InternationalCriminal Tribunal for Rwanda TribunalPénal Internationalpour le Rwanda

UNITEDNATIONS NATIONSUNJES

Case No. ICTR-95-1B-T

BEFORE: TRIAL CHAMBER IH

Hon.Judge Khalida Rachid Khan, Presiding Hon. JudgeLee GacuigaMuthoga Hon.Judge Emile Francis Short

The Registrar: Mr. Adama Dieng

FiledOn: 25 October2004

THE PROSECUTOR

V ç~- _r- MIKA MUHIMANA

THE PROSECUTOR’S CLOSING BRIEF

TheOffice of theProsecutor:

Mr.Charles Adeogun-Phillips, Senior Trial Attomey Mr. WallaceKapaya, Trial Attomey Mrs.Renifa Madenga, Assistant Trial Attorney

On TheBrief Ms.Maymuchka Lauriston, Associate Legal Officer Ms.Florida Kabasinga, Case Manager

Counselfor Mika Muhimana ProfessorNyabirungu Mwene Songa, Lead Counsel. Mr. KazadiKabimba, Co-Counsel. TABLE OF CONTENTS Pageno.

ChapterI: Natureand Assessmentof theEvidence. 04 ¯ Eye-WitncssTestimony ¯ HearsayEvidence ¯ WitnessStatement obtained by Investigatorsofthe Tribunal ¯ Experttestimony ¯ Photographs,videos, diagrams and sketches

ChapterH: ProceduralHistory of the Case. 08

ChapterIII: The Aeeused 09

ChapterIV: CountsI and II Genoeideand Complicityin genocide 11 The Law tl TheFactual allegations insupport ofthe charge of 18 Genocide/Complicityin genocide.

¯ Eventsin GishyitaSecteur, Gishyita Commune 19 ¯ Eventsat MubugaParish Church, Gishyita Commune 25 ¯ Eventsat the MugoneroComplex, Gishyita Commune 45 ¯ Eventsin theBisesero Area Gishyita and Gisovu Communes 57

ChapterV: CountIH Rapeas a CrimeAgainst Humanity 87 The Law 87 TheFactual allegations insupport of the charge of 89 Rapeas a CrimeAgainst Humanity

¯ Eventsin GishyitaSecteur, Gishyita Commune 89 ¯ Eventsat MubugaParish Church Gishyita Commune 106 ¯ Eventsat the MugoneroComplex Gishyita Commune 112 ¯ Eventsin the BiseseroArea Gishyita and Gisovu Communes 130 ¯ AdditionalEvidence of rape not pleaded in the indictment 138

ChapterVI: CountIV Murderas a CrimeAgainst Humanity 144 The Law 144 TheFactual allegations insupport of the charge of 146 Murderas a CrimeAgainst Humanity

¯ Eventsin GishyitaSecteur, Gishyita Commune 146 ¯ Eventsat MubugaParish Church Gishyita Commune 155 ¯ Eventsat the MugoneroComplex Gishyita Commune 157 ¯ Eventsin theBisesero Area Gishyita and GisovuCommunes 164 . AdditionalEvidence of murdernot pleaded in theindictrnent 176

AppendixI: Admissionsofthe Parties and a Statementof OtherIssues Not in Dispute TheProsecutor respectfully files this Closing Brief, pursuant to Rule86(B) of the Rules of Procedureand Evidence, this 25 th dayof October2004,

Respectfullysubmitted, ChapterOne: Natureand Assessmentof Evidence

Eye-WitnessesTestimony

Themain evidence in thecase was presented by eyewitnesses.Most of the witnesseswho testified were themselves victims, who narrowly escaped the terrorunleashed atthe various locations outlined in theindictment. Many lost membersof theirimmediate family. In thatregard, it wasobvious that the survivorstestified about events that they had lived through.

Duringthe case,the Defencechallenged several witnesses in cross- examinationon differencesbetween their prior statements and their subsequenttestimony incourt. In thatregard, the Prosecutor submits that the testimonyof a witnessis neveran exactreproduction of what transpired in realityespecially when witnesses provide testimony ten years after the events. Indeedperception, memory and expressionare insufflcientto exactly reproducetoo complex a reality. It issubmitted that these fallacies of witness testimonieshave to bedistinguished fromdeliberate false testimonies.

In relationto mostof thecrime scenes alleged in theindictment, namely; GishyitaCentre in Gishyitacommune, Kiziba Centre in Gishyitacommune, MubugaParish Church in MubugaSecteur, Gishyita commune, Mugonero Complexin NgomaSecteur, Gishyita commune and Biseseroarea in Gisovu andGishyita communes, several prosecution witnesses were unable to give precisedates but nonetheless gave an estimationof the time period. The law clearlydoes not require that the exact date of thecommission of a crimebe proven.

4, Theidentification ofthe Accused at the crime scenes was not difficult in this case,as the Accused,being a nativeof Gishyitacommune was alsothe conseillerof Gishyitacommune. In thatregard, he was consideredan importantand well-knownfigure in thatcommunity, and many of the witnesseshad known him before.

HearsayEvidence

5. Hearsayevidence is notexcluded under the Rules of Evidenceand Procedure of theTribunal. Pursuant to Rules89(B) and (C) of thesaid Rules, hearsay evidenceispermissible if it has probative value. In that regard, it is forthe TrialChamber to determinewhat weight it attachesto suchevidence. Theunique status of victimsof Rape

6° Five(5) Prosecution witnesses testified before the Trial Chamber that they werevictims of rape.Six (6) others were eyewitnesses to the crime of rape beingcommitted on others.

7, TheProsecutor would represent to theTrial Chamber that in assessingthe evidenceof thosewitnesses, the Trial Chamber should bear in mindthat Rule 96 ofthe Rules of Procedureand Evidence does not require corroboration of a rapevictim’s testimony. In addition, the issue of theconsent of thevictim cannotbe raised,as a defenceshould the TrialChamber find that the circumstancessurrounding the events were indeed cohesive.

8° TheProsecutor would further represent to theTrial Chamber, that culturally, womenin Rwandaare often reluctant to discuss matters pertaining to rape and otherforms of sexualassaults. Inthat regard, most rape victims are afraid to talkabout their experiences inthat regard.

Beinga victimof rapeis oftena traumaticevent for most women, be they Rwandanor not.But being a victimof rapeand being part of a societythat refusesto recogniseyou, as a victimof sucha physicalviolation to your personis evenworse. The Prosecutor would submit that this should be taken intoaccount when assessing the evidence of therape victims in thepresent case.

WitnessStatements Obtained by Investigatorsof the Tribunal

10. Priorto testifying incourt, Prosecution witnesses had ruade oral statements to investigatorsfrom the Office of theProsecutor, which were later reproduced in writing.In manyinstances, witnesses had more than one written statement.

11. In thatregard it is submittedthat completely identical statements from a witnessdespite the fact that they were obtained at differenttimes and in differentsituations indicate more of a fabricationthanthe truth. To that end, it isnormal that the memory does not release all of itsinformation on a certain subjectin the saine way at any given time.

12. Detailsnot producedin a statementmay be rememberedlater. This may applyeven to mattersof particularrelevance to the case. It hasto benoted thatthe testifying victims lived through 100 days of atrocities, through events manyof whichwere exceptional and outstanding.

13. A writtenstatement is oftena reproductionof an oralinterrogation of a witnessconducted by an investigatorin the fiel&Accordingly, such a

SeeWitnesses BGand AQ’s testimonies whenthey explain that they did not talk about their rape at an earlier stage, because they felt shameful.(Page 7-8 transcripts of6 April 2004, page 64 transcripts of15 April 2004). statementis nota contemporaneousrecord of suchinterrogation. It is often obtainedin Kinyarwanda,the nativelanguage of the witnessand then translatedinto either English or Frenchdepending on thelanguage that the investigatorunderstands.

14. Dependingon thelocation of theinterview, the dialogue between the witness andthe investigator is often taken in noteform and later edited following the interview.Such a processcannot preclude mistakes occurring which may not be detectedby thewitness even when the statement or notesare read over to himprior to being signed.

15. In thatregard, the ability to spotmistakes would depend on severalfactors includingbut not limited to, the level of educationof a witness;his or her levelof alertnessand concentration during this process; the accuracy of the translationprovided and the physical conditions prevailing at the location of thesaid interview ata particulartime.

16. In addition,the information available to theinvestigator at the time of an interviewis not necessarily identical to the trial strategy and the information availabletothe Prosecutor atthe time ofthe trial.

17. The writtenstatements are alsoaffected by otherfactors such as time constraintsandthe logistics involved from the interview stage to the signature stage,which could occur months aller the interview. Ollen investigators must travelto faraway places to interviewwimesses and then retum again with the reproducedwritten statement for signature.

18, Thestatements were taken in Frenchor English,often depending on the languageof theinvestigators. In many cases, as becameclear at trial,the witnessesdid not read the statements they signed. The statements had to be translatedto them before signature, and in someinstances witnesses testified thatthe statements were not read back to them.

19. It issubmitted that these prior statements by witnesses testifying before the Tribunal,as a generalrule, are not evidence, but may be toolsby whicha partycan challenge the credibility ofa witness.

20. Rule90(A) provides that witnesses, as a generalprinciple, shall be heard directlybefore the Trial Chamber. 2 Indeed,the AppealsChamber held in Akayesu,and TrialChamber II in Kayishemaand Ruzindana,that a prior

Rule90(A) also provides that a TrialChamber tan order that evidence of a witnessbe by meansof a deposition providedfor in Rule71. Further, although Rule 90(A) only mentions one exception - depositions under Rule 71 - theAppeals Chamberin itsJudgement inAkayesu held that the admission of hearsayevidence under Rule 89((2) constitute an exception to Rule 90(AI(see Arrêt, Le Procureurc/Jean-Paul Akayesu, [CTR-96-4-A, App. Ch., 1 June2001, para. 134). Hearsay evidence can originateeither from a witness,who testifies about what he or shehas heard from others or tantake the form ofa written statement fromthe person who saw the event, but now is notawimess. As an exampleofthe latter situation, the statement by Defencewitness RA,which was admitted in thecase, tan be mentioned.With respect to bothexceptions to Rule 90(A) it is noted,that they concem evidencethat substitutes evidence ofa witness, i.e. where the direct evidence of witnessesissubstituted byevidence by othermeans. statementby a witnesswho testitïes before the Tribunal is notevidence, but mayserve to testthe credibility ofthe witness who made the statement 3

Photographs,Videos, Diagrams and Sketches

21. Thephotographs, diagrams and sketches produced by theProsecutor at trial wereprepared post-facto the events by investigatorsfrom the Office of the Prosecutor.4 Thematerials were recorded in orderto documentthe crime scenesand give an overviewofthe various locations alleged in theindictment.

22. In spiteof thetime lapse between the occurrence of the events and the time thephotographs, videos, diagrams and sketches were prepared, the materials nonethelesshave significant probative value for the above-mentioned purpose forwhich they were intended.

Arrêt,Le Procureurc/Jean-Paul Akayesu, ICTR-96-4-A, App. Ch., 1 June2001, para. 134; and Judgement, The ProsecutorClement Kayishema and Obed Ruzindana, ICTR-95-1-T, T.Ch. I, 21 May1999, para. 77. 4 SeeProsecution exhibit P-2, P-3 and P-4 Chapter Two: ProceduralHistory

1, The Accusedwas arrestedon 8 November1999 in Tanzania,pursuant to a warrantof arrestissued by JudgeNavanethem Pillay on 26 October1999 and an indictmentdated 29 April1996, signed by Mr.Richard J. Goldstone,Prosecutor of theInternational Criminal Tribunal for Rwanda. He wastransferred to the UnitedNations Detention Facility at Arusha,Tanzania, on 8 November1999.

2. The Accusedmade his InitialAppearance on 24 November1999 under Rule 62 beforeTrial Chamber III of theTribunal. Pursuant to Rule62 (iii),the Trial Chamberentered a not guilty plea on eachcount as theAccused failed to enter a plea.

3. On 13 March2000, the Prosecutorfiled a motionfor leaveto severthe indictmentdated 25 November1995, as amendedon 6 May 1996and separate it fromhis other co-accused since three of themhad been trialed by theTribunal andthe rest was at large.On 6 July2000, the motion was denied.

4. On 7 May2003, the Prosecutor filed a severindictment following a decision fromthe Chamber on 14 April2003.

5. On 21 January2004 the Trial Chamber granted the Prosecutor’s motion for leave to amendthe indictmentin termsof Rule50 of the Rulesof Evidenceand Procedure.A revisedamended indictment ICTR-95-1B-1 Prosecutor vs. Mika Muhimanawas filed on 4 February2004 pursuant to theleave granted by the TrialChamber. This pre-trial brief addresses this indictment.

6. TheProsecutor charges the Accused with genocide (article 2(3)(a), or in alternative,complicity in genocide, (article 2(3)(e), and murder (article 3(a) rape(article 3(g) as crimesagainst humanity by virtueof his responsibility under Article6(1) of the Statute ofthe Tribunal.

7. The Trialcommenced on 29 March2004. The Prosecutorclosed his caseon FridayApril 30 2004,having called eighteen factual witnesses and one Investigator.

8. The Defencecommenced its caseon Monday16 August2004 and closedit on 8 September2004, having called 33 factualwitnesses.

9. Theparties were required to filea ClosingBrief, pursuant to Rule86B of the Rulesof Procedureand Evidence by 25 October2004.

t 0. TheClosing Arguments were scheduled for 7, 8 and9 December2004. ChapterThree: The Accused

1. The AccusedMika Muhimana was born43 yearsago in Gishyitasecteur, Gishyitacommune, Kibuye Prefecture and lived most of hisadult life there priorto beingappointed tothe position of counseillerofGishyita secteur. As counseiUer,Mika Muhimana was a prominentmember of thecommunity in of Gishyitasecteur.

2. The Prosecutorwould represent to the TrialChamber that although the counseillerranked below the prefect and the bourgmestre in the administrative structurein Rwanda,the counseiller exercised more immediate and persuasive powerover ordinary people than did his superiors.In thatregard, the counseillerwas closet to thepopulation at cellule level and thus, the most importantin mobilizing them to participate inattacks against Tutsi civilians. He was,in-effect, the bridge between the ordinary people and the political structure.

3° In thatregard, Witness BI testifiedthat as counseiller,theAccused was well respectedin hisarea and that each member of thepopulation that had a problemhad to seehim for resolution. He further testified that the Accused wasa leaderof thepeople in hisarea and that he representedthe central administrationatsecteur level.

4, Describingthe important and elevated status of a counseillerin the secteur duringthe events of 1994,Witness DA_A, testified that ’during that period, a counseillercould not bide because he wasan official’.5Similarly, Witness BG havingtestified to seeingboth bourgmestre Sikubwabo and the Accused amongstleaders of the attacksin Gishyitacommune described them, as " influentialpeople. ,,6

TheProsecutor would further represent to theTrial Chamber that the Accused 5° failedto show any active steps that he orany other local authority inGishyita communetook to protectTutsi refugees at variouslocations within Gishyita communefrom 7 April1994. Rather, the evidence adduced in theinstant case isindicative of the fact that the saine authorities actively encouraged, ordered andparticipated inattacks on Tutsicivilians.

6. In thatregard, the Prosecutor would represent tothe Trial Chamber that it is apparentfrom the evidence adduced by variousdefence witnesses who claim tobave participated in the said genocide that the involvement of the peasant populationin the said massacres was facilitated by their misplaced belief and

5 Seeparagraph 17-20 of transcript 31.8.2004 page 26. 6 Seepage 33 transcriptsof 5 Apri12004 confidencein their leadership, and an understandingthat the encouragement ofthe authorities guaranteed them immunity tokill the Tutsi.

7, To thatend, Witness DY testified that the killings atBisesero were instigated by "communalanthorities who askedthem to killand hunt Tutsis because theywere accused of killingPresident Habyarimana. 7 WitnessDAA further testifiedthat: ’if those people had not corne to rally us, things would not have happenedthat way. We didnot haveany problemswith our neighbours. We wereon goodterres. ,8

7 Seepage 32 of closed session of6.9.2004 pamgraph 15-16 8 Seeparagraph 31-34 of transcript 3 1.8.2004 page 17.

10 Chapter Four: CountsI/II Genocide,or Alternatively,Complicity in Genocide. 1. The Law.

1. TheAccused, Mika Muhimana, the former conseiller of Gishyitasecteur in Gishyitacommune Kibuye Prefecture is chargedin CountI of theindictment withthe crime of genocide,pursuant to Article2(3)(a) of theStatute of Tribunalfor the killing and/or causing of seriousbodily and mental harm to membersof the Tutsipopulation in Gishyitaand Gisovucommunes within KibuyePrefecture Rwanda, with intent to destroy,in wholeor in part,the Tutsiethnic group. In thealternative, he is chargedwith complicity in genocide,pursuant toArticle 2(3)(e) of theStatute.

2. In thatregard, the Prosecutor would represent to theTrial Chamber that genocidewas committedin Rwandabetween April and June 1994.The Prosecutorwould further represent to theTrial Chamber that the widespread massacreswhich occurred in Rwandain 1994 were gearedtowards the destructionand extermination of the Tutsi population who were specifically targetedbecause of theirTutsi origin and becausesuch people where perceivedas accomplicesofthe RPF.

3, TheProsecutor submits that the massacres perpetrated throughout Rwanda in between9 Apriland 30 June1994 were targeted and directed against Tutsi civiliansnot as individualsbut as membersof theTutsi ethnic group. 9 The Prosecutorwould further represent to theTrial Chamber that the widespread, systematicand sustained nature of theattacks throughout Rwanda in 1994 resultingin thesaid genocide was no mindlessexplosion of communalhatred, butrather the result of a meticulousplan and strategy orchestrated at the

9 See Para316; 358-361 of theMusema Judgement of 27 January2000; See Para 371 oftheRutaganda Judgement of 6 December 1999It is admittedthat the Tutsi were an ethnic group.

In theProsecutor v. JeanAkayesu "...the Chamber concludes...that genoeide was, indeed, committed in Rwandain 1994against the Tutsias a group.Furthermore, in the opinion of theChamber, this genocide appears to havebeen meticulously organized." See paragraph126 Judgernent of 2 September1998

"Inthe opinion of theChamber, there is no doubtthat considering their undeniable scale, their systematic nature and their atrociousness,themassacres were aimed at exterminatingthegroup that was targeted. Many facts show that the intention of the perpetratorsof these killings was to causethe complete disappearance of the Tutsi." See paragraph 118 Judgement of 2 September 1998

In theProsecutor v. AlfredMusema, the Accused admitted that in 1994widespread or systematicattacks were directed against civilianson the grounds of ethnic or racialorigin. Musema testified that the massacres in 1994 were targeted and directed against the Tutsicivilians hOt as individualsbut as membersofthe said group. See Para 358 ofthe Musema Judgement of 27 January2000.

In thisregard the Trial Chamber round: "Aecordingly, theChamber finds that on thebasis of theevidence presented, it emerges that actsof seriousbodily and mental harm, including rape and other forms of sexualviolence were often accompanied by humiliating utterances,which clearly indicated that the intention underlying each specific acl was to destroythe Tutsi group as a whole"See paragraph933 Judgement of 27 January2000

11 highestofficial levels. In this regard, the Prosecutor would represent to the TrialChamber that although a specific plan to destroy does not constitute an elementof genocide, it wouldappear that itis not easy to carryout genocide without1° such a plan,or organisation.

4, TheProsecutor identifies with the Trial Chamber’s findings in theKayishema and Ruzindanajudgement where it roundthat given the magnitude of such crimesitis virtually impossible for the crime of genocideto be committed withoutsome indirect involvement on the part of the state.ll

5, TheProsecutor would further represent to theTrial Chamber that although massacresof Tutsiinvolving various participants were carriedout simultaneouslythroughout Rwanda between April and June1994, a single genocideof Tutsicivilians occurred in Rwandaduring that period. The Prosecutionsubmits that no credibleevidence has indeedbeen produced beforethe Trial Chamber in thisor anyother case tried at thisTribunal to suggestthe contrary.

6, TheAccused disputes that genocide occurred in Rwandabetween April, May andJune 1994.12 It is however hot disputed that at all times referred toin this inEEctment,there existed in Rwandaa minorityethnic group known as Tutsi, officiallyidentified as such. In addition,it is alsonot disputed that the majoritypopulation was comprisedof an ethnicgroup known as Hum,also officiallyidentified as such. 13 The Prosecutor would represent to theTrial Chamberthat it is apparentfrom the totality of theevidence adduced in the instantcase that the attacks on Tutsiat thevarious locations and events

10 Seeparagraph 94 Kayishemaand Ruzindana judgement of 21 May1999. H Seeparagraph 94 Kayishemaand Ruzindana j udgement of 21 May1999; See also Mords & Scharf,p.168 Havingconsidered the above mentioned factors and indieators the Trial Chamber round as follows: The TrialChamber finds that the massacres of theTutsi population indeed were "meticulously planned and systematically coordinated"bytop-level Hutu extremists in the former Rwandan government at the time in question.

Thewidespread nature of theattacks and the sheer number of thosewho perished within just three months is compellingevidence of thisfact. This plan could not have been implemented without the participation ofthe militias and the Hutu population who had been convincedby theseextremists that the Tutsi population, in fact,was the enemy and responsible for the downing of President Habyarimana’sairplane.

Thecruelty with which the attackers killed, wounded and disfigured their victims indicates that the propaganda unleashed on Rwanda hadthe desired effect, namely the destruction ofthe Tutsi population. Theinvolvement ofthe peasant population in the massacres was facilitatedalso by theirmisplaced belief and confidence in their leadership, and an understandingthat the encouragement of the authoritiesguaranteed t.hem immunity tokill the Tutsi and loot their property.

Finalreports produced estimated the number of thevictims to thegenocide at approximately800,000 to onemillion, nearly one- seventhof Rwanda’stotal population. These îacts combined provethe special intent requirement for genocide. Moreover, there ls ampleevidence to findthat the overwhelming evidence that the majority of thevietims of thistragedy were Tutsi eivilians which leavesthis Chamber satisfied that the targets ofthe massacres were "members ofa group", in thiscase an ethnicgroup. In lightof this evidence,the Trial Chamber finds a planof genocideexisted and perpetrators executed this plan in Rwandabetween April and June 1994".H

TheProsecutor also finds support for the above stated position in thefindings of theTrial Chamber in theAkayesu case where the TrialChamber found: "...that genocide was, indeed, committed in Rwandain 1994against the Tutsi as a group.Furthermore, in the opinionof theChamber, this genocide appears to havebeen meticulously organized." lz SeeParagraph 32(a) of the request to admit faets. ~3 SeeParagraph 4 ofthe request to admitfacts.

12 chargedin the present indictment 14resulted in thedeath and a largenumber of woundedTutsi civilians.

7. TheProsecutor submits that the evidence adduced in thecase shows that all thosewho remained at theMugonero complex prior to theattack of 16 April 1994were in fact Tutsi. In this regard, it isalso the Prosecutor’s casethat all Hutuwho claimedto havesought refuge at thesaid complex prior to the attackof 16 April1994 had left that location prior to thecommencement of attacksat the complex.

8° TheProsecutor further submits that the systematic evacuation of Hutufrom theMugonero complex prior to theattack of 16 Aprilis evidencethat the attacksto be launchedat thatlocation were directed solely at Tutsi.The Prosecutorwould further represent to the Trial Chamber that in orderto prove thatthe Accused committed the crime of genocideas allegedin theinstant case,the Prosecutor must establish that the Accused kilted and caused serious bodilyand mental harm to membersof theTutsi population with the intent to destroy,in wholeor in part,the Tutsi ethnic group. The Prosecutor makes the saidallegation in Paragraph 5 ofthe indictment.

9. In thatregard, the Prosecutor would represent tothe Trial Chamber that there aretwo distinct elements ofthe crime of genocide under Article 2(3)(a): first, theactus reus or objectiveelement, requiring that one or more genocidal acts (theunderlying offence; namely the killing and causing of seriousbodily or mentalharm) was committed and, second, the mens rea or subjectiveelement, requiringa particular mental state of the accused person.

10.To thatend, the Prosecutor would represent to theTrial Chamber that it is apparentfrom the evidence adduced in the present case as outlined in Chapter Fourherein, that the various attacks alleged in thepresent indictment resulted in thedeath and a largenumber of woundedTutsi civilians.

SeriousBodily or MentalHarm

11¯Regardingthe issue or serious bodily or mentalharm, it issubmitted that what amountsto seriousharm must be determinedby theTrial Chamber on a case- by-casebasis. 15In thatregard, the harm inflicted may be physical,mental or both.

12.Itis furthersubmitted that an accusedcan be held liable for genocide on the basisof inflictionof serious mental harm only where, at thetime of the act, theAccused had the intention toinflict serious mental harm in pursuitof the specificintention todestroy a group in whole or inpart. 16Itis submitted that

~4 See evidenceof Defencewitness DA on 16 August2004; Defence witness DD on 17 August2004; Defence witness DQ on 18 August2004; Defence witness DF on 30 August2004; Defence witness DS on 7 September2004; Defence witnesses DZ andDL on 31August2004. 15 Kayishemaand Ruzindana, Judgement, paragraphs. 108/110. t6 Kayishemaand Ruzindana, Judgement, paragraphs. 110-113.

13 theharm caused need not be permanent.In that regard, the jurisprudence of theICTR indicates that "causing serious bodily or mentalharm does not necessarily’’17 mean that the harm is permanentorirremediable.

13.Regardingthe issue of mentalharm, the Prosecutor draws the Trial Chamber’s attentionto the emotional disposition ofseveral Prosecution witnesses during theirtestimonies before the Tribunal. Recounting the experience and the eventsof April1994 was a traumaticand painful experience for several ofthe witnesseswho themselves were survivors ofthe attacks.

14.Severalwitnesses wept openly and uncontrollably during their testimony. The Prosecutorwill rely on thefollowing facts, as bashaving constituted serious mentalharm inflicted by the Accused acting in concertwith others, during the variousevents alleged in the present indictment.

15.To thatend, the Prosecutor submits that the evidence adduced in thecase that the foodsupplied delivered to the MubugaParish Church by CARITAS,were on or about14 April1994 looted by theAccused and others, leaving the Tutsi refugeesgathered therein without food to eatconstituted mental harm to the saidrefugees. The Prosecutor further submits that the evidence adduced in the casethat several Hutu civilians were, on the momingof 16 April1994, evacuatedfrom the Mugonero complex whilst other Tutsi refugees such as WitnessesBI andAT stoodand watched, constituted serious mental harm to thethose victims.

16.TheProsecutor further submits that the killing of severalTutsi civilians inthe presenceof otherfamily members during various attacks alleged in the indictmentconstituted serious mental harm to the affected victims. Similarly, theProsecutor would represent to theTrial Chamber the evidence of several witnesseswho testified that they hid under several dead bodies pretending to be deadduring the attack at theMubuga Parish Church and at theMugonero Complexon 15 and16 April1994 respectively, constituted serious mental harmto the victims ofthe said attack.

17.TheProsecutor would further submit that the evidence of severalwitnesses andvictims, who during the arrival of scoresof assailantsat the venue of severalattacks, heard them signing songs calling for the extermination of Tutsiduring the various attacks alleged in theindictment also constituted seriousmental harm to those affected.

GenocidalIntent.

18.It is furthersubmitted that the Accused,Mika Muhimana can only be convictedof thecrime of genocideonly where the Prosecutor has established

~7 TheAkayesu Judgement, paragraphs. 502; See also, Kayishema and Ruzindana, Judgement, paragraphs. 108; Rutaganda Judgernent,paragraphs 51;Musema Judgement, paragraph 156.

14 beyonda reasonabledoubt that he participatedin the killing and causing of seriousbodily and mentalharm to Tutsicivilians in Gishyitacommune KibuyePrefecture with the specific intent to destroy, in wholeor inpart, the Tutsietbmic group. This is a requirementthat is indeedunique to the crime of genocide.Inthat regard, itis submitted that the special intent of a crimeis the specificintention, which, as an elementof thecrime, requires that, the perpetratorclearly intended the result charged. 19.TheProsecutor would represent to theTrial Chamber that the specific intent of the Accusedperson could be inferredfrom a certainnumber of presumptionsoffact. To that end, it is possibleto deduce the genocidal intent inherentin a particularact chargedfrom the generalcontext of the perpetrationof other culpable acts systematically directed against that same group,whether these acts were committed bythe saine offender or byothers.

20.The Prosecutorfurther submits that other factors, such as thescale of atrocitiescommitted, their general nature, in a regionor a country,or fiarthermore,thefact of deliberately andsystematically targeting victims on accountof theirmembership of a particulargroup, while excluding the membersof othergroups, can enable an inference of thegenocidal intent of a particularact.t8

21.To thatend, the Prosecutor would represent to theTrial Chamber that it has beenestablished in this case that members of theTutsi ethnic group were beingactively sought throughout the period alleged in thepresent indictment. TheProsecutor would represent to theTrial Chamber case that the refugees gatheredat thevarious locations alleged in thepresent indictment were primarilyTutsi and that the Accused was aware of this.

22.TheProsecutor further submits that the attack on Tutsiat the various locations allegedin thepresent indictment was pre-arranged. In that regard, the Prosecutorwould represent to the Trial Chamber that the participation of the Accusedin thevarious attacks on Tutsicivilians as alleged in the indictment is initself evidence of hisintent to commit the enumerated acts as chargedin countone of theIndictment with intent to destroythe Tutsi ethnic group in wholeor in part.

23¯The Prosecutorwould further represent to the TrialChamber that the consistentpattern of conductdisplayed by theAccused participating in a multitudeof sustainedattacks on Tutsiat variouslocations within Gishyita andGisovu communes in Kibuyeprefecture between April and June 1994, is evidencethat his participation inthe said attacks was intentional andas such evidenceofhis genocidal intent.

t s Seeparagraph 523 of Akayesu,Judgement.

15 24.TheProsecutor would represent to theTrial Chamber that the actions of the Accusedthroughout the monthsof April,May, and June 1994, namely: the rapingof women,and his participationin systematic killings by leading convoysand transporting attackers to massacresites at theMubuga Church, theMugonero Complex and in theBisesero region, demonstrate his intent "to destroy,in wholeor in part"the Tutsi as a group.Indeed the statements and directivesof the Accused also provide direct evidence ofhis genocidal intent.

25.TheProsecutor will further represent to theTrial Chamber that there are strikingsimilarities between the killings ofTutsi civilians inGishyita sector, MubugaChurch, Mugonero Complex, the massacres in theBisesero area, and thoselaunched against Tutsi in otherparts of Kibuyeprefecture and in Rwandaas a wholeduring the same period.In thatregard, it is the Prosecutor’scasethat the mass killings and other crimes alleged in the prescrit indictmentoccurred as partof a widergenocidal plan and policyto exterminateTutsi throughout Rwanda between April and June 1994. 26.Indeedthe evidence adduced in thiscase clearly indicates a consistent pattern of criminalconduct by the Accused at allfour massacres sites charged in the presentindictment. To that end, the Prosecutor would submit that the Trial Chamber,in assessingthe genocidal intent of me Accused,should not to assessthe evidence against him as adducedby Prosecutionwitnesses in isolation,but rather, to consider such evidence in thecontext of theoverall eventsthat occurred in Rwandabetween April and June1994 and more specificallyinKibuye prefecture within the same period.

27.In thatregard, the Trial Chamber’s attention is drawnto theevidence of the followingProsecution witnesses: BI, AX, BJ, AT and AF.To thatend, the Prosecutorwould represent to theTrial Chamber that Witness BI’s testimony to theeffect that Hutu women married to Tutsimen wereevacuated by the Accusedand othersfrom the Mugonero complex without their Hutu children priorto theattack at thesaid location on 16 April1994 is indicativeof a specificintention to destroy members of the Tutsi ethnic group present at that location.19

28.Similarly,Witness AT alsotestified as to how,prior to theattack at the Mugonerocomplex on 16 April1994, he had seentwo Hutumen, Manasse Gakwerereand Mbarubukeyebeing evacuatedfrom the said complex. WitnessAT further testified that one of the men left the said complex, prior to theattacks having realised that only Tutsi were being sought, whilst the other was2° evacuated by anotherHutu prior to thecommencement of the attack.

29.WitnessAX alsodescribed how havingseen the Accusedin her locality duringthe month of April1994, the Accused told her that: "it was the Tutsi

19 Seepage 9 transcriptsof30 th April 2004. z0 Secpages l 8/19transcripts of 19 ~ April2004.

16 whohad to dieand that there was nothing else to be donc".21 TheWitness describedhow having heard this, she and herTutsi husband fled towards Bisesero.22

30.TheTrial Chamber would also recall the testimony of Witness BJ tothe effect thatshe was rapedby the Accusedand his accomplicesat the Mugonero complexbecause, having sought refuge with other Tutsi at thesaid complex, shewas mistaken for a Tutsi.In thatregard, Witness BJ testifiedthat having beinglater identified as a Hutuby one of theattackers who was preparing to killher and other women, her life was spared by theAccused following which she23 was allowed to leave the said complex and return home.

31.In thesame vain, Witness AF’s evidence gives the distinct impression that the Accusedhad infact formed the requisite intent to commit genocide as earlyas theend of 1993.In thatregard, Witness AF testifiedthat towards the end of 1993,while he wasa studentin Gishyita,he heardthe Accused say that he wouldsend young men to be trainedas Interahamweso as to fightagainst the enemy.The witness specified that the enemy was perceived to be membersof theTutsi ethnic group. 24 WitnessAF furthertestified that the Accused was thefirst to hoist the flag of the CDR party and that: "... the objective ofthis party’’25was first and foremost toexterminate Tutsi.

32.TheProsecutor would further represent tothe Trial Chamber that the totality of theevidence adduced in thesaid case provides sufficient evidence that the Accused,in carryingout the criminal activities attributed to him in thesaid indictment,possessed the requisite intent to commit genocide. In that regard, it is furthersubmitted that the said criminal activities of the Accused as outlinedin Chapter2 herein, describe a pattern of purposefulaction over a three-monthperiod and include circumstantial evidence.

Complicitvin Genocide.

33.As outlinedabove herein, the Accused is chargedin thealternative, with complicityin genocide, pursuant to Article2(3)(e) of the Statute. As Count standsin thealternative to Count I, theProsecutor would rely on thesame factualallegations adduced in support of Count I.

34,Inthat regard, it issubmitted that, the Accused Mika Muhimana will be liable forhaving been complicit in genocideif itisproven that he knowinglyand voluntarilyaided or abettedor instigatedone or morepersons in the commissionof genocide,while knowing that such a personor personswere

2~Sec page 28 transcriptsof 31 March2004 z2 Secpage 30 transcriptsof 31 March 2004 23 Secpage 38 transcriptsof 6 Apri12004 24 Secpage 23 transeriptsof28 Apri12004 2» Secpage 22 transcripts of28 April2004

17 committinggenocide, even though, he himselfdid not possess the specific intent26 to destroy, inwhole or in part, the Tutsi ethnic group.

35.It isfurther submitted that although the material elements of bothcrimes are indeedsimilar, some differences exists between the crime of complicityin genocidepursuant to Article2(3)(e) of theICTR Stature; and aiding abettingin theplanning, preparation or execution of thecrime of genocide pursuantto Articles2(3)(a) and 6(1) ofthe ICTR Stature. 36.In thisregard, in orderto be roundguilty for aiding and abetting in the planning,preparation or execution of thecrime of genocideunder Articles 2(3)(a)and 6(1) of theICTR Statute, it mustbe proven that the Accused withspecific genocidal intent. There is no suchrequirement to be round guiltyof thecrime of complicity in genocide. 37.Further,itis submitted that in order to be found guilty for aiding and abetting in theplanning, preparation or execution of thecrime genocide pursuant to Articles2(3)(a) and 6(1) of the ICTR Statute, the actus reus of theillegal or offencemay include an omissionto actor failureprevent the commission ofthe illegal act. In contrast,complicity ingenocide implies a positive act, whichin principleexcludes the failure to act or anomission onthe part of the accusedpersons.27

38.Further,a personwho, by his or her merepresence amongst a groupof aggressorsgives moral support to theassailants and fully supported the criminalintent of the group, may also be liable for aiding and abetting in the planning,preparation or execution of thecrime of genocideunder Articles 2(3)(a)and 6(1) of the ICTRStatute but not for crimeof complicity genocide28 pursuant toArticle 2(3)(e).

The Factualallegations in supportof the chargeof genocide/complicityin genocide.

39.In CountsI andII of theindictment the Accused, Mika Muhimana is charged withthe crime of genocideor in thealternative, complicity in genocide with respectto hisalleged criminal conduct between April and June 1994 at the followinglocations within Kibuye Prefecture, namely: Kiziba Commercial Centrelocated within Karama cellule, Musenyi secteur, Gishyita commune; The MubugaParish Church located in Mubugasecteur Gishyita commune; The MugoneroComplex, located in Ngomasecteur, Gishyita commune and withinthe area ofBisesero, located between Gishyita and Gisovu communes.

26Seethe Musema Judgement at paragraph183. 27AkayesuJudgement, para. 536; Musema Judgement, para. 178. 2sAkayesu,Judgement, paras. 546-548, 726.

18 Events in Gishyitasector, Gishyita commune.

TheProsecutor’s Case.

40.TheProsecutor alleges in Paragraph5(a) of theindictment that on or about April1994 in themorning, Mikaeli Muhimana and other persons, including CharlesSikubwabo mobilised civilians, gendarmes and communepolicemen at Kizibacommercial centre and gave them arms and ammunitionfor purposesof killingTutsi civilians. The said arms and ammunitionwere deployedto exterminatethe Tutsipopulation in Gishyitaand Gisovu communes. A Summaryof theEvidence Presented by theProsecutor 41.In supportof theabove-mentioned allegations, theProsecutor relies on the evidenceof WitnessesW, BB andBC. In addition,the Prosecutor also relies on evidenceof allthe prosecution witnesses who have testified in supportof the factualallegations in supportof CountsIII and IV as outlinedin paragraphs6(a)(i-iii) and 7(a)(i) of the indictmentand as discussed ChaptersFive and Six ofthe instant brief. 42.WitnessW is a Tutsimale who testified that he livedin BiseseroSecteur in April1994. Witness W testifiedthat having fled his home on 8 April1994 togetherwith members of hisfamily he witnessedthe Accused participating in severalattacks onTutsi civilians.

43.WitnessW testifiedthat on 9 April1994, Hutu civilians who came from Gishyitaand Musenyi secteurs attacked Tutsi civilians inhis cellule of origin. Thewitness further testified that among the attackers were the bourgmestre of Gishyitacommune, Charles Sikubwabo, Muhira and the Accused,who he described29 asthe conseiller ofGishyita secteur.

44.WitnessW testifiedthat during the said attack, the Accused was dressed in civilianclothing and was carrying a long gun. 30 The witnessalso testified to havingseen communal policemen from Musenyi secteur taking part in the saidattack. The witness testified that he wasable to recognizethem as such becauseof theiruniforms. 31 WitnessW testifiedthat he sawthe Accused replenishingthe supplies of theattackers who had run out of ammunition. Thewitness fttrther testified that during the said attack, he saw the Accused handing32 over cartridges ofammunition tovarious attackers.

45.WitnessW further testified that during the said attack on 9 April1994, he saw the Accusedshoot at a youngTutsi man, aged between 18 and 20, called

29Seepage 3 transcriptsof 27 April 2004 30Seepage 6 transcriptsof 27 April 2004 31Seepage 5 transcriptsof 27 April2004 32Incross --examination thewitness specified that in hisstatement of22 March1996, he didnot say that the assailants were armed becausehe wasonly giving a generaloverview of whatwas happening (Sec page 38 transcriptsof 27 April2004)

19 Emmanuel.33 WitnessW testifiedthat he knewEmmanuel because they went to thesame primary and secondary schools. 34 Thewitness also testified that Emmanuelwas hit in thethigh, following which he fellto theground and was takento Ngomahospital. The witness never saw him again.

46.WitnessW testifiedthat Emmanuel, whom he describedas a studentfrom Nyamasheke,was located approximately two to threemeters from him during thesaid incident. 35The wimess further testified that he is surethat it was the Accusedwho shot Emmanuel because: "I couldsec him in frontof me.There werefew guns. I couldsee him clearly". 36 Thewitness further testified that theAccused was located at a distanceof about20 to 30meters from them. 37

47.WitnessBB, a Tutsi,testified that while attending prayers in church, at around 11 o’clockon the momingof Saturday9th April1994, he hearddrums from Musenyisignaling help as thepeople there had been attacked. 38 He testified thatin response,he andother men went to Kizibato seewhat was happening. On arrivalat Kiziba,the witness testified that they found Tutsi houses burning,39 cattle being pillaged and people being killed.

48.WitnessBB furthertestified that he sawa policemannamed Rwigimba and theAccused amongst about 200 assailants who attacked Tutsi at Kiziba.The witnessdescribed the Accused as a Hutuman who was Conseiller of Gishyita anda trader.4°He testified that he was located at a distanceofabout 50 meters fromwhere the Accused and his accomplices were located and was therefore able41 to identify him.

49.WitnessBB testifiedthat the Accused and Rwigimba arrived on a motorcycle andparked it by theroadside, about 30 metersfrom where the witness was andabout 15 metersfrom where the other assailants were. 42 He testifiedthat thecrowd of attackerswas mostly armed with machetes, clubs, cudgels and stones.43 WitnessBB testifiedto havingseen the Accused carrying a long gunthat had a woodenbutt. 44He furthertestified that he sawthe Accused and Rwigimbafiring at peoplewhile other assailants used traditional weapons to attacic45 the Tutsi.

t3 Seepage 6 transcriptsof27 April2004 34 Seepage 7 transcriptsof27 April2004 3s Seepage 7 transcriptsof27 April2004 36 Seepage 7 transcriptsof 27 April 2004 »7See page 7 transcriptsof 27 April 2004 38See page 3 transcriptsof16 ù~ April2004. 39See page 3 transcriptsof 16 °~April 2004. 4oSee pages 3 & 4 transcriptsof 16 ~ April2004. 4~ Seepage 4 transcriptsof16th April 2004. 42 Seepage 17 transcriptsof16~ April2004. 43 Seepage 6 transcriptsof 16 « April2004. The witness did indicate this distance in court,which was found by theRegislry to be about16 meters. 44 Seepage 4 transcriptsof16 ùa April 2004. «~ Seepage 5 transcriptsof16 th April 2004.

20 50.WitnessBC was marriedto a Tutsiman withwhom she had two daughters anda son,aged six, three and a yearand a halfrespectively. 46 Shelived in MusenyiSecteur during the events of 1994.47 Thewimess testified that she hadknown the Accused before the events of 1994.She described him as the Conseillerof Gishyitaand a trader.48 WitnessBC added"I knewhim very well,besides when I sawhim (in court) I wastraumatized. I prayed to God coinfort us given what he did to me. "49

51.WitnessBC testifiedthat on 9 April1994 the Accused and Ruhindura came to bercellule, »o wherethey found an attackin whichthe Hutu assailants armed withmachetes fought against the Tutsi who fought back with stones. Witness BC testifiedthat having arrived at thescene, the Accused ordered the Tutsi civiliansto be disarmedand asked Ruhindura to puttheir weapons inside the houseof a [ersoncalled Ngendahayo, who he describedthe responsable of hercellule 5 . WitnessBC testifiedthat the Accused asked the Hutu civilians presentto separatefrom the Tutsi, whose fate had, according to him,been sealed.Wimess BC testifiedthat during the attack 9 April1994, she saw the Accused,from a distanceof aboutfour and a halfmeters.

52.WitnessW furthertestified that on or about11 April1994, he saw the Accused52 during an attackon Tutsirefugees at theKiziba Trading Centre. WitnessW furthertestified to havingseen attackers coming from Musenyi andGishyita secteurs. 53 In thatregard, Witness W testified that he sawthe Accusedcarrying a gun and shooting at Tutsirefugees. 54 Thewitness further testifiedthat the refugees fought back but then l’lad to retreat before fleeing to Nyarutovucellule in Bisesero.The witness testified that gdziba was a 15 minutes55 walk to Nyarutovu.

An Analysisof theEvidence Presented by theProsecutor.

53.Itis submittedthat the all three Prosecution witnesses were from neighbouring secteursin April 1994. 56In thatregard, it is further submitted that the Kiziba TradingCentre is locatedwithin Karama cellule in Musenyisecteur, Gishyita commune.57 In thatregard, the Prosecutor submits that the attack described by WitnessBC bashaving occurred in hercellule for origin on 9 April1994, occurredat theKiziba centre. In thatregard, Witness BC testifiedthat

46See page 35 transcriptsof20 thApri12004. 47Exhibit P18. 48See page 37 transcriptsof20 ~ April2004. 49 Seepages 36-40 transcripts of20 ~ April2004. 50 ExhibitP18. si Seepage 39 transcriptsof 20 ~ April2004. s2 Seepage 10 transeripts of27 April2004 53 Seepage 8 transcriptsof 27 April 2004 54See page 9 transcriptsof 27 April 2004 » Seepage 10 transcripts of 27 April 2004 56See page 10 transcriptsof 27 April 2004

57See page 10 transeriptsof 27 April 2004

21 originatedfrom the said cellule and secteur. »8It isthe Prosecutor’s casethat Tutsicivilians were attacked at theKiziba centre on at leasttwo occasions duringthe month of April1994 and that the Accused was involved in bothof theseattacks.

54.TheProsecutor further submits that the evidence of WitnessW concerningan attackon Tutsirefugees on 9 April1994 occurred within the area of the KizibaCommercial Centre in Musenyisecteur and this is thesame event as thatwhich Witnesses BB and BC testifiedto having witnessed. In that regard, theProsecutor would represent to theTrial Chamber, that although Witness W testifiedthat he lefthis home on 8 April1994, 59 he remainedwithin the immediatelocality of hishome and in thatregard, witnessed several attacks on Tutsicivilians in Musenyiand Gishyitasecteurs between 9-11 April 1994.60

55.In thatregard, the evidence of WitnessW was to the effect that his cellule of originwas a 15-minutewalk from the Kiziba Trading centre. 61In addition,the Prosecutorwould represent to the Trial Chamber, that the attack at Kizibaon 11 April1994 as recountedby WitnessW was infact separate from that which occurredat thesame location on 9 April1994.

56.It is furthersubmitted that the circumstances of the identification of the Accusedby WitnessesBC, BB and W duringthe distribution of weapons to attackersand the subsequentattack on Tutsicivilians at the Kiziba CommercialCentre April was good.It is furthersubmitted that all the witnesseshad known the Accused prior to seeinghim at Kizibain April 1994.

TheDefence Case.

57.TheProsecutor further submits that the Accused does not dispute that the KizibaCommercial Centre in locatedin Karamacellule, Musenyi secteur GishyitaCommune Kibuye Prefecture. The Accused however disputes that he distributedweapons to membersof theHutu population at the said centre in April1994. The Accused also disputes that he participated inattacks on Tutsi civiliansat the said location between April, May and June 1994. To thatend, theAccused relies on theevidence of thefollowing witnesses: DM, TQ1 and TQ13.

58ExhibitP18. 59ExhibitP21 ; 60Seepage 3 transcnptsof 27 Apri12004 6~Seepage l0 transcriptsof 27 April2004

22 WitnessDM 58.WitnessDM testifiedthere was no distributionof weapons in Kiziba62,which shetestified was four to riveminutes walk from her residence. Witness DM testifiedthat the inhabitants ofKiziba were shepherds and illiterate cattle- rarerswho could not handle ammunitions. The witness however contradicted herselfwhen in thesame breath she testified that among the inhabitants of Kiziba63 were soldiers in thearmy of Habyarimana.

59.WitnessDM indicatedshe had a childwith the Accused. She testified that the childis now16 yearsold and that she has not seen her child since the end of thegenocide. In thatregard, Witness DM testifiedthat the Accused left Rwandawith the child in 1994.64Naturallysheconceded that seeing her child againwas indeed her main priority.

60.It is submittedthat the evidence of WitnessDM is certainlybiased. In that regardshe confirmedthat she wantedto see the Accusedreleased from custody.6» In viewof the said bias, it is notsurprising that Witness DM who livednear the KizibaCentre testified that she did nothear about the distributionof ammunition at thesaid location. 66 WitnessDM is clearly tmlikelyto sayanything, which could jeopardize the chances of theAccused releaseand the likelihood ofher being reunited with her child. To that end, the Prosecutorsubmits that the evidence of WitnessDM mustbe treatedwith extremecaution.

WitnessTQ 1

61.WitnessTQ1 testified she neither knew of thearea known as Kizibanor had sheheard any information relating to distributionof weapons at thesaid location.67 In essenceWitness TQ1 states there was a "mourningperiod" from 8-16April 1994 for Mika’s son. TQ1 placed the Accused at hishome during theentire penod.

62.TheProsecutor submits that that if WitnessTQ1 was not familiar with the Kizibaarea, it washighly unlikely that she would have been aware of anyof the eventsthat allegedly occurred there. In any event,Witness TQI’s testimonythat the Aceused remained at homebetween 8 and16 April1994 is in contradictionto that of other defence witnesses who place him outside his homeduring the saine period.

63¯It is clearthat given the securitysituation prevailing after President Habyarimana’sdeath that was highlyimprobable that WimessTQ1

62SeePage 28 ofthetranscripts of 17/8/04. 63SeePage 28 of thetranscripts of17/8/04. 64SeePage 33 ofthe transcnpts of the closed session of 17/8/04. 6»SeePage 33 paragraph16ofthe transcripts ofthe closed session of 17/8/04. 66Seepage 28 of transcriptof 17/8/2004. 67Seepage 3 of transeriptof23/8/2004.

23 consideringher age, gender and location in April1994, would have been in a positionto visitthe Accused at hishome daily between 8 and 16 April1994. Forthe reasons outlined herein, itis hereby submitted that the evidence of WitnessTQ1 be rejectedinits’ entirety.

WitnessTQ13

64.WitnessTQ 13testified that she had heard of a placecalled Kiziba but did not hearthat weapons were distributed to the people in Kiziba68.It is submitted thatWitness TQ13 did not provide any factual basis as to whyshe would have beenin a positionto hearthat weapons were infact distributed at Kiziba. In anyevent, the totality ofthe evidence ofthis witness was contradictory andat variancetothat of other defence witnesses. For the reasons outlined herein, it is herebysubmitted that the evidence of WitnessTQ13 be rejectedin its’ entirety.

IndividualCriminal Responsibilitv of the Accused. 65.The Prosecutorwould represent to the TrialChamber that the evidence adducedby WitnessesW, BB and BC provebeyond a reasonabledoubt that theAccused, Mika Muhimana instigated, committed or otherwise,aided and abetted,in thekilling of Tutsiat theKiziba Commercial Centre in Karama cellule,Musenyi secteur and its’ environs between 9 and 11 April1994. 66.The Prosecutorwould further represent to the TrialChamber that by conveyingweapons to the Kizibacommercial centre and distributing and replenishingthesaid weapons to attackers at the said centre to use in killing Tutsicivilians in April1994, the Accuseddirectly and substantially contributedto the killing of Tutsicivilians in Gishyitacommune and thus incursliability for having aided and abetted in the commission ofthe offences outlinedinCounts I and II of the present indictment. 67.It is furthersubmitted that the Accused knew that by conveyingand supplying weaponsand ammunitionto attackersat KizibaCommercial Centre such conductwould materially assist the said attackers in the killing of Tutsi in variousparts of Gishyitacommune. 68.The Prosecutorfurther submits that the presenceof the Accusedamongst attackersat theKiziba commercial centre and its immediate environs before or duringthe attack on Tutsirefugees gathered therein had a significant legitimizingand encouragingeffect on the perpetratorsthereof in the commissionof the saidcrimes and thatthe Accusedwas awarethat his presenceas a conseillerwas likely to havesuch an effect.As such,the Accusedmust, at a minimum,incur criminal responsibility foraiding and abettingin theexecution of thecrimes outlined in CountsI andII of the indictment.

6sSec page 4 of transcriptof25.8.2004.

24 69.The Prosecutorfurther submits that a TrialChamber may findan accused personguilty if it determines that he or she participated ina crime through any actionencompassed by the Statute, even if it differsfrom the particular theory supportedbythe Prosecutor. Inthat regard, the Trial Charnber, asthe finder of factand trier of law, is free to apply any theory it finds applicable tothe facts ofa caseas long as it fits within the confines ofArticle 6(1) of the Statute theTribunal. The Prosecutor would further submit that as a rule,the Defence is on sufficientnotice through the pleading of Article6(1) in theindictment that69 any one of the theories ofdirect responsibility couldapply.

70.Finally,the Prosecutor submits that should the Trial Chamber accept the testimonyof anyone of thewitnesses produced in supportof theevents that occurredatthe Kiziba centre as outlined inparagraph 5(a) ofthe indictment, shouldfind the Accused guilty of thecrime of Genocidethrough instigation, commissionor aiding and abetting attackers at theKiziba commercial centre andits environs tokill Tutsi civilians during the month of April 1994.

Events at Mubuga Parish, Mubuga sector, Gishyita commune.

TheProsecutor’s Case.

71.TheProsecutor alleges in Paragraph5(b) of the indictment that between 8 and 14 April1994, about rive thousand six hundred Tutsi civilians sought refuge at MubugaCatholic Church, Gishyita commune aller fleeing from attacks on Tutsicivilians, which were occurring throughout the Prefecture of Kibuye. Allerthe Tutsi civilians had begun to congregatein theMubuga Catholic Churchbetween 8 and 14 April1994, Mikaeli Muhimana acting in concert with,among others, Charles Sikubwabo and ClementKayishema visited the churchregularly and took stock of refugees inpreparation foran attack.

72.TheProsecutor further alleges in Paragraph5(b)(i) of theindictment between14 and 15 April1994, Mikaeli Muhimana acting in concertwith CharlesSikubwabo, gendarmes, Interahamwe and soldierslooted Mubuga CatholicChurch of fooddonated by humanitarianorganisations including CARITAS,for consumptionby refugeesseeking shelter in the Mubuga CatholicChurch, and thereby deprived the refugees of foodduring the period theywere seeking shelter in theaforesaid Mubuga Catholic Church.

73.TheProsecutor alleges in Paragraph 5(b)(ii) of theindictment that between and 15 April1994, Mikaeli Muhimana, acting in concertwith Charles S ikubwaboand soldiers distributed grenades and guns to Interahamweand armedcivilians at theMubuga Catholic Church for purpose of attackingthe Tutsicivilians seeking refuge in theaforesaid Mubuga Catholic Church.

69 SeeProsecutor v. Kordicand ^erkez, Decision on theDefence Motion to Strikethe Arnended lndictment for Vagueness, Case No. IT-95-14/2-PT,T. Ch. III, 2 Mar.1999.

25 74.TheProsecutor alleges in Paragraph 5(b)(iii) ofthe indictment that on or about 15 April1994, Mikaeli Muhimana along with ClementKayishema, Obed Ruzindana,soldiers, Interahamwe, armed civilians and communal policemen launchedan attackon Tutsicivilians seeking refuge in MubugaCatholic Church,using guns, grenades, machetes, pangas and other traditional weapons killingover rive thousand Tutsi civilians who were seeking refuge in the aforesaidMubuga Catholic Church.

A Summaryof theEvidence Presented by theProsecutor

75.In supportof theabove-mentioned allegations, theProsecutor relies on the evidenceof WitnessesAV andAF. In addition,the Prosecutor also relies on evidenceof ailprosecution witnesses who have testified in supportof the factualallegations concerning the Mubuga Parish Church in supportof Counts III andIV as outlinedin paragraphs6(b)(i), and 7(b)(i) of the indictmentas discussed inChapters Four and Five ofthe instant brief.

76.To thatend, Witness AV testifiedthat she soughtrefuge at theMubuga CatholicChurch located in Mubugasecteur, Gishyita commune, on 11 April 19947otogether with her ten brothers and sisters. 71 Havingarrived at Mubuga Church,Wimess AV testifiedthat she foundthe church full other Tutsi refugees72 including men, women and children.

77.WitnessAV furthertestified that, at around10 AM,on 15 April1994, she saw theAccused and other attackers outside the said church. Witness AV testified thatshe was situated inside the said church when she saw the Accused arrived at thatlocation in a blueSuzuki jeep, which was parked opposite the said church.Witness AV testifiedthat a gendarmeaccompanied the Accused. The witnesstestified that she was able to identifythe gendarme because he was wearinga red beret.The wimess also described this person as dressedin army73 fatigue.

78.WimessAV testifiedthat she saw the Accused and the gendarme take a boxof grenadefrom the car and put it oppositethe church. The wimess testified that theTM weapon that she identified as a grenadehad the shape of a pearfruit. WimessAV alsotestified that she thensaw theAccused throw a grenade insidethe said church following which the wimess testified that she heard and explosionwithin the church.75 Followingthe said explosion, the wimess testifiedthat she and others fell onto the ground. Wimess AV further testified thatshe wasabout rive meters away from the areawhere the grenade had exploded.

70 Seepage 37 transcriptsof I April2004 71 Seepage 54 transcriptsof 1 April2004 72 Seepage 37 transcriptsofI April2004 73 Seepage 48 transcriptsofI April2004 7« Seepage 37 transcriptsof1 April2004 75 Seepage 38 transcriptsof 1 April2004

26 79.WimessAV testifiedthat when she gotup, sherealised that Kayihra was dead,his head was shattered 76,and that she herself was bleeding. She was injuredon thehead, the neck and the shoulder. The wimess further testified thatseveral people were wounded during the said attack and that there were alsomany corpses.77

80.WimessAF testifiedthat on 14 April1994, he saw the Accusedat the Mubugaparish church, in Mubugasecteur, Gishyita commune where he and otherTutsi civilians had sought refuge. The witness testified that he had soughtrefuge at thesaid church during the morning of 10 April1994. Having arrivedat the said church, he testifiedthat he foundthe church packed with several78 other Tutsi who had also fled their bornes.

81.WitnessAF testifiedthat having seen the Accused and the others arrive at the Mubugachurch, he sawthem talking with the parish priest, Father Marcel, followingwhich then he sawthem loot food which had been brought for the saidrefugees by CARITAS,which he describedas an associationaffiliated with79 the Catholic Church.

82.WitnessAF furthertestified that he heardBourgmestre Charles Sikubwabo sayto Father Marcel and others that "he was going to solve the problem of the refugeeswho were in thechurch". The witness testified that he understood thatto mean that the Tutsi civilians gathered inside the said church would be exterminated.8° WitnessAF testifiedthat having heard Bourgmestre Charles Sikubwabosay these words, the Tutsi refugees gathered inside the Mubuga parishchurch knew their rate was sealed and simply waited to die. 8t

83.WitnessAF furthertestified that on the night ofthe 14 th to the15 thApril 1994, an attackwas launched on thepresbytery of the said church. In thatregard, thewitness testified that women were raped.

84.Thewimess identified one of thegirls raped as Claudine,who he describedas a student.Witness AF furthertestified that based on theevents that occurred at thechurch earlier that day he wasof theopinion that the Accused and otherslaunched the attack on thewomen at thechurch presbytery. 82 Despite thesaid attack, Witness AF testified that he andother Tutsi refugees remained 83 in thechurch because they had nowhere else to go.

85.Witness AF testifiedthat on themoming of 15 April1994, an attackwas

76 Seepage 38 transcfiptsof 1 April2004 ,7 Seepage 39 transcriptsof I April2004 78See page 24 transcriptsof 27 April 2004 79See page 25 transcriptsof 28 April 2004 80 Seepage 26 transcriptsof 28 Apri12004 s~ Seepage 27 transcriptsof 28 Apri12004 82 Seepage 28 transcriptsof 28 Apri12004 83 Seepage 29 transcriptsof 28 Apri12004

27 launchedat theMubuga Parish Church. The witness testified that the Accused wasone of those who led this attack. 84Witness AF testified that the attack at thechurch commenced at about6AM. He testifiedthat the refugees inside the churchwere still sleeping when the attack began. The witness testified to having8» seen the assailants smash the doors to the church.

86.WitnessAF testifiedthat he wasvery close to thedoor 86and he idemifiedthe Accused,Bourgmestre Charles Sikubwabo, Counseiller Vincent Rutaganira, CounseillerMugwa and Ryandikayo as theleaders of theattack. He further testifiedto seeing ail rive men armed with guns. 87The witness testified that theassailants were standing at thedoor facing the primary school, in frontof the88 church, approximately 10 meters away from him.

87.Describinghow the said attack was launched, Witness AF testifiedto howthe refugeeshad barricaded themselves inside the church prior to theattack in a desperateresolve to preventthe attackers from gaining access into to the churchin a bidto kill them with matches and spears.

88.WitnessAF furtherdescribed how the refugees removed bricks from the walls of thechurch and usedthem to defendthemselves. Having failed in their attemptat forcingtheir way into the church, Witness AF testifiedthat the attackersstarted throwing teargas and grenades into the church through the windowsso thatthe refugees would open the doors to thechurch or dieof suffocation.

89.Duringthe attack, Witness AF testifiedtoseeing the Accused and others shoot atthe refugees gathered inthe said church. 89 Thewitness further testified that the9° attack at the church on 15 April1994 lasted until late aftemoon.

An Analgsisof theEvidence Presented by the Prosecutor.

90.TheProsecutor would represent to theTrial Chamber that Witnesses AF and AV areboth well-educated individuals. In that regard, their evidence before theTrial Chamber was direct, clear and extremely convincing. Both witnesses hadsought refuge at the MubugaParish Church and to thatend, were both victimsand survivors of thesaid attack. In thatregard, both witnesses providedthe Tribunal, a first hand accolant of whatthey had seen and heard duringthe said attacks.

91.It is furthersubmitted that the circumstances of the identification of the Accusedby WitnessAV duringthe distribution of weapons to attackersand

84Ibid 8sSecpage 30 transcriptsof 28 April 2004 86Seepage 33 transcriptsof 28 April 2004 87Seepage 31 transcriptsof 28 Apri12004 8sSeepage 32 & 35 tmnseriptsof 28 April2004 89Seepage 30 transeriptsof 28 April 2004 9~Seepage 33 transeriptsof 28 April 2004

28 thesubsequent attack on Tutsicivilians gathered at theMubuga Church on the morningof 15 Aprilwas extremely good.

92.Similarly,the circumstances of the identification of the Accused by Witness AF duringthe looting of thefood at thechurch on 14 April1994 and during theattack on Tutsicivilians gathered at theMubuga Church on themornlng of 15 April1994 was convincing. In that regard, Witness AF testifiedthat he wassituated very was close to thedoor of thechurch about 10 metersaway fromthe Accused and other attacks.

93.It is furthersubmitted that both wimesses had known the Accused prior to seeinghim at the MubugaParish church on I4 and 15 April1994. In that regard,Witness AF testifiedthat he knewthe Accused as theconseiller of Gishyitasecteur. 91 WitnessAV alsotestified that she had known the Accused since1992 when he workedas thecotmseiller of Gishyita secteur. 92 Both WitnessAF93 andAV 94 hadno problemsidentifying the Accused in courtten yearsafter the said events.

TheDefence Case.

94.TheProsecutor would represent to theTrial Chamber that the Defence do not disputethat Tutsi refugees were gathered atthe Mubuga Parish Church from about8 April1994. The Prosecutor further submits that the Defence does not disputethat the said Tutsi refugees were attacked on 14 and15 April1994. IndeedDefence Wimesses DF, DZ, DL, DAA, DG and DC all admit to havingparticipated inattacks on Tutsirefugees gathered at theMubuga parish churchbetween 14 and15 April1994.

95.TheProsecutor would further represent to theTrial Chamber that the Defence do notdispute that the Accused participated in the looting of foodsupplies meantfor the refugees that sought refuge at theMubuga Parish Church on or about14 April1994. In thatregard, Defence wimess DC testifiedthat he saw theAccused amongst other leaders present at the Mubugachurch when the food95 supplies were been looted.

96.The Accusedhowever denies that he participatedin an attackon Tutsi refugeesgathered at MubugaChurch between 14 and15 April1994. To that end,the Accused relies on theevidence of thefollowing witnesses: DA, DD, DF, DL, DZ DAA,DG, DC, TQ 1 and AH8.

9~Seepage 23 transcripts of 28 April2004 9zSeepage 36 transcriptsof1 Aprfl2004 93Seepage 34 transcripts of 28 April2004 94Seepage 42 transcripts of 1 April2004 95Seepage 6 transeriptsof17.8.04

29 WitnessDA

97.DefenceWitness DA, a Tutsi,testified that she sought refuge at theMubuga ParishChurch on 12 April1994. She confirmed that the said church was full ofseveral Tutsi refugees ,96 Shetestified that whilst at theMubuga church, the foodsupplies provided by an organisationcalled CARITAS were looted. She testifiedthat although she did notsee the looters,she hadrelied on informationfrom others that Sikubwabo and Ryandikayohad lootedthe food.97

98.WitnessDA further testified to having heard that some girls had been killed at theMubuga Cemetery, but did hOt know those who were responsible for their death9g as sheherself was not present at thecemetery during the said attack. WitnessDA testifiedthat she was presentat theMubuga Parish when an attackwas launched there on or about15 April1994. 99 Thewitness confirmed thatgrenades were thrown inside the church before the attack commenced. Shetestified that she was able to recognizebourgmestre Sikubwabo amongst the1°°assailants during that attack.

99.Shehowever testified that there were other people present amongst the assailantswhoshe was unable to identify. 101 The witness further testified that havingsurvived the attack at theMubuga Church she left the church at 7.00 PM.Witness DA furthertestified to havingsought refuge at thehome of a personcalled Mpamira. Witness DA testifiedthat havingarrived at Mpamira’sresidence, she found Witness AV andothers Tutsi refugees at that location.1°2When asked if WitnessAV hadtold her that she had sought refuge atthe Mubuga church, the witness tesfified that they did not address that point duringtheir conversation.

100.The Prosecutor would represent to theTrial Chamber that it is obvious fromthe testimonyof DefenceWitness DA thatshe doeshOt possessany directknowledge of thematters, which she testified upon. Rather, her entire testimonyispredicated upon information, which was allegedly reported to her by others.It is furthersubmitted that Witness DA displayedsigns of having beenthoroughly briefed on theevidence in thecase as allegedby Prosecution witnessesAF andAV. In thatregard, although the witness testified to having soughtrefuge at theMubuga Parish Church and was present at thatlocation on 15 April1994 when an attackwas launched, she has no directknowledge ofthe identities ofthe assailants thattook part in the said attack.

96Sec page 59 transcripts of16 August 2004. 97See pages 24/4l transcripts of16 August 2004. 98See page 41 transcripts of16 August 2004. 99See page 40 transeripts of16 August 2004. 10oSec page 40 transcripts of16 August 2004. lolSee page 60 transcripts of16 August 2004. ~02See page 29 transeripts of16 August 2004.

3O 101.It is submittedthat.Witness DA has no directknowledge ofthe identity of thosewho looted food at theMubuga Parish church nor does she knowthe identityof thosewho allegedly abducted and killed the Tutsi girls at the Mubugacemetery. She has simply relied on informationprovided to herby others.Her evidence as to thecircumstances that led to thelooting of food supplieswas partly contradicted by Witness DC, who also places the Accused atthe scene of the crime.

102.The Prosecutor would further represent to theTrial Chamber that Witness DA’sevidence consists entirely of thirdhand information and is completely unreliable.The witnesshas a familyrelationship with the Accused. The witness’testimony is thereforemore likely than not likely to be biased.For thereasons outlined herein, it is hereby submitted that the evidence ofWitness DAbe rejected inits’ entirety.

WitnessDD

103.Wimess DD, a Tutsialso testified that to havingsought refuge at the MubugaParish Church on 12 April1994. In thatregard, he testifiedthat whilststanding a window in thechurch, he sawbourgmestre Sikubwabo and a tradercalled Ryandikayo looting food supplied by CARITAS.103

104.Wimess DD tesfifiedthat the Accused was not one ofthose who looted the foodand hadhe beenso involved,he (thewimess) would have recognized him.The wimess also testified that he didnot see Counseiller Rutaganira at theMubuga church either.~°4

105.The Prosecutor would represent to theTrial Chamber that the evidence of WitnessDD as outlinedabove, is at varianceto thatof Defencewitness DC. In thatregard Witness DC testifiedthat the Accused, who he describedas a businessmanand counseillerof Gishyita was presentat theMubuga church whenthe food was been looted. 105

106.Wimess DD furthertestified to havingwitnessed an attackat theMubuga churchon the14 of April1994 following which Tutsi refugees were killed. Thewitness further testified to havingseen Tutsi women been abducted from theMubuga church during the night of 14 April1994. The witness testified to havingseen the bodies of theseladies in thecemetery, located behind the MubugaChurch as he fledthe area on themorning of 15 April1994.1°6

107.Wimess DD testifiedthat he neverheard that the girls were raped prior to beingkilled neither did he hearthat they were disemboweled. Inthis regard, thewitness testified that he as he fledthe Mubuga church on themoming of

~03Seepage 12 transcriptsof 17 August2004, ~04Seepage 15 transcriptsof17 August2004. 105Seepage 6 transcriptsof17.8.04 106Seepage 13 transcriptsof 17 August 2004.

31 15 April1994 he passednearby the bodies of theseladies in broaddaylight, andcould see their bodies very clearly.

108.The Prosecutor would represent to the TrialChamber that Witness DD’s evidenceas to howhe departedfrom the Mubuga church on themoming of 15 April1994 is in direct contradiction tothat of several prosecution witnesses in thiscase. In thatregard, the evidence adduced in this case suggests that the Tutsirefugees gathered inside the church had infact barricaded themselves thereinprior to the attack at that location. This is simply logical.

109.It is furthersubmitted that the evidence adduced in this case also suggests thatgendarmes were present at thechurch in orderto preventthe refugees gatheredtherein from escaping from the church prior to theattack. It was thereforesimply incredible for Witness DD to testifythat he and30 other refugeesclimbed out a windowinside the church on themoming of 15 April 1994and headed for Bisesero and in thatprocess, saw the bodies of the girls at thecemetery. Witness DD’s evidence is contradictedby that of WitnessDZ who waspositioned outside the churchto ensurethat no one wasable to escapefrom the church through the windows.

110.Witness DD testifiedto havingleft Mubuga Church in "broaddaylight" at somestage between 4 and 5 AM on themorning of 15 April19941°7 headed forthe Bisesero hills. The Prosecutor would represent to theTrial Chamber that4 to 5AM is the momingwas far from broad daylight and as such,the witnesscould not have been in a positionto seethe bodies a clearlyas he claimedhe did.Witness DD furthertestified that he didnot see any arms or weaponsbeing distributed at the said location. He testifiedthat the only person1°8 who had arms were the gendarmes who guarded the church.

111. The Prosecutorwould represent to theTrial Chamber that Witness DD’s testimonythat no weaponswere distributed at the Mubuga church cannot be reliedupon as theevidence suggests’ that the witness himself was not at the Mubugachurch when the attackers arrived. That being the case, it issubmitted thatthe witness was in no positionto ascertainwhether or notweapons were indeeddistributed. Similarly, the witness was in no positionto ascertainthe identityof theperpetrators of the attackat Mubugachurch on 15 April 1994.1°9

112.Witness DD testifiedthat throughout the time he remainedat theMubuga church,he neversaw Prosecution witness AF. Rather the witness testified that asfar as he wasaware, Witness AF hadin factsought refuge at thehome of a

~o7Sec page 16 transcriptsof 17 August 2004. ~0sSee page 12 transcriptsof 17 August 2004. ~09See page 16 transcriptsof 17 August 2004.

32 personcalled Makita, a Hum traderfrom Rearguing in Mubugasecteur and hotat theMubuga church.110

113.In relationthe whereaboutsof Prosecutionwitness AF, the Prosecutor submitsthat Witness DD admittedthat he hadsimply relied on information obtainedfrom other persons to theeffect that Witness AF hadin factsought refugeat thehome of a personcalled Mukiga, and not at theMubuga church. It is submittedthat Witness DD had no directknowledge of WitnessAF’s whereaboutsduring the events of April,May and June 1994.111 It is further submittedthat the Witness DD hadno reasonto lookout for Witness AF at thechurch.

114.For the reasons outlined herein, it ishereby submitted that the evidence of WimessDD berejected in its’entirety.

WitnessDF

115.Defence Witness DF testifiedthat he hasconfessed to takingpart in the attackon Tutsirefugees at theMubuga Parish Church, which resulted in the abductionof a whitecouple named Herman and between15 and 25 young girls112who had sought refuge at insidethe presbytery atthe said church. The wimesstestified that although he wasnot one of thosewho plarmed the said attack,he wasasked to lurethe said girls out of thepresbytery following whichthey were abducted from the presbytery and taken into vehicles. 116.Witness DF furthertestified that the girls were taken in a vehicleto the areaaround the Mubuga cemetery where they were subsequently killed with clubs.The witnesstestified that bourgmestre Charles Sikubwabo and gendarmeswere amongst the assailantswho abductedthese girlsJ13 The witnesstestified that he waslocated at a distancenot too far from where the saidgirls were killed and was therefore able to see that was going on. 117.Wimess DF furthertestified that he was unarmedand left the location followingthe incident on foot,whilst other attackers were ferried away by CharlesSikubwabo in his vehicle. Witness DF testifiedthat the girls were not rapedbefore they were killed and neither were they disemboweled. 114 118.Witness DF testifiedthat the Accused was not amongst the assailants that participatedinthe said attack. The witness further testified that he never heard thatweapons were distributed at thesaid churchJ 15 However,the wimess concededthat he didnot witness the attack on Tutsirefugees at theMubuga churchon 15April 1994.116

Ho Seepage 12 transcriptsof 17 August2004. ilSee page 17 transcriptsof 17 August2004. m Seepages 9/10 transcnpts ofclosed session of 30 August2004. m Seepage 8 transcriptsofclosed session of 30 August2004. 114See page 10 transcriptsofclosed session of 30August 2004. ~i»See page 12 transcriptsofclosed session of 30 August2004. H6 Seepage 13 transcriptsofclosed session of 30 August2004.

33 119.The Prosecutorwould represent to the TrialChamber that it is very unlikelythat Witness DF waspresent during an attackon theTutsi women at theMubuga cemetery. The Prosecutor would further represent to theTrial Chamberthat the witness purposely enhanced his role in theattack on the Tutsiwomen at theMubuga cemetery in orderto providea defencefor the Accused.In thatregard, in describingthe sameevent to the Rwandan Prosecutorin Kibuye on 13 July2000, the witness stated that he was unable to explainwhat had happened at thecemetery, as he had not gone there himself. 120.To thatend, the Prosecutor would represent to the TrialChamber, that basedon thewitnesses’ response as outlinedabove, it wasunlikely that we wouldbe awareof assailantsthat had participated in the said attack at the Mubugacemetery. The Prosecutorwould further represent to the Trial Chamber,that based on the prevailing circumstances atthe time, the assailants whoparticipated in attacks in Gishyitacommune, were organised according to theirsecteurs ofresidence. 121.This fact is confirmedin thesaid confession statement, in that with the exceptionof the bourgmestre, ailthe assailants whom the wimess listed in the saidconfession originated from Mubuga secteur. The same could be saidof allthe witnesses tolais crimesJ 17 Theabove view is supported by the contents of aletterwritten by WitnessDF to theProsecutor in Rwandaon 13 July 2000.In thatregard, Witness DF referringto theattack at the Mubuga cemeterystated in hisletter that he wasunable to recognizethe assailants involvedin thesaid attack as theyhad come from Gishyita and had disguised themselvesinlong coats.t t 8 122.In thatregard, as thewitness did hOt himself hall from Gishyita secteur, basedon hisown admission, it wouldhave been very unlikely that he would havebeen able to recognizethe Accused as beingpresent during the said attack.The Prosecutor would further represent to theTrial Chamber that it was veryunlikely that the bourgmestreof Gishyitacommune would have beenpresent during these attacks without the support of the counseiller ofthe respectivesecteurs within the said commune. 123.The Prosecutorwould further represent to the TrialChamber that the evidenceof WitnessDF is simplyunreliable. In that regard, the witness himselfconfessed in a letterto the Prosecutor inRwanda that he had,during previousinterrogations bythe Judicial Police Inspector onhis activities during thegenocide, being economical with the truth, tf9His peers made the same observationduring an interviewbetween the witness and two members of the TruthCommissionJ 2° Thequestion then is, if he witnesshas a habitof being economicalwith the truth, how then can the Trial Chamber be expectedto rely on hisevidence?

117Sec Exhibit P63 tt8Sec Exhibit P64 t19See Exhibit P64 t20Sec Exhibit P65; Sec also page 36 transcripts of30 August 2004.

34 124.In thatregard, the Prosecutor would represent to theTrial Chamber that WimessDF standsto losenothing by incriminatinghimself in thecrimes chargedin thepresent indictment. Inthat regard, the Prosecutor would submit thatthe TrialChamber should consider the evidenceof WitnessDF with cautionand require that it be corroborated inall material respects. Itis further submittedthat in the absence of such corroboration, theTrial Chamber should notaccept the evidence of WitnessDF as proofof thefacts outlined in the tesfimonyofthis witness. Wimess DL 125.Witness DL testifiedthat his wifeand childrensought refuge at the MubugaParish Church in April 1994. In thatregard, Witness DL testified that hevisited his family at the said church the day after they had arrived there. He furthertestified to seeing several refugees at thesaid church and that some of them had soughtrefuge inside the church,whilst others were at the presbytery.121The witness testified that his family was located inside the presbytery. 126.Witness DL furthertestified that his family remained at thesaid location fora fewdays. The witness testified that he laterheard that the refugees gatheredat thesaid church had been attacked. The witness testified that he wasconfined to hishome during the said attack and had heard about it from others122 detainees during Gacaca sessions held at the prison, were his located. 127.Witness DL testifiedthat he hadheard that food supplies, vehicles and motorcycleshad been looted from the Mubuga church. He testifiedthat going by whathe hadheard during the said Gacaca sessions, counseiller Vincent Rutaganiraand bourgmestre Sikubwabo had been involved in thesaid looting. Thewitness further testified that he hadhOt heard that women were raped at theMubuga church.123 128.Wimess DL testifiedthat he had heardthat women were killed at the MubugaCemetery. The witness testified that he hadheard that bourgmestre CharlesSikubwabo, Amiel Munyemana and DefenceWitnesses DF 124 and DG hadconfessed to having participated inthe attack on the said women. 129.Witness DL testifiedthat those who had confessed to havingparticipated in theattacks on Tutsiwomen at the MubugaCemetery and at the Mubuga Parish125 Church had not implicated the Accused in the said attacks.

130.Witness DL testifiedthat he latermet a womancalled Therese, who had survivedat theattack at theMubuga Cemetery. In thatregard, the witness

121See page 62 transcriptsof 31 August 2004. 122Sec page 66 transeriptsof 31 August 2004. ~23Sec page 67 transeriptsof 31 August 2004. t24Sec page 69 transcripts of 31 August 2004. Sec also exhibit D75 ~2»Sec page 68 transcriptsof 31 August2004,

35 testifiedthat Therese had hOt told him that any of thewomen killed at the Mubugacemetery had been disemboweled. 126 131.The Prosecutor would represent to theTrial Chamber that Wimess DL did nothave any direct knowledge of theevents surrounding the attacks at the MubugaParish Church or that,which was launched at theMubuga Cemetery.

132.In thatregard, the Prosecutor submits that his hearsay testimony carmot be reliedupon as havingprovided a crediblechallenge to the evidenceof prosecutionwitnesses. This is particularlyso, as manyof thosewho the witnessobtained his information from are not themselves witnesses of truth.

133.The Prosecutorwould represent to the TrialChamber that Wimess DL standsto losenothing by incriminatinghimself in thecrimes charged in the presentindictment. In that regard, the Prosecutor would submit that the Trial Chambershould consider the evidenceof thiswitness with caution and requirethat it be corroborated inail material respects. 134.It is furthersubmitted that in the absence of suchcorroboration, theTrial Chambershould not accept the evidence of thiswitness as proofof thefacts outlinedinthe testimony ofthis witness.

WitnessDZ

135. WitnessDZ is currentlydetained at the Gisovuprison. Wimess DZ testifiedtohaving confessed his involvement inthe attack on Tutsi refugees at theMubuga Parish Church on 15 April1994. Witness DZ furthertestified that followingthe outbreakof violencein Gishyitacommune in April1994, bourgmestreSikubwabo openly encouraged Hutu to killTutsi. He testified thatin response,man~ Hutu bore arms and went towards Bisesero to killthe Tutsigathêred there.12 136.Witness DZ tesfifiedthat an attackwas launched on Tutsirefugees who hadgathered at theMubuga Parish Church. The witness further testified that he hadparticipated in the said attack with gendarmes and the bourgmestre of Gishyitacommune, Charles Sikubwabo. 137.The witness testified that he did not participate inthe said attack on lais on freewill but had been compelled by gendarmesto do so.He testifiedthat the attackersat the MubugaParish Church numbered over 1000 and included ordinarymembers of the civilianHum populationwho werearmed with sticks.128 138.The witness testified that the attack at theMubuga Parish Church lasted fourand a halfhours during which he (thewitness) was posted along the road to interceptTutsi who tried to escapefrom the said church through the

~26Sec page 70 transcriptsof31 August2004. 127See page 31 transcriptsof31 August2004. t28See pages 32/33 transcripts of31 August2004.

36 windows.The witness further testified that nota single Tutsi was able to escapefrom the said church. 139.Witness DZ testifiedthat he killedno oneduring the saidattack. The witnesstestified that he knewthe Accused and did not sec him during the attackat theMubuga church. Witness DZ testifiedthat apart from the attack at theMubuga Parish Church, he participatedin attacks at theCERAI and also at129 theMubuga Health Centre. 140.The Prosecutorwould dispute that Witness DZ everparticipated in the attackat theMubuga Parish Church on 15 April1994. The Prosecutor would representto the Trial Chamber that even if Witness DZ waspresent at the said location,itis clear from his evidence that he was located on the road opposite the13°said church and hOt at theMubuga Church itself.

141.In thatregard, the Prosecutor would represent to theTrial Chamber that consideringthe sheer number of assailantspresent at thesaid location, it wouldhave been virtually impossible for Witness DZ to identifythe Accused as131 beingpresent amongst attackers atthe said church.

142.The Prosecutor would further represent to theTrial Charnber that contrary to the evidenceprovided by the wimess,it is clearfrom Witness DZ’s confessionstatement of 23 May2002132that the witness never confessed to havingparticipated in attacks at theMubuga Parish Church in April1994.133 Neitheris thereany referencein the saidconfession to his alleged participationin attacks on Tutsicivilians at the Mubuga Health Centre or at CERAI.134 143.It is furthersubmitted, that the witnesses’ evidence that his confessions concemingthe MubugaHealth Centre and the CERAIwere contained in a secondconfession statement which he allegedlygave in 2003is simply untrue.13»In thatregard, the witness was shown a copyof hishandwritten letterto theProsecutor of Kibuye in Rwandadated 19 January2004, entitled, Correctionto Confession Statement of 23 May2002. 144.Indeed the so-calledcorrection to theconfession statement of 23 May 2003again made no mentionof WitnessDZ’s alleged involvement in attacks on Tutsirefugees at theMubuga Cemetery or at CERAI.136Itis submitted that theabove contradictions areindeed very material to thecredibility of this wimessand cast serious doubt on thereliability ofhis evidence. 145.The Prosecutor would represent to theTrial Chamber that that based on theprevailing circumstances at the time, the assailants who participated in

129See page 33 transcriptsof 31 August2004. 130See page 53 transcripts of 31 August2004 13~See page 40 transcriptsof 31 August2004. 132See pages 2/10 Exhibit P70 ~33See Exhibit P70; See also page 46 transeriptsof 31 August2004 134See page 48 transcriptsof 31 August 2004 ij5See page 49 transeriptsof 31 August 2004. 136Sêe Exhibit P71; See page 50 transcriptsof 31 August 2004.

37 attacksin Gishyitacommune, were organised according to theirsecteurs of residence.Witness DZ concededto thisfact.137 146.In thatregard, Witness DZ testifiedthat the attackers in hisgroup were madeup of peoplewho hailed from different cellules within Mubuga Secteur. He furthertestified that once gathered, they would all assemble at the Ryamhangacellule located that the centreof Mubugasecteur prior to attackingTutsi at any particular location. 138 147.It is furthersubmitted that the above explains why it wasthat with the exceptionof VincentRutaganira the counseiller of Mubuga secteur and the Accused,the witness testified that he didnot know the names of sixof the eightcounseillers that existed within Gishyita commune in 1994.Indeed his evidencethat he knewthe Accused because people would point to himas he walked139 about the centre of Gishyita, simply beggars’ belief. 148.Finally, the Prosecutor would represent to theTrial Chamber that Witness DZ is notawitness of truth.In thatregard, he blatantlylied to theTrial Chamberon severalissues. For instance,when asked how he and other attackershad obtained their weapons witness DZ testifiedthat the arms were keptin thepossession of the gendarmes and the counseiller of the Gishyita secteur,14° namely; the Accused.

149.However when challenged on this point, the witness insisted that he never testifiedthat the counseiller ofthe Gishyita secteur had possessed any arms but rather,he had referredto the bourgmestreof theGishyita commune. Indeedthe relevant potions of thesaid transcripts clearly indicate that the witnesslied to the Court. 141

150.Similarly, despite having previously testified that he could neither read nor write,Witness DZ notonly admitted that he hadwritten the letter of 19 January2004 to theProsecutor in Kibuyebut also read and understood the contentsof the said letter in court. 142Again when challenged onhis ability to readand write, the witness retracted his previous testimony and testified that the143said letter had in fact been written for him.

151.The Prosecutor would represent to theTrial Chamber that the witness standsto losenothing by incriminatinghimself in thecrimes charged in the presentindictment. In that regard, the Prosecutor would submit that the Trial Chambershould consider the evidenceof thiswitness with caution and requirethat it be corroborated inall material respects.

~37See page 40 transcripts of31 August2004. t38See pages 36/37 transcripts of3 l August2004. i39See page 36 transcriptsof 31 August 2004. 14oSee page 4] line5 transcriptsof31 August2004. ~« Seepage 41 transcripts of31 August2004. 142See page 50 transcriptsof3I August 2004. 143See page 50 transcriptsof 31 August 2004.

38 152.Itis further submitted that in the absence of suchcorroboration, theTrial Chambershould not accept the evidence of thiswitness as proofof thefacts outlinedinthe testimony ofthis witness.

Wimess DAA

153.Witness DAA testifiedthat he was personallyrecruited to jointhe assailantswho attackedTutsi refugees at the Mubugachurch by his counseiller,Vincent Rutaganira. He further testified that he sawbourgmestre CharlesSikubwabo giving members of thecivilian population orders on how to attackthe said church. 144Witness DAA identified Charles Sikubwabo and counseillerVincent Rutaganira as theleaders of theattack on theMubuga CatholicChurch on 15 April1994.14» Witness DAA testified that the victims of thesaid attack the Mubuga church included his neighbours and people he usedte workwith.

154. WitnessDAA testified that civilians were armed with machetes, clubs and otherweapons whilst gendarmes carried grenades, chains of cartridgesof bulletsand other military weaponry. 146However Witness DAA testified that he didnot see any arms being distributed to civilians at theMubuga Church priorto theattack there. Witness DAA testified that the gendarmes stationed at theMubuga church started shooting at around9 AM on 15 April1994 and thesaid killings lasted about between 2 to 3 hours.The witness confirmed that the147victims ofthis attack were unarmed.

155.Relating the specificrole he playedin the saidattack, Wimess DAA, testifiedthat he hita youngman aged approximately 17-18 years on hisback, following148. which another assailants gave the said victim the final blow WitnessDAA statedthe Accusedwas not presentduring the attackon MubugaChurch. 149 The witnesshad statedhe knew the Accusedas counseillerof Gishyita a high level person who could not have any ties with the witnessas the witnesswas a mere peasant.Witness DAA however concededthey were many attackers ’but even a personwho has goneto school’15° would not be in a positionto givea number,it wasa hugecrowd

156.In thatregard, Witness DAA estimatedthat there were 2000 gendarmes, 1500civilians and 3500 others. Despite his testimony inthat regard, Witness DAAtestified that the Accusedcould hot havebeen present amongst the

144See page 3 paragraph9-17 of transcriptof 31.8.2004 L4»See paragraph 1-3 of page 3 of transcriptof 31.8.2004 k4GSee paragraph 7 of transcriptof31.8.2004. 147See page 4 of transcriptof31.8.2004. ~48See page 5 of transcriptof31.8.2004. t49See page 2 oftranscript of31.8.2004. ~»0See pm’agraph 8 of transcriptof 31.8.2004 page 7.

39 attackers,t»l WitnessDAA howeverconceded that ’During that period, a counseiller152 could not hide because he was an offieial’.

157.It is submittedthat Witness DAA had no reasonto lookout for the Accusedout of over6000 attackers, who by hisown admission, were present at theMubuga Church on 15 April1994. In thatregard, the fact that Witness DAAdid not see the Accused does not mean that the Accused was notamong theattackers. Witness DAA testified that he wasone of thekillers on thelook outfor Tutsi consequently, itis submittedthat he had no business looking for theAccused.

158.The Prosecutor would represent to the TrialChamber that Wimess DAA’s evidencedemonstrates therole played by thelocal authorities in mobilizing membersof thecivilian Hutu population to participate in various attacks in Gishyitacommune. In thatregard, Wimess DAA testifiedthat: ’/f those peoplehad not come to rallyus, things would hOt have happened that wa{.sWe didhOt have any problems with our neighbours. We were on goodterms.

159.The issue then is this,if it wereaccepted that the bourgmestre and other communalauthorities were involved in mobilizingmembers of thepopulation in this regard,why wouldthe Accusedhave been exemptedfrom such participation?This is particularlyso as the WitnessDAA admitsthat counseillerof Mubuga Vincent Rutaganira mobilized Hutu civilians with help of bourgmestrethere is no logicalreason why the Accusedwho was the counseillerof Gishyita would not have been expected and encouraged to do the154same in his secteur.

160.It is furthersubmitted that the evidence adduced in thecase by Defence witnesseswould suggest that the assailants who participated inthe attacks in 1994were organised according to their cellules and secteurs oforigin. To that end,it was unlikelythat Witness DAA wouldhailed from Mubuga would havebeen aware of attackerswho came from Gishyita secteur.

161.Finally, Witness DAA wasparticularly evasive during cross-examination andsought to diminish his role in the said attacks. Heis currently detained in thesame prison as the elder brother of the Accused. Tothat end, there is every reasonto believethe one cannot expect him to be completelyneutral in his testimony)55

162.For the reasons outlined herein, it is herebysubmitted that the evidence of WimessDAA be rejectedin its’entirety.

1»1Paragraph20-24 of transcript,page 7 of 2004 ~52Secparagraph 17-20 of transcript31.8.2004 page 26. 153Seeparagraph 31-34 of transcript31.8.2004 page 17. ~5«Seeparagraph 1-2 of transcript31.8.2004 page 18. ~» Secparagraph 29of transcript31.8.2004 page 23.

4O Wimess DG

163.Witness DG, a detainee,testified that in 1994he wasresident in Mubuga. He testifiedthat around 10 April1994 people in hisarea started going to MubugaParish church for safety.Gendarmes from Kibuye town were posted to Mubugaarea from 8 April1994 to overseesecurity, t56He testifiedthat gendarmesattacked the Mubuga Church on 15 April1994 killing the refugees whosought refuge therein.

164.Wimess DG testifiedthat in the nightof the14 and 15 April1994 he witnessedabout 25 girlsbeing taken by thebourgmestre and gendarmes from theMubuga Church, to the cemeterybelow the Mubuga Parish Church about, 160kilometers away. He testifiedthat he witnessedabout 30 menkilling the girls157 using clubs, and that the girls were not raped before they were killed. Witness158 DG testified that the girls were killed because they were Tutsi.

165.Witness DG furthertestified that the bourgmestre,Charles Sikubwabo, ConseillerRutaganira, 159 the gendarmesand membersof the population walkedto thecemetery and that it wasonly the girls who were transported in thetwo vehicles. 16°The witness testified that the incident took place in the middleof the nightand thathe did not see the Accusedamongst the assailants.161He testifiedthat, in fact between April and August 1994 he did notsee the Accused at theMubuga Parish Church at all,but often saw the bourigr~62estre Charles Sikubwabo, exhorting people to go to Biseseroto fight.2

166.Witness DG testifiedthat he wasarrested in 1994because people wanted to takepossession of his property. 163He tesfified that he is acquaintedwith Defencewitness DF 164 and thatthis witness had exhortedhim on several occasions,as shown in Defencewitness DF’s confession statement, to confess tohis crimes. 165Witness DG testifiedthat Defence witness DF was present at thecemetery when the 25 girls were killed. 166

167.Witness DG testifiedthat he confessedbefore the Rwandan authorities for beingcomplicit inthe killing of the girls at thecemetery inthe night of 14/15 April1994. However, in his7 September2000 confession statement 167this factis notmentioned. The witness stated that he mentionedthis in his3

156Sec page 45 transcripts of30.8.04 ~»vSee page 47/49 transcnpts of30.8.04 ~»8Sec page 62 transcripts of30.8.04 ~s9See page 6 transcriptsof30.8.04 t60See page 52/53 transeripts of 30.8.04 ~61See page 54 transcfipts of 30.8.04 t62Sec page 46/48 transcripts of30.8.04 t63Sec page 54 transcripts of30.8.04 t64See Prosecution exhibit P 66. x6»Sec Prosecution exhibit P 66, confession statement of Defencewimess DF ~66Sec page 60 transcfipts of30.8.04 ~67See Prosecution exhibit P 67, confession statement dated 7.9.00. In theconfession statement of 19.11.02, Prosecution exhibit P 68, nomention ofthe killing ofthe girls at the cemetêry is made.

41 January2003 statement, which however, has not beenshown to exist.168At anyrate, he failed to explain why it took him so long to confess to thisevent.

168.The Prosecutor would represent to theTrial Chamber that the essence of WitnessDG’s testimony is to showthat the Accused was not present at the Mubugacemetery during an attackon someTutsi women in thenight of 14 to 15 April1994 and that no women were raped that night at that location.

169.In thatregard, Witness DG testifiedthat the killings took place at night andthe assailants were many. There were no lightsat thecemetery. To that end,unless he waslooking out for the Accused specifically that ni ght,there wasno reason for him to seekhim out from several attackers.

170.It is furthersubmitted that Witness DG soughtto diminishhis role in the saidattacks and testified that he wasjust a by-stander.Again, contrary tohis assertioninCourt that he was complicit inkilling the girls at the cemetery this confessionis notreflected in hisconfession statement dated 7 September 2000,before the Rwandan authorities.

171.Itis even more curious to notethat the reason Witness DG attributesfor hisincarceration isthe desire of certain people to loot his property inMubuga. In thatregard, he testifiedthat those people falsely accused him of crimes he didhOt commit so thatthey incarcerate him and thereby pave the way for the lootingof his property. The testimony ofthis witness is hotcredible. It is intendedto shieldthe witnessby minimizinghis wrongdoing, and the Accusedby allegingthat he wasnot present at thecemetery. However, like WitnessDAA, Witness DG evidencehighlights the major role played by the localauthorities inthe attacks that took place in the commune.

172.For thereasons outlined herein, it is submittedthat the evidenceof WitnessDG berejected inits’ entirety.

WitnessDC

173.Witness DC, a Tutsi,testified that he soughtrefuge at MubugaParish Churchon 12 April1994, where he foundmany other refugees. He alsofound gendarmes169 who surrounded the church, purportedly, guarding it.

I«8See page 72 transcripts of30.8.04

42 174. WimessDC testifiedthat on 13 April1994 peopleled by Gishyita bourgmestre,Charles Sikubwabo, Mubuga conseiller Vincent Rutaganira and Mubugabusinessman Ryandikayo looted foodstuffs from the Mubuga church. WitnessDC testifiedthat the Accused, who he describedas the Gishyita conseillerand businessman was also present at theMubuga church during the saidincident. 170

175.Wimess DC furthertestified that while at the MubugaParish Church he heard171 about girls who were killed at thecemetery close to MubugaChurch. On 14 April1994 the witnesstestified that he heardfrom the gendarmes guardingthe said church that an attackwould be launchedon thesaid church on15 April 1994. In that regard, he testifiedthat having heard that, he fled the churchin theevening of 14 April1994 to thehills and subsequently to Congo wherehe stayedfor two and a halfmonths before he returnedto Rwandain July1994.172

176.The Prosecutorwould represent to theTrial Chamber that Witness DC is perhapsthe only credible Defence witness called to testify during this trial. In thatregard, he corroboratedthetestimony of Prosecution witness AF thatthe Accusedparticipated in the looting of foodstuffsatthe Mubuga Parish church. He alsoplaced the Gishyita bourgmestre, Charles Sikubwabo and the Mubuga conseiller,Vincent Rutaganira at the crime scene. In essence,his testimony thatthe Accused was present at Mubugaaround 13/14 April 1994 in effect placesthe Accused at that location during the period of the rapes and killings of girlsat thecemetery near Mubuga church as testifiedto by Prosecution WitnessAV.

177.The Prosecutor would represent to theTrial Chamber that the evidence of WitnessDC as outlinedabove, contradicts, in material respects that of six otherDefence wimesses who testifiedon the samepoint. In thatregard, WitnessDG testifiedcategorically that the Accused was not at theMubuga Parishat anytimebetween April and August 1994. 173

178.Witness DAA also testified that the Accused could not have been present amongstthe attackers at theMubuga Parish Church in April1994.174 In that regard,Wimess DL testifiedthat going by whathe hadheard during the said Gacacasessions, counseiller Vincent Rutaganira and bourgmestre Sikubwabo had beeninvolved in thelooting of foodsupplies at theMubuga Parish Church175 and not the Accused.

t69Sec page 4 transcriptsof17.8.04 ~70Sec page 6 transcriptsof17.8.04 171Sec page 6 transcriptsof17.8.04 m Secpage 6 transcriptsof 17.8.04 173Sec page 46/48 transcnpts of 30.8.04 174Paragraph 20-24 of transeript,page 7 of 2004 ~7»Sec page 67 trartseripts of31 Augus!2004.

43 179.Similarly, Witness DD testifiedthat whilst standing a windowin the church,he saw bourgmestreSikubwabo and a tradercalled Ryandikayo lootingfood supplied by CARITAS.176Defence Witness DA alsotestified that thefood supplies stored at theMubuga Parish Church was looted by Charles Sikubwabo177 and Ryandikayo and not the Accused.

WitnessTQ 1

180.Witness TQ1 testifiedthere was a "mourningperiod" from 8-16 April 1994for Mika’s son who had died and therefore places the Accused at his homeduring the entire period referred to above.Witness TQ1 ’s testimonythat the Accusedremained at his home between8 and 16 April1994 is in contradictionto that of otherDefence witnesses who place him outside his homeduring the same period. The Prosecutor relies on hissubmissions as to theunreliability ofher testimony earlier inthe instant brief.

IndividualCriminal Responsibilit¥ of the Accused.

181.The Prosecutor would represent to the TrialChamber that the evidence adducedby Prosecutionwitnesses AV and AF provebeyond a reasonable doubtthat the Accused, Mika Muhimana participated in the killing of Tutsi civiliansat theMubuga Parish Church between 14 and15 April1994.

182.In thatregard, the Prosecutor’swould further represent to theTrial Chamberthat by conveyingattackers to theMubuga Parish Church, looting thefood supplies stored at the said location for the welfare of the refugees, distributingweapons to attackersat thesaid church to usein killingTutsi civiliansand subsequently participating in an attackon Tutsirefugees gatheredat the saidlocation, the Accuseddirectly and substantially contributedto the killing of Tutsicivilians in Gishyitacommune and thus incursliability for having instigated, committed, or otherwise,aided and abettedin thecommission of the offences outlined in CountsI andII of the presentindictment.

183.The Prosecutorwould represent to the TrialChamber that the Accused knewthat by conveyingweapons and attackersin a vehicleto the Mubuga Parishchurch such conduct would materially assist the said attackers in the killingof Tutsigathered therein.

184.The Prosecutorwould further represent to the TrialChamber that the presenceof the Accusedamongst attackers at the MubugaParish Church beforeor duringthe attack on Tutsirefugees gathered therein between 14 and 15 April1994, would have had a significantlegitimizing and encouraging

~76See page 12 transcripts of17 August 2004. 177See pages 24/41 transcripts of16 August 2004.

44 effecton theperpetrators thereofin the commission ofthe said crimes and that theAccused was aware that his presence as a conseillerwas likely to have that effect.As such,it is submittedthat the Accused must, ata minimum, incur criminalresponsibility forhaving aided and abetted in theexecution of the crimesoutlined inCounts I and II of the present indictment.

185.The Prosecutor further submits that a TrialChamber may find an Accused personguilty if it determines that he or she participated ina crime through any actionencompassed bythe Statute, even if it differsfrom the particular theory supportedbythe Prosecutor. In that regard, the Trial Chamber, as thefinder of factand trier of law, is free to apply any theory it finds applicable tothe facts ofa caseas long as it fits within the confines ofArticle 6(1) of the Statute theTribunal. The Prosecutor would further submit that as a rule,the Defence is onsufficient notice through the pleading of Article6(1) in the indictment thatany one of the theories ofdirect responsibility couldapply.178

t86.Finally, the Prosecutor submits that if the TrialChamber accepts the testimonyof anyone of thetwo witnesses produced in supportof theevents thatoccurred at theMubuga Church as outlinedinparagraph 5(b) (i-iii) of indictment,itshould find the Accused guilty of thecrime of Genocide through instigation,commission orotherwise aiding and abetting attackers tokill Tutsi civiliansat theMubuga Parish Church between 14 and15 April1994.

Eventsat the MugoneroComplex, Gishyita commune.

TheProsecutor’s Case.

187.The Prosecutor alleges in Paragraph5(c) of theindictment that between and 16 April1994, about six thousandcivilians, predominantly Tutsi, congregatedin theMugonero church, hospital and nursing school in Ngoma sector,Gishyita commune seeking protection against attacks on Tutsi civilians,which were occurring throughout the prefecture of Kibuye. Around 9 am on 16 April1994, Mikaeli Muhimana, acting in concertwith others, includingClement Kayishema, Charles Sikubwabo, Obed Ruzindana, soldiers,communal policemen and lnterahamwe launched an attackon the civiliansseeking protection at theMugonero church, hospital and nursing school.The attackers,using guns, grenades, machetes cudgels and other traditionalweapons inflicted deaths and serious injuries to thesix thousand civilianswho had sought refuge in theaforesaid Mugonero church, hospital andnursing school.

I78Sec Prosecutor v.Kordic and ^erkez. Decision onthe Defence Motion to Strike the Amended lndictment forVagueness, Case No. IT-95-14/2-PT,T.Ch. III, 2 Mar.1999.

45 A Summaryof theEvidence Presented bg theProsecutor.

188.In supportof theabove-mentioned allegations, theProsecutor relies on the evidenceof WitnessesBG, BI, BH, AU, BJ and AT. In addition,the Prosecutoralso relies on evidenceof ailprosecution witnesses who have testifiedinsupport of thefactual allegations insupport of CountsIII and IV as outlinedinparagraphs 6(c)(i-v) and 7(c)(i-ii) ofthe indictment asdiscussed ChaptersFive and Six of the instant brief.

189.To thatend, Witness BG testifiedthat having received information to the effectthat the Hutus were killing the Tutsi in Gishyitaand following her assessmentof the security situation, she fled to theMugonero Complex with hertwo children, aged seven and three years. Wimess BG explainedthat the MugoneroComplex was a bigplace and many refugees had assembledat the complexfrom the 8 th of April1994 when the killing of Tutsistarted. Having arrivedat thesaid complex, Witness BG testifiedthat she entrustedher childrento a Humffiend who took tare of themthroughout the said period. 179

190.Witness BG testifiedthat a big attackwas launchedat the Mugonero Complexon 16 April1994. Wimess BG testifiedthat the attackers included membersof theInterahamwe militia who wereled by severallocal leaders including,bourgmestre Sikubwabo and the Accused,conseiller Mika Muhimana.She described both persons as "influentialpeople.,,moWitness BG explainedthat she knew the Accused very well and proceeded to identifyhim in181Court.

191.Witness BG testifiedthat the attackers arrived at thecomplex at around8 am aboardseveral vehicles, which were parked near the AdventistChurch Headquarters.~82She further testified that the attackers arrived from different locationsincluding: Nyariabwo, Matamo, Kibingu, Mubuga and other secteurs183 surrounding the Mugonero Complex.

192.184 Witness BG testifiedthat she saw the Accused during the said attack. Shetestified that when she saw him, she was located"...under a tent in the hospitalparking lot at the headquarters ofthe Adventist Church. ,,lss

179See page 33 Iranscriptsof 5 April2004 180See page 33 transcriptsof 5 Apri12004 1ilSee page 34 transcriptsof 5 Apri12004 ~,2See page 33 transcriptsof 5 Apri12004 1~3See page 34 transcriptsof 5 Apri12004 ~84See page 34 transcriptsof 5 Apri12004 ~g5a distancegiven by the investigator as equivalent to100m see Prosecution Exhibit P 2

46 193.Witness BG furthertestified that the Accused, armed with a gun,was one of thosewho led the groupof Interahamwemilitiamen at the complex. WitnessBG alsoobserved that the attackers were armed with guns, machetes, spearsand nail studded clubs. 186

194.Witness BG testifiedthat following the commencement of the attack at the Mugonerocomplex, she andothers fled towards the church within the said complex.She testified that the attackers then followed, forced the doors of the churchopen and threw grenades inside the church. The witness testified that shemanaged to escapethrough a small door located behind the said church.

195.Witness BG testifiedthat having left the church building she went into the mainhospital building and remained there for sometime before retuming to thechurch where she joined the other refugees who tried repelling the attack by throwingstones at theattackers. 187The witness testified that she was woundedon theleft leg during the said attack but managed to escapethrough the sameback door following which she fledtowards Gitwa hill and later Bisesero.188

196.Witness BI testifiedthat he witnessedan attackat theMugonero Complex at about9. 30 AM on 16 April1994. He testifiedthat on thatday, a vehicle thatbelonged to ObedRuzindana arrived at thecomplex, hooted following which,he saw the gendarmeswho had beenguarding the refugeesat the complexleave the complexand wenttowards Elizaphan Ntakirutimana’s house.Wimess BI testified that shortly after this, another vehicle carrying the Accused,Charles Sikubwabo and otherarmed assailants arrived at the complex.

197.Wimess BI testifiedto havingseen ail the occupants of thesaid vehicle alightfollowing which they went and joined the group that had arrived at the complexearlier. Witness BI testified that some 30 to 40 minuteslater, several Hutuassailants attacked the Tutsi refugees gathered the complex. 189In that regard,the witness testified that from a distanceof between30-40 meters, he sawthe Accused shoot at the Tutsi refugees in thecomplex.

198.He testifiedthat towards evening, the refugees were overwhelmed by the attackersand fled to variousplaces within the complex. The wimess fled towardsthe churchbut round attackers, including the Accused,Charles Sikubwabo,Kanyabungo and Ndayisaba, already at thechurch, so he fledto wardsinside the main hospital building. 199.Witness BI testifiedthat while at thechurch, he heardCharles Sikubwabo urgingthe Hutu women among the refugeesto leavethe saidlocation. In

186Secpage 36 transcripts of5 Apri12004 ~87Secpage 36 transcripts of5 Apri12004 E~8Seepage 36 transcripts of5 April 2004 ~89Seepage 8 transcriptsof30 th April 2004.

47 response,the witnesstestified to havingseen two Hum women,namely; Nyiragwizaand Nyareri,who he knewwere married to Tutsis,leave the church.The wimess testified that these two women left their children inside thechurch as theywere considered Tutsi. 19°Of thewitness’s family members thataccompanied him to Mugonero,only two of hissisters and his father who got191wounded survived this attack. 200.Wimess BH testifiedthat when President Habyarimana was killedon 6 April1994 violence erupted in laisarea of residence.In consequence of the violence,members of theTutsi population, including his wife, father, mother, his93 four children, and his sisters fled to MugoneroComplex 192 for refugeJ Thewitness fled to thecomplex on 10 April1994 where he roundmany other Tutsi194 civilians, men, women and children seeking refuge at the complex.

201.Witness BH testifiedthat around 9 AM on Saturday,16 April1994 while at the ESI schoolin the complex,he saw many attackersincluding Interahamweand soldiersarmed with guns, grenades, machetes and other weaponscorne to attackthe complex. The witness recognized the Accused, CharlesSikubwabo and Obed Ruzindana amongst the attackers.The witness testifiedthat some of the attackerscame on footwhile the Accused and CharlesSikubwabo, along with several soldiers came in the Gishyita communeDaihatsu vehicle. The witness testified that following the arrival of theattackers anattack was launched at thepeople in thecomplex killing many peopleincluding ail the members of hisfamily. Witness BH sawthe Accused participatex95 inthe attack by shooting atthe refugees,

202.Witness AU testifiedthat she sought refuge at theChurch at theMugonero ComplexJ96 Whenshe arrivedat the churchwithin the saidcomplex, she saw thatgendarmes and Interahamwe were present.197 Thewimess was with almosther entirefamily. Her parents and childrenwere Tutsi. When AU soughtrefuge at MugoneroComplex she was visitingher parents.Her childrenaged rive and three, 19gand bothher parents accompanied her to Mugonerowhere they were killed inside the church during an attackon 16 April1994.

203.Witness AU testifiedthat she was in thechurch with many other refugees. Whenthere was a bigattack that started around 9 o’clockin themorning on a

190See page 9 transcriptsof30 °a April 2004. t91See page 10 transeriptsof30 t~ April 2004. t92In theProsecutor’s Notice to AdmitFaets dated 03 Mareh2004, the Defence admits that the Mugonero complex comprises of a hospitaland a schoolof nursing.See structure of theeomplex on pagesK0286162 to K0286168of ProsecutionExhibit Bundle, ExhibitP2 and picturesshowing thecomplex on pagesK0286194 to K0286216ofthe same document. 193See page 7 transcriptsof 8 April2004. In thelight of previousapparent unclear testimony as to whetherBH or membersof his familywent to Mugoneroeomplex first, BH wasemphatic that members ofhis family preceded him to theMugonero eomplex. Asked by DefenceCounsel as to whopreceded the other(s) Witness BH said,"It was my wifeand ehildren who got there first, as well as the othermembers of my family.1 met them there when I gotthere." see lines 33 & 34 page28 transcriptsof8 Aprit2004. 194See page 7 transcriptsof8 April2004 295See page 8 transcriptsof 8 April1994 296See page 3 transcriptsof 7 April2004 197See page 3 transcriptsof 7 April2004 198See page 3 transcriptsof 7 April2004

48 Saturday.199Itis AU’s evidence that during this attack in thechurch, she soughtrefuge in thesurgical ward. While she was in thisroom, AU sawthe Accused,enter this room that was locatedin thebasement. Mika Muhimana was amonga big groupof Interahamwe.AU alsorecognized, one Ezekia Ntakirutimanaand AlphonseKanyabungu 2°° amongstthe attackers.AU observedthat Mika Muhimanawas armedwith a gun and a club called "mpongano".Witness testified that she knew the Accused, long before the genocide.2°a

204.Witness BJ testifiedthat she sought refuge at MugoneroComplex on the 16April 1994 having realised that the security situation had deteriorated and an attackwas imminent. 2°2Witness BJ sawattackers coming from different places,Rwamatamu, Mpembe, Gishyita and otherareas. 2°3 The attackers were2°4 armed with clubs, pointed clubs and machetes.

205.Witness BJ testifiedthat while at theMugonero Complex she andother womensought refuge inside "room number 3" of themain hospital building. WitnessBJ testifiedthat during the attack at theMugonero Complex she saw theAccused carry out an attackon Tutsiwomen who had sought refuge at the saidlocation.

206.Witness AT testifiedthat about three days after the death ofthe President, Hutusin hisarea in GishyitaCommune began to burnTutsis homes and kill theircattle. 2°sThe Hutus felt threatening andcarried out the acts mentioned becausethey thought soldiers referred to as Inkotanyihad killedthe President.2°6Scared of theviolence, the witness took his wife and three childrenon 10 April1994 to MugoneroComplex 2°7for safety. 208 He testified thatthe women and children slept in the church while the men spent nights in thecourtyard. 209The witness testified that the Tutsi refugees heround at the complexhad fled from Communesof Rwamatamu,Gisovu and Gishyita following21° Hutu attacks in theirhome areas.

207.Witness AT testifiedfurther that on Saturday16 th April1994, the two gendarmeswho were supposedly guarding the complex informed the refugees thatthey could not protect them anymore and left the complex. Earlier that day,at about8 ara,there was an initial attack in which the assailants, mainly Interahamwe,were armed with only traditional weapons and therefugees

~99Seepage 3 transcriptsof7 April2004 2oeSecpage 23 transcripts of 7 April2004 2ozSeepage 5 transeripts0f7 Apri12004 202Seepage 36 transcriptsof 6 April2004 203Seepage 37 transcriptsof 6 April2004 2o4Seepage 37 transcriptsof6 April2004 2o5Secpages 4/5 transcripts of19 ~ April2004. :06Seepage 5 transcriptsof 19 thApril 2004. :o7For compositionof Mugoneroeomplex refer to Noticeto Adroitdated 03/03/04and pages K0286163-K0286165in Prosecution ExhibitP2, Exhibit Bundle. :0sSee pages 5/7 transeripts of19 thApril 2004. 2o9See page 6 transcriptsof19 m April2004. 2~0See page 6 transeriptsof19 °a April 2004.

49 repelledthis attack using stones. At 9 am,there was a secondattack in which theattackers were armed with guns 21land this attack lasted till about 9 pm.212

208. He testifiedto seeingsix vehiclesin this attack;Elizaphan Ntakirutimana’sToyota, Obed Ruzindana’s (red) vehicle in whichthe Accused213 arrived, Charles Sikubwabo’s Gishyita Commune vehicle, ClementKayishema’s, theMugonero Hospital Vehicle and a truckthat carried soldiers.214The owners arrived in these cars and carried other assailants with them.215He testifiedthat in Elizaphan’svehicle were two soldiers and other civilians216 armed with guns.

209.Witness AT testifiedthat ElizaphanNtakirutimana was head of the Kibuye/CyanguguField of theSeventh Day AdventistChurch, 217while Obed Ruzindanawas a traderat Mugoneroand Kigali, and Gerard Ntakirutimana, whoarrived in thehospital vehicle, was a doctorat Mugonerohospital in the Mugonerocomplex. The witnesstestified that Clement Kayishema was the Prefetfor Kibuye Prefecture while Charles Sikubwabo was the bourgmestre of GishyitaCommune.218

210.He testifiedthat on thatoccasion, soldiers who were amongst the attackers carriedguns while civilians carried machetes. 219Around 11 am,22°the witness ranto thechurch where his family was but found it locked,upon which he soughtrefuge in thehospital’s surgery rooms in thebasement. 221The room in whichhe hid couldtake about 30 personslying down. This room had dead bodiesand three beds whose mattresses were still intact. 222

211.Witness AT testifiedafter spending a shortwhile in thisroom hiding underthe corpses, three girls, Mukasine daughter of Kajongi,who had just completedNursing studies in Mugonerohospital and Amos Karera’s daughterswho werea teacherand a studentrespectively, resident in Kanyinya223came running and lay on thethree beds.224He testified that Isaac Kajongiwas SDA Accountant in theoffice of PastorElizaphan Ntakirutimana and225Amos Karera who lived in theemployees’ quarters in theMugonero.

zltSee page 8 tmnseriptsof19 thApril 2004. m Seepage 7 transcriptsof19 thApril 2004, z~3See page 10 transeripts of19~ April2004. 214See page 8 transcriptsof19 ~ April2004. 2~»See pages 8/9 transcripts of19 ~ April2004. z16See page 9 transeriptsof19 t~April 2004. 217See page 8 transcriptsof19a’ April2004. 218See pages 10/t 1 transcriptsof19 ~ April2004. 219See page 10 transcriptsof19 thApri12004. 220See page 13 transcriptsof19~ April2004. 221See pages 11/12 transcripts of 19 th April2004. For an exactlocation ofthe basement refer to pagesK0286164 & I(0286165 of Prosecutionexhibit 2. 222See page 12 transeriptsof 19 ~ Apri12004. 223See page 14 transcripts of 19 ~ April2004, 224See page 13 transcriptsof19 thApril 2004. In eross-examination(seepage 53 transcriptsof 19 April 2004) witness AT statedthat apartfrom Mukasine, Isaae Kajongi’s other children were Paul Muvuni who was an offieerin theRPF army and Didas who was a lieutenantinthe RPF army. 22»See pages 13/14 transcripts of19 ~ April2004.

50 212.Witness AT testifiedthat from a distanceof aboutfour and a half meters,226 he saw the Accusedand two of Kanyabungo’ssons who were soldiersenter the room in which he was and rape the three girls. 227

An Anal~sisof theEvidence Presented bv theProsecutor.

213.The Prosecutorwould represent to the TrialChamber that the Mugonero Complexlocated in Ngomasecteur, Gishyita commune, is theheadquarters of the WestRwanda Association of the SeventhDay AdventistChureh. The Complexcomprises of a church,a hospital,a nursingeollege and two secondaryschools. 214.The Prosecutor would further represent to theTrial Chamber that several witnessestestified as to howwhen the killings started in Gishyitacommune, theyfled from surrounding areas to seekrefuge at thechurch and hospital of Mugonero.Some had experiencedattacks in theirhomes; others were distressedby thesight of thehomes of Tutsiburning all over the hills of Kibuye.Although a largenumber of theresidents of Gishyitacommune fled directlyto thearea of Bisesero,large numbers of Tutsirefugees began to arriveat theMugonero Complex as earlyas 8 April1994.

215.It is furthersubmitted that around 9.00 AM on Saturday,16 April1994, the dayof theAdventist Sabbath, the refugeesgathered at the Mugonero Complexwere attacked. It is the Prosecution’scase that the Accused was amongstthose who led the attackson Tutsicivilians at the Mugonero Complex.Acting in concertwith others, including Charles Sikubwabo, the Accusedand other attackers inflicted unimaginable pain in a slaughter,which lastedwell into the night.

216.In thatregard, the Prosecutor would represent to theTrial Chamber that theevidence of WitnessesBG BI, BH,AU and BJ beforethe Trial Chamber was direct,clear and convincing.Witness BI was an educatedman. Both witnessestestified that they had sought refuge at theMungonero Complex priorto the events and had both been victims and survivors of theattacks at thesaid location. In thatregard, they provided the Court with a firsthand accountof what they had seen and heard.

217. Regardingthe participationof the Accusedduring the attackat the complex,the circumstances under which both witnesses identified of the Accusedas havingbeing present amongst attackers were good. Both witnessestestified to havingseen the Aecused in broaddaylight and both sightingwere outdoors. Witness BI testifiedthat he sawthe Accused at a distanceof 30-40meters.

226Sec page 17 transcriptsof19~ April2004. 227Sec pages 15/t7 transcripts of 19 ~ April2004. Under eross-examination, witness AT describedthe rape as, "’Mika removed his trousers,removed his penis and introduced itinto the vagina orifice of thewoman, and while Mika was doing this, the young lady was erying,was screaming, which means that she didn ’t wantto yieMto Mika"s...she didn ’t wantto do whatMika wanted to do."" Sec page3 transcriptsof 20 April 2004.

51 218.Witness BG and AU saw the Accusedarmed with agtm, whilst Witnesses BI andBH actuallysaw him shooting at Tutsirefugees. Ail three witnesses agreeon thedate of the attackand both described the attack as having commencedbetween 8 and9.30 AM. Both witness further testified to having seenthe Accused on thatday, in thepresence of otherlocal authorities notably,Charles Sikubwabo the bourgmestreof Gishyitacommune and Obed Ruzindana,a businessmen. All witnesses testified that the attackers had arrivedat the complex in vehicles.

219.It is furthersubmitted that ail witnesses had known the Accused prior to seeinghim at the MugoneroComplex on 16 April1994. In thatregard, WitnessBI testifiedthat he had knownthe Accusedfrom around 1989 as Conseillerof Gishyitasecteur and as a businessmanresident in Cyanya locatedin Gishyitatown. 228 Witness AU testifiedthat the Accused was conseillerof Gishyitaand that she had known him since she was16 years old.229Witness BJ testifiedthat she knew the Accused as a traderwho used to buyand sell coffee. Witness BJ evenrecalled that at onetime her parents would23° sell coffee to the Accused.

220.Wimess BH, testifiedthat he had knownthe Accusedbefore well April 1994.TM He testifiedthat lais cousin was married to the Accused and that lais auntwas married in the area the Accused lived. The witness testified that he usedto visithis aunt and cousin and often saw the Accused in theprocess. Thewitness described the Accused as fairskinned and identified him in court.232Witnesses BG233, BI234, AU235 andBJ 236 hadno problems identifying theAccused in court ten years after the said events.

TheDefence Case. 221.The Prosecutorwould represent to the TrialChamber that the Accused doeshOt dispute that Tutsi refugees gathered at theMugonero Complex were attackedon 16 April1994. Indeed Defence Witnesses DI admittedto having participatedin the said attack. Wimess TQ28 and AR1 also testified that they wereaware ofthe said attack.

222.The Accused however denies that he participatedin the attack on Tutsiat theMugonero Complex on 16 April1994. In thatregard, the Accused relies on theevidence ofEEe following witnesses:

22sSee page 25 transcriptsof 30 ~ Apri12004. 229See page 4 transcriptsof 7 April2004 23oSee page 38 transcripts of 6 April2004 231See page 14 transcripts of8 April2004. See also page 22 transcripts of 8 April2004 232See page 20 transcripts of 8 April2004. 533See page 34 transcripts of 6 April2004 234See page 27 transcripts of 30 t~April 2004. z» Seepage 8 transcriptsof7 April2004 536See page 38-39 transcripts of6 April2004

52 WitnessTQ 1

223.Witness TQ1 testifiedthere was a "moumingperiod" from 8-16 April 1994for Mika’s son who had died and thereforeplaces the Accused at his homeduring the entire period referred to above.The Prosecutor relies on his submissionsasto the unreliability ofhertestimony earlier inthe instant brief.

WitnessDI

224.Witness DI testifiedthat in themoming of 16 April1994, bourgmestre CharlesSikubwabo of GishyitaCommune went about in a vehicleasking peopleto go andattack Mugonero Complex. 237Witness DI testifiedthat he went to MugoneroComplex in the companyof otherHutu civilians and participatedin attacks on Tutsicivilians seeking refuge in thecomplex.

225.Witness DI testifiedthat when the refugees repelled their initial attack, soldiersarmed with guns and grenades,and Interahamwefrom Mugonero, Bugarama,Mpembe, Rwamatamu and otherplaces sent them back to the Complex.Witness DI testifiedthat he sawthe soldiers shoot at peopleand throwgrenades, z38Witness DI testifiedthat the attack started at 10 AM and endedat 3 PM,in thecourse ofwhich he didnot see the Accused. Wimess DI testifiedthat during the attack at theMugonero Complex he wasarmed with a club.Witness DI deniedhaving killed any one with his club during the said attack.239

226.Witness DI testifiedthat he saw bourgmestreCharles Sikubwabo at MugoneroComplex during the attack on 16 April1994. He alsoheard about thepresence of ObedRuzindana at thesaid location. The wimess stated that theAccused did hOt participate in the Mugonero Complex attack because he guessedthat Charles Sikubwabo had not asked him to participateas he was mouminghis child.

227.Witness DI testifiedthat he is detainedon accountof hisparticipation in attacksat MugoneroComplex and in Gisovuin 1994.He testifiedthat he confessedto beingan accompliceto the crimes although he didnot kill any personz4° at Mugoneroor in Gisovu.

228.The Prosecutorwould represent to the TrialChamber that Witness DI deliberatelysought to diminishhis role in the attack at theMugonero complex andthat, in itself,should render lais testimony unreliable. In that regard, WitnessDI’s testimony that he did not kill anyonewith his club is contradictedby the contents of hisconfession to theRwanda authorities namely,that he in fact killed six people with his club during the said attack.

237See page 37 transcriptsof1.9.04 z38See page 39 Iranscriptsof1.9.04 539See page 56 transcripts of1.9.04 240See pages 51/60 transeripts of 1.9.04

53 229.To that end,the Rwandanauthorities before whom he made the said confessionlisted him as a CategoryI offender on accountof the severity ofhis crimes.The Prosecutorwould represent to the TrialChamber, that had WitnessDI not killed anyone during the said attack, it is very unlikely that he wouldhave been categorized as a categoryI offender.

230.The Prosecutorwould further represent to the TrialChamber that the evidenceadduced in thiscase would indicate that hundreds of assailants participatedin the attack at theMugonero Complex on 16 April1994. In that regard,if Witness DI did not see the Accused in thecourse of the said attacks, thelogical explanation is simply that their paths did not cross and not that the Accusedwas hOt present at thesaid location.

231.In thatregard, the evidence adduced in theinstant case further suggests thatattackers followed their victims into the numerous buildings atthe said complexin whichthey hid and attacked them there. Witness DI statedthat he didnot enter inside any ofthe complex buildings. This explains in partwhy he couldnot have met ail the attackers heknew.

232.It is submittedthat the testimony ofWitness DI is thereforenot credible.

Wimess ARI

233.Witness ARI testifiedthat in April1994 he wasemployed at Mugonero hospital.He testified that he stoppedworking at the hospital due to security problemson 12 April1994 and wentinto hiding and didnot return to the MugoneroComplex until the end of April1994. Witness ARI confirmedthat an attackedwas launchedon Tutsirefugees gathered at the Mugonero complexon 16 April1994. He testifiedthat bandits, whose ethnic group he did241not know had planned the said attack.

234.It is submittedthat Witness AR1 conceded that he himselfwas not at the MugoneroComplex on either13, 14 or 16 April1994. During this period, he testifiedthat he washiding in Bamporoki’shouse at theKabahinyuza market, whichwas locatedover 500 metersaway from the Mugonero Complex. That beingthe case, the Prosecutor would represent to theTrial Chamber that WitnessARI had no directknowledge of theevents that surround the attack on Tutsirefugees atthe said complex.

WitnessTQ 28

235.Witness TQ28 testified that he soughtrefuge Mugonero complex, along withmembers of hisfamily from 8 to 16 April1994. 242He testifiedthat he z4~See page 44 transcripts of 2.9.04 z4zSee page 72 transcriptsof 23.8.04

54 andmembers ofhis family left the hospital at 7 am on 16 April1994 reaching Gishyitacentre at 8 arathe same day.

236.Witness TQ 28 testifiedthat having arrived at theCCDFP building located in Gishyitatown on the morningof 16 A~ril1994, bourgmestre Charles Sikubwabo,the Accused came to visitthem. 3 He testifiedthat the communal authoritieslistened to theirproblems and then left. TM Howeverwitness TQ28 ’s evidencein this regard, was at variance tohis evidence inthe Ntakirutimana trialin 2001.In thatregard, Witness TQ 28 hadstated categorically in the Ntakirutimanatrial that no communalauthorities, including the Accused, ever visitedthem at theCCDFP between the 16 th andend of April1994.

237. Similarly,Witness TQ 28’s evidencethat he remainedinside the Mugonerocomplex until the moming of 16 April1994 was at againvarianie tohis testimony inNtakirutimana. 245I_n that regard, contrary tolais testimony in chief,Witness TQ28 conceded that he didhOt remain at Mugonerohospital until16 April1994, rather he remained at thehospital until the evening of 11 April 1994 followingwhich he moved from thereto a house in the Kabahinyuzamarket area where he remaineduntil he momingof 16 April 1994246when he and othersleft for the CCDFPin Gishyita.Witness TQ28 was thereforenot insidethe MugoneroComplex between 12 and 16 April 1994.247

238.The Prosecutorwould further represent to the TrialChamber, that the witnesses’claim that while at the Kabahinyuzamarket he couldsee the activitiesthat were taking place at MugoneroComplex is incredibly false. In thatregard, it issubmitted that it was not possible for the witness to assertas to thepresence or absenceof theAccused at the MungoneroComplex from eitherthe Kabahinyuza orNutrition centre located at least 500 meters from the complex.

239.Equally false, was WitnessTQ28’s claim that following his arriva1 in Arusha,he hadonly met with members of theDefence team "’for more than a minute"During which he was"" askedto brieflylook at thepaper "’24sIt is indeeda wellknown fact that ail witnesses are prepared by Counselprior to theirtestimony incourt.

240.Similarly, Witness TQ28 lied under oath about his own date of birthand hadto be confrontedwith his personal identification particulars entered during the Ntakirutimanacase. 249 In thatregard, Witness TQ 28 had,in the Muhimanacase indicated that he wasborn in 1972and while he testifiedin

24~See page 75 transcripts of23.8.04 244See page 76 transcripts of23.8.04 245Seepages 23/24 transcripts of24.8.04 246See page 18 transcripts of24.8.04 247Sec page 19 transcripts of24.8.04 248See page 46 transcripts of24.8.04 249See Defenee exhibit D 54.

55 theNtakirutimana case25° that he wasbom in 1969.His explanations to the Courtin that regard were simply not convincing.

241.Finally, Witness TQ28’s evidence that there were no lnterahamwein his regionduring April 1994 isZ51simply outrageous and is incontradiction tothe evidenceof ailthe Defence witnesses who testified during the trial. In that regard,Witness TQ13 testified that as faras he was concemed,the Hutu civilians252 were the same as Interahamwe.

242.For the reasons outlined herein, it is herebysubmitted that the evidence of WitnessTQ28 be rejected inits’ entirety.

IndividualCriminal Responsibility of the Accused.

243.The Prosecutor would represent to theTrial Chamber that the evidence adducedby Prosecutionwitnesses BI, BG andBH provebeyond a reasonable doubtthat the Accused, Mika Muhimana participated in the killing of Tutsi civiliansat theMugonero Complex on 16 April1994.

244.In thatregard, the Prosecutor’s would further represent to theTrial Chamberthat by conveyingattackers to theMugonero Complex, distributing weaponsto attackersatthe said complex to usein killingTutsi civilians and subsequentlyparticipating in an attack on Tutsirefugees gathered at thesaid location,the Accused directly and substantially contributed to the killing of Tutsicivilians in Gishyitacommune and thus incurs liability for having instigated,committed, or otherwise, aided and abetted in thecommission of theoffences outlined inCounts I and II ofthe present indictment.

245.The Prosecutorwould further represent to the TrialChamber that the Accusedknew that by conveyingweapons and attackers in vehiclesto the MugoneroComplex such conduct would materially assist the said attackers in thekilling ofTutsi gathered therein.

246.The Prosecutorwould further represent to the TrialChamber that the presenceof theAccused amongst attackers at theMugonero Complex before or duringthe attack on Tutsirefugees on 16 April1994, would have had a significantlegitimizing andencouraging effect on theperpetrators thereof in thecommission of thesaid crimes and that the Accused was aware that his presenceasa conseillerwaslikely to have that effect. As such,it is submitted thatthe Accused must, at a minimum,incur criminal responsibility forhaving aidedand abetted in theexecution ofthe crimes outlined in Counts1 andII of thepresent indictment.

2»0Sec case no ICTR-96-10 & ICTR96-17. Witness TQ28 testified as Defence witness 4 as shown in thetranseripts ofthat case, Prosecutionexhibits P50& 51inthis case. 251See page 17 transcripts of24.8.04 252See page 10 of transcript of25.8.2004 paragraph 6.

56 247.The Prosecutor further submits that a TrialChamber may find an Accused personguilty if it determines that he or she participated ina crime through any actionencompassed by the Stature, even if it differsfrom the particular theory supportedbythe Prosecutor. Inthat regard, the Trial Chamber, asthe finder of factand trier of law, is free to apply any theory it finds applicable tothe facts ofa caseas long as it fits within the confines ofArticle 6(1) of the Statute theTribunal. The Prosecutor would further submit that as a rule,the Defence is on sufficientnotice through the pleading of Article6(1) in theindictment that253any one of the theories ofdirect responsibility couldapply.

248.Finally, the Prosecutorsubmits that if the TrialChamber accepts the testimonyof anyone of thewitnesses produced in supportof theevents that occurredat the MugoneroComplex as outlinedin paragraph5(c) of the indictment,it should find the Accused guilty of the crime of Genocidethrough instigation,commission orotherwise aiding and abetting attackers tokill Tutsi unarmedcivilians gathered at theMugonero Complex on 16 April1994.

Events in the Bisesero area, Gishyitaand Gisovu Communes

TheProsecutor’s Case.

249.The Prosecutor alleges in Paragraph5(d) ofthe indictment that the Biseseroarea straddles Gishyita and Gisovu communes in KibuyePrefecture. Followingattacks on Tutsicivilians who had gathered in enclosedplaces throughoutK_ibuye prefecture between April and June 1994, thousands of Tutsisurvivors fled to the open but steep and undulating hills of Biseseroas theirlast point of refuge. 250.The Prosecutor alleges in Paragraph5(d)(i) ofthe indictment that in April 1994in Uwingabocellule in BiseseroMikaeli Muhimana in the companyof soldiersand lnterahamwe shot at twentyTutsi civilians killing them all.

251.The Prosecutor alleges in Paragraph5(d)(ii) of theindictment that on around9 April94 at Nyarutovucellule in BiseseroMikaeli Muhimana along withlnterahamwe, commune policemen and soldiers hunted for and attacked Tutsicivilians seeking refuge in the Nyarutovu hills.

252.The Prosecutor alleges in Paragraph5(d)(iii) of theindictment that on around13 April1994 at theRushishi centre in BiseseroMikaeli Muhimana in thecompany of soldiersand local government officiais, including Charles Sikubwabo,distributed guns, grenades and other weapons to theInterahamwe

253Sec Prosecutor v. Kordicand ^erkez, Decision on theDefence Motion to Strikethe Amended Indictment.for Vagueness, Case No. IT-95-14/2-PT,T. Ch. III, 2 Mat.1999.

57 andother militias for purposes of attackingTutsi who were taking refuge in theRushishi and surrounding hills.

253.The Prosecutor alleges in Paragraph5(d) (iv) of theindictment that April 1994,MikaeliMuhimana, along with ClementKayishema, Obed Ruzindanaand lnterahamwe participated in search for and attacks on Tutsi civilianstaking refuge in Mutitiand Ngendombihills in Bisesero.The Prosecutorfurther alleges in Paragraph5(d)(v) of theindictment that in 1994Mikaeli Muhimana along with ClementKayishema, Obed Ruzindana, lnterahamweand gendarmes, searched for and attacked Tutsi civilians taking refugein Kabakobwa,Gitwa, Kanyinya and Ngendombi hills in Biseseroarea.

254.The Prosecutor alleges in Paragraph5(d)(vi) of theindictment that on around13 and 14 May 1994Mikaeli Muhimana, Clement Kayishema, Obed Ruzindana,Charles Sikubwabo, Interahamwe, gendarmes, and other civilians participatedinattacks on Tutsicivitians taking refuge on Gitwa/Muyirahills Biseseroarea killing over ten thousand Tutsi civilians.

255.The Prosecutor alleges in Paragraph5(d)(vii) of theindictment that on around28 June1994 Mikaeli Muhimana in the companyof ObedRuzindana luredTutsi civilians who were injured in thecourse of attackson Tutsi civilianstaking place throughout Kibuye prefecture to comeout of their hidingplaces in orderto receivemedication. After the Tutsi had corne out fromtheir hiding places Mikaeli Muhimana and ObedRuzindana brought armedattackers, including Interahamwe, gendarmes and soldiers and attacked theTutsi civilians killing over two thousand and injuring one thousand or so others.

A Summarvof theEvidence Presented b~ theProsecutor 256.In supportofthe above-mentioned allegations, theProsecutor relies on the evidenceof witnessesBG, BI, W, AW, BB, BU, BC, BH and AP. In that regard,the Prosecutor offers no evidence inrelation tothe faetual allegation in Paragraph5(d)(iii) ofthe indictment.

257.In addition,the Prosecutor also relies on evidenceof all Prosecution witnesseswho have testified insupport of thefactual allegations insupport of CountsIII and IV asoutlined in paragraphs6(d)(i-iii) and7(d)(i-iii) Indictmentand as discussedinChapters Five and Six ofthe instant brief.

Wimess BG

258.Witness BG testifiedthat having survived the attack on Tutsirefugees at theMungonero Complex on 16 April1994 she fled to Gitwahill and later to thearea of Bisesero.254 Witness BG testifiedthat she saw the Accused on

254Sec page 36 transcripts of 5 April2004

58 severaloccasions in Bisesero,during attacks. According to witnessBG, the Accusedand the other assailants "’had corne to kill.They did not corne to savelives. ,,2»5

259.Witness BG testifiedthat around 3.30 PM on 22 April1994, a groupof Interahamwe,militiamen led by the Accused,discovered Witness BG and eightother refugees intheir hiding place. In thatregard, Witness BG testified thata notoriousInterahamwe2»6militiaman by thename Mugonero requested thatthe Accused hand Witness BG to himin orderfor him to rapeher. 2»7She testifiedthat the Accused granted Mugonero’s request, and the latter took her awayto hishome whilst the other women who had been captured were killed inthe presence of theAccused who allegedly did nothing to preventthe attack upon258 them.

260.Witness BG furthertestified that while she was detained at thehome of theInterahamwe militiaman called Mugonero she saw the Accused at thesaid locationon 24 April1994. In thatregard, Witness BG testified tohaving heard theAccused urge Mugonero to retumto Biseserowith him because there were stillmany Inyenzi’s there. 2»9The witness further testified tohaving heard the Accusedurge Mugonero to rallya lotof peoplein orderfor them to organize an26°attack in Bisesero.

261.Witness BG testifiedthat having managed to escapefrom Mugonero’s house,she retumed to seekrefuge at Bisesero.She testified that whilst at Bisesero,she saw the Accused on severaloccasions. She testified that the Accusedwas leadingattacks. According to WitnessBG, he was like"a commanderof an armywho was encouraging his troops ¯., 261

WitnessBI

262.Witness BI testifiedthat having survived the attackat the Mugonero Complexon 16 April1994, he fledto theBisesero area to seekrefuge. He testifiedthat sometime in lateApril 1994, while at the Gitwa primary school in KazirandimweCellule, he sawthe Accused in thecompany of severalother assailants,262 participating inan attack on Tutsi refugees.

263.Witness BI testifiedthat the attack at KazirandimweCellule started around 9 AM andlasted until about 5 PM.263 In thatregard, the witness testified to havingseen the attackers arrive in a convoyof vehiclesfrom the direction of Gisovu.The witness testified that the Tutsi refugees decided to confront the

2s5See page 37 transcriptsof5 April2004 256See page 37 transcriptsof5 April2004 2»7See page 38 transcripts of 5 April2004 258See page 40 transcripts of 5 April2004 2»9See page 2 transcriptsof6 April2004 26oSee page 2 transeriptsof6 April2004 26~See page 4 transcriptsof6 April2004 z~2See page 10 transcriptsof30 ~ April2004. I11 263Seepage 11 transcriptsof 30 Apri12004.

59 saidattackers before they reached the schoolwere many children and woundedpersons had sought refuge.

264.Witness BI testifiedthat the refugees met the attackers on Kidashyabill, whichwas locatedon the borderbetween Gisovu and Gishyitacommunes. Thewitness testified that during the said attack, the assailants split into two groups,one ofwhich was that ofthe Accused. Witness BI furthertestified that theAccused and his group then surrounded the said hill in orderto attackthe refugeesgathered therein. The witness testified that it was at that point that he identified264 the Accused amongst the attackers.

265.In that regard, Witness BI testified that attackers were located at a distance of between30-50 meters from him and that the refugees were constantly on themove defending themselves against the said attackers. 265In addition to the Accused,Witness BI testifiedthat he recognizeda soldier called Uzia Karibana,Kanyabungo and lais two sons, Nyiringango,Ndayisaba, Nyamuhanga,Minister Eliezer Niyitegeka, Jerome Ntakirutimana and Ndimbati,266 asbeing present amongst the attackers at Gitwa Primary School.

266.Witness BI testifiedthat about four or rivedays aller the Gitwa primary schoolattack, 267he sawthe Accused again in an attackat Kanyinyahill in UwingaboCellule, Bisesero Secteur. 268In that regard, Witness BI testified thatthe attackers chased the refugees throughout the day and at about 2 PM at a hillwhere they eould see Nyakiyabo hill, he sawthe Accused and Gisambo rape one Mukasine.269 He testifiedthat thiswas around3 PM in the aftemoon.27° The attackerschased the refugeesand whenthey reached Nyakiyabohill, the witness hid in a bushfrom where he observedthe Accused and271Gisambo seized Mukasine and rape her.

267.Wimess BI testifiedsaw the Accusedin mid-Mayat Kanyinyahill in Bisesero.He testified that the Accused arrived in a vehiclewith a handfulof soldiersat theback of thevehicle and parked 30-40 meters from where the refugeeswere. He testifiedthat after the vehicle was parked, the Accused askedthe refugees to gocloser to him, to which they refused.

268.The Accused then addressed the refugees saying, "’Did you recognize us ?" to whichthe elderlyrefugees said they did hot.The Accusedthen said, "’Listen,weare coming to reassure you, to tellyou that there will be no more problems.Goand gather ail the sick people and the fugitives, let us meet at Mubugaschool, and we aregoing to provideyou with food and medicine. "

264Seepages 10/11 transcripts of 30 ~ April2004. 26»Seepage 11 transcriptsof 30 ~ Apri12004. 266Seepage 11 transcripts of 30 ~ April2004. 267Seepage 12 transcriptsof30 ~ April2004. Note that four or rive days after the end of April1994 situates the Kanyinya hill rape and murderof Mukasinein earlyMay 1994. See also page 56 transcriptsof30 April2004. 268See page 12 transcriptsof 30 ~~ Apri12004. 249Seepage 12 transcriptsof30 ~ April2004. 270Seepage 12 transcriptsof 30 ~ Apri12004. 271Seepage 13 transcriptsof 30 ~ April2004. Refer to Prosecution Exhibit P2 onpages ......

60 269.The Accused then left in thevehicle in whichhe hadcorne. 272Witness BI testifiedthat the next day they did not go to MubugaPrimary School located in theBisesero area as requestedbecause they knew it wasa trapto gather themin one place and kill them easily. 273Witness BI testified that, instead of goingto MubugaSchool they headed for Muyira hill in Bisesero.

270.Witness BI testifiedthat around 8 AM,he meta largegroup of assailants at Kucyapa,274 who includedthe Accused,Charles Sikubwabo, Eliezer Niyitegeka,Vincent Rutaganira, Alfred Musema, Ntakirutimana, Kananira andmany other attackers. Wimess BI testified that on thebasis of the different accentsthe attackers had, it wasclear that they came from different parts of Rwanda.275

271.Witness BI testifiedthat a large-scaleattack was launched on theTutsi seekingrefuge on Muyirabill, leaving hundreds of themdead and wounded. WitnessBI testifiedthat the Accused was armed with a gunand that he saw himuse it in thecourse ofthe attack. 276Witness BI wimessed a similar attack on Muyirahill the next day. He testifiedthere were as many attackers n this dayas therewere the previous days.

272.He testifiedthat he sawthe Accused arrive, about 30 metersaway, as the refugeeswere trying to evacuatethe wounded and goingto burythe dead fromthe pervious day’s carnage. Describing the death toll of theattacks, witnessBI said,"’many people fell at thisplace and the bodies formed a sort ofbarrier that prevented water from flowing, and the little river that was there becamechanged into a riverof blood. ’" 277

WitnessBH

273. WimessBH left MugoneroComplex around midnight on 16 Apriland fledto Bisesero hills. 27sHe testified that he sawthe Accused again on 13 and 14 May1994 at Muyirahill in theBisesero area. 279 In themoming of 13 May 1994,Witness BH andscores of otherTutsi refugees were seeking refuge on Muyirahill. He testifiedthat armed attackers who came on foot,in buses, lorries28° and other vehicles, suddenly surrounded them.

272Seepage 17 transcriptsof 30 ’h April2004. 273Seepage transcripts of30 t~April 2004. 274Kucyapain Kinyarwandameans a sign.This place is invariablyreferred to as Kucyapaand is locatedat theGisovu/Gishyita crossroads.Theplace is depictedon 275See page 18 transcripts of30 th April2004. 276Seepage 19 transeriptsof 30 ~ April2004. 277Seepage 19 transcriptsof 30 ~ Apri12004. 278Seepage 12 transcriptsof 8 April2004. For an outlineof Biseseroarea see pages K0286173 to K0286179of theProseeution Exhibitsbundle Prosecution Exhibit P2. 279See page 43 transcriptsof8 April2004. On page43 oftranseripts of 8 April2004, BH clarifiesthat 13 May1994 was a Fridayand 14a Saturday. 2s0See page 13 transcriptsof 8 April2004. Describing the number of attackershe saw on 13May at Muyirahill BH states,"It’s as if theentire Rwandan population had given themselves a rendezvous at Bisesero until Saturday (14 May) at 2 pro."See page 44 lines & 6 ofthetranscripts of8 April2004.

61 274.Wimess BH testifiedthat he recognisedthe Accused, Charles Sikubwabo, ClementKayishema and Obed Ruzindana amongst the attackers. He testified thathe wasable to recognisethe Accused in particularbecause he hadknown himbefore and that on thatmoming they were separated from each other by only a streamwhen he saw him disembarkfrom the Gishyitacommune vehiclein whichwas Charles Sikubwabo as well. 281The witness testified that he sawthat the Accused had a gunand that he usedit in thecourse of the attacks.282Witness BH testifiedthat hundreds of civiliansand scores were woundedon Muyirahill as a resultofthe attack that day.

275.Witness BH testifiedthat he wasstill on Muyirahill on 14 May,as he had nowhereto mn to.283 Around8 AM manyattackers went back to Muyirahill "tofinish the work that they had begun. ’’284The witness testified that te attackersincluded the Accusedwho camewith Charles Sikubwabo in the GishyitaCommtme vehicle again, along with many Interahamwe. Others he could recognizewere Obed Ruzindana,the Conseillerof Mubugaand ClementKayishema. He testifiedthat the attack started around 8 AM and went285 on untilaround 2 PM resultingin numerous deaths and injuries.

276.Witness BH testifiedthat in thecourse ofnumerous attacks in Biseserothe refugeessought refuge in varioushills in Bisesero,including Nyarutovu hill, notfar from Muyira bill. While at Nyarutovuhill they were able to secthe Accused’sbouse down the valley in Gishyitacentre, and what was taking place.BH saw vehiclesparked near the Accused’sbouse, and attackers, includingInterahamwe, coming286 from the Accused’s residential area.

277.Witness BH testifiedthat he saw the Accusedagain in June1944. The witnesswas at Gitwahill close to the Mubuga/Gisovuroads junction in Biseseroarea. He sawthe Accused corne in a vehiclewith Charles Sikubwabo andObed Ruzindana, and stop nearby. The witness heard the Accused address therefugees telling them to gatherthere the next Monday as he wasgoing to bringthem food, medicines and tents.

278.Wimess BH testifiedthat he andthe other refugees knew that the Accused wasdeceiving them; he believedthe Accused was trying to lurethem to come in theopen so thathe couldfinish them off in theopen easily. Contrary to whatthe Accusedhad promised,and in supportto whatwitness BH had surmised,there was a bigattack in which,the Accused Obed Ruzindana and Charles287 Sikubwabo participated, on the Monday that followed.

2s~Secpages 12 & 43transcripts of 8 April2004. 285Secpage 12 transcriptsof 8 April2004 283Seepage 13 transcriptsof 8 April2004. 284Secpage 14 transcriptsof 8 April2004. 28sSecpage 14 transcriptsof 8 April2004 286Secpage 44 transcriptof 8 April2004, Witness BH statedthat he couldhOt see Mikaeli Muhimana’s residence while he wasat Muyirahill (see page 52 lines13 to 17 transcriptsof .8 April 2004) He couldonly sec Mikaeli Muhimana’s residence on the occasions hesought refuge at Nyarutovuhill (sec page 52 lines33 to35 ofthe transcripts of 8 April2004 and page 53 lines 1 to 4). 287Sec page 16 transcripts of 8 April2004.

62 WitnessAP

279.Witness AP testified that in thelatter part of April or earlyMay, after she hadspent a monthin Bisesero,28gshesaw the Accused,accompanied by a communalpoliceman aboard a vehicleat about2 PM at Kanyinyahill promisingto comewith white people who would give food and drugs to Tutsi refugeesifthey assembled the next day.

280.She testified that a certainRuzindana 289was one of therefugees who met theAccused and his group at thetime. 29°Witness AP testifiedto having seen theAccused in dailyattacks in Biseserountil she was wounded sometime in May.291 WitnessAP testifiedthat she had knownthe Accusedbefore the eventsof 1994as a Conseiller,family friend and neighbor. 292Witness AP identifiedtheAccused in court.293

WitnessW

281.Wimess W testifiedthat on the 11th of Aprit1994, he saw theAccused duringthree separate attacks on Tutsirefugees at the Kiziba traEng centre, Nyarutovucellule and the areaof Ngendombi.Witness W testifiedthat followingan attack on Tutsi refugees at Kiziba,he andother refugees fled to Nyarutovucellule in the area of Bisesero.

282.While in Nyarutovucellule, the witness testified that he sawthe Accused shootingat people.294The witness testified that from Kiziba was a 15 minutes walkto Nyarutovu.295 WitnessW testifiedthat on thesame day he moved from Nyarutovuto Ngendombiwhere there was alsoan attackon Tutsi civiliansinvolving the Accused and others. The witness further testified to havingheard the Accused at Ngendombisay to Interahamwemilitiamen that, whoever296 would kill Kabanda a TutsiBusinessman, would be compensated.

283.Witness W testifiedthat approximately one weekafter having seen the Accusedparticipate in attackson Tutsirefugees at Nyarutovuand Ngendombi,he sawthe Accused participating in attacks on Tutsirefugees locatedat Uwingaboand Gitwa cêllules, 297in Bisesero,where he alsohad soughtrefuge. 298The witness testified that he firstsaw the Accused at Gitwa.

288See page 35 transcriptsof30th March 2004. OEs9The Prosecution submits that witness AP meantRusanganwa, which is thename given in herwitness Statementof 3 fa February2000 at pages26-28 of the witness bundle. 290See page 35 transcripts of30th March 2004.

291Seepages 12113 transeripts of31 st March2004. 292Seepages 24/25 tmnscripts of 30~ Match2004. 293Seepage 38 transcriptsof30 ~ April2004. 294Seepage 9 transcriptsof 27 April 2004 29»See page 10 transcripts of 27 April 2004 296See page 9 transcriptsof27 April2004 297See page 11 transcripts of 27 April2004 298See page 11 transcripts of27 April2004

63 284.Witness W furthertestified that when he sawthe Accused, he waslocated in a milletfarm above a roadfrom where the Accused was located. Witness W testifiedthat the Accused was armedwith a longgun andwas dressedin civilianclothing. 299He testifiedthat the Accused and other attackers had travelled3°° tothe area on foot.

285.Witness W furthertestified that he saw the Accusedwith bourgmestre CharlesSikubwabo and other assailants shooting at Tutsirefugees. 3°IIn that regard,the Witness testified that from his position, upon a hill3°2,he was able to observethe Accusedand otherassailants on the roadand belowfor between3°3 15 to20 minutesat a distanceof between20-50 meters.

286.Witness W testifiedthat approximately onehour after the said attack, he saw the Accusedagain at Uwingabo,shooting at Tutsirefugees. 3°4 He testifiedthat he onlysaw theAccused for a few minutesbefore he (the witness)left the areawith other refugees to seekrefuge in theMuyira forest.3°5

287.Witness W testifiedthat on Fridaythe 13th of May 1994,he saw the Accused3°6 during an attackon Tutsion Gititihill in thearea of Bisesero. WitnessW testifiedthat he specificallyremembered this date because: "On thatday manypeople were killed". 3°7The witness testified that on 13 May 1994,3°8 the assailants came to thearea of Biseseroin ONATRACOMbuses.

288.The witness testified that he sawbetween eight to tenbuses parked at an areacalled Kucyapa, which was on theborder between Gishyita and Gisovu communes.309 He describedthe 13 May attack,as a bigattack. He further testifiedthat some of the attackershad comefrom Rutsiro commune in Kibuye.The testifiedthat the Interahamwemilitiamen were armed with traditional3a° weapons and guns and had been well trained.

289.Witness W testifiedthat while he wasrtmning away from the Accused and otherassailants, hesaw the Accused shoot at his14 or15-year-old sister at a location31~ called Gititi hill in Gitwa cellule, Bisesero secteur, using a pistol. He testifiedthat his he wasable to recognizeMika as havingshot his sister

299Seepages 13/14 transcnpts of 27 April2004 300Secpage 14 transcriptsof27 April2004 30~Secpage 13 transcripts of27 April2004 3o2Seepage 14 transcripts of27 April2004 3o3Secpage 13 transcripts of27 April2004 304Seepage 14 transcripts of 27 April2004 305Secpage 15 transcriptsof 27 April2004 306111cross-examination thewimess specified that on thatday, while fleeing the attacks, he morefrom Gitwa hill to Muyirahill then to Matababill and Gititi, where he sawthe Accused 307Ibid 308See page 16 transeriptsof 27 April2004. Witness deseribed ONATRACOM as thetransport corporation. 309lbid 3molbid 3H Secpages 19/20/22 transeripts of 27 Apri12004

64 becausehe was in frontof the other attackers. 312He testifiedthat the accused wasdressed in civilianclothing.

290.Witness W testified that the incident occurred in daylight between 2 and 4 PM.The witness testified that he wassituated approximately 20 meters away fromthe Accused when him shoot at hissister.313The witness testified to seeingseveral other Tutsi refugees die as a resultof the said attack.

291.Wimess W furthertestified that during the said attack, conseiller Vincent Rutaganiraabducted his brother and that he neversaw him again. Witness W testifiedthat the day after this attack, the buses retumed with Interahamwe militiamenbut: "there were no longerany refugees on Muyirahill, as the refugeeshad been killed" 314.

292.Wimess W testifiedthat at the beginningof the monthof June1994 he sawthe Accused at thecassterite mine situated at Nyiramurego,where many refugeeshad soughtrefuge. The witnesstestified that the Accusedwas wearinga shirt on whichhe could see the colours of theMRND political party and315a capbearing the colours ofthe CDR political party.

293.Witness W testifiedthat the Accusedand Ruzindanafound them at the saidlocation following which they shot at the refugees located therein. During thisattack, Witness W testifi ed that he saw the Accused kill a Tutsibaby girl by throwingher against a stonef 16The witness testified that the baby was the child317 of Nsengayireand Katherine Mukarugwiza who were Tutsi.

294. WimessW also testifiedto seeinga man calledRuzindana who the witnessdescribed asa trader,arrest young girls. The witness testified that the Accusedbrought two of them,called Immaculee and Beatriceand aged between18-20. 318,on theroad following which the assailants cut off their breasts319and inserted sticks into the private parts ofthese women. Witness W testifiedthat he sawRuzindana kill the two girls in thismanner in the presenceof theAccused 32o The witness testified that the others girls were killedin the mine 321.Witness W testified that he witnessedthis event from a bushwhere he was hiding.322

295.Witness W testifiedthat he sawthe Accusedagain at about10.0 AM on oneday at theend of themonth of June1994, just before the French soldiers

322Sec page 20 transcripts of 27 April 2004 323Sec page 20 transcripts of 27 April 2004 324lbid 32~Sec page 25 transcriptsof27 April2004 3~6Sec page 23 transeriptsof27 April2004 327See page 24 transcriptsof 27 Apri12004 32sSee page 25 transcriptsof 27 Apri12004 329See page 24 transcripts of27 April2004 320See page 26 transcripts of 27 April2004 32~Sec page 25 transeripts of 27 April 2004 322Sec page 24 transcripts of 27 April 2004

65 arrivedin the area. He testifiedthat on that occasion, hesaw the Accused at Gitwabill firing at Tutsi refugees who were trying to flee the area.

296.Witness W further testified that approximately 4 hours later 323, he sawthe Accusedagain at Uwingabo with soldiers at theback of a vehiclebelonging to MinisterEliezer Niyitegeka. The witness described the car as ToyotaStout, whichwas whitein colour. 324 The witnesstestified that he had known MinisterEliezer Niyitegeka prior to thatday as hehad seen him corne to visit his parentswho incidentally, lived close to thewitness. 32»The witness testifiedthat on thatoccasion, he saw the Accused and others firing at Tutsi refugeesgathered on a bill.326The witness testified that he washiding on a pinustree when he witnessedthe saidevent. Witness W successfully identified327 theAccused in Court.

WitnessAW

297.Witness AW testifiedthat he wasa residentof theBisesero area in April 1994.328He testified that on 8 April1994, Witness AW went to seekrefuge at Nyarutovu329 hill.

298. Around11 ana WitnessAW saw the Accusedand CharlesSikubwabo, accompaniedby riveInterahamwe and policemenattack refugees who were seekingrefuge on the hill. The witness testified that he saw the Accused arrive in a whiteToyota vehicle 33°that belonged to GishyitaCommune, park at Kizibatrading center. Witness AW testifiedthat from Nyarutovu hill to Gishyitatown is a 30 minutes’walk and that Kiziba Trading Center is located betweenNyarutovu hill and Gishyita town.TM

299.Witness AW furthertestified that in thatvehicle were Gishyita communal policemen:Boniface, Rwigimba, Munyansanga and Ruhindura,whom he had knownbefore that day. 332Witness AW testified that at a distanceof about50 meters,he sawthat the Accused, Charles Sikubwabo and the policemen were armed333 with guns and grenades.

300.Witness AW testifiedthat he thensaw the Accused lead an attackin which theattackers, numbering about 3,000,TM killedhundreds of Tutsicivilians

323Seepage 27 transcriptsof 27 April 2004 324Secpage 26 transcriptsof 27 April 2004 325Seepage 27 transcriptsof 27 April2004 326Seepage 26 transcriptsof 27 April 2004 3i7Seepage 28 transcriptsof 27 April2004 328Seepage 5 transcriptsof 14 thApril 2004. 329AWtestified that after 7 April1994, he andother refugees spent the days hiding in forests.Sec page 5 transcriptsof14 April2004. 330Seepage 7 transcriptsof 14 th April2004. The witness had known the vehicle before he sawit on 8 April1994 as belongingto Gishyitacommune as it wasused to transportthe bourgmestre and other officials of thecommune. 331See page 6 transcriptsof 14t~ April 2004. 3»2See page 7 transcriptsof 14 « April2004. See also pages 42/43 transcripts of 14 ~ April2004. In cross-examination,Witness AW describedBoniface as bothCommunal treasurer and policeman, Munyansanga as a policemanwho originated from Bisesero secteur, andRuhindura as a policemanwho originated from Musenyi secteur. 333See page 7 transcriptsof 14 ~ April2004. 334See page 8 transcriptsof 14 ~ April2004.

66 includingBirara, Rwakayilo, (Rwa) and Gasana. 335In thecourse ofthe attacks thewitness heard,the Accused exhort the killers by tellingthem, through a megaphonethat, You must kill them (the [nyenzi) 336. You mustexterminate themand get them out of the forests. "337 The338 attack ended around 4 pm.

301.In thatregard, Witness AW testifiedthat he saw the Accusedon a Saturdayat Kanyinyahill, which was located about 20 minutes’walk from Rugonahill. On thatday, the witnesstestified that the Accused,Obed Ruzindana339 and two soldiersarrived in a red vehiclethat had been requisitioned34° froma trader.

302.The witness further testified that the Accused who was situated on the roadabout rive meters away from the refugees, 341addressed the refugees as follows"’How many Tutsis are here?" The Tutsi refugees replied that ail of themhad been killed. Witness AW thentestified that the Accused asked them whetherthere were any handicapped persons. The refugees said that there weresome. Then the Accusedasked the refugeesto "assembleon Monday (as)(t)he Red Cross (would) bring drugs and assistance. 342

303.Witness AW furthertestified that the Accused asked the refugees whether theyknew who was attacking them, and how many Tutsi refugees were still alive.343 Although the refugees were scared to go nearthe Accused as hehad takenpart in previousattacks against them, they went near him because they weredesperate; when he asked to talkto themthey approached him.

304.Wimess AW furthertestified that, as predicted,the followingMonday, whichhe describedas the13th or 14thMay 1994, the Accused returned to Biseseroin a convoyof attackers and participated in killing of several Tutsi refugeeson that day.344In thatregard, Witness AW testified that instead of bringingdrugs and other relief supplies, the Accused returned to theBisesero areaand participated in an attackon Tutsigathered at Muyirahill. He describedthe attackhas havinginvolved about 3,000 assailants who had travelledto Bisesero in eighttrucks and buses while other attackers came on foot.

335See pages 8 & 45 transcriptsof 14 « April2004. In cross-examination,Witness AW amplifiedhis statement by stating that Birara, Rwakayiloand Rwagasana were peasants and were his Tutsi neighbors. 336See page 7 transcriptsof14 m April2004. 337See page 5 transeriptsof14 m April2004. 338See pages 6 & 42 transcriptsof 14 April2004. Asked m cross-examinationwhyMikaeli Muhimana was broadcasfing through a megaphone,wimess AW said;"He is theone who was holding the megaphoneand he hadthe right to givethe message. He wasthe Conseillerof Gishyita and he was an influentialfigure amongst the lnterahamwe. ’" 339Wimess AW describedObed Ruzindana as a traderwho did business in Kigalitown and Kibuye prefeeture. 340Seepage 14 transcriptsof14 m April2004. 341Seepage 15 transeriptsof14 m April2004. 342Seepage 14 transcriptsof 14 th April2004. Wimess AW amplifiedhis testimony in eross-examination(onpage 54 transeriptsof 14 April2004) by statingthat this event oecurred between 10 and14 May 1994. 343See page 14 transcriptsof14 th April 2004. 344See page 16 transcriptsof14 th April 2004.

67 305.Witness AW testifiedthat following an ~/ttackon Tutsirefugees at Kanyinya,he sawthe Aceused again a coupleof dayslater at Muyirahill, in Bisesero.He testifiedthat on 13 May1994, while seeking refuge at Muyira hill,he sawmany attackers, who included the Accused, Vincent Rutaganira, Obed Ruzindana,Aloys Ndimbati, Alfred Musema, Obed Ruzindanaand otherCounseillers of Secteurs corne with Interahamwe inbuses, trucks and on footfrom different directions, armed with guns, grenades, machetes and sharpened345 sticks.

306.Witness AW furthertestified that the Accusedwas armedwith a gun. WimessAW testifiedthat many refugees were killed in the attack that ensued, from6 AM to 6 PM.346 WitnessAW testifiedthat the following day, 14 th May 1994,a groupof attackers,who included the Accused, Alloys Ndimbati and AlfredMusema retumed to Muyirahill and launched another attack. 347

307.He testifiedthat the attackers came in vehicles,which they parked at Kizibaarea and proceeded uphill to flush out the refugees. 348He testifiedthat hiswife and six children were killed during the attacks on Bisesero,349but he didnot know who killed them. 35°He testifiedthat his wife was killed in May 1994351 while his children were killed much earlier.

Wimess BB

308.Witness BB testifiedthat having failed to repelthe attackers who had launchedan attackat Kiziba,he and anotherman namedRwakayilo ran towardsNgendombi hill, where the attackerspursued them. 3»2Witness BB testifiedthat when the refugees reached Ngendombi, which was located about halla kilometerfrom Kiziba, he sawthe Accused throw a grenadeand shoot ataman called Musherefu 353while another attacker called Rwigimba shot at a mancalled Assiel Rwakayilo. 354Witness BB testifiedto havingseen the Accusedshoot Musherefu from a distanceof about20 meters.35»He testified thatRwigimba and the Accused were the leaders of thesaid attack and if they hadnot been armed with guns, the group of refugeeswould have repulsed the attackers356 using stones.

34sSee page 16 transcriptsof14 th April2004. Witness AW stated in cross-examination(seepage 56 transcriptsof14 April2004) that therefugees in Biseseromet at Muyira hill almost daily to find out the situation regarding attackers. Muyira hill was the highest point inBisesero and it was here that they could easily see the position of attackersand take the necessary precautionary measures. 346See page 17 transcripts of14 thApril 2004. 347Seepage 17 transeripts of 14 ~ April2004. 348Seepage 17 transeriptsof14 ~ April2004. 349Seepage 22 transcripts of 14 « April2004. 3»0Seepage 18 transcriptsof14 ~ Aprit2004. 351Seepage 21 transcripts of14 « April2004. 382Seepage 5 transcriptsof16 thApril 2004. 3s3Seepages 19/20 transcripts of 16 ~ April2004. 3s4Seepage 18 transeripts of 16 ~ April2004. 355Seepage 6 transcriptsof16 uaApril 2004. 3s6Seepage 5 transcriptsof16 thApril 2004.

68 309.Witness BB testifiedthat at Ngendombi,the Accusedwas locatedat a distanceof only20 metersfrom where the witness and his group were hiding whenhe threwthe grenade. He testifiedthat "... we saw him (Mika) bring out somethingthat had theshape of a sharpenedstone... 357Subsequently, we notedthat he hada grenadewhen he tookit offhis belt, when he arrivedat Ngendombi.’" 358

3 10.Wimess BB furthertestified that the grenade thrown by theAccused left a numberof peopledead. The victims the wimessrecalled included Nguruso, Camille,Ndahimana and anotherman thatwas nativeto Musenyi.359 He testifiedthat he knewCamille was a residentof Kizibawhile Ndahimana’s parentswere his neighbors. 36°Camille and a certainMusherufu died instantly whileNdahimana was initiallywounded and was laterfinished-off with machetes.361

3 11.Wimess BB testifiedthat after seeing the Accused on Ngendombihill, he andlais neighbours took their wives and children to Muyirahill, about four kilometersfrom Ngendombi, where they could organize a resistance.362On one occasionat about9 AM,Witness BB sawthe Accused leading attackers who carriedtraditional weapons at Kigarama,a 15 minutes’walk from Muyira.

312.At Kigarama,the attackers captured a young girl who helped the attackers identifywomen who werehiding. The witnessrecognized Mukabitega and Mukalibanje.363 WitnessBB was about50 metersacross a streamwhen he saw Mika Muhimanawearing a black jacketwith a gun slung on his shoulder.364Witness BB testifiedthat ’7 wasable to recognizea certain Kabandaand Sandayiheba.Muhimana was theirleader. He was at the head ofthe assailants. 365

WitnessBC

313.Witness BC testifiedthat she wentto the areaof Biseserowith her husband,children, mother and brothers. 366 At Ngendombihil1367, the witness testifiedthat she saw the Accused leading an attackin whichthe Tutsi men foughtagainst the attackers with stones. She further testified to seeing the Accusedplace a grenadeon theroad, whilst the refugees were pursuing the attackers.The witness testified that the grenade placed on theroad by the

357Secpage 5 transcriptsof16 th April2004. »58Seepage 18 transcriptsof16 ~ April2004. 3s9Secpages 5/6 transcripts of 16 °~April 2004. 360Secpage 6 transcriptsof16 thApril 2004. »6~Seepage 6 transcriptsof 16 °~April 2004. 362Seepage 7 transcriptsof16 ~ April2004. 363Secpages 7/8 transcripts of 16 ~ April2004. 364Secpage 8 transcriptsof 16 thApril 2004. 365Secpage 8 transcriptsof 16 April2004. 366Secpage 40 transcriptsof20 ~ April2004. 367Secpage 42 transcriptsof 20 ~ April2004.

69 Accusedexploded, killing some of theTutsi men who were then overpowered by368the attackers.

314.Witness BC testifiedthat during the course ofthe said attack, the Accused killedWitness BC’s children. The witness tesfified that the Accused started by cuttingthe throat of thewimesses’ eldest child, then eut off the arms of the othertwo. The witness testified that when she regained consciousness, sheand thebaby she was carrying had been cut up.369

315.TO thatend, Witness BC testifiedas follows;"He cut my twohands. He completelycut off one arm (hand) and he hitme withthe machete on thehead andon theshoulder." 370 The witness indicated to thecourt her left arm whosehand was cutoff and showedscars on herright arm. 371 WimessBC furthertestified that the accused used a macheteto kill her children and also caused372 the grievous bodily injuries on WitnessBC herself.

316.Witness BC testifiedthat at about6 o’clockin theevening, she regained consciousnessandround her husband standing over ber.373 Herhusband then tookher to Kigaramain theruins of the house in whichthey lived. She stayed therefor a fewmonths and whenever Hutu attackers round her, they looked on berwith contempt and said, "’Let us do the same to the other ones ". 374

Wimess BU

317.Witness BU testifiedthat he and manymembers of his familyleft for Bisesero376 on thenight of 8 April1994 375 and arrived there on 9 April1994. On arrivalat Bisesero,witness BU testifiedthat they met other Tutsi refugees fromdifferent places. 377Wimess BU testifiedthat he saw theAccused in severalattacks at Bisesero starting with the one in Musasa Cellule in whichhe testifiedto alsoseeing Ruzindana, Sikubwabo, Vincent Rutaganira and other conseillersof Secteurs in GishyitaCommune.378

318.Witness BU furthertestified that he sawthe Accused participating in all theattacks at Biseserobetween April and June 1994.37~In p~articular, he testifiedthat he sawthe Accused during an attack in May1994 on Muyirahill in thecompany ofmany Interahamwe militiamen.38°

368See page 40 transcripts of20 ’h April2004, 369See page 4l transcripts of20 th April2004. 370See page 41 transeripts of20 tu April2004. 371See page 42 transcripts of20 ~’ April2004. 372See page 42 transcripts of20 ~’ April2004. 373See page 42 transcriptsof20 ~ April2004. 374See pages 42/43 transcripts of20 ~~ April2004. 375See page 42 transeriptsof16 th April 2004. 376See page 3 5 transcriptsof16 ~ April2004. 377See page 36 transcriptsof16 « April2004. 378See page 36 transcripts of 16 ~ April2004. 379See page 37 transcripts of16th April 2004. 380See page 37 transcripts of 16 ~ April2004.

70 319.Witness BU testifiedthat he hadknown the Accused for about four years priorto April1994. TM WitnessBU testifiedthat he hadknown Mika as the Conseillerof Gishyita Secteur, as a traderwho deait in coffee382 as wellas fromseeing him on Tuesdayswhen he passedthrough Gishyita on hisway to takepart in the activitiesof the communaldanee group. 383 WitnessBU identifiedtheAccused in court.384

An Analysisofthe Evidence Presented by theProsecutor.

320.The Prosecutor would represent to theTrial Chamber that the adduced by WitnessesBG, BI, W, AW, BB, BU, BC, BH and AP wouldindicate that terrifiedby theescaiating violence in Gishyitaand otherneighbouring communes,many Tutsi civilians, having survived attacks in otherareas scrambledtothe summits ofthe many hills of Bisesero.

321.In thatregard, the Prosecutor would further represent to the Trial Chamber thatTutsi refugees gathered on thevarious hills of Biseserocame from ail overthe region of Kibuye,realising that they would have to unite to survive. To thatend, the evidence adduced by Prosecutionwitnesses indicate that manyof theinitial refugees that sought refuge at Biseserowere survivors of the15 April1994 massacre at theCatholic Parish of Mubuga.Survivors of an attackat theMugonero Complex joined them subsequently on 16 April1994.

322.It is furthersubmitted that the evidence adduced by Prosecutionwitnesses’ revealsa well-organised andbrave resistance by Tutsi civilians kept soldiers, gendarmes,militiamen and local govemment officiais at bay forseveral weeks.In thatregard, whereas the end of Apriland the begirming of May 1994had completed most of theattacks on Tutsiin variousparts of Rwanda, theattacks on Tutsicivilians gathered at Biseserolasted well into the month of June1994.

323.To thatend, it is submittedthat when news of therefugees’ resistance spread,it became a principleofaimost national significance that they should ailbe killed. Severai tactics were employed to deaiwith the refugees. In that regard,some of themost ruthless killers in theregion and beyond were summonedto the areaof Biseseroto eliminatethe Tutsi gathered there. WitnessesAW, BI, BH andAP alsodescribed to theCourt how theAccused and otherswere involved in an elaborateplan designed at luringTutsi refugeesout of theirhiding places under the pretext that would receive medicalaid following which there were attacked by theAccused and others.

324.Severai Prosecution witnesses including W, AW,BI and BH testifiedto havingseen attackers arrive at Biseseroon 13 and 14 May1994 in large 3a~See page 37 transcripts of16 « April2004. 3s2Sec page 42 transcripts of16 th April 2004. 383Sec page 36 transcripts of16 ’~ Apri12004. 384Sec page 40 transcripts of16 ~ April2004.

71 ONATRACOMbuses from as far a field as Gisenyi and Cyangugu prefectures.Even Defence witnesses describe how theywere mobilized by localauthorities in Gishyita to participatein sustained attacks on Tutsi gatheredatBisesero.

325.The Prosecutor would represent to theTrial Chamber that determined to eliminateevery Tutsi in Gishyitacommune, the Accusedand otherlocal authorities,followed these survivors to the severalhills of Bisesero. Prosecutionwitnesses BG, BI, W, AW, BB, BU, BC, BH and AP saw the Accusedand other local government officiais between April and June 1994, leadingand participating inseveral attacks on Tutsicivilians in the many hills of Bisesero.Other Prosecution witnesses whose testimony are discussed under CountsIII and IV testifiedto eitherhaving been raped or havingseen the Accusedand others rape and kill several Tutsi women who sought refuge in andaround the area of Bisesero during this period.

326.The Prosecutorwould represent to the TrialChamber that attacks were launchedwithin the Bisesero area almost on a dailybasis spanning a three- monthperiod. In thatregard, it wasparticularly difficult for many prosecution wimessesto rememberwith any degree of precision,the dates and precise locationof suchattacks. Having said that, it is submittedthat the evidence adducedin thecase would reveal that many prosecution witnesses remember thedate of manyof thelarge-scale attacks during this period. Such an attack waslaunched on 13 and14 May1994 as allegedin paragraph5(d)(vi) of indictmentand describedby Prosecutionwitnesses AW and W. The saine witnesseshad seen the Accused in earlierattacks on Tutsi civilians at Kiziba, Nyarutovuand Ngendombi hills which all within short distances to each other.

327.It is furthersubmitted that the evidence of Prosecutionwitnesses outlined hereinhas to be seenin thecontext that many of theTutsi refugees who gatheredon thehills of Bisesero were indeed not native to the Bisesero area andwere therefore not very familiar with the area itself. In thatregard, it is submittedthat the attractiveness ofthe area of Bisesero tothe refugees atthe rimelay in the fact that the Bisesero area consisted ofseveral hills with wide summitsand whichprovided the saidrefugees with avantage point from wherethey could see the attackers approaching.

328.The Prosecutor would represent to theTrial Chamber that the evidence of Prosecutionwitnesses BG, BI, W, AW, BB,BU, BC, BH and AP was direct, clearand convincing. In that regard, all the witnesses provided the Court with a firsthand account of whatthey had seenand heard. Many described the Accused385 as havingled the various attacks on Tutsirefuges at Bisesero. Othersdescribed him as havingacted as thecommander of an armywho was

3~5See page 8 transcriptsof16 April2004.

72 encouraginghis troops.386[tis further submitted that the totality of the evidenceof theProsecution witnesses describes a consistent pattern of the criminalconduct ofthe Accused between April May and June 1994.

329.Regarding the participation of the Accused during the several attacks at Bisesero,the circumstances under which these witnesses identified of the Accusedas havingbeing present amongst attackers were good. Ail the witnessestestified to havingseen the Accused outdoors in broaddaylight. Manywere able to observehim at relativelyshort distances.

330.It isfurther submitted that ail the witnesses testified to having known the Accusedprior to seeinghim at Biseserobetween April and June 1994 and ail hadno problemsidentifying the Accused in courtten years after the said events. TheDefence Case

331.The Prosecution submits that the Accused does not disputethat several attackson Tutsirefugees occurred in thearea of Biseseroduring the months of April,May and June 1994. In thatregard, Defence witnesses DF, DY, DK andDL alltestified to havingparticipated in attacks on Tutsicivilians gatheredat theBisesero area. Others like Witness DD testifiedto having witnessedattacks on Tutsirefugees in the Biseseroarea. The Defence howeverdispute that the Accuseddistributed weapons to membersof the Hutupopulation at thearea of Biseserobetween April and June1994. The Defencealso disputes the allegation that the Accused participated in attacks on Tutsicivilians gathered in thearea of Biseserobetween April and June 1994.

WitnessDD

332.Wimess DD testifiedto havingleft Mubuga Church at sometime between 4 and5 AM on themoming of 15 April1994387 headed for the Bisesero hills. At Bisesero,he testifiedto havingsought refuge on Muyiraand Kanyinya hills.Wimess DD testifiedto havingwitnessed anattack on Tutsirefugees on Muyirahill on 13 and14 April1994. He testifiedthat there were several attackerswho included Interahamwe, gendarmes and ordinary members of the Hum388population who had arrived at the location in severalvehicles.

333.Wimess DD testifiedto havingidentified bourgmestre Charles Sikubwabo amongstthe attackers.He testifiedthat he saw bourgmestreSikubwabo showingthe attackers how to kill the Tutsi refugees. The wimess testified that Sikubwabowas the onlyperson he couldrecognize amongst the attackers.

386Secpage 4 transcriptsof6 April 2004 387Secpage 16 transcripts of17 August 2004. 388Secpage 13 transcripts of17 August 2004.

73 However,the witness stated categorically, that he didnot see the Accused amongstthe attackers.

334.In thatregard, he testifiedthat had the Accused been present amongst the attackersat thatlocation on 13 and14 May1994, he (Mika)would have been standingbeside the bourgmestre, giving advice to theother attackers. 389The witnessfurther testified that he didnot see the Accused during any of the attackson Kanyinyahill during the same period. 39°Witness DD testifiedthat didnot witness any rape on thehiUs of Biseseroneither could it bavebeen possiblefor any rapes to havebeen committed at te saidlocation based on the391fact that the attackers were too busy killing the refugees.

335.The Prosecutorwould represent to the TrialChamber, that Witness DD hadno reason to singleout the Accused during several attacks that took place at Bisesero.In addition,the Prosecutor would rely on thecomments made regardingthe unreliability of the evidence of WimessDD in relationto the MubugaChurch attack.

Wimess NM6

336.Wimess NM6 testified that he hadknown the Accused since childhood. In thatregard, the wimess testified that he sawthe Accused in Apriland May 1994when he returnedto Gishyitacommune to get someadministrative documents.The witness testified that the last time he saw the Accused before thenwas in 1980.392

337.The witnesstestified that he saw the Accusedno lessthan 15 times betweenthe 8th and the 27th of May1994. Again, the witness at somestage alsotestified that he sawthe Accused everyday excluding Sundays, between the9 and27 May1994. 393The witness testified that he specifically recalled havingseen the Accused on thefollowing dates. 9,13,25 and 27 May1994.394

338.In thatregard, the witness testified to havingseen the Accused at about middayon the9 th ofMay in front of his house. 395 Thewitness testified that he rememberedseeing the Accused on thisdate because this was the first time he sawhim after so many years.396

339.The witnessfurther testified that he saw theAccused thrice on 13 May 1994.The first rime was in themoming outside his house and the second was

3s9Seepage 13 transcriptsof 17 August 2004. »90Seepage 14 transcriptsof 17 August 2004. 39~Seepage 14 transcriptsof17 August 2004. 392Seepage 78 transcriptsof 2 September2004. 393Seepage 2 transcriptsof 6 September2004 394Seepage 80 transcriptsof 2 September2004. 395Secpage 4 transcriptsof 6 September2004. 396Secpage 81 transcriptsof 2 September2004

74 at middayinside his shop and again inside his shop in theevening. 397The witnesstestified that he rememberedthis date because this was the day he receivedthe identity card he hadapplied for since the 9 th of May.398However WitnessNM6 alsotestified that he couldnot remember why he hadgone to Mikashop on thesethree occasions on the13 May.399

340.Witness NM6 testifiedthat he sawthe Accusedin frontof houseon the morningof 25th May.4°° He furthertestified that he rememberedhaving seen theAccused on thisdate because that was theday he receivedhis birth certificateand other documents that he hadapplied for from the commune office.401

341.Witness NM6 testifiedthat he saw theAccused for thelast time on 27 May1994. In that regard, he testified toseeing the Accused at Senani’sbar, whichwas close to the communeoffice. 4°2The witnesstestified that he rememberedhaving seen the Accused on thisoccasion because this was the last4°3 time he saw him. 342.The witnesstestified that he oftensaw the Accusedin the companyof otherswhilst he wasat hisshop. He testifiedthat having trekked some 5 kilometers,he would often go to theshop to takea soda.He testifiedthat sometimeshe wouldgo to thisbar to makea telephonecall. 4°4 Thewimess testifiedthat throughout therime that he had visited Gishyita during the month of May,he did not hearthat any rapeshad beencommitted at the said location.4°» 343.The Prosecutor would represent to theTrial Chamber that the witness had no reasonto keepa recordof thevarious "important"4°6occasions whenhe claimedto haveseen the Accusedduring the month of May 1994.This is particularlyso,as thewitness acknowledged that he thesaid meetings were chance4°7 encounters and had not been pre-arranged.

344.It is submittedthat the said occasions when the witness claimed to have seenthe Accused, where designed to coincidewith many of thedates when prosecutionalleges that the Accused was involvedin attacksupon Tutsi civiliansin variousparts of Gishyitacommune namely the 8, 9 13,25 and27 ofMay 1994. It isfurther submitted that the witnesses’ accounts of thedates ofthe alleged meetings were, for the most part, inconsistent. Inthat regard,

397Secpage 4 transcriptsof 6 September2004. 398Seepage 80 transcriptsof 2 September2004 399Seepage 7 transcriptsof 6 September2004. 4ooSeepages 4/5 transcripts of 6 September2004. 40~Secpage 81 transcdptsof 2 September2004 4o2Secpage 5 transcriptsof 6 September2004; Sec also page 81 Transenptsof 2 September2004. 4o3Secalso page 81 Transcriptsof 2 September2004. 4o4Seepage 6 transcriptsof 6 September2004 «0»Secpage 7 transeriptsof 6 September2004. 406Secpage 79 transcriptsof 2 September2004 «07Seepage 8 transcriptsof 6 September2004.

75 WitnessNM6 claimed to haveseen him in duringthe month of Apriland then changedthat evidence to statethat it wasrather during the month of May.

345.Similarly, the witness claimed to haveseen the Accused on the8 th of May at thecommune office and then changed lais testimony in thatregard and claimedthat it wasrather on the9 th thathe sawthe Accused at thecommune office.4°8 Again,the witness at somestage testified that he sawthe Accused no lessthan 15 rimesbetween the 8 and27 of May1994. 409That testimony was againchanged to factthat he saw the Accusedeveryday excluding Sundays,41° between the 9 and27 May1994.

346.In anyevent, even if theevidence of thewitness were to be believedas truthful,the Prosecutorwould represent to the TrialChamber that the evidenceof thiswitness faUs short of providingthe Accused with an alibi for the9, 13,25 and27 of May1994. In thatregard, the witness testified to havingonly seen the Accusedfor 20 minutesat around9AM on 9 May 1994.411

347.Similarly, on 13 May1994, the witness testified that he sawthe Accused outsidehis housefor about15 Secondsaround 9AM, for between20-25 minuteslater that aflernoon at aboutmidday and for about15 minutes between4-5 PM thatevening. 412On 25 May1994, the witness testified that he onlyobserved the Accused outside his home for a fewseconds at around9 mM.413 On 27 May,the witness testified that he sawthe Accused for only 5 minutesshortly belote 6 pM414andthat he wasnot in a positionto accountfor hiswhereabouts forthe reminder ofthat day.415

348.The Prosecutorwould represent to the TrialChamber that the Gishyita commercialcentre was only9-11 Kilometers from the areaof Biseseroa joumey,which by thewitnesses’ own estimate, would take at a personriding in a carabout 40 minutesto cover.416Based on the above, it issubmitted that it wastherefore possible for the witness to have seen the Accused at the said commercialtenter at a certaintime and for the Accused to stillhave travelled toBisesero and participated inattacks there.

349.Finally, the Prosecutor would represent to theTrial Chamber that it is obviousfrom the testimonyof DefenceWitness NM6 that he had been thoroughlybriefed on theevidence in thecase as allegedby prosecution witnesses.Inthat regard, the witnesses’ evidence that he had not discussed his

,08See pages 78/79 transcripts of 2 September2004 «o9See page 79 transcriptsof2 September2004 4~oSee page 2 transcrlptsof 6 September2004 4u Seepage 8 transcriptsof 6 September2004. 412See pages 12-14 transcripts of 6 September2004; See also page 15 transcriptsof6 September2004. 413See page 14 transcriptsof 6 September2004; Sec also page 15 transcriptsof 6 September2004 4~4See page 14 transcriptsof6 September2004; See also page 15 transcriptsof6 September2004. 4~5See also page 15 transcriptsof 6 September2004. et6See page 10 transcriptsof6 September2004.

76 evidencewith the Defence team prior to histestimony in courtis simply incredible.

350.In thatregard, the witnessadmitted that the DefenceInvestigator responsiblefor recruiting witnesses in theinstant case was indeed his brother.417Similarly the witness admitted that Defence Witness TQ7 was his sister,but denied knowing that she had been called as a witnessin thesaid case.418This information wasnot disclosed to the Court by theDefence either prioror duringthe evidence ofthis witness in chier.

351.The Prosecutor would represent to theTrial Chamber that the evidence of WitnessNM6 does not providethe Accused with an alibifor the period of April,May and June 1994. The Prosecutor would further represent to the Trial Chamberthat the evidence of WitnessNM6 must be treatedas biaseddue to laisrelationship withthe Investigator retained by the Accused. The witness has a clearmotive to give false testimony inthis case.

WitnessAH8

352.Witness AH8 testifiedthat he saw the Accusedabout six timesevery week419 fromround about 13 Apri142°to June1994. The wimess stated that he wouldsee the Accused at variouslocations in Gishyitasecteur as he andhis brotherwere carrying on theirtrading business during the months of April, May and June1994. The witness testified that he wouldsee the Accused between9 and 10 AM in themomings and again in the aftemoonbetween 3 and4 PM.421

353.The witness testified that he andhis brother would travel from Gisovu to Gishyitaon alternatedays, three times every week. The witness testified that therewas no a singleday that he and his brother went to Gishyitathat they did seethe Accused.

4~7Seepage 17 transcriptsof 6 September2004; Sec also Exhibit P83 418Seepage 18 transcriptsof 6 September2004; Sec also Exhibit P84 4t9Secpages 62/63 transeripts of 6 September2004. 420Seepage 59 transeriptsof 6 September2004. 421Secpage 63 transeriptsof 6 September2004,

77 354.The witness testified that on ailthe occasions they went to theAccused home,422 they remained outside on the verandaand neverwent inside. Similarly,the witness testified that all the other occasions when the saw the Accused,he wasail outside his house or strollingwith his son at thetrading centreor at crossroads.423 Thewitness testified that he did not know the name of the wifeof theAccused but that he sawher withthe Accused on lais veranda424 on atleast two occasions.

355.The witness testified that he hadengaged in thebusiness with his brother becausethe schools in Rwandawere on holidaysduring the monthof April 1994.Witness AH8 testified that primary and secondary schools in Rwanda hadclosed for the Easter holidays during the last week of March1994 and weremeant to havereopened during the weekcommencing 12 March2004 butno schoolcould reopen due to theoutbreak of thewar in Rwanda,425 The witnessfurther confirmed that universities inRwanda were also closed at this time.426

356.The witness testified that as at thetime of thePresident’s death, the schoolsin Rwandahad closed for the holidays for about three weeks. The witn~~~further testified that it wascustomary from students who schooled awayfrom home to returnto theirhomes in theircommunes of originduring suchschool holidays. He wasadamant that the schools did not reopen during themonths ofApril, May and June 1994427

357.It is submittedthat the essence ofWitness AH8’s testimony is to provide theAccused with an alibifor unspecified dates in April,May and June 1994. In thatregard, the Prosecutor would represent to theTrial Chamber that WitnessAH8 did not live within Gishyita secteur during April, May and June 1994.In that re§sard, hetestified that his home was a distanceof15 Kilometers fromGishyita.

358.The Prosecutor would further represent to the TrialChamber that the inabilityofWitness AH8 to specify with any clarity, a particular day, location or timewhen he allegedlysaw the Accused in Gishyitasecteur between April andJune 1994, renders his evidence unreliable and as such,he cannotbe held tohave provided the Accused with an alibifor the said period.429

359.Witness AH8 concededthat he was not verywell acquainted with the Accusedand it wasrather his brother that was. In thatregard, the witness concededthat he neverwent inside the home of theAccused, neither did he

422See page 64 transcriptsof 6 September2004. 423See page 65 transcripts of 6 September2004. 4z4See page 71 transcripts of 6 September2004. 425See page 73 transcripts of 6 September2004. 426See page 74 transcripts of 6 September2004. 427See page 68 transeripts of 6 September2004. 428See page 66 transcriptsof6 Septernber2004. 429See page 65 transcriptsof 6 September2004; See also page 68 transeriptsof 6 September2004.

78 knowhow manychildren he had duringthe period.Witness AH8 further testifiedthat he had known the Defence investigator 43°in the case since there wereboth students in Rwanda.He testifiedthat Defence Investigator and himselfwere from neighbouring communes and that they knew each other. 43l Thisinformation wasnot disclosed tothe Court by theDefence either prior or duringthe evidence ofthis witness in chief.

WitnessDF

360.Witness DF testifiedto havingparticipated in attacksin the areaof Bisesero.Inthat regard, he testifiedthat he participated inthose attacks in the companyof othermembers of the populationineluding gendarmes and communalpolicemen. 432The witness testified that prior to thecommence of thesaid attacks, bourgmestre Sikubwabo would often gather the attackers togetherand issue instructions to them as to howthe attacks were to be organized.

361.Witness DF testifiedthat although he wasinvolved in overten attacks withinthe area of Bisesero, hedid not sec the Accused participating inany of thoseattacks. The witness further testified that he wasnot aware that any rapeshad been committed either in thearea of Biseseroor anywhereelse for thatmatter. 433Witness DF did not categorically state that he participatedin attacksat Biseseroon 13and 14 May1994. His testimony that he participated in over10 attacksin thearea of Biseserois reallyneither here nor there. Indeedthe evidence adduced in thiscase would suggest that the attacks in Biseserowere carried out almost on a dailybasis spanning a period of three months.

362.The Prosecutor will represent to theTrial Chamber that for the reasons outlinedearlier in this brief, the evidence of thiswitness is unreliable. The Prosecutorwould represent to theTrial Chamber that Witness DF standsto losenothing by incriminatinghimself in thecrimes charged in thepresent indictment.In that regard, the Prosecutor would submit that the Trial Chamber shouldconsider the evidence ofthis witness with caution and require that it be corroboratedinall material respects. Itis further submitted that in the absence of suchcorroboration, theTrial Chamber should not accept the evidence of thiswitness as proofof the facts outlined inthe testimony ofthis witness.

«30SeeExhibit P85 «3~Seepage 71 transcriptsof 6 September2004. 432Seepage 12 transeripts of elosed session of 30 August2004. 433Seepage 13 transcripts of closed session of 30 August2004.

79 WitnessDY

363.Witness DY testifiedthat he tookpart in attackslaunched in Biseseroon threeoccasions including 13 May 1994when attackers launched a major attackon Bisesero.434 He is currentlydetained at Gisovuprison. It is the witness’testimony that many people were killed on Muyirahill in Biseseroon that day.435Witness DY testifiedthat assailants carne from all over the prefectureincluEng Gishyita.

364.Witness DY gavenames ofthose leading the attack in Biseseroon 13 May 1994as theBourgmestre of Gishyita, Charles Sikubwabo, Vincent Rutaganira and communalpoliceman. He testifiedthat one SamuelRuhindura, a communalpoliceman, and a personcalled Shadrack fi:om Murangara secteur ledthe first two attacks ’they were sent by theburgomaster whowas, in fact, the436overall leader ofthe attacks’.

365.Witness DY testifiedthat the attackon 13 May1994 began at 10 AM and endedat 1PM.Witness DY wasadamant that the Accused did not participate in the13 May1994 attack. In thatregard, Witness DY testifiedthat ’the authoritiesof Gishyitabefore the attack began would and tell us howwe shouldact and how we shouldmove, Mika was not among the authorities’ .437

366.Recounting the first rime he wentto Bisesero,Witness DY statedhe and otherattackers were acting under orders of SamuelRuhindura and Shadrack. On arrivalat Bisesero,Witness DY testifiedthat he andhis accomplices discoveredthe Tutsi who fled to Muyira.He testifiedthat the attackers retumedand advised the bourgmestre that they had discovered a place where there438 were many Tutsi.

367.Witness DY testifiedthat the bourgmestreadvised them to waitfor instructionswhilst he gatheredreinforcements. Witness DY furthertestified thatduring the attack of 13 May1994 the bourgmestre brought soldiers from Cyanguguand Gisenyi armed with guns. He testifiedthat one Nshyinyukiza camefrom the communal office to mobilisemembers of the populationto attack439 Bisesero or riskpunishment.

368. WitnessDY testifiedthat he met with Mubugacounseiller Vincent Rutaganiraand the bourgmestre at Bisesero. Witness DY furthertestified that theauthorities transported thesoldiers in vehicles including two buses, two trucksand the bourgmestre’s Toyota vehicle, which was blue in colour.44°He testifiedthat the attackers metat a placecalled Kitta.

434Sec page 26 oftranscript of6.9,2004. 43»See page 26 paragraph24 transcript of 6.9.2004. 436See page 28 ofelosed session of 6.9.2004paragraph 4-16. 437Sec page 28 of closedsession of 6.9.2004paragraph 27-29 438Sec page 30 of closedsession of 6.9.2004paragraph 4-9 439See page 30 of closedsession 6.9,2004. 440Sec page 30 of closedsession 6.9.2004,

8O 369.Witness DY testifiedthat following introductions by the authorities present,the soldiers started shooting at Tutsiwho were screaming. Witness DY testifiedthat during this attack he wasarmed with a machete.The witness furthertestified that rapes were not perpetrated during the Bisesero attacks and confirmedthat the Accuseddid not participatein the attacksin Bisesero.441

370.He furtherstated that rapes were also not mentioned in Gacacasessions neitherwas theAccused implicated in suchacts. Witness DY wasadamant thatthe killings at Biseserowere instigated by "communalauthorities who askedthem to killand huntTutsis because they were accused of killing President442 Habyarimana.

371.Witness DY testifiedthat he carnefrom a differentsecteur from the Accused.He testitïed that the counseiller ofhis secteur was Bucyana Francois whois currentlyin Gisovuprison on allegationsof having participated in genocide.443He furthertestified that another local authority by thename Mvumabandi,the counseiller of Murangara secteur is currentlydetained on allegationsof havingparticipated in the genocide ’what is more,he has confessed’444. to some crimes

372.Witness DY furthertestified that another local authority, Vincent Rutaganira,thecounselor for Mubuga participated in the said attacks. Witness DY confirmedthat he knewthat Vincent Rutaganira is currently detained here in Arusha.

373.The Prosecutorwill represent to the TrialChamber that Witness DY’s testimonyis unreliable.In that regard, Wimess DY soughtto diminishhis rolein the said attacks and insisted that he was simply a witness to the killing of Tutsicivilians. As faras we candeduce from his evidence, Witness DY between10AM and 1 PM on 13 May 1994just held on to his macheteand stoodwatching other attackers kill Tutsi civilians.

374.Witness DY testifiedthat he was amongsome 300 civilianattackers gatheredat Bisesero.He concededthat he hadno reasonto lookout on the Accusedbut insisted that since the Accused did hot introduce himself he was not44».part of the attackers

375.Similarly, the reasonsprovided by WitnessDY for the absenceof the Accusedduring the saidattacks is ridiculousand for the mostpart, contradictory.Inthat regard, the witness testified that ’it was not necessary

44~Seepage 31 of closedsession 6.9.2004. 442Secpage 32 of closedsession of 6.9.2004paragraph 15-16 443Secpage 33 of closedsession of 6.9.2004paragraph 1-4. 444Seepage 33 ofclosedsession of 6.9.2004paragraph 25. 445Seepage 34 ofclosedsession of 6.9.2004.

81 forthe Accused to havebeen present during the attacks, because ail the counseillersof the secteurswhich made up Gishyitacommune were not present.’446In thesame breadth however, Witness DY testifiedthat Vincent Rutaganira,the counseiller of Mubuga secteur, in Gishyitacommune was one ofthosewho led the said attacks. 447

376.Witness DY latertestified that he didnot know why the Accused did not participateinthe said attacks. Inthat regard, Witness DY testified that he (the Witness)did not spend the night with the Accused so thatthe Accused was hOt’’44able8 to tell him why he did not participate inthe attacks

377.The question then has to be;if everyavailable human resource were called to bearto launchattacks on Tutsirefugees gathered at Biseseroin May1994 fromas fara fieldas Cyanguguand Gisenyi Prefectures, whythen could the conseillerofGishyita secteur have been excluded?

378.The Prosecutor would represent to theTrial Chamber that is apparentfrom theevidence adduced in this case that on the majority ofoccasions, theattacks withinKibuye Prefecture and elsewhere were organized on thebasis of the celluleand secteurs of originof theinhabitants. In that regard, Witness DY confirmedthat François Bucyana. The conseiller of hissecteur was detained inGisovu prison on allegationsofhaving participated inthe genocide.

379.The Prosecutor would submit that it followstherefore that if WitnessDY didnot see the Accused during attacks at Biseseroit musthave been because the Accusedwas not leading the group of attackersfrom the Witness DY’s secteur,but rather another group from Gishyita secteur which included Nyari Kamyabungo,449 Uzia Karabana and Jerome Ntakirutimana.

380.In thatregard, having been shown the namesof someattackers hailed fromGishyita Witness DY was unableto recognizethem as killersfrom Gishyita.45°This clearly shows that Witness DY wouldnot have been in a positionto recognizethe Accused during attacks at Bisesero.

381.In anyevent, the Prosecutorsubmits that Witness DY wasnot familiar withthe area of Bisesero.In thatregard, Bisesero was in 1994,composed of 11 cellules.451To thatend, Witness DY cannotsay with any certainty that he sawwhat ail the killers did hence, his contentions that rapes did not occur in Biseseroshould be dismissed.

446Sec page 28 oftranscript of 6.9.2004 paragraph 34-35. 447Sec Prosecution Exhibit 2 page K-numbered K0286 223 for reference listing secteur counseillers andcellules in Gishyitacommune in1994. 448See page 35 of closedsession of 6.9.2004 paragraph 18-20. 449See page 38 of transcriptof 6.9.2004 closed session, cross-examination. Crossreference with testimony ofprosecution witness BI, page11 of transcnptof 30.4.2004. 450Sec page 38 closedsession of 6.9.2004. 451See prosecution Exhibit 2; pageK-numbered K0208363 listing all the 11 cellules.

82 382. Finally,the TrialChamber’s attention is drawnto the striking coincidencesbetween some of WitnessDY’s accomplices and the evidence adducedduring the Prosecutions case. In thatregard, the name referred as Mugoneroby WitnessDY is alsomentioned by Prosecutionwitness BG as havingbeen an accomplicein the murderof ProsecutionWitness AX’s children452 on 22April 1994 after getting authority todo sofrom the Accused. Similarly,the man calledBurabyo is one of the accomplicescited by ProsecutionWitness AX as oneof the Interahamwemilitiamen sent by the Accusedto summonProsecution Witness AX to thesecteur office where she wasraped by theAccused.453

WitnessDK

383.Witness DK, who is currentlydetained at Gisovuprison, testified that he hasconfessed to thecrimes he committedin Gishyita and Bisesero in 1994.454 In thatregard, Witness DK testifiedthat he wentto Biseseroon three occasionsnamely; 10 and 15 May 1994 and one day in June 1994.The witnesstestified that he was hOt familiarwith Muyirahill in Bisesero.455WitnessDK testified that on the firstoccasion he wentto Bisesero,his group killed three people. 456The witness mentioned Charles Sikubwaboas oneof theleaders of theassailants in the Bisesero area. The wimesscould hardly recall the names of the other assaitants butstated that the Accused457 was not amongst them.

384.Witness DK testifiedthat prisoners in Gisovuprison often held Gacaca sessionswhere several detainees confess to theircrimes. He testifiedthat in noneof thosesessions has any person ever mentioned the Accused as having participatedin any crimesin Bisesero,Mubuga Church and the Mugonero Complex.458The witness however testified that he wasa witnessto onerape in Gishyita,relating to a youngman who has not yet been arrested. 459The wimesstestified that no otherrapes were mentioned during the prison’s Gacaca46° sessions.

385.The Prosecutor would represent to theTrial Chamber that the essence of thetestimony of WitnessDK wasto showthat the Accused did not participate in attacksin Biseserobetween April, May and June1994.Witness DK’s testimonythat he hadconfessed to havingparticipated in several attacks at Biseserois unreliable.In that regard, Witness DK wasshown his confession

452SeeBG’s testimony on page40 of transcriptof 55.4.2004. 453Seepage 47 of transcriptof31.3.2004. 4»4Secpage 30 transcripts of 8 9.04 4»5Seepage 31 transcriptsof 8.9.04. 4»6Seepage 34 transcripts of8.9.04 457Seepage 32 transeripts of8.9.04 4»8Seepage 35 transcriptsof8.9.04 459Secalso confession statement of Defeneewitness DK dated12 November2002, Prosecution exhibit P 91 to thesame effect. 46oSeepage 36 transcriptsof8.9.04

83 statementdated 12 November2002, 461 whichshows he committedail the crimesMara secteur, his secteurof originand one crimein Murangara secteur.462

386. WitnessDK concededthat neitherhis confessionstatement of 12 November2002463 nor his interviewbefore the Prosecutor of Kibuyeof 1 August2003464 mention the fact that he ever went to thearea of Bisesero, let alonethat he committedcrimes there. 465 Thewitness claimed, as an after thought,that he madeanother confession on 31 January2004 in whichhe mentionedthe Bisesero crimes. 466 TheProsecutor would represent to the Trial Chamberthat Witness DK is thereforehOt in a positionto saywhether the Accusedparticipated attacks in Bisesero.

WitnessDL

387.Witness DL is currentlydetained at theGisovu prison. In thatregard, the witnesstestified that he hadconfessed to havingparticipated in attacks on Tutsirefuges in the Biseseroarea. Witness DL furthertestified that bourgmestreSikubwabo had rounded up everyonein hissecteur with the help of policemenand that he andothers had been compelled to participatein the saidattacks.

388.Witness DL testifiedthat the assailants in Biseserowere equipped with clubs,spears and machetes. He didnot see any assailants with guns neither didhe seeany Interahamwe during the said attacks. «67The witness testified thatthe Accused did not participate in the attacks on Tutsicivilians at Bisesero.468In relationto hisevidence conceming Bisesero, itis submitted thatWitness DL isnot in a positiontoattest for the either the presence orthe absenceof theaccused during the attacks that were launched therein.

389.In thatregard, Witness DL himselftestifiedthathe participatedin a single attackat Biseseroand remained there for about 50 minutesfollowing, which he returnedto him home.469 Thatbeing the case,the Prosecutorwould representto theTriai Chamber that Witness DL couldnot be in positionto

46~See part II ofthe said confession statement, Prosecution exhibit P 91 inwhich it is shownthat the witness killed over 16 people in Marasecteur, his secteur of origin,and one incident in Murangarasecteur. Contrary to hisassertion that he wentto Biseseroand killedthree people nowhere is it shownin this statement that he everwent to Bisesero,let alone killed three people there in May1994. 462See pages 41 - 43transcripts of8.9.04 463SecProsecution exhibit P 91. 464SecPro-Justicia statement dated 1 August2003, Prosecution exhibit P 90. 465Seepage 44 transcriptsof8.9.04 «6Secpage 47 transcriptsof8.9.04 467Seepages 69/70 transcnpts of 31 Aùgust2004. 468Seepage 72 transcriptsof 31 August2004. 469Seepage 70 transeriptsof31 August2004.

84 state,with any degree of certainty,whether the Accused was at Biseseroor not.

390.The Prosecutorwould further represent to the TrialChamber that if WitnessDL didnot sec any members ofthe Interahamwe militia participate in attackson Tutsirefugees gathered at Bisesero,then it wasvery unlikely that he wasever present at any of theattacks in Bisesero.Indeed his evidence in thatregard is in stark contrast tothat of several other defence and prosecution witnessesonthis point.

391.The Prosecutorwould represent to the TrialChamber that Witness DL standsto losenothing by incriminatinghimself in thecrimes charged in the presentindictment. Inthat regard, the Prosecutor would submit that the Trial Chambershould consider the evidenceof thiswitness with caution and requirethat it be corroborated inail material respects.

IndividualCriminal Responsibility ofthe Accused.

392.The Prosecutorwould represent to the TrialChamber that the evidence adducedby Prosecutionwitnesses BG, BI, AW, W, BB, BU, BC and AP prove beyonda reasonabledoubt that the Accused,Mika Muhimana participatedinthe killing of Tutsi civilians in the area of Bisesero between April,May and June 1994.

393.In thatregard, the Prosecutor’s would further represent to theTrial Chamberthat by conveyingattackers to thearea of Bisesero,distributing weaponsto attackersatthe said location touse in killing Tutsi civilians and subsequentlyparticipating inan attackon Tutsirefugees gathered at thesaid location,the Accused directly and substantially contributed tothe killing of Tutsicivilians at Biseserobetween Gishyita and Gisovu communes and thus incursliability for having instigated, committed, or otherwise,aided and abettedin thecommission of the offences outlined in CountsI andIl of the presentindictment.

394.The Prosecutorwould further represent to the TrialChamber that the Accusedknew that by conveyingweapons and attackers in vehiclesto the Biseseroarea such conduct would materially assist the said attackers in the killingofTutsi gathered therein.

395.The Prosecutorwould further represent to the TrialChamber that the presenceof theAccused amongst attackers at Biseserobefore or duringthe attackon Tutsirefugees at varioustimes between April, May and June 1994, wouldhave had a significantlegitimizing and encouraging effect on the perpetratorsthereof in thecommission ofthe said crimes and that the Accused

85 wasaware that his presence asthe counseiller ofGishyita secteur was likely to havethat effect.

396.As such,it is submittedthat the Accusedmust, at a minimum,incur criminalresponsibility forhaving aided and abetted in theexecution of the crimesoutlined inCounts I andII ofthe present indictment.

397.The Prosecutor further submits that a TrialChamber may find an Accused personguilty if it determines that he orshe participated ina crime through any actionencompassed bythe Stature, even if it differsfrom the particular theory supportedbythe Prosecutor. In that regard, the Trial Chamber, as thefinder of factand trier of law, is free to apply any theory it finds applicable tothe facts ofa caseas long as it fits within the confines ofArticle 6(1) of the Statute theTribunal. The Prosecutor would further submit that as a rule,the Defence is on sufficientnotice through the pleading of Article6(1) in the indictment that47°any one of the theories ofdirect responsibility couldapply.

398.Finally the Prosecutor submits that if the TrialChamber accepts the testimonyof anyone of thewitnesses produced in supportof theevents that occurredwithin the area of Biseseroas outlinedin paragraph5(d) of the indictment,itshould find the Accused guilty of thecrime of Genocide through instigation,commission orotherwise aiding and abetting attackers tokill Tutsi unarmedcivilians gathered within the area of Biseserobetween April, May andJune 1994.

470See Prosecutor v. Kordicand ^erkez, Decision on theDefence Motion to Strikethe Amended Indictment for Vagueness, Case No. IT-95-14/2-PT,T. Ch. III, 2 Mar.1999.

86 ChapterFive: CountIII Rape As A Crime AgainstHumanity

1. The Law.

1. TheAccused is chargedin CountIII with the crime rape as a Crimeagainst Humanitypursuant to Article3(g) of the Statute.471The Prosecutor will representto theTrial Chamber that rape has been defined as "a physical invasionof a sexualnature, committed on a personunder circumstances which arecoercive. Sexual violence which includes rape is consideredto be anyact of a sexualnature which is committedon a personunder circumstances which arecoercive. ,472

2. TheProsecutor will represent to theTrial Chamber that the actus reus of the crimeof rape is: "physical assault of a sexualnature ’’473this can be the sexual penetrationhowever slight, of thevagina or anus ofthe victim by thepenis or anyother object used by theperpetrator, or penetration of the mouth of the victimby the penis ofthe perpetrator. TheProsecutor will further represent to theTrial Chamber that the actus reus should be definedin itsbroadest form and474not limited topenile, digital orobject penetration.

3. In theICTR cases of Semanza,Kajelijeli and Kamuhanda, 475the respective TrialChambers considered the mental element for rape as a crimeagainst humanity.In thatregard, ail the three cases took the position that the ’intentionto effect prohibited sexual penetration with the knowledge that it occurswithout the consent of the victim forms the mental etement of rape. ,476

471See Article 3: Crimesagainst Humanity ’The International Criminal Tribunal for Rwanda shall have power to prosecutepersons responsiblefor the following crimes when committed as partof widespread or systematicattack against any civilian population on national,potitical, ethnic, racial or religious grounds: (g) rape. 472 SeeAkayesu Trial Chambir paragraph 598. In definingrape in internationallaw the guidingstatement of lawin ICTR jurisprudenceis as formulated in the Akayesu Judgment which makes no reference to "consent"as an elementof the crime of rape. 473See Akayesu TC para688 474On the actus reus of thecrime of tapein internationallawsec Kunarac (TC), Sec also "Proposed Definition of the Actus Reus theCrime of Rape",research Paper, not published by AlisonCole, Legal Researeher-Harvard LawSchool.2004, page 2 47»See Semanza paragraphs 344-346, Kajelijeli paragraph 914, Kamuhanda paragraph 709. «76See S emanzaparagraphs 344-346, Kajelijeli paragraph 914, Kamuhanda paragraph 709. In Semanzathe Trial Chamber commented ’TheAkayesu Judgment enunciated a broad definition of tape.The Appeals Chamber of ICTYaffirmed a narrowerinterpretation definingthe material element of tapeas thenon-consensual penetration, however slight o1" the vagina or anusof thevictim by the penisof theperpetrator or by any other object used by theperpetrator, orof themouth of thevictim by thepenis of theperpetrator. Consentfor this purpose must be givenvoluntarily andfreely and is assessedwithin the context ofthe surrounding circumstances.’

"Whilethis mechanical style of definingrape was originally rejected by thisTribunal, the Chamber finds the comparative analysis in Kunaracto be persuasiveand thuswill adopt the definitionof rapeapproved by ICTYAppeals Chamber." In a genocidal environmentprevailing circumstances aresuch that inevitabiy there is coercion.Ris almost inconceivable totalk of "consent "in its truesense 476 In respectto thegenocide in Rwandain 1994,that rape and "sexual violence was an mtegralpart of theprocess of ¯ ...... , , 476 destruction,specifically targetmg Tutsl women and specffically contrtbutmg to thelr destruction lS well documented. Extremi s ts propagandavilified women on thebasis ofboth their ethnicity and gender, hence were tape is usedto destroyTutsi the prosecution showedin theevidence that Hutus associated to Tutsi by marriagee.g. AX or by otherlinks e g BJ wereraped under circumstances wereconsent will hOt be 476

87 4. Article3 of theStatute provides that the crime of rapemust be committedas partof a widespreador systematicattack against a civilianpopulation on national,political, ethnic, racial or religious grounds.

5. It is furthersubmitted that the Accused need not act with discriminatory intent,but must know that his act is partof thiswidespread or systematic attack477Article3(g)gives the ICTR a broadmandate to prosecuterape when "committedas part of a widespreador systematic attack against any civilian populationonnational, political, ethnic, racial or religious grounds.’’478

6, TheProsecutor will further represent to the Trial Chamber that the attacks on Tutsicivilians where carried out in a systematicman_ner as partof a pre- arrangedbroader policy or planinstigated and directed by the central govemment.It is furthersubmitted that the Accused had knowledge that his criminalconduct as allegedin theinstant case formed a partof thisbroader policy.

7, Itis further submitted that the evidence adduced in this case indicates that the attacksin Rwandaand in particularinKibuye were directed and aimed at the Tutsicivilian population. Inthat regard, the Prosecutor would represent tothe TrialChamber that the evidence adduced in thiscase indicates that although Prosecutionwitnesses AX and BJ wereHutu, both were targeted, because theywere perceived tobe Tutsi.

8, TheProsecutor submits that there is no a legalrequirement onthe part of the Prosecutortoprove consent on thepart of the victim. To thatend, Rule 96 of theRules of Evidenceand Procedure of theICTR provides that in casesof sexualassault, consent shall not be allowedas a defencewhen the prevailing circumstancescanbe deemedas479 coercive.

9° In thatregard, the Trial Chamber in theAkayesu Case round that "Coercive circumstancesneed not be evidencedby showof physicaIforce. Threats, intimidation,extortion and other forms of duresswhich prey on fearor desperationmay constitute coercion and coercion may be inherentin certain circumstances.,¢so

10.TheICTY Appeals Chamber in theKunarac case considered ’true consent’ to be"consent given voluntarily as a resultof thevictim’s free will, assessed in

477Sec Tadic Judgment, at paragraph656 ’therefore in addition to theintent to committhe underlying offence, the perpetrator must knowof thebroader context in whichhis acts occur.’ 478The Article enumerates among others rape as a speeificcrime that can be prosecutedas a crimeagainst humanity. Tutsi women wereraped on ethnicaland political grounds. The discrimination wason ethnicgrounds because the majority of thevictims were Tutsi.The prosecutor will submit that to an extentthe discrimination wason political grounds since victims were labeled ’accomplices or supportersof theRPF.’ The Defence does not contest that Tutsi were considered an ethnic group. The majority of thecivilians rapedor sexually assaulted were women, discriminated on the basis of theirethnicity and gender, 479Sec Rule 96 oftheRules of Procedureand Evidence. 48oSec Akayesu Trial Chamber paragraph 688.

88 thecontext of thesurrounding circumstances."481In essence the Kunarac judgmentimplies that evidence of a coercivecircumstance will negate the requirement48z forconsent.

II.It is submittedthat the reasoning of the Appeals Chamber in theKunarac case buttressesboth the approach taken by theTrial Chamber in Akayesucase and theprovisions of Rule 96 of Ruleof Procedureand Evidence of theICTR.

12.TheProsecutor would further represent to theTrial Chamber that once a findingis madethat there exists ’coercive circumstances’ it is unnecessaryto inquireinto whether or not the victims consented to the sexual acts.

13.TheProsecutor submits that it is evidentfrom the totality of evidenceadduced in thiscase, that existence of "coercivecircumstances" surrounding the commissionof the rapes alleged in thesaid inEctment, negates the issue of consenton the part of the victim.

14.TheProsecutor would represent to theTrial Chamber that there exist in this caseall the necessary elements to indicatethat the Accused committed rape as a crimeagainst humanity in Kibuyebetween 6 April1994 and 30 June1994.

2.The FactualAllegations in Supportof the Chargeof Rape as a Crime AgainstHumanity.

15.In CountIII of theindictment the Accused is chargedwith Rape as partof a widespreador systematicattack against Tutsi and other women perceived to be Tutsibetween April and June1994 at thefollowing locations within KibuyePrefecture, namely: Various locations within Gishyita and Mubuga secteursin Gishyitacommune; The MugoneroComplex, located in Ngoma secteur,Gishyita commune and within the area of Bisesero,located between Gishyitaand Gisovucommunes.

Eventsin Gishyitasector, Gishyita commune.

TheProsecutor’s case 16.TheProsecutor alleges in paragraph6 (a) that on or about7 April1994, the Accusedheld a meetingat hisresidence in Gishyitatown, Gishyita sector, Gishyitacommune, with, amongst others, the Gishyita Bourgmestre Charles Sikubwaboand a businessmanObed Ruzindana. Shortly thereafter killings, rapeand other atrocities commenced in Gishyitacommune.

48~See paragraph 412 of Trialchamber Judgment: Kunarae

89 17.Inparagraph 6(a)(i) of theindictment, theProsecutor further alleges that on about7 April1994, the Accusedbrought two civilianwomen, Goretti Mukashyakaand LanguidaKamukina into his house and raped them. Thereafterhe drove them naked out of hishouse and invited Interahamwe and othercivilians to corneand sechow naked Tutsi girls looked like. The Accusedthen directed the Interahamwe to part the girls’ legs to providethe onlookerswith a clearview of the girls’ vaginas.

A Summarvofthe Evidence Presented bv theProsecutor 18.Insupport of the allegations outlined above, the Prosecutor relies on evidence of WitnessesAQ andAP. 19.In thatregard, Witness AP testified to witnessingmeetings taking place at a buildingquite close to herhouse in whichonly Hutu communal workers took part.483AP alsowitnessed a meeting that took place at TheAccused’s house thenight after the President’s death in whichThe Accused, Sikubwabo and Ruzindanatook part.484

20.In a verymaterial way, Witness AQ corroboratedthe evidence of WitnessAP as regardsthe meetingheld in April1994 at the homeof the Accused. WitnessAQ testifiedthat she witnessed a meeting at theAccused’ house in themiddle of April 1994. 485This meeting took place in thecourtyard in front of theAccused’ house. Bourgmestre Sikubwabo and Ruzindana, a trader from Mugonero,were present at thismeeting. 486She describedSikubwabo and Ruzindanaas Hutu men487 who she had seen previouslyvisiting The Accused.488

21.WitnessAQ testifiedthat she saw Ruzindana for the first time about two days afterthe President’s death and subsequently observed that he wouldpick up theAccused every morning in hisDaihatsu vehicle~ 489She testified that Ruzindanaand Sikubwabo usually came to theAccused’ house in themorning andwould retum at about5 or 6p.mon eachoccasion. She testified that she distinctly49° recalled this happening atleast rive times.

22.WitnessAQ testifiedto seeingthe Accused, Ruzindana and Sikubwabo in the companyof Interahamwemilitiamen armed witb spearsand machetes. WitnessAQ deposedthat there was a largegroup of participantsin this meeting.She could see the participants; shewas unable to hearthe content of

483Sec page 24 transcripts of30 « March2004. 2.Sec pages 58/59 transcripts of30 ~ March2004. 48»Sec page 13 transcripts of15 ~ April2004. 486Sec page 13 transcripts of15~ April 2004. 487Sec page 14 transcripts of15 « April2004. 488Sec page 14 transcripts of15 ~ April2004. 489Sec page 47 transeripts of15 ~ April2004. 490Sec page 47 transcripts of15 ~ April2004.

9O theirdiscussions. 491When she witnessed this meeting, she was standing in the roommarked number 4 on page160 of ProsecutionExhibit 2.492

23.WitnessAQ furthertestified that she knew the meeting had been convened to sensitizethe population to kill Tutsis. She came to thatconclusion because "Beforethat meeting was held, I heardThe Accused say that he wasgoing to convenea meetingto sensitizemembers of thepopulation and to encourage themto go out and kill Tutsis. "’ 493 She testified that she concluded that the participantsatthe said meeting were Hutu because they were being sensitized to494go and kill Tutsi.

24.It isclear from the evidence ofprosecution witnesses AP and AQ thatthey are referringto the samemeeting held on or about7 AprilI994. Witness AQ whohad inside information specifically indicates the agenda of thesaid meetingwas to exterminate theTutsi.

25.Witnessth AP furthertestified that she saw the Accused at about7pm on the7 of Apri1495when he cameto herfather-in-law’s house and took two of his daughters,who she described as Immaculeeaged 25 andLanguida aged 18 496 withhim. 497The two sisters,whose family names were Immaculee Kamukina andLanguide Mukakayilo 498were students who went to boardingschool but werethen on school holidays. Witness AP testifiedthat because her father-in- lawwas her neighbor, 499she saw the Accused corne to hishome, ask for the girlsand take them with him.

26.WitnessAP testifiedthat the two Tutsigirls 5°° followedthe Accused voluntarilyas anyone would a friendbecause he wasa familyfriend and they hadno reasonto suspecthis motives. 5°1The witness cautiously followed the Accusedand the girls to theAccused’ house, about 30 minutes’walk from her ownhome, »02 and watched them being led into the house. The witness did hOt followThe Accused and the girls into his house, but hid a fewmetres from the house,5°3 from where she watched what was happening.

27.WitnessAP testifiedthat she followed the Accused and the girls in thehope thatsince he wasa familyfriend to whom the girls’ father had given a cow,he

49~Sec page 14 transeripts of 15 thApril 2004. 492Sec page 37 transcripts of 15 ~ April2004. «93See page 14 transcripts of 15 ~’ Apri12004. 494See page 15 transcriptsof15 ~ Apri12004. 495See page 27 transcriptsof 30 ~a March2004. «96See page 27 transcriptsof 30 ~ Match2004. 497See pages 26/27 transcripts of 30 ~ March2004. 498See page 40 transcripts of 30 th March2004. 499See page 26 transcripts of 30 th March2004. 500See page 29 transcripts of 30 ~ March2004. »o~See page 28 transcripts of 30 ~’ March2004. »02See page 27 transcripts of30 ~’ March2004. s03See page 28 transcripts of30 t~ March2004.

91 wouldprotect them and the witness would also ask him to protecther own children.»°4

28.WitnessAP furthertestified that when the Accused arrived with the girls at hisbouse, there were other persons present, amongst them were Sikubwabo theBourgmestre of5°5 Gishyita, whose voice she recognized among others.

29.WimessAP testifiedthat the girls spent between an houror twohours inside theAccused’ house, during which time "’I heard these children screaming, callingThe Accused’s name, asking him~pardon, telling him that they were not expectinghim to do thatto them.... Aftera while,witness AP didhOt hearany more screams, following which the Accused, who askedthe young menpresent to comeand see how naked Tutsi girls looked like, shoved the girlsout ofthe house.

30.WitnessAP testifiedthat she was able to seewhat transpired outside the Accusedhouse by virtueof thefact that the Accused house was well lit with electricity.5°7Witness AP testifiedthat the girls were stark naked and staggeringwith their legs apart as theyemerged. 5°8The witness indicated on ProsecutionExhibit P2A the doorfrom which the girlsemerged from the Accusedhouse and the spot where one of thegirls was clubbed in relationto where»°9 she was standing in frontofthe Accused house.

31.WitnessAP furthertestified that the Hutu men present outside the bouse then startedusing clubs to hit one of the girls, upon which the witness testified that shefled from her position, which she stated was about two-three meters from the51°Accused house.

32.WitnessAP testifiedthat the Accused was present when one of thegirls was hitwith a club.511After which she decided to fleethe area.

An Analvsisof theEvidence Presented bv theProsecutor.

33.TheProsecutor would represent to theTrial Chamber that both Witnesses AP andAQ knewthe Accused prior to theevents of April1994. In thatregard, bothwitnesses lived within the same locality as theAccused. Witness AQ actuallylived in the samehouse as the Accusedas she was a nieceto Accused’swife Xavera.Both AP and AQ had knownthe Accusedand his familyfor several years.

504See page 27 transcriptsof30 ~ Match2004. ~o5See page 29 transcriptsof30 thMarch 2004. »o6See page 29 transcriptsof 30 t~Match 2004. 507See page 31 transcriptsof 30 ~ March2004. »0~See page 31 transcriptsof 30 ~ Match2004. 509See page 39 transcripts of 30 ~ Match2004. »t0See page 26 transcriptsof30 a March2004. However, she indieated a distance of between10 and15 Metresusing the court to indicatewhere she was standing in comparisonto The Aecused’s bouse. See page 29 Transcriptsof 30 ~a March2004. 5nSee page 33 transcripts of 30 °~March 2004.

92 34.It is furthersubmitted that the circumstances of the identification of the Accusedby WitnessesAQ andAP duringthe meeting of 7 April1994 and the subsequentattack on Languidaand Gorettiwas good.Even though the incidentoccurred towards the evening, Witness AP testifiedthat she was locatedabout two-three meters from the Accused house and thatthe area outsidethe said house was well lit with electricity,512hence herability to observewhat transpired atthe said location.

35.WitnessAP gavea veryclear and credibleaccount of how Languidaand Gorettifollowed the Accused unsuspectingly andthe contrasting image she sawwhen the Accused pushed them out of thehouse stark naked, staggering withtheir legs apart. Witness AP hadthe victims pleading in vainwith the Accused.The Prosecutor will submit that the only reasonable inference is that theAccused and/or the attackers inside his house raped Languida and Goretti.

36.Inrelation tothe particular evidence relating tothe other girl’s name, cited in theindictment as Gorettithe witness truthfully testified she might have mistakenher name to ImmaculeeThe witnessgave a very convincing explanation.It has been a longtime since the events happened and it is normalto forgetthe names of thedead. Considering thefact that the witness alsoexperienced the traumaticevents of the genocide,considering the circumstancessurrounding the inconsistency theProsecutor submits that the explanationproffered by witnessAP is enoughto removeany doubt that she is referringto Goretti.Defence witness DQ confirmsGoretti was Languida’s sister.

The DefenceCase.

37.The Prosecutorsubmits that the Accuseddoes not disputethat he knew WitnessesAP andAQ priorto April1994. In thatregard, it is further submittedthat the Accused does dispute that Witness AQ livedat hishome duringApril 1994. The Prosecutor further submits that the Accused does not disputethat Witness AP washis neighbour inApril 1994.

38.Howeverthe Accused disputes that he convenedand participated in meetings in Gishyitasecteur in April1994 designed at eliminatingtheTutsi civilians. TheAccused further disputes that he participatedin an attack on Languidaand Gorettiat hishome on 7 April1994. To thatend, the Accused relies on the evidenceof thefollowing witnesses: DS, DI, NTI and DQ

m Secpage 31 transcriptsof 30 ~ Match2004.

93 WitnessDS 39.Thewitness denied that a meetingwas convened at Gishyitasector on 7 April 1994.In that regard, the witness testified that had that been the case, he would haveheard about it as he livedvery close to thecommunal office. Similarly, thewitness testified that as faras he knew,no meetingwas held at the Accused’home on 7 April1994. The witness testitïed that the Accused was hisneighbour and as such,a meetingcould hot bave been held at hishome without513 his knowledge. WitnessDI

40.WitnessDI testifiedthat he saw theAccused and Charles Sikubwabo only oncealler the death of thePresident, 5~4as Sikubwaboand the Accused were noton goodterms because "The Accused was marr~ed to a Tutsiwoman, and Sikubwabodid not Iike rnen who were married to Tutsiwomen. ’’515Witness DI testifiedthat he overheard a conversationon the differences between the Accusedand CharlesSikubwabo from people around. 5~6 In responseto a questionfrom the Bench witness DI testifiedthat the Accused got married fouror rive years before the (1994) war. 517He maintained that despite the fact thatthe nature of thework of theAccused and Sikubwabo required that they work»18 together he neversaw them together in April,May and June 1994.

41.WitnessDI testifiedthat in April1994, an agronomistNkundiye Jean Claude soughtrefuge at hisresidence and that Charles Sikubwabo sent Ndayisaba and Karimundato takehim to the communejail, where he accompaniedhim. He testifiedalso that one Murindahabiwith whom witness DI workedat the Communeoffice was arrestedand that the Accusedparticipated in interrogatinghim.5~9 The Prosecution assumes this is theone rime witness sawthe two together.

42.WitnessDI was visiblylying when he claimedthat Charles Sikubwabo and theAccused had no associationduring April, May and June 1994 because the Accusedwas married to a Tutsiwoman. He failedto explainhow he cameto know aboutthe sourceof discordbetween the Accusedand Charles Sikubwabo,and worsehis story sounded absurd when it dawnedon himthat the Accusedgot marriedto Xavera,his Tutsi wife rive years before the genocide,and not duringthe genocide,as he hadwanted the Chamberto imply.

43.WitnessDI admittedthat the Accusedtook part in theinterrogation of Mulindahabion 7 April1994 following his arrestat the Gishyitatown

»t3See page 8 transcriptsof 7 September2004. st4See page 48 transcripts of1.9.04 »15See page 46 transcripts of1.9.04 51«See page 49 transcripts of 1.9.04 st7See page 50 transcripts of 1.9.04 »~8See page 59 transcripts of 1.9.04 5t9See page 54 transcripts of 1.9.04

94 roundabout.Several Prosecution witnesses testitïed that the Accused was responsiblefor the death of Mulindahabiand Nkundiye on 7 April1994. It is notlogical given the security situation prevailing aller the President’s death thatthe Accused, the conseiller would not deem it necessarytohave a meeting to appraisemembers of thepopulation ofthat situation.

44.WitnessDI testitïedthat Languida was one of the six childrenof one Ruhigira.He testifiedthat she had one child and that during April 1994 she wasnot raped. He testifiedthat Languida had sought refuge in Mubugaand it is52°there that she was killed along with other refugees.

45.WitnessDI testifiedthat following the death of thePresident in April1994 Prosecutionwitness AP 521along with her children and cows went and sought refugein Bisesero,and retumed to Gishyitalater on. He testifiedthat the husbandof Prosecutionwitness AP livedin Nyarusizaand that DI’s wife had seen522her in Bisesero.

46.WitnessDI testifiedthat Languida was one of the six childrenof one Ruhigira.He testifiedthat she had one child and that during April 1994 she wasnot raped. He testifiedthat Languida had sought refuge in Mubugaand it isthere that she was killed along with other refugees. »z3

47.Itissubmitted that the testimony of WitnessDI is intendedto showthat the Accusedcould not have raped Languida in hisresidence on 7 April1994 and killedher as testified to byProsecution witness AP, because Languida sought refugeat Mubugachurch where she was subsequently killed, along with other refugees.

WitnessNT1

48.WitnessNT1 testified that there was no meetingin Gishyitatown on 7 April 1994.524 WitnessNT1 testifiedthat he is the youngbrother of Charles Sikubwabo,»25 the Gishyita Bourgmestre with whom he usedto workin one office.He testifiedthat on 7 April1994 he wason dutybut did not hold any meetingat Gishyita centre. 526The witness testified that he had never seen the Accused»27 and Charles Sikubwabo together in April,May or June1994.

49.WitnessNT1 reluctantlyconceded, in cross-examinationthat both the Accusedand Charles Sikubwabo were working during the war and that it was partand parcel of their duties to maintain security in theirrespective area of

»2oSeepage 42 transcriptsof1.9.04 521SeeDefence exhibit D 81. 522Seepage 42 transcriptsof1.9.04 523Seepage 42 transcriptsof 1.9,04 »24Seepage 4 transcriptsof26.8.04 52»SeeDefence exhibit D 68 526Seepage 5 transcriptsof 26.8.04 527Seepage 6 transeriptsof 26.8.04

95 jurisdiction.528He conceded also that both the Bourgmestre andthe Conseiller couldrequisition forreinforcement fromtheir respective superiors to beef up securityin theirareas of jurisdiction. "ltwas possible .... that is whythe commanderrequisitioned gendarmes who were posted in certainsecteurs, and thosegendarmes provided for security ...... fromthe poststhey were working’’529in thesevarious secteurs.

50.He testifiedthat during April, May and June 1994, the Accused and Charles Sikubwabodid not holdany meetings in Gishyitaand thatbefore the war meetingswere held. 53°As to howpeople were informed about the meetings beforethe war, the witness said, "the Bourgmestre informed the Conseiller thaton suchand such a day,there would be meetings,and the Conseiller, in turn,informed members of the comitéde celluleand the membersof the comitéde cellule informed the people."»31

51.On thisbasis, Witness NT1 concededthat the bourgmestrenormally worked veryclosely with his conseillersprior to the war,adding that such communicationwasimpossible during the war. 532He statedhowever, that if thebourgmestre wanted to communicatesomething to thepeople he wouldgo aroundin thesecteurs, talk to peopleand people would ask him questions. In thisway, he saidhe wouldnot be ableto holda meetingbecause "a portionof thepopulation had gone to Bisesero;others were dispersed here and there .... he’’5 would33 have had only a fewpeople.

52.TheProsecutor submits that Witness NT1 has serious credibility problems. The witnesswas hOt beingtruthful when he said that therewere no Interahamwein Gishyita in April,May and June 1994. As an officialin the Communehe knew that the MRND existedin Gishyitaand therefore lnterahamweexisted. The witness was not truthful again when he saidthat duringApril, May and June 1994 the Accused or CharlesSikubwabo did not holdany meetings in theirrespective areas of influence.Inany event he gave lameexcuses as to whythe Accused or CharlesSikubwabo could have failed tohold meetings during this period.

WitnessDQ

53.WitnessDQ testifiedthat she k_newLanguida Kamukina and Goretti Mukasaka.In relationto LanguidaKamukina, the witness testified that this ladywas marfied in 1994and would bave been aged between 25 and26 years old.The witness testified that Languida Kamukina was not in Gishyitaduring the534events of 1994 as no onesaw her during this rime.

52~Sec page 19 transcriptsof 26.8.04 529Sec page 19 transcriptsof 26.8.04 »30Sec page 2l transcriptsof 26.8.04 53~See page 22 transcriptsof 26.8.04 532See page 22 transeriptsof 26.8.04 533See page 25 transcriptsof 26.8.04 »34See page 38 transeriptsof 18 August2004.

96 54.In relationto GorettiMukasaka, witness DQ testifiedthat she was Languida’s sister.She testified that Goretti lived in Mubugaand was married in 1994.She furthertestified that Goretti was killed at theMubuga church along with other Tutsirefugees in April1994. Referring to her age, the witness testified that shewas a youngwoman. Not very young and not very old either, she was an adult.

55.WitnessDQ furthertestified that it wouldhave been impossible for the Accusedto takeGoretti from the Mubuga Church were she had sought refuge withher family, to hishome in orderto rape her. In that regard, she testified thatMubuga was far away from Gishyita and that in anyevent, the Accused wouldhave had other women in theimmediate locality to choosefrom and thuswould not have needed to takeGoretti from Mubuga to Gishyitajust to rape535her.

56.WitnessDQ is a closerelative of the Accusedand thushas a motiveto providefalse testimony. Witness DQ testified that she did not live at the home of theAccused during the events of 1994.In thatregard, Witness DQ testified thatshe visited the Accused at his home during this period about once a week orsometimes, once every fortnight.

57.TheProsecutor further submits that the evidence of WitnessDQ beforethe TrialChamber was at starkvariance to thatwhich is containedin her statementto theDefence Investigators on 12 Match2004. In thatregard, WitnessDQ evidencebefore the TrialChamber was that she had not seen Languidain Gishyitasince 1985. However, in her statementto Defence investigators,Witness DQ statedthat it wasonly on 8th April1994, that Languidafled towards Mubuga following which her neighbours never saw her again.

58.Inaddition, it seemed somewhat strange that despite having testified that she waswell versed with ail those would stayed at thehome of theAccused in April1994, Witness DQ wasunable to tellwhether or notWitness DA wasin factmarried in 1994.536The Prosecutor would further represent to theTrial Chamberthat Witness DQ basa familyrelationship with the Accused. The witness’testimony istherefore more likely than hOt to be biased.

TheProsecutor’s Case

59.Inparagraph 6(a) (ii) the Prosecutor alleges that on orabout 14 April1994 Gishyitatown Gishyita sector, Gishyita commune, at hisresidence, The Accusedraped a Tutsiwoman Esperance Mukagasana and offeredher to an

535See page 39 transcriptsof 18 August 2004. 536See page 48 transcriptsof18 August2004. See also page 16 transcriptsof 16 August2004.

97 lnterahamwenamed Gisambo, for the samepurpose. The said Gisambo raped EsperanceMukagasana at TheAccused residence and within his presence.

A Summaryofthe Evidence Presented by theProsecutor 60.In supportof theabove-mentioned allegations, theProsecutor relies on the evidenceof WitnessAQ.

61.Inthat regard Witness AQ testified that in April 1994, she and her elder sister, EsperanceMukagasana, lived in TheAccused’s house. 537 Shetestified that the Accused’sdeceased 538 wife,Xavera Mukabutera, was theiraunt. 539 She testifiedthat she lived in the Accused’ house because her aunt had asked her parentsfor her to comeand help her with house hold chores. 54°She testified thatthe accused and hiswife Xavera had twochildren, one of whomdied rightat the beginning of the genocide while the other, Leoncie, went into exile ¯ withhls" father. 541Wltness ¯ AQ testlfiedthat she and her husband now live in the542house that once belonged to theAccused in 1994.

62.WitnessAQ testifiedto seeing the Accused, rape her sister, Esperance, on at leastfour different occasions during the month of April1994. 543The witness furthertestified that the Accused also raped her on morethan one occasion duringthe saine period. Witness AQ testifiedthat ail the rape incidents took placeat theAccused’ residence, in the room she shared with her sister, which sheindicated was marked number 8 on ProsecutionExhibit 2 at page160.TM

63.In thatregard, Witness AQ testifiedthat on thefirst occasion that she witnessedthe Accused raping her sister, he cameinto the room in whichshe andher sister slept at about5 or 6p.m,545on a dayin themonth of April, roughlyabout a weekfollowing the President" death. »46Witness AQ testified thatthe Accused dragged Esperance, with ail his strength from the room they bothshared and took her to hisown room, which she testified was located on ProsecutionExhibit P2 at page160 marked room number 7.547

64.Thewitness further testified that as theAccused forcibly dragged Esperance to hisroom, she followed them stealthily and saw him push Esperance onto his bed and undressboth Esperance and himselfbefore having sexual intercoursewith her 548 whilstthe doorto the saidroom remained open. WitnessAQ furthertestified as to howshe positioned herself outside a room

»37See pages 8/9 C/S transcripts of15 t~April 2004. s38Sec page 9 C/Stranscripts of15 ~ April2004. 539Seepage 8 C/Stranscripts of 15th April 2004. 5«0Sec page 10 C/Stranscripts of15 th April2004. 541See page 41 transcripts of15 rb April2004 »42Sec page 9 C/Stranscripts of 15 « April2004. »43See page 15 transcripts of15m April2004. 544Sec page 32 transcripts of 15 ~ April2004. 545See page 16 transcripts of15~ April2004. »46See page 16 transcripts of 15 rbApril 2004. 547Sec page 32 transcripts of 15 ~ April2004. »«8Sec pages 15/16 transeripts of 15 ~ April2004.

98 whichled to theroom where the rape took place and from where she testified tohaving heard her sister scream for help. She further testified that their aunt, whoherself was a Tutsi,was hiEng in thebushes at thetime and therefore couldnot come to bersister’s rescue. 549 WitnessAQ further testified that she witnessedthe Accusedraping her sisterfor about30 minuteson this occasion.55°

65.WitnessAQ testifiedthat all the four rapes followed the pattem and took placeat thesame location within one or twodays of eachother. She further testifiedthat on thethird and fourth occasions, her sister did not bother screamingor strugglingbecause the Accusedwas a lotstronger than she was.»5~She alsotestified that on two occasions,an lnterahamwecalled Gisambothat occasionally visited the Accused’ house raped her sister. »2 On bothoccasions, Gisambo dragged her screaming sister into the house, but giventhat he closedthe doorbehind them, the witnessnever saw what happened553 after.

66.WitnessAQ furthertestified that although she personally never informed her auntabout the rapes she had witnessed, she was aware that her sister had informedtheir aunt about the rapes on at leastone occasion. »4 WitnessAQ furthertestified that whilst she remained inhiding at the home of the Accused duringthis period, she often heard people screaming and crying inside the Accused’house. She, however, testified that she was unable to identifywho they555 were.

67.WitnessAQ testifiedthat on a dayin mid-Aprii1994, Ruzindana and other attackersarrived at thehome ofthe Accused in a vehiclefollowing which they senttwo Interahamweto takeher sister from the Accused’house. 556 She testifiedto havingseen her sister being driven away in thesaid vehicle followingwhich the Accused retumed home at about9 P.Mlater that evening withouther sister. »7Witness AQ testifiedthat she has not seen her sister since that8 dayY

68.WitnessAQ testifiedthat she was rapedby theAccused on threeseparate occasionsduring ne month of April1994. In thatregard, she testified that she wasraped inside the room in which she slept at theAccused’ residence 559this happened56° following the rape and disappearance of her sister, Esperance.

page16 transcriptsof15 ~ April2004. page57 transcripts ofl 5t~Apri12004. pages16/17 transcripts of 15 ~ Apri12004. page18 transcriptsof15 ~ Apri12004. page18 transcripts of 15 rb Apri12004. page17 transcriptsof15 ~ April2004. page17 transcriptsof 15 ~ Apri12004. page18 transcripts of 15 « April2004. page18 tmnscfiptsof 15 a~ Apri12004. pagel 7 transcriptsof15 ~ April2004. page28 transcfipts of15 u’ April2004. pagel 9 transcriptsof15 th April2004.

99 WitnessAQ testifiedthat she wasabout 15 yearsof age whenthe rapes occurred.561

69.Describingthe firsttime that she wasraped by the Accused,Witness AQ testifiedthat the Accused came to herroom at about8 or 9 pm andround her as shelay on her bed, following which he undressedher and raped her. 562She testifiedthat she had sexual intercourse forthe first time with the Accused whenhe rapedher that day andthat she screamed but no onecame to her rescue.563She testified that the second rape took place in herroom at night twoor three days after the first rape.564

70.WitnessAQ testifiedthat she did tell her aunt about the rape incident but she feltthat her aunt could not do anythingabout it. Asked why she remained in theAccused’ house after the said incident, the witness testified that she did not565have a choicebut to do soas she had nowhere else to go.

An Analvsisof theEvidence Presented by theProsecutor.

71.TheProsecutor would represent to theTrial Chamber that the evidence of WitnessAQ beforethe TrialChamber was direct,clear and extremely convincing.The witness was related to theAccused and resided at hishome duringthe period in question.In thatregard, the witnesses provided the Tribunal,with a firsthand account of whatshe had experienced during the saidattack on her and her sister.

72.WitnessAQ was askedwhy she waitedtill February2004 duringre- confirmationof her testimony prior to thecommencement of trial to mention theevents surrounding her own rape by theAccused. In thatregard, Witness AQ testifiedthat it wasbecause she had felt that it wassomething shameful but566had later come to terres with it after talking toother rape victims.

73.WitnessAQ furthertestified that she did tell her aunt (The wife of the Accused)about the rapes but she felt that her aunt could not do anything about it.Further, when asked why she remained in the Accused’ house after the said incident,the witness testified that she did not have a choicebut to do so as she hadnowhere else to go.567

74.It is submittedthat Witness AQ provideda verylogical and reasonable explanationas to whyshe had not withheld information surrounding her rape fromher sister and the ICTR investigators. Thewitness was only 15 years old;she was living in perpetual fear of ber lire as a youngTutsi girl. She was

»6nSec page 28 transcriptsof15 ~ Apri12004. »62Sec page 28 transcripts of15 th April2004. s63Sec pages 28/29 transeripts of15 ~ April2004. 5~4See page 30 transeriptsof15 u’ Apri12004. 565See page 30 transeriptsof15th Apri12004. »66See page 64 transeripts of15 thApril 2004. 567Sec page 30 transeripts of 15 thApril 2004.

100 obviouslytraumatized by the coercive circumstances, which unfolded after the genocidestarted. She was witness to the rape and disappearance ofher sister.

75.The Prosecutorwill also draw the honourableTrial Chamber to the implicationof Gisambo in therape and subsequent abduction of Esperance. Thesame Gisambo features as a notoriousInterahamwe during the attack on MugoneroComplex on 16 April1994. Gisambo is alsomentioned by witness in relationto therape of Mukasinein Bisesero...... thatGisambo and the Accused were acting in concert.

The DefenceCase.

76.TheAccused does not dispute that Witness AQ residedat hishome during April1994. However the Accuseddisputes that he rapedEsperance and WitnessAQ. To thatend, the Accused relies on theevidence of WitnessDA.

WitnessDA

77.The essenceof WitnessDA’s testimony was thatfrom 15 April1994, she soughtrefuge at thehome of the Accusedtogether with her sister Xavera Mukabutera,Witness AQ, a lady calledEsperance Mukagasana 568, and anotherlady called Beyatinisa: 69 Thewitness testified that she, Witness AQ andEsperance Mukagasana all shared a roomwithin a buildinglocated at the rearof thepremises of theaccused. »7°The witness testified that she remained at theAccused’ home until sometime between the 13 and16 of May1994.

78.Thewitness testified that one a daywhich she could no longerrecal1571, EsperanceMukagasana had left the roomwhich they ail sharedwhich was locatedin therear building and had gone to thefront building as thoughshe wasgoing to getsome food in thehouse which was located towards the front ofthe premises.

79.WitnessDA testifiedthat as Esperancewas arriving at theentrance to this house,members of theInterahamwe militia, who she described as killers,had arrivedat thehome of theaccused in Ruzindana’svehicle and abducted her. Shefurther testified that the Accused was not present when the said abduction tookplace, and only retumed to hishome later that evening. The witness furthertestified that whilst she sought refuge at the home of theAccused she did572not hear of himcommitting any rapes.

80.The Prosecutorsubmits Witness DA’s testimonyon the circumstances surroundingthe alleged Rape, abduction and subsequent killing of Esperance

»68Secexhibit P28 569SeeexhibitP29 »7oSeepages 17/18 closed session transcripts of16 August 2004. 57~Seepage 19 closed session transcnpts of16 August 2004. »72Seepage 19 closed session transcnpts of16 August 2004.

101 Mukagasanawas tailoredsimply to contradictthe evidenceof prosecution WitnessAQ. The Prosecutor would represent to theTrial Chamber that it was veryunlikely that she sought refuge at thehome of theAccused between 15 Apriland mid-May 1994. In thatregard, the wimess provides no explanation whyshe waited until 15 April1994 to seekrefuge at thehome ofthe Accused.

81.In relationto herevidence as to theprevailing circumstances at the home of theAccused during this period, it the submitted that it wasvery unlikely, that Xaverathe Accused wife would have been in a positionto havebeen located in thefront house in the premises 573,and to undertakehousehold chores such as cooking574when the evidence adduced in thecase would suggest that she, likeother Tutsi married to Hutumen was in hidingin therear building within the575premises throughout the genocide.

82.Regardingthe abduction of EsperanceMukagasana, the witness provided no explanationas to whyEsperance Mukagasana was singled out for abduction, whenthe evidence suggested that she was not the only Tutsi woman at that location.In any event based on thewitnesses’ own admission that she for the mostpart confined inside a houseat therear of theplot it wouldhave been virtuallyimpossible for her to bavebeen aware of anythingthat was going on outsidepremises let alone be ina positionto testify as to the identity ofthe assailants.576

83.In thatregard, the Prosecutor would represent to the Chamber that the witness by herown admission stated that she had relied on informationobtained from others.In thatregard, when asked where those who abducted Esperance had comefrom, she testified that I wouldsay that the people who stayed there told us,"Look,’’577 they have just kidnapped The Accused’s daughter.

84.Furtherwhen asked where her oldersister was at the timeof Esperance abduction,the witness testified that since she and others were located inside thehouse and were unable to go out,she was unable to tellwhere her old sisterwas. 578 Againwhen asked she was in a positionto seethose who visited theAccused at hisresidence, the wimess testified, "since we werehidden, we couldn’t reveal ourselves tothe public and therefore, be in a positionto see who’’57were9 visitors

573Sec page 44 transcripts of16 August 2004. 574See page 43 transcripts of16 August 2004. 57»See Statement ofXavera Mukabetera of 19 September 1996 576See page 19/43 closed session transcñpts of16 August 2004. 577Seê pages 18/19 closed session transcripts of16 August 2004. ~7~See page 19 elosed session transeripts of16 August 2004. s79See page 45 transcripts of16 August 2004.

102 TheProsecutor’s Case

85.In paragraph6(c) (iii), the Prosecutor alleges that towards the end of April 1994,The Accused raped a Tutsicivilian woman AX-K, on twooccasions, at theBureau commune in Gishyitatown Gishyita sector, Gishyita commune.

86.In supportthe above allegations the Prosecution relies on theevidence of WitnessAX.

A Summaryof theEvidence Presented bv theProsecutor

87.WitnessAX testified that after the death of herchildren, the Accused, sent an Interahamwecalled Alexis to summonher to hisoffice. 58°When she got there she foundthe Accused drinking beer with other Interahamwes. The witness testifiedthat she followed the Accused into his office. When Witness AX was insidethe office, the Accused pulled her seized her by theneck and pushed ber to the groundwhere he orderedher to undressbefore having sexual intercoursewith her brutally on thefloor. »8~During her testimony, Witness AX explainedwhat she understands as rape: "As regards sexual intercourse, I knowit isdone usually with the consent of theparties involved, but he did so without’’582 my consent

88.WitnessAX indicatedthe rape lasted for what she approximated to be one hour.After the tape, the witnesscame out of theoffice, and wenthome quickly.She testified that she was very shocked. »83Witness AX testifiedthat afterthe first tape incident, the Accused summoned the witness again to his office.On thisoccasion, the Accused sent two Interahamwes; Burabyo and Gasigwa.The two Interahamwe were carrying guns. 584The wimess proceeded to go to theAccused’s office. She was forced to go to hisoffice where she wasraped on thefloor.

89.WitnessAX testifiedthat the Accused asked her to takeoff her clothes and toldher: "’Ifyou resist, I’m going to shoot you. ,,585 Afier the rape, the witness lefithe office feeling very hurt. "I would have preferred that he shouldkill me.After losing so manymembers of my familyand going through that, l felt that,within myself, that it would have been better if1 had been killed. "»s6

90.Wimess587 AX identifiedthe Accused’s former office where she was raped. WitnessAX identifiedthe secteur office on prosecutionexhibit P2 E and explainedthe secteur office previously was usedas oneSeth Bimenyimana

»soSec page 41 transcriptsof 31 Match2004 5s~See page 42 transcriptsof 31 March2004 »s2Sec page 44 transcripts of31 Mareh2004 ss3See page 47 transcriptsof 31 Match 2004 »84Sec page 47 transcriptsof 31 Match2004 »ssSec page 48 transcriptsof 31 March2004 586See page 48 transcriptsof 31 March2004 »s7Sec page 52 transcriptsof 31 March2004, Sec page K0286189, Prosecution Exhibit P-2E

103 housewho had sincepassed away. The Accused moved in thishouse which waslocated adjacent his own residential house and used it as thesecteur office.588

An Anal~sisofthe Evidence Presented bv theProsecutor.

91.In thatregard, the Prosecutor would represent to theTrial Chamber that the evidenceof WitnessAX beforethe TrialChamber was direct,clear and convincing.It is furthersubmitted that Witness AX hadno motiveto provide falsetestimony before the Tribunal. Witness AX, as a Hutueven testified howshe appealed toAccused as a brotherto assisther.

92.WitnessAX’s evidence on the killingof her childrenand motherwas corroboratedmaterially by Defencewitnesses like DU. If WitnessAX gave truthfultestimony inregard to the other atrocities which befell her family it shouldfollow logically that she is a witnessof truthin relationto therape incidents.

93.WitnessAX testifiedthat she knew the Accused, well before the events of 1994.In thatregard she testified that she had known the Accused since her youthand she usedto see him sincehe washer neighbour.589 The Trial Chamber’sattention is drawnto WitnessAX’s reluctanceto discuss anatomicaldetails ofthe rape she endured. The Trial Chamber’s attention is alsodrawn to thefact that for Witness AX andmany of theother witnesses thereexisted an apparentcultural sensitivity andreluctance to discuss rape. In thatregard, it musthave been difficult for Witness AX to haveopened up beforethe Trial Chamber to admitlet alone discuss the fact that she was raped twiceby theAccused.

The DefenceCase.

94.TheProsecutor would represent to theTrial Chamber that that Accused does notchallenge the evidence of WitnessAX regardingthe two-rape incidents containedin her testimony.In thatregard, the Accusedrelies on a very generaldefence derived from a multitudeof defencewitnesses that no rapes occurredin Gishyitacommune during the events of April-June1994.

WitnessDU

95.In thatregard, Defence Witness DU who is currentlydetained at Gisovu prisontestified to havingkilled the two children of WitnessAX andher mother.59°It issubmitted that the evidence of WitnessDU isindicative ofthe coercivecircumstances surrounding the rapes of WitnessAX.

»88Secevidence ofwitness AXduring X-examination paras.15-28, on page32 of transcripts ofI April, 2004 589Secpage 26 transcripts of31 March 2004 59oSecpage 23 of transcript of8.9.2004 paragraph 5-9.

104 WitnessDS

96.WitnessDS testified that he iscurrently detained at theGisovu prison, having beenaccused of beinginvolved in thegenocide of 1994.He testifiedthat he had confessedto his involvementin thegenocide. The witness contended duringGacaca sessions no oneaccused the Accused of rape.

97.TheProsecutor would submit that Witness DS’ testimony in thatregard is unreliable.Inthat regard, it is apparent from the contents ofthe video of the Gacacaproceedings produced to theTrial Chamber, that many wimesses and detaineesbrought before the said proceedings areboth reluctant and afraid to speakthe truth about te events of 1994.591Itis further submitted that in the absenceof suchcorroboration, the TrialChamber should not accept the evidenceof this witness as proofof the facts outlined inthe testimony of this wimess.

IndividualCriminal Responsibility ofthe Accused.

98.The Prosecutorwould represent to the TrialChamber that the evidence adducedby Prosecutionwitnesses AQ and AP provebeyond a reasonable doubtthat the Accused, participated in meetings, which preceded the killing ofTutsi civilians atthe Gishyita commune in April 1994. 99.TheProsecutor would further represent to the Trial Chamber that the evidence adducedby Prosecutionwitnesses AQ, AP and AX provebeyond a reasonable doubtthat the Accused, participated in acts of rapeand sexual assault on severalTutsi and other women perceived to be Tutsiwithin the Gishyita secteurin Gishyitacommune during the month of April1994.

100.The Prosecutor would represent to theTrial Chamber that the rape of Tutsi womenin Gishyitasecteur, Gishyita commune by the Accused,during the monthof April1994 was donc in thecontext of a widespreadand systematic attackon Tutsicivilians. In thatregard, the Prosecutor’s would further representto theTrial Chamber that by rapingthe said women, the Accused directlyand substantially contributed to the killing of Tutsicivilians in Gishyitacommune and thus incurs liability for having committed the offences outlinedinCounts I, Il and III of the present indictment.

101.The Prosecutorwould further represent to the TrialChamber that the Accusedknew that by conveyingLanguida and Goretti to hisresidence on 7 April1994, such conduct would materially assist attackers present in the vicinityofhis home to rapeand kill the said Tutsi women.

591See page 12 transcripts of7 September 2004.

105 102.The Prosecutorwould further represent to theTrial Chamber that the presenceof theAccused amongst attackers at hisresidence before or during the attackon Languidaand Gorettion 7 April1994, would have had a significantlegitimizing andencouraging effect on theperpetrators thereof in thecommission of thesaid crimes and that the Accused was aware that his presenceas a counseillerwas likely to havethat effect. As such,it is submittedthat the Accused must, at a minimum,incur criminal responsibility forhaving aided and abetted in theexecution of the crimes outlined in Counts I,II and III of the present indictment.

103.The Prosecutor further submits that a TrialChamber may find an Accused personguilty if it determines Eat he or she participated ina crime through any actionencompassed bythe Stature, even if it differs from the particular theory supportedby the Prosecutor. Inthat regard, the Trial Chamber, asthe finder of factand trier of law, is free to apply any theory it finds applicable tothe facts ofa caseas long as it fits within the confines ofArticle 6(1) of the Statute theTribunal. The Prosecutor would further submit that as a rule,the Defence is onsufficient notice through the pleading of Article6(1) in theinEctment that592any one of the theories ofdirect responsibility couldapply.

104.Finally, the Prosecutorsubmits that if theTrial Chamber accepts the testimonyof anyone of thewitnesses produced in supportof theevents that occurredin Gishyitasecteur as outlinedin paragraph6(a)(i-iii) of indictment,itshould find the Accused guilty of thecrimes of rape as a crime agamsthumanity, genocide or complicityin genocide,through commission or otherwiseaiding and abetting attackers to rapeand kill Tutsi civilians in Gishyitasecteur in April 1994.

Eventsat MubugaParish, Mubuga seetor Gishyita Commune TheProsecutor’s Case.

105.In paragraph6(b) of theindictment the Prosecutor alleges that on around15 April,1994, at theMubuga Parish Church, the Accused in concert withothers, including Interahamwe named Kigana, Theophil and Byamwenga took Tutsicivilian women named Colette a girl from Mubuga,Agnes Mukagatarean employeeof Mubugadispensary and Alphonsinefrom Mubugadispensary to the vicinityof a cemeterylocated between Mubuga parishand Mubuga dispensary where The Accusedraped Agnes.

106.In paragraph 6 (b)(i) of theindictment the Prosecutor further alleges on or around15 April1994, at Mubugaparish, Interahamwe raped two womennamed Colette a girlfrom Mubuga and Alphonsineon instructions andwithin the presence of TheAccused.

592Sec Prosecutor v.Kordic and ^erkez, Decision onthe Defence Motion to Strikethe Amended Indictment forVagueness, Case No. IT-95-14/2-PT,T.Ch. III, 2 Mar.1999.

106 A Summaryof theEvidence Presented by theProsecutor.

107. TheProsecutor relies on theevidence of WitnessesAF andAV. 108.Witness AF testifiedthat the Accusedtook part in an attackon Tutsi refugeesgathered at thesaid parish church on 14 and15 April1994. Wimess AFfurther testified that on thenight of the14 th tothe 15 th April1994, an attackwas launched on thepresbytery of the said church. In thatregard, the witnesstestified that women were raped.

109. WitnessAF identifiedone of the girlsraped as Claudine,who he describedas a student.Witness AF furthertestified that based on theevents thatoccurred at thechurch earlier that day he wasof theopinion that the Accusedand otherslaunched the attackon the womenat the church presbytery.

110.In thisregard Witness AV testifiedthat following the attack at theMubuga church,she witnessed another attack perpetrated by the Accused and others on the sameday on a road,near the Mubugacemetery. 593Witness AV sawthe Accusedwith young men armed with clubs and machetes 594leading six girls towardsthe cemetery.The witnessrecognized one of the attackersas Nyandikio.595

111.Witness AV testifiedthat she was able to recognizethree out of thesix girls:Colette, Alphonsine and Agnes.596Ail three were Tutsis597.The witness furthertestified that she was near, approximately rive metres away from the areawhere the Accused and the girls were located. 598The witness further testifiedthat: "The spot on whichThe Accused raped Agnes could be seenby me ver);clearly. Itis truc that there was a littlebush between me andthe placewhere the rape occurred, but I couldeasily see them and hear what was being’’599said.

112.Witness AV furthertestified that she heardthe Accusedsay to the attackers:"’Nobody should kill those girls before we’ve raped them." The witnesstestified that she then saw the Accused rape a girlshe recognized as AgnesMutagatare 6°°. She knew Agnesbecause she was a nurseat the dispensary.6m

593Sec page 39 transcriptsof 1 April2004. When asked in cross-examinationwhyshe had left her hiding place to go to the dispensarythat day, the witness testified, "she was in a stateofdisaster andhad lost her mind. She testified that she needed to seethe bodiesofher parents to takestock ofthe faet that they had in fact been killed. (Sec page 55 transcripts of1 April1994). »94Sec page 41 transeripts oflApril 2004 ~9»Sec page 55 transcriptsof1 April2004 596Sec page 36 transcriptsof1 April2004 597Sec page 40 transcriptsof1 April2004 59sSec page 36 transcriptsof1 April2004 599Sec page 41 transcriptsofI April2004 600See page 40 transeriptsof 1 April2004 6o~See page 55 transcriptsof I April2004

107 113.Witness AV testifiedthat she saw and heardAgnes pleading with the AccusedhOt to rapeher. Witness AV testifiedthat she heardthe Accused askedAgnes to undressand thatwhen she refusedhe slappedher. The wimessalso testified that the Accused undressed and gave his clothes to a man o holdwhile he askedAgnes to placeherself on herclothing before rapingher.

114.Witness AV furthertestified that she heard Agnes moan with pain while theAccused was raping her. The witness testified that when he wasdone the Accusedtook a bayonetand wanted to killAgnes with it butshe asked to be killedwith a guninstead 6°2.The Accused laughed and told the girl to standup butnot to dress up.603

115.Witness AV testifiedthat he thentold the Interahamwe that they could continueto do theirwork. 604 He toldthem that before killing her they should taketime to seeher guts. The witness explained that she understood that it meantthat ber stomach should be o~pened,so thatthey could see what was insidethe stomach of a Tutsiwoman.

116.Witness AV furthertestified that she then went back to thechurch where shereceived a report from one Cure that the rive other girls had been led away,6°6 raped and then taken to theroad where they had been cut into pieces.

An Analysisofthe Evidence Presented bg theProsecutor.

117.The Prosecutor relies on hissubmissions as to thecredibility of Witnesses AF andAV as discussedunder Counts I andII in ChapterFour of theinstant brief.The TrialChamber will recall witness AV’s demeanor during her testimony.In thatregard, she remained very calm, very clear and well focusedthroughout her evidence.

TheDefence Case.

118.The Prosecutorwould represent to the TrialChamber that the Accused doesnot disputethat Tutsi refugees were gathered at theMubuga Parish Churchfrom about 8 April1994. The Prosecutor further submits that the Accuseddoes not dispute that the said Tutsi refugees gathered at thesaid churchwere attacked between the 14 and 15 April1994. Indeed Defence WitnessesDF, DZ, DL,DAA, DG andDC alladmit to havingparticipated in attackson Tutsirefugees gathered at theMubuga parish church between 14 and15 April1994.

602See page 36 transcriptsof 1 April2004 603See page 40 transcripts of 1 April2004 404See page 40 transcripts of I April2004 4o5See page 41 transcripts oflApril 2004 606See page 41 transcripts of 1 April2004

108 tqll

119.The Prosecutorwould further represent to the TrialChamber that the Accuseddoes not disputethat the Tutsiwomen were abducted from the MubugaParish Church following which there were attacked and killed at the Mubugacemetery, in Mubugasecteur, Gishyita commune. In thatregard WitnessDF testifiedtohaving participated in the said attack. Witness DC also testifiedthat he wasaware that women were raped at thecemetery. 607

120. The Accusedhowever denies that he participatedin the rape and subsequentattack on thesaid Tutsi women between 14 and15 April1994. To thatend, the Accused relies on theevidence of thefollowing witnesses: DF, DD, DG, DL and DC.

WitnessDF

121.Witness DF testifiedthat he had confessedto havingparticipated in attackson Tutsi civilians the Mubuga parish church in April1994. 608Witness DFtestified that he has confessed totaking part in attack at theMubuga Parish Churchwhich resulted in theabduction of a whitecouple named Herman and between15 and 25 young girls609 who had soughtrefuge at insidethe presbyteryatthe said church. The witness testified that although he wasnot oneof those who planned the said attack, he wasasked to lurethe said girls outof thepresbytery following which they were abducted from the presbytery andtaken into vehicles. The evidence ofthis witness is dealt with at lengthin ChapterIV oftheinstant brief.

WitnessDD

122.Witness DD furthertestified to havingwitnessed an attackat theMubuga churchon the14 of April1994 following which Tutsi refugees were killed. Thewitness further testified to havingseen Tutsi women been abducted from theMubuga church during the night of 14 April1994. The witness further testifiedto having seen the bodies of theseladies in the cemetery which was locatedbehind the Mubuga Church as he fledthe area on themorning of 15 April1994. 61°Witness DD testifiedthat he neverheard that the girls were rapedprior to beingkilled neither did he hearthat they were disemboweled. Theevidence ofthis witness is dealtwith at length in Chapter IV ofthe instant brie£

607Seepage 6 transcriptsof 17.8.04 608Seepages 6/9 transcripts ofclosed session of 30 August2004. 609Seepages 9/10 transcripts of closed session of 30 August2004. 61oSeepage 13 transcriptsof 17 August2004.

109 WitnessDG 123.Wimess DG testifiedthat in the nightof the 14 and 15 April1994 he wimessedabout 25 girlsbeing taken by thebourgmestre and gendarmes from theMubuga Presbyterian church, loaded in vehiclesand taken to thecemetery belowthe Mubuga parish, 160 kilometers away. He testifiedthat he wimessed about30 ladskilling the girls using clubs, and that the girls were not raped beforethey were kdled. ¯ 611The witness testified that the incident took place in themiddle of thenight and thathe didnot seethe Accusedamongst the assailants.612The evidence ofthis witness is dealt with at lengthin Chapter IV ofthe instant brief. WitnessDL_

124.Witness DL testifiedthat he had heardthat women were killed at the Mubugacemetery. The witness testified that he hadheard that bourgmestre CharlesSikubwabo, Amiel Munyemana and DefenceWimesses DF and DG had613 confessedto havingparticipated in the attack on thesaid women. WimessDL testifiedthat those who had confessed to havingparticipated in theattacks on Tutsiwomen at theMubuga cemetery and at theMubuga Parish Church614 had not implicated the Accused in thesaid attacks.

125.The Prosecutor would represent to the TrialChamber that Wimess DL did notbave any direct knowledge of theevents surrounding the attacks, which werelaunched at theMubuga Cemetery. The evidence of thiswitness is dealt withat length in Chapter IV oftheinstant brief.

WitnessDC 126.Wimess DC, a Tutsi,testified that he soughtrefuge at MubugaCatholic Churchon 12 April1994, where he foundmany other refugees. He alsofound gendarmes615 who surrounded the church, purportedly, guarding it.

127.Wimess DC testifiedthat while at thechurch he heardabout girls who werekilled at the cemeteryclose to MubugaChurch. 616 The Wimessalso heardthat women were raped. The Defence did not challenge this wimess on hisevidence.

6~See page 47/49 transcripts of 30.8.04 612See page 54 transcripts of30.8.04 613See page 69 transcriptsof 31 August 2004. See also exhibit D75 e~4See page 68 transcriptsof31 Augusl2004. 6~»See page 4 transcriptsof17.8.04 616See page 6 transeriptsof 17.8.04

110 IndividualCriminal Responsibility of the Accused. 128.The Prosecutor would represent to the TrialChamber that the evidence adducedby Prosecutionwitnesses AF and AV provebeyond a reasonable doubtthat the Accused, participated in acts of rapeand sexual assault on severalTutsi women within the Mubugasecteur in Gishyitacommune on or about15 April1994.

129.The Prosecutor would further represent to theTrial Chamber that the rape of Tutsiwomen in Mubugasecteur, Gishyita commune by theAccused, on or about15 April1994 was done in thecontext of a widespreadand systematic attackon Tutsicivilians. In thatregard, the Prosecutor’s would further representto theTrial Chamber that by rapingthe said women, the Accused directlyand substantially contributed to the killing of Tutsicivilians in Gishyitacommune and thus incurs liability for having committed the offences outlinedinCounts I, II and III of the present indictment.

130.The Prosecutorwould further represent to the TrialChamber that the Accusedknew that by abductingand conveyingthe said womento the Mubugacemetery on or about15 April1994, such conduct would materially assistattackers present in thevicinity ofthe Mubuga cemetery to rapeand kill thesaid Tutsi women.

131.The Prosecutorwould further represent to the TrialChamber that the presenceof theAccused amongst attackers of theMubuga cemetery belote or duringthe attack on thesaid Tutsi women on or about15 April1994, would havehad a significantlegitimizing andencouraging effect on the perpetrators thereofin thecommission of the said crimes and that the Accused was aware thathis presence as a conseillerwaslikely to have that effect. As such,it is submittedthat the Accused must, at a minimum,incur criminal responsibility forhaving aided and abetted in the execution of the crimes outlined in Counts I,II and III ofthe present indictment.

132.The Prosecutor further submits that a TrialChamber may find an Accused personguilty ifit determines that he or she participated ina,crime through any actionencompassed bythe Stature, even if it differs from the particular theory supportedbythe Prosecutor. In that regard, the Trial Chamber, asthe finder of factand trier of law, is free to apply any theory it finds applicable tothe facts ofa caseas long as it lits within the confines ofArticle 6(1) of the Statute theTribunal. The Prosecutor would further submit that as a mie,the Defence is on sufficientnotice through the pleading of Article6(1) in theindictment that617any one of the theories ofdirect responsibility couldapply.

6~7See Prosecutor v. Kordic and ^erkez, Decision on theDefence Motion to Strikethe Amended lndictment for Vagueness, Case No. IT-95-14/2-PT,T. Ch. III, 2 Mar.1999

111 133.Finally, the Prosecutor submits that if the TrialChamber accepts the testimonyof anyone of thewitnesses produced in supportof theevents that occurredin Mubugasecteur as outlinedin paragraph6(b)(i) of theindictment, it shouldfind the Accused guilty of thecrimes of rapeas a crimeagainst humanity,genocide or complicityin genocide,through commission or otherwiseaiding and abetting attackers to rapeand kill Tutsi civilians in Mubugasecteur on or about15 April1994.

Events at the Mugonero Complex, Gishyita commune. TheProsecutor’s Case

134.In paragraph6(c) the Prosecutor alleges that between 14 and16 April 1994,The Accused in concertwith, amongst others, Charles Sikubwabo and an Interahamwenamed Gisambo took three civilian Tutsi women Josiana, MarianaGafurafura, and MarthaGafurafura from Mugonero Complex where theyhad sought refuge, to Gishyitacommune where they continually raped them.

A Summargof theEvidence Presented by theProsecutor.

135.In supportof theparagraph outlined above, the Prosecutor relies on the evidenceof WitnessBI.

136.Witness BI testifiedthat around 13 or 14 April2004, he wasat Mugonero Complexwhere he was seekingrefuge. Witness BI was veryclose to the schoolin thecomplex when a groupof about150 attackers 618,among them the Accused,Gisambo and CharlesSikubwabo, the formerBourgmestre of Gishyita,came from the direction of theparent SDA church. Witness BI saw the Accusedon footbut shortlythereafter, the Gishyita Commune Toyota vehiclejoined the Accused and his accompliceswho stood talking to the Gendarmes.619

137.Witness BI testifiedthat after the Accused and lais group had talked to the Gendarmes;the accusedand accomplices went towards the SDA officeinto staffhouses at Kiyovu,a houseof youngwomen who worked at thehospital. Aftera while,he saw the Accusedand his companions,at a distanceof between30-50 meters, come out with three women.

138.The Accusedand his accomplicesasked the threewomen to boardthe GishyitaCommune vehicle and drove them away.62° The witnesshad previouslyknown the three young women as Martha,Mariana and Josiana. He

6~sSeepage 5 transcriptsof30 ~ April2004. 6~9Secpage 4 transcriptsof30 ~ April2004. 620Seepages 5/6 transeripts of30 th April 2004.

112 testifiedthat Martha and Mariana were sisters, daughters of oneGafurafura andworked at the hospital while Josiana, although she stayed with Martha and Marianain the samehouse, Witness BI did not knowwhether she was a nursing62~ student or a hospitalemployee like Martha and Mariana.

139.The wimess testified that the followingday at noonhe sawthe Accused and twocommunal policemen bring back the girls in theGishyita Commune vehicle.He sawthem park the vehicle near the SDAwhile he wasstanding nearthe nursing near the nursing school at a distanceof between35 and45 meters.622He testifiedthat when the girls were brought back, one disembarked fromthe front of thevehicle, the other two disembarked from the rear while theAccused disembarked and stood by thevehicle for a whilebefore driving off.Witness BI testifiedthat he spoketo Martha,Mariana and Josiana, who confidedto himthat the Accused, Charles Sikubwabo and one Gisambo raped them623 in theaccused’ house at Gishyitawhere they had been taken.

TheDefence case

140.The Accused disputes that three Tutsi women namely; Josiana, Mariana Gafurafura,and Martha Gafurafura were abducted from Mugonero Complex wherethey had sought refuge between 13 and14 April1994, and taken to Gishyitacommune where they raped them.

WitnessTQ7

141.Witness TQ7 testified that she was employed at theMugonero hospital in April1994. 624 The essenceof WitnessTQ7’s testimony, was that Martha Nyirahabimana,a 40-year-old nurse at the Mugonerohospital, who the witnessdescribed as thedaughter of Gafurafuradid not seek refuge at the Mugonerocomplex during the eventsof April1994, as she was awayin Kabgayiattending a training course. 625In that regard, the witness testified that it couldnot have been possible for Martha to be rapedat eitherMugonero or Gishyitain April1994, because Kabgayi was morethan a 100 kilometers from626 Gishyita.

142.Witness TQ7 further testified that Maria Mukeshimana, who was Martha’s youngersister and Gafurafura’s second daughter, lived in Kigaliwith her brotherin April1994 and consequently could not have been raped in Gishyita duringthat period.627

62~Seepage 6 transcriptsof 30 ~ April2004. 622Seepages 6/7 tmnscripts of 30 ~ April2004. 623Seepage 7 transcriptsof30 th April2004. 624Seeexhibit D53 62sSeepages 40/41 transcnpts of 23 August2004. 626Seepages 42 transcdptsof 23 August2004. 627Seepage 43 transcriptsof23 August2004.

113 143. WitnessTQ7 furthertestified to knowinga lady calledJosiane Mukeshimana.Witness TQ7 testified to havingattended school with this lady who had laterchanged her nainefrom Janet(allegedly Johaneta in Kinyarwanda)to Josiane. She testified that the said Josiane, who was about 26 yearsold, was the daughterof an AmosKarera who was in chargeof the secretariatatthe Mugonero hospital. 628The witness testified that Josiane had twoyotm66~er sisters. One was called Jean-Eugene Murekatete and the other, Chantal. 144.The witness testified that Josiane was at theMugonero complex in April 1994,but Maria and Martha were not at thatlocation with her.63°The witness testifiedthat it wasvery unlikely that Josiane could have been raped at the Mugonerohospital because there where no reportedcases of tapeat the complexbefore she left and she never heard of anywhen she returned to the area.TQ 7 addedsince many people had come to seekrefuge at thatlocation, itwas impossible foranyone to carry out rapes.631

145.The Prosecutorwould represent to theTrial Chamber that it is obvious fromthe testimony of thiswitness that she has no directknowledge of the matterson whichshe seeks to testify.Rather it would seem from her evidence thatshe had been thoroughly briefed on theevidence adduced in thecase by Prosecutionwitnesses BI, and BH.

146.In thatregard, Witness TQ7 admittedin cross-examinationthat the Defenceinvestigator inthis case is berbrother. 632 This information wasnot disclosedto thecourt by theDefence either prior or duringthe evidence of thiswitness in chief.The evidence of TQ7is influenced by her relations with the633Accused and other defence witnesses 147.Witness TQ7 admitted that she was not presentat theMugonero hospital fromthe 11 April1994. 634That being the case, the Prosecutor who represents to theTrial Chamber that Witness TQ7 could not have had any knowledge of eventssurrounding thealleged rape of Tutsiwomen gathered at thatlocation. 148.In thatregard, Witness TQ7 admittedthat she neithersaw Josiane, Eugenia,Maria, nor Martha’s throughout the montla of April"1994. " "odIn 635 that regardhe couldtherefore not attest to theirwhereabouts during tlaat pen . 149.In anyevent, the Prosecutor would represent to theTrial Chamber that WitnessTQ7’s evidence that Martha and Joyce Mukasine could not have been rapedat theMugonero Complex in April1994, because there were studying at

«2sSecpage 44 transcriptsof 23 August2004. 629Secpage 44 transcriptsof 23 August 2004. 630Secpage 48 transcripts of 23 August2004. 631Secpage 5l transcriptsof 23 August2004. 632SecExhibit P43; Sec page 61 transcriptsof 23 August2004. 633Similarly,Witness TQ7 admitted in cross-examinationthatDefence wlmess DR2 was her junior sister. 633 Witness TQ7 further admittedunder cross-examination thatDefence witness DRI was her younger brother 633and that Defence witness NM6 was her older brother.633 634Sec page 59 transcriptsof23 August2004. 635See page 60 transcripts of23 August2004.

114 Kabgayiand Butare respectively, is contradicted by the testimony of Defence witnessAH8. 150.In thatregard, Witness AH8 testified that primary and secondary schools in Rwandahad closed for the Easter holidays during the last week of March 1994and were.meant to havereopened during the weekcommencing 12 April,2004 but no schoolcould reopen due to theoutbreak of thewar in Rwanda.636 Thewitness further confirmed that universities in Rwanda were also637closed at this time.

151.Witness AH8 testified that as at thetime of thePresident’s death, the schoolsin Rwandahad closed for the holidays for about three weeks. The witnessfurther testified that it wascustomary from students who schooled awayfrom home to returnto theirhomes in theircommunes of originduring suchschool holidays. He wasadamant that the schools did not reopen during themonths ofApril, May and June 1994638

152.It followsfrom Witness AH8’s testimony that even if Marthaand Joyce Mukasinewere away from Mugonero prior to April1994, they would have retumedto theirhome in Mugoneroat theend of Marchin timefor the Easter vacation. 153.The Prosecutor would represent to theTrial Chamber that the evidence of WitnessTQ7 mustbe treatedas biaseddue to her relationshipwith the Investigatorin this case as thewitness has a clearmotive to givefalse testimonyinthis case.

WitnessTQ 28

154.Witness TQ 28 testifiedthat Josiane was not raped at thecomplex on 16 April1994 because if shewas he couldhave heard about it as he hadsought refugethere from 8 to 16 April1994. 639 The witnesstestified Martha NyirahabimanaandMarie were children of Gafurafura,and that in April1994 Marthawas resident in Kibuyeor Kigali,although her two children and house helpwere in Ngoma.In responseto a leadingquestion from Defence Counsel, WitnessTQ 28 confirmedthat he didnot see Maria Gafurafura on the15 or 16640April 1994.

155.It is submittedthat Witness TQ28 was hot insidethe MugoneroComplex between641 12 and16 April1994.

636Secpage 73 transcripts of6 September 2004. 637Seepage 74 transcripts of6 September 2004. 638Seepage 68 transcripts of6 September 2004. 639Seepage 2 transcriptsof24.8.04 64oSeepage 3/4 transcripts of24.8.04 64~Seepage 19 transcripts of24.8.04

115 WitnessTQ 8

156.Defence witness TQ 8, gendarmerietestified that following the death of thePresident there were explosions in Kigali town, where the witness worked, signifyingthat there was insecurity. 642He testifiedthat Mathias and Marie Mukeshimanawere children of Gafurafurathat Mathias was resident in Kigali butdid not know what he was doing.643

157.He testifiedthat he sawMarie on 8 Aprilat Kacyirucamp, again on 12 Aprilwhen he accompaniedher and her friend Rachelle to St.Famille church and on 20 April1994 when he passedby at Ste.Famille church. TM The witnessby implicationdid not see Marie between 13 and19 April1994, nor wasthe witness at Mugoneroin this period. 645The witness testified that the allegationthat the Accusedabducted her on 14 April1994 from Mugonero complexand raped her could not be truebecause she was at theSte. Famille church646 in Kigali.

158.The testimony of thiswitness is intendedto showthat the Accused could not haveabducted or rapedMarie Mukeshimana in April1994 because she was not in Mugonero.But Defencewitness TQ 8 was not in Mugoneroin April1994 either. He didnot secMarie between 13 and 16 April1994 in Kigalior anywhere. In facthe hasno basis at ailfor saying that between 13 and16 April1994 Marie was not in Mugonero.

159.Although he claimedthat Marie used to staywith her brother Mathias in Kigali,he had not beenat Mathias’sbouse. He doeshOt evenknow what Mathiasdoes for a living,let alone where he livedin Kigali. His knowledge of Mariewas confmed to threebrief occasions when he claimsto haveseen her on 8, 12 and20 April1994. Defence witness TQ 8 doeshOt again know what Mariedid for a living.

160.Defence witness TQ 8 wasa gendarmeyet he claimednot to haveknown thatthe interimgovemment set up roadblocksas a securitymeasure. He claimedthat there were no roadblocksin Kigali. He couldnot have failed to seeone when he saidhe wentto Ste.Famille church on 20 April1994, as by thenKigali was replete with roadblocks. As T 8 wasnot in Mugonerobetween 13 and16 April1994, does not know Marie Mukeshimana and that he denies theobvious when he thinksthat they do notsuit his evidence, his testimony cannot be relied upon.

642Seepage 58 transcriptsof 24.8.04 643Seepage 58 transcriptsof 24.8.04 64«Seepage 59 transcriptsof 24.8.04 64»Seepage 71/72 transcripts of 24.8.04 646Secpage 59 transcriptsof24.8.04

116 WitnessAH7

161.AH7 testified that he heardthat in April1994 looters attacked Mugonero hospital.He testifiedthat he neverheard about rapes in Ngomaalthough he couldnot confirm it.647

Wimess AR1

162.Witness AR1 testified that Martha Nyirahabimana a.k.a Gafurafura was a nurseat Mugonerohospital but was at Kabgayiin Gitaramaprefecture during April1994. 648He testifiedthat Marie Mukeshimana a.k.a Gafurafura was his formerclassmate, who in April1994, was residingwith her brotherin Kigali.649

163.According to WitnessAR1, Josiane, Johanetta, Janette Mukeshimana and EugenieMurekatete were children of AmosKarera. He testifiedthat he did notknow where Josiane was in April1994 and did not hear that she was raped at Mugonero.He testifiedthat in April1994 Eugenie was resident in Kigali andthat he is notaware that she was raped at Mugonero.65°Hetestified that Eugeniewas not attendingESAPAN in Mugoneroin 1994,651 and thatno personby thename of EugenieMurekatete worked as a cleaneror maidat Mugonerohospital.652[

164.Witness AR1 concededthat he was not at the MugoneroComplex on 13 or 14 April1994 to see whetherthe Accusedtook away girls from that location.He concededalso that he wasnot in theMugonero Complex, Kigali or Butareon 16 April1994. He concededthat he couldhot therefore account forthe whereabouts of Martha, Marie, Josiane, Johanetta, Janette, Joy or Eugeniebetween 13 and16 April1994. He concededalso that it wasnormal forpeople to go back to their places of origin in rimes of trouble, such that it wasexpected of Mariaor Joyto returnto Mugoneroduring the genoeide. 653

165. WitnessAR1 is intendedto show that the Accusedcould not have participatedin abductionfrom MugoneroComplex and rape of Marie Mukeshimanaand MarthaNyirahabimana at Muhimana’sresidence in Gishyitaon 13 April1994, or participatedin the rape of JoyMukasine, JohanettaMukeshimana or EugenieMurekatete at Mugonerocomplex on 16 April1994 because these ladies were hOt in Mugonerobetween 13 and 16 April1994.

647See page 46 transcripts of6.9.04 ~~Sec page 46 transcripts of2.9.04 649Sec page 46 transcripts of2.9.04 6»0Secpages 46/47/49 transcripts of2.9.04 6»~Secpage 51 transcripts of2.9.04 652Secpage 53 transcripts of2.9.04 6»3Secpages 64/65 transcripts of2.9.04

117 166.Witness ARI testifiedthat he did notknow where Josiane was in April 1994,so he cannotknow whether or notshe was raped at Mugonerohospital. He claimedthat Joy Mukasine was schooling at ButareUniversity. There is evidencethat schools and universities were closed for Easter holidays during April1994 and that students went to theirhomes for holidays. The fact that WitnessAR1 did not sec herin Mugonerodoes not mean that she was not there.

167.Ris further submitted that this also applies to MarthaNyirahabimana who wassaid to be studyingat Kabgayiin Gitarama.The school was closed in April1994 and all studentswere expected to be at theirhomes. Marie Mukeshimamaand Eugenie Murekatete are alleged to bavebeen in Kigaliin April1994. Witness AR1 was not in Kigaliin April1994 nor was he at Mugonerohospital or Gishyitatown between 13 and 16 April1994 when Prosecutionwitnesses place these witnesses there.

168.In factduring this period he was hidingin Bamporoki’sbouse at the Kabahinyuzamarket, which was over 500 metresaway from Mugonero Complex.There was evidenceled to showthat in rimesof troublepeople tendedto go backto theirplaces of origin for safety. Assuming that some of thesewitnesses were in Kigali,Butare or Kabgayione would expect that when warbroke out they went back to their places of origin.

TheProsecutor’s Case

169.In paragraph(6)(i) the Prosecutoralleges on 16 April1994, at MugoneroComplex, The Accusedin concertwith two Interahamweraped civilianTutsi women in oneof thehalls of theMugonero medical school. The Accusedraped one MukasineKajongi while brutally assaulting her and removingher clothing so thatpassers by couldview her sexual organs.

A Summarvof theEvidence Presented by theProsecutor.

170.In supportof theabove-mentioned allegation, the Prosecutor relies on the testimonyof WitnessAT.

171.In thatregard Wimess AT testifiedthat on Saturday16 th April1994 he wasat MugoneroComplex were he hadsought refuge. At 9 AM,there was an attack,which lasted till about 9PM. In thatregard Witness AT identifiedthe Accusedamongst other attackers. Witness AT testifiedafler spending a short whilein thisroom hiding under the corpses, three girls, Mukasine daughter of Kajongi,who hadjust completed Nursing studies in Mugonerohospital and AmosKarera’s daughters who werea teacherand a studentrespectively, residentin Kanyinya~54came running and lay on the three beds. 655He testified

654See page 14 transcripts of19 ~ April2004,

118 thatIsaac Kajongi was SDAAccountant in the officeof PastorElizaphan Ntakirutimanaand AmosKarera who lived in theemployees’ quarters in the Mugonero.656

172.Wimess AT testifiedthat froma distanceof aboutfour and a half meters,657 he saw the Accusedand two of Kanyabungo’ssons who were soldiersenter the room in which he was and rape the three girls. 6»8He testified thatthe Accused raped Mukasine, who pleaded with him to spareher life. Mukasinewore a yellowskirt and red shorts. She also wore a multi-colored shirt.659The Accused wore a pairof trousers,a military type over-shirt and a whiteT-shirt inside.

173.Witness AT testifiedthat while raping Mukasine, the Accused did not take offhis white shirt and only pulled his trousers down before having sexual intercoursewith her. 660 He testifiedthat the Accused hit Mukasine on her chestwith the butt ofthe gun and leaned on berknees to tryand unbend them sinceshe had bent them. 661He askedher to undressand when she refused, he forciblyremoved her panties, threw ber to the ground, hit her with the butt of his662gun and had sexual intercourse with her without her consent.

174.Witness AT testified that the three men raped the three girls for about rive minutesafter which they decided to killthem, saying; "Those girls are Inyenzi.We arenot going to abandonthem here. We arenot going to leave themalive. " WitnessAT testifiedthat after killing the three women, the Accusedopened Mukasine’s legs so that"’everyone passing should see what thevagma of a Tutsiwoman looks like." 663 The witness testified that the rapestook place about four meters from where he waslying on hisside with corpsesaround him. He testified that he could clearly see what was happening sincethe three assailants were busy raping the three girls and so couldhOt noticethat he was alive.

TheDefence Case.

175.The Prosecutor would represent to theTrial Chamber that the Accused doesnot dispute that Tutsi refugees gathered at theMugonero Complex were attackedon 16 April1994. Indeed Defence Witnesses DI admittedto having

655See page 13 transcriptsof 19 th April2004. In cross-examination(seepage 53 transenptsof 19 April2004) witness AT statedthat apalxfrom Mukasine, Isaac Kajongi’s other children were Paul Muvuni who was an officerin theRPF armyand Didas who wasa lieutenantin the RPF army. 656See pages 13/14 transcripts of 19 ~ Apri12004. 657See page 17 transcripts ofl 9 ~ April2004. 6»~See pages 15/17 transeripts of 19 ~ April2004. Under cross-examination, witness AT describedthe rape as, "’The Accused removed histrousers, removed his penis and introduced it into the vagina orifice of thewoman, and while The Accused was doing this, the younglady was crymg, was screaming, which means that she didn "t wantto yieldto TheAccused’s...she didn"t wantto do whatThe Accusedwanted to do."’ Seepage 3 transcriptsof 20 April 2004. 6»9See page 2 transcriptsof20 th April 2004. 660Seepage 55 transcriptsof 19 « April2004. 661Seepage 3 transeriptsof20 t~Apdl 2004. 62Seepage 16 transcriptsof19t~ April2004. 663Seepages 16/17 transcripts of19 ~ April2004.

119 participatedinthe said attack. Witness TQ28 and AR1 also testified that they wereaware of the said attack.

176. The Accusedhowever denies that Tutsi women were raped during the attackon Tutsiat the MugoneroComplex on 16 April1994. The Accused furtherdenies that he participated in the rape of Tutsi women at the Mugonero Complexon 16 April1994. In thatregard, the Accused relies on theevidence ofthefollowing witnesses: TQ7, TQ28.

WitnessTQ 28

177.Witness TQ 28,a secondyear university student, testified that he sought refugeat thehospital Mugonero complex, along with members of hisfamily from8 to16 April1994. 664He testifiedthat he andmembers ofhis family left thehospital at 7 am on 16 April1994 reaching Gishyita centre at 8 am the sameday. He estimatedthe distance between the two places to be fouror rive kilometer.66s

178.Witness TQ 28 testifiedfurther that Joy Mukasinewas thedaughter of IsaacKajongi and that in April1994 she was studying at ButareUniversity in Butareand therefore could not have been in Ngomawhere she is allegedto havebeen raped on 16April 1994. 666In the same vein, TQ 28 testifiedthat he toowas a studentat ButareUniversity but in April1994 he wasat homefor Easter667 holidays.

179.The witnesstestified that Charles Ukobizaba, the Mugonerohospital accountantdid not bave a daughterby thename of Mukasine.668He testified that669 Johanetta, Josiane and Eugenie were daughters of AmosKarera.

Wimess TQ7

180.Witness TQ7 testified that she knew the familyof a mancalled Issacar Kajongiwho worked in theaccounts department at the Mugonerohospital. Thewitness testified that she knew all Kajongi children including two of his daughters- JosephineMukangarambe and JoyceMukasine. 67° WimessTQ7 testifiedthat as faras shewas aware, these two ladies had different sumames fromtheir father.

181.Witness TQ7 testified that Joyce Mukasine was in Butarein April1994, studyingpublic health.671Witness TQ7testified that she did not know what

664Seepage 72 transcripts of 23.8.04 665Secpage 73 transcriptsof 23.8.04 666Secpage 6/7 transcripts of 24.8.04 667Secpage 17 transcriptsof 24.8.04 66sSecpage 7 transcriptsof 24.8.04 669Seepage 8 transcriptsof 24.8.04 670Secpage 46 transcriptsof 23 Augusl2004. 67~Seepage 47 transcriptsof 23 August2004.

120 eventuallybecame of JoyceMukasine and that the last she, knew, this lady wasat Butare. 672She testified that she knew another lady called Mukasine but thisperson lived outside the Mugonero complex.673

WitnessAR1

182.Wimess AR1 testifiedthat Joy Mukasinewas the daughterof Issacar Kajongithe SDA Field Accountant, and that in April1994 she was schooling atButare University. He testified that on 16 April1994 Joy Mukasine was at ButareUniversity in Butare because he didnot see her at Mugonerohospital wherethe restof themembers of herfamily had gone to seekrefuge. He statedthat as he left the hospital on12 April and did hot retum there until the endof themonth he couldhot tell whether Joy Mukasine could have been at the674hospital inthe period he was not there.

183.Witness AR1 testifiedthat the Mugonerohospital accountant Charles Ukobizabadid not have a childby thename of JoyMukasine. 67»Witness AR1 testifiedthat no rapeswere committed at Mugonerohospital on 16 April1994 because"...people went there to loot or kill others. They therefore would not havehad time to committape. .676

WitnessAH7

184.Wimess AH7 testified that Joy Mukasine taught him at MugoneroNursing Schoolin 1993and that in 1995.AH7 deposes he receiveda report from his fatherwho heard from Mukasine’s father who was told by oneofhis sons that in677 April1994 Joy Mukasine was studying at ButareNational University. He testifiedthat Josiane was Amos Karera’s daughter and that he didnot knowwhether she was in Ngomain April1994, although he heardpeople say thatshe couldhave been in Kigali1994. 678 WitnessAH7 testified that Eugenie679 and Josiane are sisters.

185.Witness AH7 testified that he heardthat in April1994 looters attacked Mugonerohospital. He testifiedthat he neverheard about rapes in Ngoma although68° hecould not confirm it.

186.Witness AH7 testifiedthat around 1995 Prosecution witness AT TM told himthat in April1994 he fledto hisuncle in Murambiarea where he hid throughoutthe 1994 events. He testifiedthat Prosecution witness AT toldhim

672Seepage 48 transcriptsof 23 August2004. 673Seepage 48 transcriptsof 23 August2004. «74Seepage 51/52 transcripts of 2.9.04 67sSeepage 53 transcriptsof2.9.04 676Seepage 54 transcriptsof2.9.04 677Seepage 43 transcripts of6.9.04 67~See page 44 U~.nscriptsof6.9.04 679See page 46 transeriptsof6.9.04 680See page 46 transcripts of6.9.04 68~SeeDefence exhibit D 87.

121 that he wouldsometimes pretend to be Interahamweby wearingbanana leavesand bearing a machete,as a meansof survival.Witness AH7 testified thaton thebasis of whathe hasnarrated Prosecution witness AT couldnot havesought refuge at Mugonero.

187. In cross-examinationWitness AH7 statedthat he testifiedin the Ntakimtimanacase on 29 April2002 as Defencewimess in whichhe stated thatfrom 14 April1994 to 30 April1994 he wasgrazing Ntakirutimana’s and his682father’s heads of cattlein theNgoma area near the Mugonero complex. He testifiedthat on 16 April94 he wasnot at theMugonero Complex but wentthere around 18 or 19 April1994 and saw onlytwo deadbodies. He testifiedthat he did not enter the hospital, church or administration blocks in the683complex.

188.Witness AH7 testified further in cross-examinationthatin April1994 he did notlive in one cellulewith Joy and EugenieMukasine and thatthe distancefrom his residence to the two girls’ residence could be coveredin 30 minutes.684He testifiedthat he is notaware whether Prosecution wimess AT had testifiedin Kayishema/Ruzindanaand Ntakirutimana cases and that whetherin thosecases he stated,as in thiscase, that on 16 April1994 he soughtrefuge at MugoneroComplex and laterescaped to Murambiand Biseserohills. 685 In responseto questionsfrom the Bench Witness AH7 concededthat he hadno reasonto knowwhere Prosecution witnesses AT and BH686or thethree girls Joy, Josiane and Eugenie were in 1994.

189.The essenceof the testimonyof witnessAH7 is two fold,firstly to distanceJosianne, Joy and Eugenie from Mugonero hospital thereby making it unlikelyfor the Accused to haveparticipated in their rapes on 16 April1994, and,secondly, to distancingAT and BH fromMugonero Complex thereby makingit unlikelyfor them to haveseen the Accused rape Josianne, Joy and Eugenieat thecomplex on 16 April1994.

190.Prosecution witnesses AT andBH hadtestified that they sought refuge at Mugonerocomplex on 16 April1994 wherethey witnessed the Accused participatein the rape of Josiane,Joy and Eugenie. Witness AH7 had spent the period14 Aprilto 30 Aprilgrazing cattle in the fieldsaway from MugoneroComplex. In particularhe wasnot in theMugonero Complex on 16 April1994, so he is notin a positionto saywho was or wasnot there and whathappened at thecomplex on thatday.

191.Witness AH7 did not live in onecellule with the girls Josianne, Joy or Eugenieso he couldnot tell whether they were in Ngomain April1994. He

682Seepage 48 transcripts of6.9,04 ~s3Secpage 50 transcripts of6 9.04 684Seepage 50 transcripts of6.9.04 «8»Seepage 50 transeripts of6.9.04 6s6Seepage 51 - 55transcripts of6.9,04

122 claimed,on veryflimsy evidence that Joy Mukasine was at ButareUniversity in April1994. Firstly, ithas not been shown that the lady was at Butare,and, secondly,even if shewas a studentthere, Defence witnesses AH8, TQ28 and others,testified that during April 1994 schools, including Universities, were closedin Rwandaand that students went back to theirhomes.

192. The claimthat Prosecutionwitnesses AT and BH met with Defence witnessAH7 and toldhim how theysurvived the genocideis a productof AH7’simagination. AT and BH had writtenseveral statements on their activitiesduring April May and June 1994, and in noneof thosestatements do theysay let alone allude to thefantastic stories witness AH7 attributes to them.Witness AH7 is, on this score, not credible.

TheProsecutor’s Case.

193.In paragraph6 (c) ((ii) the Prosecution alleges on 16 April1994, at Mugonerocomplex, The Accused and Interahamwe collectively raped civilian Tutsiwomen Mukasine and Murekatete staffmaids at Mugonerohospital, and a civilianHutu lady BJ-IC The Accusedsubsequently apologized to Anne MarieNyampinga BJ-K for the "mistake" of rapingher as he initiallythought shewas Tutsi.

194.In supportof theabove-mentioned allegations, theProsecutor relies on the evidenceof WitnessBJ.

A Summm’yof theEvidence Presented by theProsecutor.

195.Witness BJ testifiedthat among the refugees at Mugonerohospital, that she knewtwo othergirls; Mukasine and Murekatete.The witness explains she knewMukasine since Mukasine introduced herself to her beforethe attacksbegan. 687She knew Murekatete before. Murekatete was also working as a domesticservant at a houseadjacent to wherethe witness BJ hadbeen working.688While witness BJ andthe other two girls were in room3, the Accused,entered the room with two other men. It is witnessBJ’s evidence thatthe Accused beckoned the girls to followhim at thesame time addressing themas follows: "You’’689 young girls sitting onthe bed follow /,/S.

196.Witness BJ testifiedthat she and the two girls then followed the Accused to Room4, a roomthat was opposite the roomthe Accusedfound them in. WitnessBJ testifiedthat she was able to positivelyidentify the Accused becauseshe knew him even before the incident under discussion. Witness BJ hadknown the Accused as thecounseiller of the Gishyita secteur. Witness BJ alsoknew the Accused as a traderwho used to buy and sell coffee.

687See page 37 transcripts of6 April 2004 488See page 46 transcripts of6 April 2004 689See page 37 transcripts of6 April 2004

123 197.Witness BJ evenrecalled that at onetime her parents would sell coffee to theAccused. 69°Witness BJ successfullyidentified the person she kept on referringto asthe Accused, in court.She noticed and remarked that the only materialdifference was that the Accused had put on weightand that he had becomea Muslim.691In cross-examination,thewitness emphasized that the Accusedwas theleader the two others Interahamwe who were following his orders.692Witness noted that the Accused accomplices were armed; one had a club693 and the other a machete.

198.Witness BJ explainedthat the Accused, the Accused specifically ordered herand the other two girls, Mukasine and Murekatete to undress and to lieon theirback 694so that:"they could sec what the genitals of a Tutsilooked like"69s.Witness BJ testified that the Accused, the Accused proceeded torape her.The Accused’s accomplices also started raping Mukasine and Murekatete. Accordingto the witness B J, theAccused "... took his penis and introduced it into696 my sexual parts".

199.The othersInterahamwe raped the girls. When they protested it is the witness’sevidence that the assailants threatened tokill them brutally: "’We are goingto Mil you.After having,ra~ed you, we are goingto pierceyour genitalswith a sharpenedstick. The witnesshad neverhad a sexual intercoursebefore this incident. According to thewitness the rape lasted aroundthree minutes and she felt pain.

An Analysisof theEvidence Presented by theProsecutor.

200.Witness B J, the TrialChamber will recall, gave evidence very well. Besidesher credible evidence she also impressed as a youngHutu girl with a veryforgiving disposition. Throughout her testimony she did not exhibit any bitternessdespite iat she was raped at a tenderage of 15.She has absolutely no reasonto comeand falselyimplicate the accused.Throughout her testimonywhat the honorable court would have noted is a distinctring of truth.She knew the Accused, she positively identified him ata very close and undesirablyintimate distance, the Accusedraped her and an alert Interahamwewho identified her as Hutusaved her from death.

The DefenceCase

201.The Prosecutor would represent to theTrial Chamber that the Defence did notpresent any specific evidence to challengethe testimony of Prosecution

490See page 38 transcripts of 6 April2004 691Sec page 38-39 transeripts of6 April2004 692Sec page 47 transcriptsof 6 April2004 693Sec page 40 transeriptsof 6 April2004 694Sec page 39 transcriptsof6 April2004 695See page 37 transcriptsof6 April2004 696Sec page 41 transcriptsof6 April2004 697Sec page 37 transcriptsof6 April2004

124 WitnessBJ. It wouldsuffice it tosay that the Defence rely on theevidence of WitnessDI, TQ28,DR, AH8 that the Accusedwas hOt at the Mugonero Complexon 16 April1994.

TheProsecutor’s Case

202.In paragraph6(c)(iii) the Prosecutor alleges on 16 April1994, in surgicalwardroom in theMugonero hospital, The Accused, in concertwith two Interahamwecollectively raped Tutsi women Johaneta,Theresa Mukabuteraand Eugenia, verbally insulting them in theprocess.

203.In supportof the above-mentioned allegations, theProsecutor relies on the evidenceof WitnessBH

A Summa~of theEvidence Presented bv theProsecutor.

204.In thatregard Witness BH testifiedthat around 9 am on 16 April,a Saturdayhe was at theESI School,Mugonero Complex, where he hadsought refuge.The Accused,Charles Sikubwabo and Obed Ruzindana were amongst theattackers. The witness testified that some of theattackers came on foot whilethe Accused and Charles Sikubwabo, along with several soldiers came in theGishyita commune Daihatsu vehicle.

205,The witness testified that following the arrival of theattackers anattack waslaunched at thepeople in thecomplex killing many people including ail themembers of hisfamily. Witness BH sawthe Accused participate in the attack698 by shooting atthe refugees.

206.Witness BH testifiedthat in thecourse of theattack in theevening, he escapedto thesurgical ward in thebasement of thehospital complex. 699 He testifiedthat while in thesurgical ward, he saw three girls, Johaneta, Eugénia andMukabutera come to seekrefuge in thesurgery room, which overlooked theone he washiding in. 7°°A littlewhile later the witness saw the Accused, Alphonseand Muhayimanaentering the roomwhere the threegirls were hiding.7°1After the trio had tome in, the witness heard the Accused tease the threegirls by asking them to choose between being raped and being killed.

207.The girls were distressed and did not say anything. The Accused then told them,"You were arrogant, now we aregoing to do whatwe wantto do with

698See page 8 transcriplsof8 April1994 699See page 8 transcriptsof 8 April2004. BH maintainedin eross-examinationthathe didhOt enter the surgery room but sought refugein a roomclose to thesurgery room. "I wasin frontof thisroom. I wasnext to thedoor opposite the surgery.., the two room arenext to eachother." See pages 31 & 32 transcriptsof 8 April2004. BH’s statement of 11 November1999 reads that he ranto the surgeryroom. He explainedin cross-examinationthat"there is no majordifference" between what is containedin hisstatement and whathe statedin court. "Ail I knowis thatthe room in which(the three girls were raped) and killed was opposite me, and opposite isthe surgery" (see page 32 ofthe transcnpts of8 April2004). 7o0See page 9 transeriptsof8 April2004 7o~See page 8 transcriptsof8 April2004

125 you becauseyou are in our hands."The Accusedthen raped 7°2Johaneta; Alphonseraped Eugenie whilst Muhayimana raped Mukabutera. 7°3 Witness BH testifiedthat he washiding in a roomopposite to theroom the rapes were takingplace. He couldsee what was happening in thatbecause the room he wasin washardly a metreaway from the room the rapes took place.

208.The witnesstestified that he laydown amongst dead bodies so thatthe assailantswould think he wasamong the dead. 7°4The door to thatroom was openas it hadbeen smashed in thecourse of theattacks, and so werethe windows.7°» When they were donc,the Accusedand companydiscussed whetherthey should bring the girls with them or leavethem there. They decidedto leavethem lest they denounce them in future. The girls were later killedby Interahamwe.706

209.Witness BH testifiedthat he had knownthe Accusedand his accomplices namely,Alphonse and Muhayimanabefore that day, as sons of one Kanyabungo,a retired soldier, who used to livein Ngomasecteur. He testified thatAlphonse was an agronomistwho dealt in coffeeand lived in Kigarama cellule,Ngoma secteur, while Muhayimana was a soldier.7°7He testified furtherthat he hadknown Johaneta as a schoolteacher, Eugenie as a student at ESAPANand TheresaMukabutera as a peasant.7°8 He testifiedthat Johaneta7°9 and Eugenia were in facthis neighbours in the area he lived.

An Analvsisof theEvidence Presented bythe Prosecutor.

210.Wimess BH, the Prosecutor would represent, gave evidence clearly and in detail.Besides being particular to detailsthe witness the witnesswas positionedto see clearly what transpired and it is apparent from the quality of hisevidence that he was hOtmistaken as to anymaterial respect of his evidence.The Prosecutor will urge the court to accepthis evidence in its entirety.

The DefenceCase

211.The Prosecutor would represent to the TrialChamber that the Defence disputesthe fact that the Accused was present at theMugonero Complex on

702Witness BH described the act ofrape. He saidthat The Accused and his colleagues pulled down their trousers and each of themhad sexuaIintercourse with one of thegirls. The Aeeused "took his genitals and put them into the genitals of oneof theyoung girls." Sec page19 line 26 ofthetranscripts of 8 April2004. 70~Sec pages 9 - 10,transcripts of8 April2004 704Secpage 34 transcriptsof8 April2004. 705Secpage 17 transcripts of 8 April2004 706Secpage 10 transcriptsof 8 April2004. See also page 19 transeriptsof 8 April1994 on whyThe Aceused decided to abandonthe threegirls following the rapes In his testimony in court witness BH statedthat the three girls were killed by thelnterahamwe. In the witnessstatement of BH dated18 September2002, Defence Exhibit D14, there is an allusionthat The Accused may have killed the threegirls and not the lnterahamwe. Thewitness elarified the position (on page 52 lines3 & 4 ofthetranscripts of 8 April2004) statingthat he wasunder the mistaken impression that The Accused may have killed the girls as he waswielding a gun at thetime theywere killed. 707Sec page 11 transcriptsof8 April2004 708See page 12 transcripts of8 April2004. 709See page 37 transcripts of8 April2004.

126 16 April1994. The Defence also disputes the fact that Eugenia Murekatete waspresent at theMugonero Complex on 16 April1994.

WitnessTQ7

212.Witness TQ7 testified that it couldhOt have been possible for Eugenia Murekateteto have being ra~ed at theMugonero hospital because she was not presentthere in April1994.

WitnessAH7

213.The Prosecutor relies on hisassessment and submissions in relation to the evidenceof WitnessAH7 at paragraphs184-192 herein.

TheProsecutor’s Case

214.In paragraph6(c)(iv) the Prosecutor alleges that on 16 April1994, at MugoneroComplex, the Accused, acting in concertwith Interahamwe went to oneof theoperating rooms in themedical school building in theMugonero Complex and collectivelyraped Tutsi women AU-K, Immaculate Mukabarore,Bemadette Mukangorero and JosephineMukankwaro, in particularthe Accused raped AU-K.

A Summaryof theEvidence Presented by theProsecutor.

215.In supportof theabove-mentioned allegations, theProsecutor relies on the evidenceof WitnessAU. Witness AU testifiedthat she was in thechurch withmany other refugees. When there was a bigattack that started around 9 o’clockin themoming on a Saturday,711she recognized three girls among the refugees;712 Immaculee Mukabarore, Josephine Mukangwiro and Bemadette. It isAU’s evidence that during this attack in the church, she sought refuge in thesurgical ward. While she wasin thisroom, AU sawthe Accused, enter thisroom that was located in the basement.The Accusedwas among a big groupof Interahamwe.AU also recognized, one Ezekiel Ntakirutimana and AlphonseKanyabungo 713amongst the attackers.

216. WitnessAU observedthat the Accusedwas arrned with a gunand a club called"mpongano". Witness AU waswearing a trouser,a wrapper and a setof underwear.714The Accusedthrew the wltnessto the groundand toreAU’s pairof trousersand underwear. The witness begged him to spareher but he threatenedto killher. 7~5 The Accusedclimbed on to the witnessand

710See page 45 transcripts of23 August 2004. 711See page 3 transcriptsof7 April 2004 iiiSee page 9 transcriptsof7 April 2004 7t3See page 23 transcripts of7 April 2004 714See page 33 transcripts of7 April 2004 71»See page 6 transcriptsof7 April 2004

127 proceededto havesexual intercourse with the witness while he wasbanging herhead on thefloor. 716 He rapedthe witness twice and was also beating her.717During the course of therape, the Accused, indicated to AU thathe wouldtake her out of thecomplex after he wouldbe donebut he didnot do SO718

217.Whilst the Accusedwas rapingher, Witness AU saw otherInterahamwe beating,maltreating and rapingother female refugees. Witness AU also mentionedthe names of the girlsshe saw beingraped by Interahamwesas Mukabarore,719 Immaculee, Josephine Mukangwiro and one Bemadette. Afterwards,she managed to hideamong the dead bodies. The witness also testifiedthat the 3 othergirls were killed after having been raped by Interahamwe.72°Witness AU furthertestified that when she got out of the room,721 around 2 o’clockin the moming she fled to Zaire.

218.Witness AU furthertestified that before the Accused and other assailants attackedthe complex one of thegendarmes, Ezekiel Ntakirutimana, raped her at thechurch in Ngoma.The witness had gone to fetchfood and had met him on herway. 722

An Analysisofthe Evidence Presented by theProsecutor.

219.Witness AU, likethe otherwitnesses was rapedunder very coercive circumstances.She was verytraumatized. Her traumais understandable giventhe fact that she lost her entire family during the genocide. Her husband waskilled under circumstances shedoes not know. AU’s two children aged 5 and3 aedat MugoneroComplex attack. Her parents, brothers and sisters and othermembers ofher family suffered the same723 fate.

220.Clearly it wasapparent that her testimony was a reminderofher great loss. On thatSaturday she was very adamant that the assailants included among othersObed Ruzindana, the Accused,Kayishema and CharlesSikubwabo. She saw the Accusedapproach the roomshe was in. Mikahad a gun and knife.This room, located in thebasement, being second room to the left was a subjectof intensecross-examination.724At onestage Witness AU saidwhen theAccused raped her she was alone. Her evidence is buttressedby her only witness72» statement which was taken when event were still fresh in hermind. WitnessAU crediblydescribes how she and the other victims were raped.

716See page 4 transcriptsof7 April2004 717See page 5 transcriptsof7 April2004 7~8Sec page 7 transeriptsof7 April2004 719See page 9 oftranscript of7 April,2004 72oSee page 9 transcriptsof7 April2004 721Sec page 4 transcriptsof7 April2004 725See page 6 transcriptsof7 April2004 723See page 6 transcriptsof7 April2004 724Sec page 22 of transcript of 7,4.2004. 725See Witness statement tendered in as Exhibit.See paragraph 13-16 of page25 of transcriptof 7.4.2004.

128 The DefenceCase

221.The Prosecutor would represent to theTrial Chamber that the Accused did notpresent any specific evidence to challengethe testimony of Prosecution WitnessAU. It would suffice it to saythat the Accused relies on theevidence of WitnessDI, TQ28, DR, and AH8 that he was not at the Mugonero Complexon 16 April1994.

TheProsecutor’s Case

222.In paragraph6(c)(v) the Prosecutor alleges that in May1994, in a pub Ngoma,the Accused, acting in concertwith others, including a soldier named Gikeri and one Obed Ruzindana, raped a Tutsi woman Bahati Nyiransengimanaand otherwisephysically assaulted the said Bahati Nyiransengimana,Tutsi women Helen Mugiraneza and Drocella,aged 9 years.

A Summaryof theEvidence Presented b¥ theProsecutor.

223.The Prosecution did not offer any evidence in supportof thisallegation, whichwas the subject of Rule 92 bis"application.

IndividualCriminal ResponsibiliW ofthe Accused

224.The Prosecutor would represent to the TrialChamber that the evidence adducedby Prosecutionwitnesses BI, BG andBH provebeyond a reasonable doubtthat the Accused participated in the rape and sexual assaults of Tutsi womenand WitnessB J, a Hutugirl mistaken as Tutsiat the Mugonero Complexon 16 April1994.

225.In thatregard, the Prosecutor would further represent to theTrial Chamber thatby conveyingattackers to theMugonero Complex, distributing weapons toattackers atthe said complex, weapons that were used to kill Tutsi civilians and tapewomen and by subsequentlyparticipating in an attackon Tutsi refugeesgathered at thesaid location, the Accused directly and substantially contributedtothe rape and killing of Tutsi civilians in Gishyita commune and thusincurs liability for having instigated, committed, orotherwise, aided and abettedin thecommission ofthe offences outlined inCounts 1 , i-i,III of the presentindictment.

129 226.The Prosecutorwould further represent to the TrialChamber that the Accusedknew that by conveyingweapons and attackers in vehiclesto the MugoneroComplex such conduct would materially assist the said attackers exterminationof Tutsi and should have known that rape and acts of sexual assaultwould inevitably accompany the killings.

227.The Prosecutorwould further represent to the TrialChamber that the presenceof theAccused amongst attackers at theMugonero Complex before or duringthe attack on Tutsirefugees on 16 April1994, would have had a significantlegitimizing andencouraging effect on theperpetrators thereof in thecommission of thesaid crimes and that the Accused was aware that his presenceas a counseillerwas likely to havethat effect. As such,it is submittedthat the Accused must, at a minimum,incur criminal responsibility forhaving aided and abetted in theexecution of the crimes outlined in Counts I andII ofthe present indictment.

228.The Prosecutor further submits that a TrialChamber may find an accused personguilty ifit determines that he or she participated ina crime through any actionencompassed bythe Stature, even if it differs from the particular theory supportedbythe Prosecutor. Inthat regard, the Trial Chamber, asthe finder of factand trier of law, is free to apply any theory it finds applicable tothe facts ofa caseas long as it fits within the confines ofArticle 6(1) ofthe Statute theTribunal. The Prosecutor would further submit that as a rule,the Defence is onsufficient notice through the pleading of Article6(1) in theindictment that726any one of the theories ofdirect responsibility couldapply.

229.Finally, the Prosecutor submits that if theTrial Chamber accepts the testimonyof anyone of thewitnesses called by theProsecutor in support of the rapesand sexual assaults which occurred at theMugonero Complex as outlinedin paragraph6(c) (i-iv) of the indictment, it should find the Accused guiltyof rapeas a Crimeagainst Humanity or of the crimeof Genocide throughcommission or otherwiseaiding and abettingattackers to rape, sexuallyassanlt and kill Tutsi unarmed civilians gathered at theMugonero Complexon 16 April1994.

Eventsin theBisesero area, Gishyita and GisovuCommunes

230.In paragraph6(d) the Prosecutor alleges on or around22 April1994, Mika Muhimanapermitted an armedcivilian, one Mugoneroto detainand keep a Tutsiwoman BG-K in his housewhere he repeatedlyraped her for several weeks.The Prosecutor relies on theevidence of WitnessBG.

726Sec Prosecutor v.Kordic and ^erkez, Decision on the Defence Motion to Strike the Amended lndictment forVagueness, Case No. IT-95-14/2-PT,T.Ch. III, 2 Mar.1999.

130 A Summarvof theEvidence Presented by theProsecutor.

231.Wimess BG testifiedthat she saw the Accusedon severaloccasions in Bisesero,during attacks. According to witnessBG, the Accusedand the otherassailants "had corne to kill. They did not come to save lives. ,,727 The wimesstestified that a groupof Interahamwe,amongst who was the Accused, foundher and eight other refugees on the22 nd of Aprilaround 3.30 in the aftemoon.A big Interahamwe 72s namedMugonero asked the Accusedto give himthe wimess so thathe could"smell the body of a Tutsiwoman" which the witness729 understood meant he wantedto rape her.

232.The Accusedgranted Mugonero request, and the latter took the witness. Accordingto thewitness, Mugonero had to haveauthority from the Accused to perpetratethe rape on berperson. "Mugonero could not claim the right to takeme withoutpermission from the chief so hehad to firstof all talk to the chiefAnd when he madehis request, Mugonero took me awayand the others wereIcilled. ,730 The witness also testified that the other Interahamwe killed theother eight refugees and that the Accused did not do anythingto stop them,TM despite the fact that he was a veryinfluential person.

233. WitnessBG testifiedthat Mugonerotook her awayto his placein Muramba,Gishyita commune, and Gishyitasecteur. Mugonero ordered the witnessto carry his spear. Witness BG testifiedthat she felt that her days were numbered.732Witness BG alsotestified that when they arrived at hisplace, Mugoneroasked her to undress.The wimess initially refused but Mugonero threatenedtokill her with his spear.733

234.Witness BG testifiedthat Mugonero undressed her brutally.Mugonero proceededto havesexual intercourse with her on threeoccasions without her consent.TM WitnessBG testifiedthat she stayed at Mugonerohouse from the 22nd untilthe 24 thof April.During those days the witness was locked alone in a roomand at nightMugonero would corne back and rapeher. 73» Wimess BG furthertestified that she lived under very poor conditions as a resultshe foundit difficult toeat. 736She went to the toilet once.

235. On the nightof the 24th, witnessBG heardthe Interahamwethat were guardingher talking about killing all the Tutsis in Bisesero.Witness BG realizedthat either way she would not be spared.She decided to takea

727Seepage 37 transcriptsof 5 April2004 728Seepage 37 transcdptsof 5 April2004 729Seepage 38 transcriptsof 5 April2004 730Seepage 40 transcriptsof 5 April2004 731Seepage 40 transcriptsof5 April2004 732Seepage 40 transcriptsof5 April2004 733Seepages 41 transeriptsof 5 April2004 734Seepages 40 & 41 transcriptsof5 April2004 73»Seepages 42 transcriptsof 5 April2004 736Seepages 42 transcripts of 5 April2004

131 chanceand try to escape.737On thatsame night ofthe 24 th’witness BG noted thather guards were busy eating, she left the house by thewindow and went back738to Bisesero hills.

236.Witness BG furthertestified that it is hardfor a Rwandanto talkabout rape.739That is whyin herstatement of November1995, she did not mention thefact that she had been raped. Witness BG testifiedthat she came to talk about74° it after some counseling.

The DefenceCase

237.The Accused denies the allegations set out above and in thatregard, relies on the evidenceof WitnessesDAC, DA.B, DT, DY DU and DK.

Wimess DAC

238.Witness DAC testifiedthat he knewboth Witness BG and the Accused verywell. 741 WitnessDAC testified that on 16th April1994 an attackwas launchedat MugoneroHospital where Prosecution wimess BG worked.742 WitnessDAC testified that at 3PMon 16 April1994, Prosecution witness BG arrivedat hishome and advised him that her fiancé/husband, Samuel, had beenkilled. Wimess DAC testifiedthat Witness BG stayedwith him for approximatelytwo weeks.

239.The witnessfurther testified that at somepoint, a Hutuman called Mugonerocame to his bouse.Witness DAC testifiedthat Mugonero asked WitnessBG if sheknew him. According to WitnessDAC, Witness BG replied thatshe did hOt knowthe man Mugonerofollowing which Mugonero then stated’I knowyou. I usedto visityou in Kibuye.By theway, your father, Minyankoniis my friend. I used to keep my property in hishouse’743

240.Witness DAC testifiedthat he saw WitnessBG and Mugonerospeak to eachother and leff them for about an hour. Witness DAC further testified that WitnessBG returnand informed him that Mugonero had stated that he wanted to marryher following which Witness BG informedhim that she had accepted Mugonero’smarfiage offer and that he washappy about the decision. Witness DAC testifiedthat Prosecution witness BG stayedat Mugonero’shome for twoweeks.

241.Witness DAC testified that he laterleamt that Witness BG’s husband was in Congoand thathe advisedBG accordingly,upon which she plannedto

737Seepage 3 transcriptsof 6 April2004 738Seepage 26 transcriptsof6 April2004 739Seepage 7 transeriptsof 6 April2004 740Seepage 8 transcriptsof6 April2004 741Seepage 43 of ClosedSession transcnpt of 23/8/2004, 742Seepage 44 of ClosedSession transenpt of 23/8/2004. 743Seepage 44 ofClosed Session transcript of 23/8/2004.

132 leaveMugonero. Witness DAC also testified that he alteredWitness BG’s identitycard to reflectshe was Hutu. Witness DAC testified that he entrusted WitnessBG to one AzariaTM, whotook her to Kibuyewere Zairians assisted herto goto Congo745.

242.It is submittedthat Wimess DAC’s testimony is fullof contradictions. Thewitness is noteven clear whether Witness BG wasbetrothed or marriedto Samuel,who he refersto as fiancéor husbandin thesame breath.746When invitedby DefenceCounsel to clarifywhether Samuel was WimessBG’s fiancéeor husband,Witness DAC stated:’ Yes, he wasFlorence’s fiancé. Besides,they had a civilstatus rnarriage, and you could consider her as his wifebecause he haddone what was expected of himby law.,747

243.It is submittedthat the purported marriage proposition between Mugonero andWitness BG is a completefabrication. Witness DAC deposed that Witness BG whohas just escaped death and did hot know the well being ofher family membersfall in lovewith Mugonero. In thatregard, Witness DAC wants the TrialChamber to believethat following an hourconversation between Mugoneroand WitnessBG, WitnessBG acceptedMugonero’s hand in marriage.

244.For the reason outlined above, it is submittedthat it wouldbe extremely unsafeto relyon anyaspect ofDAC’s evidence.

WitnessDAB

245.Witness DAB testifiedthat he knewWitness BG well.Witness DAB used to visitWitness BG’s parents’ home. Witness DAB testifiedthat in 1994 WitnessBG wasnot married but was betrothed, v48Witness DAB testified that Mugonerowas a farmerwho was related to WitnessBG.749

246. WitnessDAB alsotestified that the Hutu man calledMugonero met WitnessBG at thehome of ’a memberof thepopulation’, asked subsequently askedfor her hand in marriage75°,which Witness BG accepted.Witness DAB furthertestified that Wimess BG stayedwith Mugonero from the end of April 1994or earlyMay 1994.751 WitnessDAB testifledthat he went to Mugonero’shouse a dayafter Witness BG’s arrival at thesaid location and discussedWitness BG’s escape from that location with her.

744Defence witness DAB 745Sec page 45 ofClosed Session transcript of 23/8/2004. 746Sec paragraph 11 ofclosed session on page 45 of transcriptof 25.8.2004. 747See paragraph 21-23 of closedsession on page46 oftranscript of 25.8.2004. 74sSee page 59 of transcript of elosed session of 25.8.04. 749See page 6 of ClosedSession of 25.8.04extracted from page 58 oftranseript on 25.8.04 7»oSec page 6 of ClosedSession of 25.8.04extraeted from page 58 of Çanseripton25.8.04 7»~See page 6 ofClosed Session of 25.8.04 extracted from page 58 of transcripton 25.8.04

133 247.Wimess DAB testifiedthat ’we [WitnessesDAB & BG] spentail thedays at Mugonero’shouse together because we met thereeveryday ’752.Witness DAB explainedthat he wentto Mugonero’shouse daily since Witness BG wantedhim to keepher companywhilst her loyer,Mugonero was herding cattle.753According to Witness DAB, Witness BG didhOt complain about the situation,’No, she was rather happy, she had no problem’.754

248.Witness DAB testifiedthat when WitnessBG left Mugonero’shouse, Mugoneroentrusted her to himso thathe couldtake her to herparents home whichwas situated on a smallisland in Kibuye.755WitnessDABtestified that WimessBG did not want to leave Mugonero’shouse, ’However some Interahamwe"756 launched an attackin Gisovuin GisagaraRegion. Accordingto WitnessDAB, Mugonero told him to takeWitness BG to her parentshaving promised tofetch her from there after the war.

249.The Prosecutorwould represent to the TrialChamber that Wimess DAB wasrelated to WitnessDAC. In thatregard, Witness DAC is WitnessDN’s husband.It is furthersubmitted that Witness DN haslinks with the Accused. TheProsecutor would further represent to theTrial Chamber that Witness DAB’sevidence that he wentto Mugonerohouse daily to keepWitness BG’s companywhile Mugonero was out herding cattle is highlyunbelievable. In thatregard it is highunlikely that Mugonero would require the services of WimessDAB, to lookafter ’a newlymarried’ bride, who was a Tutsi.

250.Witness DAB contradictsWitness DAC materiallywhen he saysWitness BG did not wantto leaveMugonero. Aceording to WimessDAB, Witness BG leftbecause Mungonero because some Interahamwe launched an attackin the Gisagararegion of Gisovu.However Wimess DAC statedduring his testimonythat Witness BG leftMugonero’s house when Witness DAC told herthat her husband was alive in Congo.

WitnessDT

251.Witness DT testifiedthat one eveningin April1994, his neighbour WitnessDAC 757 askedhim to accompanyhim to the homeof a Hutuman calledNtibizigirwa who was alsoknown as Mugonerowhere he was taking Prosecutionwitness BG, 758for marriage. 759Witness DT testifiedthat he did not76°know the ethnic origin ofhis neighbour but knew Mugonero to be Hutu.

7s2Seepage 7 of ClosedSession of 25.8.04 extracted from page 59 of transcripton 25.8.04 753Seepage 7 of ClosedSession of 25.8.04extracted from page 59 of transcripton25,8.04 754Seeparagraph 26-27 of page7 of ClosedSession of 25.8.04extmcted from page 59 of transcripton 25.8.04 755Seepage 7 of ClosedSession of 25.8.04extraeted from page 59 of transcripton25.8.04 756Seeparagraph 10 of page7 ofClosed Session of 25,8.04extracted from page 59 of transcripton 25.8.04 757SeeDefenee exhibit D 98 7»8SeeDefence exhibit D 99 759Seepage 37 transeripts of 7.9.04 760Seepage 38 transcripts of 7.9.04

134 252. He testifiedfurther that althoughhe accompaniedWitness DAC and WitnessBG to a weddinghe saw no ceremonyof any kindat the houseof Mugonero.761

253.It is submiitedthat the essence of the testimonyof WitnessDT wasto counterthe testimony of ProsecutionWitness BG thatshe was abducted by Mugoneroin Biseseroon 22 April1994, in thepresence of theAccused and thather life was sparedbecause Mugonero had asked the Accused to keep WitnessBG as hisconcubine against her will.

254.In the circumstances,Witness DT’s claim that he accompaniedWitness DACto Mugoneroto witnessa marriage was false. The fact that there was no paymentof dowryand no marriageceremony of anysort at Mugonero’splace showsthat the purported marriage is buta guisemanufacture to counter the evidenceof WitnessBG thatshe was taken by Mugoneroagainst her will and rapedrepeatedly until when she escaped. The Accused was well aware of this incidentand acquiesced toit.

WitnessDU

255. WimessDU testifiedthat he knew a Hutu man calledMugonero who hailedfrom Rwarambacellule. However, contrary to the evidenceof WitnessesDAB and DAC,Witness DU did hOt hearthat Mugonero married anyoneduring the genocide.

WitnessDK

256.The essenceofthe testimony ofwitness DK wasto showthat the Accused didnot participate in Bisesero rapes and killings attacks in April,May and June1994. The witness testified that he took part in crimesin Bisesero where he killedthree people. The witnessmade a confessionstatement on 12 November2002 and heldan interviewwith the Prosecutor of Kibuyeon 1 August2003. In noneof theserecords does he mention, let alone allude to any activitiesinBisesero region. Itis clear therefore that the evidence that he ever wentto Kibuyeis false.He is thereforenot in a positionto say whether the Accusedparticipated in the rapes and acts of incitingInterahamwes to rape Tutsiwomen in Bisesero

TheProsecutor’s Case.

257.In paragraph6(d) (i) ofthe indictment the Prosecutor alleges that towards theend of April1994, at Kabatwahill Bisesero area, an Interahamwenamed Ngabonzizaraped a Tutsi civifianwoman VirginieGasherebuka on instructionsof Mika Muhimana. Acting on ordersof theAccused, Ngabonziza undressedVirginie Gasherebuka, laid her on theground, parted her legs and

76LSec pages 4 - 5 transcriptsof8.9.04

135 MikaMuhimana and Ngabonzina jointly assaulted her sexually in hervaginal areawith machetes and other instruments.

A Summarvof theEvidence Presented by theProsecutor 258.The Prosecutor did not lead sufficient evidence in supportof paragraph 6(d)(i) of theindictment and makes no submissionsin that regard.

TheProsecutor’s Case

259.In paragraph6(d)(ii) the Prosecution alleges towards the end of May1994, at Nyakiyabohill in the Biseseroarea The Accused,in concertwith an Interahamwenamed Gisambo, raped Pascasie Mukarema

A Summarvof theEvidence Presented by theProsecutor

260.In supportof theabove-mentioned allegations, theProsecutor relies on the evidenceof witnessAW.

261.In thatregard Witness AW testifiedthat he encounteredthe Accused again onemorning while seeking refuge at Rugonahill, about four kilometers from Nyarutovuhill. 762 He testifiedthat the Accusedcame with Charles Sikubwaboand lnterahamwein the communevehicle and parkedit by the roadside.The witness was able to recognizethe Accused, as he washardly 20- 50 kilometersaway from where they parked. 262.Witness AW heardthe Accusedurge the Interahamwe to scourthe forest forTutsi. 763 In thecourse of thesearch, the Interahamwe caught up with PascasieMukaremera, who was pregnant,764and took her to theAccused, who said,I’m going to cutthis woman, to disembowelthis woman, to see the positionofthe fetus in its mother’s womb. "765

263. WimessAW then saw the Accusedtake a machete,made Pascasie Mukaremeralie down and eut her "from her breast, right up to hergenitals, andthen he removedthe baby from the mother’s womb and put it besideits mother.The baby cried for some time and then died." The [nterahamwe then cut off PascasieMukaremera’s hands, sharpened a stakeand piercedit throughher arnls.766

264.Witness AW testifiedthat he had knownPascasie Mukaremera before the Rugonabill incident that date, that she was aged around 40, was resident in

762See page 9 transcriptsof14 ~ April2004. 763See page 9 transcriptsof14 ~ April2004. 764__-.~eera~er~~9 transcripts_ of14 thApril 2004 745See page 10 transeripts of14~AP ril 2004. ¯ ..... t~¯ --’12004 wherein the witness reinforeed histestimony 766See page 10 transcripts of14 ~" April 2004. See page 49 transcnprs oiL,+ e.plt incross-examination regarding thetape and murder of Paseasie Mukaremera.

136 Biseseroand that she was a peasant,who was marriedbut couldnot immediately767 recall the name ofher husband.

An Analysisofthe Evidence Presented by theProsecutor.

265.The incidentdescribed by WitnessAW amountsto rape.The Prosecutor willrepresent that by cuttingPascasie Mukarema from the breasts through to bergenitals, the Accused perpetrated on her a physicalassault of a sexual nature.

266.The Prosecutor will humbly submit to the honorableTrial Chamber that theact constitutes rape in itsbroad conceptual consideration of a formof aggressionwhose central elements should not just focus on thebody parts. What witnessAW describedin detailand crediblyamounts in the Prosecutor’sview toa sexual invasion of a sexualnature in thesense that the Accusedtargeted the victim’s breasts and genitals thus disemboweling herin themost brutal and inhumane manner. Although the net is ofinhumanenature andoutrageous to personaldignity and would qualify as " otherinhumane acts"set forth in Article3 (i)of theTribunal’s Statute, the Prosecutor represents768 that the same act falls squares in the definition ofrape

The DefenceCase

267.The Accused the above-mentioned allegations and relies on theevidence of WimessDK.

WitnessDK

268.The Prosecutor relies on hisassessment and submissions in with respect to the testimonyof WimessDK as outlinedin paragraphs255 and 383-386 herein.

TheProsecutor’s Case

269.In paragraph6 (d) (iii) of theindictment the Prosecutor alleges around June1994, at Gitwahills in theBisesero area, The Accused in concertwith membersarmed civilians, including one Ngabonzina, raped a civilianTutsi womannamed Felicite Kankuyu.

A Summaryof theEvidence Presented by theProsecutor

270.To supportthis allegation the Prosecutorwill rely on theevidence of WitnessAW

767See page 11 transcripts of14 ~ April2004. 768See Akayesu (TC) para 688

137 271.In thatregard Witness AW testifiedthat as thesearch for Tutsi in hiding continuedanother lady, FeliciteKankuyu, was discoveredby the Interahamwe,again at Rugonahill, an houror so allerthe discoveryof Mukaremera.Witness AW testifiedthat he had knownFelicite Kankuyu beforethat day, that Felicite Kankuyu was a schoolteacher in Nyarutovu cellulein Bisesero, where she was married with children.769

272. WitnessAW deposedKankuyu was taken to where the Accusedand CharlesSikubwabo were, Sikubwabo "took her. Then .... he threwher down andthen he broughtdown his pants right to theknees and then climbed on her"and proceeded to rapeher. 770 The Accused was hardly rive meters from whereCharles Sikubwabo had raped Felicite Kankuyu. The act of rapetook tenminutes. TM WimessAW testifiedthat aller Charles Sikubwabo had raped Kankuyu,he saidto the Accused"corne and haveintercourse with this womanwho was a teacher".The witnesstestified that whereupon, the Accused"took that woman, he undressed,pulled down his trousers, and he hadsexual intercourse with that lady, just as Sikubwabo had done" 772

273.The Accusedthen called upon the Interahamwethat they were to rape Kankuyuthen kill her "’because she is alsoan lnyenzLlike every other Inyenzi.’" WitnessAW testified that he witnessedrive lnterahamwe proceed to rapeKankuyu, just like how the Accusedand CharlesSikubwabo had done, on directionsby theAccused. 773 Therive Interahamwe then took pieces of woodand thrust them into Kankuyu’s vagina, inflicting grievous harm that led toher death.774

An Analysisof theEvidence Presented by theProsecutor.

274.The Prosecutorwill represent that Witness AW gaveevidence very well and detailedhow the Accusedand accomplicesgang rapedKankuyu and treatedthe victim in a mostbrutal way that clearly shows rape as a violation of personaldignity and how in thisway it alsoamounted to severelytorturing thevictim.

AdditionalEvidence of Rapenot SpecificallyPleaded in the Indictment.

A Summarvofthe Evidence Presented by theProsecutor

Wimess BG

769Seepages 11 and14 transcnptsof 14 a’April 2004. 77cSee12 transcnptsof 14 ~ April2004. 771Seepage 12 transcripts0f14 th Apri12004. 772Seepages 12/13 transcripts of14 t’ April2004. 773Seepage 13 transcriptsof 14 ~ April2004. 774Seepage 13 transcriptsof 14 ~ April2004.

138 275.In Bisesero,Witness BG testifiedthat she sawthe Accusedon several occasions.On theseoccasions, the Accused was leading attacks. According to thewitness, he was like"a commanderof an armywho wasencouraging his troops",z75 WitnessBG alsotestified that she knowsa Tutsiwoman namedEvelyn who was hiding with ber in Biseseroand who told her that she was rapedby a groupof Interahamweamongst who was the Accused. Witness BG addedthat she alsoknew Tabitha, ber neighbour, who wasabducted and raped776 by an Interahamwe.

WitnessBI

276.Witness BI testifiedthat about four or rivedays aller the Gitwa primary schoolattack, 777 he saw the Accusedin an attackat Kanyinyahill in UwingaboCellule, Bisesero Secteur. 778 The attackers chased the refugees throughoutthe day and at about2 pm at a bill wherethey could see Nyakiyabohill, he saw the Accusedand Gisamborape one Mukasine.779 He testifiedthat this was around 3 proin theafternoon. 780The attackers chased therefugees and when they reached Nyakiyabo hill, the witness laid in a bush fromwhere he observedthe Accusedand Gisambo seize Mukasine and rape her.781

277. WitnessBI describedthe eventsthat happenedaller Mukasine was capturedas follows;"They seized the girl who was carrying a baby, and they caughther while she was fleeing; and afler capturing the girl, Gisambo, from rivemetres, shot the child, and The Accused ruade the girl to lie down, tore off herclothes and raped ber; and afier having raped her, he Mlledber. And aflerthat, they went about chasing other refugees. "’ 782Asked to describe whathe meantby rape,the wimess said, "the girl was screaming, and The Accusedbrought down his trousersand had sexualintercourse with the girl...""783

278.Wimess BI furthertestified that he witnessedthis event while hiding in a bushabout 10-15 meters away.784 WitnessBI testifiedthat he had known Mukasinebefore the incident at Nyakiyabobill. He testifiedthat Mukasine hailedfrom Uwingabo Cellule, Ngoma Secteur, that she was a studentin the Mugoneronursing school, 78sthat her motherwas Damas, a housewifewhile

775Seepage 4 transcriptsof 6 April2004 776Secpage 5 transcriptsof 6 Apri12004 777Seepage 12 transcripts of 30 ~ April2004. Note that four or rivedays after the end of April 1994 situates the Kanyinya hill rape and murderof Mukasine in earlyMay 1994. See also page 56 transcriptsof 30 April 2004. 778See page 12 transcripts of30 thApril 2004. 779Seepage 12 transcripts of 30 thApril 2004. 780Seepage 12 transcripts of 30 thApril 2004. 78~Secpage 13 transcripts of30 « April2004. Refer to Prosecution Exhibit P2 on pages...... 78~Secpage 13 transcripts of 30 « April2004. 783Secpages 13, 63, 64 & 66 transcriptsof 30 t~ April2004. It is statedin his statement of25 th October1999 that both Muhimana and Gisamboraped Mukasine. The witness clarified under eross-examination that it was TheAccused alone who raped and killed Mukasine,and that ail Gisambo did was kill the ehild Mukasine was hiding with. The clarification is also contained in the reconfirmationnotes ofthe witness, which notes were disclosed to theDefence. 784See page 13 transcriptsof30 t~ April 2004. 785See page 13 transcriptsof 30 ~ Apri12004.

139 her fatherwas calledCharles Ukobizaba 786 and was the accountantat Mugonerohospital in the Mugonerocomplex. 787 The Defencedid notcall witnessesto rebutwitness BI’s specific testimony onthe rape of Mukasinein Biseserosave for Witness ARI’s bald assertion that the Mugonero hospital AccountantCharles Ukobizaba did not havea childby the nameof Joy Mukasine.788

WitnessBU

279. WimessBU testifiedthat among otherthings he saw the accused participatinginall the attacks at Biseserobetween April 1994 until the end of thewar. 789In particular, he testified that he saw the Accused during an attack in May 1994 on Muyirahill in the companyof many Interahamwe militiamen.79°Witness BU testifiedthat on that occasion, hesaw the Accused carryinga gun, as hewas leading the Interahamwe. Hefurther testified that he sawthe Accused rape a teachercalled Josephine Uwamariya. 791The wimess testifiedthat he knewthat Josephine was bore to Muzindutsiand Therese Mukabitega792sometime in 1971.793Witness BU furthertestified that this incidenttook place in theaftemoon although he testifiedthat he couldnot remember794 the exact time of saidincident.

280.Witness BU furthertestified that he witnessedthis incident whilst he was hidingin a bush locatedabout 10 metersfrom whereJosephine was discoveredfollowing which he testifiedthat she was dragged to a distanceof about 20 meterswhere the Accusedand an Interahamweundressed Josephine795following which she was raped. 796Witness BU testifiedthat he wasable to seewhat happened to Josephineby raisinghis head from where he lay.797Wimess BU furrertestified that; "1 raisedmy headto see,and then I loweredmy head.The Accused had acquiredan extraordinaryreputation. I didnot want him to seeme becauseI was scared and I wastraumatized, ljust

raisedmy headto seewhat was ¯going on ¯ andthen ¯ I lowered,my head.I was afraid.But in anycase, I sawMika Muhtmana qutte clea /./v. 798

786See pages 59/60. (Closed Session), transcripts of ~ April 2004. The witness vega the names ofallthechil dren ofhar Cles Ukobizabaas Musonera,Charlotte, Joseph, Mukasine, Esperance and Rutaganda. 787See pages 13/14 transcripts of 30 ~ April2004. Witness BI distinguishedIsaac Kajongi from Charles Ukobizaba. While Kajongi wasthe Accountant of theSDA Association, Ukobizaba was the Hospital account~t. Both the Association and the Hospital were tocatedin theMugonero complex. Note that witness AT haddescribed the tapeof Mukasinethe daughterof Kajongiand two daughtersof AmosKarera, in Mugonerohospital surgery room on 16.4.94,by The Aceusedand twosons of Kanyabungo.Both Kajongiand Ukobizaba had daughters called Mukasine. 7ssSee page 53 transcripts of2.9.04 789See page 37 transcripts of16 th April 2004. 790See page 37 transcripts of 16 thApril 2004. 791See pages 37/38 transeripts of 16 ~ April2004. 792See page 44 transcripts of 16 ~ April2004. 793See page 38 transcriptsof16a April2004. 794See page 38 transcripts of 16 ~ April2004. 795See page 47 transcripts of16 t~April 2004. 796See page 38 transcripts of 16 ~ April2004. 797See page 38 transcripts of 16 a April2004. 798See page 39 transcriptsof16 ~ April2004.

140 281. WitnessBU furthertestified that when the Accusedand his group discoveredJosephine, she pleaded with them not to killher. In response,the witnesstestified that the Accused said: "Give me timeto see this young lady first,this first lady who is sohaughty," and the Accused asked the young lady to tmdress.She refused. The Accused pushed her to theground and climbed uponher." 799 Witness BU furthertestified that Josephine had on trousers whilethe Accused wore overalls on thatday. 8°°Witness BU estimatedthat the Accusedraped Josephine for between four and rive minutes following which, he abandonedher to theInterahamwe who cut off her legs and arms and left herto die a slowpainful death. 8°1 WimessBU identifiedthe Accusedin Court.8°2

WitnessBB

282.Witness BB testifiedthat during the course of seekingrefuge in Bisesero he sawattackers including the Accusedhunting Tutsi. After one Therese Mukabitegawas discovered in Biseseroarea; the assailants surrounded her, rapedand killed her. 8°3The witness was about 30 metersfrom where this happenedand when witness BB laterwent to seeher body, he discoveredthat "theyhad slit her throat, torn her skirt and thrust a stick into her genitals. About10 metresaway from there, I alsofound the body of Mukalibanje.It waslying on theground, the legs were apart and the body of herchild who hadbeen killed was placed on her genitals, as if shewas being forced to have sexualintercourse with the mother. " 804

An Analysisofthe Evidence not specifically pleaded in theindictment.

283.The Prosecutor will draw the Trial Chamber’s attention to thecredibility of theProsecution witnesses which has already been alluded to in theinstant Briefin relationto therape allegations specified in theindictment. The Prosecutorsubmits that the Trial Chamber should consider this evidence as partof theProsecution case on thebasis that such evidence was pleaded with precision8°» inthe Prosecutor’s Pre-Trial Brief.

284.It is furthersubmitted that the Accusedhad adequatenotice of the allegationsasthese were contained inthe various statements disclosed to the Defenceas earlyas 1999and 2000 accordingly, the Accusedwill hOt be prejudicedby theProsecutor’s. In any event, the Defence has had adequate timeto considerail allegations andhas called evidence in rebuttal. In that

799See page 39 transcriptsof16~ April2004. 80oSee page 40 transcriptsof16~ April2004. sotSee page 40 transcriptsof166 April 2004. s0zSee page 40 transcriptsof 16 ~ Apri12004. 803See page 8 transcriptsof16 th April2004. 804See page 9 transcriptsof16 t~ April2004. 80»The Trial Chamber’s attention is drawn to the annexure A of theProsecution Pre-Trial Brief with specific reference to thewimess summariescontained in Partiv thereto,filed with Registry on 27 February,2004 together with of theCorrigendum to Prosecution WitnessGrid filed with Registry on 24 Match,2004.

141 regardthe Defence called numerous wimesses to rebutassertions that Accused wasin Bisesero atthe period relating tothe genocide.

285.To thatend, the Prosecutor will represent to theTrial Chambers that the considerationofthe additional unspecified criminal acts in Biseserodoes not contravenethe fundamental rights of Accusedas articulatedin Rules 47(B) and(C) and Article 20(4) and 17(4) ofthe Statute. 8°6The Prosecutor further representstothe Trial Chamber that the cited incidents of rape in Bisesero is indicativeofthe totality ofthe alleged criminal conduct of theAccused and is indicativeof a consistentpattem of conduct on his part.

The DefenceCase

286.The Accused does not dispute that Tutsi civilians asking refuge in thearea of Biseserowere constantly attacked between April and June1994. The Accusedhowever denies that he playedany part in those attacks.

WimessesDD, DF, DK and DL

287.Witnesses DD, DF, DK andDL testifiedthat although they participated in attacksupon Tutsi civilians in thearea of Biseserothey did not see the Accusedamong the attackers. The witnesses further testified that they did not witnessany rapes on thehills of Bisesero, neither would it have been possible forany rapes to occur in thesaid location during this period as theattackers weretoo busy killing Tutsi refugees. 8°7The Prosecutor will represent to the TrialChamber that evidence ofthese witnesses is unreliable.

IndividualCriminal Responsibilitv ofthe Accuse&

288.The Prosecutor would represent to theTrial Chamber that the evidence adducedby Prosecutionwitnesses BG, BI, AW, W, BB, provebeyond a reasonabledoubt that the Accused participated inthe killing of Tutsi civilians in thearea of Biseserobetween April, May and June 1994.

289.In thatregard, the Prosecutor’swould further represent to theTrial Chamberthat by conveying attackers to the area of Biseseroand by personally andthrough others civilians participating insexual attacks on Tutsirefugees gatheredin varioushills in Bisesero, the Accused directly and substantially contributedtothe raping and sexual assaults of Tutsicivilians seeking refuge in Biseseroand thus incurs liability for having instigated, committed, or

80mRefer to NtakirutimanaDecision onthe Defence Motion in Relation toDefects inthe Indictment of30.6.98 Para 8 TC11], also commentson

807Sec page 14 of transcripts of17.8.2004.

142 otherwise,aided and abetted in thecommission of rapeand sexual offences outlinedherein.

290.The Prosecutorwould further represent to the TrialChamber that the Accusedknew that by conveyingweapons and attackers in vehiclesto the Biseseroarea such conduct would materially assist the said attackers in the killing,raping and perpetration ofother offences of a sexualnature against of Tutsiwho had gathered in Bisesero.

291.The Prosecutor would further represent to the TrialChamber that the presenceof theAccused amongst attackers at Biseserobefore or duringthe attackswhich in essenceincluded rapes and other attacks of a sexualnature on Tutsirefugees at varioustimes between April, May and June 1994, would havehad a significantlegitimizing andencouraging effect on theperpetrators thereofin thecommission of the said crimes and that the Accused was aware thathis presence asthe counseiller ofGishyita secteur was likely to have that effect.

292.As such,it is submittedthat the Accusedmust, at a minimum,incur criminalresponsibility forhaving aided and abetted in theexecution of the crimesoutlined inCounts III of the present indictment.

293.The Prosecutor further submits that a TrialChamber may find an Accused personguilty if it determines that he or she participated ina crime through any actionencompassed bythe Statute, even if it differs from the particular theory supportedby the Prosecutor. Inthat regard, the Trial Chamber, as thefmder of factand trier of law, is free to apply any theory it finds applicable tothe facts ofa caseas long as it tïts within the confines ofArticle 6(1) of the Stature theTribunal. The Prosecutor would further submit that as a rule,the Defence is onsufficient notice through the pleading of Article6(1) in theindictment that8°8any one of the theories ofdirect responsibility couldapply.

294.Finally the Prosecutor submits that if the TrialChamber accepts the testimonyof anyone of thewitnesses whose testimony is outlinedabove, it shouldfind the Accusedguilty of the crimeof rapeas a crimeagainst humanity,through instigation, commission or otherwiseaiding and abetting attackersto rapeand sexual assault Tutsi unarmed civilians gathered within thearea of Biseserobetween April, May and June 1994.

808See Prosecutor v.Kordic and ^erkez. Decision onthe Defence Motion fo Strike the Amended Indictment forVagueness, Case No. IT-95-14/2-PT,T.Ch. III, 2 Mat.1999.

143 ChapterSix Count IV Murder as a Crime against Humanity

1, The Law.

1. In CountIV of the indictment,the Accusedis chargedwith the crime of murderwhich he is allegedto havecommitted as partof a widespreador systematicattack against a civilianpopulation between 6 Apriland 30 June 1994in Gishyita centre, Mugonero church, hospital and nursing school, and in thearea known as Bisesero.

2. Murderas a crimeagainst humanity is definedas theunlawful, intentional killingof a humanbeing. 8°9The requisite elements of murderare that the victimis dead,that the death resulted from an act or omission of theAccused or hissubordinate, andthat the Accused or hissubordinate intended to kill the victim,or to causegrievous bodily harm or inflictserious inioUry in the reasonableknowledge that the attack was likely to result in death.

3, Theelements common to ailcrimes against humanity under Article 3 of the Statuteare basically three, 811and providethat the actusreus must be committedas part of a widespreador systematic attack on oneor moreillegal discriminatorygrounds, namely, for reasons based on thetargeted group’s nationality,political affiliation, ethnicity race or religion, and that the attack mustbe directedagainst a civilian population.

4. Widespreadrefers to the largescale of the attackdirected against a multiplicityofvictims. 812Systematic may b e definedas thoroughly organized andfollowing a regular pattern on thebasis of a commonpolicy involving substantialpublic or private resources. There is no requirement thatthis policy mustbe adoptedformally as thepolicy of a state,although there must be some kind813 ofpreconceived planor policy.

5. Thus a crimeagainst humanity must have been committedas partof a widespreador systematicattack against a civilianpopulation on discriminatorygrounds. Although the act need not be at thesame time and placeas theattack or share all of thefeatures of theattack, it must, by its

8°gSeeAkayesu Judgement, paragraph 589. 8~°SeeAkayesuJudgement, paragraph 589 and 590, Musema Judgement, paragraph 215. m A fourthelement that the actus reus must be inhumanin nature and character, causing great suffering or seriousinjury to the body or to mentalor physicalhealth is roundin paragraphs201 ofthe Muserna Judgement, paragraph 578 ofthe Akayesu Judgement and paragraph66 of theRutaganda Judgement. 812 AkavesuJudgement, paragraph580, Ntakirutimana Judgement paragraph 804, Bagilishema Judgement paragraph 77, Musema Judgementparagraph 204, and Rutaganda Judgement paragraph 69 8t3On therelevancy of theexistence of a planor policysec Kunarac Judgement 9Appeals) paragraph 98.

144 characteristics,aim, nature or consequence,objectively form part of a discriminatoryattack.

6, An attackis generally defined as anunlawful act, event, or series of events of thekind listed in Article3(a) thr0ugh (i) of theStatute. An attackdoes necessarilyrequire the use of armed force; it could also involve other forms of inhumanemistreatment of the civilian population, like imposing a system of apartheid,which is declaredas a crimeagainst humanity in Article1 of the ApartheidConvention, 1973.

7. A civilianpopulation must be the primary object of theattack. Members of the civilianpopulation are people who are not taking any active part in the hostilities,including members of thearmed forces who laid down their arms andthose persons placed hors de combatby sickness,wounds, detention or anyother cause. 814 Wherethere are certain individuals within the civilian populationwho do notcome within the definition of civilians, this does not deprivethe population ofits civilian character.

8. Article3 of the Statute requires that the attack against the civilian population be committed"on national, political, ethnical, racial or religious grounds." Actscommitted against persons outside the discriminatory categories may neverthelessformpart of theattack where the act against the outsider supports or furthersor is intendedto supportor furtherthe attack on thegroup discriminatedagainst on oneof theenumerated grounds.

9, Thenecessary mens rea for murder is willfulness; thatis, direct intent to kill or recklessnessthat death may ensue as a foreseeableconsequence of the Accused’sconduct. This is demonstratedby an intentionon thepart of the accused81s to killor inflict serious injury in recklessdisregard ofhuman life. TheAccused must have acted in thebroader context of theattack and had knowledge816 that his act formed part of the attack on the civilian population.

10.Therequirement that the Accused must have known that lais acts formed part ofa widerattack on the civilian population, therefore, generally suggests that themurder was pre-planned. However, the Accused need not necessarily share thepurpose or goalsbehind the broader attack. There is no requirementthat theenumerated acts be committedwith discriminatory intent.

814SeeKayishema and Ruzindana Judgement, paragraph 128, Bagilishema Judgement, paragraph 79. 8~5Sec Celebic Judgement, paragraph 439 816Sec Ntakirutimana Judgement, paragraph 803.

145 FactualAllegations in Supportof the Chargeof Murder as a Crimeagainst Humanity

11.The Prosecutorrelies on theevidence of WitnessesAX, AP, AQ, AU,BG, AW,BB, BE, BF andBH, in supportof thischarge in relationto thefour sites,namely, Gishyita centre, Mugonero church, hospital and nursing school, andthe Bisesero area.

Eventsin GishyitaSecteur, Gishyita commune.

TheProsecutor’s Case

12.TheProsecutor alleges in paragraph7(a) of the indictment that on or about April1994 in Gishyitatown Gishyita sector, Gishyita commune, the Accused took to his residencetwo women,Goretti Mukashyaka and Languida Kamukinaand directed lnterahamwe to kill them. The lnterahamwe killed the saidGoretti Mukashyaka and Languida Kamukina at TheAccused’s residence andin lais presence. A Summaryof theEvidence Presented by theProsecutor 13.In supportof theabove-mentioned allegations, theProsecutor relies on the evidenceofWitness AP in supportofthis count. This witness testified that she is acquaintedto the Accused. She testified that around 7 PM on the7 April 1994,~17she saw the Accused corne to herfather-in-law’s house and take two of hisdaughters, who she described as Immaculeeaged 25 andLanguida aged 18819818 with him. 14.The two sisters,whose familynames were ImmaculeeKamukina and LanguideMukakayilo 82°were students who went to boardingschool but were thenon school holidays. Incross, the witness testified that the two girls were calledImmaculee Mukashyaka and LanguideKamukina. 821 However,in the onlywitness statement given by WimessAP withregard to thetwo girls, she referred822 to themas LanguidaKamukina and Goretti Mukashyaka.

15.WitnessAP testifiedthat because her father-in-law washer neighbor, 823she sawthe Accused come to hishome, ask for the girls and take them with him. Shetestified that the two Tutsi girls 824followed the Accused voluntarily as anyonewould a friendbecause he wasa familyfriend and they had no reason to suspecthis motives. 825The witness cautiously followed the Accused and

8~7Secpage 27 transcriptsof 30 ~ March2004. 8~8Seepage 27 transcriptsof 30 ~ Match2004. 819Seepages 26/27 transeripts of 30 ~ Mareh2004. 820Secpage 40 transeriptsof 30 ~ Mareh2004. 82tSeepage 7 transeriptsof 31 ~ Mareh2004. 822Sec~vitness statement of 30~ August1999 on pages21-25 ofthe witness bundle. 823Secpage 26 transcriptsof 30 ~ Match2004. 824Seepage 29 transcriptsof 30 ~ March2004. ~2sSeepage 28 transcriptsof 30 ~aMareh 2004.

146 thegirls to hishouse, about 30 minutes’walk from her own home, 826 and watchedthem being led intothe house.The witnessdid not followthe Accusedand the girls into his house, but hid a fewmetres from the house, froms27 where she watched what was happening,

16.WitnessAP testifiedthat she followed the Accused and the girls in thehope thatsince he was a familyfriend to whom the girls’ father had given a cow,he wouldprotect them and the witness would also ask him to protecther own children.828Witness AP furthertestified that when the Accused arrived with thegirls at hishouse, there were oEer persons present, amongst t_hem were CharlesSikubwabo the bourgemestre of Gishyita, whose voice she recognized amongothers.829

17.WimessAP testifiedthat the girls spent between an hourand two hours inside theAccused’ house, during which rime "7 heardthese children screaming, callingMika "s name,asking him pardon, telling him that they were not expectinghim to do thatto them..."’ 830Affer a while,witness AP didnot hearany more screams, following which the Accused, who asked the young menpresent to comeand see how naked Tutsi girls looked like, shoved the girlsout ofthe house.

18.WitnessAP furthertesfified that she was able to seewhat transpired outside theAccused’ bouse by virtueof thefact that his house was well lit with electricity.TM WitnessAP tesfifiedthat the girlswere stark naked and staggeringwith their legs apart as theyemerged. From his house832the witnessindicated on ProsecutionExhibit P2A the door from which the girls emergedfrom the Accused’house and thespot where one of the girlswas clubbedin relationto whereshe wasstanding in frontof the Accused’ house.833 WitnessAP furthertestified that the Hutu men present outside the housethen started using clubs to hitone of the girls, upon which the witness testifiedthat she fled from her position, which she stated was about two-three metersfrom the Accused’ house.TM

19.WitnessAP testifiedthat the Accused was present when one of thegirls was hitwith a club.835She testified that after fleeing the area near the Accused’ house,she tried to leave Gishyita with her rive children, but three of herfour daughterswere shot dead by CharlesSikubwabo. 836The witness and her two g26See page 27 transcriptsof 30 a Match2004, s27Sec page 28 transcripts of 30 th Match2004. 828See page 27 transcripts of 30 ~ March2004. s29See page 29 transcriptsof 30 ~ March2004. 830See page 29 transcriptsof 30 ~ Match2004. s31Sec page 31 transcripts of30 rb March2004. 832See page 31 transcripts of30 ~’ Match2004. 833See page 39 transcripts of30 rb March2004, 834Sec page 26 transcriptsof 30 th March2004, However, she indicated a distance ofbetween 10and 15 Metresusing the court to indieatewhere she was standing in eomparisonto Mika’s house. See page 29 transcriptsof30 thMareh 2004, 83»See page 33 tmnscriptsof 30 ~ March2004. s36See page 33 transcriptsof30 a March2004.

147 survivingchildren spent thenight en routeto Biseserowhere they arrived on the8 April1994. 837She testifiedthat her two children died at theend of May 1994838in Bisesero.

AnAnalysis of theEvidence Presented bv theProsecutor.

20.TheProsecutor would represent that Witness AP knewthe Accused before the events.She knew him as a neighbour,family friend and as a government officialintheir locality. Inthe circumstances itwas natural for her to follow theAccused to his residence after he had taken the girls. She testified that she hadhoped that by virtueof hisauthority he wouldprotect them. In factshe hadalso hoped to askfor protection for herself and ber children. It wasnot thereforeout of theordinary for Wimess AP to stayat theresidence of the Accusedand witness the killing ofthe two girls.

21.Witness AP knew the Accused before the event so the issue of misidentificationdoesnot arise. Although the murders took place at night thereis uncontroversialevidence that there was sufficient illumination for WitnessAP to identifythe Accused and the girls.

22.TheProsecution draws the attention of theTrial Chamber to theapparent inconsistenciesbetween Wimess AP’s testimony and her writtenstatement shemade to investigatorsof the Tribunal. The Prosecutor submits that the contentsof her statementare moreaccurate than ber testimonyin Court becausethe statement was made hardly rive years after the 1994 events while hertestimony was made ten years after the event. Witness AP explainedthis apparentanomaly, that, "1 may havemade a mistakeabout their names becauseit’s a longtime ago. When people are dead, you can forget their names,but you always have an image of thesepeople in your head. ,,ss9

TheProsecutor’s Case

23.TheProsecutor alleges in paragraph7(a) (i) of theindictment that on around14 April1994, in Gishyitatown Gishyita secteur, Gishyita commune, the MikaeliMuhimana directed an Interahamwenamed Gisambo to killa civilianwoman Esperance Mukagasana. The saidGisambo executed the said womanin thepresence ofthe Accused.

A Summaryof theEvidence Presented by theProsecutor

24.In supportof theabove-mentioned allegafions, the Prosecutor relies on the evidenceof WitnessAQ.

837See page 34 transcripts of30 th Mareh 2004. 838Sec page 34 transcripts of30 rb Match 2004. s39Sec page 7 transcriptsof31 st Mareh 2004.

148 25.Inthis regard Witness AQ testifiedthat in April 1994, she and her elder sister, EsperanceMukagasana, lived in theAccused’ house. 840 Shetestified that the Accused’deceased 841 wife,Xavera Mukabutera, was theiraunt. 842 She testifiedthat she lived in theAccused’ house because her aunt had asked her parentsfor her to comeand help her with house hold chores. 843She testified thatthe Accused and hiswife Xavera had twochildren, one of whomdied rightat the beginning ofthe war while the other, Leoncie, went into exile with laisfather. TM WimessAQ testifiedthat she and her husband live in the house that84» belonged to theAccused in 1994.

26.WitnessAQ testifiedto seeingthe Accused rape her sister, Esperance, on at leastfour different occasions during the month of April1994; 846in the Accused’residence, in the roomshe sharedwith her sister,which she indicated847 was marked number 8 on ProsecutionExhibit 2 at page160.

27.Shealso testified that on twooccasions, an lnterahamwe called Gisambo that occasionallyvisited the Accused’ house raped her sister. 848On bothoccasions, Gisambodragged her screaming sister into the bouse, but given that he closed the849door behind them, the witness never saw what happened after.

28.WitnessAQ testifiedthat one day in mid-April1994, Obed Ruzindana and otherattackers arrived at thehome of theAccused in a vehiclefollowing whichthey sent two lnterahamweto takeEsperance Mukagasana from the Accused’house. 8»°She testified tohaving seen her sister being driven away in the saidvehicle, along with the Accused,following which the Accused retumedhome at about9 PM thatevening without Esperance Mukagasana. 8»1 Witness852 AQ testified that she has not seen her sister since that day.

An Analysisofthe Evidence Presented by theProsecutor.

29.TheProsecutor submits that Witness AQ usedto livewith the Accused and Esperance.She was an eyewitnessto the abduction of Esperancethat occurred in herpresence. She saw the Accused board Ruzindana’s vehicle along with Esperanceand Esperance has not been seen ever since.

840Sec pages 8/9 C/S transcripts of15 ù~ April2004. 84~See page 9 C/Stranscripts of15 t~ April2004. 842See page 8 C/Stranscripts of15 ~ April2004. 843Sec page 10 C/Stranscripts of15 ù~April 2004. 8«4Sec page 41 transcripts of 15 ~ April2004. 84»Sec page 9 C/Stranscripts of 15 ~ April2004. 846See page 15 transcriptsof15 ~ Apri12004. s47Sec page 32 transcriptsof15 ~ Apri12004. 8«8Sec page 18 transcriptsof15 ~ Apri12004. 849Sec page 18 transcripts of15 thApri12004. 8»0Sec page 18 transcripts of15 th April2004. 8»~Sec page 18 transcripts of15th April 2004. 852Sec page 17 transcripts of 15 ~ April2004.

149 30.TheDefence did not deny that that the two girls; AQ and her sister Esperance, livedwith the Accused in 1994and neither do theydeny that Esperance was abductedfrom the Accused’ home. However, they would have the Charnber believethat Esperance was abductedwhile the Accusedwas away,and thereforethe Accused was hOt responsible for ber death. That evidence is not credible.Witness AQ hadabsolutely no motive to give false testimony against theAccused and the Defence called witnesses that corroborated berevidence in asfar as it did hOt implicate the Accused in either the rapes or Esperance’s abduction.

The DefenceCase

31.TheDefence called witnesses DQ andDI to refutethe allegations that the Accusedwas responsiblefor murdersof GorettiMukashyaka, Languida Kamukinaand EsperanceMukagasana, and witnessesDQ, DI, DA,TQ13, DJ, DR,TQ14 and NT1 to rentethe allegation that the Accused was responsible forthe murder ofEsperance Mukagasana.

The Murderof GorettiMukashyaka and LanguidaKamukina

WitnessDQ

32.Defencewitness DQ testifiedthat she knew Languida Kamukina and Goretti Mukashyaka.In relation to LanguidaKamukina, the witness testified that this ladywas married in 1994and would have been aged between 25 and26 years old.The witness testified that Languida Kamukina was not in Gishyitaduring the8»3events of 1994as noone saw her during this time.

33.WitnessDQ testifiedthat Goretti Mukashyaka she was Languida’s sister. She testifiedthat Goretti lived in Mubuga,was a marriedwoman in I994and she waskilled at theMubuga church along with other Tutsi refugees in April 1994.Referring to herage, the witness testified that Goretti was a young womanwho was not very young and not very old either. She was an adult.

34.Defencewitness DQ furthertestified that it wouldhave been impossible for the Accusedto takeGoretti from the Mubuga Church where she hadsought refugewith her family, to hishome in orderto rapeher. In that regard, she testifiedthat Mubuga was far away from Gishyita and that in anyevent, the Accusedwould bave had other women in the immediatelocality to choose from and thus wouldnot bave neededto take Gorettifrom Mubugato Gishyita8»4 just to rape her.

ss3See page 38 transeripts of18 August 2004. 854See page 39 transcripts of18August 2004.

150 WitnessDI

35.Defencewitness DI testifiedthat Languida was one of Ruhigira’ssix children. He testifiedthat she had one child and that during April 1994 she was not raped.He furthertestified that Languida had sought refuge in Mubugaand it 855 isthere that she was killed along with other refugees.

The Murderof EsperanceMukagasana

WitnessDQ

36.Defencewitness DQ testifiedthat members of thelnterahamwe militia who hadattacked the Accused’home abducted Esperance Mukagasana. She stated that6 Esperance Mukagasana was taken away in a vehicletowards NgomaY

37.WimessDQ is a closerelative of the Accusedand thushas a motiveto providefalse testimony. Witness DQ testifiedthat she did not live at the home oftheAccused during the events of 1994.In thatregard, Witness DQ testified thatshe visited the Accused at hishome during this period about once a week or sometimes,once every fortnight.

38.To thatend, the Prosecutor would represent to theTrial Chamber that Wimess DQ couldnot have had direct knowledge of eventssurrounding the rape and subsequentabduction of EsperanceMukagasana. The Prosecutorfurther submitsthat the evidence of witnessDQ beforethe Trial Chamber was at starkvariance to thatwhich is oontainedin herstatement to thedefence investigatorson 12 March2004.

39.In thatregard, Wimess DQ’s evidence before the Trial Chamber was that she hadnot seen Languida in Gishyitasince 1985. However, inher statement to defenceinvestigators, Witness DQ stated that it wasonly on 8 April1994, that Languidafled towards Mubuga following which her neighbours never saw her again.It issubmitted that the above contradictions areindeed very material to thecredibility ofthis witness and cast serious doubt on thereliability ofhis evidence.

40.The Prosecutorwould further represent to theTrial Chamber that it is somewhatbizarre that Witness DQ, despite her alleged family relationship withthe Accused,did not know his wife’sname. In that regard,the Prosecutornotes, that Witness DQ continuouslyreferred to thewife of the Accusedas MukamudengeXavera, when the evidenceadduced in the case suggests857 that she was actually known as XaveraMukabetera.

sssSee page 42 transcripts of1.9.04 ss6See page 32 transcripts of18 August 2004. 857See pages 28/31 transeripts of18 August 2004.

151 41.TheProsecutor would further represent to theTrial Chamber that Witness DQ’sevidence consists entirely of thirdhand information and is completely unreliable.The witness has a familyrelationship with the Accused and thus hertestimony ismore likely than not to bebiased. WitnessDI

42.Defencewitness DI, a detainee,testified that he lived about 70 or 80 metres fromthe Accused’ house, and that one day he witnessedlnterahamwe from Bugaramaabduct the niece of the wife of the Accused(Esperance Mukagasana)858 when the Accusedwas not at home.

43.Thetestimony of WitnessDI is intendedto showthat the Accused could not haveraped Languida in hisresidence on 7 April1994 and killed her as testifiedto by ProsecutionWimess AP, because Languida sought refuge at Mubugachurch where she was subsequently killed, along with other refugees.

44.WitnessDI doesnot appear to knowthe name of theniece of the Accused’ wife,Esperance Mukagasana, and doesnot givea datefor her purported abduction.The witness seems to havementioned the purported abducfion to tryto distancethe Accused from Esperance Mukagasana, despite the fact that Prosecutionevidence bas shown that she was raped repeatedly by the Accused overa spanof a coupleof days.

45.WitnessDI did not go to Biseseroso he can not be heardto say that Prosecutionwitness AP soughtrefuge there when she did not see her there. In thesame breath, he didhOt seek refuge at MubugaCatholic Parish so he has no knowledgeof whetheror notLanguida sought refuge in thatchurch and waskilled there along with other refugees. In view of this,the testimony of witnessDI is not credible.

WitnessDA

46.The essenceof WimessDA’s tesfimony was thatfrom 15 April1994, she soughtrefuge at thehome of theAccused together with her sister Xavera Mukabetera,Witness AQ, a womancalled Esperance Mukagasana 859,and anotherwoman called Beyatinisa. 86°The witness testified that she, Witness AQ andEsperance Mukagasana ail shared a roomwithin a builinglocated at therear of thepremises of theAccused. 861The witness testified that she remainedat theAccused’ home until sometime between the 13 and16 May 1994.

47.The Prosecutorwould rely on the submissionsand assessmentof Witness DA’sevidence as outlinedat paragraphs77-84 of ChapterFive ofthis brief.

~»sSeepage 43 transcriptsof 1.9.04 8»9Seeexhibit P28 86oSeeexhibitP29 86~Secpages 17/18 closed session transcripts of 16 August2004.

152 WitnessTQ13

48.WitnessTQ 13 testifiedthat he knewthe people who lived in Mika’shouse in April1994. He citedthe Accused, his wife, his two children and the Accused wife’sniece called Esperance. 862TQ13 told the Court that in midMay 1994 he heard’people had come to Mika"s house,abducted Mika’s wife as wellas his’863wife. "s niece

49.On respondingto thequestions from the bench, Witness TQ13 specified one sourceas a trader,Senani. He furthertestified that his neighbours told him thatthe abduction took place in theabsence of theAccused who had gone to buryhis cousin864.

50.TQ13sounded very untruthful. TQ13 denied even what she saidin evidence thatthe Accused’s wife was abducted together with the niece. Such denial is consistentwith a witnesstelling a concocted story. It was clear that Wimess TQ13had to recallcoached evidence and she thus made mistaken assertions. Likeail embellished evidence, TQ13, a neighbourto theAccused, stated she didhOt attendthe funeralof theAccused’s son sincethe families were unrelated.This contradicts TQ1in a materialway. The glaring contradictions resultfrom the fact there was never a ’mourningperiod’ for the Accused’ son. Theculture of killingovertook rules of practice.There were so manykillings thatthe community could hOt focus on theAccused’s deceased son.

WitnessDJ

51,WitnessDJ testifiedthat he wimessedthe abductionof Mukagasana.He testifiedthat Ruzindana took her in hiscar to Mugonero,which headed to Rwamatamulocality. 865He testifiedthat the girl was abducted from inside the Accused’house.

52.WitnessDJ workedclosely with the Accused and the community by virtueof hisprofession. 866The fact that Witness DJ’s wife was Tutsi and survived the genocidereveals there was a ’goodrelationship’ between the Accused and WitnessDJ. It is notsurprising therefore that Witness DJ wentout of his way toassist the Accused by concocting a defence for his misdeeds.

WitnessDR

53.WitnessDR testifiedthat the Accused’wife told him thatin May 1994, EsperanceMukagasana was kidnappedby Interahamwewhen the Accused

862Note that the witness did not mention DA whoclaimed to livein Mika’shouse in April1994.Duringcrossexamination he confirmedhedid hOt know the person bearing DA’s name: see page 12 of transcript of25.8.2004. Prosecution exhibit P61 under seal. 863See page 7 oftranscript of25.8.2004. 864See page 8 oftranscnpt of25.8.2004. 865See page 13 ofthe closed session oftranscript of2.9.2004. 866See Defence Exhibit 82

153 wasaway. 867He testifiedthat the Accused could not have raped Esperance becauseshe was considered a child of thefamily, and according to Rwandan culture,"it is not possible for a manto rape his wife’s nieces who live in his house.’’868He conceded,on a questionfrom the Bench, that many events (for examplekillings in churches)that happened in Rwandain April1994 did not conformto Rwandanculture, 869 and thattaboos and culturalnorms are sometimes87° broken.

54.Defencewitness DR hadno fb’sthand knowledge about the alleged abduction of EsperanceMukagasana. The witnesswas roundto be lyingwhen he testifiedthat he waswith the Accused throughout 16 April 1994, despite the factthat he hadstated in hisconfession statement dated 31 December2000, that,he hadin factspent the whole of 16 April1994 with one Bavuyage. The witnessis thereforenotcredible.

WitnessTQ 14

55.Defencewimess TQ 14 testifiedthat during May 1994a Hutuman called Abakigakidnapped one Esperance who used to livein theAccused’ house.871

56.Defencewitness TQ 14 is notcredible. He madeincredible assertions, one of whichwas thatthere were no lnterahamwein GishyitaCommune throughout April,May andJune 1994, when he hadnot madea tourof ailthe eight secteursthat made up Gishyitacommune. 872 Thereason he gavefor this assertionwas that there was no violencein Gishyitacommune and therefore therewas no reasonfor lnterahamwe to be in theCommune. Both Prosecution and Defencewitnesses testified that Gishyita Commune was swept with a waveof violencefrom Aprilthrough June 1994.He had no firsthand informationconceming the rape or abductionofEsperance Mukagasana.

Wimess NT1

57.Thewitness testified that he didnot hear that the Accused raped Esperance Mukagasanain hisresidence on 7 April1994. He testifiedthat the Accused could873 not have raped her because he wasmarried.

58.Thefact that witness NT1 did not hear about it or thatbecause the Accused was marriedwere no reasonswhy the Accusedcould hOt bave raped EsperanceMukagasana on 7 April1994. Evidence has revealedthat Wimess NT1was in thecompany of theAccused for a verybrief period in thecourse

867Seepage 75 transcriptsof31.8.04 868Secpage 3(CS) transcripts of 31.8.04 869Secpage 5 transcriptsof 1.9.04 870Seepage 7 tmnscriptsof 1.9.04 871Secpage 26 transcriptsof25.8.04 872SecProsecution exhibit P 2 forthe names and locations ofthe eight seetors that ruade up Gishyita commune in 1994. 873Seepage 10 transcriptsof26.8.04

154 of thatday. Apart from rape, Witness NT1 did not testify on theinvolvement of theAccused in themurder of Mukagasana.

hadividualCriminal Responsibility of the Accused

59.TheProsecutor submits that the Accused, by hisact or omission,planned, instigated,ordered, committed, or otherwise aided and abetted in theplanning, preparationor execution of thecrime of murder.The Prosecutor submits that therewas a widespreador systematic attack against the civilian population in Rwandain April1994 and the conductof theAccused formed part of this attack. 60.TheProsecutor submits further that the Accused had the requisite intent to kill GorettiMukashyaka, Languida Kamukina and EsperanceMukagasana as part of a widespreador systematic attack against the civilian population ofRwanda on ethnicgrounds and as suchhe is criminallyresponsible forthe killing of thesethree girls. The evidence of ProsecutionWitnesses AP andAQ proves beyondreasonable doubt that the Accusedparticipated in the murderof GorettiMukashyaka, Languida Kamukina and EsperanceMukagasana. The eightDefence witnesses called to refute this allegation arenot credible.

Eventsat MubugaParish Church, Mubuga Secteur, Gishyita Commune

TheProsecutor’s Case

61.TheProsecutor alleges in paragraph7(b) of theindictment that in the course ofan attackon Tutsicivilians seeking refuge in Mubuga Catholic Parish on 15 April1994, the Accusedkilled hundreds of peopleincluding Kaihura and injuredseveral others.

62.TheProsecutor avers further, in paragraph7(b)(i) of the indictment that on around15 April1994 at MubugaParish, the Accused instructed Interahamwe to ripopen the stomachs of twowomen named Colette, a resident of Mubuga, andAlphonsine to seehow stomachs of Tutsiwomen look like. The stomachs of thetwo women were ripped open in thepresence of theAccused, thereby killingthe two womenin the process.The Prosecutordid not leadany evidencein supportof paragraph 7(b) (i) of the indictment and therefore notwish to makeany submissions in that regard.

A Summarvof theEvidence Presented by theProsecutor.

63.In supportof the allegationsin paragraph7(b) of the indictment,the Prosecutorrelies on the evidence of WitnessAV. Witness Av testifiedthat she soughtrefuge at theMubuga Catholic Parish located in Mubugasecteur,

155 Gishyitacommune, on 11 April1994. 874Witness AV furthertestified that she sought875 refuge at MubugaChurch together with her ten brothers and sisters. Arrivingat MubugaChurch, Witness AV testifiedthat the church was full with876 men, women, children, who had also sought refuge.

64.WimessAV furthertestified that, at around10 AM,on 15 April1994, she saw the Accusedand otherattackers outside the MubugaChurch. Witness AV testifiedthat she was situated inside the saidchurch when she saw the Accusedarrive at thatlocation in a blueSuzuki jeep, which was parked oppositethe said church. Witness AV tesfifiedthat a gendarmeaccompanied theAccused. The witness testified that she was able to identifythe gendarme becausehe worea redberet and had army fatigues on.877

65.WitnessAV testifiedthat she saw the Accused and the gendarme take a boxof grenadesfrom the car and put it oppositethe church. The witness testified thatthe weapon that she identified as a grenadehad the shape of a pear fruit.878Witness AV alsotestified that she then saw the Accused throw a grenadeinside the said church following which the wimess testified that she heardan explosionwithin the church. 879 Followingthe said explosion, the witnesstestified that she and others fell onto the ground. Witness AV further testifiedthat she wasabout rive meters from the area where the grenade exploded.

66.WitnessAV furthertestified that when she got up, she realised that Kayihura wasdead, lais head was shattered, 88°and that she herself was bleeding. She was injuredon the head,the neckand the shoulder.The wimessfurther testifiedthat several people were wounded during the said attack and that therewere also many corpsesTM. Followingthe attack the witness testified thatshe became afraid and moved from the church into the sacristy.

An Analysisof the Evidence Presented by theProsecutor.

67.TheProsecutor would represent to the Trial Chamber that as theattack at the churchtook place in broaddaylight, the conditions of identificationwere extremelyfavourable. Witness AV soughtrefuge in thechurch where she observedthe events she testified to from a distanceofhardly rive metres from wherethe Accused was.

68.Thewitness testified that as shehad known the Accused and Kayihura before thatdate issues ofmisidentification cannot arise.

874Sec page 37 transeripts of 1 April2004 87»See page 54 transcripts of 1 April2004 876See page 37 transcripts of I April2004 877See page 48 transcripts of 1 April2004 87sSee page 37 transcnptsof 1 April2004 879See page 38 transcripts of 1 April2004 880See page 38 transcripts of 1 April2004 gsiSee page 39 transcripts of 1 April2004

156 The DefenceCase

69.TheDefence does hot dispute the fact that Mubuga church was attacked on 15 April1994, and that hundreds of Tutsirefugees seeking refuge in thechurch, includingKayihura, were killed. The case for the Defence is that the Accused washOt at Mubugachurch at ailon 15 April1994, and therefore could hOt haveparticipated in the attack that resulted in thedeath of Kayihura,and calledWitnesses, DC, DA, DD, DF, DC,DZ, DAA,DG, TQ 1 and AH8 to say thathe washOt at Mubuga church on the date in question.

70.Withthe exception of WitnessDC, who contrary to theDefence case, testified thatthe Accused went to Mubugachurch around 14 April1994 the test ofthe witnessesplaced the accused elsewhere. The testimony of theother Defence witnessesreferred toherein above is hOt credible asdiscussed inchapter III of thisbrief

Individualcriminal responsibility ofthe Accused

71.TheProsecutor submits that the Accused, by hisact or omission,plarmed, instigated,ordered, committed, orotherwise aided and abetted in theplanning, preparationor execution of the crime of murder. 72.The Prosecutorsubmits that there was a widespreador systematicattack againstthe civilian population inRwanda in April 1994 and the conduct of the Accusedformed part of thisattack. The Prosecutor submits further that the Accusedhad the requisite intent to killKayihura as partof a widespreador systematicattack against the civilian population of Rwanda on ethnic grounds. 73.The Prosecutorsubmits that the testimonyof Prosecutionwimess AV consideredin the light of thetestimony of Defencewitness DC provesbeyond doubtthat the Accused was present at Mubugachurch on between14 and 15 April1994 and participated in the attack on Tutsicivilians who had sought refugein thechurch. The evidence of witnessAV provesthat the Accused was responsiblefor Ee deaEof manycivilians including Kayihura. The Prosecutorsubmits that paragraph 7(b) of theindictment has beenproved beyonda reasonabledoubt.

Eventsat the MugoneroComplex, Ngoma Sector,Gishyita commune.

TheProsecutor’s Case

74.TheProsecutor alleges in paragraph7 (c) of theindictment that on 16 April 1994,at theMugonero church, hospital and school, the Accused in concert withtwo lnterahamwe killed a civilianwoman named Mukasine and another, in oneof thehalls of theMugonero Medical School. And in paragraph7 (c) (i),the Prosecutor alleges that on 16 April1994, at theMugonero Complex,

157 theAccused, acting in concertwith lnterahamwe, went to oneofthe operating rooms in the medicalschool building in the MugoneroComplex and collectivelykilled civilian Tutsi women named Immaculate Mukabarore, BemadetteMukangorero and Josephine Mukankwaro. In paragraph7 (c) (ii) theProsecutor alleges that in May1994, in Ngoma,a soldiernamed Gikeri shotto deathTutsi women Bahati Nyiransengimana, Helen Mugiraneza and Drocella,aged 9, on instructionsof The Accused.

A Summargof theEvidence Presented by theProsecutor

75.TheProsecutor did not lead any evidence in supportof paragraph7(c) (ii) the indictment,and makesno submissionsin respectof thatparticular paragraph.

76.As regardsparagraphs 7 (c) and 7 (c)(i) of theindictment the Prosecutor relieson theevidence of witnessesAU andAT.

WitnessAT

77.WitnessAT testifiedthat on 16 April1994, he soughtrefuge in thesurgical wardin theMugonero Hospital. Hetestified that after spending a short while in thisroom hiding under the corpses, three girls, Mukasine daughter of Kajongi,who had just completed nursing studies in MugoneroHospital and AmosKarera’s dau~ters who werea teacherand a studentrespectively, residentin Kanyinya882came running and lay on the three beds. 883He testitïed thatIsaac Kajongi was SDA Accountantin theoffice of PastorElizaphan Ntakirutimanaand AmosKarera lived in the employees’quarters at the Mugonero884 Complex.

78.WitnessAT furthertestified that afler the three girls had entered, he sawthe Accused,in the company of two Interahamwe,who were sons of Kanyabungo,come into the room. He testifiedthat the three men raped the threegirls for about rive minutes after which they decided to kill them, saying; "’Thosegirls are Inyenzi. We are not going to abandonthem here. We arehOt goingto leavethem alive. "’ Witness AT tesfified that alîer killing the three women,the Accusedopened Mukasine’s legs so that"evervone passing shouldsec what the vagina of a Tutsiwoman looks like. ’" 885Witness AT testifiedthat he observedthe Accused from a distanceof aboutfour and a hall meters.886

ss2See page 14 transcripts ofl 9t~ April 2004. 883Sec page 13 transeripts of19 ~ April2004. In eross-examination (secpage 53 transcripts of19 April 2004) witness ATstated that apartfrom Mukasine, Isaae Kajongi’s other ehildren were Paul Muvuni who was an offieerin theRPF army and Didas who was a lieutenantinthe RPF army. s84Sec pages 13/14 transeripts of19 ~ April2004. sssSec pages 16/17 transcripts of19 ~ April2004. $86See page 17 transcripts of19 ~ April2004.

158 WitnessAU

79.WitnessAU testifiedthat she soughtrefuge at the Churchat Mugonero Complex.887 Her childrenaged rive and three,888 and bothher parents accompaniedher to Mugonerowhere they were killed inside the church duringan attack

80.WimessAU testifiedthat she was in thechurch with many other refugees. Whenthere was a bigattack that started around 9 Am on a Saturday,889she recognizedthree girls among the refugees; Immaculee Mukabarore, Josephine Mukangwiroand Bemadette. 89°Itis AU’s evidence that during this attack in thechurch, she sought refuge in thesurgical ward. While she was in this room,AU sawthe Accused enter this room that was located in thebasement. The Accusedwas amonga big groupof lnterahamwe.AU alsorecognized, one EzekielNtakirutimana and AlphonseKanyabungo 891 amongstthe attackers.

81.WitnessAU observedthat the Accusedwas armedwith a gun and a club called"mpongano." Wimess AU w orea pairof trousers,a wrapper and a set of underwearon thatoccassion. 892Whilst the Accused was raping her, witness AU saw otherInterahamwe beating, maltreating and rapingother female refugees.She testified that afferwards, she managed to hideamong the dead bodies.The witnessalso testified that the 3 othergirls, Immaculee Mukabarore,Josephine Mukangwiro and Bemadette, were killed after having beenraped by lnterahamwe.893

An Analysisof theEvidence Presented bythe Prosecutor.

82.TheProsecutor would represent that the testimony of WitnessesAT andAU wasdirect, clear and convincing. Witness AT testified before this Tribunal in the Kayishema/Ruzindanaand Ntakirutimanacases where he was round credible.Witness AT observedthe Accused from close range, hardly rive metresaway. Needless to say,he hadknown him before the event on 16 April 1994.The Prosecutorsubmits that Wimess AT wasresident in Ngomawhere Mukasineresided as well.He hadknown her well before that date, therefore issuesof misidentification, assuggested bythe Defence, donot arise.

83.WitnessAU was a subjectof a savagerape and was hidingtogether with Immaculee Mukabarore, Bemadette Mukangorero and Josephine Mukankwaro,who were also raped and killed.The killings took place in broaddaylight and witness AU observed it atclose quarters. ss7See page 3 transcriptsof 7 April2004 sssSee page 3 transeriptsof 7 April2004 swSee page 3 transcriptsof 7 April2004 sg0Sec page 9 transcriptsof 7 April2004 s91See page 23 transcripts of7 April2004 892Sec page 33 transcripts of7 April2004 893See page 9 transcriptsof 7 Apri12004

159 84.TheDefence through the testimonyof wimessesAH7, AR1, TQ 28 and TQ7, claimgenerally that the Accused was not at MugoneroHospital on 16 April 1994,and therefore could not have participated in the murder of Mukasine, Mukabarore,Bernadette Mukangorero, or JosephineMukankwaro. They claimalso that Mukasine was not at MugoneroHospital on 16 April1994 and thereforecould not have been killed there by theAccuse&

85.The Defencehas also led some evidence to suggestthat even Prosecution WitnessAT was not at MugoneroHospital on 16 April1994 and therefore couldnot have seen the events he testified to inhis evidence. The testimony of thesewitnesses cannot be relied on as theanalysis of theirevidence below reveals.

The DefenceCase

86.The Defencedoes not disputethat refugeeswho gatheredat Mugonero Complexwere attacked on 16 April1994, and hundreds of themkilled in the courseof the attack.However, they dispute the Accused’presence at Mugoneroand participation in the attack

Wimess AH7

87.Defencewimess AH7 testifiedthat he heardthat in April1994 Mugonero Hospitalwas attacked by looters.He tesfifiedthat he never heard about rapes inNgoma although he couldnot confirm it.894

88.WitnessAH7 testified that around 1995, Prosecufion Wimess AT 89»told him thatin April1994 he fledto laisuncle in Murambiarea where he hid throughoutthe 1994 events. He testifiedthat Prosecution Witness AT toldhim that he wouldsometimes pretend to be Interahamweby wearingbanana leavesand bearing a machete,as a meansof survival.Witness AH7 testified thaton thebasis of whathe hasnarrated Prosecufion Wimess AT couldnot havesought refuge at MugoneroComplex. Witness AH7 testifiedthat he knewProsecution Witness BH 896and that during April, May and June 1994 he wasresident in Murambiarea as well but could not teU how he survived.897

89.TheProsecutor submits that the essence of thetestimony of witnessAH7 is partlyto distanceWitness AT fromMugonero Complex, thereby making it unlikelyfor him to haveseen the Accusedparticipate in the murderof Mukasineat the complexon 16 April1994. Prosecution Wimesses AT testifiedthat he soughtrefuge at MugoneroComplex on 16 April1994 where he wimessedthe Accused participate in the murder of Mukasine.

894See page 46 transcfipts of6.9.04 Sg~SeeDefence exhibit D 87. 896See Defence exhibit D 88. 897See page 47 transcripts of6.9.04

160 90.WimessAH7 had spent the period 14 Aprilto 30 Aprilgrazing cattle in the fieldsaway from MugoneroComplex. In particularhe was not in the MugoneroComplex on 16 April1994, so he is hotin a positionto saywho wasor wasnot there and what happened at theComplex on thatday.

91.The claimthat Prosecution Witness AT metwith Defence Witness AH7 and toldhim how he survivedthe genocide is a productof AH7’simagination. WitnessAT haswritten several statements on his activities during April May andJune 1994, and in noneofthose statements does he say,let alone allude to thefantastic stories Witness AH7 attributes to him. Witness AH7 is, on this score,not credible.

WitnessARI

92.WitnessAR1 testified that Joy Mukasine was the daughter of IssacarKajongi theSDA Field Accountant, and that in April1994 she was in schoolat Butare University.He testified that on 16 April1994 Joy Mukasine was at Butare Universityin Butarebecause he didnot see her at MugoneroHospital where therest of themembers of herfamily had gone to seekrefuge. He statedthat sincehe leftthe hospital on 12 April1994 and did hot return there until the endof themonth he couldnot tell whether Joy Mukasine could have been at the898hospital inthe period he was not there.

93.WitnessAR1 testifiedthat the MugoneroHospital Accountant Charles Ukobizabadid not have a childby thename ofJoy Mukasine. 899Witness AR1 testifiedthat no rapeswere committed at MugoneroHospital on 16 April1994 because"’...people went there to footor kill others. They therefore would hOt have’’9°°had time to commit rape.

94.Thetestimony of WitnessAN1 is intendedto showthat Mukasine was not at MugoneroHospital on 16 April1994, and thereforecould hOt havebeen killedthere. Witness AR1 wasnot at MugoneroComplex on 16 April1994 either.In factduring this period he washiding in Bamporoki’shouse at the Kabahinyuzamarket, which was over 500 metresaway from Mugonero Complex.

95.In relationto anothermatter, but which impacts on hiscredibility, Wimess ARI statedthat on 16 April1994, while seeking refuge at theCCDFP in Gishyitacentre with other Hutu, the Accused visited them. Defence Wimess TQ 28 whoalso sought refuge there with Witness ARI testified that the Accuseddid not visit them at theCCDFP.

sgsSec page 51/52 transcripts of2.9.04 s99See page 53 transcripts of2.9.04 900See page 54 transcripts of2.9.04

161 96.It is evidentthat one or bothof themare lying as regardsthe visit of the Accusedat the CCDFPbuilding; Witness TQ 28 testifiedthat communal authorities,ineluding the Aeeused, visited them while witness ARI said that theydid not.Both witnessescannot be right.In the lightof these contradictions,it isreasonable toinfer that the testimony of witness AR1 is notcredible.

WimessTQ 28

97.WitnessTQ 28 testifiedthat Joy Mukasinewas the daughterof Issacar Kajongiand that in April1994, she was studyingat ButareUniversity in Butareand therefore could not have been in Ngomawhere she is allegedto havebeen raped or killedon 16 April1994. 9°1In thesame vein, Wimess TQ 28 testifiedthat he too was a studentat ButareUniversity but in April 1994, he wasat homefor Easter holidays. 9°2The witness testified that Charles Ukobizaba,the Mugonero Hospital Accountant did not have a daughterby the nameof Mukasine.9°3He testifiedthat Johaneta alias Josiane and Eugenie were9°4 daughters of AmosKarera.

98.WitnessTQ 28 testifiedthat he stayedin the MugoneroHospital at the MugoneroComplex from 8 to 16 April1994 before he leftfor the CCDFP in Gishyita.That testimony was at variancewith what he testifiedto in Ntakirutimanacase. He hadto concedethat he wasat thecomplex for hardly threedays from 8 April1994 to 11 April1994, before he leftfor the CCDFP.

99.He alsoconceded that he didnot leavefor the CCDFP from the Complex as testifiedto in Courtbut fromKabahinyuza market, which is outsidethe MugoneroComplex. He testifiedthat while at theCCDFP, the Accused and CharlesSikubwabo visited them. Other Defence witnesses seeking refuge at theCCDFP testified that the Accused never visited the place on 16 April 1994.Again he wasunable to specifyon whichdates he sawthe Accused at theGishyita centre and for how long.

100.Contrary to laistestimony in examinationin chier, Defence wimess TQ 28 was not at MugoneroComplex between 13 and 16 April1994. He couldnot thereforesay whether Mukasine or theother girls, Josiane, Marthe and Marie werenot at thecomplex during that period. He claimedthat Marthe was in Kigalior Kibuyeduring that period but could not say where exactly. This is notsurprising because Witness TQ 28 wasnot in Kigali,Kibuye or Mugonero Complexduring this period, and therefore could not say whether Marthe was in anyof these towns.

90~See page 6/7 transcripts of24.8.04 ço2See page 17 transcripts of24.8.04 903See page 7 transcripts of24.8.04 ç04See page 8 transcripts of24.8.04

162 101.Defence Witness TQ 28 was unableto saywhen he knewhe had to leave forGishyita town on 16 April1994, was unable to tellthe time he leftfor Gishyitatown on 16 April1994, and deliberatelyrefrained in cross examinationfrom stating the distance between Mugonero and Gishyita centre.

102.In thelight of theseobvious contradictions andhalf-truths inthe testimony ofDefence Witness TQ 28 itis reasonableto infer that he is notcredible. He hasnot been able to provide an alibi for the Accused for the period 16 Aprilto 30 April1994 and has not discountedthe Prosecution evidence regarding Mukasineand the other girls.

Wimess TQ7

103.Witness TQ7 testified that Joyce Mukasine was in Butarein April1994, studyingpublic health. 9°5Witness TQ7 testified that she did not know what eventuallybecame of JoyceMukasine and that the last she knew, this lady wasat Butare.9°6She testified that she knew another lady called Mukasine but this9°7 person lived outside the Mugonero Complex.

104.Wimess TQ7 testifiedthat she knewCharles Ukobizaba who workedat theaccounting section of theMugonero Hospital. She testified that Charles Ukobizabahad no childby thename Mukasine and his daughters were called Charlotte,Verene and Esperance. The witness further testified that Charlotte wasin Cyanguguin April1994. She testified that Verene was smdying at the nursingschool at theMugonero Hospital. The wimess testified that she never heard908 that Verene was raped at the Mugonero Hospital in April1994.

105.Witness TQ7 admitted that she was not present at theMugonero Hospital from11 April1994. 909That being the case, the Prosecutor would represent to the TrialChamber that Witness TQ7 couldnot havehad any knowledgeof eventssurrounding thealleged killing or rape of Tutsi women gathered at that location.In anyevent, the Prosecutor would represent to theTrial Chamber thatWimess TQ7’s evidence that Martha and Joyce Mukasine could not have beenraped at the MugoneroComplex in April1994, because they were studyingat Kabgayiand Butare respectively, is contradicted by the testimony of DefenceAH8. 106.In thatregard, Witness AH8 testified that primary and secondary schools in Rwandahad closed for the Easter holidays during the last week of March 1994and althoughthey weremeant to bave reopenedduring the week commencing12 March2004, no schoolcould reopen due to theoutbreak of

9osSec page 47 transcripts of 23 August 2004. 906Sec page 48 transcripts of23 August2004. 9o7See page 48 transcripts of23 August2004. 9o~See page 49 transcripts of23 August2004. 909See page 59 transcripts of23 August2004.

163 thewar in Rwanda.91°The witness further confirmed that universities in Rwanda91~ were also closed at this rime.

107.Witness AH8 further testified that as at thetime ofthe President’s death, theschools in Rwandahad closed for the holidays for about three weeks. The witnessfurther testified that it wascustomary from students who schooled awayfrom home to retumto theirhomes in theircommunes of originduring suchschool holidays. He wasadamant that the schools did not reopen during themonths of April,May and June 1994912

108.It followsfrom Witness AH8’s testimony that even if Marthaand Joyce Mukasinewere away from Mugonero prior to April1994, they would have retumedto theirhome in Mugoneroat theend of Marchin timefor the Easter vacation.

IndividualCriminal Responsibility of the Accused

109.The Prosecutor submits that the Accused, by hisact or omission,planned, instigated,ordered, committed, or otherwise aided and abetted in theplanning, preparationor execution of thecrime of murder.The Prosecutor submits that therewas a widespreador systematic attack against the civilian population in Rwandain April1994 and theconduct of the Accusedformed part of this attack.The Prosecutor submits further that the Accused had the requisite intentto killMukasine, Mukabarore, Bernadette Mukangorero, and Josephine Mukankwaro,as part of a widespreador systematic attack against the civilian populationof Rwandaon ethnicgrounds

110.The Prosecutorsubmits that the evidenceof ProsecutionWitnesses AT andAV provesbeyond a reasonabledoubt that the Accused was individually responsiblefor the murdersof Mukasine,Mukabarore, Bernadette Mukangorero,and JosephineMukankwaro. The evidenceproves that the Accusedwas present at theComplex on 16 April1994 and thathe hadthe opportunityto committhe murders.The testimonyof the fourDefence witnessesinthis regard is not reliable and should be discounted.

Eventsin thearea of Bisesero,Gisovu and Gishyita Communes

TheProsecutor’s Case

111.The Prosecutor alleges in paragraph7(d) of theindictment, that, towards theend of April1994, at Kabatwahill Bisesero area the Accused and an

91oSee page 73 transcripts of6 September 2004. 9HSee page 74 transcripts of6 September 2004. 912See page 68 transcripts of6 September 2004.

164 lnterahamwenamed Ngabonzina killed a Tutsicivilian woman Virginie Gasherebuka,by inserting sharp weapons including machetes into her vagina.

112.The Prosecutor alleges in paragraph7(d) (i) ofthe indictment that towards theend of May1994, at Nyakiyabohill in theBisesero area an lnterahamwe namedGisambo killed Pascasie Mukarema on instructionsofthe Accused.

113.The Prosecutor alleges in paragraph7(d) (ii) of theindictment that around June1994, at Gitwahills in theBisesero area, The Accused in concertwith oneNgabonzina and other lnterahamwe killed a civilianTutsi woman named FelicityKikuyu.

114.The Prosecutor alleges further in paragraph7(d) (iii) ofthe indictment on or around22 June1994, in Biseserohills, the Accused participated in the killingof a prominentGishyita town civilian Tutsi businessman named Assiel Kabanda.

A Summaryof theEvidence Presented by theProsecutor

115.The Prosecutor did not lead sufficient evidence 9x3in supportof paragraph 7(d)of theindictment and makes no submissions inthat regard.

116.In support ofparagraphs 7(d) (i), 7(d) (ii) and 7(d) (iii) ofthe the Prosecutorled evidencefrom witnesses BG, AW, BF, BB, AX and BH. The914testimony of thesewitnesses is summarizedbelow.

Murderof PascasieMukaremera

WitnessAW

117.Witness AW testifiedthat he encounteredthe Accusedin Biseseroone momingtowards the end of May 1994,while seeking refuge at Rugonahill, aboutfour kilometers from Nyarutovu hill. 91»He testifiedthat the Accused camewith Charles Sikubwabo and an Interahamwein the communevehicle andparked it by theroadside. The witness was able to recognizethe Accused, as he washardly 20-50 kilometers away from where they parked. The witness heardthe Accused urge the Interahamwe toscour the forest for Tutsi. 916 Iii the courseof thesearch, the Interahamwe caught up withPascasie Mukaremera, whowas pregnant, 917and took her to theAccused, who said, I’m going to cut

11 l Seepage 5 transcriptsof 6 Apri12004,where witness BG merelymentions that Virgine Gasherebuka was killed in Bisesero. 914Referencê is made.to thetestimony of ProsecutionWitnesses AT andAF as regardsthe cireumstanees regarding the murder of AssielKabanda. It shouldbe notedthat the Prosecution does not rely on thetestimony of Proseeutionwitnesses ATand AF asregards theKabanda affair. Their testimony as regardsKabanda came onty in thecourse of responseswimesses AT andAF gaveduring cross- examinationby the Defenee. 9l»See page 9 transcriptsof14 ~ April2004. 9t6See page9 transcripts of14 th April2004. 917See page 9 transcriptsof 14 ~ April2004.

165 thiswoman, to disembowel this woman, to secthe position of thefetus in its mother’swomb. "918

118.Witness AW furthertestified that he thensaw the Accused take a machete, makePascasie Mukaremera lie down and cut her "from her breast, right up to hergenitals, and then he removedthe baby from the mother’s womb and put it besideits mother.The babycried for sometime and thendied. ’" The Interahamwethen eut offPascasie Mukaremera’s hands, sharpened a stake andpierced it throughher arnls.919

119.Witness AW testifiedthat he had knownPascasie Mukaremera before the Rugonahill incident that date, that she was aged around 40, was resident in Biseseroand that she was a peasant,who was marriedbut couldnot immediately92° recall the naine of her husband.

Murderof FeliciteKankuyu

WitnessAW

120. WitnessAW testifiedthat FeliciteKankuyu was discoveredby Interahamweat Rugonahill in thecourse of searchingfor Tutsiwho had soughtrefuge in theBisesero hills. He testifiedKankuyu was discovered a fewhours following the discovery of PascasieMukaremera at thesame hill. WitnessAW testifiedthat he hadknown Felicite Kankuyu before that day, thatFelicite Kankuyu was a schoolteacher in Nyarutovucellule in Bisesero, where921 she was married with children.

121.Witness AW furthertestified further that the Interahamwe handed Felicite Kankuyuto the Accusedand CharlesSikubwabo, where Sikubwabo "took her.Then she -- he threwher down and then he broughtdown his pants right to theknees and then climbed on her’"and proceeded to rapeher. 922 The Accusedwas hardlyrive meters from where Charles Sikubwabo had raped FeliciteKankuyu. The act of rapetook ten minutes. 923Witness AW testified thatafter Charles Sikubwabo had rapedKankuyu, he saidto the Accused "’comeand have intercourse with this woman who was a teacher." 122.Witness AW alsotestified that whereupon, the Accused"’took that woman,he undressed,pulled down his trousers,and he had sexual intercoursewith that lady, just as Sikubwabohad donc" 924 The Accused then calledupon the Interahamwe that they were to rapeKankuyu then kill her "becauseshe is alsoan Inyenzi,like every other lnyenzi. "’ WitnessAW

91sSec page 10 transcriptsof14« April2004. 919See page 10 transcriptsof 14 th April2004. Sec page 49 transcriptsof14 ~ April2004 wherein the witness reinforeed his testimony in cross-examinationregarding the rape and murder of PascasieMukaremera. 920Sec page 11 transcriptsof14 ~ April2004. 921Secpages 1 ] and14 transeripts of 14 th Apri12004. 922Sec12 transcripts of14 tu April2004. 923Secpage 12 transcripts of 14 thApril 2004. 924Seepages 12/13 transeripts of 14 ~ April2004.

166 testifiedthat he witnessedrive lnterahamwe proceed to rapeKankuyu, in the same marinerthat the Accusedand CharlesSikubwabo had donc, on directionsof the Accused. 925The rive Interahamwe then took pieces of wood andthrust them into Kankuyu’s vagina, inflicting grievous harm that led to her926death.

Murderof AssielKabanda

WitnessBE

123.Witness BE testifiedthat in 1994, he wasresident in Bisesero.He testified thatfollowing the deathof the Presidentin April1994, lnterahamwe, sometimesinthe company of theAccused, started attacking them in theirarea of residence.He andother refugees would spend the days in busheshiding andgo back in their residences at night.927

124.The witness testified that one afternoon 928sometime in mid-June1994, he andabout three other refugees, including Assiel Kabanda, 929 were hiding in a sorghumfarm on Gitwahill in Biseseroregion 93° whenthe Accusedand CharlesSikubwabo arrived with a groupof lnterahamweaboard a white Toyotathat belonged to theGishyita Commune. 931 The witness testified that thevehicle was parked about 20 metersfrom where the witnessand group were.He testified that other attackers came on foot. 932

125.Witness BE testifiedto havingknown Assiel Kabanda since he wasa child as a traderwho dealt in sorghum,coffee and beans, among other items. He alsoknew that he hailedfrom Gitwa cellule, Bisesero Secteur in Gishyita Commune,although his trade was at Gishyita.933The witness described the Interahamwewho came that day as wearingwhite clothes. 934 He testifiedthat he knewthe Accused as Conseillerof GishyitaSecteur and that the Accused andAssiel Kabanda were neighbors in Gishyitatown.935

126.He testifiedthat on thatday, he sawthat the Accused was armed with a gunwhile the Interahamwe with him were armed with traditional weapons.936 He testifiedthat: "They found us out. We triedto run, and they chased us, and whenwe cameclose to a big trench,Mr. Kabandahad laggedsomewhat

925Secpage 13 transcriptsof14 ~ April2004. 926Seepage 13 transeriptsof14 ~ April2004. 927Secpage 7 transeriptsof21 a April2004. 92sSe page4 transeriptsof21 st April2004. 929Secpage 4 transcriptsof 21 stApril 2004. 9s0Seepages 7/8 transeripts of21 a April2004. 93~Seepage 4 transcriptsof21 st April2004. 931Secpage 5 transcriptsof21 st April2004, 933Secpage 8 transcriptsof21 st April2004. 934Secpage 17 transcripts of21 st April2004. 935Seepage 9 transcriptsof 21 s’ April2004. Refer to pageK0286147 of ProsecutionExhibit P2 forlocation ofthe Accused’ house m relationto AssielKabanda’s house. 936Sec page 5 transcriptsof 21*t April 2004.

167 behind,and we heardgunshots. I had seenMika among the assailants, and whenI lookedback, I sawKabanda fall down. We hidin thattrench. "937

127.Witness IS further testified that he andanother refugee managed to hidein anold cassiterite, a hole that was about three meters deep 938from where the attackersdid not discover them. 939While in hiding,the witness heard the Interahamwe,who had reachedAssiel Kabanda first, confirm that the man whohad been shot at wasindeed Assiel Kabanda. From 30 meters,940 the witnessheard the Accused them,"Wait, don "t killhim. You have to waitfor me. Do not la’ll him. sa9y41t°

128.AI’ter the assailants left, between 5 and 5:30 PM, Witness BE testifiedthat he cameout of thehole to secwhat had happened to AssielKabanda 942and discoveredthat his body was naked and his head and genitals had been cut- off.943 Thewitness also testified that Assiel Kabanda was his neighbor and a personhe took for a brother.944 He testifiedthat fear made him go home that nightbut he retumedthe next moming and buried Assiel Kabana’s remains in a94 hole5 he dug hOt far from where he waskilled.

129.Witness BE testifiedin cross-examinationthatwhen he andother refugees werediscovered, they ran fromGitwa hill towards Runyangingo hill for between15 and 20 minutesand it was whilerunning that Kabanda lagged behindbecause he wasolder and he gotshot. 946 Thehole in whichthe two refugeeshid was at Runyangingo bill 947

130.Wimess BE testifiedthat after the war, he metthe Accused’ neighbor, an oldman called Ndoliyobijya, whotold him that the Accused had hang Assiel Kabanda’shead on thewindow of hisbouse and the witness saw his genitals hangingon a pole.948

131.It wasmade an issuem crossexamination that it is statedin witnessBE’s writtenstatement 949 thatthe Accuseddiscovered the Witnessand Assiel Kabandaat Gitwahill while in hisreconfirmation statement 9»°the he referred to theplace they were discovered as Uwingabo. The witness clarified the issue by saying"We were flushed out of Gitwacellule in Biseseroregion. And we

937Secpage 4 transcriptsof 21 stApril 2004. 938Secpages 20/21 tmnscripts of 21 st April2004. 939Secpage 5 tmnscriptsof 21 ~ April2004. 940Secpage 6 transcriptsof 21 ~ April2004. 941Secpage 5 transcdptsof 21 *t April2004. 942Seepage 24 transcriptsof 21 ~ April2004. 943Secpage 6 transcriptsof21 ~ April2004. 944Secpage 6 transcriptsof21 stApril 2004. 945Secpage 7 transcriptsof 21 stApril 2004. 946Secpage 18 transcripts of21 stApril 2004. 947Secpage 20 tmnscripts of21 s~April 2004. 94~Secpage 7 transeriptsof 21 ~ April2004. 949Secwitness statement dated 29 ~ November1999, Defence exhibit D28 95oSecreconfirmafion notes, Defence exhibit D29

168 leflGitwa to fleetowards Runyangingo, which is situatedin Uwingabo cellule.’"951

WitnessBF

132.Witness BF, an elderly Hutu man, testified that he wasresident in Gishyita Communein 1994and his housewas not far fromthe placewhere Assiel Kabandahad his business 952selling foodstuffs like sorghum, rice, sugar, sait, andother items in additionto buyingand selli9n ~ coffee.953 He andAssiel Kabanda,who was not muchyounger than him, had beenfriends from as farback as 1962.955He testifiedthat Assiel Kabanda’s residence was in Biseserobut he had commercialbuildings in Gishyita,hOt far fromthe Communaloffices, 956where he stayedmost of thetime and only occasionally wentto Bisesero tocheck on lais family and cattle.

133.Witness BF testifiedthat in February1994, having realized that there were politicaland ethnic tensions in Gishyitatown, Assiel Kabanda closed his businessin Gishyitaand joined his family in Bisesero.957He testifiedthat he saw the Accusedopen Assiel Kabanda’s shop before he fledbut had no knowledgeofwhether or nothe tookanything from there. 958The witness also testifiedthat the last time he sawAssiel Kabanda was in mid-Marchwhen he came959to Gishyitatocheck on lais assets and property.

134.Witness BF testifiedthat towards the end of June1994 at about4 PM,he witnessedan incidentin whicha sizeablegroup of Interahamweled by the Accusedcame to Gishyitashouting and singing saying they had brought back AssielKabanda to buycoffee. 960 Thewitness was at hisbouse from which he couldsec the Accused’ and Assiel Kabanda’s houses when he firstheard the groupof assailantsarrive. He testifiedthat he subsequentlyapproached the groupwhere they had gathered in frontof AssielKabanda’s house.961

135.He recognizeda number of peoplein the groupof assailants,amongst themthe Accusedand Obed Ruzindana. 962 Whenthe witness approached the group,he sawone of theInterahamwe carrying a smallish bag that was white in color.963 He testifiedthat Interahamwe opened the bag from which the Accusedremoved a headthat was identifiedas AssielKabanda’s. 964The

9s~Secpage 13 transcripts of21 st April 2004. 952Secpage 3 transcriptsof22 haApril 2004. 953Seepage 3 transcriptsof 22 adApril 2004 9»4Secpage 5 transcriptsof 22 ha Apri12004. 95sSecpage 4 transcriptsof 22 ha April2004. 956Secpage 3 transeriptsof 22 ha April2004. Refer to K0286147of ProsecutionExhibit P2 for location of AssielKabanda’s house in relationto theCommune office and Mikaeli Muhimana’s residence. 957Sec page 4 transcdptsof22 ~a April2004. ~5~Seepage 19 transeripts of 22 nd A_pri12004. 959Secpage 4 transcriptsof22 ~ Apri12004. 960Secpage 6 tmnseriptsof22 nà Apri12004. 96~Seepages 6/7 transcripts of22 ha April2004. 962Seepage 7 transeriptsof22~a April2004. 96~Secpage 26 transcriptsof22 haApril 2004. 964Secpage 27 transcriptsof 22nd

169 Accusedtook the head and hung it on AssielKabanda’s window between two metalrods. 965 He testifiedtlaat after this was done, tlae Accused spoke to BourgemestreCharles Sikubwabo and the attackers went to theirhomes.966

136.Witness BF testifiedfurther that the following day, he andanotlaer Hutu friendand neighbor, Ndoliyobijya, went to theAccused to askfor permission to buryAssiel Kabanda’s head. The Accused did not respondimmediately. Thewimess saw theAccused go to consultCharles Sikubwabo, and when he retumedhe authorizedthem to takeaway the head and bury it. He testified thathe hadto askfor permission from the Accused to bury the head because it was the Accusedwho was in chargeof GishyitaSecteur. 967 The witness testifiedtlaat the Accused and Charles Sikubwabo were very close as he often saw968them on manyoccasions going to huntdown Tutsi civilians together.

137.Witness BF testifiedthat although he wasHutu, hewas scared by the1994 genocidebecause he was a friendto Tutsisthat were being hunted and thereforefeared he would be targetedand accusedof being an accomplice.969WitnessBF testified that the Accused had a Tutsiwife called 970 Xaverawith whom he hadtwo children one of whomdied before the war. Thewitness testified that he remembersa certain Mukagasana lived in The Accused’house in 1994 971 andthat Xavera died after the war. 972 He testified thathe waspresent 973when Xavera was buried in herhouse built at theback of theAccused’ bouse at Gishyita center. 974He testified that the Accused fled Gishyitain July1994. He testifiedthat one night in July 1994, he over-heard theAccused and Charles S ikubwabocalling to eachother, before they each tooka vehicleand fled. He furthertestified that he sawthe Accused retum aftera fewdays to take his property before disappearing for good.975

WitnessBB

138.Witness BB testifiedEat towards the end of June1994 976 whilehiding in a milletfarm in Biseserowith other refugees, including Nzagamwita, Assiel Kabanda,Alexis Nduwamungu and Rutabana, assailants led by the Accused surprisedthem and chased them towards Runyangingo hill. 977When they got to Runyangingo,the attackersshot at AlexisNduwamungu, Kabanda and Nzagamwita.978He testifiedthat Rutabana and himself laid in a holebut when

965See page 7 transcriptsof22 haApril 2004. 966See page 8 transcriptsof 22 haApril 2004. 967See page 8 transcriptsof 22 haApril 2004. 968See page 9 transcriptsof22 haApril 2004. 969See page 11 transcripts of22ua ï~pril 2004. 970See page 17 transcripts of22nd April2004. 971See page 17 transcripts of22 ha April2004. 972See page 12 transcripts of22 ~ April2004. 973See page 12 transcriptsof22 ~a Apd12004. 974See page 12 transeriptsof22 haApri12004. 975See page 13 transcriptsof22 haApril 2004. 976See page 11 transcriptsof16 ~ Apri12004. 977See page 10 transcriptsof16 ~ Apri12004. 978See page 10 transcriptsof16a April2004.

170 theyreturned at about5 PM,they discovered that Kabanda had been beheaded and his genitalseut off, Nduwamunguwas dead and Nzagamwitawas wounded979 in thearea of thekidneys.

139.Witness BB testifiedthat the Accused shot at AssielKabanda and he could clearlysee this,as he was about15 metersfrom where the Accused was shooting.98°He testifiedthat on thesame occasion, there was another dark gentleman,whose name he didnot know, carrying a gun. 981He testifiedthat althoughhe didnot return the following day to buryKabanda’s remains, he knowsthat Jean,with whom theyhad beenhiding the day Kabandawas killed,retumed and he and Nzagamwita’snephew buried Kabanda’s remains.982

WitnessAX

140.Witness AX relatedwhat happened to Kabanda’shead. She saw assailants led by theAccused coming back with Kabanda’s head. The assailantswere shoutingthat members of thepopulation should bring coffee for Kabanda to buy.They all went to Gishyitacentre. As thewitness came close to the assailantsshe recognized the head of Kabanda.The head was brought in a vehicleand was hangingon a spear.Witness AX heardthe Accused,who was,in the companyof the assailantssaying: "Hang this head up on his house...’’983 My neighbourhas come back.

141. WimessAX knew Kabandafrom when she was young since he was a traderat Gishyitacentre. In Court, the witness identified Kabanda’s shop on page189 of ProsecutionExhibit number 2, as sheexplained that Kabanda and theAccused were indeed neighbours. 984(The witness added that later, an old mancalled Ndoliyobijya tookthe head and threw it inthe toilet.)

WitnessBH

142.Witness BH testifiedthat after the Muyira hill attack, of 14 May1994, he fledto a sorghumfield in Runyangingobill, within the Bisesero region. Whileat Runyangingohill, he hidwith other refugees including Assiel Kabanda.He testifiedthat when the attackers flushed them out they caught up withKabanda, cut him up withmachetes, chopped off his head 985and took it to theAccused, who was standing by thecommune vehicle by the roadwith CharlesS ikubwaboand Obed Ruzindana, 986 becausehe hadrequested for it. WitnessBH testifiedthat the Accused had come to Biseseroin theGishyita

979Seepage 10 transcriptsof 16 th Apri12004. 9s0Secpage 11 transcriptsof 1@ April2004. 98iSeepage 11 transcriptsof I@ April2004. 982Seepage 12 transcriptsof 1@ April2004. 983Seepage 40 transcriptsof 31 March2004 984Seepage 53 transcriptsof 31 Mareh2004, See page K0286191, Prosecution Exhibit P-2 98»Seepage 15 transcriptsof 8 April2004. 9s6Secpage 15 transcriptsof 8 Apri12004.

171 communevehicle with a hostof Interahamwe.He was able to identifyhim because987 the vehicle stopped close to wherehe washiding.

143.Witness BH testifiedthat in thecourse ofnumerous attacks in Biseserothe refugeessought refuge in varioushills in Bisesero,including Nyarutovu hill, notfar from Muyira hill. While at Nyarutovuhill they were able to secthe Accused’house down the valleyin Gishyitacentre, and what was taking place.Witness BH saw vehiclesparked near the Accused’house, and attackers,including Interahamwe, coming from the Accused’residential area.988

144.Witness BH testifiedthat he hadknown Assiel Kabanda, a Tutsi, as trader basedin Gishyitatown. He testifiedthat Kabanda lived with his wife near Gitwahill in Bisesero,where he hada house.He alsohad a shopin Gishyita townwhere he usedto tradein coffee.He testifiedthat his shop in Gishyita townwas near the Accused’ house.989

WitnessAT

145.Witness AT testifiedin cross-examination,thatwhile hiding in a millet farmat about1 PM,99°he sawa groupof assailantsincluding the Accused and CharlesSikubwabo, search for and shoot at refugees.991He testifiedthat in the courseof the search,a Gishyitabusinessman called Assiel Kabanda was discoveredand shot at in the leg.He felldown and theAccused cut off Kabanda’shead. 992The witness testified that he was at a distanceof about20 metersfrom where the Accused and group were. 993He testifiedthat although he witnessedthe beheading of AssielKabanda by theAccused, he didnot see who994cut offhis genitals.

WitnessAF

146.Witness AF testifiedin cross-examinationthatit wasCharles Sikubwabo whokilled Kabanda and that he wasan eyewitnessbut stated that the Accused waspresent during the attack on Kabanda.995In996 laiswitness statement, WitnessAF doesnot refer to Fe Accused.

987Sec page 15 transcripts of8 April2004. 988Sec page 44 transcriptof 8 April2004, Wimess BH statedthat he couldnot sec Mikaeli Muhimana’s residence while he wasai Muyirahill (sec page 52 lines13 to 17 transeriptsof.8 April 2004) He eould only sec Mikaeli Muhimana’s residence on theoccasions he soughtrefuge at Nyarutovu hill (sec page 52 lines 33 to 35of thetranscripts of8 April2004 and page 53 lines1 to4). Seetranscripts of 16 April2004. Sec location of Kabanda’shouse in relationto MikaeliMuhimana’s bouse on pageK0286147and iteml 1 on pageK 0286148in ProsecutionExhibits Bundle, Exhibit P2. 990Sec page 27 transcriptsof 20 ~ Apri12004. 991Secpages 18/19 transcripts of 20 « April2004. 992Secpage 19 transcriptsof 20 ~ April2004. 993Secpage 26 transcripts of 20 ~ April2004. 994Seepage 28 transcripts of20 th Aril2004. 995Secpage 22 transeripts of29 April2004. 996Secpages 8 and24 of statementofwitness AF

172 AnAnalysis of theEvidence Presented by theProsecutor.

147.Wimess AW had knownthe Accused,Pascasie Mukaremera and Felicite Kankuyubefore the day theywere killed at Rugonahill in June1994. The wimesstestified that he sawthe Accusedrip open Pascasie’s stomach. He wimessedand heardthe Accusedorder the Interahamweto killFelicite becauseshe was an Inyenzi.The Prosecutor would represent to the Trial Chamberthat the testimonyof WimessAW wasdirect, clear and convincing as he providedthe Chamber with first hand information of what he hadheard andseen.

148.As regardsAssiel Kabanda, there is no disputethat he wasa well-known Gishyitabusinessman, andthat he waskilled in Biseseroin June1994. There is alsono disputethat Interahamwe were part of thecontingent of assailants responsiblefor his death. The Prosecution led evidence from Witnesses AW, BE,BB andBH whotestified that they were in Biseserohiding with Kabanda, andthat the Accused was part ofthe contingent ofassailants who killed Assiel Kabanda.There were also witnesses BF andAX whotestified that while in Gishyitacentre, they saw the Accused in thecompany of Interahamwebring thehead of Kabanda.

149.The wimessesdiffer on somedetails, such as who exactlyarnong the assailantsshot at Kabanda.Witness BE was not sure who fired the fatal shot. So wasBH. Witness BB testifiedthat he sawthe Accused tire the fatal shot. Consideringthat there were a hostof attackerspursuing a host of terrified refugeesina difficultterrain, the inability ofwitnesses toidentify the assailant whofired the fatal shot is understandable.Allwitnesses are atone that the Accusedwas one of theassailants who pursued them at Runyangingohill.

150.The witnessesare alsoatone when they say thatKabanda’s head was choppedoff and loaded in a vehiclethe Accused, along with other assailants camein. The Prosecutor submits that regardless ofwho fired the fatal shot, the Accusedwas part and parcel of theassailants who were hunting for Tutsi seekingrefuge in Bisesero.Assiel Kabanda was discovered by thegroup and killedby oneof themembers of thegroup that included the Accused. The Prosecutorinvites the Chamber to lookat this evidence inthis light.

151.Witness AT testifiedin crossexamination that he wasnot sure who fired theshot that killed Kabanda, while wimess AF testified,also in cross examination,that it wasCharles Sikubwabo who fired the fatal shot. The Prosecutordid not lead evidence in examinationin chier from witnesses AT andAF regardingthe killing of Kabanda.Their tesfimony in thisregard came in responseto questionsasked in cross-examination.

152.In thisregard, the Prosecutor invites the Chamber not to treat as part of the Prosecutioncase, the testimony of witnessesAT andAF regardingthe killing

173 of Kabanda.As submittedearlier in the Prosecutor’scase, it is the Prosecutor’sposition that itis enough that the Accusedwas part of the contingentthat was responsible forthe capture and killing of Kabanda.

153. ProsecutionWitnesses AW, BE, BB and BH had knownthe Accusedand Kabandabefore that fateful day in June1994. They saw the Accused arrive in a vehicleand disembark and start hunting them down. The Accused cannot, therefore,beheard to claire, as did his witnesses, that he was in Gishyita town atthe time Kabanda was killed in Bisesero.

The DefenceCase

154.The Defenceacknowledges that Assiel Kabanda had a shopin Gishyita centreand was in thebusiness of buyingcoffee. They acknowledge that he waskilled in Bisesero,and beheaded,and thathis headwas broughtto Gishyitacentre where it washung at thewindow of hisshop for some time andthen removed for burial.

155.The Defence denies that the Accused went to Biseseroat anytime during April,May and June 1994 and therefore did not participate in the murder of AssielKabanda. In additionto thegeneral alibi witnesses that the Accused wasnot in Biseserothe Defence called two witnesses, DJand DI in supportof theircase. The testimony ofthese witnesses cannot be reliedupon because as theirtestimonies show, they were hOt in Biseseroduring the rime Kabanda waskilled, nor werethey with the Accusedat anytime during the time Prosecutionwitnesses say Kabanda was murdered.

WitnessDI

156.Defence Witness DI testifiedto seeingthe headof one Kabandawith Interahamwein Jùne1994, 997whereby the Interahamwe were saying that they hadkilled Kabanda in Biseseroand brought his head to Gishyitaon boarda vehicle.Witness DI statedthat he sawthe head on a pieceof woodand the Interahamwewere saying, "...open up; nowyou canbuy youreoffee." The witnessfurther testified that while this was taking place, the Accused was sitting998 at the verandah ofhis house, about 30 metres away.

157.He testifiedin cross-examination,thatan oldman Ndoriyobijya buried Kabanda’shead.999Asked whether it wouldsurprise him to learnthat Ndoriyobijyaasked the Accused for permission to takedown the headfrom thewindow and bury it, the witness said, "lJ"hy did he haveto go andaskfor permissionfrom him to burythat head? It was only a head,it wasn"t a whole corpse’’1°°°for him to go and ask for permission.

997See page 60 transcripts of1.9.04 998See page 44/45 transcripts of1.9.04 999See page 60 transcripts of1.9.04 ~000See page 61 transcripts of1.9.04

174 158.The Prosecutor submits that the above testimony is alsointended to show thatthe Accused was not responsible forthe death of AssielKabanda, because Interahamwewho took lais head to Gishyitacentre declared that they were responsibleforhis death.

159.The testimony ofwitness DI corroboratesthe Prosecutor’s evidence that AssielKabanda was murdered in Biseseroand that his headwas brought to Gishyitafor exhibition. It corroborates theevidence that the head was hung on the windowof Kabanda’shouse, and thatthe Accusedwas present was in Gishyitacentre when theseevents were takingplace. His testimony corroborateseven the derogatoryspeeches made by the Interahamwe concemingthe purpose ofbringing Kabanda’s head to Gishyitacentre

160.Wimess DI testifiedthat he heardof no rapesin Mugoneroor Gishyita communein theentire April, May and June 1994, this despite the fact that his fellowdetainees, including Defence Witness DR testifiedthat during Gacaca sessionsin Gisovuprison where he is kept,some detainees have testified to havewitnessed rapes in Gishyitasecteur. Witness DI didnot go to Bisesero, so he hadno basis to testifythat Prosecution Witness AP soughtrefuge there whenhe didnot see her there. In thesame breath, he didnot seek refuge at MubugaCatholic Parish so he cannotknow that Languida sought refuge in thatchurch and was killed there along with other refugees.

161.Witness DI was visiblylying when he claimedthat Charles Sikubwabo andthe Accused had no associationduring April, May and June 1994 because theAccused was married to a Tutsiwoman. He failedto explainhow he came to knowabout the sourceof discordbetween the Accusedand Charles Sikubwabo,and worsehis story sounded absurd when it dawnedon himthat theAccused got marriedto Xavera,his Tutsi wife rive years before the genocide,and notduring the genocide,as he hadwanted the Chamberto believe.

162. WitnessDI’s testimony that he did not kill anyonewith his club contradictedwhat he statedin hisconfession statement that he killedsix peoplewith his club.The Rwandanauthorities before whom he madethe confession,listed him as a categoryone offender on accountof the severity of hiscrimes. If he hadnot killed anyone, as heclaimed, he wouldnot have been categorizedasa categoryone offender. The witness is not credible.

WitnessDJ

163.Defence Witness DJ testifiedthat Assiel Kabanda was a traderin the Gishyitacommercial center, who hailed from Bisesero region. 1°°1He testified thatone day he saw personsfrom Rwamatamu who usedto workwith Obed too~See page 72 of transcript of1.9.2004

175 Ruzindanabring down Kabanda’shead aboard Ruzindana’s vehicle. The tmknownassailants hung the head on thewindow of Kabanda’shouse. The witnessfled in shoek.Witness DJ testifiedthat the Aceused was hOt aboard Ruzindana’smotor vehicle, adding that the Accused was at hishouse ’By the way,he cameout and stood on hisveranda to observethe seene like everyone else.’1oo2

164.Witness DJ wasnot truthful when he saidthat the Accused simply sat at his residencewhen the head of Kabandawas brought in town.The Accused wasa Conseillerof Gishyitaand therefore a person m authority.One would haveexpected him to reacthaving heard that the head of a residentof Gishyita was brought.He would normallyhave wishedto inquireas to the circumstancessurrounding hisdeath.

IndividualCriminal Responsibility ofthe Accused

165.The Prosecutor submits that the Accused, by hisact or omission,planned, instigated,ordered, committed, or otherwise aided and abetted in the planning, preparationor execution of thecrime of murder.The Prosecutor submits that therewas a widespreadorsystematic attack against the civilian population in Rwandain April1994 and theconduct of the Accusedformed part of this attack. 166.The Prosecutor submits further that the Accused had the requisite intent to killPascasie Mukaremera, Felicite Kankuyu and Assiel Kabanda as partof a widespreador systematic attack against the civilian population of Rwanda on ethnicgrounds. The Prosecutor submits that on thebasis of thetestimony of witnessesBG, AW, BF, BB, AX and BH, the Accusedis individuaUy responsiblefor the murders of PascasieMukaremera, Felicite Kankuyu, and AssielKabanda. The Defence witnesses called in rebuttalof thetestimony of Prosecutionwitnesses are simply not believable as shown on theanalysis of eachone ofthem.

AdditionalEvidence of Murdernot Specifically Pleaded in the Indictment.

167.The provisions of Article 20 (4)ofthe Statute ofthe Tribunal and Rule (C)of theRules of Procedureand Evidence set the basic principle that Accusedshall be affordedsufficient notice ofthe charges leveled against him. Suchnotice is usuallyprovided through the indictmentand disclosure of evidencethat the Prosecutor intends rely on in proofof thecharges leveled againstan Accused in an indictment.

~002Sec paragraph36 ofpage 72 of transcript of1.9.2004.

176 168.In thiscase, the Prosecutor has led evidence to provethat the Accused was responsiblefor the murdersof the childrenof AX and of Emmanuel Murindahabiand Jean Claude Nkundiye, agronomists who wereemployed by theGishyita commune local authority. These allegations are not contained in theindictment. The issue is whetherthe rights of theAccused have been infringedbyallegations notcontained in the indictment.

169. The Prosecutorsubmits that the Defenceis not prejudicedby the allegationsof the murders of thetwo agronomists andthe children of witness AXmerely on accountthat the allegations arenot contained inthe indictment.

170.The Prosecutorsubmits that the majorconsideration is whetherthe Defencehad sufficient notice of theseallegations. It is submittedthat the Defencehad the requisite notice. The murders of thechildren of AX andof thetwo agronomists is contained in thewimess statements of wimessesAX, AW and AP, whichstatements were disclosedto the Defencebefore commencementof trial.

171.As partof theproof that the Defencehad sufficient notice of these allegationsthey brought several witnesses torebut the allegations. I support of theirtheory that the Accused was not responsiblefor their deaths, The Defencecalled witnesses DI, TQ13, DJ andNTI. They also called Defence witnessesDU andTQ1 to counterthe testimony ofProsecution witness AX. If theDefence did not have the requisite notice they would not have prepared wimessestorebut the allegations.

172.The Prosecution submits that the facts that these murders were not pleaded in theindictment was not prejudicial to the Accused because he hadsufficient noticeof theallegations and adequately prepared a defence against them as thewitnesses below will show}°°3

The Murderof EmmanuelMurindahabi and JeanClaude Nkundiye

TheProsecutor’s case

WitnessAW

173.Witness AW testifiedthat he wasa Biseseroresident and that on 7 April 1994,he wentto Gishyitatown. He did not reachthe townbecause a roadblockhad been erected at theentrance to thetown. At theroadblock he saw the Accused,Charles Sikubwabo, policemen Munyansanga and Ruhindura.Emmanuel Murindahabi and JeanClaude Nkundiye were at the roadblockand had been arrested.1004

10o3See Prosecutor v.Pauline Nyiramasuhuko t al,ICTR, AC, Decision onPauline Nyiramasuhuko’s Request for Reconsideraflon, 27 September2004, para 12. See generally Proseeutor v.Elizaphan andGérard Ntakirutimana ICTR-96-10 & 96-17-T. 1004See page 5 transcriptsof14 April 1994

177 WitnessAP

174.Witness AP testifiedthat on 7 April1994 she was arrested and detained in thecommune office on theorders ofthe Accused and released at noon.1°°»She testifiedthat immediately after she was released, she witnessed the Accused and CharlesSikubwabo kill two Tutsi men; Emmanuel Murindahabi and Jean ClaudeNkundiye who worked at theGishyita commune office as agricultural officers.1006

An Analysisof theEvidence Presented b¥ theProsecutor

175. Prosecutionwitness AW testitïedthat he knew Murindahabiand Nkundiyebefore April 1994. He alsoknew the Accusedas Conseillerand businessmanat Gishyitabefore April 1994. He saw him and Sikubwabo standingat theroadblock on the entranceto Gishyita.The witnesssaw Murindahabiand Nkundiyeat the roadblockwith the Accusedin broad daylightand he hadno doubtthat they were under arrest. Defence witness DI confirmsthe arrest and subsequent interrogation of Murindahabi.

176.Witness AP testifiedto witnessingthe killing of theagronomists by the Accused.She knew the Accused and the agronomists before that day. In fact theywere neighbors. The question of mistakenidentity cannot arise. There is absolutelyno motivefor witness AP to givefalse testimony against the Accused.

The DefenceCase

WitnessDI

177.Witness DI testifiedin cross-examinationthat in April1994, an agronomistcalled Nkundiye Jean Claude sought refuge at hisresidence and thatCharles Sikubwabo sent Ndayisaba and Karimunda to takehim to the communejail, where he accompaniedhim. He furthertestified that one Murindahabiwith whom witnessDI workedat the Communeoffice was arrested1°°7 and that the Accused participated ininterrogating him.

WitnessTQ 13

178.Witness TQ 13 testifiedto havebeen with the Accused the whole day on 7 April1997 from morning to evening.It needbe notedthat the Accused raised an alibias defence.Thus the Prosecutor submits that it is clearTQ13’s evidenceis tailoredto ensurethe Accused is seento be positionedatGishyita

~00»Sec page 25 transcripts of30 Match 2004. 1006See page 25 transcripts of30 March 2004 ~007See page 54 transeripts of1.9.04

178 Centreso as to dissociatethe Accused with the arrest of Murahadabiand Nkundiye.1008

WitnessDJ

179.Wimess DJ is chargedwith genocide and confessed to buyingstolen cattle looted.Initial allegations included having killed, among other people, two agriculturalofficers, Emmanuel Murindahabi and JeanClaude Nkundiye. Cross-referenceis made to WitnessDJ’s confession statement, Defence Exhibits,specifically to P 11 ofthe English translation referenced W504-454E. Thisis a policestatement dated 15.9.2000 that the Accused submitted as part of thedocuments supporting lais bail application. In denying that he played anypart in the death of Emmanuel Murindahabi andJean Claude Nkundiye, Witness DJ implicated1°°9 theAccused tothe hilt.

180.In court,Witness DJ retractedhis statement and stated that the Accused wasnot partof thepeople who arrested Murindahabi. Witness DJ instead claimed,unconvincingly, that the Accused was but a merespectator to the arrestof EmmanuelMurindahabi and JeanClaude Nkundiye. 1°1°Wimess DJ alsotestified that Murindahabi was arrested on 7 April1994 between midday and2 PM.

181.Witness DJ admittedsigning the said witness statement, he admitted to all thecontents of thesaid statement and only denied mentioning the Accused’ name.Witness DJ’ explanation for this was that in 1995the situation was dangerousand they could write whatever. R would be surprisingthat the additionswould in 1995 implicatethe Accusedwho was at largeand exonerateWitness DJ whowas under arrest. At thatstage it couldnot have beenanticipated that Witness DJ wouldtestify on behalf of theAccused’s.

182.Ironically, Witness DJ acceptsother contents, except the portion that mentionsthe Accused. Also ironically, the Prosecutor who was considering WitnessDJ’s bail application atthe rime believed the explanations.

WitnessNTI

183.Witness NTI tesfified that he usedto workwith Emmanuel Murindahabi andJean Claude Nkundiye in theGishyita commune office. He testifiedthat around11 AM on 7 April1994, two agronomists; Mulindahabi and Nkundiye, bothof Tutsiethnicity, were arrested by gendarmesat theGishyita primary school°n square and taken to thecommune jailJ

~008Sec testimony ofAF. ~009Sec page 74 of Exhibit P. Lo~oSee page 21 ofparagraph 34-37 of transcript of2.9.2004. tonSec page 6 transcriptsof 26.8,04

179 184.Witness NT1 further testified that at nightCharles Sikubwabo told him thatit was likelythat Emmanuel Murindahabi and JeanClaude Nkundiye, whoworked as agronomists,had been killed because they were going about on vehicles,something that was forbidden. He testifiedthat it wasnot provided,1°~2 nor was it normalfor people who broke the order to be killed. WitnessNT1 stated that Charles Sikubwabo said that they could have been killedon the orders of anarmy lieutenant. 1°13The witness testified that the Accusedwas at hisresidence when the two agronomists were arrested.l°14

185.Wimess NTI testifiedthat Mulindahabi and Nkundiye were killed around 6.30and 7.00 PM whenhe wasat hishome. He testifiedthat during the time theywere killed he didnot know where the Accused was.~°15

TheMurder of AX’children

TheProsecutor’s Case

WitnessAX

186.Witness AX, a Hutulady, testified that during April 1994, the Accused, CharlesSikubwabo and a groupof lnterahamwewent to her house.She testifiedthat she met and asked the Accused what the matter was. She testified thatthe Accused told her that Tutsi had to die and that there was nothing that couldbe done.1°16On hearingthis, Witness AX’s husband, a Tutsi, fled to Bisesero,and the witness, who had given birth two days before, left with her fourchildren, aged 11, 9, 7 and4 andthe new bore baby to herparent’s home.1°17

187.Witness AX’s father was Hutuwhile her motherwas Tutsi.Witness AX testifiedthat she had to hideher Tutsi mother and children. Subsequently, the Accusedand others found her in herparents’ home, asked them to comeout, andIm8killed her children, except the eldest and her mother.

188.Witness AX testifiedthat she tried to escapebut was caughtand the assailantsbrought her back to witnessthe killing of herchildren. 1°19She testifiedthat in thecourse of thekilling of berchildren, the Accused was encouragingthe assailants. Asked what she meant by "encouraging,"witness AX testifiedthat, the Accused, "was their leader, and he didnothing to preventthese attacks .... He wentaround distributing death...so we could concludethat he wasencouraging that..."l°2°Witness AX testified that the

10~2See page 8 transeriptsof26.8.04 ~013Sec page 7 transcriptsof26.8.04 lot4See page 8 transcriptsof26.8.04 ~0~5See page 9 transcriptsof26.8.04 ~o~6See page 28 transcriptsof 31 March2004 ~ot7See page 30 transcripts of 31 March2004 ~o~8See page 30 transcripts of 31 March2004 to~9See page K0286193, Prosecution Exhibit P2. ~020See page31 transeripts of 31 March 2004

180 Accusedwas notfar from her whenhe wasencouraging the killingof her children.1°21

An Analysisof theEvidence Presented by the Prosecutor.

189. WitnessAX was a familyfriend to the Accused.She was a Hutuand thereforehad nothing to fearpersonally. This explains why she asked the Accusedwhat was goingto happenfollowing Ee deathof the President. WitnessAX wasmarried to a Tutsiand had several children. As Rwandais a patrilenealsociety, children inherit ethnicity from their fathers. Her children weretherefore Tutsi and she had all the reasons to be concemedabout their security.

190.Witness AX gavedirect, clear and convincing evidence. As a resultof the factthat she, like the Accused, was a Hutu,a familyfriend and neighbour to theAccused, she had no reasonto givefalse testimony against the Accused. In factshe had hoped for protection from him, only to be betrayedlater on. The Defenceadmits that AX’s children were kiUed, but claim that people other thanthe Accused killed them. The allegation that other assailants killed them is notcreEEble as Defence witness testimony below will show.

The DefenceCase

Wimess DU

191.Wimess DU testifiedthat he is currentlyin prison,detained on accountof offenceshe committedduring the April1994 genocide in Rwanda1°22.He testified1°23. that he killed two ofAX’s children and her mother

192.Witness DU testifiedthat he doesnot know the ages of AX’schildren that he killed,but gave approximate ages of about rive years old. 1°24He testified that AlexisMutagana, Amir Mtmyamani,Mugabushaka Muganzi and a certainAlphonse and one Gasigwa recruited him to killTutsi recruited him. WitnessDU thusshields the Accused from responsibility for thedeath of wimessAX’s children.

Wimess TQ1

193.Witness TQ1 testified that he knewProsecution Wimess AX, her parents andthree of herchildren. She deposed that the three children were abducted andkilled by a ’groupof youngsters’who included one Burabyo,Gasigwa, Mugonero1°2». and Mutagana at AX’sparents’ home

~02~See page 31 transcripts of31 Match 2004. 1022See page 22 of transcript of8.9.2004 paragraph 20-25. to2~See page 23 of transcript of8.9.2004 paragraph 5-9. ~02«See page 23 of transcript of8.9.04. t02»See page 8 oftranscript of23/8/2004.

181 194.Wimess TQ1 furthertestified that other victims included Damascene’s wife,AX’s mother, one Nyirahabimanaand one wife of Mpabukacalled Tamar.Witness TQ1 indicatedthat the Accusedwas notamember of the citedgroup 1°26.As faras AX’shusband is concerned,Witness TQ1 recalls he fledand did not hear about him again. Witness TQ1 confirmed that AX wasa Hum1°27married. to a Tutsi

195.Wimess TQ1 alsotestified that he was an eyewitnessto the murderof AX’schildren and other Tutsi neighbors 1°28.She testified that, young as she wasshe was not ’traumatized by the events ’~°29Witness TQ1 conceded that shecould not recognize every person at thescene of murderbut insisted that had1°3°the. Accused been present, she would have identified him

196.Witness TQ1 buttressed AX’s evidence that the killings took place at her parents’place 1°31outside the bouse. TQ1 stated that AX’s mother was ldlled inside1°32.the house

197.It is theProsecutor’s case that the assailants used clubs and machetes. Askedby the benchwhether she ran away,TQ1 responded "No, we watched thatevent up to theend, that is afierthe children and the women had been killedand then the killers went and killed Mpabuka’s wife, and it is afler that I wentback home’ 1033.

IndividualCriminal Responsibility of the Accused

198.The Prosecutor submits that the Accused, by Irisact or omission,planned, instigated,ordered, committed, orotherwise aided and abetted in theplanning, preparationor execution of thecrime ofmurder. 199.The Prosecutor submits that there was a widespreador systematicattack againstthe civilian population inRwanda in April1994 and the conduct of the Accusedformed part of thisattack. The Prosecutor submits further that the Accusedhad the requisite intent to killEmmanuel Murindahabi, Jean Claude Nkundiyeand AX’s four children as partof a widespreador systematic attack againstthe civilian population ofRwanda on ethnic grounds.

200.The Prosecutor submits that on thebasis of theevidence of Prosecution witnessesAX, AW and AP, theAccused is responsiblefor the murdersof WimessAX’s four children,Emmanuel Murindahabi and Jean Claude Nkundiye.

1o26See page 9 oftranscript of23/8/2004. 1027See page 9 oftranscript of23/8/2004. 1028Sec page 19 of transeriptof23/8/2004. ~0~9See page 19 of transcriptof23/8/2004. t030See page 19 of transcript of 23/8/2004. lo31See page 20 oftranscript of 23/8/2004. L032See page 20 of transeript of 23/8/2004. L033See page 22 of transcript of 23/8/2004.

182 TRANSMISSION SHEET FOR FILING OF DOCUMENTS WlTH CMS

COURT MANAGEMENT SECTION (Art.27ofthe Directive forthe Registry)

- GENERAL INFORMATION (To be completed by the Chambers / Filing Party) [] TrialChamber I []Trial Chamber II ~ TrialChamber III [] AppealsChamber / Arusha To: N.M. Diallo R. N. Kouambo C. K. Hometowu F.A. Talon [] Chief,CMS [] DeputyChief, CMS [] Chief,JPU, CMS [] AppealsChamber / TheHague J.-P.Fomété M. Diop K. K.A. Afande R.Burriss From: [] Chamber [] Defence Prosecutor’sOffice [] Other: ~~~~,~~ ~~ (names) (names) (names) (names) Case Name: TheProsecutorvs. ~~t~~ ~~ ~..[LV~(t~-~~ ~ CaseNumber: ICTR-O~~_lg-T Dates: Transmitted: OE~" ,---- ~ O - ~Z._~~.J~Document’s date: ~..~~_ i C) "- ~ ~~~l-- No. of Pages: ç 2- OriginalLanguage: [] English [] French [] Kinyarwanda Titleof Document: ClassificationLevel: TRIM DocumentType: [] StrictlyConfidential / Under Seal [] Indictment[] Warrant[] Correspondence[] Submissionfrom non-parties [] Confidential [] Decision []Afiïdavit []Notice of Appeal []Submission from parties ~~Public [] Disclosure[] Order [] AppealBook []Accused particulars [] Judgement[] Motion ,t~q~ookofAuthorities ~[ ~-~ ~", ~.~ Il - TRANSLATION STATUS ON THE FILING DATE (To be completed by the Chambers / Filing Party) CMSSHALL take necessary action regarding translation. [~FilingParty hereby submits only the original, and will not submit any translated version. [] Referencematerial is providedin annexto facilitatetranslation. TargetLanguage(s): [] English ~French [] Kinyarwanda I CMS SHALLNOT takeany actionregarding translation. [] FilingParty hereby submits BOTH the original and the translated version for filing, as follows: IOriginal in I-1English [] French [] Kinyarwanda Translation [] English [] French [] Kinyarwanda I in ïi,, CMS SHALLNOT takeany actionregarding translation. ~~~~~~~# l; [] FilingParty wUl be submittingthe translated version(s) in due course in thefollo~ing languag~1~): r- [] English [] French []~ KINDLY FILL IN THE BOXES BELOW __ --4 [] TheOTP is over-seeingtranslation. [] DEFENCEis ( Thedocument is submittedfor translation to: accreditedservice for [] TheLanguage Services Section of the ICTR/ Arusha. translation to I~DMS): r--IThe Language Services Section of theICTR / TheHague. Nameof contactperso ç~. [] An accreditedservice for translation; seedetails below: Nameof service: Nameof contactperson: e’ Address: ~ " Nameof service: E-mail/ Tel. / Fax: « -- Address: E-mail/ Tel. / Fax: III - TRANSLATION PRIORITISATION(For Official use ONLY) []Toppriority COMMENTS [] Requireddate: []Urgent [] Hearingdate: [] Normal [] Otherdeadlines:

NB:This form is availableon: http://www.ictr.org/ENGLISH/cmslcmsl.doc CMS1(Updated on 04 February2004)