstuddedwithnails.Thewitnesssaw the militiaman
SananecuttingMatabaro
to
pieces.Thegirlwas killedby oneMusabyimana,
whouseda machete.

850.In herearlier
statement
of 17 October
1995,Witness
O didnotmention
theTutsi
hidingat Habayo’s
house,or theirsubsequent
killing.
On beingaskedwhether
sheever
sawtheAccused,
1°32 shedeclared
thatshesawhimoncein Aprilwiththreeassistants.

WitnessB

lO29Transcripts
of24November
1999p.51.Evidence
inthiscase
suggests
that"Kinihira"
wasthename
notofa particular
placeinMabanza
commune
butrather
ofplaceswhereTutsiwerekilled
andburied.
Seeibid.pp.54-55
andalsotranscripts
of15November
1999p.112(WitnessAB);28October
1999pp.
108-109
(AUagouma);
25January
2000p.60(Witness
K);and9 June2000pp.82-83(theAccused).
1030
Transcripts
of24November
1999p.59.
t031Prosecution
Exhibit
No.62.
I032Defence
Exhibit
No.11.

284
 ICTR-95-1A-T

.......................................................................................................

851.Theextent
of Witness
B’stestimony
on thismatter
is thatsheknewa Muslim
man namedHabayowho,in June1994,wasfoundto be hidingfivemaleTutsi.The
witness
saidthatHabayo
waskilled
together
withthepeople
hehadbeenhiding.
1°33In
theprevious
section
(V.4.6),
theChamber
expressed
itsconcern
about
thereliability
Witness
B’stestimony.
In herwritten
statement
of 23 June1999,thewitness
declared
thatshe was present
whencommune
staff,sentby the Accused,
cameto Habayo’s
house
wheretheydiscovered
fourTutsiboysandtheirsister.
Thebrothers
weretaken
to thebureau
communal
wheretheywerekilled;
thegirlwasspared
on theAccused’s
instructions
butlater
waskilled
byanInterahamwe.
1034

The Accused

852.The Accusedtestified
that Habayowas accusedby the people("parla
population")
of beingan accomplice
of theRPF,andthatthepeople
searched
hishouse
andfoundTutsi
hiding
thereaswellas a certain
letter.
1°35TheAccused
saidthatthe
Tutsiwerekilled
and,onceagain,
"thepeople"
tookHabayo
to thebureau
communal.
TheAccused
"tried
to convince
thepeople
thatHabayo
should
remain
at home...but
they[insisted]
I°36 thattheykill
himinfront
ofme".

853.In cross-examination,
theAccused
wasaskedif he hadinvestigated
thekillings
of theTutsitaken
fromHabayo’s
house
in order
to findtheperpetrators
ofthecrimes.
TheAccused
answered
thatan investigation
hadindeed
beenconducted.
He described
itsoutcome
in these
words:

"TheMoslems
triedto helpas muchas possible
thepeoplearound
thecommune,but
unfortunately
theykilled
somebody
intheRubengera
sector,
sosubsequently,
thefamily
of
thisperson
...tried
torevenge[thekilling]
bylookingforaccomplices
intheMoslem
quarters.
ThatiswhentheRubengera
peoplemounted
anassault
onHabayo’s
1°37
house".

854. TheAccused’s
answer
is in theformof an explanation
of whycertain
aggrieved

1033Transcripts
of24January2000p.70.
1034Prosecution
Exhibit
No.63.
1035Transcripts
of7 June2000p.83.
1036Ibid.

285
 Hutubrokeintothehouses
of Hutuliving
in theMuslim
quarter.
TheChamber
notes
thattheAccused
didnotanswer
thesecond
partof theProsecution’s
question,
namely
whether
he sought
those
responsible
forthemurder
of theTutsi.

Findings

855.The Chamber
findsthaton or around16 June1994,a numberof Tutsiwere
takenfromHabayo’s
houseand otherhousesin the Muslimquarterof Mabanza
commune
bya groupofassailants.
Soonthereafter
someof these
Tutsiwerekilled.

856.The evidence
of thetwo mainwitnesses
diverges
in otherrespects.
To some
extent
thisis understandable
giventhatWitness
H wasan eye-witness
to theattack
on
theMuslim
quarter
butnotto thekilling
of theTutsi,
whereas
Witness
O claimed
to
haveseenthekilling
oftheTutsi
butnottheattack.

857.However,
whereas
Witness
O placed
theAccused
amongthekillers
at Kinihira,
in WitnessH’s accountthe Accusedwas not amongthemat the Muslimquarter.
Witness
H declared
in hisstatement
of 14 July1999thatHabayo
was takento the
Accused.
Thisis in conformity
withtheAccused’s
contention
thatHabayo
wasbrought
to himat thebureau
communal.

858.Moreover,
Witness
H namedthe brigadier
of the commune
and Hakizimana
as
beingamongthe attackers
who cameto the Muslimquarters.
WitnessO did not
mention
either
name,butinstead
identified
Semanza
as being
present
atthesiteofthe
killings.
Shedidnot testify
to seeingHamada
or Nhawita
(thethirdMuslim
Hutu
mentioned
by Witness
H) beingbrought
to Kinihira.
Shesaw onlyHabayoandfive
Tutsi.
Yet according
to Witness
H, notonlywereHabayo,
Hamada
and Nhawita
all
taken
awaybytheassailants
butso wereat least
eight
Tutsi
(four
fromHabayo’s
house,
Hamada’s
twobrothers-in-law,
andat leasttwo persons
foundhidingat Nhawita’s
house).

1037Transcripts
of9 June2000pp.80-81.

286
859.The aboveinconsistencies,
coupledwiththe Chamber’s
concernaboutthe
reliability
of thetestimony
of Witness
O (V.2.6),
render
doubtful
Witness
O’sclaim
thatshewaspresent
at "Kinihira"
whentheTutsifromHabayo’s
housewerekilled,
and,moreso herallegation
thattheAccused
wasalsopresent
at thescene.

860.TheChamber
takesthisopportunity
to notethatWitness
O, whilein hiding
or
otherwise
concealed,
surrepticiously
wasableto observe
or overhear
a significant
numberof key eventsimplicating
the Accused(amongthemthe meetingwith
Kayishema,
thekilling
of Karungu,
thekilling
of Muganga,
andthepreparations
forthe
expedition
to Bisesero).
Thisis alsotrueof Prosecution
Witness
AB.TheChamber
is
naturally
heedful
of witnesses
who,whilepurportedly
in hiding
andin fearof their
lives,
nonetheless
areabletomovearound
fromonecrimescene
to thenext,gathering
intelligence
alongtheway.Thisis notphysically
impossible,
of course,
butthe
Prosecution
whenleading
suchan opportune
witness
mustbe especially
careful
to rub
outgreyareas
ofhertestimony.
Notonlywasthisnotdonein thiscase(theProsecution
hurried
Witness
O through
herevidence
abouttheattack
on Habayo,
insisting
on "very
brief"
or "veryquick"
answers1°38),
butanother
Prosecution
witness,
Witness
H, gave
evidence
thatwasnotconsistent
withthatofWitness
O.

Conclusion

861.In lightof theabove,

theProsecution’s
charge
of genocide
pursuant
to Article
6(1)mustfailbecause
theChamber
cannot
findthattheAccused
waspresent
whenthe
Tutsidetained
during
theattack
werekilled.
Thesameconclusion
is inevitable
for
liability
underArticle
6(3).Thepossible
subordinates
of theAccused
mentioned
Witness
O as participating
in thekilling
of theTutsi
cannot
be considered
because
her
testimony
onthispoint
cannot
beconsidered
reliable.
Asto theauthorities
identified
by
Witnesses
H, suchas conseiller
Nkiriyumwami
or thecommunal
secretary,
theyhave
notbeenshown,
in Witness
H’stestimony,
to havecommitted
anycrime.
Theirarrest

1038Transcripts
of 24 November
1999pp.52-53.

287
 of Tutsi
on suspicion
thattheywereaccomplices
oftheRPFis notinitself
actionable
in
this
context.

862.Theremaining
question
is whether
theAccused,
as bourgmestre,
tooksufficient
measures
to identify
or punish
thepersons
whokilled
theTutsidetained
during
the
attack
on theMuslim
quarter.
It is reasonable
to assume
thatthekillers
wouldhave
beenamongthe "Rubengera
people"who (in the accountof WitnessH and the
Accused
himself)
delivered
Habayoto the Accused
at the bureau
communal.
At the
veryleast,
thekillers
wouldhavebeenknownto them.Butif theAccused
learnt
or
madeaneffort
to learn
theidentity
ofthekillers,
orifhepunished
ortookmeasures
to
punish
theperpetrators,
no evidence
aboutthiswasbrought
before
theChamber.
The
Accused’s
one-sided
answer
to thequestion
whether
he investigated
thekillings
was
notfollowed
up bytheProsecution.

4.8 TheDetention
and Fateof Habayo

863.The Prosecution
bringsthiseventunderparagraphs
4.12and 4.13of the
Indictment.
These
paragraphs
werereproduced
earlier
in thissection
(V.4.1).

Submissions
of theParties

864.As discussed
above(seeV.4.7),
theProsecution
contends
thatin themorning
16 June1994,an attack
waslaunched
on theMuslim
quarter
of Mabanza
commune.
At
thehouseof Habayo,
several
Tutsiwerefoundhiding
andwerekilled
soonthereafter.
Habayo,
a Hum,wasdetained
and drivento Kibuyein the communal
vehicle
by the
communaldriver,Nshimyimana,
accompanied
by the Accused,gendarmes
and a
communalpoliceman.
The Prosecution
contendsthatthe Accusedreceivedno
guarantees
thatHabayo
wouldbe safein Kibuye.
Habayo
hasnotbeenseensince.
The
Accused
thusfailed
to protect
a Hutufoundto be hiding
Tutsi.
Farfromprotecting
Habayo,
theAccused
senthimto certain
death.
TheProsecution
argues
thatbecause
Habayo
wasa prominent
Muslim,
theAccused
couldnotallowforhimto be killed
in

288
 ICTR-95-1A-T

.......................................................................................................

Mab~a.
Doingso wouldhavejeopardized
thecontinuation
of thegenocide
within
the
commune.1039

865.TheDefence
emphasises
thatonlyWitness
H provided
details
on the fateof
Habayo.
In relation
to thewitness’s
assertions
thatthepoliceman
escorting
Habayo
to
Kibuye
waswearing
a uniform,
thatthedriver
wasdriving
thecommunal
vehicle,
and
thatthiseventtookplace
during
office
hours,
theDefence
refers
to certain
exhibits
purportedly
establishing
thaton thedatein question
thetwonamedcommunal
officers
had beensuspended
fromduty,and thuscouldnot be in uniform
or driving
the
communal
vehicle.
TheDefence
alsocontends
thattheAccused’s
treatment
of Habayo
wasentirely
proper.
Habayo
wasaccused
by thepeople
of beingan RPF accomplice.
Tutsiwerefoundhiding
in hishouse.
Theywerekilled
andtheassailants
brought
Habayoto the bureaucommunal,
indicating
thattheywantedto killhimtoo.In
response
to thisthreat,
theAccused
sentHabayo
to thecommander
of thegendarmerie
in Kibuye
forinvestigation
of theallegations
of complicity.
Thisinvestigation
was
continuing
whentheAccused
leftforZa’ire.
TheDefence
addsthattheProsecution
failed
to adduce
anyevidence
to establish
thecircumstances
underwhichHabayo’s
alleged
murder
occurred,
suchas thelocation
andtimeof hisdeath,
andtheperson
or
persons
1°4° by whomallegedly
hewaskilled.

Deliberations

Witness
H

866.In histestimony
beforethe Chamber,
Witness
H referred
to threepersons,
Selemani
Habayo,
Hamada
and Nhawita
as havingbeendetained
on 16 June1994,the
dayof theattackon the Muslimquarter)
°41BothHamadaand Habayowere"asked"
(thewitness
didnotsayby whom)to paya ransom
fortheirrelease.
Thepricetofree
Habayo
wassetat thirty
thousand
francs.
Witness
H saidhe paidhalfthatamount,
which"they"
took.Conseiller
Nkiriyumwani
thensaidthathe wouldhaveto consult

1039Prosecution’s
written
Closing
Remarks
pp.11-13paras.
77-87.
1040Defence
Closing
Brief
pp.36-38paras.
267-289.

289
867.However,
Habayo
wasnotfreed.
Thewitness
wasgivento understand
(again,
it
is notclearby whom)thatHabayo
had to be sentto Kibuye
because
he hadhidden
Tutsiin a "military
manner".
Thewitness
saidhe thenwentto thebureau
communal,
sawtheAccused,
andrequested
himto collect
thereceipt
forthepart-payment
of the
ransom,
whichwasin thepossession
of theconseiller.
Butthewitness
wasneither
given
hisreceipt,
norwashe returned
hismoney.
Thewitness
added:
"Ievendidn’t
see
Habayobecausehe was sentto Kibuye... aboarda vehicle... the communal
’’1043
vehicle.

868.Lateron,during
examination-in-chief,
thewitness
claimed
to havebeenpresent
whenHabayo
wasbeingtakento Kibuye.
On 17 June1994,according
to thewitness,
he saw the communalvehicledrivenby Nshimyimana,
containing
Habayo,the
Accused,gendarmes,
and the policeman
Munyandamutsa.
The Chambernotesthe
different
dating
ofthisevent
given
byWitness
H inhisstatement
toinvestigators
of 14
July1999.1044Therehe saidthattheAccused
tookHabayo
to Kibuye
"oneMonday’’.
TheMonday
following
theattack
on Habayo’s
housewasnot17 Junebut20 June.The
latter
dateiscloser
tothatgiven
bytheAccused,
namely
21 June.
In anycase,
there
is
uncertainty
astothedate.

869.In cross-examination
°45 the witness
addedthatthepoliceman
wasin uniform]
Confronted
by theDefence
withletters
purporting
to showthatthepoliceman
andthe
driver
hadbeensuspended
fromdutyduring
therelevant
period,
Witness
H saidthatin
timeof warsuspended
workers
couldreturn
to work.

1041
Transcriptsof19 November
1999pp.55-56.
1042Ibid.
pp.56-57.
1043
Ibid.p.57.
1044
Defence
Exhibit
No.10.

290
 870.TheAccused
testified
thaton 20 June1994,Habayo
wasbrought
to thebureau
communal.
TheAccused
saidhe triedto convince
"thepeople"
thatHabayo
should
be
returned
tohishome,
buthiscaptors
insisted
thattheywould
killhimthere
andthen.
That,
according
to theAccused,
waswhyhe hadHabayo
transferred
to Kibuye
thenext
day,so thattheoffences
he allegedly
committed
(complicity
withRPF)would
investigated
by thecompetent
authorities.
In thisconnection,
theDefence
referred
to
thecommune’s
register
of outgoing
mailwhichindicates
thata letter
dated21 June
1994was sentby the Accusedto the commander
of the gendarmerie
in Kibuye,
regarding
Habayo’s
transfer.I°46

871.TheAccused
stated
thatit washispractice
to address
matters
relating
to thewar
against
theRPF to thecommander
of the gendarmerie
in Kibuye
town.He indicated
thathe haddealt
withthisofficer
before,
andknewhimnottobecorrupt.

872.TheAccused
further
testified
thatthepoliceman
undertaking
thetransfer
of a
detainee
in sucha situation
wouldreturn
withthecommunal
register
whichwould
show(bywayoftherecipient
authority’s
mark)
thatthedetainee
hadbeentransferred.
However,
Kibuye
authorities
did notalways
informtheAccused
of theprogress
or
outcome
of matters
referred
to themfromMabanza
commune,
especially
notduring
the
period
inquestion.
TheAccused
testified
thatatthetimewhenhefledtoZa’fre
inJuly
1994he believed
thatHabayo
wasstill
under
investigation.

Findin~

873.TheChamber
findsit established
thattheAccused
sentHabayo
to Kibuye
to be
investigated
in connection
withallegations
by unspecified
persons
thathe wasan RPF
accomplice.
TheAccused
claimed
thathe transferred
Habayo
to thecommander
of the

I045
Testimony of 22 November 1999.

291
~ ~’~**~ ICTR-95-1A-T

gendarmerie
in compliance
withstandard
procedure
andfor hisownprotection.
The
Prosecution
hasnotledevidence
thatseriously
calls
thisexplanation
intoquestion.
The
arguments
of theProsecution
thatthecommune
register
mayhavebeen"doctored"
has
notbeensupported
by anyevidence.

874.Thereis no evidence
before
theChamber
as to whatbecame
of Habayo
afterhis
transfer
to Kibuye
town.
FortheAccused
tobe found
liable
forthekilling
ofHabayo,
it
mustbe provedbeyondreasonable
doubtthatHabayowaskilledby thosewhotook
himintocustody
in Kibuye.
However,
thereis no evidence
before
theChamber
that
Habayo
wasthuskilled.

875.Therebeingno evidence
of death,
letalonemurder,
it is unnecessary
forthe
Chamber
to consider
whether
theAccused
knew,whenhe decided
thetransfer,
of the
riskthatHabayowouldbe killed.
The Prosecution
wouldhaveto provethatthe
Accused
proceeded
withthe transfer
in reckless
disregard
of Habayo’s
welfare,
knowing
thatin theprevailing
circumstances
a person
accused
of concealing
Tutsi
would
mostprobably
be killed
by members
of thegendarmerie.
In theabsence
of actus
reus,
thismenstea,evenifdemonstrable,
doesnotinitself
amount
to a crime.

876.Consequently,
the Prosecution’s
chargesof CrimeAgainstHumanity
and
Violation
of CommonArticle
3 andof Additional
Protocol
II,in relation
to the
Accused’s
alleged
participation
inthekilling
ofHabayo,
cannot
be sustained.

1046
Defence
Exhibit
No.18at0351.
TheFrench
reads:
"Envoyer
Habayo
pour
expliquer
lecontenu
dela
lettre
qu’on
luiaaddress6
etselon
laquelle
lestutsis
seront
tu6s."

292
 ICTR-95-1A-T

5. Roadblocksin MabanzaCommune

5.1Introduction

877.It is alleged
by theProsecution
thatroadblocks
operated
in Mabanza
commune
throughout
therelevant
period
in 1994.Thelegalandfactual
issues
raised
by this
allegation
aremosteffectively
addressed
together,
undera separate
heading,
rather
thaninthechronological
sequence
of events
followed
thusfar.

TheIndictment

878.Onlyoneparagraph
of theIndictment
explicitly
refers
to theexistence
of
roadblocks
in Mabanza
commune.
Paragraph
4.14reads:

"Inparticular,Ignace
Bagilishema
acting
in concertwithothers includingClement
Kayishema, SemanzaCelestin, NsengimanaApollinaire, NzananaEmileand
Munyampundu, between9 Apriland 30 June1994permitted and encouraged
Interahamwe
militiamen
to setup roadblocks
at strategiclocationsin andaround
Mabanza
commune.Theprimary
purpose
ofthesaidroadblockswastoscreen individuals
in order
toidentifyandsingleoutTutsis.
Between9 April and30 June1994Ignace
Bagilishema
ordered
thedetention
ofseveralTutsisat thevariousroadblockswithin
Mabanza.
Suchdetainees
werehandedovertoIgnaceBagilishemaandweresubsequently
killedby thecommunalpolice,
theGendarmerieNationale, Interahamweandarmed
civilians
underhisauthority
andcontrol."

Submissions
of theParties

879.TheProsecution
submits
thatroadblocks
in Mabanza
commune
wereset up to
screen
outandkillTutsi;
thattheAccused
knewof theexistence
of manyof these
roadblocks;
andthathe setthemup or acquiesced
to their
setting
up.It rejects
the
Defence’s
contention
thatthere
wasa difference
between
"official"
and"unofficial"
roadblocks,
alleging
thatallroadblocks
wereofficially
sanctioned.
It charges
the
Accused
withgenocide,
complicity
in genocide
and crimesagainst
humanity
in
relation
to theestablishment
andoperation
of theroadblocks,
andin particular
in
relation
tothekillings
oftwopersons,
Bigirimana
andJudith.I°47

1047
See,inparticular,
Prosecution’s
written
Closing
Remarks
pp.19-21
paras.
114-132,
pp.71-78
paras.
382-410,
p.87para.
52,pp.91-92
paras.
77-85,
p.93para.
93,p.97paras.
117-120,
pp.102-103
880. TheProsecution,
in itsoralclosing
arguments,
summed
up itsposition
in the
following
way:

"Wehavenotledanyevidence...thatindicates
thattheAccusedhimself
wasstanding
at
anyoftheseroadblocks
manningthempersonally.
Wesaythathisresponsibility
liesin
thefactthatinfurtherance
ofa planandintheexecution
ofthis plan,
orinaidingand
abetting
intheexecution
ofthis plan,
ortheplanning
thereof,
he,atsomestage,
[in]April
1994,agreed to setup theseroadblocks.In doingso,he gotcivilianswhotook
instructions
fromhimtomantheroadblock ....theevidenceindicates
thatitisthese
civilians
thatareresponsible
formany oftheatrocities
thattookplace
attheroadblock
acting
onhisinstructions.
Thatposes
twotypes
ofresponsibility
...6(1)and6(3).
’’1048

881.The Defencedoesnot disputethe claimthatroadblocks

wereset up in
Mabanzacommune
duringthe eventsin question.
The Accused
admitted
thathe
ordered
one"official"
roadblock,
knownasTrafipro,
to be erected
in April
1994.The
Accused
deniedthathe encouraged
or was awareof crimescommitted
by those
staffing
theTrafipro
roadblock.
1049

882.The Accusedalso deniedhavingorderedthe settingup of any other

roadblocks.
Whenever
he received
information
abouttheexistence
of "unofficial"
roadblocks
erected
hereandthereby "recalcitrants"
be tookprompt
action
against
them.
1°5°TheAccused
testified
to a letter
he wrote,
dated
12July1994,
andrecorded
in thecommunal
register
as reference
0376,1°51
to twopersons
namedRukara
and
Ngango,
asking
themto remove
roadblocks
erected
unofficially.

paras.138-142,
p. 105paras.163-164,
p. 110paras.213-214,
p. 112paras.232-233,pp.113-114
paras.
246and252-253,p. 115paras.
257-258,
p.116paras.268-269,andp. 117para.275;Rebuttal
~0aras.
41-49. of 18October
48Transcripts 2000p.99.
1049See,in particular,
Defence
Closing
Briefpp.8-9paras.
27-29,
pp.23-24para.158,pp.47-56

~0aras.
375-462,
and
of7p.
50Transcripts 1202000
Juneparas.
66-74;
pp. Rejoinder
132-133. paras.
194-206.
lO51
Defence
ExhibitNo.18.

294
 5.2 GeneralObservations
on Roadblocks

5.2.1Roadblocks
and the CivilDefenceProgram

883. In early 1994, the Rwandan Governmentinstituteda system of "civil

defence".
As partof thissystem,
subordinate
authorities
wereinstructed
to setup
roadblocks
in an effortto prevent
infiltration
by members
of theRwandan
Patriotic
Front.
1°52Thismuchis evident,
in particular,
fromthePrimeMinister’s
circular
of 27
April1994,entitled
"Instructions
to restoresecurity
in thecountry",
whichwas
addressed
to allPrefects.
Paragraphs
3 and4 of thatletter
read:

"3.Theenemywhichattacked Rwandais known:it is theRPF-INKONTANYI.Youare

therefore
requested
toexplaintothecitizens
thattheyhavetoavoideverything
thatcould
leadto discordbetween
them,on thepretext
of ethnicity,
regions,
religions,
political
parties,hatredetc.,
becausesuchproblems
withinthepopulationprovides
opportunities
fortheenemy. Nevertheless,
thepopulation
mustremainvigilant
in order
todiscoverthe
enemyandhisaccomplices
andtodeliverhimtotheauthorities,andtobeassistedbythe
nationalarmywhereverpossible. Thecommunalauthorities,seeteursandcellules,
assisted
bythenationalarmywherepossible,
areaskedtodetermine
siteswhere
officially
sanctionedroadblocks
maybe erectedandto decidehownightpatrolscancontinue to
effectively
operate
sothattheenemydoesnotfindopportunities
forinfiltration.
Atthese
roadblocks
andduringnight
patrolscitizens
mustavoidtakinganyaction
againstinnocent
persons.
4.Actsofaggression
against
innocent
persons,pillage
andother criminal
actsmustcease
immediately.
Thisiswhythenationalarmy,theprosecutor
andother judicial
authorities
mustpunishseverelyanyone
whowillbe foundguilty of suchacts.Everytimeit is
necessary,
youmayreceiveassistance
fromthenationalarmyandthejudicialauthorities
inordertosuppress
problems,
to fight
against
crime andpillageandto teach
citizens
to
maintain
thegoodtradition
ofreciprocal
supportandself-defence."
1053

884. On 30 April1994,PrefectKayishema
transmitted
the PrimeMinister’s
letter

1052Roadblocks
werealsosetupwhentheRwandan
Patriotic
Armyinvaded
Rwanda
fromUganda,
in
October
1990.
SeetheAccused’s
testimony,
transcripts
of7 June2000
p.142.
I053
Prosecution
Exhibit
No.77b.

295
~- L."
to thebourgmestres
of hisprefecture,
including
theAccused.
ThePrefect’s
covering
letterstated,interalia:"You are requestedto communicate
them [the Prime
Minister’s
instructions]
to thepopulation
in a meeting
as it hasbeensuggested
during
the5
’’1°
meeting
4 we heldtogether
on 25/04/94.

885.In a secondletterdated30 April1994,entitled

"Protection
of the civilian
population",
alsoaddressed
to allbourgmestres,
thePrefect
wrote:

"Inviewof theprevailing
security
situation
in thecountry,
theRwandan
Government
has
decided
tosetupa system
ofcivil
defence
forthepopulation.
Thiscivil
defencewillbe carried
outbythepopulation
itself
inthecellules
andinthe
secteurs
andwillassist,
inparticular,
to:
- organise
andcontrol
night
patrols
androadblocks;
- beparticularly
vigilant
against
Inkotanyi
infiltration
through
regular
control
ofsecret
passageways.
Consequently,
asa matter
ofurgency,
youareasked
torecruit
persons
tobetrained.
This
recruitment
shall
aboveallrelate
topersons:
- in goodphysical
andmoral
condition
- of goodcharacter
- witha certain
credibility
within
thepopulation.
Regarding training,
it shallbe ensured
by reservists
selected
fromthecommune.
It is
expected thatfollowing
recruitment
there
willbe meetings
toexplain
theoperation
of the
¯ .1 ¯ ~ , .1055
ClVll terence system.

886.Thesedocuments
fromthe endof April1994shouldnot be takento implythat
roadblocks
did not existin Mabanzacommunepriorto thisdate.Rather,evidence
suggests
thatroadblocks
hadbeenin operation
in Mabanza
communeat varioustimes
sinceOctober1990,andthatfollowing
the eventsof 6 April1994roadblocks
were
againestablishedJ
°56The Accusedtestified
that"following
the directives
of the
primeminister..,
generally
speaking
theseroadblocks
weremadeofficial".
1057

1054
Ibid.
1055
Prosecution
Exhibit
No.77a.
1056
Seealso
footnote
1052.
lo57
Transcripts
of9 June
2000p.41.

296
 I/-4
S6
5.2.2Roadblocks
Sightedin MabanzaCommune

887.Evidence
has beenadduced
thata numberof roadblocks
existed
in Mabanza
commune
during
theevents
in question.
Prosecution
Witnesses
A, A.A,AB,B, Y and
Z, as wellas DefenceWitnessesKA, KC, RA, RJ, ZD and the Accusedgave
testimony
regarding
theseroadblocks.

888.Someroadblocks
werereferred
to by multiple
witnesses.
Witnesses
AA,AB,
KA,R_A,Y, Z, andtheAccused
testified
in relation
to the"Trafipro"
roadblock,
whichwas closeto the bureaucommunal.
Witnesses
AA, B, RA, Z and ZD gave
evidence
concerning
a roadblock
at Gitikinini,
nearthe Gitikinini
market.
The
Accused
explained
thathe triedto setup a roadblock
at Muregeya,
andWitnesses
Z
andZD testified
toknowing
of a roadblock
atthissite.Witnesses
ABandZ referred
to a roadblock
at theRubengeri
Clinic.
Witness
RJ sawa roadblock
at Gashyushya,
andwitness
z saidthathehadheard
of a roadblock
atthatsite.

889.Otherroadblockswas
referred
to butwithout
apparent
overlap
in thewitnesses’
testimonies.
Witness
A mentioned
a roadblock
at Gacaca,
closeto thehouseof the
Accused;
at Kibirizi;
in frontof thehouseof Rwagama;
at Kunyenyeri
in Gihara;
at
Mukabuga;
at Mushubati;
andat Kiuri,
at theKiuririver.
Witness
AB sawroadblocks
at Gisenyi
closeto Rubengera
Church;
on theroadgoingtowards
thePresbyterian
Church;
on theroadleading
to Gisenyi;
andon theButare-Kigali
road.Witness
Z
testified
to roadblocks
at Nyanyirakabano
andat theNyanza
crossroads,
aboutfive
kilometres
fromthe bureaucommunal.
Witness
AA testified
to a roadblock
at
Kukabuga,
closeto theChinese
camp.Witness
KC stated
thathe passed
a roadblock
on the borderbetween
Mabanza
andKivumucommunes.

890.The Chamber
acknowledges
thattwo witnesses
may havein factreferred
to
one and thesameroadblock
usingdifferent
namesor landmarks
to describe
its
location.

891.Having
considered
theevidence,
theChamber
findsthatthereis onlyprima
facie
evidence
thatkillings
occurred
at or in connection
withthreeroadblocks
in
Mabanza
- theroadblock
at Trafipro,
at Gitikinini,
andat Gacaca.
TheChamber
will

297
 "~ "~*~ ICTR-95-1A-T

.......................................................................................................

addressthesethreeroadblocks
belowon the basisof all available
evidence
concerning
theirestablishment
andoperation
and decide
whether
theAccused
is
liable
underoneor moreofthethree
formsofliability.
Thiswillallow
theChamber
to concludewhetherthe Accused"permittedand encouraged"
Interahamwe
militiamen
to set up roadblocks,
as alleged
in theIndictment,
andwhether
the
purpose
wasto ’"screen
individuals
in orderto single
outandidentify
Tutsi’.
The
Chamber
willalsodecide
whether
there
is evidence
thathe "ordered
thedetention
of
several
Tutsiat thevarious
roadblocks",
thattheywere""handed
over"to himand
"subsequently
killed"
by persons
under
hisauthority
andcontrol
(below
V.5.11).

5.3Liability
forRoadblock-Related
Crimes

892.Undercertain
conditions
considered
in detailbelow,the Accused
may be
foundliable
forcrimes
committed
in connection
withroadblocks.
TheProsecution’s
charges
- genocide
and crimes
against
humanity
- limitrelevant
crimesin this
context
to murder
or theinfliction
of serious
mental
or physical
suffering
onTutsi
civilians.

5.3.1
Liability
under
Articles
6(1)and6(3)of theStatute

893.In relation
to anyspecified
roadblock
in Mabanza
commune,
theProsecution
mustprove
thefollowing
elements
ofcriminal
liability.
First,
thatoneormorecrimes
of therelevant
kindwerecommitted
in connection
withthatroadblock.
Thisdoesnot
meanthata crime
musthavebeencommitted
at theroadblock.
It is sufficient
thatthe
crime
wascommitted
by persons
staffing
theroadblock
inthecourse
of,andpursuant
to8
t°5
their
usual
operation
oftheroadblock,

1058
Toelaborate
this
point,
ifthepurpose
ofa roadblock
included
thescreening
outandkilling
of"the
enemy",
a Tutsi
civilian
refugee
whowascaptured
andbrought
totheroadblock
froma neighbouring
field
andlatertaken
awaybyroadblock
staff
andkilled
atsome
distance
from
theroadblock
willbe
considered
bytheChambertohavebeenthevictimofa crime
committed
inconnectionwiththe
roadblock.
Conversely,
ifthere
isdoubtthatthecrime
wascommitted
pursuant
totheusualoperation
oftheroadblock,
thatis,ifitisreasonably
probable
that
thecrime
wascommitted
fora purpose
entirely
unrelated
tothepurposes
oftheroadblock,
orforpurely
personal
motives
only,thenthecrime
cannot
have
beencommitted
inconnection
withtheroadblock.

298 "/~, ~k
 ~ ~ ~*~ ICTR-95-1A-T

......................................... - .............................................................

894.Thesecond
element
thattheProsecution
mustproveis thatthe Accused
was
"responsible"
fortheoperation
of theroadblock
inquestion,
andthusresponsible
for
crimes
committed
in connection
withit.Twoprimary
formsof responsibility
are
relevant
here,
corresponding
respectively
toArticles
6(1)and6(3)oftheStatute.

895.UnderArticle
6(1),theAccused
willbe responsible
forcrimes
committed
connection
witha roadblock
if,in the firstplace,
he was instrumental
in the
roadblock’s
establishment,
or - should
theroadblock
havebeensetup byothers
- he
endorsed
or acquiesced
to itscontinuing
operation,
notwithstanding
hispowerto
havetheroadblock
discontinued.
TheProsecution
mustshow,secondly,
thatthe
Accused
knewthattheroadblock
hada criminal
purpose
(evenif thispurpose
were
notitssolepurpose),
thatis,knewthatitwasestablished
expressly
to murder
Tutsi
civilians
or knewthatit operated
in factas if thatwereitspurpose.
Thesetwo
elements
wouldsuffice
to showthattheAccused,
inestablishing
or perpetuating
the
roadblock,
intended
thatTutsicivilians
be killed
thereor actedwithreckless
indifference
tothatoutcome.

896.In thesecond
case,underArticle
6(3),theAccused
willbe responsible
for
crimes
committed
in connection
witha roadblock
if persons
staffing
andcommitting
crimes
at thatroadblock
werehissubordinates.
The Prosecution
mustprovethe
standard
threeelements
of superior
responsibility;
namely,
in addition
to the
existence
of a superior-subordinate
relationship,
knowledge
of theimminent
or
completed
crimes
andfailure
to prevent
or to punish
them.In accordance
withthe
discussion
above
(III.
1.2.2),
theknowledge
element
ofsuperior
responsibility
will
fulfilled
if theAccused
actually
knewof oneor morecrimes
committed
or aboutto
be committed
in connection
witha roadblock,
or alternatively
wasputon notice
and
failed
toinquire
further.

897.A third
basis
ofliability
inthiscontext
isgross
negligence.
Thisis a species
of
liability
by omission,
omission
heretaking
theformof criminal
dereliction
of a
public
duty.
It would
beavailable
in thepresent
caseif theProsecution
weretoshow
thattheAccused
hadbeengrossly
negligent
in hisadministration
of oneor more

299
 - ~ ~’~ ICTR-95-1A-T

.......................................................................................................

roadblocks
underhiscontrol,
suchnegligence
causing
themurder
of Tutsicivilians
(byroadblock
staff).
HadtheAccused,
as bourgmestre,
an obligation
to maintain
orderandsecurity
in Mabanza
commune,
it wouldhavebeena grossbreach
of this
dutyforhimto haveestablished
roadblocks
andthenfailed
properly
to supervise
theiroperations
at a timewhentherewasa highriskthatTutsicivilians
wouldbe
murdered
in connection
withthem.TheChamber
observes
thatthisformof liability
hasnotbeenelaborated
or applied
in previous
judgements
of thisTribunal.
Onlyone
judgement
of theICTYtouches
on thematter;
and thereis someguidance
in the
Tokyojudgement
of theInternational
Military
Tribunal
fortheFarEast(IMTFE).
Thisjurisprudence
willbe discussed
below
(V.5.10).

5.3.2Distinction
between
"Official"
and"Unofficial"
Roadblocks

898. As mentionedabove,the Defence distinguished

between
official
and
unofficial
roadblocks.
Thedistinction
was emphasised
by the Accusedin his
testimony:

"There
wereunofficial
road-blocks
allovertheplace
andwhich
wewerefighting
against
assoonaswewere
toldabout
them
....Thepeople
took
theinitiative
toerect
road-blocks
in°59
’’1
front
ofhouses
onvarious
roads
oftheSector.
"[D]uring
this
period
ofcrisis,
thepeople
wereerecting
roadblocks
allover
theplaceto
extortmoney
frompeople.
AndI didsaythatthere
were
unofficial
roadblocks,
andthatI
was6°
’’1°
against
that.

899.The Prosecution
doesnot acceptthattherewere,in fact,two kindsof
roadblock
in Mabanza
commune.
It submits
thatthedistinction
is an invention
andin
any caseimmaterial
to the responsibility
of the Accused.The Accusedas
bourgmestre
exercised
general
control
andauthority
in Mabanza
commune.
In this
sense,
every
roadblock
inthecommune
could
be labelled
I°61
"official".

1059Transcripts
of7 June2000pp.141-142.
1060Transcripts
of9 June2000p.28andalsop.25.
106tTranscripts
of18October2000p. 108.According
totheProsecution:
"There
isnodistinction
asto
whatis anofficialroadblock
orunofficialroadblock
....As bourgmestre,
he hadthe controland
authorityovereverything
thatwenton in Mabanza
communeandI do notacceptforoneminutethat
therewasa single
roadblock
mounted
based
ona frolic
..."(ibid.).

300
~, ~’*’~ ICTR-95-1A-T

.......................................................................................................

900.Defence
Witness
RA wastheonlywitness
in thiscaseto distinguish
between
government-erected
andad hocroadblocks:

"There
wereroadblocks
erected
bygovernment
officials,
andtherewereinstructions
to
theeffect
thattheyshould
check
identification
documents,
andtocheckif...those
who
wentthrough
carriedweapons.
Therewereother
roadblocks
thatthepeople
erected,
particularly
atnightandthesearetheroadblocks
thatweremoredangerous
thanthe
others,
’’1°62
thantheofficial
roadblocks.

901.TheChamber
notesthatnoneof thejudgements
delivered
by theTribunal
to
datehasdistinguished
between
official
andunofficial
roadblocks.
1063Moreover,
there
isno documentation
in thepresent
casethatexplicitly
distinguishes
between
official
andunofficial
roadblocks.
ThePrimeMinister’s
directive
referred
to roadblocks
that
were"officially
recognised"
(V.5.2.1).
Thisformulation
allows
forthepossibility
thattherewereroadblocks
in Mabanza
commune
thatwerenotofficially
recognised.
At thesametime,however,
thetestimony
of theAccused
at onepointappears
to
suggest
thattheeffect
of thePrime
Minister’s
letter
wastomakeexisting
roadblocks
1064
,,official,,.

902.Notwithstanding
thedesignation
of a roadblock
as "official"
or "unofficial",
theAccused
cannot
be heldresponsible
forcrimes
committed
in connection
withthe
roadblock
if he didnotpersonally
setit up,if he didnotlendit hissubstantial
support,
or if he didnot acquiesce
(despite
hispowersof termination)
to its
continuing
operation.
TheProsecution
mustprove
atleast
oneofthese
conditions.

5.4 Trafipro
Roadblock
- Establishment
and Purpose

903.The Trafipro
roadblock
was erected
closeto the bureaucommunal
on the
Kigali-Kibuye
road.Prosecution
WitnessesAA, AB, Y and Z, and Defence
Witnesses
KA,RA andtheAccused
gaveevidence
in thisregard.

1062Transcripts
of 2 May2000p. 55.
1063
See,forinstance,
Rutagandaparas.
202-261;
andKayishema
andRuzindana
paras.
294and295.
1064Transcripts
of9 June2000p.41.

301
Deliberations

904.Prosecution
WitnessZ testified
thaton the eveningof 13 April1994,
conseiller
Nkiriymwami
toldhim thatthe bourgmestre
had giveninstructions
according
to whichthewitness
should
lookforotherpeople
withwhomto erecta
roadblock
atthelocation
of Trafipro.
1°65Wanting
moredetails,
thewitness
wentto
theAccused’s
home.TheAccused
askedhimto findotherpeople
including
a certain
Rushimba
(whoserealnamewas FidelCyakubwirwa)
and to set up the roadblock
veryearlythe nextmorningin orderto apprehend
the "enemies"
who were
escaping.
1°66In hispriorstatement
of 18September
1999,thewitness
indicated
that
bothhe andRushimba
I°67 wentto seetheAccused
on theevening
of 13 April1994.

905.Prosecution
Witness
Y testified
thatin April1994twomen namedRushimba
andSaidi
Rukanos
askedhimto helpthemstaff
theTrafipro
roadblock,
whichhe did.
He explained
thatthetwomenhadsaidthatit wasthebourgmestre
whohadgiven
themtheorder.
1°68Thewitness
wasat theTrafipro
roadblock
fromApriluntilJuly
1994.1°69
He didnotspecify
whenin April
it waserected.

906.TheAccused
testified
thattheTrafipro
roadblock
datedbackto thebeginning
of thewar,in October
1990,whensoldiers
setit up.It wassubsequently
removed
duringthe negotiation
period
of theArushaAccords.
The Accused
saidthathe
ordered
theTrafipro
roadblock
to beerected
againaround
27April
1994.1°7°

907.The Accused
further
explained
thattheobjective
of theTrafipro
roadblock
wasto check
forRPFinfiltration,
pursuant
totheinstruction
of thePrimeMinister
(V.5.2.1),
andthatheandtheCommunal
Council
decided
whoshould
staffit.
1°71The
Accused
referred
to documentary
evidence
in support
of his assertion
thatthe

lO65
Transcripts
of8 February
2000p.38.
lO66
Ibid.
pp.38-39.
1067
Defence
Exhibit
No.65.
1068
Transcripts
of7 February
2000
pp.27and32.
1069
Ibid.
pp.32-33.
1070
Transcripts
of7 June
2000
p.142.

302
 ICTR-95-1A-T

..................... m .................................................................................

roadblock
was"official".
1°72He testified
thatit was theonlyroadblock
thatthe

CommunalCouncilestablished
and for whichit issuedinstructions.
The Accused
added:

"Theroad-blockwassetup because I toldyouthattheMabanza commune wasat the

cross
roadsofseveralroads.So,webelieved thatthiscrossroadwasa necessary
passage
way,foranybody goingto Kibuyeor to Gisenyi or Nyanza,
thatis whywe thoughtwe
should
checkthis...cross-roadkeeping
inmindthe...directives
issued tothepeople
who
weresupposed
to mantheroad-block contrary to whatwashappening
in otherareas,we
didnotwantto makethesamemistakes as whatwashappening in theotherregions
which
passersby
weretellingus about.
’’1073

908.The Accusedtestified
thatthosewho staffedthe roadblock
wereselected
on
thebasisof theirconduct,
andalsotheir"goodcharacter,
levelof training,
thatthey
had completed
at leastprimaryschoolor post-primary
levelof education
and so
on".1074 He stated
thatoralinstructions
weregivento thestaffat theroadblock.

909.According
to the Defence,
theinstructions
givenorallyin April1994,when
theTrafipro
roadblock
wasre-established,
werelaterconfirmed
in writing.
1°75The

Defence
produced
a letterentitled
"Attestation",
addressed
to fivepersons,
dated3
June1994andsigned
by theAccused.
It reads:

"[Five
addressees
...]
I am writing
to authorise
youto mantheTrafiproroadblock.
Consequently,
no other
personhastheright
tokeepguard
thereandtoleaditwithout
permission.
During
thechecks youarerequired
to conduct,youarekindly
requestednotto ill-treat
passers-by,
as somehavealready
done.It is precisely
forthisreasonthata fiveman
commission
hasbeensetup to verify
whetheror notpassers-by
havebeenmaltreatedand
whether
theenemyhasinfiltratedthroughthispassageway.
Thesaidcommissionis also
required
’’1076 tooffer youadvice
which
willenableyouto perform
yourtasksuccessfully.

1071
Ibid.pp.142-143.
1072SeeProsecution
Exhibits
Nos.92and94asweUasDefence
Exhibit
No.62.These
documents
are
discussed
below.
1073
Transcripts
of7 June
2000pp.150-151.
1074
Transcripts
of9 June
2000
p.30.
1075Defeuce
ClosingBriefp.
121para.
69.
1076
Prosecution
Exhibit
No.94.

303
 ICTR-95-1A-T

.......................................................................................................

910,A seconddocument,
entitled
"Certification",
alsodated3 June1994and
signedby the Accused,
authorised
a commission
composed
of fivepersonsto
supervise
thosewhohad beenplacedin chargeof the Trafipro
roadblock.
The
Certification
states:

"Iwouldherebyliketo...authorise
youtocheck whether
people
inchargeofTrafipro
roadblock
do theirworkwell;
whetheranyoneisunjustly
treated
andobserveanything
whichprevent[s]theroadblockfromaccomplishingitswork.Youwillinform the
assistant
burgomaster
(...Affaires
Sociales
etCoop6ratives)
Nsengimana
Appolinaire
and
thecounsellorNkiliyumwami
D. of whatyouwillhaveachieved
so thatyoucanlook
together
for[a]solution.Youhavetogivemea report.
Thismeans
thatitwouldbegood
foryouto selectamongyourselvesa leader...whowillmakea planof work.The
following
personsareincharge
ofroadblocks:
[...fivenames.]
N.B.
’’1°7
Nooneelse
7 mustappear
attheroadblock
without
certification.

911.Witness
Y wasspecifically
namedin the Certification
as one of thefive
persons"in chargeof’ the roadblock.
Neitherthe nameof WitnessZ nor of
Rushimba
appears
in thedocument.
However,
during
histestimony,
theAccused
did
notexclude
thepossibility
thatoneofthefivepersons
listed
asbeing
incharge
ofthe
roadblock
- FideleKubwimana
- couldbe the samepersonas Rushimba
(Fidel
Cyakubwirwa):

"[A.]TheFidelementioned
hereis Kubwimana.
I don’tknowwhether
therewasa
confusion
withCyakubwirwa,
but...
[Q.]Whowastheonewhowasauthorized
toactasleader?
[A.]Ifit wasCyakubwirwa,
thatmaybe
istheonewhowasknown as Rushimba,
maybe.
Otherwise,
I wouldn’t
knowverywell.
FideleCyakubwirwa,
Fidele
Cyakubwirwa,
but
herewe haveFidele
Kubwimana.
I don’tknowwhether
we aredealingwiththesame
,,1078
person.

912.The Accusedtestified
thatthe fivenamedpersonsstaffed
the Trafipro
roadblock
fromthetimeit wasfirstestablished
in April1994.No member
of the
five-man
supervising
commission
testified
at trialand,apartfromWitness
Y, no
other
person
namedin theAttestation
appeared
before
theChamber.

1077
Defence
Exhibit
No.62.TheEnglish
~anslation
hasbeen
improved.
1078
Transcripts
of9 June
2000
pp.45-46.

304
 ~ ~ ~’~ ICTR-95-1A-T

Findines

913.It is not clearfromthe evidence

whenthe Trafipro
roadblock
was re-
established
by theAccused.
TheChamber
notesthatno otherwitness
corroborated
thetestimony
of Witness
Z thattheroadblock
waserected
on 14 April1994.Witness
Y datedit to themonthof April,
without
beingspecific.
Defence
Witness
RA,who
visited
theAccused
at thebureau
communal
on 17 April1994,testified
thatthe
Trafipro
roadblock
hadnotbeenerected
at thatstage.
1°79Thetestimony
of this
witness
wouldsuggest
thatTrafipro
wasestablished
sometime
in thesecond
halfof
April1994.

914.As to the staffing

of theTrafipro
roadblock,
theChamber
notesthatthe
presence
of Witness
Y is uncontested.
According
to his own and the Accused’s
testimony,
he wasgivenoralinstructions
in April1994to stafftheroadblock.
The
Attestation
of3 June1994,
issued
by theAccused,
confirms
thatthewitness
hadthis
taskalsoin Juneof thatyear.TheChamber
therefore
accepts
thatWitness
Y was
present
at theroadblock
fromApril
1994,
andalsoonor after
3 June1994.

915.Thestatus
of Witness
Z andRushimba
is not so certain.
TheProsecution’s
evidence
suggests
thatbothwerepresent
at theTrafipro
roadblock
at certain
times
during
theevents.
On theotherhand,theAccused
denied
thathe hadauthorised
Witness
1°8° Z or Rushimba
to staffthe
roadblock.

916.Witness
Z’sconfession
of 22 June1998to theRwandan
authorities
raises
a
question
aboutthecredibility
of hisclaim,
referred
to above,
thattheAccused
ordered
himto establish
theTrafipro
roadblock
withothers.
In thatconfession
the
witness
stated
thata roadblock
(almost
certainly
referring
to Trafipro)
wassetup
Witness
Y andRushimba.
Witness
Z didnotnamehimself
as oneof thosedirectly
involved
in itssetting
up,andhe madeno mention
of theAccused.
He simply
stated
that"many
1°81 of us mounted
guard"
at theroadblock.

1079Transcripts
of2 May2000pp.52-53.
1080
Transcripts
of8 June2000p.229and9 June2000pp.35-36.
1081Defence
Exhibit
No.112.

305
917.Regarding
theregularity
of Witness
Z’spresence
at theTrafipro
roadblock,
thewitness
testified
tostaffing
itfrom14 April
1994"throughout
theperiod"
until
July1994,but alsothathe ’~ouldmoveaboutfor one reasonor another".
He
"wasn’t
therethroughout".
1°82Thewitness
stated
that"[I]rom
whatpeople
observed
or said,
it wasthought
thatI myself
wastheleader
butin fact,itwasRushimba
who
wasin charge
of marming
theroadblock".
I°83In hisstatement
of 18 September
1999
he contended
thatfrom14 April1994he "onlyleftthatplaceto go fora beer,get
something
to eator takea napin theTrafipro
building";
andthattheroadblock
was
staffed
by several
people,
Rushimba,
Witness
Y and himself
beingtheones"most
regularly
ondutythere".
1084

918.It follows
fromthe testimonies
of Witnesses
Y and Z thatWitness
Z was
present
at theTrafipro
roadblock
duringthe incidents
relating
to Judithand
Bigirimana
(V.5.5
and5.6).Witness
Y didnotprovide
evidence
withregard
to the
regularity
orduration
ofWitness
Z’spresence
there.
In hisstatement
of17 September
1999,Witness
Y didnotassert
thatWitness
Z hadsummoned
himto theroadblock
or
wasin charge
of it.However,
he didstatethatWitness
Z was"alsomanning
the
roadblock
thatday’’whenBigirimana
waskilled.
1°85In hissubsequent
confession
of
24 March2000to theRwandan
authorities,
Witness
Y wasaskedto identify
those
"[w]homounted
guard"at the Trafipro
roadblock.
He answered
thatthey"were
many’’
1°86 andthathe remembered,
amongothers,
Witness
Z.

919.Witnesses
O and AA alsotestified
thatWitnessZ was at the Trafipro
roadblock.
Witness
O saidthatWitness
Z, Witness
Y andRushimba
formed
partof
thegroupof Interahamwe
takenfromtheTrafipro
roadblock
by theAccused
to kill
Pastor
Muganga
(IV.4.2).
~°87It is alsoapparent
fromWitness
AA’stestimony
and

1082Transcripts
of8 February
2000p.75.
1083Ibid.
p.59.
1o84Defence
ExhibitNo.65.
1085Defence
ExhibitNo.64.
1086DefenceExhibit
No.113.
1087Transcripts
of24 November
1999p. 40.

306
920.Regarding
thepresence
of Rushimba,
Witnesses
Z andY testified
thathe was
at 9
1°8theTrafipro
roadblock
at thetimeof thekillings
of Bigirimana
andJudith.
According
to thetestimony
of Witness
Z, citedabove,
Rushimba
wastheleader
of
theTrafipro
roadblock.
Thisis in conformity
withWitness
Z’sconfession
to the
Rwandan
authorities,
in whichhe gaveRushimba
andWitness
Y central
rolesat the
roadblock.
It follows
fromWitness
Y’sstatement
to investigators
thatit was
Rushimba
whoaskedhimto be partof thegroupandthatRushimba
wastheleader:
"Rushimba,
an ordinary
peasant,
wasin charge
of theroadblock.
’’1°9°
As mentioned,
Witness
O alsoidentified
Rushimba
as beingat theTrafipro
roadblock.

921.Thusthetestimonies
referred
to above,
supported
by witness
statements
and
confessions,
suggest
thatWitness
Z andRushimba
wereregularly
present
at the
Trafipro
roadblock.

922.As forotherTrafipro
attendants,
theChamber
recalls
thatWitness
Y testified
thatRushimba
invited
Saidi
Rukanos
to jointhestaff.
1°91He alsoreferred
toteachers
andgendarmes
as beingpresentJ
°92In hisconfessional
statement,
responding
to a
question
abouttheidentify
of thoseat Trafipro,
Witness
Y answered
thattheywere
many,but that he only remembered
WitnessZ, Rushimba,RukamosiSayiie,
Musabyimana
Jeand’Amour,
Nshimyimana
Athanase
and gendarmes.
1°93Thisis in
accordwithWitnessZ’s testimony,
that "thereweremanypeople"at the
roadblock;
1°94andaccording
to hisconfession,
"manyof us mounted
guardat this
roadblock,
particularly
me,...aswellasmanyotherpeople,
since
therewasa tavern

1088Transcripts
of 10 February
2000p. 57 andDefence
Exhibit
No.66 (statement
of 22 and23
September
1999),
1089Transcripts
of8 February
2000p.61and7 February
2000p.36,respectively.
1090Defence
Exhibit
No.64.Rushimba
wasin charge
of theroadblock
alsoaccording
toWitness
Y’s
confession
of 24 March2000(Defence
Exhibit
No.113).
I091
Transcripts
of7 February2000p.28.
1092
Ibid.
p.29.
1093Defence
ExhibitNo.113.
lO94Transcripts
of8 February
2000p.58.

307
 ICTR-95-1A-T
~¢~.. i~
"tt~

at5
1°9
thespot".

923.As indicated
below,
in connection
withthekillings
of Bigirimana
andJudith,
Francois
Mugishi
(orSemushegi)
andAlexis
Mutiganda
alsoattended
theTrafipro
roadblock
at various
times
(V.5.5
and5.6).

924.On the basisof the available

evidence,
the Chambercannotacceptthe
Accused’s
contention
thattheAttestation
givesa complete
picture
of thosewho
regularly
werepresent
at theTrafirpo
roadblock
priorto 3 June1994.Of thefive
persons
listed
in theAttestation
of thatdate,onlyWitness
Y wasidentified
by
witnesses
asbeing
present
attheroadblock.
Thisdoesnotexclude
thepossibility
that
theother
fourstaffed
theroadblock
atvarious
times
before
or after
3 June1994.
But
whiletheremay havebeena coreof personswho had beenmandated
to staff
Trafipro,
theevidence
indicates
thata number
of other
persons
werealsoin regular
attendance.

925.Inconclusion,
eventhough
it hasnotbeenpossible
toestablish
thedates
of the
presence
at Trafipro
of Rushimba
andWitness
Z, theChamber
findsthattheywereat
theroadblock
withconsiderable
regularity.
Moreover,
theChamber
doesnotaccept
thattheAccused
wasunaware
thatpersons
otherthanthe fivein question
were
regularly
present
at theroadblock.
Theclose
proximity
of theroadblock
tothebureau
communal
mustbe takenintoaccount
whenassessing
theknowledge
of theAccused.

5.4.2Purpose
of Trafipro
Roadblock

Submissions
of theParties

926.In itsclosing
oralarguments,
theProsecution
alleged:

"Inorder
toensure
thatnoTutsiremained
alive,
beitthose
fromwithin
oroutside
the
commune,
theAccused
setup roadblocks
within
Mabanza
to helpscreen
those
fleeing
from
’’1°9
asfaraway
6 asGitarama
andKigali.

1095
Defence
Exhibit
No.112.

308
 927. TheAccused,
asked
aboutthepurpose
of theTrafipro
roadblock,
replied:

"Following
thedirectives
ofthePrimeMinister,
weneeded
tocheck
infiltration
ofthe
RPF,particularly
tryandidentify
orfind
outvehicles
which
arebeing
usedtotransport
ammunitions
andgrenades
- andweapons".
1097

Deliberations

928.As mentioned
above,Witness
Z alleged
thaton 13 April1994,the Accused
toldhim thata roadblock
was neededto apprehend
the "enemies"
who were
escaping.
1°98He wasinstructed
alsoto checkthepapers
of thosewhocameto the
roadblock.
Witness
Z explained
whathe understood
the Accused
to havemeantby
"enemy";

"Hedidn’tneedto explain
anythingtomebecause
wehadbeenmadetounderstand
over
a longtime
that
theenemywasthetutsis
andheinfact
used
the[term]
Inyenzi
andatthat
pointintime,
Inyenzireferred
eithertotutsis
ora member
oftheRPFora sympathiser
,,1099
thereof.

929.According
to Witness
Y, Trafipro
wassetup forwartime
security
purposes.
Vehicle
documents
andidentity
cardswerechecked.
Askedwhether
he wassearching
forTutsi
attheroadblock,
thewitness
answered:

"Atthat point
intime
anyone
whose
identity
paperswerenotinorder,
ifthey
didnothave
a photograph,
whoever
thatperson
was,wassenttothebureaucommunal
....TheTutsis
at1
’’1that
°° time
didn’t
wanttobeseen
because
theyweretheoneswhowere
sought.

930.Thepointthatanyone
whodidnothavean identification
couldbe sentto the
bureau
communal
alsofollows
fromWitness
Y’swritten
statement
of 17 September
1999:

"Wewerenotgiven
anyparticular
instructions
asregards
ethnicbackgrounds.
Allthose
withproper
identification
cards,
regardless
ofwhether
theywereHum,Tutsi
orTwahad
noproblem
whatsoever.
’’I10I

1096Transcripts
of 4 September
2000p.49.
I097Transcripts
of7 June2000pp.142-143.
lO98Transcripts
of8 February
2000pp.38-39.
lO99Ibid.
pp.40-41.
1 lOOTranscripts
of7 February
2000pp.34-36.

309
931.Prosecution
Witness
AA testified
thattheAccused
had"roadblocks
setup to
control
themovement
of theInkotanyi
whoweretrying
to infiltrate
thecommune
by
using
vehicles".1102

932.Defence
Witness
KA testified
thathe passed
through
theTrafipro
roadblock
on several
occasions
"during
ourcrisis
time".
Hesaidthat"theroadblock
wasonthe
roaditself
butby theroadside
therewasplacewherepeople
on footwouldpass".
According
to the witness,
a vehicle
wouldbe stopped
andthe"normal
documents"
would
bechecked,
after
which
itcould
pass.1103

933.Defence
Witness
KC, a Hutu,testified
thathe passedthrough
the Trafipro
roadblock
on 23 May1994on hiswayto seetheAccused
aboutlaissez-passers.
The
witness
didnotrecognize
anyone
at theroadblock.
He stated
thatno oneaskedhim
forhisidentity
cardandthathe"justwentthrough,
normally".
11°4Thewitness
did
notseethosestaffing
theroadblock
checking
theidentity
cards
of other
people.
The
witness
thought
"they
werechecking
vehicles
thatweregoing
through".
11o5

934.Of relevance
alsois a document
entitled
"Instructions
on howto maintain
security",
dated9 June1994andsigned
by theAccused.
It relates
to roadblocks
generally;
it doesnotspecifically
mention
theTrafipro
roadblock.
It explains
very
succinctly
howvehicles
anddrivers
at a roadblock
should
be checked.
It states
that
papers,
suchastheidentity
card,
mission
order
andlicence
of thedriver,
as wellas
vehicle
registration,
taxandinsurance
forms,
should
be examined;
thevehicle
itself
should
11°6 be carefully
searched,
"because
theyhidethere
gunsandcartridges".

li01Defence
Exhibit
No.64.
1 lO2Transcripts
of10February
2000p.56.
1103Transcripts
of22May2000 pp.91-93.
1104Transcripts
of28April2000
p.47.
1105Ibid.
pp.
46-47.
1106
Prosecution
Exhibit
No.92.French
version:
"Les
R6glements
concemant
laprotection
dela
s6curit6".

310
Findings

935.To startwiththeProsecution’s
documentary
evidence
on roadblocks,
whichis
scant,
thetextof thePrimeMinister’s
directive
of27 April1994(V.5.2.1)
doesnot
support
a finding
thattheofficial
purpose
of roadblocks
wascriminal.
Indeed,
the
letter
admonishes
against
victimisation
of innocent
personsJ
1°7Thewording
of the
Prefect’s
letter
of 30 April1994to theAccused
andotherbourgmestres
(V.5.2.1)
alsoseems
tobelimited
tolegitimate
security
concerns.
1108

936.Of thedocumentation
attributed
to theAccused,
neither
theAttestation
and
Certification
of 3 June1994,
northe"Instructions"
of 9 June1994,
support
a finding
thatthepurpose
of roadblocks
in Mabanza
commune
wascriminal.
On thecontrary,
theCertification
purports
to create
a safeguard
against
unjust
treatment,
namely
the
five-man
commission.
TheAttestation
explains
thatthepurpose
of thecommission
is
"toverify
11°9 ...whether
theenemy
hasinfiltrated
through
thispassageway".

937.ThetwoProsecution
witnesses
whoregularly
attended
theTrafipro
roadblock
gavediffering
accounts
of itspurpose.
Wimess
Z testified
thattheAccused
asked
him
to erecta roadblock
"because
theenemies
areescaping"J
11°Thewitness
understood
theAccused
to be referring
to Tutsi
in general,
as wellas to members
of theRPFand
RPF-sympathisers.
Witness
Y, on the otherhand,saidthatanyonewithproper
identification,
whether
Tutsi,
Hutuor Twa,couldpassthrough
theroadblock
without
experiencing
problems.
He explained
thatRushimba
and Rukanos
had givenhim
relevant
instructions,
whichtheysaidhadcomefromtheAccused.
Witness
AA,who
wasnota staffmember
at theTrafipro
roadblock,
testified
thattheAccused
hadset
up roadblocks
to control
themovements
of Inkotanyi
attempting
to infiltrate
the
commune.

1107Prosecution
Exhibit
No.77b.
1108Prosecution
Exhibit
No.77a.
1109TheChamber
hasnotedthattheKinyarwandan
wordfor"enemy"
hereis "mwanzi"
andnotthe
derogatory
"Inyenzi"
or"Inkontanyi";
seetranscripts
of9 June2000pp.46f.
1110Transcripts
of 8 February
2000p.39

311
 ICTR-95-1A-T
(~~~

.......................................................................................................

938.TheChamber
is, of course,
awarethatthe truepurpose
of Trafipro
or any
otherroadblock
in Mabanza
commune
is bestsought
notin documentation
or recalled
oralinstructions
pertaining
toitsoperations
butrather
intheoperations
themselves.
The evidence
of killings
allegedly
committed
at the commune’s
roadblocks
is
examined
indetail
inthecoming
sections.
Allthatcanbesaidatthispoint
isthatthe
Prosecution
has notshownbeyond
reasonable
doubtthattheaim of theAccused,
whenhesetuptheTrafipro
roadblock,
wastoscreen
outandkillTutsi
civilians.

5.5Trafipro
Roadblock
- Aceused’s
Complicity
in Killing
of Bigirimana

Submissions
oftheParties

939.Accordingto the Prosecution,

a man namedFran£oisBigirimana
was
apprehended
at theTrafipro
roadblock.
1111He wasthentakensomedistance
away
andkilled
by Rushimba
andWitnesses
Z andY. Theperpetrators
werenotpunished
or suspended
by theAccused.Ill2

940.Asmentioned
earlier,
in relation
tothisalleged
killing
andthatof Judith,
the
Prosecution
charges
theAccused
withgenocide,
complicity
in genocide
andcrimes
against
humanity,
pursuant
toArticles
6(1)and6(3)oftheStatute.

941.TheDefence
challenges
theallegation
thatBigirimana
wasin factarrested
and
murdered
in Mabanza
commune.
In itsview,Bigirimana
was murdered
at Bisesero,
as stated
in thetrialof Kayishema
andRuzindana.
1113Alternatively,
theDefence
submits
thattheAccused
wasnotpresent
during
thearrest
ofBigirimana,
thathewas
not awareof his murder,and thatthe testimonies
of Witnesses
Y and Z are
inconsistent.l114

1111
Bigirimana’s
nameoccasionallyhasbeenrecorded as "Bigilimana".It appearsthathe wasa
driver,eitherofa bus(WitnessZ - transcripts
of 8 February2000p.56)or at OCIRCaf6,Kibuye
(WitnessZ’sRwandanconfessional
statementof 22 June1998,Defence ExhibitNo.112),or perhaps
both.
1112
See,inparticular,Prosecution’s
written
Closing Remarksp. 18para.120,p. 77para.403,p. 78
para.410,p.91para.78,p.93para.93,p.97para. 117,p.102para. 139,p.105para.163,p.107para.
191,p.110para. 213andp.116para.267;Rebuttalparas.46-48.
1113Transcripts
(Kayishema
andRuzindana
trial)of24 April 1997p.65.
1114
See,in particular,
Defence
Closing
Briefpp.54-56paras.446-462
andp. 122paras.73-74;
Rejoinder
paras.207-211.

312 "@. 4 .
Deliberations

942.Prosecution
Witness
Z testified
thatoneevening
Bigirimana
camein a pick-up
vehicle
fromKigali,
accompanied
by hiswife,andwasstopped
at Trafipro.
A certain
Alexis
Mutiganda
saidto Witness
Z thathe knewBigirimana,
thathe "wasa Tutsi
andhe wasworking
together
withtheInyenzi".
1115Witness
Z foundthatBigirimana
hadtwoidentity
cards,
oneindicating
thathe wasa Hutu,theotherthathe wasa
Tutsi.
Bigirimana’s
wifepleaded
on herhusband’s
behalf
withtheAccused,
whowas
thenpassingby the roadblock
on his way homefromthe communal
office.The
Accused
responded
that"itwasa matter
whichwasup to thepersons
manning
the
roadblock
withwhomshe shouldspeak",
u16 Witness
Z testified
that"whenthe
womancamebackto us,we chasedherawaytelling
herthatif shecontinued
we
weregoing
1117 tokillheraswe weregoing
to dowithherhusband".

943.Later,
according
to Witness
Z, he, Witness
Y and Rushimba
tookBigirimana
to a placecloseto theTrafipro
roadblock
wheretheykilled
himwithmachetes.
Witness
Z struck
thefirst
blow.
1118Thewitness
testified
thatBigirimana
waskilled
because
he wasa Tutsiandan accomplice,
andbecause
a certain
Frangois
Mugishi
(orMugeshi)
hadgiventhemsomemoneyto killhim.Thewitness
explained
that
orderto retain
a largepartof themoney,
he choseonlytwootherpeople
forthe
killing.
Buthe addedthatevenwithout
themoneyhe andhisaccomplices
stillwould
havekilled
Bigirimana.l119

944.Prosecution
Witness
Y testified
thatBigirimana
wasstopped
at theTrafipro
roadblock
and,in variance
withthetestimony
of Witness
Z, wasfoundto haveno
documents.
A man namedFrangois
Semugeshi
saidthatBigirimana
wasan enemyof
thecountry,
an Inyenzi.
"Heaskedus to go anddealwithhimandthathe wasgoing

1115
Transcripts
of8 February
2000
pp.56and58.
1116
Ibid.
p.57.
1117
Ibid.
1118Ibid.
p.60.
1119Ibid.pp. 59-60.WimessZ, in his confessional
statement
of 22 June 1998,notedthat afterthe

murderof Judith,Mutiganda
had said"I am leavingbut thereis one personstillremaining
for me to
havepeace";thestatement
thengoeson to addressthe murderof Bigirimana.

313 @..~/ .
 ICTR-95-1A-T

.......................................................................................................

to buyus tea.
’’m°Bigirimana
wastaken150meters
fromtheroadblock
andkilled
by
Witnesses
Z and Y (Witness
Y did notmention
Rushimba
in connection
withthis
incident).
Witness
Z struck
thefirst
blow.
Witness
Y testified
thatheparticipated
in
thekilling
because
Semugeshi
hadpromised
to payhim.
ml In contradiction
to the
evidence
presented
by Witness
Z, Witness
Y testified
thattheAccused
hadnotbeen
present
112z at theroadblock
whenBigirimana
wasarrested.

945.TheAccused
testified
thathe had no knowledge
of the killing
in Mabanza
commune
of a person
namedBigirimana]
123

Findings

946.The Chamber
doesnot acceptthe Defence
assertion
thatthisis a caseof
mistaken
identity.
Thetwoconfessed
perpetrators
(Witnesses
Y andZ) consistently
havemaintained
thattheykilled
Frangois
Bigirimana.
Thisfollows
fromtheir
written
statements,
confessions
and testimonies.
The Defencehas not demonstrated
a
sufficient
connection
between
theBigirimana
referred
to in the Kayishema
and
Ruzindana
caseandtheBigirimana
in thepresent
case.

947.The onlyevidence
of the Accused’s
directinvolvement
in the killing
of
Bigirimana
is the testimony
of Witness
Z, according
to whichthe Accused
was
present
during
theincident
andspokewithBigirimana’s
wifewithout
intervening
to
prevent
herhusband’s
death.
Thistestimony
incriminates
theAccused,
forit suggests
thathewasan accomplice
to thecommission
of thecrime;
1124alternatively,
thathe is
liableas a superior
fornot averting
hissubordinates
fromcommission
of the
offence.1125

948. TheChamber
hasalready
expressed
doubts
aboutthereliability
of Witness
Z

1120Transcripts
of7 February
2000p 37.Witness
Y testified:
"Regarding
thef~rst
person
I participated
in killing
himbecause
I waspromised
somefinancial
reward,
itwasMugeshi
whopromised
to payus"
(ibid.
p.40).
1121Ibid.
p.38.
1122Ibid.
pp.48-49.
1123Transcripts
of7 Junepp.167-68.
1124Prosecntion’s
writtenClosing
Remarks
p.103para.139,p.105para.163andp.110para.213.
1125Ibid.
p.116para.267.

314 ;.L
 ~’~’- ICTR-95-1A-T

/t46¢
(V.5.4.1)
Inthepresent
instance,
theonlyother
witness
to testify
about
thekilling
Bigirimana
isWitness
Y, who,in direct
contrast
to thetestimony
ofWitness
Z, stated
thathe did notseethe Accused
at the Trafirpro
roadblock
whenBigirimana
was
arrested,
v26Witness
Y’sassertion
thattheAccused
wasnotpresent
at theroadblock
is consistent
withhisstatement
to investigators
of 17 September
1999.1127
Thisis
significant
insofar
astheinvestigators,
intheintroduction
tothestatement,
indicate
a
specific
interest
in information
pertaining
to theAccused.
Thewitness
mentioned
the
Accused
in connection
withtheTrafipro
roadblock
in general,
andwiththekilling
of
Judith
in particular,
butnotin connection
withthekilling
of Bigirimana.
Where
the
onlyother
direct
witness
tothekilling
of Bigirimana
presents
a version
of events
at
variance
withthatof Witness
Z, a doubtis castuponthe latter’s
testimony
implicating
theAccused
in theevents
leading
up tothekilling
of Bigirimana.
There
arealsoinconsistencies
between
Witness
Z’stestimony
andhiswritten
statement
in
relation
to Bigirimana.

Conclusion

949.The Chamber
concludes
thatthe testimony
of Witness
Z is uncorroborated.
Therefore
a serious
doubtsubsists
regarding
theinvolvement
of theAccused
leading
up to thekilling
of Bigirimana.
TheAccused
is therefore
notliable
underArticle
6(1).
Hisliability
asa superior
willbeconsidered
below
(V.5.7).

5.6Trafipro
Roadblock
- Accused’s
Complicity
in Killing
of Judith

Submissions
of theParties

950.According
to the Prosecution,
a womannamedJudith,
whowaswellknownin
Mabanzacommune,was murderedin the ruinsof her houseby Rushimbaand
Witness
Y, having
beenledthereby thetwomenfromtheTrafipro
roadblock,
past
the bureaucommunal,
withWitnessZ trailing
fiveto ten metresbehind.
The
Prosecution
submits
thattheAccused
sawthekillers
leading
Judith
away,knewthat

1126
Transcripts
of7 February
2000pp.48-49.
1127Defence
Exhibit
No.64.

315
 .... ’~*’~ ICTR-95-1A-T

146
.......................................................................................................

Judith
wasaboutto be killed,
and encouraged
or acquiesced
in hermurder.
The
perpetrators
werenotpunished
orsuspended
by theAccused.
1128

951.TheAccused
denied
thathe knewthatJudith
wasaboutto be killed,
or thathe
foundoutabouthermurder
aftertheevent.
TheDefence
argues
thattheProsecution
hasfailed
tospecify
theroleoftheAccused
inthekilling
ofJudith.
Italsochallenges
the evidenceof Witnesses
Z, Y and AB as internally
incoherent,
mutually
inconsistent
andunreliable.
According
to theDefence,
theclaimthatJudith
waswell
knownin Mabanza
commune
is incorrect.1129

Deliberations

952.Prosecution
WitnessZ testified
thatJudithhad beenfoundby Alexis
Mutiganda,
apparently
in a bananaplantation,
and thatshewas dragged
to the
Trafipro
roadblock
by Rushimba.
In hisconfessional
statement
of 22 June1998,the
witness
stated:

"Since
I knew
her,I interceded
onherbehalf
butthedriver
[Mutiganda]
refused
under
thepretext
thatJudith
hadrefused
himtogetmarried
toherdaughter
whenhiswife
died,
andshehadinsulted
himbysaying,
a he-goat
cannever
mate
witha sheep
....
[He]insmacted
Rushimba
and[Witness
Y]tokillherimmediately,
promising
tobuy
them
’’1~3
drinks.
°

953.Judith’s
captors
decided
to takeherto herplotandkillherthere.
Witness
Z
explained
howhe trailed
fiveto tenmeters
behind
Rushimba
andWitness
Y as they
walked
withJudith,
without
holding
her,pastthecommunal I13I Witness
office. Z
saidthat,atthatpoint,
theAccused
cameoutof hisoffice
andasked
him,"Where
did
youfindthatone?".
Thewitness
replied
thattheyfoundherin a banana
plantation
andthatthey"weregoingto workon her".According
to thewitness,
theAccused

1128
See,inparticular,
Prosecution’s
writtenClosing
Remarksp.16para.101,pp.19-20
paras.
121and
124,p.53para.309,p.77paras.404-405,
p.78para.
410,p.92para.84,p.97para.120,p.103para.
142,p.105para.164,p.110para.214andp.115paras.256-8;
Rebuttal
paras.
46-48.
1129See,inparticular,
Defence
Closing
Briefpp50-54paras.
408-445;
Rejoinder
paras.
203-206.
1130DefenceExhibit
No.112.
1 I3lTranscripts
of8 February
2000p.67.

316 /~- ~l/ ~

 !i ~ ~ ~’~ ICTR-9
5 - 1A-T

~ ~¢" :’~k~)

.......................................................................................................

said,
"That’s
fine,goon".
1132TheAccused
thenwentbackto hisoffice.
Onarriving
at Judith’s
plot,Witness
Z foundthatshehadalready
beenkilled
by Rushimba
and
Witness
’’1133
Y. "They
covered
herwithearth
andthenweleft.

954.Witness
1134 Z testified
thathedidnot"recall
thedayorthedate"
ofthekilling.
However,
in hisRwandan
confessional
statement
of 22 June1998,he indicated
that
theincident
occurred
"bytheendofApril".
1135

955.Prosecution
Witness
Y admitted
thathe,together
withRushimba,
hadkilled
Judith.
Thewitness
testified
thatJudith
wasbrought
to theTrafipro
roadblock
by
Rushimba
afterbeingfoundsomewhere
alongtheroadto Gitikinini.
1136He stated
thatRushimba
decided
thatJudith
wasto be killed
andforced
Witness
Y totakepart:
"Rushimba
toldme thatif I didnotparticipate
he wasgoingto killme andhe was
capable
’’1137
ofdoing
itbecause
hewasevencarrying
a gun.

956.Witness
Y testified
thathe andRushimba
had walked
pastthefrontof the
bureaucommunal
withJudith,
verycloseto the building,
andthatthrough
the
window
he sawtheAccused
in hisoffice.
Although
thewitness
testified
in response
to a question
fromtheBenchthattheAccused
sawthempass,in cross-examination
hesaid:

"[Q.]Therefore,
youdidn’t
meethimonyourway?
[A.]I meanthatwhere
hewaswecould seehim.
[Q.]Couldheseeyou?
[A.]Theoffice
hadglasswindows,
I cantherefore
notstate
certainly
whether
hesawus
ornotbutwecouldseehim....Since
wepassedinfront
ofhimwithout
speaking
to
him38
’’11
I cannot
tellyouthat
heknewwhatweweregoing
todo.

957.Witness
Y explained
thatthekilling
tookplaceaboutonehundred
metres
from
therearenclosure
of thebureau
communal.

1132
Ibid.
p.64.
1133Ibid.
1134
Ibid.
p.62.
1135Defence
Exhibit
No.112.
1136
Transcripts
of7 February
2000pp.36-37.
1137Ibid.
pp.40-41.
1138
Ibid.
p.53.

317
 ~ ~’~t** ICTR-95-1A-T

958.Prosecution
Witness
AB testified
thattheroadblocks,
including
Trafipro,
were
setupto identify
Tutsi.
Shestated
that"[w]hen
Tutsis
werefound,
theywerekilled
or if youhada facethatlooked
likea Tutsi’s
face,youwerekilled.
’’1139
As an
example
of this,Judith,
who had beenhidingwithher,had beenarrested
at a
roadblock,
takento thebureau
communal
to seetheAccused,
andsubsequently
to
"Kinihira".
Thewitness
laterheardthosewho camebackbragging
thattheyhad
killed
her.114°

Findings

959.Onceagain,the onlyevidence
of theAccused’s
direct
involvement
in the
killingof Judithis the testimony
of WitnessZ. He claimedto havehad a
conversation
withtheAccused
in front
of thebureau
communal,
justafterJudith
was
escorted
past.

960.TheChamber
accepts
thatWitness
Z wasinvolved
in thekilling
of Judith.
(According
to Witness
Y’s statement
of 17 September
1999,Witness
Z, Rushimba
andhe ledJudith
to herhouse,
whereshewaskilled
by Rushimba.
1141)However,
the
Chamber
cannot
relyon other
aspects
of Witness
Z’saccount
of theincident.

961.In hisconfession
of 22 June1998,Witness
Z admitted
hisinvolvement
in the
murder
of Judith
butsaidnothing
aboutan encounter
withtheAccused,
in spiteof
mentioning
himin relation
to thekilling
ofPastor
Muganga.
1142He firstreferred
to
meeting
theAccused
in hisstatement
of 18 September
1999,wherehe declared:
"He
askedus wherewe hadfoundJudith,
andbefore
we couldanswer,
he wenton to say:
’That’sokay.
’’’1143
Thisisin contradiction
withhistestimony
(asexcerpted
above),
according
to which
thewitness
hadtheopportunity
to replytotheAccused’s
question
before
beingtold,"That’s
fine".
Other
inconsistencies
areapparent
butneednotbe

1139Transcripts
of 15 November
1999pp.109-111.
I14°Ibid.
pp.111-112.
1141
DefenceExhibit
No.64.
1142Defence
Exhibit
No.112.
1143Defence
Exhibit
No.65,emphasis
added.

318
 ~, ~’!t~ ICTR-95-1A-T

entered
intohere.
1144Thepoint
is thatthesupposed
conversation
between
Witness
Z
andtheAccused
is notcorroborated.
Witness
Y who,according
to Witness
Z, was
onlysomemeters
aheaddidnotreferto anyconversation
between
Witness
Z andthe
Accused.
It is possible,
ofcourse,
thattheAccused
whowas,according
to Witness
Y,
in hisoffice
whenJudith
wastakenpast,tooknotice
andcameoutto theentrance
wherehe metWitness
Z. However,
thismerepossibility
cannot
fortify
theaccount
of
a witness
whose
unreliability
is questionable
(V.5.4.1
and5.5).

962.It is arguable
thatif theAccused
hadseenthegrouppassbefore
hiswindow
he would
haveappreciated
thelikelihood
of animminent
offence.
Itmaywellbetrue,
asWitness
Z testified
inreference
toJudith,
thatshewasnotbeing
held.
1145Buteven
if Judith
wasnotbeingledas if shewerea prisoner,
thesightof tworoadblock
attendants
- at leastone of whom(Witness
Y) was formally
appointed
by the
Accused
- following
closely
behind
a lonewoman,
in thecircumstances
of thetime,
shouldhavealerted
the Accused
to thedanger.
However,
in the absence
of any
evidence
thattheAccused
noticed
theprocession,
thislineof argumentation
leads
nowhere.

963.It is alsoarguable
thattheAccused’s
complicity
in themurder
of Judith
may
be foundin the veryfactthatshe wastakenpastthe bureaucommunal
withno
apparent
attempt
to conceal
thisactfromtheeyesof theAccused.
Witness
Y was
askedwhy he hadchosenthisparticular
routeto Judith’s
plot,alongwhichan
encounter
withthebourgmestre
wasprobable.
Thewitness
replied
that"[a]tthat
pointin timeI wouldsay thatpeople
hadlosttheirheads.
Reasoning
wasnot a
commoncommodityand no one reallythoughtabout that.’’1146 Thus the
Prosecution’s
ownwitness,
effectively
invited
to allude
to a tolerance
forcriminal
conduct
in the proximity
of thebureaucommunal,
spokeinstead
of his own and
others’
unreasoned
conduct
atthetime.

1144Forexample,
WimessZ didnotmention
thathe waswithanyonewhenhe mettheAccused.
But
accordingto hisconfessional
statement,WitnessZ waswithMutiganda whenhe followed
WitnessY
andRnshimbato thehomeof Judith:"They[RushimbaandWitness Y] tookherto herhousein ruins
andkilledherthere. Mutiganda
askedme to accompany
himto thespotin ordertomakesure.Wewent
andfoundthattheyhadjustkilledherwithbludgeonsandmachetes."
I145
Transcripts
of9 February
2000p.86.
II46
Transcrip~
of 7 February
2000p. 59.

319
964.The testimony
of WitnessAB, thatJudithwas takento meetthe Accused
before
beingkilled,
appears
to be speculation
- thewitness
didnotseesucha
meeting,
n47Thewitness’s
testimony
is on thispointat variance
withthatof the
confessed
killer,
Witness
Y, and,forthatmatter,
of Witness
Z. Herevidence
canbe
given
no weight
here.

965.Forthe abovereasons,
the Chamber
is not convinced
thatthe Accused
was
involved
intheevents
resulting
inthemurder
ofJudith.
TheProsecution
hasfailed
to
provethattheAccused
wasan accomplice
to theoffence.
Therefore
he is notliable
under
Article
6(1).
Thequestion
of superior
responsibility
is considered
next.

5.7Killings
of Bigirimana
andJudith
- Accused’s
Responsibility
as Superior

966.As mentioned,
the Accuseddeniedthathe knewthateitherJudithor
Bigirimana
wastobe killed
or hadbeenkilled
in connection
withanyroadblock.

Deliberations

967.TheChamber
hasdiscussed
theelements
of superior
responsibility
in Chapter
III."Knowledge"
is an indispensable
element
of thisformof liability,
meaning
that
theliability
ofa superior
forcrimes
ofhisorhersubordinates
isnotstrict.
Themental
element
of knowledge
mustbe demonstrated
beyond
reasonable
doubt.
If thereis no
direct
evidence
of a superior’s
knowledge
of offences
committed
by subordinates,
it
maybe possible,
however,
to establish
thathe orsheknewoftheillegal
actsby way
ofcircumstantial
evidence.

968.TheCelebici
TrialChamber
declared
thatin determining
whether
a superior,
despite
pleas
to thecontrary,
in factmusthavepossessed
therequisite
knowledge
of
offences,
thefollowing
indicia,
inter
alia,
arerelevant:
1148

1147Seetranscripts
of15 November
1999p.112.
1148Celebici,
16November
1998,para.386.

320
 ICTR-95-1A-T
~~ (~

"(a)Thenumber
ofillegal
acts;
(b)Thetypeofillegal
acts;
(c)Thescope
ofillegal
acts;
(d)Thetimeduring
which
theillegal
actsoccurred;
(e)Thenumber
andtypeoftroops
involved;
(f)Thelogistics
involved,
ifany;
(g)Thegeographical
location
oftheacts;
(Ix)Thewidespread
occurrence
of theacts;
(i)Thetactical
tempo
ofoperations;
(j)Themodus
operandi
ofsimilar
illegal
acts;
(k)Theofficers
andstaff
involved;
(1)Thelocation
of thecommander
atthetime."

969.TheTrialChamberin Celebici
weighedup someof theseindiciain the course
of inferring
theintentional
stateof theaccusedcommander
of the Celebici
prison
camp:

"Thereis a plethora
of evidence
of theknowledgeonthepartof Zdravko Mucicthatthe
guardsunderhiscommandwerecommitting crimes... The crimescommitted in the
Celebici
prison-campwereso frequent
andnotorious thatthere is no waythatMr.Mucic
couldnothaveknownor heardaboutthem.Despite this,he didnotinstitute any
monitoringandreportingsystemwherebyviolationscommittedin theprison-campwould
be reportedto him,notwithstanding
hisknowledge thatHazimDelic, hisdeputy,hada
penchant
andproclivityformistreatingdetainees.Thereis no doubtthatMr.Mucic was
fullyawareof thefactthattheguards at theCelebiciprison-camp wereengagedin
violations
’’1149 ofinternational
humanitarian
law.

970. The Trial Chamberin the Aleksovskicase, in referenceto the list of

knowledge-indicia
presented
in CeIebiei,
stated:

"TheTrialChamber deemshowever thatan individual’s

superiorposition perse is a
significant
indiciumthathe hadknowledgeof thecrimes
committedby hissubordinates.
Theweightto be givento thatindiciumhoweverdepends
interaliaon thegeographical
andtemporalcircumstances.Thismeansthatthemorephysicallydistantthecommission
oftheactswas,themoredifficultitwillbe,intheabsenceofotherindicia,toestablish
thatthesuperior hadknowledgeof them.Conversely,
thecommissionof a crimein the
immediate
proximityof theplacewherethesuperior ordinarily
carried outhisduties

1149
Ibid.
paras.
769-770.

321
 ICTR-95-1A-T

"~ ~’~*
’~
14-61
.......................................................................................................

wouldsufficeto establish
a significant
indicium
thathe hadknowledge
of thecrime,
a
fortiori
ifi
’’1
the
s°crimes
wererepeatedly
committed.

971.A significant
indicium
neednot,of course,
be a sufficient
indicium.
Thefinal
clause
of theaboveexcerpt
indicates
thatotherindicia
(suchas thenumber
of illegal
actscommitted
at thegivenlocation)
maybe necessary
forthementalelement
to be
established
withsufficient
certainty.
Thisis confirmed
by the TrialChamber’s
explanation
of itsfindings
in relation
to Aleksovski.
Theaccused
wasthecommander
of Kaonikprisonin Bosnia-Herzegovina.
He livedinsidetheclosedand controlled
environment
of the prison.The indicium
of proximity
to the sceneof the crimes
consequently
weighedheavilywiththe TrialChamber)
151 But thatwas not theonly
indicium
theChamberreliedon to infertheknowledge
of theaccusedin relation
to
crimescommitted
by hissubordinates:

"Theaccusedhimself
admitted
...thatsomeguardswhosebrothers
hadbeenkilled
atthe
fronttended
totakerevenge
on thedetainees.
Thiswasfurther
attested
toby Witness
I’s
accountof havingbeen beatenone eveningby an HVO soldierand summonedthe
followingdayby theaccusedforquestioningaboutthecauseof hisinjuries.
Five
witnesses
moreover
stated
thattheaccusedhadwitnessed
their
beingabused
first-hand
...
TheTrialChamber
therefore
findson thebasis
of theevidence
tendered
attrialthatthe
accused
’’1152 knewthatcrimes
werebeingcommitted
in Kaonikprison.

972.The Celibiciand Aleksovski

judgements
concernrepeatedoffences
committed
in prison
camps.Thisis notthesituation
in thepresent
case.Nevertheless,
on the
specificquestionof a superior’s
knowledge,
the Chamberfindsthat the legal
reasoning
of thetwojudgements
applies
mutatis
mutandis.

Findin~

973.In relation
to killings
committed
in connection
withtheTrafipro
roadblock,
onlythecircumstances
surrounding
the murders
of Bigirimana
andJudith,committed
by at leastone true subordinate
of the Accused(WitnessY), are knownto the

llS0Aleksovski,
25June1999,
para.
80,emphasis
added.
TheAppeals
Chamber
oftheICTY,
inits
Judgement
onAppealintheAleksovski
case,
noted
that"theAppellant
doesnotchallenge
theTrial
Chamber’s
interpretation
oftheelements
ofcommand
responsibility,
theapplication
ofwhich
bythe
Trial
Chamber
hasnotbeenshown
tobeunreasonable"
(24March2000,
para.
77).
1151
Ibid.
para.
114.
1152
Ibid.

322
 ICTR-95-1A-T

(~
t46
Chamber
in any detail.
As indicated
below,
uncertainty
surrounds
otheralleged
killings.

974.Witness
Z testified
to theeffect
thattheAccused
wasputon notice
aboutthe
impending
murders,
andmayevenhaveencouraged
theircommission.
In thecaseof
Bigirimana,
andforthereasons
givenearlier,
theChamber
cannot
accept
Witness
Z’s
testimony
about
thepresence
of theAccused
at theTrafipro
roadblock
shortly
before
Bigirimana
was takenawayand killed;
nor is the Chamberconvinced
thatthe
Accused
wasnotified
of theimminent
offence
by Bigirimana’s
wife.In thecaseof
Judith,WitnessZ claimedto haveconversed
withthe Accusedmomentsafter
WitnessY and Rushimba
led Judithpastthe windowof the Accused’s
office.
However,
for thereasons
givenabove,
the Chamber
has decided
to disregard
his
evidence.

975.Therebeingno otherdirect
evidence
as to the Accused’s
knowledge
of the
twooffences,
theChamber
willconsider
thecircumstantial
evidence,
guided
by the
listofindicia
setdownintheCelebici
case.

976.Bigirimana
andJudith
evidently
werekilled
in closeproximity
to Mabanza’s
bureaucommunal;
thatis,in the wordsof Aleksovski,
neartheplacewherethe
Accused
ordinarily
carried
outhisduties
as bourgmestre.

977.It mustbe saidin connection

withtheindicium
of proximity
thatthekillings
of Bigirimana
and Judithoccurred
on datesunknown
to the Chamber
- the only
testimony,
by Witness
Z,indicating
thatthey"took
place
in April
1994".
1153Thus,in
thecaseofBigirimana,
itis notpossible
fortheChamber
tolooktoother
known
facts
in an effort
to determine
whether
theAccused
wasat hisoffice
or at thebureau
communal,
or at any ratecloseby, whenthe offencewas committed.
As the
Accused’s
location
is unknown
for thedateon whichBigirimana
was killed,
the
corresponding
indicium
of knowledge
doesnotenterintotheChamber’s
calculations.

1153Transcripts
of9 February
2000pp.15-16.

323
 978.By contrast,
in thecaseofJudith,
Witness
Y testified
thattheAccused
wasin
hisoffice
at thetimethevictim
walked
past.TheChamber
hasno reason
to doubt
this.

979.Of additional
significance
aretheindicia
of geographical
location,
timeand
modusoperandi.
The factthatthetwo offences
werecommitted
in the immediate
neighbourhood
of the bureaucommunal,
combined
withthe factthattheywere
committed
moreor lessopenly,
certainly
without
secrecy,
in daytime,
andwiththe
direct
or indirect
participation
of three
or morepersons
at a time,goessomewayto
showthattheAccused
knewor foundoutabouttheoffences.

980.However,
in theChamber’s
opinion,
the above-mentioned
indicia
do notgo
far enoughin the present
case.If the murders
of JudithandBigirimana
were
instances
of a larger
number
ofvictims
oftheTrafipro
roadblock,
theinference
that
theAccused
knewabouttheoffences
mighthavebeenplausible.
Butthereis no
evidence
toshowthatthetwokillings
werenotjustisolated
orexceptional
incidents,
rather
thanillustrations
of a routine
ofwhichtheAccused
couldnotplausibly
have
remained
unaware.

981.Therecord
is,at theveryleast,
unclear
about
other
killings
having
occurred
in
connection
withthe Trafipro
roadblock.
Witness
Y testified
thathe and his
companions
killed
threepeople
during
themassacres.
It is notknownto theChamber
who thethirdvictimwas,although
possibly
Witness
Y meantto referto Pastor
Muganga
(V.4.2).
Atanyratetheidentity
of thethird
victim
andthecircumstances
hisor herdeath,
including
whether
theoffence
wasinconnection
withanyroadblock,
werenot explored
by the Prosecution
(Muganga
doesnot appearto havebeen
victim
ofTrafipro).1154

982.Witness
Z testified
thatin theperiod
during
whichhe staffed
theroadblock
approximately
1,000people
passed
through
it eachday.According
to thewitness
"...
[T]hey
werehums,as tutsis
couldnotpassby theroadblock
as theywerein hiding.

1154
Transcriptsof 7 February2000 pp. 23-24.

324
 ~-~ ~’~ , ICTR-95-1A-T

~~ ta
So5
’m5
at thatpoint
in timeitwasonlythehutus
thatwerepassing
attheroadblock.
He stated
thatbesides
Bigirimana
andJudith
he "didn’t
seeanyotherTutsis
because
theTutsis
already
knewthattheroadblock
was in placeandtherefore
theywere
afraid
’’1156
topass
byit.

983.On theotherhand,Prosecution
Witness
AA claimed
to haveseenbodies
close
totheTrafipro
roadblock.
Hetestified:

"There
weredeadbodies
also
closetothecommunal
officebutinfacttheinstructions
or
theorders
thatweregiven
werethattherefugees
shouldbekilled
atKibuye.
Sothese
deadbodies
attheroadblocks
orinthecommunal
office wererefugees
whowere
notable
¯ ¯ ,1157
togotoKlbuyeandwhocame
lateandweretherefore
killedthere.

984.Witness
AA was askedfor moreinformation
regarding
the location
of the
bodies.
He saidthattheywere"close
to thatroadblock
whichis notfarfromthe
communal
office.
It’slikea distance
fromwhereI’msitting
to wheretheprosecutor
is standing.
’’1158
Asked
whether
thebodies
he sawwereattheTrafipro
roadblock,
the
witness
answered
thattheyweregathered
closeto thebureau
communal.1159

985.The Chamberis not persuaded

thatthe bodiesseenby WitnessAA were
victims
of theTrafipro
roadblock.
It is reasonably
possible
thatthe remaining
refugees
werevictims
of attacks
in andaround
the communal
office,
possibly
by
Abakiga
(V.4.3).
Suchattacks
areknownto havebegunshortly
afterthemaingroup
of refugees
was dispatched
to Kibuye
townon 13 April1994.Evenif Witness
AA
meantto linkthebodies
he sawto theoperations
of theTrafipro
roadblock,
this
wouldnotbe in conformity
withthetestimonies
of Witnesses
Y andZ, whostaffed
theroadblock
andtestified
thatonlytwoTutsi
werekilled
inconnection
withit.

986.TheProsecution
alleged
thatevenif theAccused
didnotknowof themurder
ofJudith
atthetimeoftheoffence,
he would
havefound
outabout
it later,
and,upon
beinginformed
of thecrimeshould
haveinitiated
an investigation
to identify
and

1155Transcripts
of8 February
2000pp.55-56.
1156Ibid.
pp.75-76.
1157Transcripts
of10February
2000p. 58.
1158
Ibid.p.59.
1159
Ibid.p.60.

325
 "" ~ ICTR-95-1A-T

punish
theperpetrators.
ButtheChamber
believes
thattheclaim
thatJudith’s
murder
waspublic
knowledge
in Mabanza
commune
lackssufficient
foundation.
The record
reveals
onlythatWitness
Z saidthatJudith
wasthewifeof a "medical
doctor"
atthe
Rubengera
medical
centre.
116°Witness
Y testified
thatJudith
andherhusband
were
family
friends.
Thehusband
helped
thewitness
whenhischildren
became
ill.
1161In
hisstatement
to investigators
thewitness
saidthatJudith’s
husband
wasa "medical
assistant".1162

987.Moreover,
Witness
Y testified
that"I didnotspeakwith[theAccused]
about
thismatter
[thetwokillings]
because
hislevelwasnotthesameas mineandthere
was63
’’11
no chainof communication
between
himself
andmyself.

988.In summary,
the indicium
of theAccused’s
contemporaneous
presence
in the
vicinity
ofthecrime
inthecaseof Judith,
together
withtheindicia
of geographical
location,
timeandmodusoperandi
in relation
to thekillings
of bothBigirimana
and
Judith,
combined
withthefactthatno morethantwopeople
werekilled
in a period
whenattacks
on civilians
werealleged
to be common
- telling
though
theseindicia
mayseemwhentakenin combination
- arein theChamber’s
assessment
nevertheless
notsufficient
to provethattheAccused
hadtherequisite
mensrea.Thefindings
in
Celebici
andAleksovski
weremadeon a muchfirmer
foundation.

989.It follows
thattheProsecution
hasfailed
to provebeyond
reasonable
doubt
thattheAccused
is responsible
as a superior
forkillings
committed
in connection
withthe Trafipro
roadblock
by Rushimba
andWitnesses
Y and Z. Therefore
the
Accused
isnotliable
under
Article
6(3)forthemurders
ofBigirimana
andJudith.

1160
Transcripts
of8 February
2000
p.66.
1161
Transcripts
of7 February
p.41.
1162
Defence
Exhibit
No.64.
1163
Transcripts
of7 February
2000p.60.

326
 5.8Gitikinini
Roadblock

990.Theroadblock
at Gitikinini
wassituated
neartheGitikinini
market,
notfar
fromthebureau
communal.
Fivewitnesses
provided
testimony
aboutthisroadblock.

Deliberations

991.Prosecution
Witness
B testified
thatshesaw roadblocks
at Gitikinini
and
Trafipro.
Theywerestaffed
(shedidnotdistinguish
between
the two)by local
citizens,
communal
police,
theassistant
bourgmestres
Nsengimana
andSemanza,
and
Witness
Y. SheneversawtheAccused
workat theroadblocks,
although
according
to
herhe passed
by or through
themon hiswaybackandforthbetween
thecommunal
office
andhishome]
164 Thewitness
stated
thatpersons
staffing
theroadblocks
specialised
incertain
tasks:

"When
someone
passed
byandtheydidnotrecognise
theperson,
theywould
askfortheir
identity
cardandwhen
they
realised
thattheperson
wasa Tutsi,
theperson
waspassed
to
another
person
responsible
forundressing
theperson.
Hereonthisroadblock
people
were
killed
afterbeingundressed.
So thereweresomewhohadtheresponsibility
for
undressing
’’116s thepeople,
others
whohadtheresponsibility
ofkilling
them.

992.Witness
B testified
thatno onewaskilled
at roadblocks:
"People
wererather
threatened,
beaten
andtheywerekilled
nextto a massgrave."
Sheaddedthatwhen
shesawpeople
beingkilled,
theyhadbeenapprehended
at thebarrier
andtaken
elsewhere.
1166 Deadbodies
werenotwanted
around
theroadblocks.

993.Witness
B didnotindicate
whichif anyof thepersons
mentioned
abovewere
responsible
for undressing
andkilling
Tutsidetained
at theroadblocks,
andin
particular
at Gitikinini.
During
cross-examination,
thewitness
explained
thatshehad
witnessed
onlytwodetained
persons,
Pastor
Muganga
anda girlnamedEsperance.
Shetestified
thatshehadseenEsperance
ledaway,having
firstbeenundressed,
by
"those
whomanned
theroadblock"
at Gitikinini.
Thewitness
didnotclaimto have

1164
Transcripts
of 24 January
2000pp. 66-67.
1165Ibid.
p.68.

327
¢(~,~\Nj ICTR-95-1A-T

seenEsperance
killed
andprovided
no evidence
thatshewasin factkilled.
Shesaid
that"apart
fromthese
twooccasions
otherpersons
weretelling
usthatthisishowit
happened".
1167

994. In relation
to Pastor
Muganga,
Witness
B said:

"[A.]
...I sawhim.Hewasescorted.
Hewasundressed
andtaken
towards
thecommune.
Later
onthey
wenttokill
himonthefootball
field.
[Q.]
Yousayhewasundressed
attheroadblock,
isthatcorrect?
[A.]No,I didnotseehimattheroadblock
butI sawhimwalking
fromtheroadblock
accompanied
bypeoplewhokeptthatroadblock
soI drewtheconclusion
thatthose
were
thepeoplewhoundressed
him."

[Q.]
Soyoudidn’t
seehimkilled
attheroadblock.
Isthat
correct?
[A.]
’’116
No,noonewasever
8 killed
attheroadblock.

995.Witness
Z, one of the admitted
killersof Muganga
(V.4.2),
statedthat
"Muganga
diedbefore
[Gitikinini]
roadblock
wasmounted
andallthosepeople
who
accompanied
me, noneof themwas withme at the roadblock".
1169Askedmore
generally
abouttheGitikinini
roadblock,
Witness
Z answered
that"therewasa
roadblock
atGitikinini
intheearly
days,
butthatdidn’t
lastandata given
point
in
time,
117°itwasdismantled".

996.Prosecution
Witness
AA mentioned
threeroadblocks:
at Kukabuga;
in frontof
thecommunal
office;
andat Gitikinini.
He testified
thattheAccused
hadthemsetup
to prevent
infiltration
by Inkontanyi;
1171he addedthat"a youngmanwhomounted
a
roadblock
saidthatit wasBagilishema
whosetthem up".
1172Witness
AA declared
in
his statement
of September
1999thatWitness
Z toldhim thatthe Accused
had

I166Ibid.p 96andp.101.
1167Ibid.pp.93-94,96and101-102.
1168Ibid.pp.94and101.
1169Transcripts
of8 February
2000pp.49-50.
117oIbid.
p.78.
1171
Transcripts
of10February
2000p.56.
1172Ibid.pp.56-57.

328
 ICTR-95-1A-T

.......................................................................................................
t4s’4
ordered
theroadblocks
at Trafipro,
Gitikinini
andKukabuga
to be set up.
1173The
witness
didnotclaimto haveseenanykillings
or bodies
in theproximity
of the
Gitikinini
roadblock.

997.TheAccused
1174 denied
thathe hadsetup anyroadblock
otherthanTrafipro.
Defence
Witness
ZD testified
thatwhenhe passed
through
Gitikinini
around
17 April
1994,therewasno roadblock
thereJ
175Defence
Witness
RA claimed
in relation
to
theGitikinini
roadblock
that"there
wasno rulegoverning
whenit waserected
and
whenit wasnot,butin anycase,it wasnotpermanent.
’’1176
Thewitness
passed
through
theroadblock
onceandtestified
thatcivilians
whostaffed
theroadblock
did
notcheckthewitness
or thepeople
whowerewithher.Witness
RA didnotmention
seeing
anyofficials
attheGitikinini
roadblock.

Finding_s

998.WitnessAA claimedthathe was toldthatthe Accusedhad orderedthe

establishment
of Gitikini
roadblock,
amongothers.
Thisis hearsay
evidence
andmust
be treated
withcaution.
Witness
Z, whoseemsto havebeenWitness
AA’ssource
on
thispoint,mentioned
Gitikinini
as a roadblock
in the earlyperiod,
whichwas
dismantled
at an unspecified
time.He did not mentionthe Accusedin this
connection,
although
hestated
thattheAccused
"wasawareof theexistence
of these
roadblocks"
because
theywerenotfarfromthecommunal
office.
1i77

999.Witness
B’stestimony
doesnotallowtheconclusion
thatPastor
Muganga
was
apprehended,
undressed
or killed
at theGitikinini
roadblock.
Thiswitness
is at any
ratecontradicted
by Witness
Z, whosaidthatMuganga
diedbefore
theroadblock
at
Gitikinini
waserected.
Otherwitnesses
whotestified
aboutMuganga
(Wimesses
andAB)didnot mention
Gitikinini
roadblock
in connection
withhisdeath.
They
located
theincident
within
thecompound
of thebureau
communal
andat thefootball

1173
Defence
ExhibitNo.66.
1174Transcripts
of7 June2000p.141.
1175
Transcripts
of3 May2000p.21.
1176
Transcripts
of 2 May2000p. 96

329
 ICTR-95-1A-T
i ~’!~*~

stadium
(V.4.2).
Consequently,
the Chamber
cannot
conclude
thatthe killing
Muganga
wasrelated
to theoperation
of theGitikinini
roadblock.

1000.Wimess
B wastheonlywitness
to referto Esperance.
Shetestified
thatshe
sawEsperance
beingledaway,buttheevidence
adduced
on thispointlacksdetail
andis incomplete.
TheProsecution
did notestablish
theidentity
of thosewho
allegedly
ledthegirlawayfromthe roadblock,
in particular
whether
theywere
ordinary
civilians
or persons
accountable
to the Accused.
Noris it clearwhat
happened
toEsperance.
There
isno clear
evidence
thatshewaskilled.

1001.Forthesereasons,
theChamber
findsthattheProsecution
hasfailed
to prove
thatrelevant
offences
werecommitted
against
PastorMuganga
or Esperance,
or
againstany otherpersons,
in connection
withthe Gitikinini
roadblock.
The
Prosecution
hasalsofailed
to demonstrate
thattheAccused
wasresponsible
for
setting
up,oracquiescing
tothecontinuing
operation
of,theroadblock
intheperiod
covered
bytheIndictment.

5.9 GacacaRoadblock

Deliberations

1002.OnlyWitness
A referred
to thisroadblock,
"atthejunction
of theroadthat
leads
to Gacaca
Sector
andtheother
roadthatleadsto Bagilishema’s
house".
He said
thattheroadblock
wasclose
to theofficial
residence
of theAccused
during
thewar.
In April1994,policemen
and Interahamwe
staffed
the roadblock
at Gacaca.
The
witness
identified
oneroadblock
attendant
as Sanani,
an Interahamwe.
He further
testified
to seeing
people
being
killed
atGacaca.
Hisanswer
to thequestion
whether
he couldidentify
anyof thevictims
wasunclear:
"People
camedownfromsecteurs
thatwerefurther
up andI wastowards
thebottom
andeveryday
I sawbodies
which
werebrought
down...andeaten
by dogs.
’’1178
No other
witness
located
a roadblock
at

1177 ~ .¯
1178lranscrlpts
of 8 February
2000p.78.
Transcripts
of 17 November1999pp.56-58,
atp. 57.Theoriginal English
translation
hasbeen
improved
withreferenceto theFrenchtranscript,
at p. 77:"Desgensdescendaient
dessecteurs
qui

330
~,~’V.
 ~’* ICTR-95-1A-T

~~@ 14 ’2
.......................................................................................................

Gacaca
or described
a roadblock
in termssimilar
to thatof Witness
A. TheAccused
denied
having
ordered
a roadblock
atGacaca
to beset up.
1179

Findines

1003.Witness
A testified
to having
seenbodies
at Gacaca
roadblock
butdidnot
provide
clearor detailed
evidence
on thispoint.
Whenaskedwhether
he wasableto
recognise
anyof thosekilled,
hisresponse
appeared
to suggest
thatthebodies
were
brought
to theroadblock
afterthevictims
hadbeenkilled
elsewhere.
Thewitness
supplied
no further
details
abouttheInterahamwe
called
Sanani,
"whocameto that
roadblock
quiteoften",
us0Nordidhe nameor describe
thepolicemen
he claimed
to
haveseenthere.
Thewitness
didnottestify
thattheAccused
wasin anywaylinked
to theGacaca
roadblock.
Forthesereasons,
theChamber
is unable
to findthatthe
Accused
isresponsible
forcriminal
activities
alleged
inapparent
connection
withthe
Gacaca
roadblock.

5.10Roadblocks
Generally
-Accused’s
Responsibility
in Negligence

1004.
Thereisno doubt
thata roadblock
setup during
theperiod
inquestion
carried
a highriskforTutsi
civilians.
TheAccused
would
haveknown
this.
He testified,
with
reference
tothewarning
contained
intheAttestation
headdressed
to fivestaff
ofthe
Trafipro
roadblock
(V.5.4),
that"contrary
to whatwashappening
in otherareas,
didnotwantto makethesamemistakes",
u81Defence
Witness
RA testified
thaton
17 April1994,shewentwithothers
to seetheAccused
regarding
thesecurity
of
Tutsi
Sisters.
TheAccused
advised
themnotto go to Kibuye
as roadblocks
hadbeen
setupalongtheway(itis notclear
whether
theroadblocks
referred
to werewithin

6taient
nn peuplushautsetchaque jourmoij’rtais
cach6
plusbasetchaque
jourjevoyais
descorps,
descadavresqui6taient
trainrsetemport~s
pardeschiens."
1179
Transcripts
of7 June2000p.141.
1180
Sananiwasalsomentionedby Witness
O inconnection
withthekilling
ofPastorMuganga.
118l
Transcripts
of7 June2000p.151.

331 ~
Deliberations

1005.As indicated
earlier
(V.5.3),
theAccused
maybe foundresponsible
forcrimes
committed
in connection
withroadblocks
in Mabanzacommuneif he (as the
commune’s
official
in charge
of orderandsecurity)
established
or permitted
the
establishment
of a systemof roadblocks
withoutadequately
supervising
its
operations.
A conviction
would
liein criminal
negligence.

1006.Thisbasisforcriminal
responsibility
was notarguedexplicitly
by the
Prosecution
in itswritten
andoralsubmissions,
u83 However,
para.4.14of the
Indictment
alleges
thatthe Accused
"permitted"
the operation
of roadblocks.
Moreover,
questions
as to whattheAccused
should
havedoneweregenerally
raised
by theChamber
during
theproceedings.

1007.
InthecaselawofthisTribunal,
Akayesu
contains
onlypassing
reference
to the
level
ofnegligence
thatmustbeproven
forliability
inrelation
toa statutory
crime:

"The
Chamber
holdsthatitisnecessary
torecall
thatcriminal
intentisthemoral
element
required
foranycrimeandthat,
where
theobjective
istoascertain
theindividual
criminal
responsibility
ofa personaccused
ofcrimesfalling
withinthejurisdiction
of the
Chamber,
suchasgenocide,crimes
against
humanity
andviolations
ofArticle
3 Common
totheGeneva
Conventions
andofAdditional
Protocol
IIthereto,
itiscertainly
properto
ensure
thatthere
hasbeenmalicious
intent,
or,atleast,
ensurethatnegligence
wasso
serious
astobetantamount
toacquiescence
orevenmalicious
intent.
’d184

1008.Fromthe ICTY,to dateonlythe BIaskic

casehas touched
uponcriminal
negligence.
TheTrialChamber
in thatcasewasconcerned,
interalia,withthree
Bosnian
villages
whichcameunderattack
by troops
underthecontrol
of General

1182Transcripts
of2 May2000pp.49-50.
TheFrench
version
reads:
"I1nousa faitd6conseill6
d’aller/i
Kibuye,
~tcausequ’on
avait
misdesbarri~res
surlaroute,
versKibuye.
I1nousa dit:’Sivousy rendrez
I/t,
[les]soeurs
seront
tu6es
~tlabarri~re.’"
Seep.57.
1183InitswrittenClosing
Remarks
concerning
complicity
ingenocide,
theProsecution
argued
thatthe
Accused
"musthavebeenaware"of theroadblocksand"oughtto haveknown"thattheprincipal
offender
intendedthedestruction
of theTutsigroup(paras.190-193).
Thearguments
relating
Article
6 (3)oftheStatute
didnotspecifically
address
theissue
(p.97para.
101).

332
 ICTR-95-1A-T

~ ~

.......................................................................................................

Blaskic.
TheChamber
accepted
thatthevillages
wereof military
interest
suchas to
justify
theirbeingattacked.
However,
theattacks
ledto destruction,
pillage
and
forcible
transfer
of civilians.
TheTrialChamber
found
thattheaccused
usedforces
which
he knewweredifficult
to control,
at theverytimewhentheywerebeing
called
intoquestion
fortheperpetration
of earlier
crimes.
TheChamber
concluded
that
Blaskic
"isresponsible
forthecrimes
committed
inthethree
villages
on thebasis
of
his negligence,
in otherwordsfor havingorderedactswhichhe couldonly
reasonably
1185 haveanticipated
would
leadtocrimes".

1009.Thepresent
Chamber
hasalsoconsidered
theTokyoJudgement
of theIMTFE,
whichfounda number
of accused
guilty
of warcrimes
arising
fromtheirnegligent
administration
of prisoner-of-war
campsandconstruction
projects
utilising
camp
labour,
leading
tothedeath
ofprisoners
ofwar.1186Inrelation
tooneof theaccused,
HeitaroKimura,who was Commander-in-Chief
of the BurmaAreaArmyand who
approved
theemployment
of prisoners
of waron theconstruction
of theBurma-Siam
railway,
theTribunal
heldthatan Armycommander’s
dutyin suchcircumstances:

"...isnotdischarged
bythemereissueofroutine
orders,ifindeed
suchorders
were
issued.
Hisduty
istotakesuchsteps
andissue
such
ordersaswillprevent
thereafter
the
commission
ofwarcrimesandtosatisfy
himself
thatsuchorders
arebeing
carried
out.
This
hedidnotdo.Thushedeliberately
disregarded
hislegalduty
totakeadequate
steps
toprevent
breaches
ofthelawsofwar."1187

1010.In testing
fornegligence,
theordinary
principles
of thelawof negligence
applyto determine
whether
an accused
personwas in breachof a dutyof care
towards
hisorhervictim.
Thenextquestion
is whether
thebreach
caused
thedeath
of
thevictim
and,ifso,whether
itshould
be characterised
assoserious
asto constitute
a crime.

1184Akayesupara.
489.
1185Blaskic
paras.560-562.
1186 SeetheTribunal’s
majority
Judgement,
as reprinted
in TheTokyoJudgment,
R61ing
andR~iter

ted.)(Amsterdam:
University
PressofAmsterdam,
1977),vol.
lS7Ibid,
p.452;seealsothedecisions
onTojo(pp.462-63),
Shigemitsu
(p.458)andHata(p.

333
~- ~V r
t~/~ ~’!~ ICTR-95-1A-T

1011.FortheProsecution
in thepresent
caseto establish
criminal
negligence
in
relation
to roadblock
operations
it wouldhaveto provethefollowing
fourelements,
inaddition
totheAccused’s
public
dutyinmatters
ofsecurity:

(i) thatone or morecrimeswerecommitted

in connection
withidentified
roadblocks;
(ii)thattheAccusedwasresponsible
fortheadministration
of thoseroadblocks
because
he wasinvolvedin theirestablishment,
acquiesced
to theircontinuing
existence,
or moregenerally
because
theycameunderhiscontrol
as bourgmestre;
(iii)thatmeasures,
if any,takenbytheAccused to detect
andprevent
crimes
connection withthe statedroadblocks were clearlyinadequate in the
circumstances;
(iv)andthatthecrimesin question
would
havebeendetectedorprevented
hadthe
Accusedadministered
theroadblocks withreasonablediligence;
or, in other
words,
thatthecrimes
flowedfromthebreach
of dutyat(iii).

1012.If theProsecution
failsto proveanyof theseelements
beyond
reasonable
doubt,
theAccused
fallsto be acquitted
on thisground.
It is fortheChamber
to
decide
whether,
in allthecircumstances,
andhaving
regard
to theriskof death
involved,
the Accused’s
conductin relationto the roadblocks
was grossly
negligent.1188

1013.SixProsecution
witnesses
hadsomething
of substance
to sayaboutcriminal
activity
or evidence
of crimes
in thevicinity
of roadblocks
in Mabanza
commune.
Thisevidence
wasconsidered
in fulldetail
above.

In summary:
Witnesses
Y andZ testified
to thekillings
oftwonamedindividuals
(Judith
and
Bigirimana)
in connection
withtheTrafipro
roadblock.
Witness
Y claimed
also
tohavekilleda third
person.
Witness
AAtestified
toseeing
bodies
lying
close
to theTrafipro
roadblock
and
thebureaucommunal.
Witness
B described
a method
by whichTutsidetained
at roadblocks
were
processed
andkilled;
shenamedtwopersons (Muganga
andEsperance),
whom

1188
InR.v.Adomako [1994]
3 W.L.R.
288,LordMackay
said
that,inCommon
Lawjurisdictions,
"[t]he
essence
ofthematter
whichissupremely
a jury
question
iswhether
having
regard
totherisk
of
death
involved,
theconduct
ofthedefendant
wassobadinallthecircumstances
astoamount
intheir
judgment
toa criminal
actoromission"
(pp.
295-296).

334 @ ~t,[~
 ¸
i~ ~’L~
~

ICTR-95-1A-TI44g
:~:~~ ~ .....
.......................................................................................................

shebelieved
werevictims
of thatmethod,
being
ledawayfromtheGitikinini
roadblock.
Witness
AB asserted
thegeneral
proposition
thatTutsiwerekilled
at
roadblocks;
fromherexperience
shewasableto nameonlyonesuchvictim
(Judith).
Witness
A, in anapparent
referenceto theGacacaroadblock,
saidthatevery
dayhe sawbodiesbrought
downby people fromthesecteurs.

Finding.~

1014.
Oncloser
inspection,
thetrial
record
reveals
thatonlytwokillings
- those
of
Bigirimana
andJudith
- canbe ascribed
withcertainty
to a roadblock
in Mabanza
commune.
Forreasons
givenearlier,
the Chamber
is notconvinced
by Witness
B’s
testimony
thatMuganga
andEsperance
werekilled
by persons
staffing
theGitikinini
roadblock.
Norcanit findthatthecorpses
seenby Witnesses
AA andA werelinked
to thefimctions
of theroadblocks
at Trafipro
andGacaca,
respectively.
TheChamber
hasgivenitsreasons
forbeing
unable
to findtheAccused
guilty
either
of aiding
and
abetting
or of having
command
responsibility
forthekillings
of Bigirimana
and
Judith.

1015.Thequestion
thatremains
is whether
theAccused
is nonetheless
liable
in
negligence
forthetwodeaths.
Theevidence
doesnotjustify
thisconclusion.
In the
first
place,
given
thattheProsecution
hasmadeoutonlytworoadblock-related
deaths
inMabanza
commune
in thewholeApril-to-July
period
of1994,it isdifficult
forthe
Chamber
to findthatthesystem
of roadblocks
purportedly
erected
by theAccused
waspoorly
supervised.

1016.Second,
the Chamber
is boundalsoto consider
the documentary
evidence
whichdemonstrates
thattheAccused
tooktheapparently
reasonable
measure,
albeit
in thefirstweekof June1994,of setting
up a commission
to monitor
theconduct
of
staff
assigned
toTrafipro.
TheAccused
saidin thisconnection:

"AmongstthepeoplewithwhomI wasworking,
therewerethosewhowouldgo beyond
whattheyweresupposed
todoandwewantedtobringthembacktoorder,andyouwill
seethatinmyletterconcerning
thecommittee
forrestoring
peace.
Wetried
todeal with
thisissue.
I donotthink
that
[itis]surprising
ifthereisoneperson
amongst
thisteam

335
 "-’ ~*’~ ICTR-95-1A-T

144/-
.......................................................................................................

whomademistakes.
But,theyknewthat
theycould
bepunished.
ThisiswhyI setupthis
verification
’’I189 commission
sothat
theycould
direct
andsupervise
these
people.

1017.However,
the Chamber
alsoobserves
thatwhenthe Accused
was askedto
recount
theoralinstructions
he gavetotheTrafipro
appointees
inlateApril
orearly
May,he answered
as follows:

"[Q.]
Didyougiveanyinstruction
beforethisendofApril,
beginning
ofMaytopeople
manning
theroadblocks,
andinthiscontext
theTRAFIPRO
roadblock?
...
[A.]
I issued
instructions
according
toindications
[inthePrime
Minister’s
circular
dated
27April1994].
I wasimplementing
whatinstructions
I hadbeenissued
bytheprime
minister
through
theprrfet
....
[Q.]Mr.Bagilishema,
didyouissueanyinstruction
toanyroadblocks,
inparticular
TRAFIPRO,
around
thestart
of [May]?
[A.]
Yes,
Mr.President.
[Q.]
Orally
orinwriting?
[A.]
Verbally.
[Q.]Whatwasyourwording
whenyoudidthat?
...
[A.]I spokewiththecommunal
council...because
wehadtalkedabout
thisduring
the
meetingof thecommunal council
we determined
thecriteriaforrecruitment,
and
furthermore,
I relayed
thedirectives
toalltheconseillers,
anditwasduring
that
meeting
thatweinvitedpeoplewhoweresupposed
tomantheroadblock
andweweretelling
them
what
theirfunctions
wouldbe."tI
9o

1018.Evenif theindirectness
of thisreplyistakentomeanthatclearly
formulated
instructions
(inaddition
to a formal
reporting
system)
werelacking
priorto3 June
1994,thelackof suchstandard
elements
of a prudently
runsystem
mighthavebeen
offsetby frequent
monitoring
of the roadblock
by the Accusedhimself.
The
Accused’s
office
wasonlya shortdistance
fromTrafipro,
andin coming
andgoing
fromtheoffice
he should
havehaddailycontact
withTrafipro
staff.
Needless
tosay
thisarrangement
didnotsuffice
torepress
illicit
conduct
attheroadblock,
butitdoes
inhibit
theconclusion
thattheAccused
setup a danger-fraught
system
to whichhe
simply
turned
a blind
eye.

1189
Transcripts
of9 June
2000
p.50.
1190
Ibid.
pp.42-43.

336
~~’~’~"~" ~’~ ICTR-95-1A-T

144
.......................................................................................................

1019.Third,
anyassessment
of theAccused’s
culpability
fordereliction
of dutymust
be informed
by thestateof affairs
in Mabanza
commune
at thetimeof thealleged
breach,
including
theresources
available
to theAccused.
TheChamber
hasalready
discussed
evidence
to theeffect
thatin thesecond
halfof April1994thecommune
was at varioustimesoverrun
by Abakiga(IV.4.7).
Withoutknowledge
of when
Bigirimana
andJudith
werekilled
theChamber
cannot
exclude
thepossibility
that
theirdeaths
occurred
on dayswhenit wouldhavebeenunreasonable
to expect
the
Accused
tohavebeenfully
incontrol
of hisadministration’s
operations,
theTrafipro
roadblock
included.

1020.Finally,
someevidence
citedabovesuggests
thatBigirimana
andJudith
were
killed
forpersonal
reasons,
at thebidding
of Mugishi
andMutiganda.
It isclearthat
theexistence
of personal
motives
isnotsufficient
to change
thenature
of thecrime
fromgenocide
to thelesser
crimeof murder,
noris it sufficient
to absolve
the
Accused.
1191It wasforeseeable
to theAccused
at thetimethatan inadequately
supervised
roadblock
mighthavebeenstaffed
by persons
interested
in settling
personal
scores.
Nonetheless,
doubtremains
as to whether
Bigirimana
andJudith
wouldhavesurvived
butfortheAccused’s
alleged
negligence.
TheProsecution
must
demonstrate
notonlydereliction
butalsothattheoffences
flowed
fromit.

1021.In viewof theabove,

theChamber
findsthattheProsecution
hasfailed
to
provebeyondreasonable
doubtthe Accused’s
wantondisregard
for high-risk
activities
atroadblocks.
In particular,
theProsecution
hasfailed
toprove
thathaving
established
theTrafipro
roadblock,
theAccused
neglected
to regulate
theconduct
of
those
staffing
it,thuscausing
thedeaths
ofBigirimana
andJudith.

5.11Conclusions

1022.TheChamber
recalls
thebasicelements
of paragraph
4.14of theIndictment,
whoseopening
sentence
reads:

"Ignace
Bagilishema
acting
in concert
withothers
including
Clement
Kayishema,
Semanza
Celestin,
Nsengimana
Apollinaire,
Nzanana
EmileandMunyampundu,
between

1191
SeeTadic
(AC)
paras.
238ff.

337
 1/445
9 Apriland30 June1994permitted
andencouraged
Interahamwe
militiamen
to setup
roadblocks
atstrategic
locations
inandaround
Mabanza
commune."

1023.Thisproposition
is partially
supported
by documentary
evidence,
in theform
of a letter
fromPrefect
Kayishema
to theAccused,
dated30 April1994,instructing
himto setup andstaffroadblocks.
1192TheProsecution
hasnotshownthattheother
alleged
accomplices
of the Accused
wereassociated
withthe establishment
of
Trafipro
or anyotherroadblock.
TheChamber
is prepared
to inferthattheAccused
"permitted"
thesetting
up of roadblocks
at Gitikinini
andGacaca,
butthereis no
evidence
thathe actively
"encouraged"
theirestablishment
or continuing
operation.
Themeaning
of"Interahamwe"
hasbeendiscussed
above(IV.4.6).
Thereis no clear
evidence
thatroadblocks
in Mabanzacommunewerestaffedby membersof the
MRNDyouthwingor itsmilitia.
Taking
thetermin itsbroader
sense,
of "armed
Hutucivilians",
it couldbe inferred
thatTrafipro
andotherroadblocks
wereindeed
staffed
by "lnterahamwe",
butthentheincriminating
connotations
of thetermwould
be muted.

1024.Thenextelement
of paragraph
4.14states:

"Theprimary
purpose
ofthesaidroadblocks
wastoscreen
individuals
inorder
toidentify
andsingle
outTutsis."

1025.TheAccused
testified
thatthepurpose
of theTrafipro
roadblock
wasto block
theinfiltration
of RPFpersonnel
andweapons.
1193It wasa feature
of language
employed
at thetimeoftheevents
in Rwanda
thata statement
apparently
referring
to
members
of theRPFcouldalsobe understood
to connote
Tutsipersons
in general.
Wimess
Z asserted
thattheAccused
intended
thisbroader
reference
whenhe toldhim
thattheroadblock
at Trafipro
wasneeded
to apprehend
"enemies".
1194However,
for
reasons
givenalready,
theChamber
is notconvinced
by Witness
Z’sincriminations
of the Accused.
It has not beenestablished
thatthe Accusedactually
gave
instructions
toscreen
andkillTutsi,
andtheevidence
concerning
theactivities
at the
Trafipro,
Gitikinini
andGacaca
roadblocks
doesnotdemonstrate
thatthiswasthe

1192Prosecution
ExhibitNo. 77a.
1193
Transcripts
of 7 June2000pp. 142-143.

338
 1026.
Paragraph
4.14further
states:

"Between
9 April
and30June1994Ignace
Bagilishema
ordered
thedetention
ofseveral
Tutsis
atthevarious
roadblocks
within
Mabanza."

1027.TheProsecution
has notadduced
anyevidence
apartfromthatof Witness
Z
thattheAccused
ordered
thedetention
of"several"
Tutsicivilians
at roadblocks.
The
testimony
of Witness
Y doesnotgivesupport
forthisview.
1195In thecasesof
Bigirimana
andJudith,
there
isno evidence
thattheAccused
ordered
their
detention.

1028.Paragraph
4.14concludes:

"Suchdetainees
werehanded
overtoIgnace
Bagilishema
andweresubsequently
killed
by
thecommunal
police,
theGendarmerie
Nationale,
Interahamwe
andarmed
civilians
under
hisauthority
andcontrol."

1029.TheProsecution
hasledno evidence
in support
of thisallegation.
Theonly
relevant
evidence
comesfromthe Accused
himself
whotestified
abouta person
having
beenbrought
to himfroman unspecified
roadblock.
Thecaptive
wasfoundto
have"anti-personnel
mines":

"Wehandedhimoverto thegendarmerie
whichwasbasedat theChinesecamp...
because
inJuneandthebeginning
ofJuly,thegendarmes
wereattheChinese
camp.
He
was96
’’11
supposed
tobequestioned
andhewasconsidered
asa prisoner
ofwar.

1030.
Therecord
contains
nofurther
information
about
thisperson
orhisfate.

1031.TheProsecution’s
original
claimwasthatit wouldlinktheAccused
with
"death
traps
...intheformofroadblocks
...erected
at ornearalljunctions
toscreen
identity
cardsforthepurpose
of netting
Tutsis".
1197In thefinalanalysis,
the
Prosecution
was ableto showthatonlyone roadblock
in Mabanzacommune,

1194
Transcripts
of 8 February
2000pp.38-40.
1195Defence
ExhibitNo. 64.
1196Transcripts
of 9 June2000p. 120.

339
 " ~* ICTR-95-1A-T

.......................................................................................................

Trafipro,
becamea trapand thecauseof deathof two persons.
TheChamber
has
explored
therelevant
bases
ofliability
in Articles
6(I)and6(3)oftheStatute
and
notconvinced
thattheProsecution’s
charges
aresupported
by sufficient
evidence.

1197Transcripts
of 27October
1999p. 33.

340
 VI. VERDICT

FOR THE FOREGOINGREASONS,having consideredall the evidenceand the

arguments
of theParties,
theTrial
Chamber
finds
theAccused,
Ignace
Bagilishema:

Unanimously,

Count
1: NotGuilty
of Genocide

Count
6: Not Guiltyof Serious
Violations
of Article
3 common
to theGeneva
Conventions
andofAdditional
Protocol
II(Article
4 (a)oftheStatute)

Count
7: Not Guilty
of Serious
Violations
of Article
3 commonto theGeneva
Conventions
andofAdditional
Protocol
II(Article
4 (e)oftheStatute)

Bya majority,
Judge
Gttney
dissenting,

Count
2: NotGuilty
of Complicity
in Genocide

Count
3: NotGuilty
of Crimes
against
Humanity
(Murder)

Count
4: NotGuilty
ofCrimes
against
Humanity
(Extermination)

Count
5: NotGuilty
of Crimes
against
Humanity
(Other
Inhumane
Acts)

Accordingly,
the Accused
IgnaceBagilishema
is acquitted
on all countsin the
Indictment.

341
 ICTR-95-1A-T

Pursuant
to Rule99 (A)of theRulesof Procedure
and Evidence,
theTrialChamber
orders
theimmediate
release
of Ignace
Bagilishema
fromthe Tribunal’s
Detention
Facilities
anddirects
theRegistrar
tomakethenecessary
arrangements.

Thisorder
is without
prejudice
toanysuchfurther
orderthatmaybemadeby theTrial
Chamber
pursuant
to Rule99 (B)of theRules
of Procedure
andEvidence.

Judge
Asokade Z. Gunawardana
appends
a Separate
Opinion
to thisJudgement.

JudgeMehmetGaneyappends
a Separate
and Dissenting
Opinion
to thisJudgement
pertaining
toCounts
2,3,4 and5.

Arusha
7 June2001

aLL"*"

ErikMose Asokade Z. ~t{nawardana MehmetGttney

Presiding
Judge Judge Judge

(Seal
oftheTribunal)

342
 International
CriminalTribunalfor Rwanda
TribunalP6nalInternational
pourle Rwanda
UNITEDNATIONS
NAT[0NSUNIES
TrialChamberI

ORIGINAL: ENGLISH

Before: JudgeErikMose,Presiding
JudgeAsokade ZoysaGunawardana
JudgeMehrnetGtiney

Registry: Mr Adama Dieng

Delivered
on:7 June2001

O ~"

THE PROSECUTOR
Versus
IGNACE BAGILISHEMA

ICTR-95-1A-T

Separate
Opinion
of JudgeAsokade Z. Gunawardana

TheOffice
of Prosecutor:

Ms JaneAnywarAd0ng
Mr Charles
Adeogun-Phillips
Mr WallaceKapaya
Ms Boi-Tia
Stevens

Counsel
fortheDefenee:

Mr Frangois
Roux
Mr Maroufa
Diabira
Ms H61eyn
Ufiac
Mr WayneJordash
 Prosecutor
versusIgnaceBagilishema,
ICTR-95-1A-T
Separate
Opinionof JudgeAsokade Z. Gunawardana

CONTENTS

PART I

The Aeeused’s
Pleaof Inadequacy
of Resources

1. TheFactual
Statement
of the Plea

2. TheLegalPosition
of thePlea

PART II

TheConduct
of the Accused
Priorto the Events
in 1994

1. ThePriorConductof theAccused
as Testified
to by Witnesses

2. TheResponse
of the Accused
to theThreat
of RPFInfiltration 8
3. The ActionTakenby the AccusedRegarding
the Attacks 10
on Tutsiby HutuGroups

4. TheSignificance
of thePrevious
Conduct
of the Accused 11

PART III
The Conduct
of the Accused
Duringthe Eventsin 1994 12

1. The AllegedChangeof Conductof the Accused 12

2. TheUseof theSecurity
Resources
by the Accused 14
2.1 TheSecurityResources
Available
to theAccused 14
inAprilto July1994

2.1.1TheRequest
by the Accused
for MoreResources 16
2.2 TheSituation
thattheAccused
hadto Contend
With 19
2.2.1TheConditionsthatPrevailed
in Mabanza
commune 19
from6 to12April1994

2.2.2TheInvasion
of theAbakiga;
13 to 24 April1994 20
2.2.3 TheConditionsthatPrevailedin Mabanza
commune 21
from25 April1994to July1994

..¢__
 Prosecutor
versusIgnaceBagilishema,
ICTR-95-1A-T
Separate
Opinion
of JudgeAsokade Z. Gunawardana

2.3 TheUseof theAvailable

Resources
by theAccused 22
2.3.1 Using
Civilians
forSecurity 23
2.3.2 Holding
Pacification
Meetings 24
2.3.3 Providing
Assistance
in theFaceofAttacks 26
2.3.4Hiding
Tutsis
in HisHome 27
2.3.5 Issuing
FalseIdentification
Documentation 28
2.3.6Punishing
thePerpetrators
of Crimes 29
2.3.7 Appealing
to Higher
Authorities 30

2.4 SomeAdditional
Factors
thatImpaired
theAbility 31
of theAccused
to UsetheResources

2.4.1TheAttacks
on theAccused
by theAbakiga 31
2.4.2TheAccused
Considered
as an Accomplice
of theRPF 33
2.4.3TheRelationship
of the Accused
withSemanza 34
2.4.4TheRelationship
of Semanza
withtheAbakiga 37

PART IV

Documentary
EvidencethatCorroborates
the Position
38
TakenUp by the Accused

1. TheLetter
Dated24 June1994(Prosecution
exhibit
84)
39
o The Confessional
Statement
of Prosecution
Witness
Z
43
(Defence
exhibit
112)

Conclusion
44
 Prosecutor
versus
Ignace
Bagilishema,
ICTR-95-1A-T

SEPARATE OPINION OF JUDGE ASOKA DE Z. GUNAWARDANA

1. I agreewiththeJudgment
of JudgeMosethat,forthereasons
stated
therein,
the
Prosecution
hasfailed
toproveitscaseagainst
theAccused
beyond
reasonable
doubt,
andtherefore
theAccused
isentitled
toanacquittal
on allthecharges
contained
in the
indictment.

PART I
The Accused’s
Pleaof Inadequacy
of Resources

TheFactual
Statement
of thePlea
.

2.In addition
to thedefence
takenupby theAccused
that,
theProsecution
hasfailed
to prove
itscasebeyond
reasonable
doubt,
theDefence
hasalsoraised
a pleathatthe
Accusedlackedthe necessary
meansand the resources,
to prevent
the alleged
commission
of theatrocities,
in Mabanza
commune,
andthathe actedto maintain
law
andorder,
withthemeansavailable
to him.Thispleawastakenup in theDefence
Rejoinder
at paragraph
248,in thefollowing
terms,

[The]
defence
isstillthat
hedidnotparticipate
inthealleged
crimes
andthathe
lacked
adequate
means
toprevent
suchcrimes.1

Thispleawasfurther
buttressed
by thecontention
of theDefence
Counsel
in his
closing
arguments
by stating
that,

Butthere
is alsoanother
dimension,
thatis important
tounderscore
because
that
highlights
anaspectofourargument
inrelation
totheinnocence
ofMr.Bagilishema,
andthatisthathedidwhathecould
within
thelimits
ofthemeans
[and]
resources
available
tohim....2

1 Defence
Rejoinder
brief,
29 September
2000,atparagraph
248
z Transcripts
4 September
2000at page184
 Prosecutor
versus
lgnace
Bagilishema,
lCTR-95-1A-T
Separate
Opinion
ofJudgeAsokadeZ.Gunawardana
14 ~

3. However,
the Prosecution
alleged
thattheAccused
had control
overthe Hutu
assailants,
andthathe failed
to maintain
lawandorderor to protect
theTutsi
population,
3 fromtheattacks.

4. Inmy view,
it is appropriate
to treat
thispleaas an independent
challenge
to the
Prosecution
case,
inthefacts
andcircumstances
ofthiscase.

2. TheLegalPosition
of thePlea

5.Thisbeing
a pleathatinvolves
theadducing
ofevidence,
akintoa pleaof alibi
or
accident,
theAccused
is required
in thefirst
place,
toadduce
sufficient
evidence
to
put thematter
in issue.
In commonlawtermswhatis described
as an evidential
burdenis caston the Accused.
Thisburdenmaybe discharged
by theAccused,
by
relying
on theevidence
coming
fromtheProsecution
witnesses
or by calling
evidence
on hisbehalf
or by a combination
of both,andthereby
placing
sufficient
material
before
court,
to makethepleaa liveissue,
fitforconsideration
by court.
Whenthe
pleahasbeenproperly
raised,
theonusison theProsecution
to disprove
it,beyond
a
reasonable
doubt.
4 A failureto do so wouldraisea reasonable
doubtin the
Prosecution
case.

6.Incommon
lawjurisdictions
itissettled
that,
inrelation
tothistypeofplea,
while
theevidential
’burden’
rests
ontheAccused,
itremains
atalltimes
fortheProsecution

3 CounselfortheProsecution
stated"YourHonour,theissuehereis notas to whether
or notthe
Accused
hadpower toacttostopthis.Theissue
isthathenever tried.
Thefactisthathenevertried,
andthereis enoughevidence
to provethisbeyond
reasonabledoubt.
Thereis alsoevidence
to prove
thatheactually encouraged
andtookpartin theattacksthattookplaceinMabanzacommune
andalso
waspresent duringtheattackat theKibuyeStadium."
Prosecutor’s
ClosingArguments,
18 October
2000at page219
4 SeeStuart,Canadian
Criminal
Law,3raEd.,(1995):
"Inthecaseofgeneraljustifications
orexcuses
isconsistentlyheldthattheonlyburden ontheaccused istheevidentialoneofpointingtoevidence
puttingthedefence inissue. Thereisno departure
fromthegeneral rulethattheCrownmustprove
guiltbeyonda reasonabledoubtandthereforenoreversaloftheonusofproofwhichwouldbe subject
to Charter
review.TheCrownmustnegative a justification
orexcuse.Wherethedefence isnotputin
issueby theCrowncase,theaccused hasa dutyof adducing someevidencealthoughthisdoesnot
meanhehastoproveanything orto testify."(pages
425-436).SeealsotheEnglishCourtofAppeal
Gill(1963),2 AllE.R.688(C.C.A): "Theaccused,eitherby thecross-examination
of theprosecution
witnesses
or byevidence calledonhisbehalf, orby a combination
of thetwo,mustplacebeforethe
courtsuchmaterialasmakesduressa liveissuefitandproper tobelefttothejury. But,oncehe has
succeeded
indoing this,itisthenfortheCrown todestroythatdefence
insucha mannerastoleave in
thejury’smindsnoreasonable doubtthattheaccusedcannotbeabsolvedonthegrounds ofthealleged
compulsion."
(page691).
 Separate
Opinion
ofJudge
AsokadeZ.Gunawardana

to prove
itscasebeyond
reasonable
doubt(that
is,thepersuasive
burden
remains
with
theProsecution).
5 Thisprinciple
wasarticulated
in theHouseof Lordsby Viscount
Sankey
L.C.,in theEnglish
caseof Woolmington
v. DPP(1935),
in a passage
thathas
beenquoted
withapproval
in common
lawjurisdictions:

Throughout
theweboftheEnglish
Criminal
Lawonegolden
thread
isalways
tobe
seen,
that
itistheduty
oftheprosecution
toprove
theprisoner’s
guilt,
subject
towhat
I havealready
saidastothedefenee
ofinsanity
andsubject
alsotoanystatutory
exception.
If,attheendofandonthewhole
ofthecase,
there
isa reasonable
doubt,
created
bytheevidence
given
either
bytheprosecution
ortheprisoner,
astowhether
theprisoner
killed
thedeceased
witha malicious
intention,
theprosecution
hasnot
madeouttheeaseandtheprisoner
isentitled
toanacquittal.
Nomatter
whatthe
charge
orwhere
thetrial,
theprinciple
thattheprosecution
must
prove
theguilt
ofthe
prisoner
ispartofthecommon
lawofEngland
andnoattempt
towhittle
itdowncan
beentertained.
6

7. In English
law,theprinciple
thattheaccused
onlybearsan evidential
burden
applies
in defences
suchas self-defence,
7 duress,
8 alibi,
9 automatism,
l° and
provocation,
11 et cetera.
Exceptionally,
a higher
burden
is placed
on an accused,
in
thecaseofthedefence
of insanity,
andother
statutory
defences,
where
theaccused
is
required
to adduce
sufficient
evidence
to establish
sucha defence,
on a balance
of
probability.12
InCanada,
according
toStuart,
"[i]n
thecaseofgeneral
justifications
or
excuses
itisconsistently
heldthattheonlyburden
ontheaccused
istheevidential
one
¯ . .,,13;
seeforexample,
self-defence
andprovocation,
14 alibi,
15 duress,
16 and

5 Civil
lawsystems,
applying
theprinciple
dubio
proreo,alsooperate
togivethebenefit
ofthedoubt
in theprosecution’scaseto theaccused. Forexample, in Frenchlawtheprosecutor mustadduce
sufficient
evidence- preuve
suffisante- toconvincethecourtoftheguilt of theaccused.Underthe
Germancodeofcriminalprocedurallawthejudge, fimctioning
in aninquisitorial
capacity,
isrequired
to consider
anydefence thatmayarisefromtheevidence in thecase,andtheburden of provingthe
caserestsupontheprosecution,no matter
whichdefencehasbeenraised.
6 Woolmington
v. DPP(1935)A.C.462,(HL),at pp.481-482
7 Seee.g.,R v FoIley[1978]Crim.L.R.556;R v Abraham[1973] 1 W.L.R.
1270
8 Seee.g.,R v Gill[1963]47 Cr.App.R.166;R vBone[1968] 52 Cr.App.R.
546
9 Seee.g.,R.vDenney [1963]Crim.L.R.191;R. v Wood[1968] 52 Cr.App.R.
74
10Seee.g., R v Dervish
[1868]Crim.L.R.37;R v Stripp[1978] 69 Cr.App.R.
318
11 Seee.g.,ChanKauv R [1955] A.C.206;R v Wheeler [1968] Crim.App.R.
28
12SeeCross andTapperonEvidence, 8thed.,1995,(Butterworths),atpage131
~3Smart,CanadianCriminal
Law,3rdEd.,(1995) atpage425.Stuart further
notedthatanyrequirement
thatanaccused mustprovehispleaon thebalanceofprobabilities
hasbeenspecifically
rejected
in
Canada.In thecaseof Whyte(1988)64 C.R.(3d)123(S.C.C.),
ChiefJustice
Dickson
remarked:
exactcharacterisation
ofa factor
asanessential element,
a collateral
factor,
anexcuse,
or a defence
 roecutorversus
Separate
ceT
Opinion
ofJudge
Asoka
deZ.Gunawardana

necessity.
17 Withregard
to thelawin SriLanka,
it is stated
that;"Inthecaseof
defences
likeaccident
andalibiwhichdestroy
essential
elements
of theprosecution
case,allthattheaccused
needdo is to raisea reasonable
doubtinthemindsof the
juryas to theapplicability
of oneof these
defences.
Thismayrequire
theleading
of
someevidence,
butitdoesnotinvolve
theobligation
to establish
anyfact.
’’18This
Tribunal,
in thecasesof Prosecutor
vs Kayishema
andRuzindana
andProsecutor
vs
AlfredMusema,
hasalsofollowed
19 theaboveapproach.

8.Ina casebefore
a jury,
itisforthejudge
to determine
whether,
on thebasis
ofthe
evidence,
there
isa liveissue
fitandproper
tobelefttothejuryforitsconsideration.
If thecaseis triedby professional
judges,
thejudges
willnevertheless
consider
whether
thereis sufficient
evidence
to raisethe pleato a levelthatrequires
consideration
bythecourt.

9.Oncethecourt
issatisfied
thatthere
issufficient
evidence
toconsider
theplea,
the
court
willthenevaluate
theevidence
relied
on by theDefence
in support,
andby the
Prosecution
to negative
theplea,
in order
to ascertain
whether
a reasonable
doubthas
beencreated
in theProsecution
ease.

shouldnotaffecttheanalysisofthepresumption
ofinnocence.
[...]Ifanaccusedisrequired
toprove
somefactonthebalanceofprobabilitiestoavoidconviction,
theprovisionviolates
thepresumption
of
innocence
because
itpermitsa conviction
inspiteofa reasonable
doubtinthemindofthetrieroffact
astotheguiltoftheaccused."
14Seee.g., Latour[1951]
S.C.R. 19;Linney[1977]
32C.C.C.294
isSeee.g.,R. vLizotte[1951] S.C.R.
115;R. vLanigan
[1984]53 N.B.R.388(CA)
~6Seee.g.,Bergstrom[1980]13C.R.(3d)342
~7Seee.g.,Perka [1984]
42C.R.(3d)113at137
18G.L.Peiris,TheLawofEvidence inSriLanka,(1974),
atpage429
~9In thesecasestheburdenplaceduponan accused
hasbeenaddressedonlyinrelation
to thepleaof
alibi.InProsecutorvs Kayishema
andRuzindana, TrialChamberIIstated:"Theburdenofproofrests
upontheProsecution
toprove itscasebeyonda reasonable
doubtinallaspects notwithstanding
thatthe
Defenceraisedalibi....Theaccusedisonlyrequired to raise
thedefenceofalibi ....
" (Prosecutor
vs Kayishema
andRuzindana,(ICTR-95- l-T)Judgment,21 May1999,at paragraph234).Similarly,
Prosecutor
vs AlfredMusema,TrialChamberI held:"Theonusis ontheProsecution toprovebeyond a
reasonable
doubttheguiltoftheAccused. In establishing
itscase,whenan alibiisintroduced,the
Prosecution
mustprove, beyonda reasonabledoubt, thattheAccused waspresentandcommitted the
crimesforwhichhe is chargedandthereby discreditthealibidefence.Thealibidoesnotcarrya
separate
burdenofproof.Ifthedefenee isreasonablypossibly
true,itmustbesuccessful."
(Prosecutor
vs AlfredMusema,(ICTR-96-13-T),
Judgement, 27 January2000at paragraph108).Thisapproach
supportedimplicitlyby theStatute andRulesof theTribunal, whereby theAccusedis presumed
innocentuntilprovenguilty(Article
20(3)), andwherea fendingof guiltmaybe reached"only
themajorityof theTrialChamberis satisfied thatguilthasbeenproved beyondreasonabledoubt"
(Rule87(A)).
 Separate
Opinion
of JudgeAsokade Z Gunawardana

10.Intheinstant
case,
whattheAccused
is seeking
todo by raising
thesaidpleais
to showthe absence
of mensreain respect
of theactsand/or
omissions
alleged
against
him.As stated
by Counsel
fortheDefence
in hisclosing
arguments:

Weareasserting...that
theProsecution
never
everdemonstrated
thatthere
wasa
voluntary
attitude
onthepart
ofIgnace
Bagilishema,
more
so,in[regard
to]theintent
tocommit
genocide,
there
isnoevidence.
[...]
Ourevidence
shows
tothecontrary,
that
° hedideverything
within
hispowers
given
themeans
athisdisposal7

11.It is to be observed
thata failure
on thepartof theProsecution
to provemens
rea,whichis an ingredient
of theoffenses
preferred
against
theAccused,
would
negative
anyliability
on thepartoftheAccused.

12.I willnowproceed
to analyse
theevidence
in thecase,to determine
whether
there
is sufficient
evidence
to sustain
theplearaised
by theAccused,
andthereby
create
a reasonable
doubt
in theProsecution
ease.

PART II
The Conduct
of the Accused
Priorto the Events
in 1994

13.In ordertounderstand
thematters
relating
to theplearaised
by theAccused
in
thiscase,
it wouldbe appropriate
to beginbyconsidering
theconduct
of theAccused
priorto April1994,in regard
to themanner
in whichhe actedto enforce
lawand
orderin Mabanzacommunein general,
and to protectthe Tutsipopulation
in
particular.

14.TheDefence
asserted
thatBagilishema
wasalways
a manof goodcharacter
both
before
andafter
theevents
of 1994.
TheAccused
consistently
actedin goodfaith
for
theprotection
ofthelawabiding
Tutsis
andHutus
alike.

15.Thestandtakenby theProsecution
in regard
to thepriorconduct
of theAccused
varied
at different
times.
At onestagetheProsecution
rejected
a request
by the
Defence
to makea formal
admission
as to thegoodcharacter
of theAccused
priorto
 Prosecutor
versus
lgnace
Bagilishema,
ICTR-95-1A-T
Separate
Opinion
ofJudge
Asoka
deZ.Gunawardana
14 ~2
April
1994.
21 However,
at another
stage,
theCounsel
fortheProsecution
stated
that
theProsecution
didnotchallenge
the,"impeccable
character
[oftheAccused]
prior
to
theevents
in theindictment.
’’22Furthermore,
theProsecution
didnotseekto cross-
examinethe evidence
of Defencewitnesses
in regardto the character
of the
Accused.
23In addition,
someoftheProsecution
witnesses
themselves
testified
to the
goodconduct
of theAccused
priorto 1994.

16.In thiscontext,
it is pertinent
to recall
theremark
madeby Counsel
forthe
Prosecution
that,theAccused
actedin goodfaithpriorto 12 April1994,"Weaccept
thatmorelikely
thannot,upuntil
thattime[12April
1994],
hedidthatingoodfaith.
We makeno bonesaboutthat.And I wantthatto be crystal
clear.Thereis no
evidence
’’24 tosuggest
otherwise.

1. The PriorConduct
of the Accused
as Testified
to by Witnesses

17. The DefenceWitnessBE saidof the Accused,

"I can mentionsomeof his
achievements.
Thefirst
is thatunitywasinstalled
in hiscommune.
Secondly
there
was
development
in the community,
thirdly,
therewas no discrimination
on ethnic
grounds
in thatcommune.
’’25Defence
Witness
TP, in describing
the Accused’s
performance
of his duties,
stated:"Ignace
Bagilishema
was a devotedman who
carried
out his workwitha senseof commitment
and fairness.
Someone
who was
listened
to, who had goodreputation
in hiscommune.
’’26According
to Defence
WitnessRA, the Accusedwas a tolerant
man and Mabanzawas a communewhere
Hutusand Tutsishad livedtogether
in peace.Defence
Witnesses
AS, KC and ZD

20 Transcripts
19October
2000atpage144
21 Whenthismatterwasraisedduringthetestimony
of a Defence
witness,
theCounsel
forthe
Prosecutiongavethefollowing response:
"Weproposeto makeno admissions.
[...]Theadmission
referred
tointhisdocument arealready
referred
tointhecourt record,andmylearnedfriend
canrefer
to thosetranscripts
in hisclosingarguments
andconsider themas admitted,
if he needsto;...."
Transcripts
2 June2000atpage7
22 Transcripts
2 May2000atpages12-13
23 Seee.g.in relation to Mr.Francois
Roux,an expertwitnessforhe Defence,Counselforthe
Prosecution
stated:
"Iproposeonbehalfof theOfficeoftheProsecutor
thatthisstatement
cansimply
beadmittedin evidence
asanexhibit. Wedonotpropose tocross-examine
thiswitnessifitis solely
characterevidence
....Wecanmoveon to othermattersthismorning,
if itis established
of course
thathe isnota witness
offactinrelation to events
betweenApril
andJune1994."Transcripts
4 May
2000atpage7
24Transcripts
of closing
arguments,
18October2000atpage65
2sTranscripts
27April2000atpage35
z6Ibidatpage133

6 2____
 Prosecutor
versus
Ignaee
Bagilishema,
ICTR-95-1A-T
Separate
Opinion
ofJudge
Asoka
deZ.Gunawardana

gave similar accounts of the good relationshipof the Accused with the entire

populationof Mabanza.

18. Prosecutionwitnessesalso testifiedto Bagilishema’s

good conductpriorto the

events in 1994. When asked how the Accused was perceived by the general

population,
Prosecution
WitnessI testified:

Bagilishema
was someonewho was lovedby all the peopleboth Hutusand Tutsis.
Whentheyhad problemstheywouldgo to him for adviceand he wouldprovidesuch
advice.And duringthe war whenin 1994housesstartedto be destroyed
peoplefled
towardsthe bureaucommunalin largenumbers.Thismeansthat he was lovedby a
lot of peopleand nobodythoughtthat any harm would come to himselfin the
presence
27 of Bagilishema.

19. ProsecutionWitnessK, in his writtenstatementof 10 July 1999,28 statedthat

Bagilishema"was on good terms with all the peoples,i.e. until the President’s
,,29
death.

20. That the Tutsi membersof the populationtrustedthe Accusedis borne out by

theirconduct;when the attackson Tutsisand their propertystartedaround7 April

z7 Transcripts
23 November
1999at page25
28Defenceexhibit
14
29 A minority
of witnesses
helda different
view.Witness
G stated
thattheAccused
"stopped
loving"
theTutsisin 1990,aftertheoutbreak of thewar.However, WitnessG appears to havebasedherview
on a personalexperience relating to her fatherand unclewhich,on examination of relevant
documentation,
appearsto be objectively unjustified. (See,Chapter V (3.4)of theJudgment of
majority).
Prosecution
Witness J spokeofethnic discrimination
inMabanza, particularlyin theareaof
education,
butdocumentaryevidence suggests that,iftherewasethnic discrimination in Mabanza, it
wasnoton thepartof theAccused. Seeforexample, in1992,theissueof ethnic discriminationin
educationarosein connection withthe Director of the schoolin Mushubati secteur, Mabanza
commune.In thatinstance, Hakizimana, theCommunal Secretary, wantedto removetheDirector
claimingthathe hadallegedly beenfavouring Tutsisin theschool. Theissuewasaddressed by a
Commissionchairedby theAccused. It is clearfromtheCommission’s report, dated21 September
1992andsignedby theAccused, thatBagilishema had(unsuccessfully) attempted to reconcile the
differencesbetweentheDirector andHakizimana withoutfurtherinvestigation, havinggivenboth
partiesan opportunityto present theircase.Thereis no indication thattheAccused sidedwith
Hakizimananotwithstandingthathe wastheCommunal Secretaryandhadalleged thattheDirector
was"favouringoneof theethnic groups in Mushnbatito suchanextent that,practically, allpeople
foundtherewereTutsi." Following a hearing, theCommission’sfindings wereas follows: "Ourwish
hasbeento lightentheissueandto reconcile you,butwenotethatneither ofyouhasthewilltobe
reconciled
witheachother. Consequently, sinceyoudonotwantus tohelpyoureconcile, we aregoing
toreferthismattertothecourts, sinceitisbeyond ourpowers.Itwillthenbeuptothemtoresolve it
andpunishthepersonatfault." Thus, having exhaustedhiseffortstoreconcile theparties, theAccused
properly
referred
themattertothecourts.
 rosecu’orversusZ
ace
ai,ishemog
T,lAT
14
1994,manyof theTutsis
whohadfledfromtheseattacks,
gathered
at theMabanza
bureau
communal
forsafety.

21.Theevidence
of expert
witnesses
suggests
thatBagilishema
hadbeenoneof the
mostsuccessful
bourgmestres
in the areaof development.
Prosecution
expert
Professor
Guichaoua
testified
that,in hisassessment,
theAccused
ranked
as the
second
mostefficient
bourgmestre
in regard
to thehandling
of development
issues
in
the communes.
3° Defence
expert
Frangois
Clrment
confirmed
thatthe Accused
had
madea positive
contribution
to development
of hiscommune.
Defence
witness
Jean
Frangois
Rouxwho,up to April1994,hadbeena project
leader
on a development
project
in Kibuye
Prefecture
opined
thattheAccused
wasa ’goodbourgmestre’
and
followed
development
projectsveryclosely.
The witnessdid not noticeany
discrimination
on ethnicgrounds.
31 He addedthatthe Accused
had managedto
maintain
calmduring
the turbulent
timesbetween
1992andApril1994,whenother
communes
weretroubled
32 by ethnic
conflict.

2. TheResponse
of theAccused
to theThreat
of RPFInfiltration

22.Documentary
evidence
tendered
by theProsecution
itself
showsthat,on several
occasions,
the Accused
investigated
persons
suspected
of illegal
possession
of
firearms
orofcollaborating
withtheRPF.Ina letter,
dated
9 October
1990,
written
by
theAccused
to thepr~fet
of Kibuye,
theAccused
senta ’Report
of People
Suspected
of Holding
Rifles
Illegally’
andattached
a listof suchpersons.
33 Thelistincluded
predominantly
’intellectuals’
buttheethnic
groupof manywasnotindicated.
In the
introduction
totheletter,
itwasstated
asfollows:
"Given
thecurrent
situation,
I write
to youthisletter
in orderto giveyoua listof people
whoaresuspected
of having
rifles."
Andconcluded
by stating
that,"A search
of rifles
hasbeencarried
outin
almost
alltheir
houses
butnosingle
rifle
hasbeenfound.
We arestillinvestigating
butitis noteasyto findrifles
withthose
people.
Thepopulation
haveconfirmed
that
they(those
people)
might
possess
rifles."

30Transcripts
14February2000at page43
3~Transcripts
4 May2000at page23
3zIbidatpage27

8
 Prosecutor
versuslgnace
Bagilishema,
ICTR-95-1A_T
Separate
Opinion
ofJudgeAsokadeZ.Gunawardana
~ 4 ~

23.In a second
letter,
dated20 October
1990,
34 theAccused
senta listof "persons
whoaresuspected
by thepopulation,"
to thePresident
of thesecurity
council
of
Kibuye.
Again,
thelistwaspredominantly
madeup of ’intellectuals’
and,although
someweredescribed
as Tutsis,
theethnic
groupof others
wasuncertain.
Theletter
endedby stating,
"I sendthem[thenames]
to youfollowing
whatpeople
say and
knowaboutthembutI do notconfirm
forsurethatwhattheyarecharged
withis
really
true."

24.TheProsecution
produced
fourfurther
letters,
written
by theAccused
to the
prdfet
of Kibuye,
attaching
lists
of persons
suspected
of joining
theInkontanyi;
dated
23 October1992,30 December
1992,14 January
1993,and 12 March1993.
35 The
opening
paragraph
ofthefirst
letter,
dated
23October
1992noted
as follows:-

Withreference
totheprevailing
rumors
thatsomeyoung
menjointheInkontanyi,
I
would
like
toletyouknow
that
I assigned
the"conseillers"
tofollow
upthis
issue
and
they
submitted
tometheattached
list.

25.It is apparent
thatby ’Inkontanyi’,
theAccused
wasreferring
to thosepersons
whocollaborated
withtheRPF,rather
thanTutsi
persons
in general.
Indeed,
inthelist
attached
to theletter
dated
23 October
1992,
whichwastheonlylistto indicate
the
ethnic
group
of thesuspects,
twoof thefivesuspects
wererecorded
as’Hutu’.

26.Whenquestioned
abouttheaboveletters,
theAccused
explained
thatmembers
of
theHutupopulation
hadsuspected
certain
Tutsis
of beingRPFcollaborators
andof
possessing
weapons,
andtherefore
wanted
to attack
them.TheAccused
successfully
diffused
thissituation
bysetting
upa verification
committee,
tosearch
thepremises
of
suspected
collaborators
forweapons.
36 He added
thatthehigher
authorities
in Kibuye
hadurgently
required
thelists
of persons
suspected
ofcollaborating
withtheRPF,and
thatiswashisdutyas bourgmestre
to report
suchmatters
tohis superiors.
37Thisis
evidenced
by a letter,
dated14 April1992,fromtheintelligence
service
of Kibuye
Prefecture
to allthebourgmestres,
requiring
thebourgmestres
to provide
a listof

33Prosecution
exhibit91
34Prosecution
exhibit90
35Prosecution
exhibits80,81,82and83respectively
36Transcripts
8 June2000pages43 - 50
 Prosecutor
versus
Ignace
Bagilishema,
ICTR-9 5-1A-
T
Separate
Opinion
ofJudge
Asoka
deZ.Gunawardana

persons
whohadgoneintoneighbouring
countries
shortly
before
or during
thewar,
andwhohadreturned.
Thesaidletter
required
thebourgmestres
to furnish
details
of
suchpersons
including
thename,age,ethnic
group,
theplaceof origin,
thepresent
location,
andwhether
thereweresuspicions
thatanyof themhadundergone
military
training
withtheRPF.
38

27.It is important
tonotethatthetwoletters
dating
9thand20thOctober
1990were
written
in theweeksimmediately
following
theinvasion
of Rwanda,
in October
1990,
by theRPF.Thefourletters
dating
fromOctober
1992to March1993weresentin a
period
of continuing
hightension
andongoing
conflict
withtheRPF.

28.I am of theviewthatthe Accused

tookreasonable
and proper
measures
when
responding
to threats,
whether
perceived
or real,of RPFinfiltration.
TheAccused
properly
pointed
outthat,
whenthere
wasno evidence
toconfirm
thesuspicions
of the
population,
he didnotconfirm
thetruth
of theinformation.
Thelistsdonotindicate
an ethnic
biason thepartof the Accused.
It may be notedthattheAccused
was
merely
performing
theofficial
duties
of theoffice
he heldunderthefunctioning
government
of theday,in Rwanda.

o The ActionTakenby the AccusedRegarding

the Attackson Tutsisby
Hutu Groups

29.Thesecurity
issues
facing
theAccused
in theyearsleading
up to 1994werenot
limited
to thethreat
of RPFinfiltration.
He wasalsoconfronted
withtheproblem
of
individual
attacks
onTutsi
persons
andproperty
byHumassailants.
Ina letter,
dated
7
January
1993,fromBagilishema
to preferKayishema,
the Accused
outlined
the
specific
attacks
by theHutusonTutsipersons
and/or
theirproperties,
andrequested
theassistance
ofthepr~fet
torestore
security.
Theletter
stated
asfollows:-

¯ . . I regret
toinform
you,oncemore,
thatinthenight
of4/1/1993,
Hutus
again
attacked
thehomeofaTutsi,
GAFARANGA,
breaking
thedoorof hishouse.

37Transcripts
1 June2000page147
38Defence
exhibit
88

10
 Separate
Opinion
of JudgeAsokade Z. Gunawardana

In thenight
of 6/1/1993,
in spite
ofyourpromise
toprovide
us soldiers,
no soldiers
came.I leftwiththreepolicemen
andoneIPJandwe laidambush
at a placecalled
MUGOTE,
Kabilicellule;
we wereableto apprehend...
[namedpersons]
whowere
armedwithclubs,
bludgeons
andhoes.Theywereheading
foran attack.
We arrested
themat 12:00midnight.
We deplored
thefactthaton reaching
another
hill,we
noticed
thattheHutuhadattackedthehouseof SEKABUNDI
....
These
attacks
are
perpetrated
while
theTutsihavelefttheir
homes
andareafraid
to callforhelp,
for
fearofbeing
located
andkilled.
Thisdoesnotallow
security
officers
tocometotheir
assistance,
sincetheyarenotwellinformed
of thesitesof theattacks
andalso
because
thesector
is immense.

Inthenight
of6 to7/1993,
thepolice,
assisted
bysoldiers,
tried
toensure
security
in
MUBUGA
cellule,
BUI-IINGA
sector.
Theywereattacked
andhadto fireintotheair.
On accountof theirlimitednumber,in KAGANOcellule,
KIGEYOsector,a man
calledSEBACOGOZA
wasattacked;
hishousewasdestroyed
and hiscattlewere
stolen...

I thankyoufortheassistance
we hopeyouwillcontinue
to afford
us in orderto
restore
39 security.

30.Theaboveletterprovides
a picture
of thesecurity
situation
thattheAccused
had
to facein early1993.It is apparent
fromthecontents
of theletter
thattheAccused
attempted
to usetheavailable
security
resources
to protect
theTutsipopulation
from
attacks
by Hutus,
indeed,
he personally
searched
forandarrested
Hutuattackers.

31.Thuson an analysis
of theaboveevidence
it is clearthattheAccused
performed
thefunctions
of hisoffice
priorto 1994,without
anyethnic
discrimination,
to prevent
theattacks
on theTutsipopulation
by theHutus.

4. The Significance
of the Previous
Conductof the Accused

32. It may be notedthat,by the natureof crimesthatmay be committed

duringa
national
or international
emergency,
persons
withno priorconvictions
or history
of

39 Defence
exhibit
90

11
 rosecutorvers
sace
,tis
Separate
emo,C
,lAT
Opinion
ofJudge
Asoka
deZ.Gunawardana

violence
maycommit
suchcrimes.
4° However,
the probative
valueof theevidence
relating
to priorconduct
willdepend
on thecircumstances
of theindividual
ease.In
thepresent
case,theevidence
showsmorethanmerepriorgoodcharacter
or lackof
previous
disposition
by theAccused
to commit
suchcrimes.
It indicates
that,
prior
to
theevents
in 1994,theAccused
hadconsistently
conducted
himself
in a manner
that
iscompletely
at oddswiththeconduct
alleged
by theProsecution
during
theevents
in
1994.

33.In addition
it maybe observed
thattheProsecution
didnotadduce
anyevidence
of theconduct
of theAccused,
priorto April1994,uponwhichtheProsecution
can
relyto showthattheAccused
hada propensity
to commit
thecrimes
withwhichhe is
charged.
Thusit becomes
allthemoreimportant,
fortheProsecution
to prove
thatthe
Accused
formedor manifested
the requisite
mensrea,as wellas committed
the
requisite
criminal
acts,
atleast
during
theevents
in1994.

PART III
The Conduct
of the Accused
Duringthe Eventsin 1994

1. The AllegedChangeof Conductof the Accused

34.In relation
to the mensrea of theAccused,
theCounsel
fortheProsecution
submitted
thatit wasat thealleged
meeting
of 12 April1994,between
theAccused
andpr~fetKayishema,
at the Mabanza
bureaucommunal,
thattheAccused
changed
fromhaving
a bonefideintentto protect
theTutsis,
to a genocidal
intentto
exterminate
theTutsi
population
on ethnic
grounds.
Itis significant
tonotethatthe
Counsel
fortheProsecution
in hisclosing
arguments
stated
asfollows:

Yousee,
I think
that
mylearned
friend
[for
theDefence]
seems
togettheimpression
that
we[...]
aresaying
that
thewitnesses
were
deliberately
gathered
attheMabanza
Commune
office
asa scheme
toeliminate
them.
Wedon’t
saythat.
Weaccept
thatmore
likely
than
not,
upuntil
that
time,
hedidthat
ingood
faith.
Wemake
nobones
about
that.
AndI want
thattobecrystal
clear.
There
isnoevidence
tosuggest
otherwise.
Noevidence
tosuggest

40 See"Decision
on Evidence
of theGoodCharacter
of theAccused
andtheDefence
of Tu Quoque",
of17 February
1999,inthecaseofKupreskic
et al,ICTY.
 Separate
Opinion
of Judge
Asoka
deZ.Gunawardana

thatupuntil
that
time,
hewasgathering
people
there
with
a viewto,youknow--no,no,
no,no.Wesaythateverything
changed
atthattime,
after
that
meeting
[ofthe12April
1994],
andeverything
thathappens
flows
onfromthere.
Wemakethatclear
distinction.
Sowhentheycomeandsaywell,
heis a manof goodcharacter,
[...]
I makeno bones
about
4~ that.

35. Inherent
in the aboveassertion
of the Prosecuting
Counsel,
are several
weaknesses.
Inthefirst
place,
isitrealistic
forsucha drastic
change
of attitude
to
occurin sucha shortandimpromptu
meeting?
Thereis no evidence
to showthatit
wasa pre-planned
meeting.
Andthemeeting
is alleged
to havelasted
onlyfora few
minutes.
Therewasno suggestion
of a significant
persuasive
effort
by Kayishema
to
change
thepreviously
helddisposition
of theAccused
towards
theTutsis.

36.Secondly,
there
is no clear
proof
thatsucha meeting
evertookplace.
In factthe
finding
madeinregard
tothemeeting
intheJudgment
of themajority
is thatthereis
nocredible
42 evidence
thatsucha meeting
tookplace.

37.Thirdly,
theconduct
of theAccused
doesnotbearoutthathe hada change
of
attitude.
TheProsecution
sought
to interpret
thesending
of therefugees,
by the
Accused,
to Kibuye
town,to suggest
a change
of conduct.
However,
thisaction
has
beenclearly
explained
anddealtwithin theJudgment
of themajority,
where
a finding
is madethatdirecting
therefugees
to Kibuye
towndoesnotentail
anyliability
on the
partoftheAccused,
43 andthatit wasdoneforother
reasons.

38.Fourthly,
thealleged
manifestation
of a genocidal
intent,
andtheexistence
of a
conspiracy
to commit
genocide,
is negated
by theevidence
of Prosecution
Witness
A
who statedthat,whenhe was in KibuyeStadium
in April1994,theAccused
had
invited
therefugees
to go backto Mabanza,
sincepeacehadbeenrestored.
Witness
A
testified,

41Transcripts
ofclosing
arguments,
18 October
2000at pages65- 66
4zSee,Judgment
ofthemajority,
ChapterV
43See,Judgment
of themajority,
ChapterV
 Prosecutor
versus
Ignace
Bagilishema,
1CTR-95-1A-T
ff q
Separate
Opinion
ofJudgeAsokadeZ.Gunawardana

Following
that,
between
the13thandthe18th,
they[theAccused,
Semanza
andDr
Leonard]
camebackto saythatwe couldgo home,
we could
go backhomebecause
peace
44 hadbeenrestored.

39.Inthiscontext,
itis alsoto benoted
thatWitness
A,in hiswritten
statement
to
investigators,
dated29 June1999,makesmention
of therequest
by Bagilishema
for
the refugees
to comehometo MabanzaY

40.To saytheleast,
it is inconsistent
fora person
whohasjoined
in a conspiracy
withKayishema
to takethe refugees
to KibuyeStadiumand HomeSt. Jeanto
exterminate
them,thereafter
to invite
therefugees
back,before
theobjective
of
exterminating
themhasbeenachieved.

2. TheUse of theSecurity
Resources
by the Accused

2.1 TheSecurity
Resources
Available
to theAccused
in Aprilto July1994

41.TheDefence
argued
thattheAccused
couldnotcontrol
the events
dueto the
inadequacy
of resources.
TheDefence
hassubmitted
that,

Because
ofthescant
means
athisdisposal
Bagilishema
wasnotabletoreestablish
security
inhiscommune
forallthetimethat
theAbakiga
were
there,
i.e.until
about
25April
1994.
After
that
date,
thesituation
inthecommune
wasa bitless
chaotic
and
Bagilishema
didallhecould
toresume
hisactivities
asbourgmestre
despite
the
difficulties
andthreats
still
made
against
him.
46

42.The Prosecution
arguedthatthe Accused
did notevenattempt
to control
the
situation
but,rather,
encouraged
andtookpartintheattacks
in Mabanza
commune.

43.Theavailable
resources
mustbe considered
in lightof thegeographical
sizeand
population
of Mabanzacommune.
Mabanzacommunewas 160 squarekilometers
in

44
Transcripts
17 November1999at page
45Defence
exhibit
7
46Defence
Closing
Briefat page114
 +o+++
+++
++e
++++a+
+++++,-+++
Separate
Opinion
t+.,,+
?.+
ofJudge
Asoka
de Z.Gunawardana

extent.
47 It hada mixedpopulation
of Hutus,Tutsis
andTwas.According
to the
statistics
available
for1988,thepopulation
wasaround
49,250.
48 Thisnumber
would
haveincreased
considerably
dueto theinflux
ofrefugees
fromApril
1994.

44.It is notin dispute

that,atthetimeof theevents,
there
wereonlysixcommunal
police
officers,
a brigadier
andan assistant
brigadier,
stationed
in Mabanza.
According
to theAccused
thereshouldhavebeen,at least,onecommunal
police
officer
persecteur;
Mabanza
commune
having
fourteen
secteurs.
It is alsoworth
noting
that,Article
107of theLoiSurOrganisation
Communale,
dated23 November
1963,contemplates
havingone communal
policeofficer
per one thousand
of the
population.
ThesaidArticle
further
provides
forthatnumber
to be increased
or
decreased,
in exceptional
circumstances,
withtheauthorization
of theinterior
minister.
49 Hence,the legalrequirement
wouldbe aboutfiftycommunal
police
officers
forMabanza
commune,
withthepossibility
of thisnumber
beingincreased
in
exceptional
circumstances.
However,
at therelevant
timetheAccused
onlyhadabout
one-tenth
ofthisfigure,
despite
theadded
needforsecurity
personnel
duetotheinflux
of therefugees
in April1994.Thusit is apparent
thattheAccused
wasthoroughly
handicapped
by thelackof personnel
to maintain
lawandorder.

45.Therewasno specific
evidence
led at thetrialwithregardto thearmsand
ammunition
available
to thesecurity
forces
in Mabanza
commune
at the time.The
position
takenup by theAccused
wasthatthearmsandammunition
werethoroughly
inadequate
to control
thesituation.
According
to theAccused,
theBrigadier
hadabout
twelve
Enfleld
rifles.
Andtheevidence
indicates
thattherewereonlyoneor two
vehicles
belonging
to Mabanza
communal
office,
andthatthepolice
didnothavea
vehicle.
5° Hence
it isclearthatwithregard
toavailability
of arms,
ammunitions
and
thevehicles,
thesituation
wasequally
vulnerable.

47Defenceexhibit80 is a mapof Mabanza

commune
48Defence
exhibit85
49 TheLoiSur Organisation Communale,
dated23 November
1963is oneof the mainlegaltexts
updating
thoseof thefirstRepublic.SeeExpert
Report
byProfessor
Guichaoua
"Local
Government
in
Rwanda",
datedAugust1998,at page8.Prosecution
exhibit
71.
50Seee.g.,Francois
Clement,transcripts
29May2000atpage22

15 ~_____
 Prosecutor
versus
Ignace
Bagilishema,
ICTR_95_1A.
T I~
j ~e~l
Separate
Opinion
ofJudge
Asoka
deZ.Gunawardana

46. It is evident
fromtheletter
mentioned
earlier,
dated7 January
1993,from
Bagilishema
to pr$fetKayishema,
5] thatwhenthe Mabanzacommune
experienced
ethnic
strife
in1993,
although
lessserious
thanthatencountered
in1994,
thesecurity
resources
available
evenat thattimewereinsufficient
to effectively
maintain
lawand
order.
Thiswasbecause
theenormity
of thesizeof theareato becovered
("the
sector
is immense");
thefactthatTutsis
wereafraid
to callforhelp("forfearof being
located
andkilled");
and,thelackofsecurity
personnel
("onaccount
oftheir
limited
number").
In January
1993,the Accusedhad requested,
frompr~fetKayishema,
soldiers
to helpprovidesecurity
fromthe Hutuattacks.
Apparently,
these
reinforcements
wereneversupplied,
"inspiteof yourpromise
to provide
us soldiers,
no soldiers
came."

2.1.1 TheRequest
by theAccused
forMoreResources

47.In thewakeof thedeterioration

of thelawandorderduring
theevents
in 1994,
theAccused
hadspecifically
askedforreinforcements
fromhisimmediate
superior,
Clement
Kayishema,
thepr~fet
of Kibuye.
It maybe noted
thatthepr~fet
is theproper
authority
fromwhom suchassistance
had to be requestedaccording
to the
administrative
hierarchy.

48.TheDefence
pointed
outthatthepowerto callforassistance
fromthearmed
forces,
according
to theD~cret-Loi
dated11 March1975,is clearly
vested
withthe
prdfet,
andthatthebourgmestre
didnothavesuchpower,
s2 TheDefence
addedthat,
at thattime,therewas a warin Rwanda,
and the Armywas engaged
in the fight
against
theRwandan
Patriotic
Front’s
armyon thefrontline.HencetheAccused
could
notcallforassistance
directly
fromthearmed
forces.

49.TheAccused
testified
thathemadehisfirstrequest
forreinforcements
on9 April
1994,duringa security
meetingchaired
by pr~fetKayishema,
and attended
by

5iDefence
exhibit
90
5zSeeArticle
11oftheddcret-loi
of 1975,
whichaddresses
therequisition
powerofthearmed
forces
bytheprdfet.Article103oftheLoisurl’organisation
eommunale
of1963states
thatthepr~fet
canput
at thedisposal
of thebourgmestre,
elements
ofthegendarmerie
nationale.
Article
7 ofthed~cret-loi
portantcrdation
de lagendarmerie
nationale
of 1974states
thatanycommanderofgendarmes
may,if
facedwithinsufficient
resources,
require
theassistance
ofdetachments
oftheRwandanarmy.

16 y______
 ProsecutorversuslgnaoeBagilishema,]CTR-95.1A_T
Separate
Opinion
of JudgeAsokade Z. Gunawardana

members
of UNAMIR.
53 He hadrequested
theallocation
of sufficient
meansto fend
offtheattacks.
However,
because
allthebourgmestres
requested
reinforcements,
the
security
council
had allocated
onlya limited
numberof gendarmes
amongst
the
communes.
Therefore,
although
the Accused
insisted
on beingassigned
a large
numberof gendarmesimmediately,
the Accusedwas providedwithonlyfive
gendarmes
to helpsecure
thesituation
in thewholeof Mabanza.
54 Further,
thefive
gendarmes
wereonlyprovidedfor fouror fivedays,and weresubsequently
withdrawn
on 13 April1994.

50.TheAccused
decided
to ensure
thesecurity
at thebureau
communal
withthesix
policemen,
whowereto taketheirturnon dayandnightshifts,
guarding
thebureau
communal
and the refugees
who had gathered
in largenumbers.
The Accused
had
wanted
thegendarmes
alsoto be placed
at thebureau
communal,
butthegendarmes
hadpreferred
to be at Mushubati
because
of thesecurity
problems
in thatsecteur
and
due to the availability
of accommodation.
On Saturday,
9 April,he hadworked
together
withgendarmes
in Kibingo,
Rukagarata
and Nyagatovu
secteurs
where
refugees
camethrough
fromKavoye
secteur.
On Sunday,
10 April,theBuhinga
and
Mushubati
secteurswereattacked;
the Accusedpostedtwo gendarmes
and one
policeman
there.The Accused
testified
thathe and thesecurity
forces
"worked
continuously
dayandnightso as to go roundthesesectors
butwe werenotableto
diffuse
thesituation."ss

51.TheAccused
addedthat,on no lessthanthreeconsecutive
daysviz,the10th,
1 lthand12thApril1994,
he hadrequested
reinforcements
fromthepr~fet’s
office
in
Kibuye,
butthat"every
timeI called..,
theprefecture
I wastoldthattheyweresent
to otherplaces.
’’56On Sunday
10 April,
he called
during
thedayandin theevening
gavea security
report
to pr~fet
Kayishema
byphone;
atthattimehespecifically
stated
thata largenumber
of gendarmes
wererequired.
On Monday11 April,
he spoketo
Gashongore,
thesub prOfeton twooccasions.
Whenaskedif thesewerethe only
occasions
thathe phoned
theAccused
replied,
"I phoned
themup always
andthenin
theevening
I hadto makea report
onthephone.
I could
calltwoor three
timesa day

53 It isnotindisputethattheAccused
attended
thesaidmeeting.
54 Transcripts
2 June2000at page74
ssIbidatpage82

17 .~____
 Prosecutor
versus
Ignace
Bagilishema,
ICTR-95-1A-T
Separate
Opinion
ofJudgeAsoka
deZ.Gunawardana
I~
whenI camebackto thecommunal
office
fromthevarious
secteurs."
57 Thatsecurity
reports
wereprovided
is evidenced
by a letter
dated10 April1994,fromprefer
Kayishema
to theMinister
of theInterior,
wherein
theprdfet
provided
an account
of
thereports
fromall bourgmestres
in Kibuye
Prefecture,
during
theperiod
from6
April
to 10 April
1994.
58 TheAccused
testified
thathe wasconsistently
informed
that
therewereno moregendarmes
available.

52.After13 April,
theAccused
hadgivenup asking
forreinforcements,
particularly
sincethegendarmes
whowerealready
assigned
to himon 9 April1994,hadbeenre-
called.
TheAccused
stated
thathe hadposted
thegendarmes
atstrategic
points
inthe
communebut theywereineffective
as theywereclearlyout numberedby the
attackers,
andalsobecause
theydidnothavetheir
owntransport.

53.TheAccused
againrequested
reinforcements
fromtheprdfet
by wayof a letter,
dated
24 June1994.
59 In thatletter
he hadinformed
theprefer
of impending
attacks
fromHutusfromKayove
andRutsiro
communes,
andhadrequested
urgent
assistance
fromthepr~fet
in orderto prevent
theattack.
He testified
thathe received
no
assistance.

54.It is apparent
thattheresources
thatwereavailable
to theAccused
in midApril
1994werefarfromadequate,
to bringaboutpeacein Mabanza
or to maintain
lawand
order
on anysignificant
level.
However,
from25 Aprilto lateJune1994,afterthe
Abakiga
attacks
hadsubsided,
theavailable
resources
wereutilised
to maintain
law
andorderto somedegree.
Thesecurity
measures
implemented
by theAccused
during
thisperiod
areexamined
below.
However,
evenduring
thisperiod
of relative
calm,
thelimited
resources
werenotsufficient
to police
theentire
commune.
It is evident
fromthe letterdated24 June1994,thattheAccused
considered
his resources
inadequate
to preventthe imminent
attacks
by HutusfromKayoveand Rutsiro
communes.
It is seenfromtheefforts
madeby theAccused
as referred
to above,
that
theAccused
hadexhausted
alltheoptions
available
to himto obtain
reinforcements,
butwithout
success.

s6Ibidatpage86
s71bid
atpage88
58Prosecution
exhibit
76

18
 Prosecutor
versus
lgnace
Bagilishema
ICTR-95-1A_T
Separate
Opinion
ofJudge
AsokadeZIGunawardana

2.2 TheSituation
thattheAccused
hadto Contend
With

55.In orderto geta clearpicture

of thesituation
thatprevailed
in Mabanza
commune,
during
theperiod
fromAprilto July1994,it is appropriate
to review
the
events
thattookplace
during
thatperiod,
astheyunfolded.

56.Thatmassive
attacks
by Hutusbeganin Mabanza
fromaboutmidApril1994is
not in dispute.Whilethe Defencearguedthat Mabanzawas overrunby an

uncontrollable
massof invaders
knownas theAbakiga,
theProsecution
contended
thattheAbakiga
didnotoverwhelmthecommune.However,
the standtakenby the
Prosecution
60 regarding
thisissue
varied
atdifferent
times.

2.2.1 TheConditions
thatPrevailed
in Mabanza
Commune
from6 to12April1994

57.TheProsecution
andDefence
witnesses
testified
thatfollowing
thecrashof the
President’s
planeon6 April1994,Tutsi
civilians
wereattacked
andtheirproperties
destroyed,
in Mabanza
commune.
Dueto theseattacks
thousands
of men,womenand
children,
predominantly
Tutsissoughtrefuge
in, amongst
otherplaces,
Mabanza
bureau
communal.
Thesefactsarenotin dispute.

58. TheAccused
described
thesituation
during
thisperiod
in thefollowing
way,
"It]he
people
[ofMabanza]
organised
by facing
up to theattackers
whocamefromthe

59Prosecution
exhibit
84
60 Forexample,
whenresponding
to questions
in relation
to the’" ",
Counsel
fortheProsecutionprovideda confusingresponse:"Well,firstofall,wehavetoaccept that
mvaslon onlacked
13 April
the1994, the
bothhe [theAccused] andhiscolleague [theformerbourgmestre of Rutsiro] necessary
controlovertheseAbakiga,
thatisiftheyeverexisted, anyway.
theydid,¯. . I taketheview,rather, thatthereis nothing that
I don’t wasdone
acct-, "matin MabanzathatMr
Bagilishema
wasnotin controlof.I d ’ ~t,~ theydid.Andevenif
[...]Therewereno Abakiga comingon
totoverwhelm
accept thathe was
anyone overwhelmed
anywhere. bywas
There the Abakiga
plan or anything.
in place, there
wasno needforanyAbakiga to go anywhere." Transcriptsof closing arguments, 18 October 2000at
pages45-46¯ThustheCounsel fortheProsecution asserted thattheAccused lacked thenecessary
controlovertheAbakiga andthenimmediately contradictedhimself bystating thathedidnotaccept
thattheAbakiga overwhelmed
theAccused. TheProsecution’s contention thattheAbakiga didnot
’exist’ wasmadeforthefirsttimein theProsecutor’s closing arguments, andis contrary to the
Prosecution’s own witnesseswho speakof Abakigaattacking Tutsis,in Mabanzacommune.
Notwithstandingtheaboveassertion by theProsecution,it presented no evidence thattheAccused
solicitedthepresenceoftheAbakigaduringtheevents¯

19
 Separate
Opinion
ofJudge
Asoka
deZ.Gunawardana

river.. In any event,the peopletriedSunday,Mondayand Tuesdaybut up to

Tuesday
evening
[12April],
thewholecommune
wason fire.
’’61

2.2.2 TheInvasion
of theAbakiga;
13 to 24 April1994

59. The evidenceindicates

thatthe AbakigainvadedMabanzacommuneon 13 April
1994 and thereafter.
Prosecution
and Defencewitnessesdescribedhow hordesof
Hutuattackers
fromthenorthern
region,identified
as Abakiga,
besetthe commune.
Theattackers
weredistinctively
dressedin bananaleaves,and carriedtraditional
weapons.
Prosecution
WitnessI described
the Abakigaas "peoplewho comefromthe
highlands....Theseare the peoplewho came to our commune,who..launchedan
attack.
Theylootedandkilled.
’’62Askedif he hadan opportunity
to seetheAbakiga
comedownfromthe hillsintoMabanza,
WitnessI repliedthathe sawthe attackers
comedownfromthehillsin groups
of no lessthantwohundred.
63 Askedif thearrival
of theAbakiga
hadanyconnection
withthedeathof thePresident,
Witness
I replied,

Yes,thearrival
of theAbakiga
hadsomekindof relation
to thedeath
ofthepresident
because
theyweresaying
thatthepresident
waskilledby theInkotanyi
so the
Abakiga
camedownto fightthe Inkotanyi.
Therewasa warandtheywantedto
revenge
64 thedeath
oftheir
president
atthehands
oftheInkotanyi.

60.DefenceWitnessRA, who agreedthatit seemedlikean invasion,

described
the
eventin similar
terms:

Fromourhomewe canseea hillthatfacesnorth,

andat a pointin timewe saw
people
coming
downandwe werewondering
whatwasgoingon there,
andyes,this
is howI cameto knowthatit wastheAbakiga
whowerecoming¯
Thereweremany.
[O]nthenextdaytheycameveryearlyandthiscontinued
almost..,
everymorning.
¯..Theywereno longer
people.
Theywerewildanimals
....Theywereshouting,
theywerecarrying
6s machetes
andtraditional
weapons.

61
Transcripts
2 June2000at page86
62Transcripts23 November1999 at pages31-32
63Ibidat 33-34
64/rbi
d at 35-36
65 Transcripts2 May2000at pages42-43

20
 Prosecutor
versusIgnaceBagilishema,
ICTR_95_lA_T
14
B ~ m~l
Separate
Opinionof JudgeAsokade Z. Gunawardana

61.Defence
witnesses
R_A,BE, ZJ and TP confirmed
that,around12 April1994,
therewererumours
of an imminent
attack
on therefugees
at thebureau
communal
in
Mabanza,
by theAbakiga,
whowerecoming
fromRutsiro.
TheAccused
testified
that
in themorning
of 13 April1994,he received
a phonecallfromthebourgmestre
of
Rutsiro,
informing
him of theadvance
of theAbakiga
to Mabanza
commune,
andit
wason thatbasisthathe hadaskedtherefugees
to go south,
to Kibuye
town,for
protection.

62.Theevidence
showsthat,following
theinvasion
of theAbakiga,
theyproceeded
to killTutsisand lootproperties
in Mabanza
and neighboring
Gitesicommune.
Prosecution
andDefence
witnesses
testified
to theAbakiga
attacking
therefugees
at
the bureaucommunal
on 13 and 14 April1994.TheykilledPastorMuganga
and
attacked
Karungu’s
houseon 13 and14 April1994.Theylaidsiegeon thereligious
community
of nunson 14 and16 April.
In Gitesi
commune,
theAbakiga
participated
in attacks
at the HomeSt.JeanComplex
on 17 April1994,and theattack
on the
Stadium
on 18 April.In all events,
witnesses
identified
the Abakiga
by their
distinctive
dressandtestified
thattheyattacked
in largenumbers,
oftenin the
hundreds.

63. According
to theevidence,
localbandits,
andthosesometimes
described
as
interahamwe,
joined
theAbakiga
intheir
attacks
ontheTutsis
andthelooting.

64.Thus,froman analysis
of theevidence,
it appears
thatMabanza
commune
was
overrun,
on the13 April1994andon subsequent
dates,
by murderous
hordes
of Hutu
menfromthenorth,
knownas theAbakiga,
andtheircollaborators.
As a consequence,
Mabanza
commune
sankintoa confused
andchaotic
state.

2.2.3 TheConditions
thatPrevailed
in Mabanza
Commune
from25 April1994to
July1994

65. Withthe easing

of theAbakiga
attacks
in the area,around
25 April1994,a
periodof relative
calmensued.
Thisis evidenced
by the communal
Register
of
 Prosecutor
versuslgnaceBagilishema,
ICTR-95-1A-T
Separate
Opinion
of JudgeAsokade Z. Gunawardana
I ~ ~ ~
Outgoing
Mail,
66 whichshowsan increase
in theadministrative
activities
of the
communal
office
from25 April1994,compared
to a lullin suchactivity
during
the
period
13 to 25 April
1994.It wasduring
thisperiod
that,
according
to theAccused,
he managed
to restore
someorderandarrest
certain
persons
involved
in criminal
activities.

66. However,
duringMay and June1994,Mabanzastillsuffered
fromisolated
attacks
by localHutumilitia.
Thisis apparent
fromthe evidence
led by the
Prosecution
in relation
to thekillings
of Kanyabugosi,
thesonsof Witness
B, andof
Tutsis
concealed
in Habayo’s
house,
alongwiththearrest
of Habayo.
TheAccused
testified
to threats
of further
incursions
intoMabanza,
by groups
of Hums,from
neighboring
communes,
in June1994.Hisevidence
is supported
by a letter,
dated24
June1994,fromhimtotheprdfet,
whichstated,

According
totheinformation
atourdisposal,
thepreparations
ofa series
ofattacks
are reportedly
underway in ZONEMURUNDAand ZONERUTSIRO(Northern
Rutsiro)
of Rutsiro
commune;
theattacks
target
MABANZAcommune
between
st
1
and5th67
July
1994,
under
thepretext
that
accomplices
arestill
hidden
inMabanza.

67.It is important
to notethat,according
to theevidence,
by lateApril1994,the
bulkof theTutsi
population
inMabanza
hadfledtheareaorhadgoneintohiding.

2.3 TheUseof theAvailable

Resources
by theAccused

68.TheDefence
submitted
that,thefactthattheAccused
hadusedtheavailable
security
resources,
to themaximum,
to maintain
lawandorder,
showshisbonefides.
In particular,
theAccused
hadusedcivilians
to maintain
lawandorderas night
patrols
andto mantheroadblock.
He alsohadhelda number
of pacification
meetings
throughout
Mabanzacommune.
On numerous
occasions
the Accusedhad usedthe
available
resources
to protect
persons
andproperty,
by preventing
crimeandtaking
action
topunish
theperpetrators
ofcrime.

66 Defence
exhibit
18
67 Prosecution
exhibit
84
 Proseeutor
versusIgnaeeBagilishema,
ICTR-95-1A-T
Separate
Opinion
of JudgeAsokade Z. Gunawardana
t 41~

69.Contrary
to theDefence,
theProsecution
alleged
thattheAccused
heldmeetings
whereby
he encouraged
the attacks.
Although
the Prosecution
accepted
thatthe
Accused
assisted
certain
Tutsis
during
theevents,
it argued
thattheAccused
acted
68
selectively.

2.3.1Using
Civilians
forSecurity

70.In thewakeof theattacks,

theAccused
supported
theformation
of cross-ethnic
nightpatrol
groups
andorganised
civilian
defence
measures
in Mabanza
commune,
initially
from7 to 12April.
Thenight
patrols
weresetup to protect
thepopulation,
irrespective
ofethnicity,
in thecommune.
Theevidence
suggests
thatthenight
patrols
didnotcontinue
after12 April1994,dueto theimminent
attacks
by theAbakiga.
Defence
Witness
BE stated:

[B]ecause
it wasfromthatday,people
fromRutsiro,
that’s
theAbakiga,
started
saying
thattherefugees
whowereatMabanza
communal
office,
including
Hutus
who
werenothelping
theAbakiga,
weregoing
tobekilled.
Itwasonthatday[12April]
thattherewasa major
attack
carried
outby theAbakiga
whocamedownfromthe
hills
69 andpeople
were
afraid
andthegroups
collapsed
andpeople
ranaway.

71.Askedaboutspecific
measures
thathadbeentakento strengthen
thesecurity
after
25April,
theAccused
testified
that,
atthatpoint
intime,
theyhadtried
toelect
in
eachcellule,
peoplewho wouldbe addedto the fivemembersof the cellule
committee.
Thenthecellules
wouldhavefifteen
people
in all,responsible
forthe
maintenance
of lawandorderto faceup to attacks
fromtheAbakiga,
if theywereto
comeback.

72.TheAccused
alsomadeuseof civilian
volunteers
to mantheTrafipro
roadblock
thatwaslocated
closeto thebureau
communal.
TheAccused
admitted
having
setup
theTrafipro
roadblock,
andauthorising
civilians
to operate
it.TheProsecution
alleged
thatthisroadblock
hadbeensetup on 14 April1994,however,
according
to the
Accused,
thismeasure
wasnottakenuntiltheendof April1994.Thismeasure
wasin
linewiththePrimeMinister’s
request
to prdfets,
in a letter
dated27 April1994,

68 Prosecutor’s
Closing
Briefat pages49 - 54

23 3____
 Prosecutor
versusIgnace
Bagilishema,
ICTR-95-lA-T
Separate
Opinion
ofJudgeAsoka
deZ. Gunawardana 1414
referred
by pr~fet
Kayishema,
to thebourgmestre
on 30 April,
in whichthe Prime
Minister
hadrequested,
inter
alia,
thatofficial
roadblocks
should
besetuptoprevent
infiltration
bymembers
oftheRPF.7°

2.3.2Holding
Pacification
Meetings

73. The Chamberhas alreadyanalysed

in lengththe Prosecution
and Defence
evidence
relating
to themeetings
heldin Mabanza
during
theevents.
71 Therefore,
onlya brief
reference
to theevidence
ofpacification
meetings,
in thecontext
ofthis
plea,
would
be appropriate.

74.TheAccused
testified
to holding
pacification
meetings
in MayandJune1994,
after
themajorattacks
of Abakiga
hadstopped
around
25 April1994.In particular,
theAccused
explained
thathe hadwritten
totheconseiller
ofKibilizi
secteur,
asking
himto organise
in Kamusanganya
cellule,
a meeting
on 5 May1994,fortheelection
of a committeeto restorepeace.
72 Anothermeetingon 6 May 1994 with
representatives
of theChurches
andpolitical
parties
followed.
In histestimony
the
Accused
stated
as follows:-

I wanted
first
ofalltoputmyself
together
with
thepolitical
party
representatives
so
thatwe canspeak
thesamelanguage
before
thenextmeeting
ofalltheseother
people.[...]
theintent
wastoensure
security
within
thecommune
andalsotofaceup
tothepossible
attacks
thatwould
comefromoutside.
Youshould
notforgetthefact
thatthecountry
wasatwar.Wewanted
tokeepawaytheinfiltration
bytheRPF.
73

75.In accord
withthetestimony
of theAccused
in respect
of theabovemeeting,
Defence
Witness
ZJtestified
thathe attended
a meeting
chaired
by thebourgmestre
at
thebeginning
of May.He explained
thatmembers
of allthepolitical
parties
were
present
andthatthemeeting
tookplaceat thebureau
communal.
Thesubject
at that
meeting
washowto restore
security
andpeacein thecommune.
TheWitness
ZJ stated
that,

69Transcripts
27April2000atpage48
70Prosecution
exhibit
77
71SeeJudgment
of themajority,
Chapter
V
72Defence
exhibit18,correspondence
no.0303

24
 Prosecutor
versus
IgnaceBagilishema,
ICTR-95-1A-
T
Separate
Opinion
of JudgeAsokade Z. Gunawardana

[t]heBourgmestre
explained
thesituation
whichwasprevailing
within
thecommune,
andhe saidthatsinceeverybody
hadseenthisandwasaware,
thesecurity
hadbeen
disturbed
by thosewhocamefromoutside
thecommune,
andhe insisted
thatpeople
cometogether,
andtheyshould
no longer
fightoneagainst
theother....He said
thatthosewhohadnotbeenkilled,
andwhowerein hiding
should
be keptwell,and
hesaidthatheno longer
wanted
to hearof anykillings.
He spoke
of a project
which
would
involve
setting
up committees
in sectors
andcellules
in order
tosafeguard
the
property
ofthese
people
.74

76. A numberof witnessestestifiedthat they heardthe Accusedmake public

speeches
on similar
lines,in Aprilto June1994.Witness
AS waswiththeAccused
on
about13 April1994,whenthe Accusedaddressed
a groupof Abakigaand exhorted
themto stoplooting.
Witness
WE testified
that,towards
theendof April,
he attended
a meetingheldby the Accusedat whichhe was urgingthe audience
to distinguish
betweentheRPF,the realenemyof the people,andthe Tutsis.At thatmeetingthe
Accusedtoldthe peoplenot to listento the propaganda
from the Abakigaand the
interahamwe,
who cameto killandloot.
75 WitnessZD attended
twomeetings,
in May
or June 1994,wherethe Accusedimploredthe peopleto stop pursuingTutsis.
Witness
KA spokeabouta meeting
in Giharasecteur
at theendof Mayor earlyJune,
at whichtheAccusedencouraged
the peopleto do everything
possible
to prevent
the
Abakigafromkillingandlooting.
76 WitnessKC had attended
two meetings
in June,
wherethe Accusedhad urgedthe peopleto ignorethe Abakigawho were tryingto
dividethem,andaffirmed
77 thattheonlyenemywastheRPF.

77. The Prosecution

WitnessQ, a Tutsiwomanmarriedto a Hutuman, statedthat
she survived
attacksafterseekinghelpfromthe Accused.She explained
that the
Accusedhad held a meetingat the bureaucommunalwherehe statedthat Tutsi
women marriedto Hutu men should not be killed.The Accusedlater gave the
husband
of Witness
Q twoletters
to be readoutto theassailants,
whichstatedthat

73
Transcripts6 June2000at page119
74
Transcripts3 May 2000at pages80-81
7s
Ibidat page41
76Ibidat page58
77
Transcripts
28 April2000at page27
 Prosecutor
versusIgnace
Bagilishema,
ICTR-95-1A-
T
Separate
Opinion
of JudgeAsokade Z. Gunawardana

theyshould
nolonger
participate
inthekillings
andthatthose
whosearched
forTutsis
tobe killed
would
havetoanswer
fortheir
actions.

78.Theabovewitnesses
areconsistent
withregard
to themessage
thatBagilishema
sought
to deliver
to hispeople.
It is apparent
thattheAccused,
in holding
such
meetings,
advocated
solidarity
amongst
thepeople
of Mabanza
in twomainaspects.
First,
thatthepeople
should
stopattacking
theTutsis.
Andsecond
thatthepeople
should
recognise
thattherealenemyis theRPFandnottheTutsis
generally.
Thisis
consistent
withtheposition
taken
upbytheAccused
atthetrial.

2.3.3Providing
Assistance
intheFaceof Attacks

79. The Accused

testified
to the assistance
thathe had givento a religious
community
of nuns,in April1994.Witness
RA,whois a senior
nunin a religious
community,
corroborated
theAccused
andfurther
explained
that,in theafternoon
of
14 April1994,the religious
community
was provided
withthe assistance
of a
policeman,
by theAccused.
On thatday,theAbakiga
hadleft,afterthereligious
community
hadgiventhemmoney.
Thewitness
testified
that,on themorning
of 16
April1994,the Abakigas
returned
in theirhundreds.
On thisoccasion
also,the
religious
community
hadagaingivenmoneyto theAbakigas,
andthepolicemen
had
fired
in theairtodisperse
them.Intheafternoon
of16 April,
theAbakiga
hadcome
again
andsaidthat,
if onthefollowing
daytheTutsi
sisters
werestill
there,
thenthe
entirereligious
community
wouldbe wipedout.Witness
RA explained
thaton 17
April
1994she,along
withfiveother
Tutsi
sisters,
wenttothebourgmestre
forhelp.
TheAccused
provided
a false
HutuID cardforoneof thesisters
at theirrequest,
and
offeredthema placeto hidein the IGA building
of the bureaucommunal.
The
Prosecution
78 doesnotdispute
these
matters.

80.TheAccused
hadalsorequested
civilofficials
of Mabanza
commune
to provide
protection
forTutsis,
their
property,
orthose
whohadassisted
Tutsis.
Forexample,
on
5 May1994,theAccused
senta letter
to theconseiller
of Mushubati
secteur,
urging

78 Prosecutor’s
Closing
Brief,PartI at paragraphs
298-300

26
 Prosecutor
versus
Ignace
Bagilishema,
ICTR-95-
IA- T
Separate
Opinion
ofJudgeAsoka
deZ.Gunawardana 14 r I
himto provide
79 special
protection
fora family
whohadhidden
a Tutsi
in their
home.
On 9 May1994,he wroteto theeonseiller
ofBuhinga
secteur,
asking
himto protect
a
Tutsiwomanwhohadbeenthreatened.
80 Andon 19 and20 May1994,he sentletters
to theeonseiller
of Gihera
seeteur,
andtoa committee
thathadbeensetup torecover
property,
requesting
themto ensure
thattheproperty
abandoned
by displaced
Tutsis,
wasnotmisappropriated.81

2.3.4Hiding
Tutsis
in HisHome

81.TheAccused
alsotestified
to hiding
Tutsis
in hishome,including
Witness
RJ
andhertwochildren,
a girlnamedChantal,
twoorphans,
andPastor
Muganga’s
wife
andchildren.Defence
witnesses
R J, AS,andRB corroborated
hisevidence.
Witness
R J, a Tutsi,
described
howshehadsoughtrefugein thebourgmestre
"s house
andwas
hidden
by theAccused
forabouta month,
alongwithhertwochildren
anda Tutsigirl
namedChantal.
Eventually
theAccused
issued
Witness
RJ witha falseID card,and
Chantal
witha laissez-passer,
bothdocuments
stating
thattheholder
wasa Hutu,thus
enabling
themto travel.
Defence
Witness
AS confirmed
that,around
midApril1994,
he hadseenChantal,
a Tutsi,
hiding
in thehomeoftheAccused.

82. According
to Witness
AS, who was a Pastorhimself,
the Accused
had helped
Pastor
Muganga,
andhadassisted
Pastor
Muganga’s
wifeandchildren
to escape.
In
herwritten
statement,
Defence
Witness
RB stated
thatin April1994,immediately
after
thedeathof President
Habyarimana,
Pastor
Muganga’s
wifeandherchildren
hid
in theresidence
of the Accused.
And thattheAccused
ultimately
helped
Pastor
Muganga’s
wifeandherchildren
to escape.

83.TheRwandan
confessional
statement
of Prosecution
Witness
Z showsthatPastor
Muganga
82 hadhidden
in Bagilishema’s
home.

79
Defence
exhibit
18,correspondence
no.0291
80Defence
exhibit
18,correspondence
no.0294
8~
Defence
exhibit
18,correspondence
nos.0308and0311,respectively
 Prosecutor
versus
Ignace
Bagilishema,
I CTR-9
5-1A-
T
Separate
Opinion
ofJudgeAsoka
deZ.Gunawardana

2.3.5Issuing
FalseIdentification
Documentation

84.The Accused
testified
thathe hadissuedfalseHutuID cardsto Tutsis
from
Mabanza
andlaissez-passers
to Tutsis
fromoutside
Mabanza.
He explained
thatthis
wasdonedeliberately
bycertifying
Tutsipersons
asHutus,
inordertosavelives.
He
hadissuedabout100suchdocuments
during
the events?
3 The Prosecution
didnot
dispute
thattheAccused
issued
falseID cards
andlaissez-passers
butcontended
that
thisdemonstrates
84 howheusedhispower
andauthority,
selectively.

85.Defence
Witness
WE testified
thattheAccused
gavehima HutuID cardto be
given
to a certain
lady,
andtenother
blank
IDcards,
signed
bythebourgmestre,
to be
filled
in byTutsis
fromMabanza
whowere,atthetime,
resident
in Kigali.
Theactof
issuing
tenblank
ID cardsgoescontrary
to theassertion
by theProsecution
thatthe
Accused
actedselectively.
Witness
KC testified
thattheAbakiga
hadlaidsiegeon a
housewherehe hadbeenstaying,
looking
fortheTutsis
whowerethere.
Thewitness
explained
that,
fearing
thereturn
of theAbakiga,
he hadgoneto seethebourgmestre,
whohadissued
"Hutu"
laissez-passers
forfourpersons,
wholaterescaped
to Zaire.
Witness
RA testified
thattheAccused
provided
a falseID cardto oneof theTutsi
sisters
fromthereligious
community.

86.In thiscontext
it maybe notedthattheProsecution
adduced
no evidence
to
indicate
thattheAccused
acted
on a selective
basis
andrefused
toissue
identification
documentation
to a Tutsiperson,
describing
himas a Hutu,uponsucha request
being
made.

87. The Accused

alsotestified
to ordering
falseentries
in the Registre
des
Residents,
85 in regard
to theettmicity
of theTutsirefugees,
whohadto obtain
resident’s
permitsfromthe bureaucommunal
He explained
thata personfrom
another
commune,
whoremained
in Mabanza
commune
for morethanthreedays,had
tobe recorded
intheRegistre
desResidents
in order
to obtain
a resident’s
permit.
The
resident’s
permit
indicated
theethnic
group
of theholder.
TheAccused
stated
thathe

8zDefence
exhibit112
83Transcripts
6 June2000at page59
84Prosecutor’s
Closing
BriefPartI atparagraphs
294-298
 Prosecutor
versus
lgnace
Bagilishema,
ICTR-95_lA_T
Separate
Opinion
of dudge
Asoka
deZ.Gunawardana
/4 0 ~
hadauthorised
entries
in theRegistre
desResidents
andhadissued
resident’s
permits,
whichindicated
thatthepersons
wereHutus,
whereas
in facttheywereTutsis,
in
orderto savelives.
According
to theAccused,
up to 60%of theethnic
identities
recorded
in theRegistre
desResidents
hadbeenfalsified,
uponhisinstruction.
He
added
thatalltheTutsis
whohadbeenissued
resident’s
permits
during
theevents
in
1994,in Mabanza,
wereissued
resident’s
permits,
whichindicated
thattheywere
86
’Hutus’.

2.3.6Punishing
thePerpetrators
of Crimes

88.According
to theAccused,
afteraround
25 April1994,he hadre-gained
enough
control
in hiscommune
to arrest
andtransfer
to theProsecutor
in Kibuye,
those
persons
suspected
of murder
or othercrimes
against
Tutsis.
Notwithstanding
the
inadequacy
of security
personnel,
theAccused
testified
that,between
MayandJune
1994,
he hadtransferred
sixteen
people
to thePublic
Prosecutor
inKibuye,
foralleged
crimes.

89.Evidence
of thesetransfers
is contained
in thecommunal
Register
of Outgoing
Mail.Forexample,
theAccused
referred
to a letter
senton 27 April1994,to the
Prosecutor
of theRepublic,
whichis recorded
in thecommunal
Register
of Outgoing
Mail,
87 concerning
the transfer
of the suspects
in respect
of the murders
of
Biziyaremye
andBampunirineza.
Further,
in a letter
of 3 May1994,to theProsecutor
of theRepublic,
s8 theAccused
stated
thathe is transferring
fivenamedpersons
accused
of killing
a certain
Kangabe,
on ethnic
grounds.
Numerous
otherarrests
and
transfers
aredocumented
intheRegister
of Outgoing
Mail,
which
indicates
thatletters
of transfer,
dating
from24 Maythrough
to 12 July1994,weresentby theAccused
to
theProsecutor,
89 inKibuye.

8sDefence
exhibit
93
86 Itisapparent
thatallthose
whohadbeenrecorded
intheRegistre
desResidents,
inMabanza,
during
1994,wererecorded
asbeingfromthe’Hum’ethnic
group.SeeDefence
exhibit93
s7 Defence
exhibit
18,correspondence
no.0279
88 Defence
exhibit
18,correspondence
no.0286
s9 Seee.g.,Defence
exhibit18,correspondence
nos.0135,0320,0332,0340,0341,0353,0367,and
0368

29
 Separate
Opinion
ofJudgeAsoka
deZ.Gunawardana

90.The Accused
further
pointed
out that,by letters
dated2 May 1994,he had
suspendedhis own communaldriver,EphraimNshimyimana,
and a communal
policeman,
Anastase
Munyandamutsa,
because
theyhadstolenthe enginefromthe
carof a Tutsirefugee.
9° TheAccused
hadplaced
themat thedisposal
oftheOffice
of
thePublic
Prosecutor,
inKibuye,
andhadrequested
an investigation.

91.TheProsecution
accepted
thatsixteen
people
werearrested
andtransferred
to the
Prosecutor
in Kibuye,
butpointed
outthatno suchtransfers
wererecorded
from8 to
25 April1994.
9t In thisregard,
theAccused
testified
thatduring
thatperiod,
the
administrative
activities
of thecommune
wereparalysed.
He addedthat,fromabout
13 to 25 April1994,therewerethousands
of attackers
coming
fromtheNorth,
who
could
notbe identified,
butafter
thatperiod
itwasmucheasier
toidentify
those
who
hadcommitted
thecrimes.
92 Thisexplanation
of theAccused
is consistent
withthe
evidence
relating
to theinvasion
of Mabanza
commune
by theAbakiga,
fromabout13
April
1994,
andthelevel
ofviolence
thatensued,
thereafter.

2.3.7 Appealing
to Higher
Authorities

92.TheAccused
testified
that,on 25 April1994,he attended
a meeting
in Kibuye
town,withprdfet
Kayishema
and theotherbourgmestres
93 wherehe deplored
the
massacres
thathad occurred
in Kibuyetown,and had requested
the superior
authorities
toavert
suchsituations
inthefuture.
94Soonthereafter,
on 3 May1994,
the
Accused
wentto Kibuyetownagainto attenda meeting
withJeanKambanda,
the
Prime
Minister.
95 Atthatmeeting
theAccused
asserted
that,
heraised
theissue
of the
massacres
withthePrimeMinister
and,in particular,
therequirement
toattend
tothe
needs
96 ofthevictims
oftheatrocities,
committed
intheregion.

90 Defence
exhibit
94and95areletters,
dated2 May1994,fromtheAccused
tothesaiddriver
andto
thecommunalpoliceman,respectively
91Prosecutor’s
Closing
BriefPartI atparagraph
276
92Transcripts
6 June2000at pages116-117
93Ibidatpages100-101
94Transcripts
5 June2000atpage69
95Transcripts
9 June2000at page60.
96Transcripts
5 June2000at pages66-67

30 ~__..___
 Separate
Opinion
ofJudge
AsokadeZ.Gunawardana
14"07"
93.Thereis no independent
evidence
to support
theabovetestimony
of theAccused,
however
theProsecution
hasnotproved
otherwise.
If it wereto be accepted
thatthe
Accused
madetheseappeals
to higher
authorities,
it wouldreflect
hisbonefide
intention
to helptherefugees.
However,
whether
suchentreaties
wouldhaveborne
fruit,
hasto beassessed
in thelight
of thereality
ofthesituation
thatprevailed
in
Kibuye
Prefecture
atthattime.
According
to theProsecution,
thecivilauthorities
of
Kibuyeand the Gendarmerie
National
playeda central
rolein themassacres
in
Kibuyetown.Indeed,
the pr~fetof Kibuye,
Kayishema,
who is the hierarchical
superior
of the Accused,
has beenconvicted
by thisTribunal
for leadingthe
massacres
at the KibuyeStadium
and HomeSt Jean.97 The PrimeMinister,
Jean
Kambanda,
hasconfessed
to hisrolein supporting
thegenocide.
9s Thiswouldhave
obviously
limited
theability
of theAccused
to seekpunishment
forthoseinvolved
in
the massacres
in Gitesi
commune,
wheretheKibuyeStadium
and theHomeSt.Jean
aresituated.
Although
theappeals
madeby theAccused
to theprOfet
ofKibuye
andto
thePrimeMinister
weretheappropriate
stepstotake,according
totheadministrative
setup thatexisted
at thattime,
however
thematter
of favourable
response
wasoutside
hiscontrol.

2.4 SomeAdditional
Factors
thatImpaired
theAbility
of theAccused
to Usethe
Resources

94.In addition
to theinadequate
resources
available
to the Accused
duringthe
events,
theDefence
adduced
evidence
of several
otherfactors,
whichaffected
the
ability
oftheAccused
toprotect
theTutsis
andtomaintain
lawandorder.

2.4.1TheAttacks
on theAccused
by theAbakiga

95. TheAccused
testified
that,on 13 April1994,theAbakiga
cameevento his
house
in orderto seekoutTutsis
thathe washiding
there.
He explained,
theAbakiga
"threatened
me,telling
me I am an Inyenzi,
an Inkotanyi",
andtheyaskedwhereI had
hidden
theTutsis
at thecommunal
office.
He added,
"seeing
howferocious
theywere,

97 SeeProsecutor
vs Clement
Kayishema
andObedRuzindana,
(ICTR-95-
l-T),Judgment,
21 May
1998
9s SeeProsecutor
vs JeanKambanda,
(ICTR-97-23-S),
Judgment
andSentence,
4 September
1998
 Separate
Opinion
ofJudge
Asoka
deZ. Gunawardana

I gavethem10.000Francsfor themto leavemy houseand theyleft....

" The
evidence
of WitnessRJ appearsto corroborate
thisevent. WitnessRJ, a Tutsi,
testified
that,from8 April1994,shehadsought
refuge
in thebourgmestre’s
house.
Shewashidden
by theAccused
in theservants’
quarters,
alongwitha Tutsigirl
namedChantal.
Thewitness
testified
thattheAccused
"cameto seeus oncebecause
theAbakiga
werecoming
to attack
andhe wanted
to warnus.He advised
us to close
thedoor,andthat’s
whatwe did.[...]We heardthenoisethattheyweremaking
during
theattacks,
andwe wouldalsohearthewhistles
theywereblowing
....
,,99

96. Further
support
forthisincident
is contained
in the Rwandan
confessional
statement
of Prosecution
Witness
Z, dated22June1998,wherein
he stated,

On14/4/94...the
former
assistant
bourgmestre
[Semanza]
ordered
thosewhowere
withhim(theAbakiga
he waslodging)
to bring
along
theTutsi[s]
whohadtaken
refuge
attheBourgmestre’s
house.
Immediately,
theyallwenttotheBourgmestre’s
homewhere
theycaused
disturbances,
whichfrightened
theBourgmestre.
1°°

97.Witness
KA testified
in courtthat,he hadbeentold,by twopeople,
aboutan
attack
on thebourgmestre’s
house.

98.Thisis thefirstexample
of thedirect
challenge
totheauthority
oftheAccused
by theAbakiga.

99.A second
confrontation
occurred
a fewdayslater.
TheAccused
stated
that,on 18
April1994at aboutat 8 a.m.he,escorted
by two policemen,
andaccompanied
by
somePastors
andconseillers
of theneighbourhood,
confronted
theAbakiga,
at the
Rubengera
Parish.
He addressed
thegroupof about100-200
Abakiga
andaskedthem
"never
to comebackagainto Mabanza"
andadded"[y]ou
are looking
forenemies,
andthereareno enemies
in Mabanza."
However,
theAbakiga
disregarded
hisplea.
TheAccused
washumiliated
and,according
to him,feltthathe was"nothing
in front
of [his]people.
’’1°1Witness
RA,corroborating
theAccused,
testified
in courtthat

99Transcripts
23 May2000at page15(incamera)
tooDefence
exhibit
112
~olTranscripts
5 June2000atpages140-141

32
 Prosecutor
versus
Ignace
Bagilishema,
ICTR-
9 5-1A-T
SeparateOpinionofJudgeAsokadeZ. Gunawardana Ii~O~[l"

Pastor
Eliphase,
whohadbeenwiththeAccused
at thetime,hadinformed
herof this
incident.

100.Prosecution
WitnessZ testified
to a similarconfrontation
betweenthe
Accused
andthe Abakiga,
although
it is unclear
whether
he wasreferring
to the
confrontation
on 18 April1994.He stated
thatonemorning
before
killings
at the
GatwaroStadium,the Accusedhelda meetingat RubengeraParishwherehe
addressed
theAbakiga.
TheAccused
hadtoldtheAbakiga
thathe had"hadenough
of
their
killings
andthat
they
should
stop
thekillings
[...],,.102

101. As wellas the aboveconfrontations

thathe had experienced
withthe
Abakiga,
theAccused
further
testified
that,on 14 April
1994,theAbakiga
looted
the
homeof hisparents.
He addedthattheAbakiga
took"everything,
thesofas,
the
chairs,
’’1°3 food,
everything.

102.Thus,the evidence
frombothProsecution
andDefence
witnesses
showsthat
the Accused
had beenthreatened
by the Abakigain his own homeand had been
confronted
by themon other
occasions,
in Mabanza.
These
incidents
illustrate
thatthe
Abakiga
didnotrespect
theauthority
of theAccused
andwerenotamenable
to the
commands
of the Accused.

2.4.2TheAccused
Considered
as an Accomplice
of theRPF

103.TheAccused
testified
thathe wasconsidered
to be an accomplice
of theRPF
bysomeof theHutuattackers.
Hedenied
thathe wasin factan accomplice,
andstated
thathe always
triedto defend
hiscommune
against
theRPFinfiltration
andinvasion.
In theletter,
dated24 June1994,fromBagilishema
to prdfet
Kayishema,
theAccused
referred
to a seriesof imminent
attacks
on Mabanza,
fromRutsiro
commune,
and
emphasised
that"theyhavealsodaredto include
myselfamongthe accomplices
stating
thatI ammarried
toa Tutsi
woman.
’’1°4
Heexplained
inhistestimony
incourt
that,"therewereseveral
reasons
[whyI was suspected
to be an accomplice]
I

102Transcripts
8 February
2000at pages21-23
io3Transcripts
5 June2000at page125
104Prosecution
exhibit
84

33
 ro
ecutorver
s’
oceBogi,ishemo,C
,,A
Separate
Opinion
140’
ofJudge
Asoka
de Z.Gunawardana

mentioned
thatof having
beencongratulated
on RadioMuhabura,
therewasalsothe
to a Tutsiwoman...." In response
factthatI wasmarried to a question
fromthe
Bench,
"yourposition
thatthepeople
in theNorthsuspected
youas an accomplice
is
stated
in thisletter
clearly
....Thatis yourposition
eventodayhere?
’’1°5The
Accused
answered
in theaffirmative.
In my view,thisletter,
written
during
the
events,
lendsstrong
support
to theassertion
by theAccused
thathe himself
was
considered,
bytheattackers
fromtheNorth,
asan accomplice
of theRPF.

104.According
to the Accused,
a further
reasonwhy he was considered
as an
accomplice
wasbecause
of theannouncements
on theRadioMuhabura,
whichwas a
radiostationthatsupported
the RPF.WitnessBE testifiedto bearingan
announcement,
justbefore
therefugees
weresentto Kibuye
on 13 April1994,which
congratulated
theAccused
by stating
that,"allotherbourgmestres
should
follow
the
example
of thebourgmestre
of Mabanza."
Witness
ZD testified
to hearing
on Radio
Muhabura,
between
11 and17 April,
an announcement,
whichstated
that,"theywere
grateful
for. . . howIgnace
behaved
in orderto contain
thesituation
andalsoto
protect
hispeople.
’’1°6Thisevidence
is consistent
withtheposition
oftheAccused
that RadioMuhaburahad made positiveannouncements,
in mid April1994,
concerning
him.Thisalsoconfirms
theProsecution
admission
that,theAccused
acted
ingoodfaith,
prior
to12April
1994.

105.Therecan be littledoubtthata bourgmestre

supporting
the genocide
was
likely
to wieldmoreinfluence
overtheattackers
andtherefore
be ableto control
them,thana bourgmestre
whowasseenas neutral
or opposed
to thegenocide.
Thus
theevidence
seemsto indicate
thattheAccused,
as a bourgmestre
falling
intothe
latter
category,
would
nothavebeenabletoinfluence
orcontrol
theAbakiga.

2.4.3 TheRelationship
of theAccused
withSemanza

106. TheDefence
submitted
thatbefore
andduring
theevents,
Bagilishema
hadlost
control
overhisassistant
bourgmestre,
Crlestin
Semanza,
dueto political
powerthat

105Transcripts
7 June2000atpages110-111
~06TheDefence
statedinitsoralclosing
arguments
thatithadrequested
thesetranscripts
fromRadio
Muhabura,
whichrequest
wasdenied.
 Separate
Opinion
ofJudgeAsoka
de Z Gunawardana

Semanza
hadbuiltforhimself
andhisassociation
withtheAbakiga.
1°7In addition,
Semanza
wasplanning
andplotting
to getridoftheAccused
fromhisposition,
so that
Semanza
couldbecome
thebourgmestre.
Thisstruggle
persisted
untilthedeparture
of
theAccused
in July1994,whenSemanza
achieved
hisobjective,
andsucceeded
the
Accusedas bourgemestre
of Mabanza.The Defencearguedthatthisfurther
undermined
theability
of theAccused
to maintain
lawandorder.

107.The Prosecution
arguedthatthe Accusedhad deliberately
createdthe
impression
thathe hadproblems
withSemanza,
in orderto distance
himself
fromthe
atrocities
l°s committed
by Semanza,
forwhichheis responsible,

108.TheAccused
testified
that,priorto 1994,he wanted
to sendSemanza
backto
theMinistry
ofInterior:

Mr.Semanza
Celestin
became
unmanageable.
I triedto manage
him,so I had
suggested
thathebesent
back
totheMinistry,
thecivil
service
butthepr~fet
didnot,
yestheprefer
didnotcomplywithmy request.
He didnotwantto support
my
proposal
1°9 which
I hadsent
in.

TheAccused
gaveas reasons
thatSemanza
hadembezzled
money,
la° attended
work
onlywhenever
he wanted,
become
illdisciplined,
andwasuncontrollable.

109.Evidence
of thisfractious
relationship
canbe foundin letters
written
even
before
1994;thesubstance
of whichwasnotdisputed
by theProsecution.
11~A letter
dated16 December
1992,112
fromBagilishema
to Semanza,
andthe replythereto,
dated17 December
1992,
ll3 concerned
Semanza’s
absence
fromwork.The letters
indicate
thatthetwomenhada relationship
of distrust;
in thesaidreply,
Semanza

107DefenceClosingBriefatpages102-108
108Prosecutor’s
ClosingBriefPartI atparagraph
278
t09Transcripts
1 June2000atpages72-73
110In a documententitled’Evaluation
SheetCovering
Period
1 April1993to May1994’,
signed
by
Bagilishema,
reference
is madeto themisappropriation
of communal
fundsby Semanza.
See,Defence
exhibit
20
111Prosecution
Counsel
stated,"allthesedocuments
concerning
Semanza
takingoverarenotdisputed."
SeeTranscripts
1 June2000
112Defence
exhibit
24
1~3Defence
exhibit
23

35
 Separate
Opinion
ofJudgeAsokadeZ Gunawardana

stated
"ifyouwerenotsetting
a trapforme,it wouldbe incomprehensible
thatyou
should
be denying
thatyouactually
gaveme permission
yourself."

110.In another
letter,
dated19 December
1992,fromBagilishema
to Semanza,
B agilishema
wrote:

I amsorry
toinform
youthatitisnotgoodtolieandespecially
tolieinorder
to
incriminate
yoursuperior.
[...]
Since
youhavealways
tried
tooutsmart
yoursuperior
andshyawayfromother
important,
official
duties,
I amforced
tosendyoubackat
thedisposal
ofthesupervisory
ministries
which
employed
you)14

TheAccused
testified
thatit wasnotwithin
his powerto dismiss
theassistant
bourgmestres.
Therefore,
he hadsentthisletter
totheMinistry
of Interior
witha view
to havingSemanza
sentback,but he had not received
a response.
The Accused
explained
that,following
therefusal
of hissuperiors
to remove
Semanza,
Semanza
felt"untouchable
anddidwhatever
pleased
him.
’’115
Theevidence
of theAccused
is in
accord
withtheopinion
of Prosecution
expert
witness
AndreGuichaoua,
whoopined
that,
a bourgmestre’s
powers
wereproportional
to theinfluence
thathe wielded
with
thehigher
government
officials,
atthenational
level.

111.The evidence
indicates
thatthe political
rivalry
between
the Accused
and
Semanza
beganin 1992andcontinued
rightup to theevents
in 1994.According
to the
Accused,
it was following
the introduction
of multipartyism
in 1992thathis
relationship
with Semanza,who was the secretaryof the rivalMouvement
DOmoeratique
R~publicain
(MDR)Party,
deteriorated.
Eachof thepolitical
parties
wanted
to havea representative
in thecommune.
Witness
ZD,whowasat thetimeof
theevents
a senior
official
ofanopposition
political
party,
stated
thatin1994mostof
thepeople
in Mabanza
belonged
to theMDRparty.
He addedthatthestrategy
of the
opposition
parties
wasto replace
Bagilishema
(theMRNDcandidate)
withtheMDR
candidate,
Semanza,
andthatSemanza
hadthesupport
of thetopMDRpartyofficial.
Witness
ZD agreed
thatSemanza
wasacting
"inan irreverent
manner,
particularly
in

1~4Defence
exhibit
22
llsTranscripts
1 June2000atpage85
 Separate
Opinion
ofJudge
AsokadeZ.Gunawardana

1994.
’’116Defence
Witness
KA testified
thatin midApril,
it wasSemanza
whowasin
control
of thecommune
"during
thatperiodtheMDRwas stronger
because
theMDR
members
werethemajority
[...]Semanza
was,therefore,
thefavourite
of thepeople,
so tospeak,
andhadaneyeon theposition
of bourgmestre.
’d t7 Headdedthat,
during
theMDR meetings,
themembers
usedto singthatthe bourgmestre
shouldresign.
Expert
witness
Jean-Francois
Rouxwho,up to April1994,hadbeena project
leader
on a development
project
in Kibuye
Prefecture,
alsoconfirmed
thattherehadbeena
conflict
between
Bagilishema
andSemanza.
He addedthathe hadpersonally
received
a letter
fromSemanza,
wherein
Semanza
questioned
theauthority
of Bagilishema.

112.Theassertion
by the Accused
thathisfractious
relationship
withSemanza
continued
throughout
theevents,
untilJuly1994,
is evident
in a letter
dated
24 June
1994,fromBagilishema
to prdfet
Kayishema.
118Therein,
theAccused
referred
to his
problems
withhispolitical
rivals:
"I wouldliketo inform
youthatthisrtunour
is
spread,
by my political
opponents,
whoseintention
is to takemy place."
He explained
in testimony
thathe hadin mind,amongst
others,
Semanza.
In response
to a question
fromtheBench"[a]nd
thatis theposition
thatyouaretaking
up in thiscourteven
today,
thatSemanza
wasdesigning
or planning
to takeoverfromyou?"theAccused
answered
intheaffirmative.

113.The Prosecution
did not disputethatSemanzaultimately
achievedhis
objective
of becoming
thebourgmestre
of Mabanza,
forhe succeeded
theAccused
as
bourgmestre,
inwhichposthe remained
until
hisarrest
in November
1994.Xl
9

2.4.4 TheRelationship
of Semanza
withtheAbakiga

114.Prosecution
andDefence
witnesses
testified
that,during
theevents,
Semanza
hadbeenclosely
associated
withtheAbakiga.
TheAccused
andWitness
KA stated
thatSemanza
camefromthe sameregion
as theAbakiga.
TheProsecution
did not

n6 Transcripts
3 May2000at page29 (incamera)
ll7Transcripts
22May2000atpage105
118Prosecution
exhibit
84
119In thisregardtheAccusedassertedthatSemanza
hadappointed
himself
as bourgmestre,
whereas
thelawprovided
that,
insuchcircumstances,
thebourgmestre
should
bereplaced
by a conseiller.

37
_,~___
 Separate
Opinion
of JudgeAsokade 7..Gunawardana

dispute
theseassertions.
Indeed,
it waspartof theProsecution
casethatSemanza
was
acting
inconcert
withtheAbakiga
andother
attackers.

115.Witness
KA testified
that,in mid April1994,he had observed
a meeting
outside
theRubengera
School
whereSemanza
wasaddressing
a groupof Abakiga
and
others.
Semanza
exhorted
the otheryoungmen fromMabanza
to helpthe Abakiga
killtheTutsis
andto loot.According
to thesaidwitness,
Semanza
wasacting
as a
political
leader
oftheAbakiga.

116.Evidence
alsosuggests
thatSemanza
hadbeenlodging
Abakiga
in hishome,
during
theevents.
Witness
Z, in theRwandan
confessional
statement,
dated22 June
1998,stated
"[o]n14/4/94
. . .theformer
assistant
bourgmestre
ordered
thosewho
werewithhim(theAbakiga
he waslodging)
to bringalongtheTutsiwhohadtaken
refuge
at thebourgmestre’s
house."12°
(Emphasis
added)

117.It is apparent
fromtheaboveanalysis
thattherelationship
of theAccused
with
hisassistant
bourgmestre
Semanza
wasoneof distrust
andrivalry.
Therefore,
it is
reasonable
toinfer
that,
during
theevents,
theAccused
hadno significant
control
over
Semanza,
which
debilitated
hisauthority.

PART IV
Documentary
Evidence
thatCorroborates
the Position
TakenUp by the Accused

118.It is to be observed
thatseveral
aspects
of theposition
takenup by the
Accused
arecorroborated
by independent
documentary
evidence.
In thatregard
two
of thedocuments
already
mentioned,
deserve
further
analysis,
sincetheylendsupport
to thedefence
caseas a whole:
via,theletter
fromBagilishema
topr~fet
Kayishema,
dated24 June1994,andtheconfessional
statement
of Prosecution
Witness
Z, dated
22 June1998.

~z0Defence
exhibit
112

38 ~___
 Prosecutor
versus
Ignace
Bagilishema,
ICTR-9 5-1A-T
Separate
Opinion
of JudgeAsokade Z. Gunawardana

The LetterDated24 June 1994 (Prosecution

exhibit84)

119. The lettersent by the Accusedto theprdfet

Kayishema,
dated24 June1994,
bearssuchsignificance
to thedefence
takenup in thiscase,thatit requires
careful
consideration.
It is important
to notethat,although
thisletter
waswritten
in June
1994,it lendscorroboration
to the defence
theAccusedhastakenup in thistrial,
almostsixyearslater.TheAccused
certainly
couldnothaveenvisaged
facinga trial
of thisnature
at thetimethathe wrotetheletter.
Henceit enhances
thecredibility
of
the mattersurgedtherein.
The Accusedhad writtenthisletteron 24 June1994,to
Kayishema,
whowas theprdfetof KibuyePrefecture,
statingthathe was considered
to be an accomplice,
by theHutuattackers
fromthenorth,because
he wasmarried
to
a Tutsiwoman.Thematters
arising
fromthisletterwereclarified,
whentheAccused
gaveevidence
in court,
on 7 June2000.

120. The Accusedhad assertedin the said letterthat the rumorthat he is an

accomplice
hadbeenspreadby hispolitical
opponents,
whoseintention
it wasto take
hisplace.On beingquestioned
by theBenchhe explained
as follows;

Q.Inthatletter
inthefirst
paragraph,
thelastsentence,
youhaveasserted
that
thatthe--theyhavealso[dared]
to include
myself
amongtheaccomplices
stating
thatI ammarried
toa Tutsi
woman.
Youhavestated
that.
A. Yes,YourHonour.
Q. Thatisexactly
theposition
youarestating
inthisCourt
today
also,
that
youweresuspected
as an accomplice?
A. Therewere,therewereseveral
reasons,
I mentioned
thatof having
been
congratulated
on Radio
Muhabura,
therewasalsothefactthatI wasmarried
to a Tutsiwomanandso on andso forth.
Butit wassupposed
thatmy wife
wasTutsi.
Butas I havesaidmy wife,my wife’s
mother
wasTutsiandher
father
isHutu.
Q.Thatisclear.
Butyourposition
thatthepeople
in thenorth
suspected
you
asanaccomplice
isstated
inthisletter
clearly,
isn’t
thatwhatyouhavestated
in?Thatisyourposition
eventoday,
here?
A. Yes.
 Prosecutor
versus
lgnace
Bagilishema,
I CTR-9 5-1A-
T
SeparateOpinionofJudgeAsokadeZ. Gunawardana 1~9~

Q. Thenthesecond
sentence
in thesecond
paragraph,
we do notwantto be
considered
as defeated
so thatpeoplefromKayoveandRutsiro
communes
needto cometo lootatanytime.
Whatdo youmeanby defeated,
there?
A. I wanted
to saythatwe wereundersiegeby thispopulation
whocame
underthepretext
of looking
foraccomplices
andtheycameandtheylooted
in anymanner
thattheywish.
Q. What,whatdo youunderstand
by thetermaccomplice?
Whatdidyou
really
meanto convey?
A. In my understanding,
thisis someone
whowasworking
withtheRPF--for
theRPF.
Q. So, thatis what you intendedto conveywhenyou used the word
accomplice
intheletter?
A. Yes,indeed,
YourHonour.
Q. Thenon thethirdparagraph
youhaveexplained
theproblem
aboutyour
wife,
andyougoon to assert
thatyouare[accused
of being]
an accomplice
becausetheythinkthatyousupportthe Humwho aremarriedto Tutsi
women,
thatis onereason.
Thesecond
reason
is thatyouaresupporting
the
Tutsi
population?
A. Yes,thatis so,YourHonour.

121.TheAccusedpointed
outthattherewereimminent
attacksfromthenorth.It is
to be observed
thatthemaincomplaint
in the saidletterwas theimminent
attacks
fromzoneMurundaand zone Rutsiro(Northern
Rutsiro).
He specifically
requested
thepr~fet
to do his,"utmost
to stoptheseattacks..."
andstated
"...thatis whyyour
assistance
is urgently
solicited."
TheAccused
in hisevidence
explained
thesituation
in thefollowing
terms;

Q. Thenin thefinal
paragraph,
therefore,
I would
likethehonourable
prkfet
to requestso andso.Andyouare thenin thefinalparagraph,
second
sentence,
youhavetakenup a particular
position
thatshould
be prevented,
thatis which
canresult
in confrontation
between
Hums,
youarereferring
to
theHutusin thenorth,
thenHumsin Mabanza
commune.
Andin thatcontext
youhavestated
thatwhatwepresently
need,
themostis,theunity
tofacethe
Inyenzi/Inkotanyi.
Whatdidyoumeanby that?
A. WhatI meantwasthatif thesepeoplefromthenorthwereto attack
Mabanza
commune
in particular,
if theywereto attack
me in person,
I had
 Separate
Opinion
of JudgeAsokade Z Gunawardana

my family,
I hadmy family
andmy friends,
we couldbe involved
in killings
andthentherewerepeople
whowereon theothersidein Gitarama,
they
could
usethistokillallofus.So,I wasthinking
thatitwould
bea goodidea
thatwe cometogether
because
together
we stand,
so thatwe canfaceup to
theRPFInkotanyi
attack.
Q. So...wasit yourintention
to pointoutthecommon
enemy?
A.Yes,that’s
quite
so.
Q. And thecommonenemyyouhaveidentified
in thisletterto be the
Inkotanyi
andtheInyenzi?
A. Yes,YourHonour,
youareright.
Q.Andthatistheposition
youaretaking
upinthisCourt
eventoday,
thatnot
theTutsipopulation
buttheInkotanyi
andInyenzi
aretheenemies
of the
people?
A.Yes,it’sstill
thesameposition
andI’msaying
thatifpeople
frominside
hadcometogether
we wouldn’t
havehadtoleaveourcountry.

122.Althoughthe said requestwas made for urgenthelp in earnest,it was the

evidence
of theAccused
thatno suchassistance
wasgiven;

Q. Now,was thereany actiontakenby the prefectof the Kibuyein

consequence
ofthisletter?
A.I gavehimthisreport
buthenever
gavemeanyreply.
Q. In otherwords,
he didn’t
giveyouanysupport
or pursue
thecomplaint,
[or]takeanysuitable
action
inpursuance
ofyourrequest?
A. He didn’t
takeanymeasures
butas faras I am concerned,
I wasto give
hima warning
in casesomething
happen,
in caseI dieso thatpeople
are
awareof theconditions
underwhich
I waskilled.
Thatwasmyaim.
Q. Haveyoumadesimilar
representation
to anyother
authority
at about
that
time?
A.No,thisistheonlyletter
thatI wrote,
andthenearest
authority
tomewas
thepr~fet,
theothers,
itwasn’t
easyformetoreach
them.

123.It is discemible
fromtheaboveanalysis
of thesaidletter
as testified
to by the
Accused,
thattheposition
he takesup in courtnowin regard
to thefollowing
matters
is thesame.

41 @___
 Separate
Opinion
ofJudgeAsokadeZ Gunawardana

1. Thefactthattheresources
available
to himin June1994wereinadequate.
2. Thatthere
wasan imminent
attack
fromtheNorth
at thattime.
3. Thathe believed
thathe was considered
an accomplice
by the Hutu
attackers.
4. Thathis communal
employees
undermined
him.

124.The Prosecution
interpreted
the letterdifferently.
According
to the
Prosecution,
theAccused
wrotetheletter
to Kayishema
to inform
himthatadditional
Hutuattackers
wereno longer
necessary
in Mabanza
commune)
21 Theinterpretation
placed
by theProsecution
isunsupported,
anddoesnotbearscrutiny.

125.TheProsecution
further
argued
thatthestatements
contained
in theletter
that
Mabanza
was"self-sufficient"
andwould"defend
itself"
indicated
thattheAccused
hadcontrol
overtheevents.122
However,
thestatement
by theAccused
thatMabanza
was"self-sufficient"
maybe interpreted
tomeanthatthepeople
of Mabanza
wereable
to checkfor RPFaccomplices,
ratherthanhavingtheability
to fighttheHutu
attackers
fromotherregions.
And,thestatement
thatMabanza
would"defend
itself",
appeared
to predict
an unwanted
confrontation
between
Hutusat a timewhenthe
available
resources
areneeded
to defend
against
theRPFthreat.
It is clear
thatthe
mainpurpose
of writing
thesaidletter
wasto outline
theproblems
in regard
to
security
in Mabanza,
andto request
urgent
helpfromtheKibuyeauthorities.
If
Bagilishema
hadbeenin control
of thesituation,
therewouldhavebeenno reason
to
makesuchan urgent
request
to thepr~fet.

126.Thusthe position
of the Accused
takenup in courtis corroborated
by the
contents
of thesaidletter
whichwaswritten
as farbackas June1994.Although
the
saidletter
waswritten
in June1994,it appears
to mirror
thesituation
in Mabanza
commune,
during
theperiod
Aprilto July1994.Andit mayproperly
be deduced
that
thesecurity
problems
facedby theAccused
in April1994wereevengreater,
than
those
faced
in lateJune1994,
whenthesaidletter
waswritten.

~z~Prosecutor’s
Closing
Briefatparagraph
72
~z2Prosecutor’s
closing
argument,
transcripts
18October
2000at pages
220- 239
 Prosecutor
versus
Ignace
Bagilishema,
ICTR-9 5-1A-T
Separate
Opinion
of JudgeAsokade Z. Gunawardana

t
The Confessional
Statement
of Prosecution
Witness
Z
(Defence
exhibit
112)

127.Corroboration
of theDefence
caseis alsofoundin theconfessional
statement
of Prosecution
WitnessZ.123 WitnessZ madethisconfession
to the Rwandan
authorities,
on 22 June1998,longbefore
hisfirstwitness
statement
to Tribunal
investigators
on 18 September
1999,and histestimony
beforethisChamber
on 8
February
2000.At no pointin hisconfessional
statement
did Witness
Z directly
implicate
theAccused.
It is reasonable
to assume
thatat thetimewhenWitness
Z
madehisconfessional
statement
to theRwandan
authorities,
he didnotknowthathe
would
betestifying
against
theAccused.
Inthecourse
ofhisconfession,
in relation
to
hisrolein thekilling
ofPastor
Muganga,
Witness
Z stated
thefollowing:

On14/04/94,
at about
9am,he cameoutof theRubengera
school
complex
where
he
worked
andsoughtrefuge
in thehomeof Bourgmestre
Bagilishema
Ignace;
but
before
he arrived
there,
he wasfirststoppedby a mannamedSemanza,
then
Bourgmestre
Assistant...
; andlater,
hewassaved
bya mannamed
Gafurafura
Isaie.
Fromthere,
hewenttotheBourgmestre’s
house.
Atabout
onehourlater,
theformer
assistant
Bourgmestre
[Semanza]
ordered
those
whowerewithhim(theAbakiga
he
waslodging)
tobring
along
theTutsi[s]
whohadtaken
refuge
attheBourgmestre’s
house.
Immediately
theyallwentto theBourgmestre’s
homewheretheycaused
disturbances,
which
frightened
theBourgmestre.
[...]

128.The abovestatement
by Witness
Z, a Prosecution
witness,
lendsindependent
corroboration
totheposition
oftheAccused
inrelation
tothefollowing;

Thata Tutsi
hadtakenrefuge
in theAccused’s
home.
,

2. ThatAbakiga
werelodging
in assistant
bourgmestre
Semanza’s
home
andtheyobeyed
hisorders.
ThatAbakiga
caused
disturbances
at theAccused’s
homeon 14 April
.

1994.
ThatAbakiga
frightened
theAccused.
.

123Defence
exhibit
1 12

43 y~__.._
 Prosecutor
versuslgnaee
Bagilishema,
ICTR-95-1A-
T
Separate
Opinion
of JudgeAsokade Z. Gunawardana
~ ~~

129.Further,
it is implicit
in theactof Semanza
ordering
theAbakiga
to bringthe
Tutsihiding
in thebourgmestre’s
housethatSemanza
defied
theauthority
of the
Accused
andthattheywereat crosspurposes.
Thisincident
highlights
theanimosity
thatprevailed
between
theAccused
and Semanza.
The factthatSemanza
had the
audacity
to ordertheAbakiga
to trespass
uponthehomeof theAccused
to seizethe
Tutsi
refugee
whohadsheltered
there,
shows
thatSemanza
hadlittle
or no respect
for
theauthority
of theAccused.

Conclusion

130.It is clearfromtheaboveanalysis
of theevidence
in thiscase,thatthe
Accused
has established
the pleaset up by him,thatthe resources
whichwere
available
tohimwereinadequate
to prevent
themassacres
of thescalethattookplace
in Mabanza
commune,
fromApril1994,andthathe actedto maintain
lawandorder
in the commune,
withthe meansavailable
to him.Moreover,
the Prosecution
has
failedto disprove
thisposition.
Thus,the Accused
has negatived
one of the
ingredients
of theoffences
thathe is charged
withviz.,mensrea.Thereby,
a
reasonable
doubthasbeenraised
in theProsecution
case,whichshould
enureto the
benefit
oftheAccused,
resulting
in theAccused
being
entitled
toan acquittal,
onthis
ground
too.

131.Accordingly,
I herebyacquitthe Accused
IgnaceBagilishema,
of all the
charges,
contained
in theindictment.

Doneat Arusha
On thisseventh
dayof June2001

Asokade Z. Gunawardana
Judge
Intemational
Criminal Tribunal
forRwanda

Sealof theTribunal

44
 International
CriminalTribunalfor Rwanda
Tribunalp~nalinternational
pour le Rwanda

UNITEDNATIONS
NATIONSUNIES

TRIAL CHAMBER I

ENGLISH
ORIGINAL: FRENCH

Before: JudgeErikMose,Presiding
JudgeAsokade Z. Gunawardana
JudgeMehmetGtiney

Registry: Mr AdamaDieng

Opinion
of: 7 June2001

THE PROSECUTOR
versus
IGNACE BAGILISHEMA

ICTR-95-1A-T

SEPARATE AND DISSENTING OPINION OF JUDGE MEHMET GUNEY

Officeof theProsecutor:
Ms JaneAnywarAdong
Mr WallaceKapaya
Mr CharlesAdeogun-Phillips
Ms Boi-TiaStevens

Counselfor theDefence:
Mr FrangoisRoux
Mr MaroufaDiabira
Ms H61eynUfiac
Mr WayneJordash

BAGI(C)00-39-GE
I’l’mnslataon
certatled
byLCgb,
t
l(51R
 TABLE OF CONTENTS

TABLE
OFCONTENTS
..............................................................
1
I.Preliminary
comments
onsome
points
oflaw.............................................
4
A. Violation
oftheprinciple
ofduediligence,
orculpable
negligence
........................
4
B. Presenceofa respected
authority
at thescene
of thecrime
- formofcomplicity
by
encouragement
............................................................
9
C. Standardsfor the assessmentof evidence......................
12
II.
Defence
Arguments
.............................................................
15
IlLFactualandlegalfindings
relating
to allegations
in paragraph
4.14of the
Indictment
................................................................
19
A. Trafipro
roadblock
: Setting
up,Staffing
andPurpose,
.......................
19
1. Settingup of roadblocks.................................
.....
2. Instructions 19
3. Individuals.......’""’"’"’".......
"’"-..
.......
....-....
...........
¯.......
............21
assigned
tomanthe
roadblocks
..........................................
23
B.Purpose
oftheTrafipro
roadblock
..............................................
27
C.TheAccused’s
Complicity
inthemurders
ofJudith
andBigirimana
....................
31
1.The
murder
ofJudith
.........................................................
31
2.Themurder
ofBigirimana
.......................................................
35
D.Findings
.................................................................
38

BAGI(C)00-39-GE
Ilranslalaon
ce~tied
byLtS~S,
IC’1"1~ 1
 IV. TheAccused’s
complicity
in the detention
and maltreatment
of refugees
at
Gatwaro
stadium
(paras.
4.23,
424and4.31oftheIndictment)
.........................
42

A. Monitoring
by theAccused
of thesituation
withrespect
to theMabanza
refugees
inGitesi
..............................................................
43

B. Regarding
thepresenceof theAccused
at Gatwaro
stadium
on
13and
14April
1994
........................................................
47

1. 13April
1994
...........................................................
47
2. 14April1994
...........................................................
49
3. Findingsonthepresence
oftheAccusedatthe
Stadiumon
13and14Apri11994and
on theassessment
ofthetestimonialevidence
........
50
V. Complicity
of theAccusedin theattackon Gatwaro
Stadium
on 18 April1994
(paras.
4.13,
4.26and
4.27
oftheIndictment)
..........................................

1. Evidence
oftheAccused’s
presence
in theStadium
on18 April
1994.............
54
2.The
Accused’s
testimony
.......................................................
57

VI.
Findings
..................................................................
62

BAGI(C)00-39-GE
[lranslatlon
eertltied
byLCN~,
IC1’1~ 2
 1. I agree
withthefindings
intheJudgement,
regarding
theacquittal
of theAccused
oncertain
counts,
butI begtodiffer
withthefindings
inthemajority
opinion
(hereinafter
"themajority")
thatthere
is insufficient
evidence
oftheinvolvement
oftheAccused
asan
accomplice
in thecrimescommitted
against
Tutsicivilians
in connection
withthe
activities
at Trafipro
roadblock
in Mabanza
commune
(para.
4.14of theIndictment),
and
in themassacres
committed
against
thousands
of Tutsicivilians
in Kibuye,
of whom
nearly1000to1500were nativesof Mabanza,as testifiedto by the Accused
I
(paras.
4.21to 4.28and4.31oftheIndictment).

2. Withrespect
totheactivities
carried
outattheTrafipro
roadblock,
I findthatit
hasbeenprovedthatthe Accused
had fullresponsibility
forthe operation
of the
roadblock
right
fromthetimeitwassetup,thathe hadthedutyandpower
to control
the
operation
thereof
andpossibly
to havethesaidactivities
discontinued.
WhileI concur
withthefinding
thattheevidence
tendered
doesnotsupport
a finding
thattheroadblock
wassetup forcriminal
purposes,
I am satisfied
withtheevidence
adduced
to showthat
theAccused
hadsufficient
reason
to knowthatthescreening
system
instituted
at the
roadblock
entailed
possible
risksfortheTutsi
civilian
population.
Consequently,
I amof
theviewthattheAccused’s
responsibility
mustbeassessed
on thebasisof negligence
on
hispartwithregard
to thesetting
up andrunning
of theroadblock.
I findthatsuch
willful
negligence
renders
himan accomplice
to thecrimes
against
humanity
committed
through
thekilling
ofJudith
andBigirimana.

3. Withrespect
to theattacks
on andmassacre
of Tutsi
civilians
at Gatwaro
stadium,
Kibuye,
I am satisfied
thatthereissufficient
evidence
to establish
thepresence
of the
Accused
at thestadium
on several
occasions
between
13 and18 April1994,before
and
during
theattack.
Thisstands
in contrast
to thetestimony
of theAccused
whodenied
having
goneto Kibuye
during
theperiod
from9 to 25 April1994.Consequently,
it is my
viewthat,by suchpresence
andgiventhathe wasan official,
theAccused,
whohada
well-established
reputation
in Kibuye
aftera 14-year
mandate
as Bourgmestre,
aidedand
abetted
thecommission
of crimes
against
humanity
(extermination
and otherinhumane

i
Transcript
of thehearing
of 5 June2000,p. 43.

BAGI(C)00-39-GE
[Translataon
certatied
by LCNS,IlSTtl
t
 acts),
andthereby
incurred
responsibility
asan accomplice
tothegenocide
perpetrated
at
Gatwaro
Stadium,
by providing
moralsupport
to theassailants.

I# Preliminary
comments
on somepointsof law

4. Foreachof theabove-mentioned
counts,
it appears,
fromtheevidence
presented
at trialin support
of theProsecutor’s
allegations,
thattheAccused
is liable
under
Article
6(1),notso muchbecause
of hisdirect
participation
as a principal
or co-
perpetrator,
as by reasonof hiscontribution
to crimes
committed
by others,
as an
accomplice.

A. Violation
of theprinciple
of duediligence,
or culpable
negligence

5. In my opinion,
it hasbeenproved
thattheAccused
wasnegligent
by setting
up an
intrinsically
dangerous
system,
to wit,theTrafipro
roadblock.
Itis appropriate
todiscuss
theextent
of suchnegligence
in light
of a dutyto act,reflected
by thecontinuing
dutyof
theAccused
fromtheerection
of theroadblock
to theorganization
of itsoperation.
The
Accused
failed
to provide
thecontrol
system
withsuchsafeguards
andguarantees
against
any formof recklessness
(Seethe notionsof doluseventualis
in CivilLaw and
"recklessness"
in CommonLaw2),as dictated
by his publicand administrative
prerogatives.
I therefore
findthatthecriminal
liability
of theAccused
arises
outof
negligence
fordeliberately
failing
to address
therisks
associated
withtheerection
of a
roadblock
intheprevailing
context
oftheperiod
trader
consideration.

6. Although
the Prosecutor
didnot specifically
address
thisparticular
kindof
responsibility
at trial,
I amof theopinion
thatgross
negligence
maybe considered
tobe
one of the numerous
formsof individual
criminal
responsibility
provided
for by
Article
6(1)oftheStatute
oftheTribunal.

7. The principleof criminalnegligenceby which an accusedmay incur

responsibility
forcrimes
committed
by others
wasapplied
in theBlaskic
Judgement,

2 The Prosecutor
v. Blaskic,ICTY,Judgement
of 3 March2000,para.267.

BAGI(C)00-39-GE
11 ranslatlon
certatled
byL(SSS,
1CTI~ 4
 after
theTrialChamber
of theIntemational
Criminal
Tribunal
fortheFormer
Yugoslavia
(ICTY)
heldthatGeneral
Blaskic
usedforces
underhiscontrol
whichhe knew,at least
inpart,
weredifficult
tocontrol,
andthathaving
issued
orders
forcertain
acts,
hecould
reasonably
haveforeseen
thatthesaidactswould
leadto thecommission
of crimes.
3

8. Theaboveprinciple
on thevarious
grounds
forassigning
individual
criminal
responsibility
wasillustrated
in Prosecutor
v. Tadie,
wheretheTrialChamber
of ICTY
affirmed
that:

"(..)
aiding
andabetting
includes
allactsofassistance
bywords
oracts that
lend
encouragement
orsupport,
aslongastherequisite
intent
ispresent.Under
this
theory,
presencealone
isnotsufficient
ifit isanignorantoran unwilling
presence.
However,ifthepresence
canbeshown orinferred,
bycircumstantial
orother
evidence,
tobeknowing
andtohavea direct
andsubstantial
effectonthe
commission
oftheillegal
act,thenitissufficient
onwhich
tobasea finding
of
participation
andassign
thecriminal
culpability
thataccompanies
it."4

9. TheICTYChamber
affirmed
further,
afterreviewing
therelevant
case-law,
that
actual
physical
presence
at thetimethecrimeis committed
is notnecessary,
sincean
accused
canbe considered
to haveparticipated
in thecommission
of a crime,
onthebasis
of theprecedent
setby theNttrnberg
warcrimes
trials,
if he is to be foundto be
"concerned
withthekilling".
In thesamecase,theAppeals
Chamber
recalled
thatthe
Statute
oftheTribunal
didnotlimititsjurisdiction
to theprosecution
of persons
who
allegedly
participated
directly
in crimes
or who,in someotherway,personally
aidedor
abetted
theircommission.
TheChamber
pointed
outthatit is apparent
fromthewording
of Article
7(1)of theStatute
andtheprovision
setting
forththecrimes
overwhichthe
Tribunal
hasjurisdiction
thatsuchresponsibility
forserious
violations
ofinternational
humanitarian
lawis notsimply
limited
to thosewhoactually
carryouttheactusreusof
thecrimes
enumerated,
butalsoextends
to otheroffenders,
including
thosewhoorder
themto do so or areaccomplices
thereto:

3
The Prosecutor
v. Blaskic,
Judgementof 3 March2000,para.560 to 562.
Prosecutor
v. Tadic,Judgement
of 7 May 1997,para.689.
Prosecutor
v. Tadic,ICTYAppealsChamberJudgement of 15 July 1999,paras.189 and 190.

BAGI(C)00-39-GE
[rlranslatlon
certat~ed
byLCSS,
1~’11~
10. Thus,it waspointed
outin theAkayesu
Judgement
thatmensreaor thecriminal
intent
oftheperpetrator
of a crime
maybeintheformof"negligence
thatissoserious
as
to betantamount
toacquiescence."
6

11. In Frenchcriminal
law,the general
principle
on complicity
presupposes
the
performance
of an affirmative
act,andexcludes,
a priori,
complicity
by failure
to act.
However,
case-law
provides
a broader
notion
of complicity
whichcouldallowforthe
existence
of actusreusor mensrea,on condition
thatmerepresence
7 or omission
is
construed
as assistance,
moralsupport
or encouragement.
It is no longer
a question
of
merefailure
to act,butof accomplice
liability.
Suchwasthecaseofan officer
whodida
round,
thusallowing
a colleague
to stealoneof theobjects
overwhichhe hada dutyto
watch,
s Belgian
case-law
makesa distinction
between
deliberate
failure
toactanda form
of "abstention
dansl’action"
where,
intheperformance
of a duty,willful
failure
totake
thenecessary
steps
to prevent
harmisequated
toanaffirmative
actofparticipation.
9

12. In CommonLaw, the exceptionto the principlewherebyno criminal

responsibility
shallarisefroman omission
hasbeendeveloped
in successive
casesin
relation
to thenotion
ofdutytoact.Theassessment
ofa dutyofcareorduediligence
in
thecontext
of criminal
responsibility
wasconsidered
by theHouseof Lords(criminal
section
of the AppealChamber)
in Reginav. Adomako,
10 wherea qualified
medical
employee
wascharged
withhomicide
forfailure
to act.In thatcase,LordMackay
stated
asfollows:

6 TheProsecutorv. Akayesu,
Judgement of2 September
1998,paras.486to 489.
7 Thus, itwasheldthata passive
spectatorwhohadanaffirmative
legaldutytointervene
toprevent
the
offence
whichbewitnessedpassively
- m silence- committed
anoffenceconstrued
as complicity
by
giving
moralsupport.
s Tribunal
correctionnel
Aix,14 January 1947,D. 1947.Somm.19,Rev.sciencecrim.1947,5 81.J.C.
P.1947.II3465
9 Cass.Beige,
23 October
1950and24 September
1951,rev.dr.pdn.Et criminologie,
1951-
952.774[1947.II,
3465.
to [199511AppealsCourt71."171.

BAGI(C)00-39-GE
[l’ranslatlon
certatieO
byLt2~S,
1(.211~ 6
 "....in
my opiniontheordinary
principles
ofthelawofnegligence
applyto
ascertain
whetheror nottheDefendant
hasbeeninbreachofa dutyof care
towards
thevictimwhohasdied.Ifsuchbreach
ofdutyisestablished
thenext
question
iswhether
thatbreach
ofdutycaused
thedeath
ofthevictim.
Ifso,the
jurymustgoontoconsiderwhether
thatbreach
ofdutyshould
becharacterized
asgrossnegligence
andtherefore
isa crime.
Thiswill
depend
ontheseriousness
ofthebreachofdutycommitted
bytheDefendant
inallthecircumstances
which
theDefendant
wasplacedwhenitoccurred."

13. The abovecasehighlights

thecriteria
thejurymustconsider
in ascertaining
whether
or notthereis a breach
of dutywhichmaybe regarded
as grossnegligence,
and
thusbe considered
a crime.

14.In theinstant
case,I deemit appropriate
to assess
thestatus
andfunctions
ofthe
Accusedwhichdefinethe natureand extentof his dutiesunderRwandanLaw.
Prosecution
Expert
Witness,
Andr6Guichaoua,
referred
to theLawof 23 November
1963
on communal
organization,
11 whichwasin forcein Rwanda
at thetimeof theevents.
ThatLawprovides
thattheBourgmestre
is therepresentative
of thecentral
authority
in
thecommune
andthe embodiment
of communal
authority
(Article
56 of theLaw).As
representative
of theexecutive
power,
theBourgmestre
isresponsible
fortheenforcement
of lawsandregulations
(Article
57 of theLaw).Administration
of thecommune
is under
thedirect
authority
of theBourgmestre
(Article
60 oftheLaw)who,inparticular,
hasthe
power
to recruit,
suspend
anddismiss
communal
staffafterconsultation
withtheconseil
communal
(communal
council)
(Article
93 of the Law).Suchpoweralsoextends
communal
policeofficers,
overwhomthe Bourgmestre
has soleauthority,
except
in
exceptional
circumstances
(Article
104of theLaw).Article
109of theLawdefines
the
functions
of communal
police
officers
placed
undertheauthority
of theBourgmestre
and,
in particular,
the dutyimposed
on the Bourgmestre
to contribute
to maintaining
or
restoring
lawandorder,
to orderthearrest
of troublemakers
or offenders
andto bring
thembefore
thecompetent
authorities.

15. Thedecision
by theAccused
to setup theroadblock,
on theonehand,andto have
it manned
by civilians,
on theother
hand,entails,
to my mind,various
typesofcriminal

H Prosecution
Exhibit
No.7 I,footnote
3 ofthereport
byAndr6
Guichaoua
on"L’autoritd
communale
et
lesprdrogatives
dubourgmestre."
This
lawisalso
cited
inArticle
8 ofthePresidential
Order
of
25November
1975
onthestatus
ofcommunal
personnel,
Defence
Exhibit
No.97.

BAGI(C)00-39-GE
[l’ranslatlon
certltiect
byLCS~5,
IUII~ 7
responsibility.
Besides
theresponsibility
incurred
forsetting
uptheroadblock
itself,
the
Accusedshouldhaveknownthat,undersuchcircumstances
as recounted
by the
witnesses,
continuing
thatactivity
would
entail
risks,
especially
considering
theconduct
of the untrained
civilians
who werepostedthere.Hence,the culpable
negligence
connected
withthesetting
up of theroadblock
becomes
continued
andaggravated
if the
Accused
knowsor hasreason
to knowthatcrimes
werecommitted
afterit wassetup.In
thatcase,thephrase
"heknewor hasreason
to know"usedas a condition
forassigning
superior
responsibility
underArticle
6(3)of theStatute,
could
be useful
in assessing
the
continuous
nature
of thatcrime.
Suchknowledge
canbe ascertained
fromdirect
evidence
or byinference.
InAleksovski,
theTrialChamber
of ICTYlaiddowncertain
indicia:

"This
meansthatthemorephysically
distant
thecommission
oftheactswas,the
more
difficult
itwillbe,intheabsence
ofotherindicia,
toestablish
thatthe
superior
hadknowledge
ofthem.Conversely,
thecommission
of a crimeinthe
immediate
proximity
oftheplacewherethesuperior
ordinarily
carriedouthis
duties
wouldsuffice
toestablish
a significant
indicium
that
hehadknowledgeof
thecrime,afortiori,
if thecrimeswererepeatedly
committed"(Emphasis
added).
12

16. Within
thecontext
of theoperation
of theTraflpro
roadblock,
theProsecution
alleged
thatthe Accused
incurred
responsibility
by reasonof hisposition
as the
hierarchical
superior
of thepersons
manning
theroadblock.
However,
I notethatin the
Kordicand CerkezJudgement,
the ICTYChamberpointedout thatthe distinction
between
liability
underArticle
7(1),
on theonehand,
andunderArticle
7(3)on theother
hand,(equivalent
to Articles
6(1)and6(3)of theStatute
of ICTR),
depends
evidence
presented.
In theinstant
case,if thesuperior
wasnotsimply
informed
thathis
subordinates
hadcommitted
crimes,
but,in theexercise
of hispowers,
he hadotherwise
aided
or abetted
in anymanner
whatsoever
thepreparation
or execution
of thosecrimes,
"(...)
the typeof criminal
responsibility
incurred
may be better
characterised
Article
7(1).Wherethe omissions
of an accused
in a position
of superior
authority
contribute
(forinstance
by encouraging
theperpetrator)
to thecommission
of a crime
a subordinate,
theconduct
of thesuperior
mayconstitute
a basisforliability
under

12 The Prosecutorv. Aleksovski,ICTY Judgementof 25 June 1999, para. 80.

BAGl(C)00-39-GE
[lranslataon
certified
by LCSS,
IC’l’lq 8
Article
7 (1).
’’I3Itismyopinion,
inlight
oftheevidence
produced
intheinstant
case,
that
thetypeof criminal
responsibility
incurred
by theAccused
is better
defined
under
Article
6(1)of theStatute
because
theingredients
foraccomplice
liability
have,to
mind,
beenestablished.

Presence
of a respected
authority
at thesceneof thecrime- formof
complicity
by encouragement.

17.Thisformof indirect
participation
in thecrimes
alleged
in theIndictment
raises
somequestions
as to theassessment
of therequisite
linkbetween
thepresence
of the
Accused
andthecrimes,
whichassessment,
to date,hashardly
beenconsidered
by the
courts,
butwhich,
in my opinion,
mustbe applied
to theevents
thatoccurred
at Gatwaro
stadium.

18. In Common
Law,thelaiddownprinciple
is thatmerepresence
of a person
at the
scene
of thecrimeis notsufficient
to entail
hiscriminal
responsibility.
However,
in
Regina
v. Coney,
theHighCourt(Divisional
Courtof theQueen’s
Bench)
14 foundthat
thepresence
ofa spectator
atan unlawful
prize-fight
constituted
a signof encouragement
by theaccused
persons
whowereamongthecrowdof spectators,
eventhough
theydid
notdirectly
participate
in thecrime,
or verbally
encourage
it.TheCourt,
accordingly,
heldthat,evenif presence
in itself
wasnotsufficient,
it wasevidence
of aiding
and
abetting
because,
without
thesespectators,
there
wouldhavebeenno incitement
to fight.
In thatcase,JudgeHawkins
15 madethefollowing
statement,
whichbecame
a leading
opinion
in Common
Lawjurisdictions
:

TheProsecutor
v. Kordic
andCerkez,
ICTYJudgement
of 26 February
200,para.371.
14
[1882]8 Queen’s
BenchDivision
534.
PerHawkins,
J.at557.
 "Inmy opinion,to constitutean aiderandabettor someactivestepsmustbe
taken byword,oraction,withtheintent toinstigatetheprincipal,orprincipals.
Encouragementdoesnotof necessity amount to aidingandabetting, it maybe
intentionalor unintentional,
a manmayunwittingly encourageanotherin factby
hispresence, by misinterpreted
words, or gestures,or by hissilence,or non-
interference,or he mayencourage intentionallyby expression,gestures, or
actionsintendedto signify
approval.In thelatter caseheaidsandabets, inthe
formerhe doesnot.Itisnocriminal offenceto standby,a merepassivespectator
of a crime,
evenof a murder.Non-interferencetopreventa crimeis notitself a
crime.Butthefactthata person wasvoluntarily andpurposefully present
witnessingthecommissionof a crime, andofferedno oppositionto it,although
hemightreasonably be expectedto preventit andhadthepowerso to do,or at
leastto express hisdissent, might, undersomecircumstances, afford cogent
evidenceuponwhicha jurywouldbe justified in finding thathe wilfully
encouragedandso aidedandabetted. Butit wouldbe purely a questionforthe
jurywhetherhedidsoor not."

19. In guidingthe jury,JudgeHawkinsunderscored

the requirements
for accomplice
liability:
a person
voluntarily
present
at thesceneof thecrimeand,withfullknowledge
of the facts,witnessedthe commission
of a crimeand offeredno opposition
to it,
although
he mightreasonably
be expected
to preventit, because
he hadthepowerto do
so,or at leastthepossibility
to express
hisdisapproval
in thefaceof theprevailing
events.

20. In theBlasldc
Judgement,
theTrialChamber
statedas follows:

"Theactusreusof aidingandabettingmaybe perpetratedthrough

an omission,
provided
thisfailuretoacthada decisiveeffectonthecommission
of thecrime
andthatit wascoupledwiththerequisite mensrea.In thisrespect,themere
presence
atthecrime sceneof a person
withsuperior
authority,
suchasa military
commander,
is a probativeindication fordetermining whetherthatperson
encouraged
orsupportedtheperpetrators
ofthecrime."16

21. In the AleksovsM

Judgement,
the TrialChamberstatedthatparticipation
neednot
be manifested
throughphysical
assistance,
butcouldbe moralsupportor encouragement
expressed
in words,"orevenby merepresence
at thesiteof thecrime"if suchpresence
hada significant
effecton thecommission
of thecrimeand thatthepersonpresenthad
the required mens rea. 17 Moreover, the mens rea may be deduced from the
circumstances,
and"theposition
of authority
constitutes
oneof thecircumstances
which

16 TheProsecutor
v.Blaskic,
Judgement
of3 March
2000,
para.
284.
17 TheProsecutor
v.Zlatko
Alesksovski,
Judgement
of25June1999,
para.
63andfollowing.

BAGI(C)00-39-GE
IIranslatlon
t certatied
byLCSS,
llS’l
N 10
 canbe considered
whenestablishing
thattheperson
against
whomtheclaimis directed
knewthathispresence
wouldbe interpreted
by theperpetrators
of thewrongful
actas a
signof support
or encouragement."
18

22.In theSynagogue
case19 (mentioned
in theFurundzija
Judgement,
z0)theGerman
Supreme
Courtfoundoneof theaccused
guilty
of a crimeagainst
humanity
forproviding
moralsupport
to thosewhoperpetrated
thecriminal
acts.TheCourtpointed
outthat
although
theAccused
hadnotphysically
takenpartin thedevastation
of thesynagogue
withtheothers,
norplanned
or ordered
it,hisoccasional
presence
at thecrime
scene,
his
status
as a long-time
respected
militant
of theNazipartyandhisknowledge
of the
criminal
enterprise,
weredeemed
sufficient
by theCourtto convict
him.TheCourt
held,
in respectof the aetusreus,thathis entireconductconstituted
supportand
encouragement
in the commission
of thecrimesevenif it was not shownthatsuch
support
covered
eachof the crimescommitted
by others.
Regarding
the occasional
presence
of theAccused,
theCourtheldthatsuchpresence
couldnotbe considered
as a
formof curiosity
shownby a person
unconcerned
abouttheevents
taking
place.
With
respect
to themensrea,theCourt
heldthattheAccused
hadinfactwished
thattheacts
be committed
"asthough
theywerehisown"(alseigene
gewollt
hat).Finally,
theCourt
found
thattheAccused
knewof theplanat leasttwohoursbefore
thecommission
of the
crime.

23. In the Furundzija

case,the TrialChamber
of ICTYtookintoaccount
the above
decision
andfoundthatan "approving
spectator
whois heldin suchrespect
bytheother
perpetrators
thathis presence
encourages
themin theirconduct,
may be guiltyof
complicity
in a crimeagainst
humanity."
2i As regards
thenature
of assistance
provided
bytheaccomplice,
itheldthatitisnotnecessary
fortheassistance
tobetangible
ortobe
directly
linked
tothecrime
bya causal
relationship,
z2Astotheeffect
ofsuchassistance,

18 Ibid.,para.
65.
~9 Strafsenat.Urteilvom 10. August1948gegenK und A StS 18/48,ObersteGerichtshof der Britischen
Zone(Entscheidungen,
Vol. I, pp. 53 and 56) Judgement
of the GermanSupremeCourtin the British
OccupiedZone.
The Prosecutorv. Anto Furundzija, ICTYJudgement of 10 December1998 paras.205 and following
Ibid.,para.
207.
Ibid.,
para.232.

BAGI(C)00-39-GE
Ilranslatmn
ce~tied
byLC~N,
1(2"1"1~ 11
 theChamber
tried
to summarize
thecase-law
onthesubject
by stating
that"theassistance
should
havea substantial
effect
on thecommission
ofthecrime",
butthatit could
be in
theformof moralsupport.
23 Whentheactusreusof an omission
consists
effectively
in
moral
support
having
a substantial
effect
on thecommission
of thecrime,
therequisite
andsufficient
mensreais knowledge
of thefactthatthe"acts"
assist
thecommission
of
theoffence,
andtherefore
render
theaccused
an accomplice.
24 IntheBlaskic
Judgement,
theTrialChamber
heldthattheaccomplice
musthave,"asa minimum,
accepted
that
suchassistance
wouldbea possible
andforeseeable
consequence
of hisconduct."
25

24. In theAkayesu
Judgement,
theTrialChamber
foundtheAccused
guilty
of crimes
against
humanity
foraiding
andencouraging
others
to commit
actsof sexual
violence
by,
inter
alia,allowing
thatthesaidactsbe committed
within
thebureau
communal
whilehe
waspresent,
andbecause
he knewor hadreason
to knowthatactsof sexual
violence
werebeingcommitted.
TheChamber
found,on thesetwopoints,
thattheAccused
had
facilitated
thecommission
of thecrimes
through
wordsof encouragement
in otheractsof
sexual
violence
which,
byvirtue
ofhisauthority,
"sent
a clear
signal
ofofficial
tolerance,
without
which
theseactswouldnothavetakenplace."
26

25.I hadto review

theabovecase-law,
whichI consider
relevant
fortheassessment
of thecriminal
responsibility
of theAccused,
whowaspresent
at Gatwaro
stadium
during
theperiod
therefugees
wereheldandmassacred
there.

C. Standards
fortheassessment
of evidence

26.Issues
regarding
theassessment
of testimonial
evidence
in thespecific
context
of
thecasesbrought
before
thisTribunal
havebeenthesubject
of progressive
development
sincetheAkayesu
Judgement,
fortheTribunal
is notboundby anyapproach
modeled
on
national
rules
of evidence
(Rule89of theRules
of Procedure
andEvidence).

Ibid.,paras.234and235.
Ibid.,para249.
25 The Prosecutorv. Blaskic,Judgement
of 3 March200,para.286.
26
The Prosecutorv. Akayesu,Judgement2 September
1998,para.293 and 294.

BAGI(C)00-39-GE
[lranslatton
certttled
byL~S~,
112l’l~ 12
 27. Regarding
testimonial
evidence
withrespectto the eventswhichoccurred
at
Gatwaro
stadium,
I holdtheviewthatthemajority
applied
strict
assessment
standards
which
werenotrelated
tothenature
orreliability,
butto thequantity
andaccuracy,
ofthe
information
provided
by witnesses
whosecredibility
is notbeingquestioned
(cf.The
testimonies
of Witness
A, Witness
AC andWitness
G in Chapter
V.3of theJudgement).
Infact,
inassessing
these
testimonies,
themajority
applied
standards
thathaveto domore
withprecision
required
forissues
of identification
of a person
hitherto
unknown,
rather
thanforrecognition
ofa person
already
known
to thewitness.
In thiscase,given
thatno
evidence
wasadduced
tending
to showthatthewitnesses
present
at thestadium
mayhave
beenfacedwitha problem
of mistaken
identity,
I holdtheopinion
thatthestandard
of
proof
applied
bythemajority
iserroneous.
It seems
tome thatsaidstandard
is artificial
andfar-fetched
in thesense
that,although
it is mainly
up to theparties
to examine
the
witnesses
during
thetrialin adversarial
proceedings,
theChamber
is alsoallowed
to put
anyadditional
questions
tothewitnesses
atanystage
inthecourse
ofthetrial,
inorder
to
clarify
or specify
theissues
raised,
asprovided
forinArticle
8503)oftheRules
on the
presentation
of evidence.
27 In my opinion,
themajority
didnotdrawtheappropriate
conclusions
fromtheoralevidencepresented
to establish
thepresence
of theAccused
at
Gatwaro
stadium
between
13 and18 April1994.

28.Regarding
thedifficulty
of mostof thewitnesses
to provide
specific
information,
I wouldliketo recall
precisely
therequisite
standard
in taking
oralevidence,
as
expounded
in theAkayesu
Judgement:

"[...]
Similar
cultural
constraints
were
evident
intheir
difficulty
tobespecific
as
to dates,
times,distances
andlocations
[...]
TheChamber
didnotdrawany
adverse
conclusions
regarding
thecredibility
ofwitnesses
basedonlyontheir
reticence
andtheir
circuitous
responses
toquestions."
28

29.As to theassessment
of thediscrepancies
between
priorwitness
statements
and
their
testimonies
before
theChamber,
onceagain,
I concur
withthestandtakenin the
Akayesu
Judgement
:

z7
Rule85 (B)of theRulesof Procedure
andEvidencespecifically
providesthat:"Itshallbe fortheparty
callinga witness
to examinehimin chief,buta judgemayat anystageputanyquestionto thewitness"
28 The Prosecutorv. Akayesu,Judgement2 September1998,para.156.

BAGI(C)00-39-GE
[franslalaon
t eert~tied
layLCbS,
112111 13
 "TheChamber notedthatduringthetrial, fora number
ofthesewimesses,there
appearedto be contradictionsor inaccuraciesbetween,on theonehand,the
contentof theirtestimonies
undersolemn declaration
to theChamber,
andon the
other,theirearlierstatementsto theProsecutorandtheDefense.Thisaloneis
nota ground forbelievingthatthewitnesses gavefalsetestimony.Indeed,an
oftenleviedcriticismoftestimony is itsfallibility.
Sincetestimony
isbased
mainlyon memory andsight,twohumancharacteristics whichoftendeceivethe
individual,thiscriticismis to be expected[...]Moreover,inaccuracies
and
contradictionsbetween
thesaidstatements andthetestimony givenbeforethe
Courtarealsotheresult of thetimelapsebetween thetwo.Memory overtime
naturallydegenerates,henceit wouldbe wrongandunjust fortheChamber to
treatforgetfulness
’’29 as beingsynonymous withgivingfalsetestimony.
(Emphasisadded)

30. I thereforetotallyagree with the followingassessment,

made in that same
Judgement,
of the impactof thepeculiar
circumstances
andthe widening
timedifference
on thetestimonies
:

"TheChamberis unableto excludethepossibilitythatsomeor allof these

witnesses
didactuallysufferfromposttraumatic
or extreme
stressdisorders,
and
hastherefore
carefullyperused
thetestimonies
of thesewitnesses,
thoseof the
Prosecutor
as wellas thoseof theDefence,
on theassumption thatthismight
possibly
havebeenthecase.Inconsistencies
or imprecision
in thetestimonies,
accordingly,
havebeenassessed in thelightof thisassumption, personal
background
andtheatrocities theyhaveexperiencedor havebeensubjected
,,30
to.

31. Lastly,
regarding
the unustestis,nullustestisprinciple,
theChamber,
in the
Akayesu
Judgement,
deliberately
refused
to applyit,stating
that"itcanruleon thebasis
of a single
testimony
provided
suchtestimony
is,in itsopinion,
relevant
andcredible".
31
The AppealsChamberendorsed
thisstandin the Aleksovski
casewhenit affirmed
that
"Similarly,
thetestimony
of a singlewitness
on a material
factdoesnot require,
as a
matter
of law,anycorroboration."
32

32. In lightof thevarious

standards
forassessing
evidence
discussed
above,I have
drawnconclusions,
different
fromthoseof themajority,
regarding
theindividual
criminal
responsibility
of theAccused
withrespect
to thetwoevents
referred
to above.

29 Ibid,
para.
140.
3o Ibid,
paras.
142and143.
Ibid,
para.
135.
TheProsecutor
v.Zlatko
Aleksovski,
ICTYAppeals
Chamber
Judgement,
24March
2000,
para.
62.

BAGI(C)00-39-GE
[lranslataon
certllled
byLt..;SS,
ItSltCq 14
II. DefenceArguments

33. Throughout
the trial,
the Defence
arguedthatthe powersand dutiesof the
Accused,
as Bourgmestre,
wereto be viewed
in concreto,
in lightof thecircumstances
thatprevailed
at thetimeof theactswithwhichhe is charged.
On theonehand,the
Defence
submitted
thattheAccused,
givenhispersonality
andcharacter
as a moderate
manwhohada great
loveof justice,
setup a security
shield
forthepeople
under
threat,
byorganising
pacification
meetings,
issuing
fakeidentity
cards
to theTutsiandby even
meeting
withtheAbakiga
to dissuade
themfrompursuing
themassacres
andlooting.
On
theotherhand,theDefence
asserted
thatthede factoauthority
of theAccused
over
Mabanza
commune
had deteriorated
following
the breakdown
of lawand orderand had
become
extremely
limited
in thewakeof theevents,
andthatconsequently
he couldnot
be heldresponsible
for the atrocities
and crimescommitted
in Mabanza
commune.
Therefore,
theAccused
could
notbe considered
an accomplice
forfailing
to carryouthis
administrative
andlegalduties
underRwandan
national
law,for,in theopinion
of the
Defence,
theaffirmative
actsof theAccused
forthepeople
of Mabanza
do notallowfor
establishing
evidence
of anycriminal
intentthatwouldmakehim an accomplice
who
aided
andabetted
theperpetration
of anyofthecrimes
provided
forintheStatute.

34. The Defence

contends
thatthe Accused
was overlypowerless
to stopor punish
criminal
actscommitted
by a swarmof "invaders"
(including
thosewho shared
their
criminal
intent),
andthattheonlypowerhe hadleftwastheauthority
andcontrol
he
could
exercise
overthecommunal
police.
However,
theDefence
alleges
thattheAccused
hadlimited
de jurecontrol
overthecommunal
police,
andsufficient
de factocontrol
at
certain
moments.
TheDefence
further
contends
thatto havedealtwithsuchmurderous
intents
showstheAccused’s
genuine
courage
andunfailing
determination
to continue
defending
hispeople.

35. The Defence

underscored
the "Accused’s
goodcharacter"
to showthathe lacked
thespecific
criminal
intent
to commit
genocide.
Yet,itisimportant
tonoteinthisregard
thattheconcept
of "goodcharacter"
borrowed
fromCommonLawonlyapplies
to proof
of therequisite
criminal
intent
regarding
theAccused’s
criminal
responsibility
as a

BAGI(C)00-39-GE
II ranslaUon
certltled
by LCbb,
ItsI Pq 15
principal
orco-perpetrator
andis notapplicable,
in thesamemanner,
to theassessment
of
accomplice
criminal
responsibility,
whichhasdifferent
mensrearequirements¯

36.It is worth
noting
thattheDefence
doesnotcontest
that,asa civilian
authority
of
Mabanza
commune,
theAccused
hadlegalduties,
as wellas thepowerto ensure
respect
forthelawby allthecitizens
of hiscommune,
andtheobligation
to punish
andprevent
crimein his commune,
to theextentpossible.
Manyof theProsecution
and Defence
witnesses
alikedescribe
theAccused
as a well-known
figure,
forhehadbeenin office
for
fourteen
yearsas headof thecommune
and,in thedischarge
of his duties,
enjoyed
undoubted
respectthroughout
the commune.
Moreover,
in his official
capacity
as
Bourgmestre,
theAccused
hadtheobligation
to takemeasures
fortheprotection
of the
entire
population
of Mabanza
commune¯

37.I wouldliketo addthatthedisciplinary

measures
provided
forin caseof failure
by thecommunal
employees
to comply
withtheirobligations
are laiddownin Chapter
VIII of the PresidentialOrder on the Status of Communal Officialsof
25 November
1975,33 whichis pertinent
in assessing
therelationship
between
the
Accused
and Crlestin
Semanza,
Assistant
Bourgmestre,
as presented
by the majority
opinion
in Chapter
VIIof theJudgement.
Article
38 of theOrderstipulates
thatthe
"agents
qui,d’apr~s
desindices
graves,
sontpr~sume’s
avoircommis
unefautepouvant
¯ ¯
dtresancttonnee
par la disponibilit~
disciplinaire
ou la r~vocation,
peuvent,
parmesure
d’ordre
priseparle bourgmestre,
dtresuspendus
de leurs
fonctions
jusqu
’~ lacl6ture
de
l’instruction.
Cettemesure
entra~ne,
pourl’agent,
l’interdiction
d’exercer
toute
fonction
¯¯ " " es
et le placedansuneposition
d attente
pourunepertode
maximum
de 3 mots [employe
who,in lightof strong
evidence,
arealleged
to havecommitted
an offence
punishable
by
disciplinary
suspension
or dismissal
may,by orderof thebourgmestre,
be suspended
fromtheirduties
pending
completion
of theinvestigation.
Underthismeasure,
the
employee
shall
be barred
fromperforming
anyduties
andshallbe keptin sucha state
for
a maximum
periodof threemonths]."
Withrespect
to the performance
evaluation
of
communal
staff,
whichwastheresponsibility
of theBourgmestre,
Chapter
VI of the

33 Defence
Extfibit
No.97.

BAGI(C)00-39-GE
[rranslataon
eeratiecl
byLCbb,
ItSIN
t
16
 Orderalsoprovides
that"toutagentqui a obtenudeuxloisconsdcutives
la note
synth~tique
"M~diocre’,
estddmisde sesfonctions
[anemployee
whoreceives
an overall
"Poor"
[Mddiocre]
rating
twoconsecutive
timesshallautomatically
be dismissed
from
hisduties,"
(Article
24 of theOrder).
Yet,theAccused
nevergavesuchrating
to the
assistantbourgmestreSemanza,whom he accused before this Chamber of
insubordination
andevenfraud.
I am of theopinion
that,underthelaw,theAccused
had
thenecessary
means
to takedisciplinary
action
against
Semanza,
butdeliberately
failed
to usethem(seeChapter
II,Section
6 of theJudgement).
I am of theviewthatthe
Accused
deliberately
described
hisworking
relationship
withSemanza
as deplorable
in a
bidto dissociate
himself
fromthelatter’s
actions
andshowthathe didnot enjoy
sufficient
support
inthedischarge
ofhisduties.

38.As regards
theactivities
at Trafipro
roadblock,
theAccused
hadthedutyto take
action,
by virtue
of hispowers
to maintain
lawandorder
in thecommune,
witha viewto
ensuring
control
of theactivities
beingcarried
outthereand,as an administrative
authority,
thedutyandpowerto supervise
thecivilians
whowererunning
a high-risk
system,
considering
thespecific
circumstances
prevailing
in Rwanda
during
thatperiod.

39.Withrespect
to themeeting
of 25 April1994thatfollowed
themassacres
in Gitesi
commune,particularly
in Gatwarostadiumand at the HomeSt. JeanComplex,I
specifically
askedtheAccused
whether
he tookanystepsto seekexplanations
fromhis
superiors
concerning
themaintenance,
or rather
thelackthereof,
of lawandorderin
Kibuye.
I evenaskedtheAccused
whether,
in lightof the circumstances,
he didnot
consider
tendering
hisresignation,
expressing
hisoutrage
or evenmaking
a report
tothe
Prefet’s
superior
on thebehaviour
ofthegendarmes
whoparticipated
in themassacres
at
thestadium.
TheAccused
answered

"YourHonour,
I sharetheopinion.
ButI thought
itwasuptothesuperior,
my
superiors
totaketheinitiative
tofollow-up
onwhathappened
intheprefecture.
Thatwasnotthefirst
timethat
suchatrocities
hadoccurred,
butnotonthat
scale.
Oneachoccasion,there
wereconsents,
andthereweredecisions
toinvestigate
andfollow-up.
34

34 Transcript
ofthehearing
of5 June
2000,
p.62.
BAGI(C)00-39-GE
[1ranslataon
cerla~led
byLCSS,
IC’I
1~ 17
 40. Nevertheless,
the Accusedfailedto mentionany measures
saidsuperiors
may
havetaken
inthatrespect.

41. Regarding
security
in the commune,
I wouldliketo notethatthe Accused
frequently
madereference
to attacks
by theAbalciga
on thecommune
in orderto support
hisclaimthathe wasoverwhelmed
by hordes
of uncontrollable
attackers
andthathe felt
personally
threatened.
However,
in the Accused’s
official
correspondence
withthe
prefecture
or evenin theentries
in hispersonal
35diary
withrespect
tothedates
of the
attacks,
thereis no mention
of these"infamous",
though
ill-defined,
Abakiga.
On the
otherhand,I notethattheInterahamwe
are mentioned
in the diary,
although
their
presence
in Mabanza
wascontested
by the Accused,
who stated:
"I toldyouthatin
Mabanza
therewasno wingof theInterahamwe
.....
Interahamwe
militia."
36 Suchis also
thecasewiththeletter
to thePrdfet
dated25June1994,in which
theAccused
mentioned
thathe feltpersonally
threatened
by theassailants
fromRutsiro
andKavoye
butdidnot
indicate
thattheywereAbakiga
37.Regarding
theactual
authority
andcontrol
thatthe
Accused
exercised
overtheAbaldga,
I deemit worthrecalling
thatalthough
theAccused
didnotstateit,he in factmadeit possible
to prevent
Abakiga
attacks
on a religious
institution
on several
occasions
between
16 and18April,
as wasclearly
testified
to by
DefenceWitnessRA. WitnessRA testified
thatwhenthe assailants
arrivedon
16 April1994,a communal
policeman
intervened
and shotin the air,causing
the
attackers,
todisperse.
Witness
RA testified
thatintheearly
hours
of 17 April
1994,
she
andothers
wentto seetheAccused
at hisresidence
foradvice
on howbestto protect
several
Tutsimembers
of theinstitution
whohadsubsequently
decided
to leaveMabanza.

42.It should
be underscored,
withrespect
to theAccused’s
awareness
of theinherent
risks
involved
in theactivities
at theroadblocks
at thetime,thatthissameWitness
RA
testified
thattheAccused
advised
themagainst
sending
theircolleagues
to Kibuye
dueto
thedanger
on theroad,andprovided
themwitha roomin theIGAbuilding,
in orderto
hidethem.Witness
RA further
testified
thatthe Accused
and othersmet withthe
attackers
on 18 April1994and pleaded
withthemto stopthe attacks.
Witness
RA

35 Prosecution
Exhibit
No.85
36Transcript
ofthehearing
of9 June p.89.
2000,

BAGI(C)00-39-GE
Iiranslatmn
cert~laed
byLCSS,
l¢2i’t~ 18
testified
thathe didnotattend
thesaidmeeting
buthadbeeninformed
laterthatthe
assailants
hadagreed
to suspend
attacks
on theirinstitution,
andthattheyneverever
returned
there.
I would
liketo compare
thistestimony
tothatoftheAccused
to theeffect
thathe wasoverwhelmed
whenhe hadto ensure
theprotection
of therefugees
at the
commune
office,
andthathe feltpersonally
threatened
by thesameattackers
whomhe
haddecided
to confront,
although
theyweremanymoreon 18 April1994.WimessRA
further
testified
thattheAccused
assigned
a reservist
anda communal
policeman
to
watchoverthemat Kabilizi:
oneto watchoverRubengera
College
andtheotherto watch
overwitness
RA’slocation.
38

43. In my opinion,
thistestimony
provesthatthe Accusedwas in a position
to
exercise
hispowers
relating
to themaintenance
of lawandorder,
andspecifically
to
prevent
theAbakiga
fromcommitting
theiratrocities,
butchose,
on manyoccasions,
to
exercise
hisauthority
andcontrol
selectively,
whereas
suchwerepartof hisduties
and
obligations.

III. Factual
andlegalfindings
relating
to allegations
in paragraph
4.14of the
Indictment

A. Trafipro
roadblock
: Setting
up,Staffing
andPurpose,

44. As regards
theerection
andrunning
oftheTrafipro
roadblock,
I am oftheopinion
thattheAccused
failed
inhisdutytoactandthusincurred
liability
as anaccomplice
for
thecrimes
committed
inthecontext
of theoperations
atthisroadblock.

1. Setting
up of roadblocks

45. TheAccused
testified
thathe hadfirstgivenoralinstructions
concerning
the
erection
of roadblocks,
whichwereconfirmed
in writing
on 3 June1994,within
a context
he described
as oneof"resumption
of thewar",in orderto checkinfiltration
by members
of theRwandan
Patriotic
Front(RPF).
In hisview,saidoralinstructions
weregiven
theendof Aprilor beginning
of May,afterthecommunal
council
metpursuant
to the

37 ProsecutionExhibit No. 84.

38 Transcriptof the hearingof 2 May 2000, pp. 72 and 73.

BAGI(C)00-39-GE
[iranslatton
certatiect
19yLGbS,
IGltq
19
 Prime
Minister’s
instructions
of 27April199439.TheAccusedfurther
testified:
"I was
implementing
whatinstructions
I had beenissued
by the primeminister
through
the
pr6fet."
40Infact,
theAccused
stated
as follows:

"Ispoke
withthecommunal
councilduring
- - becausewehadtalked
about
this
during
themeetingof thecommunalcouncilwe determined
thecriteria
for
recruitment,
andfurthermore,
I relayed
thedirectives
toalltheconseillers,
andit
wasduring
thatmeetingthatwe invited
peoplewhoweresupposedtomanthe
roadblock
andwewere
tellingthemwhattheir
functions
would’’41
be.

46. However,
theAccused
alsotestified
thatthe instructions
had beengivenafter
13 April,
"during
thesecond
halfofthemonth
ofApril."
42 I notethat,
theexact
dateon
whichthe roadblock
was erectedremained
vaguethroughout
the testimony
of the
Accused,
despite
thefactthatquestions
wererepeatedly
asked
on thispoint.

47. WitnessZ testified

that on the eveningof 13 April,he had gone to the
Bourgmestre’s
hometo receive
instructions
relating
to theerection
of theroadblock
the
nextday,inthecompany
ofa certain
Rushimba.
Witness
Y, forhispart,
doesnotspecify
thedateon whichtheroadblock
wassetup.Rather,
he testified
thattheroadblock
was
setup inthemonth
of April,
andthathehimself,
wasnotamong
thefirst
people
posted
to
mantheroadblock.

48.Explaining
whytheTrafipro
roadblock
waserected
at thatparticular
location,
the
Accused
stated
: "Thiswaswhytheroadblock
wassetup closeto thebureau
communal,
so thatif needbe we couldcalluponthepolice
at thebureau
communal
So,it wasthe
official
roadblock
I hadreferred
to,andthisiswhyitwassetupthere.
Itwasa strategic
location"
43.Hence,
it should
be notedthatthelocation
of theTrafipro
roadblock
was
chosen
bytheAccused
onthebasis
oftheintervention
facilities
itoffered,
particularly,
assistance
fromthecommunal
police
posted
at thebureau
communal.

39 Prosecution
Exhibit
No.77 A.
40 Transcript
ofthehearing
of9 June2000,p.42.
41 Transcript
ofthehearing
of9 June2000,p.43.
42 Transcript
ofthehearingof9 June2000,
p. 76.
43 Transcript
ofthehearing
of9 June2000,pp.54-55.

BAGI(C)00-39-GE
[rransJatlon
certltled
byLCSb,
l(srl’[~ 20
 2. Instructions

49. TheAccused
wasquestioned
on several
occasions
on the nature
and scopeof the
instructions
he hadallegedly
givenpriorto the"attestation"
and"certification"
of
3 June1994,by whichhe specified
measures
fortheproper
manning
of theroadblocks
andforaverting
theill-treatment
or evenkilling
ofpassers-by.
I notethattheAccused
responded
to questions
putto himby theChamber
by referring
tothedirectives
contained
in thePrime
Minister’s
circular
letter
dated
27 April1994,
whichwastransmitted
tothe
Accused
by the Pr~feton 30April
1994.
44 In thiscorrespondence,
the Pr~fetalso
referred
to thesecurity
meeting
heldin Kibuye
on 25 April1994whichwasattended
by
theAccused.
Yet,itis essential
to notethatthePrime
Minister’s
circular
letter
contains
no specific
information
as to thefunctions
andconduct
expected
of thosemanning
the
roadblock
otherthanthat"officially"
recognized
roadblocks
couldbe setup to ensure
"thattheenemies
findno passageway
to infiltrate",
thatwhereit waspossible,
the
communal
authorities
could,
in particular,
be assisted
by theNational
Army,andfinally,
thatat thesaidroadblocks,
"thecitizens
mustguardagainst
taking
it outon innocent
people".
45

50.In a second
letter
fromthePrdfet
dated30 April1994stillto theAccused,
the
Pr~fet
addressed
thespecific
issueof theorganization
andcontrol
of roadblocks
by
civilians
whowereto be trained
by reservists
selected
by theBourgmestre,
andof the
needto organize
information
meetings
forthepopulation
afterthesaidrecruitment.
46
Yet,theAccused
nevermentioned
theaboverecommendations
concerning
thetraining
of
people
posted
to theroadblock,
precisely
toorganize
theirfunctions,
northeinformation
meetings
to ensure
thesafety
of thepopulation.
Whenquestioned
on thisspecific
issue,
theAccused
stated
thattherewere"noreservists
in Mabanza
whowereusedto trainin
thecivildefence
programme."
47 Butthen,theerection
of theroadblock
couldnotbe
considered
asa purely
administrative
task,particularly,
within
thecontext
of thetime,

44 Prosecution
Exhibit
No.77 B.
Prosecution
Exhibit
No.77 A.
46 Prosecution
Exhibit
No.77 A.
47 Transcript
ofthehearing
of9 June2000,
p.96.

BAGI(C)00-39-GE
[lranslatlon
eer~tied
by LCSS,
IC’l’I~ 21
 where
theofficial
purpose
wastocheckinfiltration
by theRPF-Inkotanyi,
identified
as
theenemy,
butsometimes
generally
considered
to be Tutsis.

51.I wouldliketo recall

thatby virtue
of hisduties
as theofficial
in charge
of
maintaining
lawandorderandof ensuring
security
in thecommune,
theAccused
hadthe
primary
responsibility
fortheoperation
of theTrafipro
roadblock,
before
andafterit
became
"official".
At thetimetheTrafipro
roadblock
wassetup,theAccused
assumed
responsibility
fortheinitiative,
aswellas fortheinstructions,
whichhemayormaynot
havegiven
in themonth
of April,
concerning
theco-ordination
ofefforts.
I holdtheview
thatitisirrelevant
andcertainly
insufficient
fortheAccused
torelyonvague
instructions
transmitted
to himby thePrdfet
onlyat a laterdateto showthepractical
measures
he
allegedly
tookatthattime.

52.I notethattheevidence
adduced
supports
a finding
thatkillings
occurred
at the
verylocation
of theroadblocks
orin connection
withtheactivities
atthethree
roadblocks
erectedin Mabanzacommune(Trafipro,Gitikininiand Gacacaroadblocks).
Consequently,
evenif theTrafipro
roadblock
wassetup fora priori
legitimate
security
reasons,
itsmodusoperandi
was,through
thewillful
negligence
of theAccused
andin
fullawareness
of theforeseeable
risks,
leftat themercy
of individuals,
whether
or not
selected
byhim,whohadjointly
participated
incriminal
actsagainst
theTutsi.

53. Furthermore,
I wouldliketo statethatat the timethe circular
letters
of
3 June1994werepublished,
by whichthosemanning
the roadblock
wereofficially
appointed
andthe supervisory
committee
set up,massive
attacks
against
the Tutsi
population
had,inthemain,already
occurred,
andtheriskof maltreating
fleeing
Tutsi
civilians
seeking
refuge
had,in fact,reduced,
either
because
mostof themhadalready
beenkilled
or because
thosewhohadnotescaped
werein hiding.

54. It shouldalsobe notedthatas regardsthe "unofficial"

roadblocks
in the
commune,
citedby manywitnesses
(Witnesses
A_A,AB,B, RA, Z and ZD),theAccused
merely
produced,
as evidence
of measures
he tookagainst
the"recalcitrant"
persons
who
allegedly
erected
thesaidroadblocks,
a letter
dated12 July1994,requesting
twopeople

BAGI(C)00-39-GE
j franslalaon
certatied
by LCSS,
IC’fl~ 22
 to "dismantle"
theroadblock
set up "on theirowninitiative".
48 I wouldliketo
emphasize
thatthisletter
waswritten
barely
twodaysbefore
theAccused
escaped,
and
thatastheofficial
incharge
of maintaining
lawandorder,
aswellassecurity,
hecould
or
ought
to havetakendifferent
measures
thatweremorepositive
andimmediate,
if he had
wanted
to takeprompt
action
to dismantle
an "official"
roadblock,
instead
of writing
a
letter
to individuals
whodeliberately
violated
communal
security
rulesandregulations,
and who wereknownto him.

3. Individuals
assigned
to manthe roadblocks

55. Withregardto the persons

actually
manning
theTrafipro
roadblock
andin
reference
to theletter
of 3 June1994,the Accused
testifed
thatthe"attestation"
concerned
thesamepeople
as thosewhomanned
theroadblock
rightfromthetimeit was
setup.Hestated
asfollows
:

"TheTRAFIPRO roadblockwasalways mannedby thesepeople. Whatwe did

was,to givethemtheattestation because
thosewhowerepassing at the
roadblock wouldask themwho theywere;you are askingme for my
identification,
inwhat capacity.
Soit’satthatpointintime thatwehadbeen
obliged
togivethemspecificassignments
andsothatifthereisanypasser-by
asking
themwhotheywere,theycouldshowthisofficial
attestation.
Butitwas
always
thesepeoplewhowereattheroadblock,atthisroadblock.
Andreferring
towhathappenedinthepast, I toldyouthatwhenwe startedsettingupthe
roadblocks
we wereexpectingwhatwashappening in othercommunes,andI
wastelling
themthattheyshouldnotbehave
inthesamemanner."49

56. Since
this"attestation"
datesbackto earlyJune,
thatis nearly
twomonths
after
theTrafipro
roadblock
wassetup,it cannot,
in itself,
be usedas evidence
to showthe
persons
whoat onetimeor another
manned
or supervised
theroadblock
fromthetimeit
wassetup,or to showthatit wasalways
thesamepersons.
Moreover,
theAccused’s
claimis contradicted
by thetestimonies
of several
witnesses,
including
Witness
Z and
Witness
Y.

57. The majorityfoundthatthe presence

of WitnessY fromApriluntilaround
3 June1994(para.
914of theJudgement)
wasuncontested,
andfurther
foundthatthe

48
DefenceExhibitNo. 18.
49
Transcript
of thehearingof 9 June2000,pp.39 and40.

BAGI(C)00-39-GE
Ilranslatmn
certmedby LCSN,ItS 11~ 23
testimonies
of Witnesses
O, AA,Z andY, supported
by priorwitness
statements,
suggest
(para.
919of theJudgement)
thatWitness
Z andRushimba
wereregularly
present
at the
Trafipro
roadblock.
Themajority
concluded
thateventhoughit wasnot possible
to
establish
theexactdateswhenZ andRushimba
werepresent
at theTrafipro
roadblock,
theChamber
foundthattheywereat theroadblock
withconsiderable
regularity.
The
majority
alsotookintoaccount
thecloseproximity
of theroadblock
to thebureau
communal
in assessing
the Accused’s
awareness
of the situation
(para.925 of the
Judgement).
Hence,
themajority
doesnothesitate
to conclude
thatit cannot
accept
the
Accused’s
contention
thatthe"attestation"
of 3 June1994gives
a complete
picture
of the
persons
whowereregularly
present
at theroadblock
whileit wasoperational
(para.
924
of theJudgement).
However,
I notethatthemajority
drewno otherconclusion
otherthan
stating
thatit couldnotaccept
thattheAccused
wasunaware
of thefactthatother
persons,
besides
thefivewhowereappointed,
werepresent
at theTrafipro
roadblock
on a
regular
basis
(para.
925of theJudgement).

58. In histestimony,
theAccused
stated
thatthepeople
stationed
at theroadblock
enjoyed
thetrustof thecommunal
council,
because
theyhadbeenselected
by thesaid
council
and thatthe commission
appointed
on 3 June1994verified
thatthepersons
posted
attheroadblock
discharged
their
duties
properly
andthatno onewasill-treated.
50
Theletter
further
states,
fortheinformation
of members
of thesupervisory
commission,
thatnoonewastoappear
attheroadblock
without
the"certification",
which
suggests
that
therewasa likelihood
of thathappening
or thatit didhappen,
thusconfirming
the
testimonies
of Y and Z, whichmadeno reference
to the "attestations".
The Accused
testified
asfollows
:

s0 Prosecution
Exhibit
No.94.
BAGI(C)00-39-GE
[iranslatmn
certttled
byLC~5S,
figllq 24
 "Yousee,I gavethemassignments, andin thoseassignmentstherewasno
mentionmadeof how Tutsisshouldbe sought.My instructionswereclear.
AmongstthepeoplewithwhomI was working, therewerethosewhowouldgo
beyondwhattheyweresupposed to do andwe wantedto bringthembackto
order
[...]I donotthink,
thatisnotsurprising
ifthereisoneperson
amongst
this
teamwhomademistakes.But,theyknewthattheycouldbe punished. Thisis
whyI setupthisverification
commission
so thattheycould
direct
andsupervise
these
people."51

59. The Accusedtestifiedthat the personsappointedwere peoplewho conducted

themselves
properly
and had his confidence,
s2 As regardsthe levelof training
and
backgroundof said persons,the Accused answered,"No, these were exemplary
farmers".
53 TheAccused
statedthathe listened
to theconseillers’
viewsandthatthe
levelof trainingrequiredfor personsmanningthe roadblockwas "thatthey had
completed
at leastprimaryschoolor post-primary
education
and so on".54 The Accused
admitted
thathe hadconfidence
in them,and thathe hadselected
peopleof goodmoral
standing
in thevillage
forthejobY

60.Incidentally,
he testified
thathe didnotauthorise
WitnessZ and Rushimba
to man
theroadblock,
although
it wasestablished
thattheywereregularly
present
at theTrafipro
roadblock.
The presenceof a numberof peopleunofficially
manningthis roadblock
during
thatperiod
wouldsuggest
thattheAccused
didnotexercise
sufficient
control
over
the peoplemanningthe roadblock
fromat least3 June1994,despitethe factthatthe
roadblockwas closeto both his officeand his residence.
Reactingto WitnessZ’s
testimony
thathe received
instructions
to mantheroadblock,
theAccused
testified
that
WitnessZ’s namewas in the registerof arrestwarrants
and summonses
issuedby the
courts56 becausehe was a wantedpersonon 17 June1994.57 I note,however,
thatthe

Accused
gaveno explanation
forthearrest
of thiswitness
andthatthisinformation
sheds
no lighton whatWitness
Z’sstatusandduties
mighthavebeen.

Transcript
ofthehearing
of9 June
2000,
p.49.
Transcript
ofthehearing
of8 June2000,
p.231.
53Transcript
ofthehearing
of7 June2000,
p.161.
s4Transcript
ofthehearing
of9 May2000,
p.30.
Transcript
ofthehearing
of8 June2000,
p.265oftheFrench
version.
s6 Defence
Exhibit
No.100.
57 Transcript
ofthehearing
of7 June2000,
p.169oftheFrench
version.

BAGI(C)00-39-GE
[lranslataon
cem/iecl
byLCSS,
I’,S1I~ 25
 1"36
61. The "attestation"
of 3 June1994sentto WitnessY and fourotherpersons
contained
thefollowing
instruction
: "During
thechecks
yourarerequired
to conduct,
youarekindly
requested
notto ill-treat
passers-by,
as somehavealready
done"58
(emphasis
added).
TheAccused
stated
in thatregard
that,"Thiswaswhytherewas
five-man
commission
setup,responsible
to verify
whether
or notpassers-by
hadbeen
maltreated
andwhether
theenemy
hasinfiltrated
through
thispassageway."
59

62.It is my opinion
that,in thespecific
context
of April1994,theAccused
should
haveensured
thatallthenecessary
measures
weretaken,
liketheonesheformally
tookin
Jtme1994,fortheproper
andeffective
operation
oftheTrafipro
roadblock
evenbefore
it
wasmade"official".
Specifically,
theAccused
hadtheobligation
to ensure
thatmeasures
weretakento limit,
as faras possible,
anymaltreatment
of thecivilian
population.
It
appears,
moreover,
thata number
of"unofficial"
roadblocks,
besides
theoneat Trafipro,
wereallowed
to operate
during
the monthof April.
Considering
thattheAccused
had
authority
overthepersons
assigned
to mantheroadblock,
eventhough
theywereselected
in consultation
withthecommunal
council,
heincurred
fullresponsibility
forthesetting
upandoperation
ofthesaidroadblock
byvirtue
ofhisduties
astheofficial
responsible
formaintaining
law,order
andsecurity.

63. WhenI reminded

theAccused
thatWitness
Y hadspoken
in detail
aboutthekey
roleplayed
by Rushimba
in thekilling
of Judith
andthatRushimba
wasapparently
the
leader
of thosemanning
theTrafipro
roadblock,
he answered:
"ThenamesthatI haveare
the fivewhomI askedto appoint
theirleaderthemselves.
I don’tsee the nameof
Rushimba
because
yourecall
thatduring
thisperiod
therewerepeople
whowereat the
roadblock
liketheWitness
"Z"whomwe referred
to andwhowason thislist."
6o [NB.
French
transcript
states
thatwitness
Z wasnotonthelist:
"...n
’estpassurcette
liste...
"]
WhenaskedwhetherRushimba
had beenauthorised
to act as a leader,the Accused
answered,
"If it wasCyakubwirwa,
thatmaybeis theonewho wasknownas Rushimba,
maybe. Otherwise,I wouldn’tknow very well. [...] Fidele Cyakubwirwa,
Fid61eCyakubwirwa,
but herewe haveFiddleKubwimana.
I don’tknowwhether
we are

58
DefenceExhibitNo. 62.
59
Transcript
of thehearingof 9 June2000,p. 37.

BAGI(C)00-39-GE
[1ranslatlon
certatied
0yLCSS,
I(2TI~ 26
 dealing
withthe sameperson."
6~ In conclusion,
whether
or not Rushimba
was the
nickname
of oneKubwimana
or oneKyakubwira,
thetestimonies
areconsistent
withthe
factthatRushimba
held,
at least
de facto,
a position
of authority
orleadership
overthe
persons
whomanned
theTrafipro
roadblock
fromthetimeit wassetup in April1994.
Hence,
considering
theproximity
of theroadblock
to thecommunal
office
andthefact
thattheBourgmestre
wasresponsible
foritserection,
theAccused
couldnothavebeen
unaware
of the presence
androleof Rushimba
and Witness
Z, andfailedto provide
adequate
supervision
overa system
thatinherently
presented
obvious
risks.

64.Accordingly,
I holdtheopinion
thatby allowing
theseindividuals
to manandrun
theroadblock
fortheentire
period
thatit wasoperational,
theAccused
incurred
liability
as an accomplice
in the arrestand murderof the onlytwo Tutsiswho cameto the
roadblock,
orweretaken
there
while
it wasoperational.

B. Purpose
of theTrafipro
roadblock

65. Themajority
hasnotedthatneither
thePrefet’s
letter
of 30 April1994,
noreven
the"attestation"
or"certification!’
of3 June1994support
a finding
thattheroadblock
was
established
forcriminal
purposes,
butthatprecisely,
the"certification"
warned
against
the
ill-treatment
of passers-by
(para.
935of theJudgement).
Yet,it hadalready
been
established
earlier
thatthisletter
thatwassentat theendof April
onlycame"tomake
official"
a roadblock
whichhadalready
beenerected
earlier
on theverbal
instructions
of
theAccused,
whichinstructions
theAccused
wasunable
toexplain
in detail,
despite
the
questions
putto himby theChamber
to thateffect.
Moreover,
theletters
of June1994
cannot
serveas documentary
evidence
of duediligence
on thepartof theAccused
forthe
periodpriorthereto,
because
theycoveronlypartof theperiodduringwhichthe
roadblock
wasoperational.
Furthermore,
as themajority
noted,
theactual
conduct
of
operations
at theroadblock
during
thisperiod
is therevealing
factor
of itsobjective,
whichis not necessarily
reflected
by the documentary
evidence
(para.938 of the
Judgement).

60
Transcript
of thehearing
of 9 June2000,p. 36.
6t
Transcript
of thehearing
of 9 June2000,pp.44 and45.

BAGI(C)00-39-GE
II’ranslataon
cert]laed
by LC~,ICT~ 27
 66. Questioned
on themeaning
of theword"enemy",
appearing
in paragraph
twoof
theEnglish
version
of the"attestation"
dated3 June1994,62 theAccused
answered:
"Enemyis mwanzi,
mwanzi[...]Mwanziis whatwe usedto definethe enemyand it
means
member
of theRPF."63 Withrespect
to theethnic
groupof thosewhocouldpass
through
theTrafipro
roadblock,
without
encumbrance,
theAccused
testified
thatthey
werepassers-by
whowerein vehicles.
[...]anyethnic
group."
The Accused
further
testified
: "Whynotsaythatthere
wereTutsis
thatpassed
by thisroadblock?
I cangive
you an example,
theexample
of convoys
thatI was awareof by Deputy
Musafiri.
His
wifewasTutsi.
Therewasalsoanother
Tutsiwoman.
[...]Theywerein a vehicle
which
was filled
withTutsis
andtheypassed
by thisroadblock.
Theyarrived
in Kibuye.
I
remember
meeting
themthere.And lateron, theywentto Zaire,
via LakeKivu."64
However,
I notethatthisfactis not corroborated
by witnesses
Y and Z who were
regularly
present
at theTrafipro
roadblock.

67. Witness
Z testified
thatduringhisrecruitment,
he wentto thehomeof the
Bourgmestre,
whichwas guardedby a policeman,
to ask aboutthe detailsof the
assignment.
TheAccused
specifically
askedhim to meetone Rushimba
to set up the
roadblock
veryearlythenextmorning,
"because
theenemies
areescaping."
65 Witness
Z
explained
thattheBourgmestre
usedthewordInyenzi
which,
at thattime,according
to
theWitness,
meanta Tutsi,
or a member
or a sympathizer
of theRPF.Theinstructions
givenby theBourgmestre
werethathe should
checktheidentification
papers
of anyone
passing
through
theroadblock,
as wellas vehicles,
in theobjective
of seeking
outthe
enemy.
Whenpassing,
theBourgmestre
wouldgreetthemand wouldaskaboutthe work
and he wouldurgethemon. 66 TheWitness
testified
thataboutone thousand
people
passed
by everyday,
butasregards
theethnic
origin
ofthese
people,
hestated
that"atthat
time,theywereHutusbecause
Tutsis
couldnot passby theroadblock,
theywerein
hiding."
67 ApartfromJudith
andBigirimana,
he didnotseeanyotherTutsis.
68 He

Prosecution
ExhibitNo.94.
63 Transcript
ofthehearing of9 June2000,pp.44-46
64
Transcript
of thehearing
of9 June2000,
p.33
6s Transcript
ofthehearingof8 February
2000,p.39.
Transcript
ofthehearingof8 February
2000,
p.52.
Transcript
ofthehearingof8 February
2000,
pp.55to56.
68Transcript
of thehearing
of8 February
2000,
pp.75to76.

BAGI(C)00-39-GE
[lranslation
certified
by LESS,
IC1’1~ 28
 testified
thatpolicemen
wouldpassby because
thebureaucommunal
wasnotfar from
theroadblock
andthatthegendarmes
would
alsocomethere;
in fact,
atonepoint
in time,
thegendarmes
cameintotheregion
andoccupied
thebuilding
belonging
to theChinese
and"theywouldalways
69 comeby theroadblock".

68. Witness
Y testified
to having
committed
an actof genocide
in 1994by killing
three people,two of whom he knew were Tutsis.He explainedthat it was
Rushimba
Fid61eand SaidiRucanoswho askedhim to go and "man"the roadblock,
"because
theyaretheoneswhohadbeenthereearlier
andtheyaskedme to jointhem
there
attheroadblock".
7oAs regards
theinstructions,
hetestified
that,
"myfriends
who
hadcomebefore
me in thisjobtoldme thatwe needed
to checkalltheidentity
cards
whichhada photograph
inside."
71 Thisstatement
meansthatWitness
Y wasnotamong
thefirst
group
ofpersons
posted
to mantheroadblock.
He alsostated
thathisdutywasto
checkalltheidentity
cardswhichhada photograph
inside
andalsothedocuments
of
vehicles.
The instruction
was to "checkwhetherthe identity
cardcontained
the
photograph
and,if therewereno photographs,
to sendtheindividual
to thebureau
communal."
72 According
to thiswitness,
thepurpose
of theroadblock
was"tofight
against
the enemy".
73 He testified
thathe saw theBourgmestre
everymorning
and
evening
whenhe wasreturning
home74 because
it wasthemainroad.Askedaboutthe
presence
ofTutsis
attheroadblock,
theWitness
explained
that"TheTutsis,
at thattime,
didn’t
wantto be seenbecause
theyweretheoneswhowerebeingsought".
75 Witness
Y
testified
thathedidnotseeanypolicemen
at theTrafipro
roadblock,
76 butthatthere
weregendarmes
who wouldcometherefromthe Chinesecampand sometimes
they
would
comeinshifts,
77 which
is consistent
withthetestimony
ofWitness
Z.

Transcript
ofthehearing
of8 February
2000,
p.74.
70Transcript
ofthehearing
of7 February
2000,p. 28.
Transcript
ofthehearingof7 February
2000,p. 34.
Transcript
ofthehating
of7 February2000,p.35.
73Transcript
of thehearing
of 7 February
2000,p.32.
74 Transcript
ofthehearingof7 February2000,p.33.
7s Transcript
ofthehearingof7 February2000,p.36.
76Transcript
ofthehearingof7 February
2000,p. 55.
77Transcript
ofthehearingof7 February
2000,p. 55.

BAGI(C)00-39-GE
[translaUon
cemtled
byLt2~S,
IC’I’I~ 29
69.I note,furthermore,
thatWitness
AB testified
thatthe reason
formounting
the
roadblocks
wastoidentify
theTutsis
and"whenTutsis
werefound,
theywerekilled
or if
youhada facethatlooked
likea Tutsi’s
face,youwerekilled".
7s Askedaboutthe
killings
whichtookplacein Mabanza
commune
in April1994,Witness
Y statedthat
"whatwas happening
in the communewas seenby everybody.
Everybody
knewthat
therewerekillings
andI don’tseehowtheBourgmestre
wouldbe unaware
of themwhen
he was therepresent".
79 Witness
RA testified
thaton 17 April,
whenhe askedthe
Bourgmestre
to assistsomethreatened
Tutsis,
the Accused
advised
him notto go to
Kibuye
because
therewereroadblocks
on theroadandthattheywouldbe killed
if they
went.
s° Moreover,
Witness
B testified
thathe personally
sawtwopeople
killed
at two
different
roadblocks,
including
Pastor
Muganga
at theTrafipro
roadblock.
Witness
RJ
testified
thatat theroadblocks,
theHutuscouldgo through
whereas
theTutsiwere
stopped.
Witness
AA testified
to havingseenaboutthirtybodies
neartheTrafipro
roadblock
and the bureaucommunal,
beforethe bodieswereburiedin massgraves.
Witness
A testified
thathe sawpeople
beingkilled
at theroadblock
nearBagilishema’s
residencewherehe had seen policemenand the Interahamwe
controlling
this
roadblock.
81

70. It appearsfromthe foregoing

thatthe instructions
whichweregivenby the
Accused
whenthe Trafipro
roadblock
was beingsetup wereobviously
inadequate
and
cameintoolatetoavert
therisks
of criminal
conduct
onthepartof armed
civilians,
who
at thattimeweremanning
theroadblock,
against
theTutsis,
sometimes
considered
as the
RPF-Inkotanyi
enemy,
within
thecontext
of thewarat thetime.I am satisfied
thatsuch
failure
to exercise
control
gaveriseto misconduct
on thepartof thosemanning
the
roadblock
in question,
sincetheAccused
hadtheresponsibility
andthemeansto control
theoperations
attheTrafipro
roadblock
right
fromthetimeitwassetup andthroughout
theperiod
itwasoperational.

78 Transcript
of the hearingof 15 November1999,pp. 109and 110.
79 Transcript
of thehearing of 7 February2000,p. 60.
80
Transcript
of the bearingof 2 May 2000(Closedsession),
p. 49.
Transcript
of the bearingof 17 November1999,p. 56.

BAGI(C)00-39-GE
[l’ranslataon
cemtied
byLCSS,
icSt
eq 30
 / 62
C. The Accused’sComplicity
in the murdersof Judithand Bigirimana

1. The murderof Judith

71.The Accusedtestified
thathe heardaboutJudith’s
deathforthe firsttimebefore
thisChamber
andexpressed
surprise,
as follows:

"I thoughtshediedin Kibuye.

It’sherethatI heardshewaskilledin Mabanza
[...]duringthatperiodtherewerea lotof deaths
regrettably
so,butregarding
JudithI thought
sheleftwiththeothers to Kibuye.
It waslater
thatI heard
she
waskilledinMabanzaby theattackers.
Itso happened
thatthedeliquesce
[sic]
of
MabanzaandtheAbakigas whoarrived, it’spossible
thatshediedaroundthat
timebutI wasnotinformed.
’’s2

72. When asked whether Judith was well known in Mabanza on account of the
charitable
workshe performed
andwhetherher deaththerefore
madenews,the Accused
answered
as follows
regarding
Judith’s
personality:

"I toldyouthatJudithwasa farmer andthatherhusband

wasa nurse.
He wasn’t
evenan assistant medical,
whatwe calla -- is someonewhohadfinished a
primaryeducationandthenthroughexperienceandpractice
acquires
experience
to be ableto treatpeople.
So thehusband wasnotverywellknown.Maybehe
waswellknownin hiscellule wheretheylivedandmaybethesector butnot
throughout thecommunenotin the wholecommuneandthe medication that
peoplehavereferredto.Maybethiswasmedicationfraudulently
acquired
by the
husband fromthecentreat whichhe worked. Andmaybeshewashelping her
neighbourswiththismedicine. It wasn’tsomething
whichwasrecognisedand
official."
s3

73. In my opinion,
by thisassertion,
theAccused,
who claimed
thathe did notknow
Judith
in person,
triedto justify
hisnotbeingawareof herdeathby usingdisparaging
terms
anddenigrating
herroleas a benefactor,
as testified
to by oneof herkillers
himself,
whileat thesametimealleging
thatsheengaged
in quasifraudulent
activities.

74. WitnessY testified

thatJudithhad beentakenfromGitikinini
to the Trafipro
roadblock
by Rushimba
andthatshewasnot askedfor heridentification
papersbecause
evenherneighbour
knewherquitewelland wasawarethatshe wasTutsi.
84 Describing

82 Transcript
ofthehearing
of7 June
2000,
p.160.
Transcript
ofthehearing
of9 June
2000,
pp.160and161.
84Transcript
ofthehearing
of7 February
2000,p.63(French).

BAGI(C)00-39-GE
[l’ranslatton
cemtied
by LCS~,
IC1’1~ 31
where
theyhadpassed
withJudith,
thewitness
explained
thattheyhadpassed
three
paces
away from the bureaucommunal.He added:"I didn’tobservewho was in the
Secretary’s
office
butI didindeed
seetheBourgemestre
in hisoffice."
85.In hisprior
written
statement,
Witness
Y stated:

"WhenI mentionedin my admission

thatBagilishema
wasa witness,I was
responding
toa questionas towhether
anyonehadseenusleadingherto her
deathandstating
thatBagilishema
sawusgoby.[...]Thefactthatthemurder
happened
soclosetoBagilishema’s
office
leads
metobelievethathedefinitely
knewaboutit.I canstatethatnoinquiry
wasconducted
inthecase,at least
neither
’’86 ofus,whocommittedthemurder,
wasbrought
tobook.

75. ThatWitness
Y testified
thatthosewhoweremanning
theroadblock
didnoteven
takethetrouble
to askJudith
forherpapers
because
theyknewshewasTutsisuggests
conclusively
thatthedecision
to killherwasbased
on ethnic
grounds,
without
thedutyto
checkpapers
in orderto identify
"theenemy"
beingevencomplied
with.Thistempers
thetestimony
by thesamewitness
to theeffect
that,in principle,
anyone
whosepapers
werein order,
regardless
of their
ethnicity,
could
passwithout
incident.
I notethatthe
conduct
of thepeople
manning
theroadblock
at thetime,including
Witness
Y, showson
thecontrary,
discrimination
onethnic
grounds
against
passers-by
identified
as Tutsis.

76. To thequestion
as to whether
theAccused
sawthempassby withJudith,
Witness
Y answered,
"Indeed,
he saw us,he sawus.’’87Undercross-examination,
Witness
Y
asserted
theyhadseentheAccused
:

"Theoffice
hadglasswindows,
I cannot
therefore
notstate
whether
hesawusor
notbutwecouldseehim.[...]
Sincewepassed
infrontofhimwithout
speaking
to8
’’8
himI cannot
tellyouthatheknewwhat
weweregoing
todo.

77.Discussing
thethreecrimeshe committed
in 1994and thefactthattheAccused
hadbeeninformedof suchcrimes,WitnessY testified,
"I believehe musthaveknown
thisbecause
we didthiswhilehe wasstillthere.
’’89WitnessY stated
lastly,"Wewere

Transcript
of thehearingof 7 February
2000,p. 52.
DefenceExhibitNo. 64.
87 Transcript
of the (incamera)hearingof 7 February
2000,p. 53 (French).
Transcript
of thehearingof 7 February
2000,p. 54.
89 Transcript
of the hearing
of 7 February
2000,p. 26.

BAGI(C)00-39-GE
[l’ranslataon
eertatied
byLCSS,
IC’I’I~ 32
there,
we wereallthere.
Thesethings
happened
within
thiscommune.
He waspresent
in
thecommune
andmy reasoning
’’9° or my understanding
is thathe wasaware.

78.Witness
Z testified
thatoneMutiganda
cameto seehimone morning
andsaidto
himthathe hadfoundan Inyenzi
in a bananaplantation.
Witness
Z immediately
led
Judith
to the roadblock
and,alongthe way,he metRushimba
who tookJudithby the
hand.91 Theypassedby the communal
office,
withRushimba
and Witness
Y holding
Judith
andWitness
Z behind
them,5 or 10 metres
behind
them.92 As theypassed
by the
communal
office,
aftertheotherthreepeople
hadgoneby,theBourgmestre
cameoutand
allegedly
askedhim"where
he hadfoundher",to whichWitness
Z answered
thathe had
foundher "somewhere
therein a bananaplantation"
andhad toldher thattheywere
goingto "workon her",to whichtheAccused
allegedly
answered:
"...that’s
fine,go
ahead.
’’93Witness
Z testified
thatwhenhe reached
Judith’s
home,Rushimba
andWitness
Y hadalready
killed
Judith.
Hefurther
testified
thathe thought
thattheAccused
cameout
of hisoffice
because
"...he
sawthempassby because
they-- it is just-- we passed
by
justthe window
of theBourgmestre
and thecurtains
weredrawnopen.So I thinkhe
cameoutto findoutwhatwashappening
94 andthatwaswhenwe met".

79. The majority

foundthatthe onlyevidence
concerning
the Accused’s
possible
involvement
in the murder
of Judith
wasgivenby Witness
Z, whotestified
to having
discussed
it withhimin frontof thecommunal
office
immediately
afterJudith
andthe
peoplewho wereescorting
her had passedby95 (para.959 of the Judgement).
The
majority
foundfurther
thatif theallegation
thattheAccused
hadseenthetworoadblock
attendants
passin front
of hisoffice
withJudith
hadbeenproved,
evenif Judith
wasnot
being
held,thatshould
havealerted
theAccused
to imminent
danger,
giventhespecific
circumstances
of the time(para.962 of the Judgement).
However,
relyingon the
"contradictions"
between
Witness
Z’swritten
statements
andhistestimony,
coupled
with
itsassessment
of thewitness’s
allegations
of thearrest
andmurder
of Bigirimana,
the

9o Transcript
ofthehearing
of7 February
2000,
p.62.
Transcript
ofthehearing
of 8 February
2000,pp.62and63.
Transcript
ofthehearing
of8 February
2000,
p.67.
Transcript
of thehearing
of8 February
2000,
p.67.
94 Transcript
ofthehearing
of8 February
2000,
p.67.
Transcript
of thehearing
of8 February
2000,p.75(French).

BAGI(C)00-39-GE
[lranslalmn
certmed
byLESS,
1121 eq 33
majority
found
thatthosestatements
reinforce
theChamber’s
doubts
as tothecredibility
of thewitness.
Themajority
held,basedon thefindings
madein lightof itsassessment
of thecircumstances
surrounding
thekilling
of Bigirimana,
as described
by Witness
Z,
thatapart
fromthestatements
of thesaidwitness
regarding
hisinvolvement
in themurder
of Judith,
it cannot
relyon otheraspects
of thewitness’s
testimony
(para.
960of the
Judgement).

80.Theapparent
contradiction
notedby the majority
in theaccount
of themeeting
between
Witness
Z andthe Bourgmestre
priorto the murder
of Judithis minorin my
estimation,
andrelates
at mostto thesequence
of thewordsexchanged
between
the
Accused
andWitness
Z in frontof thecommunal
office,
butdoesnotraisedoubts
as to
whether
a meeting
mighthavetakenplace.
Themajority
stated
thatno otherwitness
could
corroborate
sucha meeting
although,
as it found,
theaccounts
of theevents
by
Witnesses
Y and Z arenotinconsistent
perse, butthatthemajority
ruledoutthe
possibility
thatsucha meeting
everhappened
basedon theevidence
of a witness
thatit
had already
foundunreliable
in lightof histestimony
on the murder
of Bigirimana
(para.
961of theJudgement).
Now,unlike
themajority,
I am satisfied
thatWitness
Z’s
testimony
regarding
hismeeting
withtheBourgmestre
is consistent
withtheevidence
of
Witness
Y whoexplained
thathe sawthattheBourgmestre
wasin hisoffice
whenthey
passed
bywithJudith
right
infront
ofthebureau
communal
prior
tokilling
her.

81.It is alsomy opinion,

thatthemerefactthatWitnesses
Y andZ knowingly
passed
in front
of thecommunal
office
anddidnotbother
to usean alternate
routewhereas
they
hadtheintent
tokillJudith
conclusively
shows
thatthere
prevailed
at thetimea culture
of impunity
wheretheactivities
at theTrafipro
roadblock
wereconcerned.
Witnesses
Y
andZ likely
didnothavethesensethattheywereacting
in violation
of anyruleor
directives
fromthecommunal
authorities,
otherwise
theywouldcertainly
havechosen
to
hide,
andnottaken
theobvious
andpatent
riskofmeeting
theBourgmestre.
Plainly,
they
didnotexpect
to be questioned,
reprimanded
or evenpunished
forthecriminal
conduct
theywereaboutto engage
in,whereas
clearly
theAccused
knewthatsuchindividuals
manned
theTrafipro
roadblock
as he hadmetthemthere
on a regular
basis.

BAGI(C)00-39-GE
[franslatlon
cemtied
by LCSS,ICllq 34
 82. Moreover,
Judith,
a resident
of Mabanza,
knowing
thatshecertainly
faceddeath
at thehandsof thepersons
whowereleading
herto herhome,elected
notto askthe
Bourgmestre
to intervene
although
thelatter
wasin hisoffice
whentheypassed
by.The
Accused
himself
admitted
that,givenWitness
Y’smurderous
intent,
it wouldhavebeen
inconceivable
forhimto darepassin frontof thecommunal
office
withWitness
Z, whom
he knewto be a delinquent
96. He further
testified
that,if thathadhappened,
Judith
wouldcertainly
havesought
hisassistance
andthatit seemed
to himoddforsomeone
going
pastthebureau
communal
under
theescort
of killers
nottoaskhimor thesecurity
forces
whowerepresent
at thebureau
communal
forassistance
97

83.I find,unlike
theMajority,
thatthere
is sufficient
reliable
andcredible
evidence
thattheAccused
knewaboutJudith
andthepeople
flanking
herpassing
by,thathe may
havespoken
to Witness
Z aboutit andthathe failed
to actto prevent
thecrimeand
punish
itsperpetrators
atthatparticular
time(para.
965oftheJudgement).

84.Lastly,
thefactthatthemurder
waslikely
committed
in April98,or in anyevent
priorto theJunewritten
instructions
on whichneither
of thetwowitnesses
at the
roadblock
testified,
coupled
withthefactthatsuchpersons,
of whomat leastonewas
formally
appointed
by theAccused,
failed
to comply
with"directives"
relating
to the
operation
of theroadblock,
leadsme to further
question
whether
thereeverwassucha
thingas "directives"
regarding
thesafety
of civilians
crossing
theroadblock.
In my
opinion,
thisisa confirmation
of theAccused’s
wilful
negligence
inerecting
theTrafipro
roadblock,
negligence
whichbecame
criminal
as he continued
to operate
theroadblock
prior
tothedirectives
ofearly
June1994.

2. The murderof Bigirimana

85. Regarding
Bigirimana,
Witness
Y testified
that"he was in a vehicle,
we made
himcomedownbecause
he didnothaveanyidentity
papers.
’’99OneSemugeshi
hadsaid

96
Transcript
of thehearingof 9 June2000,p. 156.
97
Transcript
of thehearingof 9 June2000,p. 156.
98
WitnessZ talks of"end of " " " " ’’
DefenceExhibitNo. 112.Aprilm his admlssaon to the Rwandanauthorities
of 22 June 1998,
99 Transcript
of thehearingof 7 February2000,p. 38.

BAGI(C)00-39-GE
t
[lranslaUon
certatiecl
byLIS~S,
1(2l’N 35
he knewhim and thathe was an enemyof thecountry
andspeaking
to Witness
Z "he
asked
himtogo andkillhim.
’’I°°
Witness
Y further
testified
"heasked
us togo anddeal
withhimandthathe wasgoingto buyus tea,obviously,
speaking
figuratively."
101
Theythenleft,armedwithmachetes
and a club,to killhimin a smallforest
about
150 metres
fromthebureau
communal.
Witness
Z landedthefirstblowandWitness
Y
struck
withtheclub.
1°2Itshould
be noted
thatWitness
Y testified
thathedidnotseethe
Accused
I°3at thetimeof Bigirimana’s
arrest,
butnotthattheAccused
wasnotat the
roadblock
as heldby themajority
(para.
944of theJudgement).
Moreover,
during
the
examination
of Witness
Y, no questions
wereputto himas to whether
Bigirimana’s
wife
hadbeenpresent
andwhatroleshemight
haveplayed
during
thearrest
of herhusband.

86. Witness
Z testified
thatBigirimana
wasstopped
in hisvehicle
"as theyusually
did",thattheysearched
"hisclothing"
for weapons
and thathe himself
allegedly
"discovered
thathe hadtwoidentity
cards:
oneindicating
thathe wasa Hutuandthe
otherthathe wasa Tutsi";
1°4whichhe characterized
as a serious
offence.
1°5 One
Semugeshi
arrived
claiming
to knowBigirimana
verywellas a Tutsiwho worked
with
theInyenzi.
106Witness
Z testified
thatthere
werea lotofpeople
attheroadblock.
1°7As
to whetherWitness
Y had engagedin control
operations
alongside
him,WitnessZ
testified
thathe wasat theroadblock
andthattheyallegedly
"encircled
thegentleman’s
vehicle,
thevehicle
aboard
whichFrangois
Birgirimana
was.
’’I°8Bigirimana’s
wife,a
Hutuwoman,allegedly
wentto pleadwiththeBourgmestre,
whowas walking
towards
theroadblock
to intervene
buttheBourgmestre
allegedly
toldherit wasnoneof his
business
and thatsheshouldgo andtalkto thepeoplemanning
theroadblock.
The
Accused
thenallegedly
wentpast,pretending
notto seethem,
1°9as heheaded
towards
his

Transcript
ofthehearing
of7 February
2000,p.38.
Transcript
ofthehearing
of7 February
2000,p.37.
102Transcript
ofthehearing
of7 February
2000,p.38.
ofthehearing
Transcript ofthehearing
of7 February
2000,
p.48- 49.
Transcript
ofthehearing
of8 February
2000,p.57.
105Transcript
ofthehearing
of8 February
2000,p.57.
Transcript
ofthehearing
of8 February
2000,p.56.
L07Transcript
ofthehearing
of8 February
2000,p.58.
L0STranscript
ofthehearing
of9 February
2000,p. 77.
Transcript
ofthehearing
of8 February
2000,p. 79.

BAGI(C)00-39-GE
[lranslatton
cerU/iecl
t~y
LCSSS,
tt;
11~ 36
 residence.
11°Undercross-examination,
Witness
Z testified
thatBigirimana’s
wifeand
the Bourgmestre
met on the roadto the bureaucommunal
and not at the Trafipro
roadblock
andthathe approached
theBourgmestre
to showhim Bigirimana’s
identity
cardsandgivehimsomeexplanations.
111Theyallegedly
detained
Bigirimana
untilthe
evening
whenWitness
Y, Rushimba
andhimself,
allegedly
tookBigirimana
to a bush
andkilled
himwithmachetes
because
he wasan accomplice,
a Tutsi,
andalsobecause
Semugeshi
112 had givenhim somemoney.

87. Themajority
notedinconsistencies
in thetestimonies
of Witness
Y andWitness
Z
whoconfessed
to killing
Bigirimana
following
hisarrest
at Trafipro
roadblock
anddrew
someconclusions
therefrom
as to the credibility
of Witness
Z (para.961 of the
Judgement).

88.Afterreviewing
thedetails
of thiseventas recounted
by twopeople
manning
the
roadblock,
who bothconfessed
to committing
genocide
on Frangois
Bigirimana,
I am
unpersuaded
thatbothaccounts
areirreconcilable
andgiveriseto doubts
as to the
credibility
of Witness
Z. Indeed,
Witness
Y testified
thatBigirimana
hadto climb
outof
hisvehicle
because
hehadno identity
papers
while
Witness
Z testified
thathepersonally
foundthetwoidentity
cards.
Witness
Z physically
hadthemsincehe explained
thathe
wentto showthemto theBourgmestre
whilethelatter
wasdiscussing
withBigirimana’s
wife.Therefore,
it is notunlikely,
giventhefactthatthereweremanyof themat the
roadblock,
thatWitness
Y thought
thatBigirimana
didnothaveanyidentity
papers,
since
theywerein the possession
of Witness
Z. On the otherhand,the meeting
between
Bigirimana’s
wifeandtheAccused
maynothavehappened
at thespecific
timeof arrest
norattheexact
location
oftheTrafipro
roadblock
buta fewyards
fromthere,
on theroad
between
thebureau
communal
andtheroadblock
andit is notunlikely
thatWitness
Z
was the onlypersonwho witnessed
the meetingsincehe had in his possession
Bigirmana’s
identity
cardsand hadapproached
theBourgmestre
of hisownaccordto
showthemto him.I wishtoaddthat,Witness
Y didnottestify
thattheAccused
wasnot

Transcript
of thehearing
of 8 February
2000,p. 70.
Transcript
of thehearing
of 9 February
2000,p. 79.
Transcript
of thehearing
of 8 February
2000,p. 59.

BAGI(C)00-39-GE
[lranslataon
t certltied
byLC;5;5,
llSt’lt 37
 at theroadblock
at thetimeof Bigirimana’s
arrest;
heonlytestified
thathehadnotseen
himthere.
113

D. Findings

89.Aftercarefully
reviewing
thetestimonial
evidence,
I mustrespectfully
disagree
withthemajority
finding
thattheAccused
incurs
no criminal
responsibility
forerecting
andcontrolling
activities
attheTrafipro
roadblock,
where
Tutsis
werearrested
or taken
to
andthenkilled,
in pursuance
of a policy
of discrimination
on ethnic
grounds
thatthe
Accused
allowed
to prevail
through
willful
failure
to act,whatever
themotives
of the
perpetrators
of thecrimes
mightotherwise
havebeen.

90.Themajority
holdsthatonlythekillings
of Judith
andBigirimana
canbe ascribed
withcertainty
to activities
at a roadblock
in Mabanza
(para.
1014of theJudgement).
Consequently,
themajority
goeson to findthatthere
cannot
be theslightest
causal
link
between
the fatesuffered
by civilian
victims
undersucha systemandthereckless
operation
of the roadblock
by theAccused
(para.1021of the Judgement).
I wish
observe
onthispoint
thatthenumber
ofvictims
attheroadblock
isirrelevant
totheissue
of assessing
thegravity
of theAccused’s
negligence
in erecting
andoperating
sucha
roadblock,
because
Witnesses
Z and Y, whowerethemselves
regularly
present
at the
roadblock,
testified
thatTutsis
didnotuseto passthrough
theroadblock
at thattime
(Witness
Z explained
thatTutsis
whohadpassed
through
theTrafipro
roadblock
andhad
beenarrested
wereJudithand Birigmana)J
TM Sucha limited
numberof Tutsiswho
passed
through
theroadblock
appears
to me to be moreindicative
of thefactthatthere
wasnota largenumber
of Tutsicivilian
victims
at theTrafipro
roadblock,
rather
than
suggesting
thattheAccused
operated
thesaidroadblock
ina reasonable
fashion.

91. Lastly,
the majority
addressed
the conditions
thatmay be reliedon to show
criminal
negligence
on the partof the Accused
by holding
thatfourelements
must
necessarily
be proved
cumulatively
(para.
1011of theJudgement)
: (1)themurders
Judithand Bigirimana
werecommitted
in thecontext
of activities
at theTrafipro

113 Transcriptofthe
hearing
of 7 February2000,p. 49.
114Transcript
of thehearingof 8 February
2000,p. 75.

BAGI(C)00-39-GE
[lranslataon
ceratied
t~yLtS~8,
I¢Si’i~ 38
 roadblock;
(2)theAccused
wasresponsible
fortheoperation
of theroadblock
in his
capacity
as theauthority
in charge
of maintaining
lawandorderin thecommune
(the
majority
alsofindsthatthefirsttwoelements
wereproved);
(3)themeasures
that
Accused
tookto prevent
anypotential
crimes
at theroadblock
werewoefully
inadequate
in thecircumstances
at thetime,suchmeasures
having
beentakenovera monthafterthe
re-establishment
of theTrafipro
roadblock;
(4)thecrimes
in question
couldhavebeen
prevented
or punished
hadtheAccused
exercised
duediligence
in hisdutyto control
the
persons
manning
the roadblock,
by ensuring,
interalia,thattheyweretrained
by
reservists,
as suggested
inthePr~fet’s
letter
andby initiating
investigations
intothe
incidents
mentioned
intheAttestation
of 3 June1994.

92. Themajority
finds,
in spiteof therenotbeingproffered
anysuchdocumentary
evidence
priorto 3 June1994andin spiteof thevagueresponses
givenby theAccused
whenquestioned
as tothenature
of directives
given
during
theerection
oftheroadblock,
thatit cannot
be foundthattheAccused
hadshown
negligence
in operating
theroadblock
because
theAccused
somewhat
exercised
de factocontrol
overtheroadblock
(para.
1018
oftheJudgement).
Now,sucha suggestion
of a de factoroleby theAccused
in thedaily
supervision
ofactivities
at theTrafipro
roadblock
is notsupported
by thetestimony
of the
Accused
himself
whoneversuggested
thathe exercised
anysuchregular
control
overthe
saidroadblock.
Indeed,
had theAccused
so admitted,
suchan admission
wouldhave
given
riseto otherformsof liability
arising
fromnegligence,
while
suggesting
thathe
willfully
ignored
whatwasgoingonat theroadblock.

93. Themajority
findsthatin the absence
of dateson whichJudith
and Bigirmana
werekilled,
it cannot
ruleout thatthekillings
werecommitted
at a timewhenthe
Accused
was notfullyin control
of theadministration
of hiscommune,
particularly
during
theattacks
by theAbakiga.
However,
it appears
reasonable
to me to findon the
basisof thetestimonies
of bothWitnesses
Z andY thattheAccused
wasin hisoffice
whilethewitnesses
weretaking
Judith
away,andat thetimewhenJudith
andBigirimana
werekilled.
Moreover,
neither
witness
testified
thatthecommune
wasattacked
by the
Abakiga
during
thosedays(para.
1019of theJudgement).

BAGI(C)00-39-GE
Itranslataon
certl/ied
by LCSS,
ICl~ 39
94.The majority
findsfurther
thatit is doubtful
thatJudith
andBigirimana
would
havebeenspared
if the Accused
hadnotbeennegligent,
suggesting
thereby
thatthe
Accused’s
failure
to comply
withhisdutyto actwasinconsequential
(para.
1020of the
Judgement).
! wishto notethatthisfinding
is atvariance
withthemajority’s
holding
that
theAccused
regularly
passedby theroadblock,
and thatshouldhaveallowed
him to
exercise
reasonable
control
overtheactivities
there,
including
overthepeople
manning
theroadblock.
However,
themajority
appears
tojustify
thisfinding
by alleging
thatone
cannot
ruleoutthepossibility
thattheAccused
didnothavesufficient
means
of control
during
those
days.

95. Consequently,
I am satisfied
beyond
any reasonable
doubtthatthe evidence
outlined
anddiscussed
suprashows
willful
negligence
on thepartof theAccused.

96.Withrespect
to theAccused’s
criminal
intent,
it is my opinion
thattheevidence
adduced
at trialwhichshowsthenegligence
evinced
by theAccused
in deliberately
turning
a blind
eyeto theinherent
risks
in erecting
andoperating
theTrafipro
roadblock,
is akinto a consistent
pattern
of conduct.
115I am persuaded
that,overandbeyond
his
duty,
theAccused,
in hiscapacity
asBourgmestre,
hadtheresources
tocontrol
on a daily
basis
theactivities
andorganization
of thepersons
manning
theonly"official"
roadblock
in thecommune,
erected
closeto thebureau
communal,
a location
theAccused
hadto
passas he wentto and fromhometo the office.
Furthermore,
the Accused
was aware
thatthesituation
poseda danger
forTutsis,
as he admitted
to beingsoawareduring
his
interview
withWitness
RA,especially
wheretheMabanza-Kibuye
roadwasconcerned.
It wasproved
at trial,
andthisis notdisputed
by theparties,
thatMabanza
commune
was
subjected
to certain
attacks
andthattheAccused
knewthattheTutsis
in Mabanza
were
theprimary
targets
of suchattacks.
Consequently,
theerection
of a roadblock,
manned
by
armedHumcivilians,
who weresometimes
generally
likened
to the Interahamwe,
to
prevent
infiltration
bymembers
ofRPF,obviously
posed
a special
riskforTutsi
civilians.

ns Pursuant
to Rule93 of the Rulesof Procedure
andEvidence,
evidence
of a consistent
pattern
of
conduct
is admissible
in proving
theguiltof an accused.

BAGI(C)00-39-GE
[franslatton
certatiect
byLCbb,
ICII~ 40
 97.I notethatthepowers
to check
identification,
tosearch,
toconfiscate,
to anextent,
toarrest
anddetain
which
wereexercised
by individuals
who,as testified
by theAccused,
hadno special
training
apartfromprimary
education,
areby virtue
of delegation
of
powers,
amongthebasicpowers
of theBourgmestre
relating
to hisresponsibility
for
maintaining
law and orderin the commune.Notwithstanding
the scopeof such
delegation
of powers,
theAccused
neverreferred
in histestimony
to anymeasures
he
might
havetaken
toenforce
thePr~fet’s
directive
totheeffect,
inter
alia,
thatthepersons
manning
roadblocks
should
be trained
by reservists.

98. Furthermore,
to the extentthatthe Accused
alleges,
in his defence,
thathe
knowingly
andunlawfully
issued
a number
of falseidentity
cardsto Tutsis
whocame
either
to thebureau
communal
or to hishome,it is my opinion
thathe couldnothave
beenunaware
of the consequences
of carrying
an identity
cardindicating
a Tutsi
ettmicity,
andmorespecifically
whencrossing
a roadblock
at thatparticular
time.

99. Consequently,
thereis no denying
thattherisksposedby sucha system
werereal
andcouldbe perceived
by an Accused-Bourgmestre
whohadbeenin office
for14 years,
fromthemoment
sucha screening
system
wasputin place,
andit became
knownthatthe
persons
manning
theroadblocks
enjoyed
considerable
powerat thetimemajormassacres
were beingperpetrated
in Mabanzacommuneand in Kibuyeprefecture.
Those
circumstances
alonewarranted
thattheAccused
became
doubly
vigilant
andensured
an
adequate
levelof supervision
overactivities
at theroadblock
throughout
thatperiod.
Consequently,
eventhesupervisory
andcontrol
actions
takenby the Accused
in June
appear
inadequate
to me,especially
as theyrelate
to incidents
whichallegedly
occurred
fromthetimethe roadblock
had beenerected
but whichwereneverfollowed
up on.
Therefore,
itis notimpossible
thatthekillings
testified
to by Witnesses
Z andY would
be partof such"incidents".
Yet,no proceedings
wereinstituted
by the Accused
to
identify,
topunish
orto prosecute
theperpetrators
ofthose
crimes.

100.Thereis no evidence
priorto June1994,notevenin theAccused’s
testimony,
that
he in anywaytriedto prevent
persons
not assigned
to the roadblock
fromactually
manning
it,or thathe punished
thosewhoinflicted
ill-treatment
on passersby.
It is my

BAGI(C)00-39-GE
[1ranslatmn
certified
byLU:5;5,
ICTR[ 41
 viewthatsuchinformation
concerning
ill-treatment
of passersby,
coupled
withthefact
thattheAccused
knewthat"unofficial"
roadblocks
hadbeenerected
in thecommune
and
admitted
to havingbeenawareof whatwas happening
at otherroadblocks
in other
communes
or evenontheKibuye
road,
constitute
a bodyof indicia
sufficient
to showthat
theAccused
hadreason
to knowthenature
of therisksposedby theTrafipro
roadblock.
In theinstant
case,I am satisfied
thatconsidering
theinformation
available
to the
Accused,
he musthavebeenawareof the probability
of criminal
conductby the
individuals
manning
theroadblock
andthathiswasso serious
a conduct
as to amount
to
criminal
negligence
as defined
in theBlaskic
Judgement.

101.Inlightof theforegoing,
it is myopinion
thattheAccused
willfully
neglected
his
dutyto exercise
appropriate
control
overthemodusoperandi
at theonlyroadblock
under
hisresponsibility,
andthereby
aidedsubstantially
theprincipals
of thecrimes.
The
Accused
didnotfulfil
hisduties
of supervision
andmaintenance
of lawandorderin
Mabanza
commune.
Therefore,
I findthatthroughwillful
negligence,
the Accused
incurred
liability
forcomplicity
in crimes
against
humanity
- murder
- committed
by
individuals
assigned
regularly,
or evenpermanently,
to theTrafipro
roadblock.

IV. TheAccused’s
complicity
in the detention
andmaltreatment
of refugees
at
Gatwaro
stadium
(paras.
4.23,4.24and4.31of theIndictment)

102.I respectfully
distance
myself
fromtheposition
of themajority
who,in finding
evidence
ofhispresence
atthestadium
insufficient,
failed
to holdtheAccused
criminally
liable
forcomplicity
in theunlawful
confinement
of theMabanza
refugees
at theGatwaro
stadium,
in Kibuye,
from13 to 18 April1994.

103.Aftercarefully
weighing
thetestimonial
evidence
adduced,
I am of theviewthat
theAccused’s
testimony
is notcredible
sincehe testified
before
theChamber
thathe
neverwentto Gatwaro
stadium,
norevento Kibuye
townbetween
9 and25 April1994,
despite
credible
andcorroborated
testimonial
evidence
placing
himat Gatwaro
stadium
on 13,14 and18 April1994.

BAGI(C)00-39-OE
[t’ranslanon
certatied
byLIj~,
IC’l’14q 42
 /35o
104.Forthepurposes
of my reasoning,
I referto thefactsas setoutin Chapter
V,
Section
3.2of themajority
judgement
without
undertaking
anexhaustive
review
of allthe
testimonial
evidence.

Monitoring
by theAccused
of thesituation
withrespect
to theMabanza
refugees
in Gitesi

105.Withregard
to thecircumstances
surrounding
thedeparture
of therefugees,
the
Accused
testified
asfollows:

"Given
thecircumstances
in which
I received
themessage,there
wasno wayof
checking.
It iswhenI receivedthismessage,
andthatI wassensing
whatwas
going
to happen,especially
givenwhatwasbeingsaidelsewhere,
rumours,
I
didn’t
checkon whatwashappeningin Kibuye,
whether
theywouldbeableto
receive
thesepeople.I wassimply thinking
thattheyshouldfleeandrun
,’116
away.

106.TheAccused
testified
thataftertherefugees
leftforKibuye,
he hadthought
that
theirsafety
wouldbe ensured
by Prefecture
andcommune
authorities
in Kibuye.
ll7In
response
to questions
fromtheChamber
on thenature
andcontent
of actions
he allegedly
tookto check
on theplight
of therefugees
at thestadium,
theAccused
explained
thathe
didnotgo to Kibuye
because
he hadto faceattacks
occurring
in theMabanza
commune
on thatday.He further
testified
thatthegendarmerie
Commander,
Jabo,hadtoldhimin
theafternoon
of 13 April1994thattherefugees
hadarrived
safely
inKibuye.
Now,it is
worth
noting
that,as theAccused
testified
to himself,
hismeeting
withCommander
Jabo
wasa chanceencounter
and thatthe Accused
had failedto takeaction,
on hisown
initiative,
toensure
thattherefugees
would
arrive
inKibuye
safeandsound,
evenif no
crimeunderStatuteof the Tribunal’s
had beencommitted
duringthe transfer.
Questioned
on themonitoring
of theMabanza
refugees’
safety
in Kibuye,
theAccused
addedthathe wentto Kibuye
onlywhenhe wasinvited.liB
Coming
froma Government-
appointed
Bourgmestre
in office
for14 years,
andwitha well2established
reputation
in
Government,
suchan explanation
doesnotappear
to me credible,
in lightof theevents
unfolding
at the timeandthemovement
of a substantial
partof thecommune’s
Tutsi

Transcript
of thehearing
of 5 June2000,p. 44.
117Transcript
of thehearing
of 5 June2000,p. 42
Transcript
of thehearing
of 5 June2000,p. 51.

BAGI(C)00-39-.GE
IlransIation
cerlat~ed
byLCSS,
ICI1~ 43
 population.
Therefore,
I am unpersuaded
by theAccused’s
assertion
thathe hadtaken
practical
andconcrete
action
tocheckon theplight
of therefugees
andI would
addthat
thispoint
isimportant
to assessing
theroleoftheAccused
intheevents
thatoccurred
at
Gatwaro
stadium
as fromthetransfer
of refugees.

107.Withrespect
to hisschedule,
theAccused
testified
thatfrom13 April1994"the
Abakiga
came[everyday],
andthistimetheydidnotremain
at Mabanza
theycontinued
up to Gitesi,
towards
Gitesi
andtheywouldgo backin theevenings.
’’119Now,during
thatperiod,
the majority
of TutsisfromMabanza
wererefugees
in Kibuye,
Gitesi
commune,
upontheAccused’s
advice
as givenin themorning
of 12 April1994.I am of
theviewthattheAccused
cannot
therefore
claimthathe wasunaware
of thepossible
attacks
on theTutsirefugee
population
in Gitesi
by thesameAbakiga
whowereattacking
Mabanza
during
thatsameperiod.
Furthermore,
I notethatthereis no independent
or
specific
factual
evidence
adduced
by theAccused
thaton 15,16 and17 April1994other
Abakiga
attacks
occurred
in Mabanza
requiring
thattheAccused
remain
in thecommune
toensure
thesafety
ofthepopulation.

108.Withregardto the actualsecurity

conditions
prevailing
in Mabanzafrom
13 April1994,the Accused,
whenquestioned
on how he keptthe Pr~fetinformed
through
a report
ontheevents
of 13April
1994,
testified
thathehadspoken
to thePrOfet
in themorning
of 13 April,
following
thedeparture
of therefugees,
butnotsubsequently
because
thetelephone
lineshadbeencut.As to whether
he couldnothavepossibly
sent
a message
to thePrdfet
through
thegendarmerie
Commander,
Jabo,sincethetelephone
wasno longer
working,
theAccused
replied:
"I didn’t
havea specific
message
forhim,
he himself,
wouldhavebeenawareof whathappened
in Mabanza.
’’12°Andthis,despite
thefactthatthatdaywasdescribed
by theAccused
as "total
chaosin Mabanza
’’121and
wouldhavecertainly
prompted
a commensurate
reaction,
including,
notifying
higher
authorities
witha viewto their
possible
intervention.
I notethatthisattitude
stands
in
stark
contrast
totheAccused’s
zealous
promptitude
ininforming
thePrdfet
inthenight
of
12 to 13 April
of imminent
danger
he hadhadtofacebefore
therefugees
fledthebureau

119Transcript
of thehearingof 5 June2000,pp.133- 134.
iz0Transcript
of the hearing
of 5 June2000,p. 121.
 communal.
For instance,
aftermidnight
in the nightof 12 to 13 April1994,upon
realizing
thattheprdfecture
hadbrought
in otherrefugees
fromRutsiro,
theAccused
testified
thathehadtelephoned
thePr~fet
andevenoffered
toresign:

"Atthatpointintime,atthatverytime atmidnight,
I telephoned
thePrdfet,
it
wasverylatebutI tookthelibertytocallhimatnight. I askedhimwhatthey
weretryingtodo [...] SoI askedwhythePr~fet wasbringingpeoplebefore
consultingme,we should havelooked at thewaysandmeansof finding a
solutionto my problems. Thatis whatI believe we shouldhavedone.
Moreover,
I saidtothePrdfet, I hadinvitedhimonseveraloccasions
tocome
andseewithhisowneyestheconditions underwhichI wasworkingandthe
problemswithwhichI wasfacedandhe nevercame.[...]I toldhim,by
telephone,
thatI wouldbring- - thatI wasgoingtogivehimthekeystothe
office
’’~22onthemorning
ofthe13a~.

109.Concerning
theAccused’s
alleged
offerto resign
presented
to the Pr~fet
that
morning,
it seemsto me thatin lightof theevents
whichfollowed
thedeparture
of the
Tutsirefugees,
suchas the widespread
attacks
described
by the Accused,
or the
withdrawal
of thegendarmerie
forces
and,especially,
themassacre
of themajority
of the
Mabanza
Tutsipopulation
in Kibuyeon 17 and 18 April,the Accused
wouldhavehad
several
serious
opportunities
totender
hisresignation
tothePrefer,
butelected
toremain
inoffice,
inspite
ofsuchevents.

110.During
histestimony,
theAccused
insisted
on the number
of timeshe contacted
thePrdfet
during
thenightof 12 to13 April1994.
In my opinion,
suchinsistence
served
asa justification
forthefactthattheAccused
hadno other
recourse
than"toadvise"
the
refugees
to leavefor Kibuyeandto ask themto vacatethe bureaucommunal
in the
morning
of 13 April,
in orderto getridof the"burden"
brought,
in hisview,by the
Prdfet.
Now,it should
be notedthatfrom9 April1994,theAccused
hadfivegendarmes
following
theKibuye
security
meeting
heldon thatday,andthatinstead
of stationing
themcloseto thebureaucommunal
wheretheTutsipopulation,
whowerethe primary
targets
of theattackers,
hadsought
refuge
as ofthatsamedate,
theAccused
hadelected
to postthegendarmes
to Mushubati,
although
thelatter
hadno meansof transport.
123
Nevertheless,
thegendarmes
hada telephone
lineandit appears
quitestrange
thatthe

12lTranscript
of thehearing
of5 June2000,p.113.
122Transcript
ofthehearing
of 5 June2000,
pp.29-32.

BAGI(C)00-39-GE
[l’ranslatlon
certatied
by L{SSS,
ICTPq 45
 Accused
elected
nottocallthegendarmes
at least
in theevening
of 12 April
1994so that
theymightcomeandensure
thesecurity
of thebureau
communal
considering
thefresh
influx
ofrefugees
thatevening.

111.Furthermore,
I notethatdespitethe Accusedbeingpresumably
awareof an
imminent
danger
as identified
in themorning
of 13 April1994,noneof thewitnesses
who at the timewererefugees
at the bureaucommunaltestified
to the Accused
explaining
to themthespecific
nature
of sucha danger.
However,
theAccused
testified
at length
to an imminent
attack
by attackers
composed
of AbaMga
fromRutsiro.

112.Lastly,
in lightof theuniquecircumstances
in whichthe Accused
decided
to
dispatch,
as a matter
of urgency,
thousands
of refugees
fromthebureau
communal
to
Kibuye
in themorning
of 13 April1994,it appears
to me doubtful
thattheAccused
could
haveproceeded
without
seeking
priorauthorization
fromPrdfet
Kayishema,
giventhe
well-established
chainof command
whichrequired
the Accused,
in his capacity
as
Bourgmestre,
to firstseeksuchan authorization.
If true,thensuchunorthodox
conduct
seemsto me to standin starkcontrast
to the Accused’s
reluctance,
in lightof the
opportunities
he presumably
had,to go to the Prefecture,
evenwithout
invitation,
following
thedeparture
of therefugees,
to ensure
thattheywould
actually
besafethere.
By extension,
thisobservation
applies
to theAccused’s
reluctance
to address
the
25 April1994security
meeting
in Kibuye,
whichin particular
followed
themassacres
at
Gatwaro
Stadium
andwhichwillbe discussed
in detail
below.

113.Consequently,
I am of theopinion
thatthetotality
of theAccused’s
contradictory
attitude
inthefaceoftheunfolding
events
casts
doubt
on theveracity
ofhistestimony.
I
findtherefrom
thattheexplanations
provided
by theAccused
as to themagnitude
of the
attacks
on Mabanza
commune
served
to conceal
hiswillful
negligence
in checking
on the
plight
of theTutsirefugees,
withtheAccused
relying
on "thealibi"
offered
by the
Abakiga
attacks
on the commune
to showthat,he hadbeenblocked
in Mabanza
on the
onehand,
andthathe hadto attend
tothepopulation
ofthecommune,
ontheother
hand.

123Transcript
ofthehearing
of8 June
2000,
pp.142and143(French).

BAGI(C)00-39-GE
[t’ranslalaon
certltied
by LC~,ICTI~ 46
 B. Regarding the presence of the Accused at Gatwaro stadium on
13 and 14 April1994.

1. 13 April1994

114.WitnessA and WitnessAC testified

to seeingthe Accusedat Gatwarostadiumon
13 April1994though
thereis abouta one-hour
discrepancy
in thetimetheybothtestified
to seeinghim. (According
to WitnessAC, the Accusedwas withSemanza).
124 However,
the Accusedtestified
that he had remainedin Mabanzawherethe bureaucommunal
had
allegedly
beeninteraliaattacked
by Abakiga
in themorning.I25

115.WitnessA testified
thattheAccusedarrivedat the stadiumgatesaround2 p.m.
butas he didnothavea watch,thetimehe hadgivenwasa roughestimateJ
26 Witness
A
testified
thatthe Accusedfollowed
therefugees
whentheyleftMabanzafor Kibuyebut
that the Accusedhad stoppedto speakto some gendarmesand ~them in Kibuyeas
the gatesof Gatwarostadiumwere beingopened.
127 Now, sinceWitnessA failedto
mention
in hispriorstatements
theAccused
following
therefugees
as theyleftthebureau
communal,
themajority
findsthatsuchfailurecastsdoubton the evidence
of Witness
A
who testified
beforethe Chamberto seeingthe Accusedon thatday (para.536 of the
Judgement).

116.WitnessAC testified
to the Accusedarriving
unarmedand in civilianclothing,
around3 p.m. that same day. The witnessexplainedthat the Accusedspoketo the
gendarmes
at the stadiumgatesand thatafterhis departure,
the gendarmes
allegedly
statedthatnobodywouldbe allowed
out of thestadiumandevenbeatbacktherefugees
whoattempted
to followtheAccused.
Themajority
foundthattherewereinconsistencies
between
thetestimony
of thewitness
andhispriorstatement
as to thespecific
conduct
of
the Accusedwhen he arrivedthat day. The majoritynoteddiscrepancies
betweenthe
priorstatements
of Witness
AC andhistestimony:
either
theAccused
entered
thestadium
or he triedto enterthestadium,
or he tooka few stepsintothestadium.
Themajority

124 Transcript
of thehearingsof 17 November
1999,p. 22 and 23 andof 18 November
1999,p. 39.
Transcript
of thehearingof 5 June2000,p. 42.
126 Transcript
of the hearing
of 17 November1999,p. 74.
Transcript
of the hearing
of 17 November
1999,p. 31.

BAGI(C)00-39-GE
Ilranslataon
certltied
byLESS,
IC’l’t~ 47
 finds,
thatinthefaceofsuchdiscrepancies
andconsistencies
withtheaccount
ofthevisit
of theAccused
thedaybefore,
coupled
withthefactthatthewitness
onlygavea sketchy
account
ofthevisit,
it cannot
beruledoutthatthewitness
actually
remembered
a single
visit
which
he wasnowrecounting
as twoseparate
visits
(para.
538oftheJudgement).

117.Formy part,I holdtheopinion

thatsincethesequestions
werenotclearly
putto
Witness
AC during
histestimony,
themajority’s
finding
whichisbasedspecifically
on a
prior
statement
isspeculative.
Atanyrate,
according
to themajority
decision
itself,
it
should
havebeenfoundthatthewitness
remembered
at leastonevisitof theAccused
to
thestadium,
although
thisfactis notevenaccepted
by themajority.
Regarding
the
absence
ofdetails,
I notethatthemajority
acknowledges
withrespect
to theevidence
of
theotherwitnesses
whohadbeenat thestadium
at thattime,butwhohadnotseenthe
Accused,
thatit is not unlikely
thatthe Accused
made"shortvisits"
whichwent
unnoticed.
But themajority
nonetheless
required
comprehensive
andspecific
details
aboutthevisits
of theAccused
as testified
to by thewitnesses
whosawtheAccused
"briefly."

118.In my opinionthe othertestimonies

regarding
the Accused
beingpresent
at
Mabanza
in themorning
of 13 April1994arenotinconsistent
withtheAccused
possibly
visiting
Gatwaro
stadium
in theearlyaftemoon
sincehe hada vehicle
andtheroads
would
havebeenfreeby thenas therefugees
hadalready
arrived
at their
destination.
For
his part,the Accusedtestified
thatMabanza
was 20 kilometres
awayfromKibuye
prdfeeture
and"moreover,
thatit wasnota tarmac
road,it tookme onehourto getto
Kibuye."
128I am unpersuaded
by themajority’s
finding
thatin lightof theevidence
of
Witness
A andWitness
C, it wouldhavebeenimpossible
fortheAccused
to havegoneto
thestadium
on twoseparate
occasions
on 13 April1994(para.
539of theJudgement).
This,
although
themajority
notedthatthewitnesses
givean approximate
timeandthat
theonlyfactual
difference
liesin thefactthatoneof thewitnesses
testified
thatthe
Accused
wasat thestadium
before
thegateswereopened
(Witness
A) whilethe other
witness
wasalready
inside
thestadium
(AC).
It is quitepossible
fortheAccused
to have
remained
fora while
inthevicinity
ofthestadium
orin Gitesi
commune;
therefore,
I fail

BAGI(C)00-39-GE
[lranslation
certl/ied
by LCSS,
IC’fR[ 48
 to seehowsuchtwowitnesses
could
be saidto bedescribing
an unlikely
situation
allthe
moresincethetimegivenwereestimates.

2. 14 April1994

119.The Accused
testified
thaton thatveryday of 14Aprilin the morning,
the
Abakiga
returned
to thecommune
in greater
numbers
andattacked
a groupof peasants
nearthebureau
communal
andthatonceagain,
theyattacked
Kanmgu
liketheyhaddone
the9
’’12
daybefore.

120. Witnesses
A andAC130 testified
to seeing
theAccused
againin a vehicle
with
Semanza
on 14 April1994(according
to Witness
A, in thecompany
of Dr. Lronard
and
according
to Witness
AC,at 9 a.m.in thecompany
of twocommunal
police
officers
and
thecommunaldriver)TM headtowards
theentrance
andspeakto thegendarmes.
Witness
AC testified
thattheAccused
wasin civilian
clothing
andunarmed
whilethepolicemen
werearmed.
Witness
A whowashighon thelarger
standfurther
testified
thatwhenthey
arrived,
therefugees
shouted:
"that
they",
referring
to thevisitors,
werecoming
to kill
them.
Inmy opinion,
ifthere
wasa mix-up
asto thedayof thevisit
(Thursday
or Friday)
between
Witness
A’stestimony
andhispriorstatement,
sucha discrepancy
haslittle
impacton thereliability
of the evidence
of a witness
who wasrecounting
the same
incident
on bothoccasions,
an incident
whichinvolved
theAccused
beingpresent
at the
stadium
thatday.I do notsharetheviewof themajority
thatit wasprompted
by "the
absence
of details"
fromWitness
A on sucha visit
to consider
theprior
statements
ofthe
saidwitness
(para.
549of theJudgement).
I am puzzled
bysuchan approach
to assessing
evidence
thatI cannot
endorse.

121.Regarding
thevisitof theAccused
to thestadium
on 14 April1994,themajority
finds
thattheevidence
of Witness
A isnotconclusively
corroborated
by thetestimony
of
Witness
ACandnotesspecifically
thefactthatWitness
AC didnottestify
to a "striking
and relevant
detail"
as mentioned
by Witness
A whotestified
thatwhentheAccused

128Transcript
of the hearing
of 9 June2000,p. 72.
129Transcript
of thehearingof 5 June2000,pp.42,113and 125.
Transcript
of the hearingof 17 November
1999,p. 38 and of 18 November
1999,p. 43.
131 Transcript
of the hearingof 18 November
1999,p. 44.

BAGI(C)00-39-GE
[lrans~atmn
ce~tlect
byLtSSS,
I(S11~ 49
arrived,
therefugees
screamed
"that
they,"
referring
to thevisitors,
hadcometo killthem
(para.
551of theJudgement).
Thus,though
themajority
findsthatWitness
A hadnot
provided
sufficient
detail
to erasethesubsisting
doubt
withrespect
tothevisitofthe
Accused,
it seems
incongruous
forthemajority
to relyon a "striking
andrelevant
detail"
given
by thissamewitness
to findthatthetestimonies
of A andAC arenotconclusively
corroborative
of oneanother,
inspite
of thefactthatWitness
AC wasatanother
location
in thestadium
and thatthismayaccount
forhis failing
to mention
sucha detail.
(para.
551of theJudgement.)

o Findings on the presence of the Accused at the Stadium on

13 and14 April1994andon theassessment
of thetestimonial
evidence

122.I notethat,eventhough
theAccused
renounced
hisdefence
of alibiin thecourse
ofthetrial,
andwhereas
he claimed
in histestimony
thathe didnotgoto Kibuye
between
9 and25 April1994,the Accused
wasonlyableto provide
little
information
on his
schedule
andactivities
in Mabanza
during
thisperiod.
Eventhough
several
witnesses
placethe Accused
in Mabanza
on 13 and14 April,
at various
timesduring
thedayon
13 April,
their
testimonies,
in themain,
onlypoint
tothemornings.
Ittherefore
seems
to
me thatthe Accused
couldverypossibly
havetravelled
between
Mabanza
and Kibuye
during
theday,considering
that,as suggested
by theAccused
himself,
onehourby road
wassufficient
tocover
sucha distance.
I would
liketonote,moreover,
thattheevidence
usedto "corroborate"
thepresence
of theAccused
on 13 and14 April1994in Mabanza,
is testimonies
whichhadnot beenaccepted
by theTrialChamber
whentheysuggested
the Accused’s
involvement
in othercrimescommitted
in Mabanza(particularly,
Witnesses
AB,Z andH).

123.Moreover,
it beingestablished
thattheAccused
waspresent
at thestadium
during
thisperiod,
in theabsence
of evidence
to showthathe objected
to thecrimes
whichwere
committed
thereat thattime,andtaking
intoaccount
hisstatus
as an authority,
I am of
theopinion
thattheprobability
thattheAccused
was,at thattime,associated
withthe
perpetrators
ofthecrimes
is,to my mind,
established,
evenintheabsence
ofevidence
to
showthattheAccused
wasprivyto a preconceived
plan.Suchprobability,
in my opinion,
is supported
by thestatement
of Witness
A, as to theincident
whichoccurred
uponthe

BAGI(C)00-39-GE
Irranslataon
certltied
byLCS~,
IC’fl~ 50
 arrival
of theAccused
on 14 April1994,during
whichincident
therefugees
inside
the
stadium
criedout"thatthey"- including
theAccused
whowasamongthevisitors
- had
cometokillus[refugees],
a detail
described
bythemajority
as"striking
andpertinent."

124.Consequently,
I differwiththemajority
which,in assessing
the evidence
in
support
ofthepresence
oftheAccused
atthestadium,
andin light
ofthefactual
findings
which
could
be madeon thebasisof evidence
of thepresence
of an authority
at thescene
of thecrime,
applied
a double
standard
regarding
theassessment
of evidence
and,in
several
cases,
thetestapplied
proved
tobeinappropriate.
Thus,
themajority
stated
thatan
allegation
of thepresence
of theAccused
mustbe treated
withcaution
ifsuchallegation
is notsupported
by otherevidence
(para.
532of theJudgement).
In otherwords,
where
lackof detail
raised
doubt,
themajority
wouldapply
thefollowing
test: examine
other
testimonies
or takeintoaccount
witness
statements
to clarify
or testtheveracity
of
allegation
madeby a witness,
whereupon
if thereis no corroboration,
thedoubtwould
persist
andpresence
wouldnothavebeenproven
(para.
532of theJudgement).

125.As I stated
suprain the introductory
remarks,
I hold,on the contrary,
that
testimonial
evidence
hasan intrinsic
value,
andthatevidence
mustbe tested
whenthe
witness
is giving
testimony
andnota posteriori,
byrelying,
particularly,
on thewitness’
priorstatements,
without
suchstatements
beingnecessarily
put to him duringhis
testimony.
I insist
onthefactthatprior
statements
mustbe usedwithcaution,
by taking
intoaccount
thelackof information
on theconduct
of theexamination
of thewitness,
and
by ensuring
thatapparent
inconsistencies
arebrought
to theknowledge
of thewitness,
thusgiving
himtheopportunity
to provide
an explanation
during
histestimony.

126.In thisinstance,
the majority
holdsthatWitness
A onlygavesuperficial
information
regarding
hisobservation
of theAccused;
it points
out,in particular,
that
thereis no precision
as to whatthe Accusedwas doing,whetheror not he was
accompanied,
whether
he wasstanding
or sitting
in a vehicle
or whether
he wasarmed
(para.
537of theJudgement).
I notethatWitness
A provided
several
details,
butthatthe
majority
didnotmakefactual
findings
therefrom,
because
it considered
themas being
insufficient
to remove
doubtasto thepresence
of theAccused.
I deemit appropriate
to

BAGI(C)00-39-GE
[l’ranslalaon
cerlatied
byL(SNS,
ICll,q 51
 recall
that,
in theopinion
of themajority,
depending
on thelocation
of an individual
at
thestadium
andtaking
intoaccount
thefactthatthere
wasa crowdinside
thestadium,
it
isnottoberuled
outthata brief
visit
could
gounnoticed
(para.
542oftheJudgement).
fortiori,
to require
thatwitnesses
provide
suchdetails
andaccurate
information
is,in my
opinion,
unjustified
andunfair,
considering
thatthewitnesses
recognized,
andnot
identified,
theAccused
undersuchcircumstances
as havebeendescribed.

127.Lastly,
whenthemajority
states
thatit doesnotgiveanyweight
to thefactthat
Witnesses
A and AC allegedly
saw theAccused
at the stadium
on 13 Aprilwithinan
interval
of aboutonehour,it nevertheless
drawstheinference
thatif theAccused
had
beenpresent
whentherefugees
wereentering
thestadium
(astestified
by Witness
A),the
Accused
wouldnothavehadto return
at a laterstageto askwhether
therefugees
he had
senthadarrived,
(astestified
by Witness
AC)(para.
539of theJudgement).
I hold
opinion
thatsucha finding
is irrelevant
andsmacks
moreof speculation.
I would
liketo
addthattheassessment
of Witness
AC’stestimony
bythemajority
withregard
to thevisit
of theAccused
on 13 April1994andthefinding
thatthesaidsuperficial
andsketchy
description
ofthevisit
of theAccused
couldverywellapplytothevisit
of thenextday
is, in my opinion,
unfounded
(para.541of the Judgement).
Regarding
the visit
14 April
1994,I disagree
withthefinding
of themajority
thatthetestimonies
ofA and
AC areinsufficiently
corroborative
of oneanother.
Inlightofthesetestimonies,
I am of
theopinion
thatthemajority
failed
to consider
thefactthatthewitnesses
wereat two
different
locations
in thestadium
at thetimetheysawtheAccused
on14 April
1994.

128.Whenthemajority
holdsthatit is notsatisfied
beyond
reasonable
doubtthatthe
presence
of theAccused
on 13 and14 April1994is established,
it addsthat,assuming
thattheAccused
wasthere,
thewitnesses
didnotprovide
sufficient
details
concerning
the
purpose
ofhisvisit,
andthat,
therefore,
there
wasinsufficient
evidence
ofhiscriminal
intent
(para.
543oftheJudgement).
I notethatby suchreasoning,
themajority
rejects
its
ownlogicregarding
thehypothetical
significance
of thepresence
of an authority,
who
doesnotintervene
fortherefugees,
whereas
he has,at leastthemeansto express
his
disapproval,
ifonlytotakepositive
action
toprotect
thesaidrefugees.

BAGI(C)00-39-GE
[l~’anslatlon
certllied
by LtSSS,
ICI’~ 52
 129.Moreover,
eventhough
theChamber
findsthattheill-treatment
inflicted
uponthe
refugees
at thestadium
during
theperiod
from13 Aprilto thedayof theattack,
on
18 April1994,amounted
to inhumane
actscommitted
during
saidperiod
(crimes
against
humanity),
themajority
wentaheadto findthat,in anycase,evenif theAccused
were
present
at thestadium
on 13 April,
nocrimeundertheStatute
hadbeencommitted
atthat
timewhichcould
giverisetoanyliability
(para.
543of theJudgement).
I mustpoint
out
herethatthereasoning
of themajority
on thispoint
doesnotat alltakeintoaccount
its
own factual
findings
thatcrimesagainst
humanity
werecommitted
duringtheperiod
commencing
from13 April1994.

130.In lightof theforegoing,

andconsidering
thetestimonies
of Witnesses
A andAC
thatI findcredible
andreliable,
I respectfully
disagree
withthefactual
findings
of the
majority
as regards
thelackofsufficient
evidence
of thepresence
of theAccused
at the
stadium
on 13 and14April1994.I am convinced
thathaving
visited
thestadium
onthese
various
occasions,
theAccused
wasawareof theinhumane
detention
conditions
under
whichthe refugees
foundthemselves,
mostof whomcamefromMabanza,
andthatbeing
soaware,
he didnotintervene
in theirfavour.
Accordingly,
I findthatby hispresence,
eventransient,
at the timethe refugees
wereundergoing
inhumane
treatment,
the
Accused
provided
someformof moralsupport,
somelegitimacy
to thecriminal
activities
beingcarried
out,andthereby
incurred
liability
as an accomplice.
Furthermore,
by his
silence
andfailure
to intervene
in favour
of therefugees,
notably
thosefromMabanza,
theAccused
facilitated
theperpetration
of saidcrimes.
Lastly,
I am convinced
thatby
goingto the stadiumon two occasions
at the timethe refugees
werein forced
confinement,
theAccused
couldnothavebeenunaware
of thefactthatpresence
would
be interpreted
as encouragement,
or evenas acquiescence
by thosewhowereresponsible
fortherefugees’
living
conditions,
in particular,
thegendarmes
posted
at thestadium
gateson 13 and14 April1994.I am convinced
thatin his capacity
as a respected
administrative
authority,
theAccused’s
presence
at thesceneof thecrimes
helped
to
legitimize
thesaidcrimes
in a significant
manner
because,
in theabsence
of effective
denunciation,
suchconduct
provided
moralor psychological
support
to theperpetrators
of thecrimes.
Thetacitacquiescence
of theAccused
is shownthrough
hisbehaviour
and
attitude
as described
by thewitnesses,
in particular,
his conversations
withthe

BAGI(C)00-39-GE
] franslatlon
certlt]ed
by LCbb,
IGTI~ 53
 gendarmes,
whoseroleand intention
he musthavebeenawareof, between13 and
14 April1994.Considering
theentire
circumstancial
evidence,
I am satisfied
thatthe
Accused,
failing
hisobjection
totheperpetration
of thecrimes
inquestion,
knewthathis
presence
wouldverylikely
contribute
to theperpetration
of criminal
actsby other
persons,
whose
roleandintention
he hadbeenableto verify.

131.I am therefore
satisfied
beyond
reasonable
doubtthattheAccused
is liable
as an
accomplice,
pursuant
to Article
6 (1)of theStatute
and,of otherinhumane
actsunder
Article
3 (1)oftheStatute,
committed
from13 to14 April
at Gatwaro
stadium,
asalleged
in Count
5 oftheIndictment.

Complicityof the Accusedin theattackon Gatwaro

Stadium
on
18 April1994(paras.4.13,4.26and4.27of theIndictment)

132.The factthattherewas a widespread

and systematic
attackon 18 April1994
against
thecivilian
population
thatwascompelled
totakerefuge
in thestadium
hasbeen
proved
beyond
reasonable
doubt,
andis uncontested
by theAccused.

1. Evidence
of the Accused’s
presence
in the Stadium
on 18 April1994

133.Firstofall,I wanttostatethatI concur

withoneof thefindings
of themajority
relating
to thelackof credibility
on thepartof Witness
AA concerning
theAccused’s
involvement
in theevents
at thestadium.
In fact,
I holdtheopinion
thatthedoubts
and
questions
raised
during
Witness
A_A’stestimony,
considering
hispriorstatement
and
guilty
pleabefore
theRwandan
authorities,
werenoterased
evenafterhe wascross-
examined
thereon
during
thetrial(paras.
607-637
of theJudgement).

134.Witness
Z testified
thaton thedayof theattack
on theHomeSt.Jeancomplex
or
on thestadium
(17or 18 April1994),
theAccused,
whowasarmed,
stopped
by at the
Trafipro
roadblock
withSemanza
andarmedAbakiga
andallegedly
toldthewitness
that
he wasgoingto Kibuye,
as he always
didwhenever
he wasgoingthere.
132

a32 Transcript
of the hearing
of 8 February
2000,pp. 52 and 53.

BAGI(C)00-39-GE
Ilranslahon
cerhiaed
byLCSS,
1(21’1~ 54
 135.Priorto the attack,
Witness
AC saw Semanza
in the communal
vehicle
thatwas
carrying
theInterahamwe
133stopnearthestadium
gate.

136.Witness
A testified
thaton themorning
of 18 April1994priorto theattack
on the
stadium,
he sawtheAccused,
together
withSemanza
andpolicemen
in a vehicle,
butthat
theAccused
leftin thesamevehicle
after
he heard
therefugees
shouting.
134Thewitness,
who happened
to be at thegrandstand
located
in theuppermost
partof thestadium,
described
itasa brief
stopover.
Hisdescription
isobviously
limited,
butitdoesnotcall
intoquestion
thefactthatthisevent
occurred.
I cannot
subscribe
to thefinding
of the
majority
regarding
thecredibility
of thiswitness’
testimony,
whentheystate
that"...the
evidence
provided
by Witness
A aboutthepresence
of the Accused
at theStadium
is
unclear."
(para.
641oftheJudgement).

137.Contrary
to themajority
opinion,
Witness
G recognised,
andnotidentified,
the
Accused
whowas withPrdfetKayishema
and theattackers
on Gatwaro
hillbeforethe
Pr~fet
gavethesignal
to launch
theattack
(para.
649of theJudgement).
It should
notedthatalthough
the credibility
of WitnessG was not at issue,the majority
nevertheless
wentaheadto applyimproper
standards
fortheassessment
of evidence
as to
whether
Witness
G identified,
andnotrecognised
theAccused.
Although
themajority
relied
on thetestimony
of saidwitness
foritsfinding
thattheAccused,
whowaswiththe
attackers,
wasa person
knownto thewitness,
it states,
withregard
to Pr~fet
Kayishema,
thatit is notsatisfied
withtheevidence
relied
on by theProsecution
to showthatthis
witness
knewthePrdfet
priorto theevents
at thestadium.
Thefactremains
that,the
majority
accepted
thatWitness
G knewthe Accused,
basedon Witness
G’s testimony
givenin camera
to theeffect
thathe andtheAccused
livedin closeproximity
to each
other,
t35without
considering
particularly
relevant
facts
(para.
650of theJudgement)
my view,themajority
unjustifiably
adopted
a double
standard
in assessing
theevidence.
On the otherhand,duringthe in camerahearing,
the witnessprovided
pertinent
information
as to whathe wasableto see,theexact
position
where
he was,thatison the

133Transcript
of thehearing
of18 November
1999,p. 50.
134Transcript
ofthehearingof 17November
1999,p.36.
135Transcript
ofthehearing
of26January2000(incamera),
p.39 (French).

BAGI(C)00-39-GE
[rransialaon
cemtied
by LCSS,
IC 1"1~ 55
 first
stepinthestands
I36andasto thefactthattheAccused
wasonGatwaro
hilltogether
withPrdfet
Kayishema.
137Thewitness
dulyindicated
alltheselocations
in a photograph
of Gatwaro
stadium.
138During
theattack,
thewitness
couldseetheAccused
whowas
standing,
butnotcarrying
a weapon
that day.139 However,
themajority
emphasised
that
theProsecution
hadfailed
to discharge
itsdutyto provide
sufficient
evidence
regarding
theconditions
in whichWitness
G viewedthe events,
in orderto dispelany doubt
(para.
652of theJudgement);
yetthewitness
testified
thathe wasonlya shortdistance
awayfromtheAccused.
14°Intheopinion
of themajority,
thefactthatWitness
G testified
thattheAccused
wasin a standing
position
on thehillcannot
beaccepted
asa distinctive
factor
of conduct
thatcouldhelpdistinguish
theAccused
fromtheotherattackers
(para.652 of the Judgement).
The majority
furtherstatedthatWitnessG’s view
"presumably"
included
a porchfilled
withpeople,
whichsuggests
thattheiropinion
is
based
on speculation
(para.
649of theJudgement).
It should
be notedthatWitness
G was
in a location
different
fromthatof theothertwowitnesses
whowereat thestadium
during
theattack
(A andAC).Thus,sinceWitness
G wasrelatively
closer
to Gatwaro
hill,
he wasableto recognise
theAccused
on thesaidhillwhileWitnesses
A andAC may
nothaveseenhimfromtheir
location
inthestadium.
Nonetheless,
sincethemajority
held
thatno otherwitness
hadcorroborated
thefactthattheAccused
wason thehillbefore
and during
the attack,
it concluded
thaton account
of the distance
andgiventhat
Witness
G wasunable
to provide
further
details,
thepresence
of theAccused
hadnot
beenproven,
forthere
wasstill
doubt
(para.
653of theJudgement).

138.On the contrary,

I am of the viewthatthe testimonial
evidence
givenby
Witnesses
A andG regarding
thepresence
of theAccused
before
andduring
theattack
on
the stadium
is not contradictory.
I taketheviewthatin lightof thesurrounding
circumstances,
Witness
A, whowasrightat thetopof oneof thestands
whentheattack
began,
before
he subsequently
camedownto thefield
141,thatis in a standopposite
the
one whereWitness
G was,saw the Accused
in the morning
of 18 April1994whenhe

136Ibid., p. 36(French).
137 Ibid,, pp.33- 36 (French).
t38Prosecution ExhibitNo. 65.
Transcript
of thehearing
of 26 January2000,pp.37 and38 (French).
140Transcript
of thehearingof 26 January
2000,p. 16.

BAGI(C)00-39-GE
[Iranslatmn
certatied
byLCSS,
IUi’l~ 56
arrived
in a vehicle
andnotduring
theattack.
On thecontrary,
Witness
G whowasin a
standoppositethat of WitnessA did not see the Accusedin the morningof
18 April1994,butrather
around
2 p.m.,justbefore
theattack
andwhenit began,
at
which
timetheAccused
wason Gatwaro
hill.

139.I findthatsincebothwitnesses
sawtheAccused
at twodifferent
timesof theday
on 18 April
1994fromdifferent
locations
inside
thestadium,
it isbothwell-founded
and
justified
to consider
themcredible,
andI dismiss
as immaterial
thecontention
of the
majority
thatthewitness’
observation
of theAccused
wasinadequate.
Consequently,
I
am of theopinion
thatthetestimonies
of Witnesses
A andG provebeyond
reasonable
doubtthattheAccused
waspresent
in Gatwaro
stadium
on 18 April1994beforeand
during
theattack
ontherefugees
whowerebeingdetained
there.

2. The Accused’s
testimony

140.TheAccused
testified
thaton the morning
of 18 April1994,he went,together
withpolicemen
and PastorEliphaze,
to Rubengeri
Parishto request
the Abakiga
to
withdraw
fromthe commune.
The Abakigaallegedly
did not listento him and went
towards
Gitesi
townin KibuyeJ
42 Thus,whiletheAbakiga
returned
to Mabanza
in much
larger
numbers
thanin theprevious
days,theAccused
wasinformed
of theirintentions
andthedirection
theywereheading
foron themorning
of 18 April1994,afterhaving
metwiththem.
143TheAccused
further
testified
thatfollowing
thefailed
attempt,
he
stayed
in thebureau
communal
untilmidday,
helping
people
whoseidentity
cardshad
beentorn,by getting
themnewones,so thatif theAbakiga
returned
theywouldnotbe
killed.
144I mustpointoutthatI wasnotsatisfied
withtheAccused’s
explanation
in
support
of histestimony
thathe decided
suddenly
to facetheAbakiga
on 18 April1994,
whereas
theattacks
on Mabanza
commune
hadbegunsince13 April1994,at whichdate
he claimed
he wasnotin a position
to stopthembecause
he waspersonally
threatened,
whereas
the numberof attackers
increased
daily,
as perhis testimony.
Whenasked
wheretheAbakiga
wereheading
foron 18 April1994,theAccused
reiterated
thatthey

14~Transcript
ofthehearing
of 17November
1999,p.61 (French).
14zTranscript
ofthehearing
of5 June2000,
pp.141- 142.
~43Transcript
ofthehearing
of5 June2000,
pp.140- 141.

BAGI(C)00-39-GE
[~ranslataon
certttted
byLCSS,
IC1 l,q 57
"were
going
towards
Gitesi.
x45’’
TheAccused
further
testified
thatit wason thatdaythat
theAbakiga
committed
theircriminal
actsin Kibuye
andadded: "butin Mabanza,
I was
facedwithotherproblems.
It wasthepeople
whowerecoming
to me.Coming
to tellme
about
howtheyhadproblems".
146As themajority
noted,
theAccused
latertestified
that
hehadstayed
athomeon theafternoon
of 18 April
1994,thathe hadreceived
people;
but
thenthishasnotbeencorroborated
by anyothertestimony
or documentary
evidence.
I
holdthe viewthatthe evidence
adducedsupports
a findingthatthe Accused
was
informed
on the morning
of 18 April1994thatthe refugees
in Mabanza
who wereat
Gatwara
stadium
in Gitesi
commune
facedpossible
attacks
and,it alsoshowsthatby
goingto thestadium
on themorning
of 18 April1994,as testified
by Witness
A, the
Accused
knewor hadreason
to knowthatan attack
wasimminent.

141.The Accused
testified
subsequently
thatat midday
he returned
hometo receive
people
requesting
himto helpobtain
identity
cardsforthem,
andthathe allegedly
wrote
letters
totheconseillers
andmembers
of thecellule,
whereas
there
isno evidence
of such
official
correspondence
in the commune’s
outgoing
mailregister]
47 And for good
reason,
theAccused
asserted
as follows
:

"Between
the12and27April 1994thatindicates
thechaos
which
wasprevailing
inthecommune. Thecommunewastotallyparalysed.
Thesecretariat
wasnot
functioning. Allthecommunaldepartmentswereparalysed.
Thatis why
between
the12and27thereisnoletter,
thereisnoother
letter
which
went
outof
thecommune".
148

142.Thistestimony
raises
doubts
as to theAccused’s
contention
thaton theafternoon
of 18 April1994,whiletheattack
wasbeinglaunched
on theGatwara
stadium,
he stayed
at hometo write"official
letters"
of whichno traceexists,
whereas
onetestimony
situates
himat thesaidstadium
at thesamemoment,
at thebeginning
of theafternoon
whentheattack
waslaunched.

144Transcript
ofthehearing
of5 June2000,
p.142.
145Transcript
ofthehearing
of5 June2000,
p.141.
146Transcript
ofthehearing
of5 June2000,
p.142.
147Defence
ExhibitNo.18.
148Transcript
ofthehearing
of6 June2000,
p.100.

BAOI(C)00-39-GE
cemtied
[Translataon byLCSS,
tCllq 58
143.Whenquestioned
on thetragicfateof the Mabanza
refugees
in Kibuyeand the
identity
of theattackers,
theAccused
testified
thathethought
thatthehigher
authorities
had beeninformed
of the situation
in Kibuye.
Thus,he thought
it was up to them
[authorities]
to taketheinitiative
to follow
up on whathappened
in thePrdfecture
and
conduct
thenecessary
investigations,
forthatwasnotthefirsttimethatsuchatrocities

hadoccurred
149.Yet,afterthemassacres
in Gitesi
commune,
whichhe admitted
he was
aware
of sinc’e
19 April1994,
theAccused
remained
quietandtooknomeasures,
atleast,
until
25 April1994.
Hisfailure
torequest
theidentity
of persons
killed
or toorderan
investigation
following
the massacreof thousands
of membersof the Mabanza
population
appears,
to saytheleast,
incomprehensible,
andindeed,
incompatible
withthe
Accused’s
ostensible
concern
forthesecurity
of theMabanza
population,
whosemost
vulnerable
section,
composed
oftheTutsis,
hadjustbeenannihilated.

144.I holdtheviewthathadtheAccused’s
intentionnotbeencriminal
whenhe went
to thestadium
on thedayoftheattack,
he wouldhaveintervened,
atleast,
by tryingto
stoptheattacks,
in orderto protect
theTutsipopulation
of Mabanza
whohadsought
refuge
thereandoverwhomhe hadresponsibility.
If he didnothavethemeansto stand
up to theattackers,
andhaving
understood
thatthehigher
administrative
authorities
wouldnotintervene
or mighthavebeeninvolved
in themassacres,
andif theAccused
hadnotacquiesced
in themassacres,
he wouldat leasthavetakenmeasures
a posteriori
toidentify
orrepatriate
thebodies
ofMabanza
natives
killed.
It istherefore
notcredible,
as theDefence
indicated
hypothetically,
thatevenif theAccused
hadbeenat thestadium
on thedayof theattack,
he wouldhavebeenthereonlypassively,
whereas
as he himself
admitted,
the Accused
knewthatthe attackers
weremovingtowards
Gitesitownin
Kibuye
andthatwhenhe wenttherehe didnotobject
to thecrimes
committed.

145.In hiscapacity
as theofficial
responsible
forthesecurity
of theinhabitants
of
Mabanza,
the Accused
testified
thathe wentto Kibuyeon 25 April1994to attend
a
security
meeting
at thePrefecture
with,amongothers,
Pr~fet
Kayishema
andsomeother
bourgmestres.
In thatregard,
theAccused
testified
thattheauthorities
deplored
what
had happened
andmaderecommendations
to the higher
authorities
aimedat averting
a

149 Transcript
of the hearingof 5 June 2000,p. 62.

BAGI(C)00-39-GE
[Franslatton
certttied
by LCSS,
IC 1~
59
 recurrence
of suchsituations
in thefutureJ
5° TheAccused
testified
that,at themeeting,
thePrdfetmentioned
thatgendarmes,
delinquents
and theAbakigahadtakenpartin the
killings
and thatnobody,not evenhim [theAccused],
hadinquired
aboutthe numberof
victimsin spiteof the fact that thousandsof Tutsisfrom Mabanzawere amongthe
victims.
151TheAccused
further
testified
thatthey[thePrdfetandBourgmestre
of Gitesi]
were overwhelmed
and thattheydecidedthateach Bourgmestre
was to ensurethatwhat
had happened
in Kibuyedidnot occurelsewhere)
52 WhenI askedtheAccusedif he had
soughtan explanation
abouttheapparent
participation
of gendarmes
in themassacres
at
Gatwarostadium,
he gavethe following
answer:

"Thismeetingdidnotlastlong,becausetherewereproblems
between
thePrefect
and the Bourgmestre of Gitesicommune,the urbancommuneof Gitesi,
regardingwhathappenedin thetown.Thenwe hadto givethesecuritystatus
reportof thevarious
communes.Butthemeeting didnotlastlong.It wasone
hour,
’’is3
itlastedanhour.

146. WhenI insistedon knowingif the massacreshad not been carriedout with the
knowledge
and underthe supervision
of theadministrative
authorities
of Kibuye,the
Accusedresponded:
"ThePrdfetexplained
to us thatthe localcommander
"wentto the
battlefield
...andthathe himself
wasthreatened.
Thatis howhe explained
thesituation
tous....thathe was unableto do anything
duringthatperiod.
’’154The Accusednever
testified
thattheissueof thePrdfet’s
useof hispowerto callin thearmedforcesas
providedfor in the Legislative
Decreeof 11 March1975 on the organization
and
functioning
of theprefecture
wasraisedby theparticipants
155 at thesecurity
meeting.
The Accusedthenadded:

"...thenhe hadproblems explaining

whathappened.
So on thatpoint,the
Prefect
askedus it we needed
fuel.We toldhimthatwe needed
fuelforour
’’156
communes.

150Transcript of thehearing
of 5 June2000,p. 69.
is1
Transcriptof thehearing
o 8 June2000,p. 256.
152
Transcriptof thehearing
of 6 June2000,p. 103.
153 Transcriptof thehearing
of 6 June2000,p. 102.
i54
Transcriptof thehearing
of 6 June2000,p. 103.
a55
Article11 of theLegislative
Decreesetsforththeconditions
underwhichthe Pr~fetmay usehis
powersto callin thearmedforcesto restore
public
order.
156Transcript of thehearing
of 6 June2000,p. 104.

BAGI(C)00-39-GE
[franslataon
ce~tied
byLGSS,
IC’I’I~ 60
147.It seemssurprising
to me,to saytheleast,
thatthetypeof problem
raised
by the
Accused
duringthatmeeting,
in his capacity
as an administrative
authority,
and
particularly
at a timewhen,according
to him,thetownwasstinking
andstrewn
with
bodies,
157wasa problem
of petrol
andfuelsupply,
whereas
a largepartof theTutsi
population
of Mabanza
hadjustbeenexterminated.

148.As to the majority’s

question
whetherthe Accused
couldnot havedonemore
(paras.
665- 683of theJudgement),
I holdtheviewthat,theevidence
confirming
his
presence
at thestadium
on 18 April
1994,
andthefactthathe hadfailed
inhisdutyas a
local
government
representative
during
andafter
themassacres
indisputably
establish
the
extent
of liability
andnegligence
of theAccused
in connection
withthemassacres
at
Gatwaro
stadium.
Moreover,
I am convinced
thatthedifficulty
withwhichtheAccused
answered
questions
about
hisfailure
toorder
an investigation
intothemassacres
in order
to denounce
themor punish
theperpetrators
thereof
couldbe logically
explained
by the
factthattheAccused,
whowaspresent
at thetimeof themassacres,
acquiesced
in their
commission.

149.Besides,
giventhefactthatduring
thatmeeting,
theAccused
realized
thatthe
authorities
of Gitesi,
whowereadministratively
in charge
of Gatwaro
stadium,
didnot
takea clearstandwhenrecounting
thehorrendous
massacres
whichhadjusttakenplace
there,
andthefactthatgendarmes
wereinvolved
in thekillings,
I failtoseetherelevance
of theletter
thattheBourgmestre
sentto thatsamePrdfet
on 24 June1994,whicheven
contrasts
withthetimidity
displayed
by theAccused
at themeeting
of 25 April1994
following
themassacres.
In thatletter
written
in June,whena largepartof theTutsi
population
hadalready
beenmassacred
at Kibuye,
theAccused,
withfullknowledge
of
thefacts,
vehemently
denied
beingan accomplice
"whosupports
Hutusmarried
to Tutsis
andtheTutsiin general",
andrequests
thatthePr~fet
counter
theattack
by theHums
fromRutsiroand Kavoye:"otherwise
the population
of Mabanzacommunewould
defend
itself,
whichcanresult
in a confrontation
between
theHutus,
whereas
whatwe
presently
needed
themostis their
unity
to facethelnyenzi-lnkotanyi."
158Forallthese

157Transcript
of thehearing
of 6 June2000,p. 101.
158 Prosecution
ExhibitNo.84.

BAGI(C)00-39-GE
N
[franslatmn
ce~IiecI
byLCbS,
ICI’ 61
 reasons,
theAccused
urgently
requested
assistance
fromthePr~fet.
Thisdocumentary
evidence
brings
to lighttheambiguous
nature
of therelationship
between
theAccused
and the Prdfet,
a relationship
the Accused
sometimes
described
as distant,
when
explaining
why he darednotaskhim aboutthemassacres
at Gitesi,
and sometimes
as
veryfrank,
whentrying
to showthathe could
counton thePr~fet
to,among
otherthings,
intervene
to ensure
hisownprotection,
andinform
himif thepeople
of Mabanza
could
takecareof "accomplices."
I holdthe opinion
thatthislastpointproves
thatthe
Accused
wasnotpowerless
in thefaceof theevents
he hasrecounted.

150.In lightof theexplanations

givenby theAccused,
it is apparent
thatafterthe
large-scalemassacre
in Kibuye,
he failedin hisdutiesandresponsibilities
as a
Bourgmestre.
Hedidnotattempt
to clarify
thesituation
about
theofficials
nortoidentify
thevictims
of Mabanza,
andwasevasive
on thequestions
he couldhaveaskedas to how
the eventsunfolded,
eventhoughhe was presentat the "security"
meetingof
25 April1994,
whichwasattended
by alltheauthorities
concerned
by themassacres.

VI. Findings

151.Testimonial
evidence
of the presence
of the Accusedat Gatwarostadiumon
18 April1994appears
to me to irreparably
impair
thecredibility
of theAccused’s
testimony
andimpugn
hisvagueandevensometimes
surreal
accounts
of hisactivities
in
Mabanza
commune
on thatdayaimedat rebutting
theallegations
thathe waspresent
at
thestadium.
On thisspecific
point,
I concur
withJudge
Pillay’s
finding
in herseparate
opinion
in the MusemaJudgement
that"oncethe credibility
of a witness
has been
impaired,
thetestimony
ofthatwitness
isinherently
unreliable
inallitsparts,
unless
itis
independently
corroborated.
’’1:9In the saidcase,JudgePillay
dissented
withthe
majority’s
finding
thatthesoletestimony
ofa witness,
whohadotherwise
beenfoundto
be a credible
witness,
whiletheAccused
wasnot,wasinsufficient
to provethatthe
Accused
waspresent
at thecrimesite.JudgePillay
wenton to holdthat"thetestimony

159TheProsecutor
v. Musema,
Judgement
rendered
by theTrialChamber
on 27 January
2000,Separate
Opinion
of JudgeNavanethem
Pillay,
para.
4, p.315.
 of Witness
[..]cannot
be rejected
in oneinstance
on thebasisof testimony
fromthe
Accused
’’16° andaccepted
in another
instance
despite
testimony
fromtheAccused.

152.In theinstant
case,I am satisfied
thatthetestimonies
of Witnesses
A andG prove
beyond
reasonable
doubtthattheAccused
waspresent
before
andduring
theattack
on
thestadium
on 18 April1994,andthattheAccused
knewor hadreason
to knowthatthe
attack
wasbeingplanned
or wasindeed
imminent.

153.It is my opinion
thatby beingwillfully
present
during
thesaidattack
theAccused
incurs
criminal
responsibility
asan observer
whoacquiesced
in thecommission
of crimes
by othersandthereby
encouraged
suchcrimes.
I am satisfied
thatthe testimonial
evidence
adduced
showstheAccused’s
acquiescence
in thecrimes
committed,
sinceit
doesnotevince
anyreprobation
whatsoever
of thecrimes
by theAccused,
despite
the
duties
andobligations
incumbent
uponhimin hiscapacity
as Bourgmestre,
evenif he
wereoutside
hisrespective
administrative
district.
Though
notexplicit,
it is myopinion
that,
intheinstant
case,
thecriminal
intent
oftheAccused
canbe inferred
fromthebody
of factspresented
above.
I am satisfied
thatby beingpresent
at thestadium
in the
morning
andafternoon
of 18 April1994,evenin the absence
of evidence
of a pre-
conceived
plan,theAccused
couldnothavebeenunaware
thatan attack
wasgoingto be
launched
against
therefugees
at thestadium
andthat,he therefore
incurs
accomplice
liability
under
Article
6(1).
Inthecaseatbar,thesubjective
element
ofthecrime
doesnot
arise
fromco-perpetration
because
in my viewit hasnotbeenshownthatAccused
in any
way sharedas suchthe samecriminal
intentwiththe perpetrators
of the crimes.
However,
asheldin theTadic
Judgement,
161inrespect
ofcomplicity,
rnens
teacan,inter
alia,comprise
knowledge
of thecommon
design
to inflict
ill-treatment.
Suchan intent
maybe proved
either
directly
or asa matter
of inference
fromthenature
of theAccused’s
authority
within
an organizational
hierarchy.
162In thesaidcase,theChamber
further
heldthatwhatis required,
beyond
thenegligence,
is a specific
intent
to theextent
that
evenif theperson
hadno intention
of bringing
aboutcertain
results,
thatperson
was

Ibid,p.317.
The Prosecutor
v. Tadic,Judgement
renderedby the AppealsChamberon 15 July1999.
162Ibid.,para.220.

BAGI(C)00-39-GE
[l’ranslatmn
certlliea
byL(25S,
llS1’1~ 63
 I 2Y
awarethattheactions
of thegroupweremostlikelyto leadto thatresult(dolus
eventualis).

154.It ensues
fromtheforegoing
thattheAccused
couldnothavebeenunaware
that
hispresence
at themassacre
sitewould
encourage,
ifnot,sanction
thecrimes
perpetrated
on therefugees
by hundreds
of attackers.
Evenif a direct
causal
relationship
withthe
commission
of the crimeshasnot beenshown,his participation
camein theformof
moralsupport.
I am satisfied
thatthepresence
of theAccused
at Gatwaro
stadium
on
18 April
1994contributed
substantially
totheperpetration
of thecrimes
testified
to by
thewitnesses
during
themassacre
of theTutsirefugees.
Thereis no denying
thatthere
wereresidents
of hiscommune,
whowereunderhisresponsibility,
amongthevictims
of
thesaidmassacre
andthathismerepresence,
asthehighest-ranking
authority
inMabanza
commune,
in theabsence
of anyopposition
on hispartto thecriminal
actsin progress,
could
onlyhaveencouraged
theperpetrators
ofthecrimes.

155.The French
Codeof Criminal
Procedure
provides
underArticle
353 withrespect
to the Assize
Court[Courd’assises]
that"Thelawdoesnot askan accounting
from
judges
of thegrounds
by whichtheybecame
convinced
[...].
TheLawasksthemonlythe
single
question
[...]:
’Areyouthoroughly
convinced?’"
I am thoroughly
convinced
that
theAccused
is guilty,
underArticle
6(1)of theStatute,
of complicity
in genocide
and
crimesagainsthumanity(murderand extermination),
crimescoveredunder
Articles
2(3)(e)
and3(a),
3(b)and30)oftheStatute,
inrespect
ofcounts
two,three,
fourandfive,
andthathisguilt
onsuchcounts
warrants
a guilty
verdict.

Done in Arushaon 7 June 2001in Frenchand English,the Frenchtext being

authoritative.

JudgeMehmetGtiney

BAGI(C)00-39-GE
tl’ranslatmn
cemtled
by LCbb,ICTI~ 64
 International
CriminalTribunalfor Rwanda
TribunalP~nalInternational
pourle Rwanda
UNITEDNATIONS
NATIONS
LrNIES

ANNEX A

CASE NO: ICTR-95-1A-I

THE PROSECUTOR OF THE TRIBUNAL
AGAINST
IgnaceBagilishema

AMENDED INDICTMENT

1. The Prosecutor
of the Intemational
Criminal
Tribunal
for Rwanda,
pursuant
to his
authority
underArticle
17 of theStatute
of theInternational
Criminal
Tribunal
forRwanda
(theStatute
oftheTribunal)
charges:

IGNACE BAGILISHEMA

with GENOCIDE, COMPLICITY IN GENOCIDE; CRIMES AGAINST HUMANITY;

and SERIOUS VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA
CONVENTIONSAND OF ADDITIONALPROTOCOL II as set forth below.

2. Thepresent
indictment
contains
charges
against
an individual
whocommitted
serious
violations
of international
humanitarian
lawin Kibuye
Prefecture,
Territory
of Rwanda
where
thousands
of men,womenandchildren
werekilled
anda largenumberof persons
wounded
in April,
MayandJune1994.

3. THE ACCUSED

3.1 IgnaeeBagilishema
was bornin 1955in Rubengera
Sector,
Mabanza
Commune,
Kibuye
Prefecture,
Rwanda.Bagilishema’s
fatherwas LouisNtaganda,
and his motherwas
Kampundu.
IgnaeeBagilishema
was appointed
as Bourgmestre
of MabanzaCommuneon
February
8, 1980.

3.2 IgnaceBagilishema
actedas Bourgmestre
untilthe end of July1994.At all times
relevant
to thisindictment
Ignace
Bagilishema
wastheBourgrnestre
of Mabanza
Commune.
In thiscapacity,
Ignace
Bagilishema
exercised
authority
andcontrol
overemployees
of this
commune,
including
hissubordinates,
in particular,
hisassistants
Semanza
Celestin,
Nsengimana
Apollinaire,
bothAssistant
Bourgrnestres
of Mabanza
Commune,
anda Nzanana
Emile.

3.3 In his capacityas Bourgmestre

of Mabanzacommune,IgnaeeBagilishema
also
exercised
authority
and control
overmembers
of the PoliceCommunale
and Gendarmerie
Nationale.

4. CONCISE STATEMENT OF FACTS

4.1Unless
specifically
stated
herein,
theviolations
of Intemational
Humanitarian
Law
referred
toin thisindictment
tookplace
in Rwanda
between
1st April
and31st July1994.

4.2During
theevents
referred
to inthisindictment,
Tutsis,
Hutus
andTwaswereidentified
as
ethnic
orracial
groups.

4.3During
theevents
referred
to in thisindictment,
therewerein Rwanda,
widespread
or
systematic
attacks
directed
against
a civilian
population
onpolitical,
ethnic
orracial
grounds.

4.4During
theevents
referred
to in thisindictment,
therewasa non-international
armed
conflict
in theterritory
of Rwanda.
Thevictims
referred
to inthisindictment
werepersons
protected
underArticle3 commonto the GenevaConventions
of 1949and additional
protocol
IIthereof,
andwhotooknoactive
partintheconflict.

4.5 Duringthe eventsreferred

to in thisindictment,
Rwandawas divided
intoeleven
prefectures,
oneof whichwasKibuye.
ThePrefecture
of Kibuyeconsists
of ninecommunes
namely;Rutsiro,
Mabanza,Kivumu,Gitesi,Bwakira,
Mwendo,Giosvu,Gishyita,
and
Rwamatamucommunes.
4.6Theevents
whichformthebasis
of thisindictment,
occurred
in Mabanza,
Gitesi,
Gishyita
andGisovu
communes
within
thePrefecture
of Kibuye.

4.7 On 6 April1994,the planetransporting

President
Juvrnal
Habyarimana
of Rwanda
crashed
on itsapproach
to Kigali
airport,
Rwanda.
Attacks
andkillings
of civilians
began
soonthereafter
throughout
Rwanda.

4.8Following
thenewsof thedeathof President
Habyarimana,
Ignaee
Bagilishema
between
9-13April1994,attended
several
meetings
withtheprefet
of Kibuye,
Clement
Kayishema
andotherlocalauthorities
including
theCommanding
officer
of theGendarmerie
Nationale
stationed
inKibuye
Prefecture.

4.9Fromabout9 April1994through
30 June1994,thousands
of men,womenandchildren
sought
refuge
in various
locations
in Mabanza,
Gitesi,
Gisovu
andGishyta
communes.
These
men,womenandchildren
werepredominantly
Tutsis
andwereseeking
refuge
fromattacks
onTutsis,
whichhadoccurred
throughout
thePrefecture
ofKibuye.

Attacksin MabanzaCommune.

4.10In Mabanza
commune,
members
of theTutsipopulation
sought
refuge
in various
areas
within
the13 secteurs
of thecommune.
Theseindividuals
wereregularly
attacked,
throughout
theperiod
of 9 April1994through
to 30 June1994.Theattackers,
comprising
of members
of
the Gendarmerie
Nationale,
communal
policemen
and Interahamwe
militiamen,
usedguns,
grenades,
machetes,
spears,
pangas,
cudgels
andotherweapons
to killtheTutsis
in Mabanza
commune.

4.11Throughout
April,May,andJune1994,Ignaee
Bagilishema,
in concert
withothers,
including
butnotlimited
to Clement
Kayishema,
Semanza
Celestin,
Nsengimana
Apollinaire,
NzananaEmileand Munyampundu,
broughtto the areaof Rubengera
sector,Mabanza
commune,
armedindividuals
anddirected
themto attack
thepeople
residing
and/or
seeking
refuge
at various
locations
therein,
including
thecommune
office.
4.12In addition,
Ignaee
Bagilishema
personally
attacked
andkilled
persons
residing
or
seeking
refugein Mabanza
commune.

4.13Throughout
April,Mayand June1994,IgnaeeBagilishema,
in concert
withothers,
committed
actsof Murder
and encouraged
others
to capture,
torture
andkillTutsiMen,
womenand children,
seeking
refugefromattacks
withinthe areaof Mabanza,
Gitesi,
Gishyita
andGisovu
communes,
Kibuye
Prefecture.

4.14In particular,
Ignace
Bagilishema
acting
in concert
withothers
including
Clement
Kayishema,
Semanza
Celestin,
Nsengimana
Apollinaire,
Nzanana
Emileand Munyampundu,
between
9 Apriland30 June1994permitted
andencouraged
Interahamwe
militiamen
to set
up roadblocks
at strategic
locations
in andaround
Mabanza
commune.
Theprimary
purpose
ofthesaidroadblocks
wasto screen
individuals
in orderto identify
andsingle
outTutsis.
Between
9 Apriland 30 June1994IgnaeeBagilishema
ordered
the detention
of several
Tutsis
at thevarious
roadblocks
within
Mabanza.
Suchdetainees
werehanded
overto Ignaee
Bagilishema
and weresubsequently
killedby the communal
police,the Gendarmerie
Nationale,
Interahamwe
andarmedcivilians
under
hisauthority
andcontrol.

4.15IgnaeeBagilishema
between9 Apriland 30 June1994detained
over100 Tutsi
refugees
at the commune
office
jailhouse
at Mabanza.
On or about15 April1994,Ignaee
Bagilishema
allowed
Interahamwe
militiamen,
access
to thesaidjailhouse,
following
which
several
Tutsi
refugees
detained
therein,
weretortured
andkilled.

4.16 IgnaceBagilishema
between9 Apriland 30 June 1994 orderedInterahamwe
militiamen
to diga massgravewithin
theprecinct
ofthecommune
office
in Mabanza.

4.17Theremains
of several
Tutsirefugees
killed
during
attacks
at boththecommune
office
andelsewhere
within
Mabanza
commune,
werebetween
9 Apriland 30 June1994,withthe
knowledge,
consent
andacquiescence
of Ignace
Bagilishema,
buried
in a massgravewithin
theprecinct
of thecommune
office
in Mabanza.

4.18From9 April1994,IgnaceBagilishema
encouraged
thousands
of Tutsimen,women
andchildren
seeking
refuge
fromattacks
in thecommune,
to seeksaferefuge
within
the
premises
of thecommunal
office
at Mabanza.
Manyothers,
whohadfledto thehills,
wereon
theinstructions
of Ignace
Bagilishema,
ferried
backto thecommunal
office
in vehicles
belonging
to thecommune
andconfined
to thejailhouse
therein
on theinstructions
ofIgnace
Bagilishema.

4.19By 11 April1994,IgnaceBagilishema
had placedcommunal
policemen
outside
the
commune
office
withinstructions
to themto prevent
therefugees
gathered
therein
from
leaving
thesaidoffice.
Ignaee
Bagilishema
alsoinstructed
the communal
policemen
to
admit
incoming
refugees
to thecommunal
office.

4.20On 12 April1994,IgnaeeBagilishema
met withPrefetClement
Kayishema,
during
whichthe lattercommented
thatMabanza
commune
was the onlycommune
leftin Kibuye
with"scumand filth"The refugees
thathad soughtrefugein the communal
officein
Mabanza
wereon theinstruction
of Ignaee
Bagilishema
divided
into2 groups.
Thefirst
group
comprising
of intellectuals
wereputin a military
truckanddriven
towards
Kibuye
and
wereneverseenagain.
Thesecond
groupof refugees
comprising
mostlyof peasants
were
detained
at thecommunal
office
in Mabanza
andweresubsequently
transferred
to Gatwaro
stadium
in Kibuye
Townwheretheywerekilled.

Attacks
in Kibuye
Town,Gitesi
Commune.

4.21On or about13 April1994,IgnaeeBagilishema

orderedmembersof the Tutsi
population,
whoathisrequest,
hadgathered
at thecommunal
office
forprotection,
to go to
Gatwaro
stadium
in Kibuye
Town,Gitesi
commune.

4.22On arrival
in Kibuyetown,Gitesicommune,
on 13 April1994,IgnaeeBagilishema
acting
in concert
withothers
including
Clement
Kayishema,
Semanza
Celestin,
Nsengimana
Apollinaire,
NzananaEmileand Munyampundu,
dividedthe refugees
intotwo groups.
Ignaee
Bagilishema
ordered
thefirstgroupto seekrefuge
at theCatholic
Church
andHome
St. Jeancomplex
(hereinafter
"thecomplex");
and thesecondgroupto Gatwaro
stadium
(hereinafter,
"theStadium")
bothin Kibuye
townGitesi
commune.

4.23By about17 April1994,thousands

of men,womenandchildren
fromvarious
locations
sought
refuge
in theCatholic
Church
andHomeSt.JeanComplex
(theComplex)
andat the
Gatwarostadium
locatedin Kibuyetown.Thesemen,womenand children
wereunarmed
 andwerepredominantly
Tutsis.
Theywerein theComplex
seeking
protection
fromattacks
onTntsis
whichhadoccurred
throughout
thePrefecture
of Kibuye.

4.24Afterpeoplegathered
in the complexand at the stadium,
theselocations
were
surrounded
by persons
underIgnaeeBagilishema’s
control,
including
membersof the
Gendarmerie
Nationale
and communal
policemen.
Thesepersons
prevented
the men,women
andchildren
heldtherein
fromleaving,
thusdenying
themaccess
to basicamenities
such
foodandwater
forseveral
days.

4.25On 17 April1994thoseindividuals
whowereordered
by Ignaee
Bagilishema
to seek
refuge
at thecomplex,
wereattacked
by a combined
forceof attackers
consisting
of the
Gendarmerie
Nationale,
communal
police
Interahamwe
andarmedcivilians
.Theattackers
usedguns,grenades,
machetes,
spears,
cudgels
andotherweapons
to killthepeople
in the
Complex.

4.26On 18 April1994,IgnaceBagilishema,
actingin concert
withothers,
including,
ClementKayishema,
SemanzaCelestin,
Nsengimana
Apollinaire,
NzananaEmileand
Munyampundu,
brought
to Gatwaro
stadium,
the Gendarmerie
Nationale,
communal
police,
Interahamwe
andarmedcivilians,
and directed
themto attack
thepeople
seeking
refuge
there.

4.27In addition,
Ignace
Bagilishema,
on 18 and19 April1994,personally
attacked
and
killed
persons
seeking
refuge
at Gatwaro
stadium,
Kibuye
town.Theattack
on refugees
at
Gatwaro
theStadium
continued
on 19 April1994.

4.28In ordering
the Tutsimen womenandchildren
to thecomplex
andstadium,
Ignaee
Bagilishema
knewor hadreason
to knowthatattacks
at theselocations
wasimminent.

Attacks
in Gishgita
and Gisovu
Communes.

4.29Gishyita
andGisovu
communes
aredivided
into8 and9 secteurs
respectively.
Tutsi
individuals
seekingrefugein the areaof Bisesero
whichspansbothcommunes,
were
regularly
attacked,
throughout
the period
of 9 April1994through
to 30 June1994.The
attackers
comprising
of members
of theGendarmerie
Nationale,
communal
policemen
and
Interahamwe
militiamen
usedguns,grenades,
machetes,
spears,
pangas,
cudgels
andother
weapons
to killtheTutsis
in Gishyita
andGisovu
communes.

4.30Throughout
April,May and June1994,IgnaceBagilishema
actingin concert
with
others,
including
Clement
Kayishema,
Semanza
Celestin,
Nsengimana
Apollinaire,
Nzanana
Emileand Munyampundu
brought
to the areaof Bisesero
armedindividuals,
including
members
of the Gendarmerie
Nationale,
communal
policemen
and Interahamwe
militiamen
anddirected
themto attack
thepeople
seeking
refuge
there.
In addition,
Ignaee
Bagilishema
personally
attacked
andkilled
persons
seeking
refuge
onGitwa
hillin theareaofBisesero.

4.31IgnaceBagilishema,
duringthe monthsof April,May,andJune1994,in Mabanza,
Gitesi,
and Gisovu
communes,
Kibuye
Prefecture,
in the Territory
of Rwanda,
didcommit
other
inhumane
actsincluding
butnotlimited
to,persistently
searching
forTutsis,
separating
Tutsis
fromotherethnic
or racial
groups,
beating
Tutsis,
knowingly
leading
Tutsis
to the
massacre
sites,andunlawfully
confining
the Tutsis
at the commune
officeandGatwaro
Stadium
without
water,
sanitation
orfood,
thereby
forcing
theTutsis
toeatgrass.

4.32Theattacks
described
aboveresulted
in thousands
ofdeaths
andnumerous
injuries
to the
men,womenand children
withinMabanza,
Gitesi,
GisovuandGishyita
communes,
Kibuye
Prefecture.

5. CHARGES

Foralltheactsoutlined
in theparagraphs
specified
ineachof thecounts,
theaccused
either
planned,
instigated,
ordered,
committed,
or otherwise
aidedandabetted
in theplanning,
preparation
andexecution
of thesaidacts,or knewor hadreason
to knowthatpersons
acting
under
hisauthority
andcontrol
hadcommitted
or wereaboutto commit
thesaidactsandhe
failed
to takenecessary
andreasonable
measures
to prevent
thesaidillegal
actsorpunish
the
perpetrators
thereof.
 Count1:

By hisactsin relation
to theevents
referred
to in paragraphs
4.9- 4.31above,
Ignace
Bagilishema
isindividually
responsible
forthecrimes
alleged
below,
pursuant
toArticle
6(1)
and6(3)oftheStatute
oftheTribunal:

Ignace
Bagilishema,
during
themonths
of April,
Mayand June1994,in Mabanza,
Gitesi,
Gishyitaand Gisovucommunes,
KibuyePrefecture,
in the Territory
of Rwanda,is
responsible
forthekilling
or causing
of serious
bodily
or mental
harmto members
of the
Tutsi
population
withtheintent
to destroy,
in whole
orin part,
an ethnic
orracial
group
as
suchandhasthereby
committed
GENOCIDE
in violation
of Article
2(3)(a)
andpunishable
reference
toArticles
22and23oftheStatute
oftheTribunal.

Count2:

By hisactsin relation
to theevents
referred
to in paragraphs
4.14- 4.25above,
Ignace
Bagilishema
is individually
responsible
forthecrime
alleged
below,
pursuant
toArticle
6(1)
and6(3)of
theStatute
oftheTribunal:

Ignaee
Bagilishema,
during
the months
of April,
MayandJune1994,in Mabanza,
Gitesi,
Gishyita
and Gisovucommunes,
KibuyePrefecture,
in the Territory
of Rwanda,is an
accomplice
to thekilling
andcausing
of serious
bodily
or mental
harmto members
of the
Tutsipopulation
and has therebycommitted
COMPLICITY
IN GENOCIDE
in violation
of
Article
2(3)(e)
andpunishable
inreference
to Article
22and23oftheStatute
oftheTribunal.

Count3:

By hisactsin relation
to theevents
referred
to in paragraphs
4.10- 4.31 above,
Ignaee
Bagilishema
isindividually
responsible
forthecrimealleged
below,
pursuant
to Article
6(1)
and6(3)oftheStatute
oftheTribunal:

Ignaee
Bagilishema,
during
themonths
of April,
May andJune1994,in Mabanza,
Gitesi,
Gishyitaand Gisovucommunes,
KibuyePrefecture,
in the Territory
of Rwanda,is
responsible
forthe MURDER
of civilians,
as partof a widespread
or systematic
attack
 against
a civilian
population
onpolitical,
ethnic,
orracial
grounds,
andhasthereby
committed
a CRIMEAGAINST
HUMANITY
in violation
of Article
3(a)andpunishable
in reference
Articles
22and23oftheStatute
oftheTribunal.

Count4:

By hisactsin relation
to theevents
referred
to in paragraphs
4.10- 4.30above,
Ignace
Bagilishema
isindividually
responsible
forthecrimealleged
below,
pursuant
to Article
6(1)
and6(3)of theStatute
of theTribunal:
Ignaee
Bagilishema
during
themonths
of April,
May
andJune1994,
in Mabanza,
Gitesi,
Gishyita
andGisovu
communes,
Kibuye
Prefecture,
in the
Territory
of Rwanda,
is responsible
for theEXTERMINATION
of civilians,
as partof a
widespread
orsystematic
attack
against
a civilian
population
on political,
ethnic,
or racial
grounds,and has therebycommitteda CRIME AGAINSTHUMANITYin violationof
Article
3(b)andpunishable
inreference
toArticles
22and23of theStatute
oftheTribunal.

Count5:

By hisactsin relation
to theevents
referred
to in paragraphs
4.10- 4.31above,
Ignaee
Bagilishema
isindividually
responsible
forthecrimealleged
below,
pursuant
to Article
6(1)
and6(3)oftheStatute
oftheTribunal:

Ignaee
Bagilishema,
during
themonths
of April,
May andJune1994,in Mabanza,
Gitesi,
Gishyita
andGisovu
communes,
Kibuye
Prefecture,
in theTerritory
of Rwanda,
didcommit
OTHERINHUMANE
ACTS,including
but not limited
to, the causing
of serious
physical
andmental
harm,suchas thepersistent
search
forTutsis
inthemonths
following
theattack,
theseparation
of Tutsis
fromotherethnic
or racial
groups,
severe
beating
of Tutsis,
knowingly
leading
Tutsis
to themassacre
sites,
andunlawfully
confining
theTutsis
at the
commune
office
andGatwaro
Stadium
without
water,
sanitation
or food,thereby
forcing
the
Tutsis
toeatgrass
as partofa widespread
andsystematic
attack
against
a civilian
population
on political,
ethnic,
or racialgrounds,
and has thereby
committed
a CRIMEAGAINST
HUMANITY
in violation
of Article
30)andpunishable
in reference
to Articles
22 and23 of
theStatute
oftheTribunal.
Count6:

By hisactsin relation
to theevents
referred
to in paragraphs
4.10- 4.31above,
Ignaee
Bagilishema
is individually
responsible
forthecrime
alleged
below,
pursuant
to Article
6(1)
and6(3)oftheStatute
oftheTribunal:

Ignaee
Bagilishema,
during
themonths
of April,
MayandJune1994,inGisovu
andGishyita
communes,
KibuyePrefecture,
in the Territory
of Rwanda,
is responsible
for causing
violence
to life,
health
andphysical
or mental
well-being
of persons,
in thecourse
of a non-
international
armedconflict,
inparticular,
murder
aswellascruel
treatment
suchastorture
or
any formof corporalpunishment,
and has herebycommitted
SERIOUSVIOLATIONS
OF
ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OFADDITIONAL
PROTOCOL
II thereof,
in violation
of Article
4 (a)andpunishable
in reference
to Articles
and23oftheStatute
oftheTribunal.

Count7:

By hisactsin relation
to theevents
referred
to in paragraphs
4.10- 4.31above,
Ignace
Bagilishema
is individually
responsible
forthecrime
alleged
below,
pursuant
to Article
6(1)
and6(3)oftheStatute
oftheTribunal:

Ignace
Bagilishema,
during
themonths
of April,MayandJune1994,in Mabanza,
Gitesi,
Gisovuand Gishyitacommunes,
KibuyePrefecture,
in the Territory
of Rwanda,is
responsible
forcausing
outrages
uponpersonal
dignity
of women,
including
humiliating
and
degrading
treatment,
in thecourse
of a non-international
armedconflict,
andhasthereby
committed SERIOUS VIOLATIONS OF ARTICLES 3 COMMON TO THE GENEVA
CONVENTIONSAND OFADDITIONALPROTOCOLII thereof,in violationof Article
4(e)andpunishable
inreference
toArticles
22and23oftheStatute
oftheTribunal.

10
At Arusha,
Tanzania
thisseventeenth
dayof September
1999.

FortheProsecutor

Bemard A Muna
DeputyProsecutor

11
 ICTR-95-1A-T

ANNEX B

Glossary
of Terms

Additional
Protocol
I Geneva
Protocol
Additional
to theGeneva
Conventions
of
12 August1949, and Relatingto the Victimsof
International
Armed
Conflicts
(Protocol
I)of8 June1977.

Additional
Protocol
II GenevaProtocol
Additional
to theGenevaConventions
of
12 August
1949,
andRelating
to theVictims
ofNon-
International
ArmedConflicts
(Protocol
II)
8 June1977.

Abakiga Inthepresent
casethetermisusedgenerally
forpersons
fromcertain
northern
partsofRwanda.

Akayesu
(TC) TheProsecutor
v. Jean-Paul
Akayesu,
CaseNo.ICTR-96-
4-T,Judgement
of 2 September
1998.

Akayesu(AC) TheProsecutor
v. Jean-Paul
Akayesu,CaseNo.ICTR-96-
4-A,
Appeals
Chamber
Judgement
of 1 June2001.

Aleksovski
(TC)
Prosecutor
v.ZlatkoAleksovski,
CaseNo.IT-95-14/1-T,
Judgement
of 25 June1999.

Blaskic
(TC) Prosecutor
v.TihomirBlaskic,
CaseNo.IT-95-14-T,
Judgement
of 3 March2000.

BureauCommunal Compound
containing
theoffices
andother
buildings
ofthe
Administration
of thecommune.

CDR Coalition
fortheDefence
oftheRepublic
(Coalition
pourla
D~fense
de la R@ublique).

Celebidi
(Delalic)
(TC) Prosecutor
v. Zejnil
Delali~Zdravko
Muci~HazimDeli~
EsadLand2o,
CaseNo.IT-96-21-T,
Judgement
of 16 November
1998.
 ICTR-95-1A-T

Celebigi
(Delalic)
(AC) Prosecutor
v. ZejnilDelali~
Zdravko
MucidHazimDeli~
EsadLand~o,
CaseNo.IT-96-21-A,
Judgement
of 20 February
2000.

Ce//u/e A political
andadministrative
subdivision
ofa secteur.

Commentary
on the ICRCCommentaryon theAdditional
Protocols
Additional
Protocols of 8 June1997to theGeneva
Conventions
of
12 August1949.
Commune A political
andadministrative
subdivision
ofa prefecture.

CommonArticle
3 Article3 commonto fourGenevaConventions
of 12
August
1949fortheProtection
of WarVictims.

Furundzija
(TC) Prosecutor
v. AntoFurundzij’a,
Judgement
of
10 December
1998,CaseNo.IT-95-17/1-T10.

GenevaConventions GenevaConvention
I fortheAmelioration
of theConditions
of theWounded
andSickin ArmedForces
in theField,
12
August1949.

GenevaConventionII for the Amelioration of the

Conditionsof the Wounded,Sick and Shipwrecked
Members
of theArmedForces
at Sea,12 August
1949.

GenevaConvention III Relativeto the Treatment

of
Prisoners
of War,12 August1949.

Geneva
Convention
1VRelative to theProtection
ofCivilian
Persons
in Timeof War,12 August1949.

Genocide
Convention TheUN Convention
on thePrevention
andPunishment
of
theCrimeof Genocide
of 9 December
1948.
 ICTR-95-1A-T

High CommandCase U.S.v.Wilhelm

vonLeebet al,Nuremberg
Intemational
Military
Tribunal
UnderControlCouncil
LawNo.10,
28 November
1947to 28 October
1948.

ICTY UN International
Criminal
Tribunal
fortheFormer
Yugoslavia.

ILC International
LawCommission.

Kayishema
and Ruzindana TheProsecutor
v. Clgment
Kayishema
andObedRuzindana,
(TC) CaseNo.ICTR-95-1-T,
Judgement
of 21 May 1999

Kupre~kid
andOthers
(TC) Prosecutorv. ZoranKupregki~MirjanKupregkid
Vlatko
Kupregki~Vladimir SantidDragoJosipovi~Dragan
Papid,Decisionof 15 May1998on Defence
Challenges
to
Formof theIndictment,CaseNo.IT-96-16-PT.

MDR Republican
Democratic
Movement
(Mouvement
dgmocratique
rdpublicain).

MRND National
Revolutionary
MovementforDevelopment
(Mouvement
rdvolutionnaire
national
pourle
d~veloppment).
After
1991,referred
toasNational
Republican
Movementfor Democracyand Development
(Mouvement
rgpublicain
nationaI
pourlad~mocratie
et le
ddveloppment).

Musema(TC) TheProsecutor
v. Alfred
Musema,
CaseNo.ICTR-96-13-T,
Judgement
of 27 January
2000.

Nuremberg
Tribunal International
Military
Tribunal,
Nuremberg,
14 November
1945to 1 October
1946.
 ICTR-95-1A-T

PL Liberal
Party
(Parti
Iibdral).

Prefect Anindividual
responsible
fortheadministration
of a
Prefecture
Prefecture Territorial
andadministrative
unitinRwanda.

PSD Social-Democratic
Party
(Parti
social-ddmocrate).

RomeStatute TheStatute
of theInternational
Criminal
Court
of
17July1998.

RPF Rwandan
Patriotic
Front(Frontpatriotique
rwandais).

Rutaganda
(TC) TheProsecutor
v. Georges
Rutaganda,
CaseNo.ICTR-96-
3-T,Judgement
of 6 December
1999.

Secteur A political
andadministrative
subdivision
ofa commune.

Tadid(TC) Prosecutor
v. DugkoTadid,CaseNo.IT-94-1-T,
TrialJudgementof 7 May1997.

Tadid(AC) Prosecutor
v. Du~koTadid,
CaseNo.IT-94-1-A,
Appeals
ChamberJudgement
of 15 July1999.

Tadid
Jurisdiction
DecisionProsecutor
v. DugkoTadid’
Decision
on theDefence
Motion
forInterlocutory
Appeal
onJurisdiction,
ICTYCaseNo. IT-94-1-AR72,
2 October1995.

Yamashita U.S.v.
Yamashita,
327U.S.1 (1946).