UNITED NATIONS (~ NATION~cI~IES CRIH!.~ALREGISTRY RL :.~-I:VED InternationalCriminal Tribunal for R~u~. Tribunalp~nal international pour le Rw/thi~t~ -b A q: Sb TrialChamber I
OR: FR.
Before: JudgeLaity Kama, Presiding JudgeLennart Aspegren JudgeNavanethem Pillay
Registrar: Mr. Agwu Okali
Judgementof: 6 December1999
THE PROSECUTOR VERSUS GEORGES ANDERSON NDERUBUMWE RUTAGANDA
Case No. ICTR-96-3-T
JUDGEMENT AND SENTENCE
TheOffice of theProsecutor:
Ms.CarlaDel Ponte Mr.JamesStewart Mr.Udo HerbertGehring Ms.Holo Makwaia
DefenceCounsel:
Ms. TiphaineDickson UNITED NATIONS NATIONS UNIES ~ InternationalCriminal Tribunal for Rwanda Tribunalp~nal international pourle Rwanda
TrialChamber I
THE PROSECUTOR VERSUS GEORGES ANDERSON NDERUBUMWE RUTAGANDA
Case No. ICTR-96-3-T
JUDGEMENT AND SENTENCE CaseNo: ICTR-96-3-T
TABLE OF CONTENTS
1. INTRODUCTION...... 3 1.1 The InternationalTribunal ...... 3 1.2. The Indictment...... 4 1.3 ProceduralBackground ...... 11 1.4 EvidentiaryMatters ...... 14 1.5 The Accused...... 18
2 THE APPLICABLELAW ...... 20 2.1Individual Criminal Responsibility ...... 20 2.2Genocide (Article 2 of the Statute)...... 24 2.3.Crimes against Humanity (Article 3 of theStatute) ...... 31 2.4.Serious Violations of CommonArticle 3 (murder)...... 39 2.5 CumulativeCharges ...... 50
3. THE DEFENCECASE ...... 55 3.1 The DefenceCase ...... 55
4. FACTUALFINDINGS ...... 72 4.1.Paragraph 10 of the Indictment...... 72 4.2.Paragraph 11 of theIndictment ...... 83 4.3.Paragraph 12 of theIndictment ...... 91 4.4.Paragraphs 13,14, 15 and16 of theIndictment ...... 100 4.5.Paragraph 17 of the Indictment...... 117 4.6.Paragraph 18 of the Indictment...... 121 4.7 Paragraph19 of theIndictment ...... 129 4.8General Allegations (Paragraphs 3-9 of theIndictment) ...... 133 CaseNo:ICTR-96-3-T ~
5. LEGAL FINDINGS...... 143 5.1 Count1: Genocide...... 143 5.2Legal Findings - Count 2: Crimesagainst Humanity (extermination) ...... 150 5.3Legal Findings - Count 3: Crimesagainst Humanity (murder) ...... 154 5.4Legal Findings - Count5: Crimesagainst Humanity (murder) ...... 156 5.5Legal Findings - Count 7: Crimesagainst Humanity (murder) ...... 157 5.6Counts 4, 6, and8 - Violationsof Common Article 3 (murder) ...... 159
6. VERDICT...... 163
7. SENTENCING...... 164
2 CaseNo: ICTR-96-3-T
1. INTRODUCTION
1.1The International Tribunal
1. ThisJudgement isrendered by TrialChamber I of theInternational Criminal Tribunal forRwanda (the "Tribunal")compo sedof JudgeLaity Kama, presiding, Judge Lennart Aspegren, andJudge Navanethem Pillay, in thecase of TheProsecutor v. GeorgesAndersonNderubumwe Rutaganda.
2. TheTribunal was established by the United Nations Security Council, pursuant to resolution955 of 8 November1994, after it hadconsidered United Nations Reports I which indicatedthat genocide and systematic, widespread and flagrant violations of international humanitarianlaw had been committed in Rwanda.The Security Council determined that this situationconstituted a threat to international peace and security, and was convinced that the prosecutionofpersons responsible forserious violations ofinternational humanitarian lawwould contributeto the process of national reconciliation andto the restoration andmaintenance of peacein Rwanda. The Security Council established theTribunal, under Chapter VII of the United NationsCharter.
3. TheTribunal is governedby itsStatute (the "Statute") annexed to SecurityCouncil Resolution955, and by its Rules of Procedure and Evidence (the "Rules"), which were adopted by theJudges, on 5 July1995 and subsequently amended)
I PreliminaryReport of theCommission of Experts established pursuant to SecurityCouncil resolution 935
(1994),Final Report of theCommission of Experts established pursuant to SecurityCouncil resolution 935 (1994) (DocumentS/1994/1405) and Reports of theSpecial Rapporteur for Rwanda of theUnited Nations Commission on Human Rights(Document S/1994/1157, annexes I andI1). 2 TheRules were successively amended on 12 January1996, 15 May1996, 4 July1996, 5 June1997, 8 June
1998,and 4 June1999.
Judgement,Prosecutor versus Rutaganda 3 CaseNo:ICTR-96-3-T ~
...... ¯..¯...... ¯...... ¯...... ¯.....,.... ¯,...... ¯...... ¯..¯.. ¯..... ¯...... 1.2 TheIndictment
4. TheIndictment (the "Indictment") against Georges Anderson Nderubumwe Rutaganda (the"Accused") was submitted by theProsecutor on 13 February1996 and was confirmed 16February 1996. The Indictment is set out here in full:
"TheProsecutor of the International Criminal Tribunal for Rwanda, pursuant to his authorityunder Article 17 of theStatute of theTribunal charges:
GEORGES ANDERSON NDERUBUMWE RUTAGANDA with GENOCIDE, CRIMES AGAINST HUMANITYand VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS,as set forth below:
Background
1. On April6, 1994,a planecarrying President Juvenal Habyarimana of Rwanda and President CyprienNtaryamira of Burundi crashed at Kigaliairport, killing all on board.Following the deathsof the two Presidents, widespread killings, having both political and ethnic dimensions, beganin Kigaliand spread to otherparts of Rwanda.
The Accused
2. GeorgesRUTAGANDA, born in 1958in Masangocommune, Gitarama prefecture, was an agriculturalengineer and businessman; he was general manager and proprietor of Rutaganda SARL¯ GeorgesRUTAGANDA was also a memberof the Nationaland Prefectoral Committeesof theMouvement Rdpublicain National pour le Ddveloppementet la Ddmocratie (hereinafter,"MRND")anda shareholder of RadioT~ldvision Libre des Mille Collines. On April6, 1994,he wasserving as thesecond vice president of theNational Committee of the
Judgement,Prosecutor versus Rutaganda 4 GeneralAllegations
3.Unless otherwise specified, allacts set forth in this indictment took place between 1 January 1994and 31 December1994 in theprefectures of Kigali and Gitarama, territory of Rwanda.
4.In eachparagraph charging genocide, a crime recognized by Article 2 of theStatute of the Tribunal,thealleged acts were committed with intent to destroy, inwhole or in part, a national, ethnicalorracial group.
5¯The victims in eachparagraph charging genocide were members of a national,ethnical, racial orreligious group.
6. Ineach paragraph charging crimes against humanity, crimes punishable by Article 3 of the Statuteof theTribunal, the alleged acts were committed as part of a widespreadorsystematic attackagainst a civilian population onpolitical, ethnic or racial grounds.
7.At all times relevant tothis indictment, a state of internal armed conflict existed in Rwanda.
8.The victims referred toin this indictment were, at all relevant times, persons taking no active partin the hostilities.
9. Theaccused is individuallyresponsible for the crimes alleged in thisindictment. Under Article6(1) of the Statute ofthe Tribunal, individual criminal responsibility isattributable toone whoplans, instigates, orders, commits or otherwise aids and abets in theplanning, preparation orexecution ofany of the crimes referred toin Articles 2 to 4 ofthe Statute of theTribunal.
Judgement,Prosecutor versus Rutaganda 5 CaseNo: ICTR-96-3-T ~ ~[~
Char~es
10.On or aboutApril 6, 1994,Georges RUTAGANDA distributed guns and other weapons to Interahamwemembers in Nyarugengecommune, Kigali.
11. On or aboutApril 10, 1994, Georges RUTAGANDA stationed Interahamwe members at a roadblocknear his office at the"Amgar" garage in Kigali.Shortly after he left the area, the Interahamwemembers started checking identity cards of peoplepassing the roadblock. The Interahamwemembers ordered persons with Tutsi identity cards to stand on oneside of the road. Eightof theTutsis were then killed. The victims included men, women and an infantwho had beencarried on theback of one of thewomen.
12.In April 1994, on a dateunknown, Tutsis who had been separated at a roadblockinfront of the Amgargarage were taken to GeorgesRUTAGANDA and questioned by him.He thereafter directedthat these Tutsis be detainedwith others at a nearbybuilding. Later, Georges RUTAGANDAdirected men under his control to take10 Tutsidetainees to a deep,open hole nearthe Amgar garage. On GeorgesRUTAGANDA’s orders, his men killed the 10 Tutsiswith machetesand threw their bodies into the hole.
13.From April 7 to April11, 1994, thousands of unarmedTutsi men, women and children and someunarmed Hutus sought refuge at theEeole Technique Officielle ("ETO school") Kicukirosector, Kicukiro commune. The ETO schoolwas considered a safe haven because Belgiansoldiers, part of theUnited Nations Assistance Mission for Rwanda forces, were stationedthere.
14.On or aboutApril 11, 1994, immediately after the Belgians withdrew from the ETO school, membersof theRwandan armed forces, the gendarmerie andmilitia, including the Interahamwe, attackedthe ETO school and, using machetes, grenades and guns, killed the people who had soughtrefuge there. The Interahamwe separated Hutus from Tutsis during the attack, killing the
Judgement,Prosecutor versus Rutaganda 6 CaseNo: ICTR-96-3-T
Tutsis.Georges RUTAGANDA participated in the attack at theETO school, which resulted in thedeaths of a largenumber of Tutsis.
15.The men, women and children who survived the ETO school attack were forcibly transferred by GeorgesRUTAGANDA, members of the Interahamweand soldiers to a gravelpit near the primaryschool of Nyanza.Presidential Guard members awaited their arrival. More Interahamwe membersconverged upon Nyanza from many directions and surrounded the group of survivors.
16.On or aboutApril 12, 1994, the survivors who were able to showthat they were Hutu were permittedto leave the gravel pit. Tutsis who presented altered identity cards were immediately killed.Most of the remainder ofthe group were attacked and killed by grenades orshot to death. Thosewho triedto escapewere attackedwith machetes.Georges RUTAGANDA, among others,directed and participated inthese attacks.
17. In Aprilof 1994,on datesunknown, in Masangocommune, Georges RUTAGANDA and othersknown to the Prosecutor conducted house-to-house searches for Tutsis and their families. Throughoutthese searches, Tutsis were separated from Hutus and taken to a river.Georges RUTAGANDAinstructed the Interahamwe to track all the Tutsis and throw them into the river.
18. On or aboutApril 28, 1994,Georges RUTAGANDA, together with Interahamwe members, collectedresidents from Kigali and detainedthem nearthe Amgargarage. Georges RUTAGANDAand the Interahamwedemanded identity cards from the detainees.A number of persons,including Emmanuel Kayitare, were forcibly separated from the group. Later that day,Emmanuel Kayitare attempted to fleefrom where he wasbeing detained and Georges RUTAGANDApursued him, caught him andstruck him on thehead with a macheteand killed him.
19.In June1994, on a dateunknown, Georges RUTAGANDA ordered people to burythe bodies of victimsin orderto conceal his crimes from the international community.
Judgement,Prosecutor versus Rutaganda CaseNo: ICTR-96-3-T
Counts1-2 (Genocide) (CrimesAgainst Humanity)
By his actsin relationto the eventsdescribed in paragraphs10-19 Georges RUTAGANDA committed:
COUNT 1: GENOCIDE,punishable by Article 2(3)(a) of theStatute of theTribunal;
COUNT 2: CRIMESAGAINST HUMANITY (extermination)punishable by Article 3(b) ofthe Statute ofthe Tribunal.
Counts3-4 (CrimesAgainst Humanity) (Violationsof Article 3 commonto theGeneva Conventions)
Byhis acts in relationtothe killings atthe ETO school, as described in paragraph 14, Georges RUTAGANDAcommitted:
COUNT 3: CRIMESAGAINST HUMANITY (murder) punishable by Article3(a) of Statuteof the Tribunal; and
COUNT 4: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS,as incorporated by Article 4(a) (murder) of theStatute of Tribunal.
Judgement,Prosecutor versus Rutaganda 8 CaseNo: ICTR-96-3-T ~
Counts5-6 (CrimesAgainst Humanity) (Violationsof Article 3 commonto theGeneva Conventions)
By hisacts in relationto thekillings at thegravel pit in Nyanza,as describedin paragraphs15 and 16, GeorgesRUTAGANDA committed:
COUNT 5: CRIMESAGAINST HUMANITY (murder) punishable by Article3(a) of Statuteof the Tribunal; and
COUNT 6: VIOLATIONS OF ARTICLE 3 COMMON TO THEGENEVA CONVENTIONS,as incorporated by Article 4(a) (murder) of theStatute of Tribunal.
Counts7-8 (CrimeAgainst Humanity) (Violationof Article 3 commonto theGeneva Conventions)
By killingEmmanuel Kayitare, as describedin paragraph18, Georges RUTAGANDA committed:
COUNT 7: CRIMEAGAINST HUMANITY (murder) punishable by Article3(a) of Statuteof the Tribunal; and
Judgement,Prosecutor versus Rutaganda 9 CaseNo:lCTR-96-3-T ~
COUNT 8: VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS,as incorporated by Article 4(a) (murder) of theStatute of Tribunal.
(Signed) RichardJ. Goldstone Prosecutor;Kigali 12 February1996"
Judgement,Prosecutor versus Rutaganda 10 CaseNo:lCTR-96-3-T ~
1.3 ProceduralBackground
5. On 13 February1996 the Prosecutor submitted an Indictmentagainst Georges Rutaganda forconfirmation, pursuant toArticle 17 ofthe Statute of theTribunal.
6. On 16 February1996, Judge William H. Sekule,after having reviewed the Indictment andaccompanying supporting material, confirmed the Indictment against the Accused, pursuant toArticles 18of the Statute and Rule 47 of theRules. On the same day the learned Judge issued a Warrantof Arrestfor the Accused, which requested the Republic of Zambiato transferthe Accusedto thecustody of theTribunal. The Accused was subsequently transferred to the Tribunaldetention facility in Arusha,Tanzania, on26 May1996.
7. TheAccused made his initial appearance before the Tribunal on 30 May1996, pursuant to Rule62 of theRules, and he wasformally charged. At thishearing the Accusedwas representedbyCounsel, and he pleaded not guilty to allthe counts in the Indictment.
8. On 8 September1996, the Defence filed an extremelyurgent motion requesting the postponementofall criminal proceedings against the Accused and the provisional release of the Accused,due to hisstate of health.The Chamber subsequently held that the Defence had not satisfiedthe provisions of Rule 65 of the Rules and denied this motion. Due to the ill health of the3 Accused, the Chamber adjourned the commencement of trial to 6 March1997.
9. On6 December1996, the Defence filed another motion requesting theprovisional release of theAccused, on thegrounds of theAccused’s state of illhealth and his need for medical treatment.The Chamber denied this motion and held that the Tribunal was able to provide adequatemedical care to theAccused, and that there had been neither serious regression in his
3 Decisionon theRequest Submitted by theDefenee, The Prosecutor v. GeorgesRutaganda, Case No. ICTR-96- 3-T,25 September1996.
Judgement,Prosecutor versus Rutaganda 11 /7/o
C~e No: ICTR-96-3-T medicalcondition nor had other exceptional circumstances arisen which justified his provisional release.
10.The Accused requested the assignment of Counsel to representhim. The Registrar, after havingestablished that the Accused was indigent, assigned Counsels Luc De Temmermanand TiphaineDickson to representhim. However, on 25 August1997, the Accused requested the withdrawalof Mr. Luc De Temmerman,stating that he hadlost confidence in the said Counsel becausehe had failed to providesufficient legal and strategic support to hisdefence. Mr. De Temmermansubsequently withdrew and the Accused was represented by Ms TiphaineDickson throughoutthe trial. The Prosecutor was represented during the trial by Mr. James Stewart, Mr. UdoHerbert Gehring and Ms HoloMakwaia.
11.On 6 March1997, the Chamber adjourned the trial for two weeks, following a request to thiseffect from the Prosecutor. The trial commenced on 18 March1997. Twenty seven prosecutionwitnesses, including five experts, testified before the Prosecutor closed her case on 29 May1998. The Defence case commenced on 8 February1999. Fourteen witnesses, including threeexperts, testified onbehalf of theDefence. The Defence closed its case on 23 April 1999. TheParties presented their closing submissions on 16 and17 June1999.
12.During the course of thepre-trial and trial stages of thecriminal proceeding, theParties filedmany motions on variousprocedural and substantive issues, including motions for disclosureofwitness statements, a motion requesting that the deposition ofsixteen witnesses be givenby meansof a videoconference, pursuant toRule 71 of theRules, and a motionpertaining tothe false testimony ofa witness.
13.Both Parties filed motions, requesting protective measures for their witnesses, pursuant to Article19 and21 ofthe Statute and Rule 69 an 75 ofthe Rules. The Chamber granted these motionsand ordered inter alia that the names, addresses and other identifying information ofthe witnessesshall not be disclosedto themedia and public, the witnesses will be assigned
Judgement,Prosecutor versus Rutaganda 12 CaseNo:ICTR-96-3-T ~ pseudonymsand they will be referredto bythese pseudonyms in all criminal proceedings before theChamber and in discussions with the Parties. Therefore, most of the witnesses referred toin thisJudgement are referred to by theirassigned pseudonyms.
14.In herclosing arguments, the Prosecutor requested an amendmentof thetime periods allegedin paragraphs10, 16 and19 of theIndictment. The Chamber finds the Prosecutor’s requestinadmissable.
Judgement,Prosecutor versus Rutaganda 13 CaseNo: ICTR-96-3-T ~ O
1.4 EvidentiaryMatters
15.The Chamber finds that it is necessary toaddress certain issues relevant to theassessment ofthe evidence presented attrial.
16.The Chamber notes that Rule 89(A) of the Rules provides that it is notbound by the rules ofprocedure and evidence ofany particular national jurisdiction andconcurs with the finding in theJudgement in TheProsecutor v. Jean-Paul Akayesu (the "Akayesu Judgement") which held:
"[...]the Chamber [...] is not restricted under the Statute of the Tribunal toapply any particular’’4. legal system and is not bound by any national rules of evidence
17.In all pre-trial and trial proceedings andin theadmission and evaluation ofall evidence andexhibits presented atthe trial, the Chamber has applied the Rules in a mannerbest favoured toa fairdetermination ofthe matter before it, and which is consonantwith the spirit of the Statuteand the general principles oflaw.
18.The Chamber notes that, pursuant to Rule96(i) of theRules, no corroborationof the victim’stestimony is requiredin thecase of rapeand sexual violence. The Chamber concurs withboth the Akayesu Judgement 5 and the judgement of the International Criminal Tribunal for theformer Yugoslavia inThe Prosecutor v. Dusko Tadic, (the "Tadic Judgement") 6, judgements whichheld that the fact that Rules stipulate that corroboration ofthe victims testimony isnot requiredfor crimes of sexualassault, does not justify the inference that corroboration of witnesses’testimony is,in fact, required, forother crimes. The Chamber’s approach isthat it will
4 TheProsecutor v. Jean-PaulAkayesu (Case No. ICTR-96-4-T), Judgement of 2 September1998, para. 131.
5AkayesuJudgement, para. 134.
6 TheProsecutor v. DuskoTadic (Case No. IT-94-1-T) Judgement of 7 May1997, para. 535 to 539.
Judgement,Prosecutor versus Rutaganda 14 CaseNo: ICTR-96-3-T ~ IIiI] II ~11 II iIi IIi IIi II ~1 i IIi Iii Iii Iii II ~1 i Iiiii 111 iI Iii i111111 iiIii iii ...... II~i III I ~1 III III II IIIIII III III I I III ~1 III III II ~11 II ~11 iI ~11 Ii IiI II ...... I ...... , ...... IIiI111111~11111111 relyon theevidence of a singlewitness, provided such evidence is relevant,admissible and credible.Pursuant to Rule89 of theRules, the Chamber may assess all relevant evidence which itdeems to haveprobative value. The Rules do not exclude hearsay evidence, and the Chamber hasthe discretion to considersuch evidence. Where the Chamber decides to considersuch evidence,itis inclined todo so with caution.
19.The Chamber notes that during the trial, the Prosecutor andthe Defence relied on pre-trial statementsfrom witnesses for the purposes of directand cross-examination. Inmany instances, inconsistenciesandcontradictions between the pre-trial statements of witnesses and their testimoniesat trial were pointed out by the Defence. The Chamber concurs with the reasoning in theAkayesu Judgement, which held:
"[...]these pre-trial statements were composed following interviews with witnesses by investigatorsof the Office of the Prosecutor. These interviews were mostly conducted in Kinyarwanda,andthe Chamber did not have access to transcripts of the interviews, but onlytranslations thereof. It was therefore unable to consider the nature and form of the questionsput to the witnesses, orthe accuracy ofinterpretation atthe time. The Chamber hasconsidered inconsistencies and contradictions between these statements and testimonyattrial with caution for these reasons, and in the light of the time lapse between thestatements andthe presentation ofevidence attrial, the difficulties ofrecollecting precisedetails several years after the occurrence of the events, the difficulties of translation,andthe fact that several witnesses were illiterate andstated that they had not readtheir written statements. Moreover, the statements were not made under solemn declarationandwere not taken by judicial officers. Inthe circumstances, theprobative valueattached tothe statements is,in theChamber’s view, considerably lessthan direct sworntestimony before the Chamber, the truth of which has been subjected tothe test of
Judgement,Prosecutor versus Rutaganda 15 CaseNo:ICTR-96-3-T ~
cross-examination.’’7
20.During the trial proceedings, the Defence filed motions requesting investigations of allegedfalse testimony against two of the Prosecutor’s witnesses. These motions were dismissed by theChamber and this decision was appealed by theDefence. The Appeals Chamber dismissed theseappeals. This Chamber reaffirms its position that false testimony is a deliberateoffence whichrequires wilful intent on the part of the perpetrator tomislead the Judge and thus to cause harms.The onus is onthe party pleading a case of false testimony toprove the falsehood ofthe witness’statements andto establish that they were made with harmful intent, or, at least, that theywere made by a witnesswho was fully aware that they were false. To onlyraise doubt as to thecredibility of the statements made by thewitness is notsufficient to reasonably demonstratethat the witness may have knowingly and wilfully given false testimony. In the Chamber’sview, false testimony cannot be basedsolely on inaccuratestatements made by the witness,but rather requires wilful intent to givefalse testimony. The Appeals Chamber pointed outthat there is a cleardistinction between the credibility of witness testimony and false testimonyof a witness.The testimony of a witnessmay lack credibility, butthis does not necessarilymean that it amounts to false testimony falling within the ambit of Rule 919.
21.The Chamber notes the Defence submission that some of theProsecution witnesses are unreliablebecause they testified toevents that they previously heard other people talk about, and thattherefore the Prosecution’s caseis marredby "contamination". TheDefence also submitted
7 AkayesuJudgement, para. 134.
8 TheProsecutor v. GeorgesAnderson Nderubumwe Rutaganda, (Case No. ICTR-96-3-T) Decision on the DefenceMotion to Directthe Prosecutor to Investigate the Matter of FalseTestimony by WitnessE.
9 The Prosecutorv. GeorgesAnderson Nderubumwe Rutaganda, (Case No. ICTR-96-3-T) Decision on Appeals againstthe Decisions by TrialChamber I Rejecting the Defence Motions to Directthe Prosecutor to Investigate theMatter of FalseTestimony by witnesses"E" and "CC", 8 June1998, para. 28.
Judgement,Prosecutor versus Rutaganda 16 CaseNo:ICTR-96-3-T ~ thatsome of the evidence was obtained by illegalmeans, which rendered it inadmissible1°.The Chamberfinds that this is neither a matter of"contamination", norof"illegal means of collecting information",butof hearsay.
22.Many of the witnesses who testified before the Chamber in thiscase have seen atrocities committedagainst members of their families and close friends and/or have themselves been the victimsof suchatrocities. Some of thesewitnesses became very emotional and cried in the witnessbox, when they were questioned about certain events. A few witnesses displayed physical signsof fear and pain when they were asked about certain atrocities of which they were victims. TheChamber has taken into consideration these factors in assessingthe evidence of such witnesses.
23. TheChamber has also taken into consideration various social and cultural factors in assessingthe testimony of someof thewitnesses. Some of thesewitnesses were farmers and peoplewho did not have a highstandard ofeducation, andthey had difficulty inidentifying and testifyingtosome of the exhibits, such as photographsof various locations, maps etc. These witnessesalso experienced difficulty intestifying asto dates, times, distances, colours and motor vehicles.In thisregard, the Chamber also notes that many of thewitnesses testified in Kinyarwandaand as suchtheir testimonies were simultaneously translated into French and English¯As a result,the essence of thewitnesses’ testimonies was at timeslost. Counsel questionedwitnesses in eitherEnglish or French,and these questions were simultaneously translatedtothe witnesses inKinyarwanda. Insome instances itwas evident, after translation, thatthe witnesses had not understood the questions.
10 Seethe Defence submissions, transcripts of 17 June1996.
Judgement,Prosecutor versus Rutaganda -17- CaseNo:1CTR-96-3-T ~
1.5 The Accused
24.On 8 April1999, the Accused testified that he wasborn on 28 November1958 in Ngoma, in GishyitaCommune, Kibuye Prdfecture in Rwanda.He grewup in Gitaramaand Kibuye Prdfecture,before studying and working in Butare and Kigali Prdfectures.
25. TheAccused testified that his father, Esdras Mpamo, held many civil, public and political officesand government appointments, such as thePrefect of Kibuye,Cyangugu, and Butare Prdfectures,the RwandeseAmbassador to Ugandaand Germanyand the Bourgmestreof MasangoCommune, in theGitarama Prdfecture. TheAccused testified that although he traveled a lothe consideredhis origin to beMasango Commune in theGitarama Prefecture because his fatherwas the Bourgmestre in this Commune, and he returnedthere throughout his youth. The Accusedalso testified that his father was a devoutSeventh Day Adventist, andthat his father’s religiousand political beliefs significantly influenced hisupbringing andsubsequent political decisions.
26.The Accused testified that he is married and he is a fatherof three children. Hestated that he receiveda degree in agriculturalengineering in 1985, from National University of Rwanda andthereafter hewas appointed agricultural engineer. Hestated that as an agricultural engineer, he conductedagricultural research and he manageda farm which served as a modelfarm to the A farmersof HuyeCommune. According to theAccused, he wasallowed to purchasethis farm by virtueof a Presidentialdecree.
27.The Accused testified that he appliedto the Agricultural Ministry to betransferred from Butarein 1991,because of threatshe hadreceived from certain people in theHuye Commune, followinghis purchase of thefarm that he managed.He statedthat he wassubsequently transferredtoa postwith the Rwandese Ministry of AgricultureinKigali, although his family remainedin Butare.
Judgement,Prosecutor versus Rutaganda 18 CaseNo:ICTR-96-3-T ~
28.The Accusedtestified that, in June1991, he commencedwork as a businessman in Kigali,dealing with import, under the name of RutugandaSARL. He statedthat Rutaganda SARLwas a highlyprofitable enterprise, and maintained exclusive imports and distribution agreementswith a numberof Europeanfood and beverage producers, aswell as exclusive supply agreementswith smaller bars, distributors, andorganizations inRwanda.
29.The Accused testified that he joinedthe MRND on or aboutSeptember or October1991. He statedthat various political parties offered him membership, but he joinedthe MRND becausehe believed that this political party was in a positiontoprovide the best economic and militaryprotection, both of which were significant concerns for him as a businessproprietor in Rwanda.
30.The Accused testified that, after he joinedthe MRND party in 1991,he becamethe secondvice president of itsyouth wing, the Interahamwe za MRND. He statedthat he was involvedin thecreation of theInterahamwe zaMRND and met regularly with its other leaders.
Judgement,Prosecutor versus Rutaganda 19 2. THE APPLICABLE LAW
2.1Individual Criminal Responsibility
31. TheAccused is chargedunder Article 6(1) of the Statutewith individual criminal responsibilityforthe crimes alleged in theIndictment. Article 6(1) provides that:
"A personwho planned, instigated, ordered, committed or otherwise aided and abetted inthe planning, preparation orexecution ofa crimereferred toin Articles 2 to 4 ofthe presentStatute shall be individually responsible forthe crime".
32. In theAkayesu Judgement findings were made on theprinciple of individualcriminal responsibilityunderArticle 6(1) of the Statute. The Chamber notes that these findings are, in the main,the same as thosemade in theTadic Judgement and in thejudgements in The Prosecutor v. CldmentKayishema and Obed Ruzindana (the "Kayishema and Ruzindana Judgement")ll and TheProsecutor versus Zejnil Delalic, Zdravko Mucic, Hazim Delic, Esad Landzo: ’ The Celebici Case’,(the "Celebici Judgement") 12.The Chamber is of theview that the position as derived fromthe afore-mentioned case law, with respect to theprinciple of individualcriminal responsibility,andas articulated, notably, inthe Akayesu Judgement issufficiently established andis applicable inthe instant case.
33.The Chamber notes, that under Article 6 (1),an accusedperson may incur individual criminalresponsibility asa result of five forms of participation inthe commission ofone of the threecrimes referred toin the Statute. Article 6 (1) covers various stages in the commission
11 Judgementof theInternational Criminal Tribunal for Rwanda, Trial Chamber I1, Prosecutor v. Cldment Kayishemaand ObedRuzindana, (Case No. ICTR 95-I-T) 21 May 1999.
12 Judgementof theInternational Criminal Tribunal for the Former Yugoslavia, (Case No. IT-96-21-T) The
Prosecutorv. ZejnilDelalic, Zdravko Mucic, Hazim Delic, Esad Landzo, "The Celebici Case", 16 November1998.
Judgement,Prosecutor versus Rutaganda -20- CaseNo: 1CTR-96-3-T ~ a crime,ranging from its initial planning toits execution.
34.The Chamber observes that the principle of individualcriminal responsibility under Article6 (1) implies that the planning orpreparation ofa crime actually leads to its commission. However,the Chamber notes that Article 2 (3) of theStatute, onthe crime of genocide,provides forprosecution forattempted genocide, among other acts. However, attempt is bydefinition an inchoatecrime, inherent inthe criminal conductper seirrespective ofits result. Consequently, theChamber holds that an accusedmay incur individual criminal responsibility forinchoate offencesunder Article 2 (3) of the Statute and that, conversely, a person engaging inany form of participationin other crimes falling within the jurisdiction of the Tribunal, such as those coveredin Articles3 and 4 ofthe Statute, could incur criminal responsibility onlyif the offence wereconsummated.
35.The Chamber finds that in additiontoincurring responsibility asa principal offender, the Accusedmay also be held criminallyliable forcriminal acts committed byothers if, for example, he plannedsuch acts, instigated another to commit them, orderedthat they be committedor aided andabetted another in the commission of such acts.
36.The Chamber defines the five forms of criminalparticipation under Article 6(1) follows:
37.Firstly, in theview of theChamber, "plarming" of a crimeimplies that one or more personscontemplate designing the commission ofa crimeat bothits preparatory andexecution phases.
38.In the opinion of theChamber, the second form of participation,thatis, incitement to commitan offence,under Article 6(1), involves instigating another, directly and publicly, commitan offence. Instigation ispunishable only where it leads to the actual commission ofan
Judgement,Prosecutor versus Rutaganda 21 CaseNo:ICTR-96-3-T ~
offencedesired by theinstigator, except with genocide, where an accusedmay be held individuallycriminally liable for incitement to commit genocide under Article 2(3)(c) of Statute,even where such incitement fails to produce a result.J3
39.In theopinion of theChamber, ordering, which is a thirdform of participation,implies a superior-subordinaterelationship between the person giving the order and the one executing it,with the person in a positionofauthority using such position topersuade another to commit anoffence.
40.Fourthly, anaccused incurs criminal responsibility forthe commission of a crime,under Article6(1), where he actually"commits" one of thecrimes within the jurisdiction rationae materiaeofthe Tribunal.
41.The Chamber holds that an accusedmay participate in the commission of a crimeeither throughdirect commission ofan unlawfulact or byomission, where he hasa dutyto act.
42.A fifthand last form of participation where individual criminalresponsibility arisesunder Article6(1), is "[...] otherwise aid[ing] and abett[ing] inthe planning orexecution ofa crime
A referredtoin Articles 2 to 4".
43.The Chamber finds that aiding and abetting alone is sufficientto renderthe accused criminallyliable. Inboth instances, itis not necessary that the person aiding and abetting another to commitan offencebe presentduring the commission of thecrime. The relevant act of assistancemay be geographicallyandtemporally unconnected to the actual commission of the offence.The Chamber holds that aiding and abetting include all acts of assistancein either physicalform or in theform of moralsupport; nevertheless, it emphasizes that any act of
13 AkayesuJudgement, para. 562
Judgement,Prosecutor versus Rutaganda 22 CaseNo: ICTR-96-3-T participationmustsubstantially contribute to the commission ofthe crime. The aider and abettor assistsor facilitates another in theaccomplishment ofa substantive offence.
Judgement,Prosecutor versus Rutaganda 23 CaseNo:ICTR-96-3-T ~
2.2Genocide (Article 2 of theStatute)
44.In accordancewith the provisions of Article 2(3)(a) of the Statute, which stipulate theTribunal shall have the power to prosecute persons responsible forgenocide, the Prosecutor hascharged the Accused with genocide, Count 1 of theIndictment.
45.The definition of genocide, as givenin Article2 of theTribunal’s Statute, is taken verbatimfrom Articles 2 and 3 of theConvention on thePrevention and Punishment of the Crimeof Genocide(the "Genocide Convention") 14.It readsas follows:
"Genocidemeans any of the following acts committed with intent to destroy,in whole orin part, a national,ethnical, racial or religious group, as such:
(a) Killingmembers of thegroup;
(b) Causingserious bodily or mentalharm to membersof thegroup;
(e) Deliberatelyinflicting onthe group conditions oflife calculated tobring aboutits physical destruction inwhole or in part;
(d) Imposingmeasures intended to preventbirths within the group;
(e) Forciblytransferring children of the group to another group."
14 TheConvention on thePrevention and Punishment of theCrime of Genocidewas adopted by theUnited
NationsGeneral Assembly on 9 December1948.
Judgement,Prosecutor versus Rutaganda 24 CaseNo:1CTR-96-3-T ~
46.The Genocide Convention is undeniablyconsidered part of customaryinternational law, as reflectedin the advisory opinion issued in 1951by the International Court of Justiceon reservationsto the Genocide Convention, andas notedby theUnited Nations Secretary-General in hisReport on theestablishment of the International Criminal Tribunal for the Former Yugoslavia~5.
47. TheChamber notes that Rwanda acceded, by legislativedecree, to theConvention on Genocideon 12 February1975 .16 Thereforethe crime of genocidewas punishable in Rwanda in 1994.
48.The Chamber adheres to thedefinition of the crime of genocideas it wasdefined in the AkayesuJudgement.
49.The Chamber accepts that the crime of genocideinvolves, firstly, that one of theacts listedunder Article 2(2) of the Statute be committed;secondly, that such an actbe committed againsta national, ethnical, racial or religious group, specifically targeted assuch; and, thirdly, thatthe "act be committed with the intent to destroy, inwhole or in part, the targeted group".
A TheActs Enumerated under Article 2(2)(a) to (e)of theStatute
50.Article 2(2)(a) of theStatute, like the correspondingprovisions of theGenocide Convention,refers to "meurtre"inthe French version and to "killing" in the English version. Inthe opinion of the Chamber, the term "killing" includes both intentional andunintentional
15 Secretary-General’sReportpursuant to para.2 of Resolution808 (1993) of theSecurity Council, 3 May 1993, S/25704.
16 LegislativeDecree of 12 February1975, Official Gazette of theRepublic of Rwanda,1975, p.230. Rwanda
accededto theGenocide Convention but stated that it shallnot be boundby Article9 of thisConvention.
Judgement,Prosecutor versus Rutaganda 25 /f76
CaseNo:ICTR-96-3-T ~ homicides,whereas the word "meurtre" covers homicide committed with the intent to cause death.Given the presumption ofinnocence, and pursuant to thegeneral principles of criminal law,the Chamber holds that the version more favourable tothe Accused should be adopted, and findsthat Article 2(2)(a) of theStatute must be interpreted inaccordance with the definition murderin theCriminal Code of Rwanda,which provides, under Article 311, that "Homicide committedwith intent to causedeath shall be treated as murder".
51.For the purposes of interpretingArticle 2(2)(b) of theStatute, the Chamber understands thewords "serious bodily or mentalharm" to include acts of bodilyor mental torture, inhumane ordegrading treatment, rape, sexual violence, and persecution. TheChamber is ofthe opinion that"serious harm" need not entail permanent orirremediable harm.
52.In theopinion of the Chamber, the words "deliberately inflicting onthe group conditions oflife calculated to bring about its physical destruction in whole or in part", as indicatedin Article2(2)(c) of theStatute, are to be construed"as methods of destructionby which perpetratordoes not necessarily intend to immediately kill the members of the group", but which are,ultimately, aimed at theirphysical destruction. The Chamber holds that the means of deliberatelyinflicting onthe group conditions of life calculated tobring about its physical destruction,in whole or inpart, include subjecting a group of people to a subsistencediet, systematicexpulsion from their homes and deprivation of essential medical supplies below a minimumvital standard.
53.For the purposes of interpreting Article 2(2)(d) of the Statute, the Chamber holds that words"measures intended to preventbirths within the group" should be construedasincluding sexualmutilation, enforced sterilization, forced birth control, forced separation ofmales and females,and prohibition of marriages. The Chamber notes that measures intended to prevent birthswithin the group may be not only physical, but also mental.
Judgement,Prosecutor versus Rutaganda 26 CaseNo:ICTR-96-3-T ~
¯.,,,.,,..,.,¯.,¯., ¯,. ¯,.,..,,.. ¯.,,.,.,,,. ¯,.,,,,. ¯.,..,.. ¯,,,,,,. ¯,,.,,., ¯.,¯, ¯.,.,,,,. ¯,,¯, ¯.,,..,,..,,.,,,,.,,,..,,,..,. ¯,,,.,.,,,,.,,,,.,,,..,,, ¯,¯ ¯..¯, ¯.,,., ¯.. ¯,..,,..,., ¯,*.,.,. ¯,¯., ¯, ¯.,.,, ¯
54.The Chamber is ofthe opinion that the provisions ofArticle 2(2)(e) of the Statute, on forcibletransfer of childrenfrom one group to another, are aimed at sanctioning notonly any directact of forcible physical transfer, but also any acts of threats or traumawhich would lead tothe forcible transfer ofchildren from one group to another group
PotentialGroups of Victimsof theCrime of Genocide
55.The Chamber is of theview that it is necessaryto considerthe issue of thepotential groupsof victimsof genocidein lightof theprovisions of theStatute and the Genocide Convention,which stipulate that genocide aims at "destroy[ing], inwhole or in part, a national, ethnical,racial or religious group, as such."
56.The Chamber notes that the concepts of national,ethnical, racial and religious groups havebeen researched extensively andthat, at present, there are no generally and internationally acceptedprecise definitions thereof. Each of these concepts must be assessed inthe light of a particularpolitical, social and cultural context. Moreover, the Chamber notes that for the purposesof applyingthe GenocideConvention, membership of a groupis, in essence,a subjectiverather than an objectiveconcept. The victim is perceivedby theperpetrator of genocideas belongingto a groupslated for destruction. In some instances, the victim may perceivehimself/herself as belonging to the said group.
57.Nevertheless, theChamber is ofthe view that a subjectivedefinition alone is notenough to determinevictim groups, as providedfor in theGenocide Convention. It appears, from a readingof the travauxprdparatoires ofthe Genocide Convention ~7,that certain groups, such as politicaland economic groups, have been excluded from the protected groups, because they are consideredto be "mobilegroups" which one joins through individual, political commitment.
J7SummaryRecords of the meetingsof the SixthCommitlee of the GeneralAssembly, 21 September- 10 December1948, Official Records of the GeneralAssembly.
Judgement,Prosecutor versus Rutaganda 27 CaseNo:ICTR-96-3-T ~
Thatwould seem to suggesta contrario that the Convention was presumably intended to cover relativelystable and permanent groups.
58. Therefore,the Chamberholds that in assessingwhether a particulargroup may be consideredas protected from the crime of genocide, itwill proceed on a case-by-casebasis, takinginto account both the relevant evidence proffered andthe political and cultural context as indicatedsupra.
TheSpecial Intent of theCrime of Genocide.
59.Genocide isdistinct from other crimes because it requiresdolus specialis, a special intent. Specialintent of a crimeis the specific intention which, as an element ofthe crime, requires that theperpetrator clearly intended the result charged. The dolus specialis ofthe crime of genocide liesin "the intent to destroy, inwhole or in part, a national,ethnical, racial or religious group, as such".A person may be convictedofgenocide only where it is establishedthat he committed oneof the acts referred tounder Article 2(2) of the Statute with the specific intent to destroy, wholeor in part, a particulargroup.
60.In concreteterms, for any of the acts charged to constitutegenocide, the said acts must
A havebeen committed against one or morepersons because such person or personswere members ofa specificgroup, and specifically, because of theirmembership inthis group. Thus, the victim issingled out not by reasonof his individual identity, but rather on accountof his being a memberof a national,ethnical, racial or religious group¯ The victim of the act is, therefore, a memberof a givengroup selected as such,which, ultimately, means the victim of thecrime of genocideisthe group itself and not the individual alone. The perpetration ofthe act charged, therefore,extends beyond its actual commission, forexample, the murder of a particularperson, toencompass the realization ofthe ulterior purpose to destroy,inwhole or in part, the group of whichthe person is onlya member.
Judgement,Prosecutor versus Rutaganda 28 CaseNo:ICTR-96-3-T ~
¯, ¯ ¯ ¯ ¯ ¯ ¯ ¯, ¯ ¯ ,,,,¯ ¯,,¯ ¯¯, ¯ ¯¯ ¯¯ ¯, ¯,¯¯ ¯ ¯ ¯ ¯ ¯, ¯¯ ¯ ¯¯ ¯, ¯¯ ¯¯,¯ ¯ ¯, ¯¯ ¯ ¯¯ ¯ ¯ ¯ ¯ ¯ ¯ ¯, ¯¯, ¯¯¯ ¯ ¯ ¯¯, ¯¯¯ ¯ ¯, ¯¯ ¯ ¯ ¯, ¯¯¯ ¯ ¯¯, ¯ ¯ ¯ ¯ ¯¯ ¯ ¯ ¯¯, ¯¯¯ ¯ ¯, ¯¯ ¯ ¯ ¯ ¯ ¯ ¯ ¯ ¯¯ ¯, ¯¯, ¯¯¯, ¯¯,¯ ¯ ¯, ¯¯¯, ¯¯¯, ¯¯¯ ¯ ¯, ¯¯ ¯, ¯¯ ¯ ¯¯, ¯¯,¯ ¯, ¯, ¯ ¯ ¯ ¯ ¯ ¯ ¯ ¯ ¯ ¯ ¯, ¯ 61. The dolusspecialis is a keyelement of an intentionaloffence, which offence is characterizedbya psychological nexus between the physical result and the mental state of the perpetrator.Withregard to the issue of determiningtheoffender’s specific intent, the Chamber appliesthe following reasoning, asheld in theAkayesu Judgement:
" [...]intent is a mentalfactor which is difficult, even impossible, todetermine. Thisis the reason why, in the absence ofa confessionfrom the accused, his intent canbe inferredfrom a certainnumber of presumptionsof fact. The Chamber is ofthe view that the genocidal intent inherent in a particularactcharged can be inferredfrom the general context of theperpetration of other culpable acts systematicallydirected against that same group, whether these acts were committedbythe same offender orby others.Other factors, such as the scale of atrocitiescommitted, their general nature, in a regionor a country,or furthermore,thefact of deliberatelyandsystematically targeting victims on accountof their membership of a particulargroup, while excluding the members of othergroups, can enable the Chamber to inferthe genocidal intent of a particular’’is act.
62. Similarly,in the Kayishema and Ruzindana Judgement, Trial Chamber II heldthat : r
"[...]The Chamber finds that the intent can be inferred either from words or deeds andmay be determinedby a patternof purposefulaction¯ In particular,the Chamberconsiders evidence such as [...]the methodical way of planning,the systematicmanner of killing. [...],19
IS dkayesuJudgement, para. 523
19 Kayishemaand Ruzindana Judgement, para. 93.
Judgement,Prosecutor versus Rutaganda 29 CaseNo: ICTR-96-3-T ~ I I i i i ~ ...... II I I I I I I I ¯ I I I I I I I ¯ I I I I I I I I I I I I I I I I I I I I I I ¯ I I I I I I I I I I I I I I I ] I I I I I I I I I I I ¯ I I ¯ I I I I I I I I I I I I I I, II ¯ I I ¯ I, II I I I I iiI11, ii 11 iiI Iii I1111 II~1 i IiiIIi Ii I~ i IIiII 1~] 11 i I~] 63.Therefore, the Chamber is of theview that, in practice, intent can be, on a case-by-case basis,inferred from the material evidence submitted to theChamber, including the evidence whichdemonstrates a consistent pattern of conductby theAccused.
Judgement,Prosecutor versus Rutaganda 30 CaseNo: ICTR-96-3-T
2.3Crimes against Humanity (Article 3 of theStatute)
64.The Chamber notes that the Akayesu Judgement traced the historical development and evolutionof crimes against humanity, as far back as theCharter of the International Military Tribunalof Nuremberg. The Akayesu Judgement also considered the gradual evolution of crimes againsthumanity in thecases of Eichmann,Barbie, Touvier and Papon 2°.The Chamber concurs withthe historical development of crimes against humanity, as setforth in theAkayesu Judgement.
65.The Chamber notes that Article 7 of theStatute of theInternational Criminal Court definesa crimeagainst humanity as anyof theenumerated acts committed as partof a widespreadorsystematic attack directed against any civilian population, with knowledge ofthe attack.These enumerated acts are murder; extermination; enslavement; deportation or forcible transferofpopulation; imprisonment orother severe deprivation ofphysical liberty in violation offlmdamental rules of international law;torture; rape, sexual slavery, enforced prostitution, forcedpregnancy, enforced sterilization, or any other form of sexualviolence of comparable gravity;persecution against any identifiable groupor collectivity onpolitical, racial, national, ethnic,cultural, religious, gender or othergrounds that are universally recognised as impermissibleunder international law,in connection with any act referred to in this paragraph orany other crime within the jurisdiction ofthe court; enforced disappearance ofpersons; the crimeof apartheid;other inhumane acts of a similarcharacter intentionally causing great suffering2~ orserious injury to body or mental or physical health.
20 AkayesuJudgement para. 563 to 576
21 RomeStatute of theInternational Criminal Court, adopted by theUnited Nations Diplomatic Conference of
Plenipotentiarieson theEstablishment ofan InternationalCourt on 17 July1998.
Judgement,Prosecutor versus Rutaganda 31 CaseNo:ICTR-96-3-T ~
Crimesagainst Humanity pursuant to Article3 of theStatute of theTribunal
66.Article 3 of the Statute confers on theTribunal the jurisdiction to prosecute persons for variousinhumane acts which constitute crimes against humanity. The Chamber concurs with the reasoningin the Akayesu Judgement that offences falling within the ambit of crimesagainst humanitymay be broadlybroken down into four essential elements, namely:
(a) theactus reus must be inhumane innature and character, causing great suffering, orserious injury to bodyor to mental or physical health
(b)the actus reus must be committedas partof a widespreador systematic attack
(c) theactus reus must be committedagainst members of the civilian population
(d) the actusreus must be committedon one or morediscriminatory grounds, namely,22 national, political, ethnic, racial or religious grounds.
TheActusReus Must be Committedas Partof a Widespreador SystematicAttack
67.The Chamber is of theopinion that the actus reus cannot be a randominhumane act, but ratheran act committed aspart of an attack. With regard to the nature of this attack, the Chamber notesthat Article 3 of the English version of theStatute reads "[...] as part of a widespreador systematicattack. [...]" whilst the French version ofthe Statute reads "[...] dans le cadre d’une attaquegrnrralisre etsystrmatique [...]". The French version requires that the attack be both of a widespreadand systematic nature, whilst the English version requires that the attack be of a widespreador systematic nature and need not be both.
22 AkayesuJudgement, para. 578.
Judgement,Prosecutor versus Rutaganda 32 CaseNo: ICTR-96-3-T
...... ,.,,.,.,,.*HH*H...... ¯,.. ,., ¯,, ,., ¯,, ¯.. ¯,. ¯, ,,,., ¯,,,, *,. ,, ¯,, ,,,,, ¯,.,,, ,, ¯,¯ ¯,, ,,, ,¯, ,,, ,¯, ,¯ ¯,¯ ,,. ,,¯ .,. ,, ¯..., ,.,,¯ ,,, ,¯ ,,, ,¯, ,, ,,, ,,,,, ,,,,¯ ,,¯ ,¯¯ ,¯, ,¯ ¯,¯ ¯,. ¯,. ,., ,., ,,, ,,, ,¯ ,,,
68.The Chamber notes that customary international lawrequires that the attack be eitherof a widespreador systematic nature and need not be both.The English version of theStatute conformsmore closely with customary international lawand the Chamber therefore accepts the elementsas setforth in Article3 of theEnglish version of theStatute and follows the interpretationinother ICTRjudgements namely: that the "attack"under Article 3 of the Statute, mustbe eitherof a widespreador systematic nature and need not be both.23
69.The Chamber notes that "widespread", as an elementof crimesagainst humanity, was definedin theAkayesu Judgement, as massive,frequent, large scale action, carried out collectivelywithconsiderable seriousness anddirected against a multiplicity ofvictims, whilst "systematic"wasdefined as thoroughlyorganised action, following a regular pattern on thebasis of a commonpolicy and involving substantial public or privateresources 24.The Chamber concurswith these definitions andfinds that it is not essential for this policy to beadopted formallyas a policyof a State.There must, however, be somekind of preconceivedplan or policyY
70.The Chamber notes that "attack", as an elementof crimesagainst humanity, was defined inthe Akayesu Judgement, asan unlawful act of the kind enumerated inArticle 3(a) to (i) of Statute,such as murder, extermination, enslavement etc. An attackmay also be non-violent in nature,like imposing a system of apartheid,which is declareda crime against humanity in Article1 of the Apartheid Convention of 1973, or exertingpressure onthe population toact in
23 AkayesuJudgement, p. 235,fn 144;Kayishema and Ruzindana Judgement, p. 51, fn 63.
24 AkayesuJudgement para. 580.
25 Reporton theInternational Law Commissionto theGeneral Assembly, 51 U.N.GAOR Supp.
(No10 ) at 94 U.N.Doc.A/51/10 (1996)
Judgement,Prosecutor versus Rutaganda 33 CaseNo:ICTR-96-3-T ~
a particularmanner may also come under the purview of anattack, if orchestrated ona massive scaleor in a systematicmanner 26.The Chamber concurs with this definition.
71. TheChamber considers that the perpetrator must have:
"[...]actualorconstructive knowledge ofthe broader context of the attack, meaning that theaccused must know that his act(s) is part of a widespreador systematic attack on civilian’’27 population andpursuant to some kind of policyor plan.
TheActus Reus Must be Directedagainst the Civilian Population
72.The Chamber notes that the actus reus must be directedagainst the civilian population, ifit is to constitute a crime against humanity. Inthe Akayesu Judgement, thecivilian population wasdefined aspeople who were not taking any active part in the hostilities 28.The fact that there arecertain individuals among the civilian population whoare not civilians does not deprive the populationofits civilian character 29.The Chamber concurs with this definition.
The ActusReus Mustbe Committedon DiscriminatoryGrounds
73.The Statute stipulates that inhumane acts committed against the civilian population must becommitted on"national, political, ethnic, racial or religious grounds." Discrimination onthe
26,4kayesuJudgement para. 581.
27 Kayishemaand Ruzindana Judgement para. 134
28Akayesu Judgement, para. 582. Note that this definition assimilates thedefinition of "civilian" tothe categories of personprotected by CommonArticle 3 of theGeneva Conventions.
29/bidpara. 582~ Protocol Additional to the Geneva Convention of 12 August1949, and relating to the
Protectionof Victims of InternationalArmed Conflict; Article 50.
Judgement,Prosecutor versus Rutaganda 34 CaseNo: ICTR-96-3-T ~
basisof a person’spolitical ideology satisfies therequirement of’political’ grounds asenvisaged inArticle 3 of the Statute.
74.Inhumane acts committed againstpersons notfalling within any one of thediscriminatory categoriesmay constitute crimes against humanity ifthe perpetrator’s intention in committing theseacts, is tofurther his attack on thegroup discriminated against on one of the grounds specifiedinArticle 3 of theStatute. The perpetrator must have the requisite intent for the commission3° of crimes against humanity.
75. TheChamber notes that the Appeals Chamber in theTadic Appeal ruled that the Trial Chambererred in finding that all crimes against humanity require a discriminatory intent. The AppealsChamber stated that a discriminatoryintent is an indispensable element of theoffence onlywith regard to thosecrimes for which this is expresslyrequired, that is theoffence of persecution,pursuant toArticle 5(h) of the Statute of theInternational Criminal Tribunal for the former31 Yugoslavia (the "ICTY").
76.The Chamber considers the provisions of Article 5 of theICTY Statute, as comparedto theprovisions ofArticle 3 of the ICTR, Statute and notes that, although the provisions ofboth theaforementioned Articles pertain to crimes against humanity, except for persecution, there is a materialand substantial difference inthe elements ofthe offence that constitute crimes against humanity.This stems from the fact that Article 3 of the ICTR Statute expressly provides the enumerateddiscriminatory grounds of "national,political, ethnic, racial or religious", inrespect of theoffences of Murder;Extermination; Deportation; Imprisonment; Torture; Rape; and; Other InhumaneActs, whilst the ICTY Statute does not stipulate any discriminatory grounds in respect ofthese offences..
30 AkayesuJudgement, para. 584.
31 The Prosecutorv. DuskoTadic; Appeals Judgment of 15 July1999; para. 305; p. 55.
Judgement,Prosecutor versus Rutaganda 35 Case No: ICTR-96-3-T ~ @
The EnumeratedActs
77.Article 3 of theStatute sets out various acts that constitute crimes against humanity, namely:murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutiononpolitical, racial and religious grounds; and; other inhumane acts. Although the categoryofacts that constitute crimes against humanity are set out in Article 3, thiscategory is notexhaustive. Anyact which is inhumaneinnature and character may constitute a crime against humanity,provided the other elements are satisfied. This is evident in (i) which caters for all otherinhumane acts not stipulated in(a) to (h) of Article
78.The Chamber notes that in respectof crimesagainst humanity, the Accused is indicted formurder and extermination. TheChamber, ininterpreting Article 3 of the Statute, will focus itsdiscussion onthese offences only.
Murder
79.Pursuant to Article3(a) of the Statute, murder constitutes a crime against humanity. The Chambernotes that Article 3(a) of the English version of the Statute refers to "Murder", whilst theFrench version of theStatute refers to "Assassinat".Customary International Lawdictates thatit is the offence of"Murder" that constitutes a crime against humanity and not "Assassinat".
80. TheAkayesu dudgement defined Murder as theunlawful, intentional killing of a human being.The requisite elements ofmurder are:
(a) Thevictim is dead;
%) The deathresulted from an unlawfulact or omissionof the accusedor a subordinate;
Judgement,Prosecutor versus Rutaganda 36 Case No: ICTR-96-3-T ~2~’,#’
(c) Atthe time of the killing the accused ora subordinatehadthe intention tokill or inflictgrievous bodily harm on thedeceased having known that such bodily harm islikely to cause the victim’s death, and is reckless asto whether or not death ensures;
(d) The victimwas discriminatedagainst on any one of the enumerated discriminatorygrounds;
(e) Thevictim was a memberof thecivilian population; and
(f) Theact or omission was part of a widespreadorsystematic attack on the civilian population?
81.The Chamber concurs with this definition of murder and is ofthe opinion that the act or omissionthat constitutes murder must be discriminatory innature and directed against a member ofthe civilian population.
Extermination
82.Pursuant to Article3(c) of theStatute, extermination constitutes a crime against humanity.By itsvery nature, extermination is a crimewhich is directedagainst a group of individuals.Extermination differs from murder in that it requires anelement of massdestruction whichis nota pre-requisiteformurder.
32 AkayesuJudgement, para. 589 and 590.
Judgement,Prosecutor versus Rutaganda 37 CaseNo:1CTR-96-3-T ~
83. TheAkayesu Judgement, defined the essential elements of exterminationas follows:
(a) theaccused or his subordinate participated in the killing of certainnamed or describedpersons;
(b) theact or omissionwas unlawful and intentional;
(c) theunlawful act or omissionmust be part of a widespreadorsystematic attack;
(d) theattack must be against the civilian population; and
(e) theattack must be on discriminatory grounds, namely: national, political, ethnic, racial,orreligious grounds.
84.The Chamber concurs with this definition ofextermination andis ofthe opinion that the actor omission that constitutes extermination must be discriminatoryin nature and directed againstmembers of the civilian population. Further, this act or omission includes, but is not limitedtothe direct act of killing. Itcan be any act or omission, orcumulative acts or omissions, thatcause the death of the targeted group of individuals.
Judgement,Prosecutor versus Rutaganda 38 Case No:ICTR-96-3-T ~z~~C~
2.4 SeriousViolations of CommonArticle 3 of the GenevaConventions and Additional ProtocolII
Article4 of the Statute
85.Pursuant to Article4 of theStatute, the Chamber shall have the power to prosecute personscommitting or ordering to be committedserious violations ofArticle 3 common to the fourGeneva Conventions of 12 August1949 for the Protectionof War Victims,and of AdditionalProtocol IIthereto of 8 June1977. These violations shall include, but shall not be limitedto:
(a)violence to life,health and physical or mentalwell-being of persons, particularmurder as well as crueltreatment such as torture, mutilation orany formof corporalpunishment;
(b)collective punishments;
(c)taking of hostages;
(d)acts of terrorism;
(e)outrages upon personal dignity, in particularhumiliating and degrading treatment,rape, enforced prostitution andany form of indecent assault;
(f)pillage;
Judgement,Prosecutor versus Rutaganda 39 CaseNo:ICTR-96-3-T ~
(g)the passing of sentencesand the carrying out of executions without previous judgmentpronounced by a regularlyconstituted court, affording all the judicial guaranteeswhich are recognised as indispensable bycivilised peoples;
(h)threats to commit any of the foregoing acts.
Applicabilityof Common Article 3 andAdditional Protocol II
86.In applying Article 4 of theStatute, the Chamber must be satisfiedthat the principle of A nullumcrimen sine lege is not violated. Indeed, the creation ofthe Tribunal, inresponse tothe allegedcrimes perpetrated in Rwanda in 1994,raised the question all too familiar to the NurembergTribunal and the ICTY, that of jurisdictions applying expost facto laws in violation ofthis principle. In establishing theICTY, the Secretary-General dealtwith this issue by assertingthat in the application ofthe principle ofnullum crimen sine lege the International Tribunalshould apply rules of internationalhumanitarian lawwhich are beyond any doubt part of customarylaw. However, in thecase of thisTribunal, it was incumbent on the Chambers to decidewhether or not the said principle had been adhered to33, and whether individuals incurred individualcriminal responsibility forviolations ofthese international instruments.
87. In the Akayesududgement, the Chamberexpressed its opinionthat the "normsof CommonArticle 3 hadacquired the status of customarylaw in thatmost States, by their domesticpenal codes, have criminalized actswhich, if committedduring internal armedconflict, wouldconstitute violations of Common Article 3". The finding of theTrial Chamber in this regardfollowed the precedents set by theICTY 34,which established the customary nature of
33 SeeAkayesu Judgement, para. 603 to 605.
34 . . . SeeTadtc Judgement and Dec s on on theDefencc Motion for Interlocutory Appea on Junsdlcton of 2 October1995.
Judgement,Prosecutor versus Rutaganda 40 CaseNo:ICTR-96-3-T ~
CommonArticle 3. Moreover,the Chamber in theAkayesu Judgement held that, although not allof AdditionalProtocol II could be saidto be customarylaw, the guarantees contained in Article4(2) (Fundamental Guarantees) thereof, which reaffirm and supplement Common Article 3,form part of existing international law.All of the norms reproduced inArticle 4 of the Statute arecovered by Article 4(2) of AdditionalProtocol II.
88. Furthermore,theTrial Chamber in theAkayesu Judgement concluded that violations of thesenorms would entail, as a matterof customaryinternational law,individual responsibility forthe perpetrator. It was also recalled that as Rwanda had become a party to the1949 Geneva Conventionsand their 1977 Additional Protocols, on 5 May1964 and 19 November1984, respectively,theseinstrtunents werein any case in force in the territory ofRwanda in 1994, and formedpart of Rwandanlaw. Thus, Rwandan nationals who violatedthese international instrumentsincorporated intonational law, including those offences asincorporated inArticle 435 of. the Statute, could be tried before the Rwandan national courts
89. In theKayishema and Ruzindana Judgement, Trial Chamber II deemedit unnecessary todelve into the question asto whether the instruments incorporated inArticle 4 of the Statute shouldbe considered ascustomary international law. Rather the Trial Chamber found that the instrumentswerein force in the territory ofRwanda in 1994 and that persons could be prosecuted forbreaches thereof on thebasis that Rwanda had become a party to theGeneva Conventions and theirAdditional Protocols¯ The offences enumerated in Article 4 of theStatute, said the Trial Chamber,36. also constituted offences under Rwandan law
35 SeeAkayesu Judgement, para. 616 and 617.
36 Se e/( aytshema andRuzmdanaJudgement, para. 156 and 157.
Judgement,Prosecutor versus Rutaganda 41 CaseNo:ICTR-96-3-T ~
90.Thus it isclear that, at the time the crimes alleged in the Indictment were perpetrated, personswere bound to respectthe guarantees provided for by the1949 Geneva Conventions and their1977 Additional Protocols, asincorporated inArticle 4 of the Statute. Violations thereof, asa matterof customand convention, incurred individual responsibility, andcould result in the prosecutionof the authors of the offences.
TheNature of theConflict
9 I. The1949 Geneva Conventions and Additional Protocol I generally apply to international armedconflicts, whereas Common Article 3 extendsa minimumthreshold of humanitarian protectionto persons affected by non-internationalarmedconflicts. This protection has been enhancedand developed inthe 1977 Additional Protocol II. Offences alleged to becovered by Article4 of the Statute must, as a preliminarymatter, have been committed inthe context of a conflictof a non-internationalcharacter satisfying therequirements of Common Article 3, which appliesto "armedconflict not of an internationalcharacter" and Additional Protocol II, applicabletoconflicts which "take place in the territory ofa HighContracting Party between its armedforces and dissident armed forces or otherorganized armed groups which, under responsiblecommand, exercise such control over a partof its territory asto enable them to carry outsustained and concerted military operations and to implement this Protocol".
92.First to be addressedis the question of whatconstitutes anarmed conflict under Common Article3. Thisissue was dealt with extensively during the 1949 Diplomatic Conference of Genevaleadingto the adoption of theConventions. Ofconcern to manyparticipating States was theambiguous and vague nature of theterm "armed conflict". Although the Conference failed toprovide a precise minimum threshold asto what constitutes an"armed conflict", itis clear that mereacts of banditry,internal disturbances andtensions, and unorganized and short-lived insurrectionsareto beruled out. The International Committee of the Red Cross (the "ICRC’),
Judgement,Prosecutor versus Rutaganda 42 CaseNo: ICTR-96-3-T ~ i Iiiiii iI ~i i Iii iI ~1 III ~ IIII iIi iIi I111 i IIi II ~11 ~11 ~1,11111 i ~ii...... IiIi I1111i~i IIiII IIi II IiI IIi II IIi II IIi II Ii, ~1, Iii iIi iI iiI i i i ...... ~ ...... ~1...... Iiiiiiiiiiii...... iii specifiesfurther that conflicts referred toin Common Article 3 are armed conflicts with armed forceson either side engaged inhostilities: conflicts, inshort, which are in many respects similar toan internationalconflict, but take place within the confines ofa singlecountry 37.The ICTY AppealsChamber offered guidance on thematter by holding"that an armedconflict exists wheneverthereis[...] protractedarmed violence between governmental authorities andorganized armedgroups or between such groups within a State. International humanitarian lawapplies from theinitiation ofsuch armed conflicts andextends beyond the cessation ofhostilities until [...] in the’’38case. of internal conflicts, a peaceful settlement isreached
93.It canthence be seenthat the definition of an armedconflict per se is termedin the abstract,and whether or not a situationcan be described as an "armed conflict", meeting the criteriaofCommon Article 3, is tobe decidedupon on a case-by-casebasis. Hence, in dealing withthis issue, the Akayesu Judgement suggested an"evaluation test", whereby it isnecessary toevaluate the intensity andthe organization ofthe parties to theconflict tomake a findingon theexistence ofan armed conflict. This approach also finds favour with the Trial Chamber in this instance.
94.In addition toarmed conflicts ofa non-internationalcharacter, satisfyingthe requirements ofCommon Article 3, underArticle 4 of theStatute, the Tribunal has the power to prosecute personsresponsible forserious violations ofthe 1977 Additional Protocol II, a legalinstrument whoseoverall purpose is to affordprotection to persons affected by non-internationalarmed conflicts.As aforesaid, this instrument developsand supplementsthe rules contained in Common Article3, without modifying its existing conditions ofapplicability. Additional Protocol II reaffirmsCommon Article 3, which,although it objectivelycharacterized internal armed
37 Seegenerally ICRC Commentary IV GenevaConvention, para. 1 - ApplicableProvisions.
38 lbid34
Judgement,Prosecutor versus Rutaganda 43 CaseNo: ICTR-96-3-T ~
I l[ III[II Ill II [llllIII ~l I l[111 II[ l[Ill [lllillill iiI Ii[l[ lllli conflicts,lacked clarity and enabled the States to have a widearea of discretion inits application. Thus the impetusbehind the Conferenceof GovernmentExperts and the Diplomatic Conference39in this regard was to improve the protection afforded tovictims innon-international armedconflicts and to developobjective criteria which would not be dependentonthe subjective judgementsof the parties. The result is, on theone hand, that conflicts covered by Additional ProtocolII have a higherintensity threshold than Common Article 3, andon theother, that AdditionalProtocol IIis immediately applicable once the defined material conditions have been fulfilled.Ifan internal armed conflict meets the material conditions ofAdditional Protocol I1, it thenalso automatically satisfies the threshold requirements of the broader Common Article 3.
95. PursuanttoArticle 1 (1) of Additional Protocol IIthe material requirements tobe satisfied forthe applicabilityofAdditional Protocol 1Iare as follows:
(i)an armed conflict takes place in the territory ofa HighContracting Party, between its armedforces and dissident armed forces or otherorganized armed groups;
(ii)the dissident armed forces or otherorganized armed groups are under responsible command;
(iii)the dissident armed forces or other organized armed groups are able to exercise such controlover a partof their territory asto enable them to carry out sustained andconcerted militaryoperations; and
39 Conferenceof GovernmentExperts on the Reaffirmationand Developmentof InternationalHuman tar an Law
Applicablein ArmedConflicts, 24 May to 12 June1971, and 3 May to 3 June1972; Diplomatic Conference on the Reaffirmationand Developmentof InternationalHumanitarian Law Applicablein ArmedConflicts, 20 Februaryto 29 March1974, 3 Februaryto 18 April1975, 21 Aprilto 11 June1976 and 17 Marchto 10 June 1977.
Judgement,Prosecutor versus Rutaganda 44 CaseNo: ICTR-96-3-T
(iv)the dissident armed forces or otherorganized armed groups are able to implement AdditionalProtocol II.
RationePersonae
TheClass of Perpetrator
96.Under Common Article 3 of theGeneva Conventions, the perpetratormust belong to a "Party"to the conflict, whereas under Additional Protocol II40 the perpetrator must be a member of the"armed forces" of eitherthe Government or of thedissidents. There has been much discussionon the exact definition of "armed forces" and "Party", discussion, which in the opinionof the Chamber detracts from the overall protective purpose of these instruments. A too restrictivedefinition of these terms would likewise dilute the protection afforded by these instrumentsto the victims and potential victims of armedconflicts. Hence, the category of personscovered by theseterms should not be limitedto commanders and combatants but should beinterpreted intheir broadest sense.
97.Moreover, it iswell established from the jurisprudence ofInternational Tribunals that civilianscanbe held as accountable asmembers of thearmed forces or of a Partyto the conflict. Inthis regard, reference should be madeto the Akayesu Judgement, where it was held that:
"Itis, in fact, well-established, atleast since the Tokyo trials, that civilians maybe held responsibleforviolations ofinternational humanitarian law.Hirota, the former Foreign Ministerof Japan,was convicted at Tokyofor crimes committed during the rape of Nanking.Other post-World War II trialsunequivocally support the imposition of
40 SeeArticle 1(1) of Additional Protocol
Judgement,Prosecutor versus Rutaganda 45 CaseNo:ICTR-96-3-T ~
individualcriminal liability for war crimes on civilianswhere they have a linkor connectionwith a Partyto theconflict. The principle ofholding civilians liable for breachesofthe laws of war is, moreover, favored by a considerationofthe humanitarian objectand purpose of the Geneva Conventions andthe Additional Protocols, which is to protect’’4t war victims from atrocities.
98. Consequently,the dutiesand responsibilitiesof the GenevaConventions and the AdditionalProtocols will normally apply to individualsof all ranks belonging to thearmed forcesunder the military command of eitherof the belligerent parties, orto individuals whowere legitimatelymandated and expected, aspublic officials or agents or persons otherwise holding publicauthority orde facto representing theGovernment, tosupport or fulfilthe war efforts. It willbe a matterof evidence toestablish ifthe accused falls into the category ofpersons who can be heldindividually criminally responsible for serious violations of these international instruments,andin this case, of the provisions ofArticle 4 of the Statute.
TheClass of Victims
99.Paragraph 8 of theIndictment states that the victims referred to in thisIndictment were personstaking no activepart in the hostilities. This wording stems from the definition tobe foundin CommonArticle 3(1) of theGeneva Conventions,which affords protection to "persons takingno active part in the hostilities, including members of thearmed forces who have laid downtheir arms and those placed hors de combat", and is synonymous to Article 4 of Additional Protocolwhich refers to "all persons who do not take a directpart in the hostilities orwho have ceasedto take part in the hostilities".
41 AkayesuJudgement, para. 633
Judgement,Prosecutor versus Rutaganda 46 CaseNo: 1CTR-96-3-T ~
100.From a readingof theIndictment, itcan be adducedthat the victims were all allegedly civilians.There is no concise definition of"civilian" inthe Protocols. Assuch, a definitionhas evolvedthrough a processof elimination,whereby the civilian population 42 is madeup of personswho are not combatants orpersons placed hors de combat,in otherwords, who are not membersof thearmed forces 43.Pursuant to Article13(2) of theAdditional Protocol II, the civilianpopulation, aswell as individual civilians, shall not be the object of attack. However, if civilianstake a directpart in the hostilities, theythen lose their right to protection asciviliansper seand could fall within the class of combatant. To take a "direct"part in the hostilities means actsof war which by their nature or purpose are likely to cause actual harm to the personnel and equipment44. of theenemy armed forces
101.It would be beyondthe scope of thematter at handfor the Chamber to attempt to provide anexhaustive list of all categories ofpersons who are not considered civilians under the Geneva Conventionsand their Additional Protocols. Rather the Chamber considers that a civilianis anyonewho falls outside the category of "perpetrator"developed supra, "perpetrators" being individualsof all ranks belonging to the armed forces under the military command of either of thebelligerent parties, orto individuals whowere legitimately mandated and expected, aspublic officialsor agents or persons otherwise holding public authority orde factorepresenting the Government,tosupport or fulfil the war efforts. The class of civilians thus broadly defined, it willbe a matterof evidence ona case-by-casebasis to determine whether a victim has the status ofcivilian.
42 It shouldbe notedthat the civilian population comprises all persons who are civilians. (Article 50 (2)
AdditionalProtocol I1)
43 See ICRC Commentaryon the AdditionalProtocols of 8 June1977 to the GenevaConventions of 12 August 1949,commentary on ProtocolI, Article50.
44 lbid,Commentary on AdditionalProtocol II, Article13.
Judgement,Prosecutor versus Rutaganda 47 CaseNo: ICTR-96-3-T
RationeLoci
102.The protection afforded to individualsunder the Geneva Conventions andthe Additional Protocols,extends throughout theterritory ofthe State where the hostilities areoccurring, once theobjective material conditions forapplicability ofthe said instntments have been satisfied.
103.This was affirmed in theAkayesu Judgement ~s and by theICTY 46 (with regardin particularto Common Article 3), where it has been determined that the requirements of Common Article3 and Additional Protocol II apply in the whole territory where the conflict isoccurring andare not limited tothe "war front" or to the "narrow geographical context ofthe actual theater ofcombat operations".
The Nexusbetween the Crimeand the ArmedConflict
104.In additionto theoffence being committed in the context of anarmed conflict not of an internationalcharacter satisfying the material requirements of Common Article 3 and Additional ProtocolII, there must be a nexusbetween the offence and the armed conflict for Article 4 of the Statuteto apply.By this it should be understood that the offence must be closely related to the hostilities47. orcommitted inconjunction with the armed conflict
105.The Chambernotes the findingmade in the Kayishemaand RuzindanaJudgement, wherebythe term nexus should not be definedin abstracto 4s.Rather, the evidence adduced in
45 SeeAkayesu Judgement para. 635-636.
46 SeeICTY Tadic decision on theDefence Motion for Interlocutory Appeal on Jurisdictionof 2 October1995 para.69.
47 SeeAkayesu Judgement para. 643 and ibid, para. 70.
48 See Kayzshema’ and RuzmdanaJudgement para. 188.
Judgement,Prosecutor versus Rutaganda 48 CaseNo:ICTR-96-3-T ~
[ I I [ I I [ [ I I ¯ [I [ I I[ [ I I [ [ [I I I I I I II I I [I II[ I [ I II [ I [[ I II I I ¯I I i ¯[ I I II I I [I I i i[ I i I I i I I i Ii i I Ii I I II i i Ii IiI i I I ¯I I I I[ ¯ II I I [I [ I [i I I II ¯ i lI ¯ I [i [ I [i ¯ I i[ I I I I l i ¯ I [ ¯ I I I [ I I [ I I I I I I I I I I [ ¯ I ...... illlllll[llllll supportof the charges against the accused must satisfy the Chamber that such a nexusexists. Thus,the burden rests on theProsecutor to prove beyond a reasonable doubt that, on the basis ofthe facts, such a nexusexists between the crime committed and the armed conflict.
TheSpecific Violation
106.The crimecommitted must represent a seriousviolation of CommonArticle 3 and AdditionalProtocol II, as incorporated inArticle 4 of the Statute. A "serious violation" isone whichbreaches a rule protecting important values with grave consequences forthe victim. The fundamentalguarantees included inArticle 4 of the Statute represent elementary considerations of humanity.Violations thereof would, by theirvery nature, be deemed serious.
107.The Accused is chargedunder Counts 4, 6 and8 of theIndictment for violations of Article3 common to theGeneva Conventions, as incorporated by Article 4(a) (murder) of Statuteofthe Tribunal. Ifall the requirements ofapplicability ofArticle 4,as developed supra, aremet, the onus is on theProsecutor to then prove that the alleged acts of theAccused constitutedmurder. The specific elements of murderare stated in Section2.3 on Crimes against Humanityin theApplicable law.
Judgement,Prosecutor versus Rutaganda 49 CaseNo:ICTR-96-3-T ~
2.5 CumulativeCharges
108.In the indictment, theAccused, byhis alleged acts in relationto the events described in paragraphs10-19, is cumulativelycharged with genocide (count 1 ) andcrimes against humanity (extermination)(count2). Moreover, byhis alleged acts in relation tothe killings atJ~co le TechniqueOfficielle described inparagraph 14, his acts at the gravel pit in Nyanza described in paragraphs15 and 16, and for the alleged murder of Emmanuel Kayitare described in paragraph 18,Rutaganda is charged cumulatively with crimes against humanity (murder) (counts 3, 5 7) andviolations ofArticle 3 common to theGeneva Conventions (murder) (counts 4, 6 and
109.Therefore, the issue before the Chamber is whether, assuming that it issatisfied beyond a reasonabledoubt that a particularact alleged in theindictment and given several legal characterizationsunderdifferent counts has been established, itmay adopt only one of the legal characterizationsgivento such act or whetherit may find the Accused guilty on all the counts arisingfrom the said act.
110. TheChamber notes, first of all, that the principle ofcumulative charges was applied by
theNuremberg Tribunal, especially regarding war crimes and crimes against humanity.49
49.The indictment against the major German War Criminals presented to the International Military Tribunal stated that "the
prosecutionwill rely upon the facts pleaded under Count Three (violations of the laws and customs of war)as also constituting crimasagainst humanity(Count Four)". Several accused persons were convicted of bothwar crimes and crimes against humanity. Thejudgement of theInternational Military Tribunal delivered at Nurembergon 30 Septemberand 1 October1946 ruled that "[...]fromthe beginning of thewar in 1939war crimes were commit~d on a vastscale, which were also crimes against humanity."The commentary on Justice ease held the same view: "It is clearthat war crimes may also constitute crimes against humanity;the same offences may amount to bothtypes of crimes."The trials on thebasis of ControlCouncil Law No. 10 followedthe same approach. Pohl, Heinz Karl Franslau, Hans Loerner, and Erwin Tsehentscher were all found to have committedwar crimes and crimes against humanity. National cases, such as Quinnv. Robinson,the Eichmann case and the Barbiecase also support this finding. In theTadic case, the Trial Chamber II ofICTY, based on the above reasoning, ruled that "actswhich are enumerated elsewhere in theStatute may also entail additional culpability if they meet the requirements of persecution."Thus, the same acts, which meet the requirements of other crimes--grave breaches of GenevaConventions,
Judgement,Prosecutor versus Rutaganda 50 111.Regarding especially the concurrence of the various crimes covered under the Statute, the Chamber,inthe Akayesu Judgement, the first case brought before this Tribunal, considered the matterand held that:
"[...]itisacceptable toconvict the accused oftwo offences inrelation tothe same set of factsin the following circumstances: (1)where the offences have different elements; (2)where the previous creating the offences protect different interests; or(3) where it necessaryto record a conviction for both offences in orderfully to describewhat the accuseddid. However, the Chamber finds that it is not justifiable toconvict an accused oftwo offences in relationto thesame set of factswhere (a) one offence is a lesser includedoffence of theother, [...]or (b) where one offence charges accomplice liability andthe other offence charges liability as[...],,50.
112.Trial Chamber II of theTribunal, in itsKayishema and Ruzindana Judgement, endorsed theafore-mentioned testof concurrenceofcrimes and found that it is only acceptable:
"(1)where offences have differing elements, or (2) where the laws in question protect differing’’51 social interests.
113.Trial Chamber II ruledthat the cumulative charges in theKayishema and Ruzindana Judgementinparticular were legally improper and untenable. Itfound that all elements including themens rea element requisite to show genocide, "extermination" and"murder" inthe particular casewere the same,and theevidence relied upon to provethe crimeswere the same.
violationof thelaws or customsof warand genocide, may also constitute the crimes against humanity for persecution.
s0 AkayesuJudgement, para.468.
51 Kayishemaand Ruzindana Judgement, para. 627.
Judgement,Prosecutor versus Rutaganda 51 CaseNo:ICTR-96-3-T ~
Furthermore,inthe opinion ofTrial Chamber II, the protected social interests were also the same. Therefore,2 it held that the Prosecutor should have charged the Accused in thealternative:
114.Judge Tafazzal H.Khan, one of the Judges sitting in Trial Chamber II to consider the said case,dissented on theissue of cumulativecharges. Relying on consistentjurisprudence he pointedout that the Chamber should have placed less emphasis on theoverlapping elements of thecumulative crimes.
"Whatmust be punished is culpableconduct; this principle applies to situationswhere theconduct offends two or more crimes, whether ornot the factual situation also satisfies the’’53distinct elements ofthe two or more crimes, as proven.
115.In hisdissenting opinion, the Judge goes on to emphasizedthat the full assessment of chargesand the pronouncement ofguilty verdicts are important inorder to reflect the totality of theaccused’s culpable conduct.
"[...]wherethe culpable conduct was part of a widespreadand systematic attack specificallyagainst civilians, torecord a conviction forgenocide alone does not reflect thetotality ofthe accused’s culpable conduct. Similarly, ifthe Majority had chosen to convictfor extermination alone instead of genocide,the verdict would still fail to adequately’’54 capture the totality ofthe accused’s conduct.
52 Kayishemaand Ruzindana Judgement, para. 645,646 and 650.
53 Kayishemaand Ruzindana Judgement, Separate and Dissenting Opinion of JudgeTafazzal Hossain Khan
Regardingthe Verdicts Under the Charges of CrimesAgainst Humanity/Murder andCrimes Against Humanity/Extermination,para.13.
54 Ibid.para.33.
Judgement,Prosecutor versus Rutaganda 52 CaseNo: ICTR-96-3-T ~ I I I I I I I I I I I ,I i iII I iIII iii I IIi IiIi IIIi III ~11I II¯ Iii I i...... ] [ I, ...... I I II I I ¯ I I I I I ¯ I I I I II I I II I I II I ¯ I I I I I I I I I I ¯I I I lI i i i¯ I ¯ I II I ¯ II I ¯ I] I I I I I I I I II I I II I I II I I I I I I I I I I I I I I I I I I I I I I I ¯ I I I I I I I I I I I 116.This Chamber fully concurs with the dissenting opinion thus entered. It notes that this position,which endorses the principle of cumulativecharges, also finds support in various decisionsrendered by the ICTY. In the case of theProsecutor v. Zoran Kupreskic and others, theTrial Chamber oflCTY in itsdecision on Defencechallenges to form of theindictment held that:
"TheProsecutor maybe justified inbringing cumulative charges when the articles ofthe Statutereferred toare designed toprotect different values and when each article requires proof’’55of a legalelement not required bythe others.
117.Furthermore, the Chamber holds that offences covered under the Statute - genocide, crimesagainst humanity and violations of Article3 commonto GenevaConventions and of AdditionalProtocol II- havedisparate ingredients and,especially, thattheirpunishment isaimed atprotecting discrete interests. Asa result,multiple offenses may be charged on thebasis of the sameacts, in order to capture the full extent of thecrimes committed by an accused.
118.Finally, the Chamber notes that in CivilLaw systems, including that of Rwanda,there existsa so calleddoctrine ofconcours iddal d’infractions which allows multiple charges for the sameact under certain circumstances. Rwandan law allows multiple charges in thefollowing circumstances:
"PenalCode of Rwanda:Chapter VI - Concurrentoffences:
Article92: Where a personhas committed several offences prior to a convictionon any suchcharges, such offences shall be concurrent.
55 TheProsecutor v. Zoran Kupreskic and others, Decision on DefenceChallenges to Form of theIndictment, IT-95-16-PT,15 May1998.
Judgement,Prosecutor versus Rutaganda 53 CaseNo: ICTR-96-3-T
Article93: Notional plurality ofoffences occurs:
1. Wherea singleconduct may be characterized as constituting several offences;
Wherea conductincludes acts which, though constituting separate offences, are . interrelatedasderiving from the same criminal intent or as constitutinglesser includedoffences of oneanother.
Inthe former case, only the sentence prescribed forthe most serious offence shall be passedwhile, in thelatter case, only the sentence provided for the most severelypunished offence shall be passed,the maximumof whichmay be exceeded56 by half".
119.Consequently, in light of theforegoing, the Chamber maintains that it is justifiedto convictan accusedof twoor moreoffences for the same act under certain circumstances and reiteratesthe above findings made in theAkayesu Judgement.
56 TheEnglish text quoted is an unofficialtranslation of the following "Code p6nal du Rwanda: ChapitreVI - Du concoursd’infractions" :
Article92 - IIy a concoursd’infraetions lorsque plusieurs infractions ant6t6 commises par le m~meauteur sans qu’unecondamnation soit intervenue entre ces infractions.
Article93- IIy a concoursid6al :
1. Lorsquele faitunique au point de vuemat6riel est susceptible deplusieurs qualifications ;
2. Lorsquel’action comprand des faits qui, constituant desinfractions distinctes, sont unis entre eux commeproc6dant d’une intention d~lictueuse unique ou commet~tant les uns des circonstances aggravantesdesautres.
Serontseules pronoc~es dans le premier cas les peines d6termin6es parla qualification laplus s6v/~re, dansle second cas les peines pr6vues pour la r6pressiondel’infraction la plus grave, mais dont le maximumpourra ~tre alors 61ev6 de moiti6".
Judgement,Prosecutor versus Rutaganda 54 CaseNo: ICTR-96-3-T
3. THE DEFENCE CASE
120.The Accused pleaded not guilty to all counts of the Indictment at his initial appearance on 30 May1996. The Defence case consisted of twomain arguments. The first of thesewas a generaldefence. The second was a defenceof alibi.
3.1 The Argumentsof GeneralDefenee
121.The Defence developed several main lines of argument.The Defence argued that the politicalactivity of theAccused was minimal. The Accused testified and, his Counsel argued, thathis involvement in the Interahamwe za MRND was limited to participationin meetings of thisorganization in its earliest stage, which it was argued was as a "thinktank" or "group of reflection’’57.The Defence also argued that the meaning of Interahamwe changed significantly between1991 and 1994. The Defence argued that the Accused was a memberof theInterahamwe za MRNDat itsembryonic stage, and that the term Interahamwe later includedpeople whowere notall membersof theInterahamwe za MRND.
122.The Defence Counsel questioned the credibility and reliability of several Prosecution witnesses.Counsel for the Defence submitted that the case file was "contaminated ’’Ssby virtue of testimonygiven concerning the "Hindi Mandal" building in theAmgar garage complex. The Defencefurther submitted that certain evidence gathered by CaptainLuc Lemaire was illegally collectedand thus could not be tendered as evidenceby the Prosecutor. TheDefence argued that
57 SeeTestimony ofGeorges Rutaganda, transcript of 08, 09, 22 April1999.
58 SeeClosing Argument of theDefence, transcript of 17 June1999.
Judgement,Prosecutor versus Rutaganda 55 CaseNo:ICTR-96-3-T ~ theUnited Nations Assistance Mission for Rwanda ("UNAMIR") contingent, of which Captain Lemaire59. was a part,had been prohibited from gathering intelligence
123.The Defence called fourteen witnesses, including the Accused, who testified at length aboutthe role of theAccused as secondVice-President of the lnterahamwe. TheChamber notes thata numberof Defencewitnesses testified that the Accused took action to helpothers, includingTutsi refugees. The Defence further argued that, contrary tothe allegations that the Accuseddetained Tutsi civilians inthe "Hindi Mandar’ building at the Amgar garage, that Tutsis actuallysought refuge there and that the Accused permitted this and that he providedthem with basicfoodstuffs and medicine.
124.The Accused testified before the Chamber that prior to the advent of multiparty politics inRwanda in 1991,he was a businessmanwith no interest inpolitical participation. Afterbeing releasedfrom a presidentiallyassigned post in June 1991, he stated, he workedfor himself, operatingan importand distribution business registered as "RutagandaSARL." The Accused testifiedthat he focusedon hisbusiness to theexclusion of anyother civic, political, or administrativeactivities.
125.The Accused stated that he joinedthe MRND party in Septemberor October1991, in an atmosphereofincreasing political tension inorder to benefit from its protection andto safeguard hisbusiness interests. This tension was as a resultof increasing competition between President Habyarimana’srulingMRNDparty and new opposition parties as theyvied for members. It was in thiscontext, the Accused testified, that he choseto join the MRND party because of the specificprotectionsitafforded. Hefurther submitted that although his father had been a member of theMDR, the strong regional affiliations which the MDR was reputed to havedid not seem tohim to be beneficial inlight of the political climate in Kigaliin 1991. It was at his father’s
59 1bid
Judgement,Prosecutor versus Rutaganda 56 CaseNo:ICTR-96-3-T ~ urging,he stated, that he joined the MRND party in 1991.The Accused was, he claimed,simply a memberof theMRND party - withno timefor, or interestin, wielding political influence withinthe party or amongthe general population.
126.Nonetheless, in November 1991,the Accused was invited to attendan initialmeeting of intellectualswhosought to find ways to recruitfor and promote the MRND party. The Accused toldthe Chamber that he wasalso to become an electedrepresentative in the national committee ofthe MRND in April 1993, as a representativeof Gitarama Prdfecture. 6° As such,he wasone amongfifty-five representatives, fivefrom each Prdfecture, whomet at NationalAssemblies and votedon party decisions and actions.
127.A selectgroup of persons,whom the Accused referred to as intellectuals,convened in orderto devisestrategies for attracting new members and for furthering the MRND party’s objectivesin thenew, multiparty political environment. This group was knownas the Interahamweza MRND. The Accused indicated to thecourt that this was an embryonic"think tank"for the MRND. The Accused testified that he did not know when this initial "think tank" wasorganized, butthat he was nonetheless involved inthe initial impetus behind the creation of thiscommittee. Heparticipated inmeetings ofthis group, he testified, inorder to contribute his ownideas to the party. He stated that although more people joined this core group, they were allpersonally invited rather than publicly recruited. He stated that he attended one of their meetingsfor the first time in November1991, at the invitation ofPheneas Ruhumuriza, whowas laterto becomefirst Vice-President of the lnterahamwe6~ za MRND.
128.According to thetestimony given by theAccused, lnterahamwe is a Kinyarwandaword thatwas used frequently bypersons in political parties or otherassociations, which indicated a
60 SeeTestimony . of GeorgesRutaganda, transcript of 22 Aprd1999. 61 SeeTestimony of GeorgesRutaganda, transcript of 08 April1999.
Judgement,Prosecutor versus Rutaganda 57 CaseNo:ICTR-96-3-T ~
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,.,,,,,..,,,.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,.,,.,,,,,,,,,,,.,,...,,,,,,,,,,,,,,,,,,,,,,.,,,,,.,.,,,,,,,,,,,,,,,,,,,,,,...., closerelationship between people who didsomething together. This name was drawn, he explained,from a popularand patriotic song from the 1960s, which was associated with the MDR.62 Witness DNN gave a similardescription of the source of theterm Interahamwe.
129.The Accused testified that the lnterahamweza MRND quickly grew from its embryonic formand gainedboth senior members and youngrecruits. The five members who were to composethe National Committee of thelnterahamwe za MRNDwere selected by a larger assembly.The Accused was appointed as secondvice president even though he declinedto be a candidateinelections. Hetestified, however, that the five official positions comprising the NationalCommittee, as thoseof ensuingcommittee heads and organizers were really only formalities,withno attached responsibility orauthority.
130.The Accused stated that although the Committee had a clearstructure and its members hadtitles which suggested a hierarchy ofresponsibility andauthority, hisposition assecond vice- presidentwas a mereformality, and he didnot act in a capacitycommensurate with the responsibilitysucha titlemight suggest. The Accused testified that there was no real leadership structure,budget, or autonomy - but that the titles, communiques, andmeetings simply reflected a hopefor future actions of theInterahamwe zaMRND. The Accused also testified that as second vicepresident and member of thisNational Committee, he actedas a mediatorand liaison betweenthe National Committee of the MRNDparty and theyoung members who joinedthe party,quite possibly as a responseto theorganization andinitiative of the Interahamwe za MRND.
131.According to the testimony of the Accused, the size and character of the Interahamwe za MRNDchanged significantly between its inception and the events which followed the death of PresidentHabyarimana in April1994. During his testimony,the Accuseddescribed a
62 SeeTestimony of WitnessDNN, transcript of 16 February1999.
Judgement,Prosecutor versus Rutaganda 5 8 CaseNo: ICTR-96-3-T ~ ’ I I I [ I I I ’ I I II I I I[ I [ I[ I I I I I I [ I I I I [I I I I I [ [I I [ I[ I I I[ I I I [ [ I [ I II I I I...... [ I I I I I [ I I ~ I I ~ I I I I I I I, II l [ ~ I I I [ [ I [ I I ’ I [ I I I I [ [ I I I I I I [ I I [ ’ [ [ IIIIll III l[ Ill III l[ Ill III II ~l III III iiI 111 ~l i l[ i l[II[ III l, ...... transformationin the popular usage and understanding of the word Interahamwe, as well as an increasein thenumber of peoplewho joined the MRND, and in particularthe Interahamwe za MRND.The Accused testified that the lnterahamwe za MRND was initially composed of a small numberof menwho were mostly between the ages of thirtyand forty. The Accused later referred to thelnterahamwe as "the youth", and also stated that increasing numbers of Rwandanyouth weredrawn to the party and were subsequently organized. The Accused testified that by 6 April 1994the lnterahamwe had become an entirelydifferent organization than the one in whichhe wasoriginally involved. The Accused stated that the organization hadalready changed by mid- 1992,and continued its transformation through 1994.
132.The Accused testified that the evolution ofthe Interahamwe as a youthwing of theparty wasan organicdevelopment, which he didnot foresee when he joinedthis committee at its inception.Responding to questionsconcerning President Habyarimana’s opinion of the Interahamwe,the Accused testified that in May1992 President Habyarimana expressed his approvaland encouraged "the youth" to jointhe organization.
133.The Accused stated to thecourt that the lnterahamwe was popularly understood to encompassmany more people than the lnterahamweza MRND.The wordInterahamwe, and evenInterahamweza MRND, gained a pejorative,or negative meaning in popularusage and was usedto describe a large and loosely organized militia which is said to have fought against the
RPF63, as well64. as toconnote certain persons who had committed acts of banditry and violence Whilestating that popular understanding of the word lnterahamwe had changed, the Accused addedthat the way in whichthis term was used after 6 April1994 had little to do withthe MRND,and that he hadlittle knowledge of thepersons perpetrating such acts, much less any political,social, or ideological connection with them.
63 SeeTestimony of GeorgesRutaganda, transcript of 23 April1999.
64 SeeTestimony of GeorgesRutaganda, transcript of 22 April1999
Judgement,Prosecutor versus Rutaganda 59 134.Testifying about roadblocks that Interahamwe members were alleged to havemanned, andwhere the Accused was alleged to havebeen, the Accused stated that roadblocks were initiallyset up and manned by civilians, largely through efforts of thecivil defence, which was a multi-ethniccorps of citizens rallying together against the Rwandan Patriotic Front (the "RPF") army.Some confusion may have arisen, he suggested, because some people wore clothing falsely saidto be a uniformof thelnterahamwe. Hefurther testified that the Interahamwe didnot create ormonitor roadblocks, andwas not officially orunofficially involved atthe roadblock sites, or incriminal acts allegedly committed there and therefrom.
135.Testifying about special clothing worn by lnterahamweand allegedInterahamwe members,the Accused submitted that there were both official and unofficial clothing and accessoryitems which were worn and promoted by theMRND. He alsostated that there was no officialuniform as such.He furtherstated that impostors wore clothing which had been associatedwith the MRND or Interahamwewhen committing "evil" or criminalacts. This was thesubject ofa communiqu~ issued by theNational Committee of thelnterahamwe za MRND, addressedto the InternationalCommunity and signed by the Accused,which discouraged membersfrom wearing their "uniforms." According to the Accused,this communiqu6 was intendedto dissociatethe Interahamwe from Rwandan youths who were not members of, but whowere publicly perceived as beingmembers of andacting under the auspices of, the lnterahamweza MRND and who committed criminal or violentacts.
136.Witness DNN testified, to thecontrary, that lnterahamwe za MRND members did have a uniform,made out of kitengefabric in yellow,blue and black colours. However, some wore clothesof the same colour as the party flag, that is black, yellow and green. This uniform was neededto distinguishthe members of lnterahamwefrom members of theyouth wings of other political65 parties.
65 SeeTestimony of WitnessDNN, 16 February1999.
Judgement,Prosecutor versus Rutaganda 60 137.Finally, the Accused testified that although hedid not officially resign after 6 April1994, hisposition in theInterahamwe za MRND was effectively rendered irrelevant, in what he describedas "chaos", both within the organization andthroughout Rwanda.
3.2Defence of Alibi
138.The Defence case included submission of a defenceof alibi.In histestimony, the Accusedstated that he was in locations other than those alleged to becrime sites, or involved in activitiesother than those alleged during the times at whichthe crimes enumerated in the indictmentwere allegedly committed.
139.In her closing argument, Defence Counsel stated that a noticeof alibi.The Chamber notes thatno record of a noticeof alibiwas filed at any time, and that there is no recordof such a noticein thejudicial archives or withinthe judicial record. Notwithstanding this,the Trial Chamberfinds it appropriateandnecessary toexamine the defence of alibi,pursuant to Rule 67(B)of the Rules which states that "Failure of thedefence to provide such notice under this Rule’’66shall not limit the right of the Accused to rely on the above defences.
140.The Accused,Witness DF, WitnessDD, and WitnessDDD testifiedregarding the whereaboutsof the Accused between the evening of 6 April1994 to 9 April1994.
141.The Defence submitted that in the first days following the crash of theaeroplane carrying PresidentHabyarimana, theAccused was busy seeking protection for his family, trying to obtain news,and searching for food and other goods. The Accused testified that on thenight of 6 April 1994,he and his friends were taken out of a carat a locationclose to the Kimihurura roundabout.
66 SeeRules of Procedureand Evidence, Rule 67.
Judgement,Prosecutor versus Rutaganda 61 CaseNo: ICTR-96-3-T ~ I I ~ I I I [ I I I I iII...... II [II III 11 III III I II...... II I I I [ I I I [ I I I I [ I I [ I [ I I [ ’ I I I I I I I ~ I I I I, II I I I I I I I [ I I I I [ I I [ I I [ ’ I I I I I I I l I I I I I [ I I I I I I [ I I [ I I [ I I [ I I [ I I I I I I I [ ’ IIll II ~11 III II[ II III III III III II III III II Ill III III Theywere first told to sit down and later they were told to lie down on theroad. They were finallyreleased, the Accused testified, at3:00 a.m. on 7 April1994. They were then stopped at anotherroadblock manned by gendarmesin Kicukiro. At thattime, they were asked to getout ofthe car, to show their identity cards and to sit on a hillby the side of the road before being allowedto continueon theirway. The Accused testified that he thenpassed "Sonatubes," the airport,Bugesera and the town before reaching his home. The Accused stated that he remained at67home on 7 April1994.
142.Witness DF statedthat he hada drinkwith the Accused on theevening of 6 April1994, andthat DF left the Accused at 9:00p.m. that night. 68
143.Witness DD testifiedthathehad a drinkwith the Accused on theevening of 6 April1994. WitnessDD further testified that he andthe Accused separated on the night of 6 April1994. WitnessDD statedthat he telephonedthe home of theAccused on themorning of 7 April1994 andthe Accused’s wife told DD thatthe Accused had not yet returned. Witness DD statedthat at about1:00 p.m. he contacted the Accused. During this conversation, theAccused told DD that he hadencountered problems at Kimihururaon the night of 6 April1994. Witness DD testified thatthe Accused told him that members of the Presidential Guard had stopped him there, and that he69 hadspent the night sleeping onthe ground.
144.Witness DDD testified that she saw the Accused at 3:00am on 7 April1994. At this time,the Accused told DDD that many roadblocks had been erected. Witness DDD testified that theAccused told her that he was stopped at a roadblockat Kimihurura roundabout at9:00 p.m.
67 SeeTestimony of GeorgesRutaganda, transcripts of 21 and22 April1999.
68SeeTestimony of WitnessDF, transcript of l 7 March1999. 69 SeeTestimony of WitnessDD, transcript of 16 March1999.
Judgement,Prosecutor versus Rutaganda 62 CaseNo:ICTR-96-3-T ~ on6 April1994 and left that roadblock after 12:00 a.m. on 7 April1994. Witness DDD testified that7° she and the Accused stayed at home together on 7 April1994.
145.The Accused stated that on 8 April1994, he walkedtowards the city from Kicukiro neighbourhoodwith a friendin order to findout whether his family should remain at homeor leave.The Accused testified that he andhis friend were shot at by theRPF as theyneared a gendarmeriesquad. After this, he decidedto move his family. He statedthat he tookthe road towardsRebero and left his family at theRebero hotel. The Accused testified that he returned backin the evening and went to the parish mission by car. At the mission, hetestified, hefound a numberof peoplewhom he statedto the Chamberwere seeking refuge from the RPF.The Accusedproceeded, he testified, tovisit the Conseiller to inquire where these refugees would spendthe night. He testified that at hissuggestion, some of thesepeople followed him to his homewhere they spent the night.
146.The Accused testified that he wentto theRebero hotel on themorning of 9 April1994, passingthrough roadblocks in front of the ETO school and around the air station. He testified thathe returnedwith his family along the same route by whichhe had come. Arriving home, the Accusedtestified that he called his father, who informed him that his friend Jean Sebagenzi and hisfamily had been killed. The Accused testified that he then went to see the Conseiller toget permissionto move within the sector, in orderto followhis father’s wishes and bury the Sebagenzifamily. The Accused testified that he wasdenied this permission by the Conseiller.
147.Witness DDD statedthat she andthe Accused went to the Reberohotel, located on Reberohill behind Kicukiro Sector on 8 April1994. DDD testified that she next saw the Accused on9 April1994, at which time they left the Rebero hotel and returned to theirhouse. Witness DDDstated that at that time a curfewhad been imposed, and that the Accused went to theSector
70 SeeTestimony of WitnessDDD, transcript of 15 February1999.
Judgement.Prosecutor versus Rutaganda 63 CaseNo:ICTR-96-3-T ~ officeseeking special permission to move freely. DDD further testified that the Accused was deniedsuch permission atthe Sector office.
148.The Accused, Witness DD, Witness DF, and Witness DDD testifiedas to the whereabouts ofthe Accused on 10 April1994.
149.The Accused testified that he returnedto seethe Conseiller on Sunday 10 April1994. At thistime he was granteda permitallowing free movement and exempting him from the curfewwhich was in place.The Accused testified that he reachedthe home of a friendin Muyima,where caskets containing the bodies of theSebagenzi family were being loaded into a pickuptruck. The Accused stated to the Chamber that he continuedalong with these people as theymade their way to Nyiramboto burythese people. En route,he testified,they passed throughmany roadblocks - where the caskets were even opened to verify that they contained only deadbodies.
150.Witness DDD testified that the Accused received permission to move on 10 April1994. WitnessDDD learned of thiswhen the Accused returned home in order to takea vehicleto go to theabovementioned burial. DDD testified that the Accused returned at 7:00p.m. on the eveningof 10April 1994. Upon his return he explainedtoDDD that it hadtaken a longtime becausethey had been stopped at manyroadblocks, they had been searched, and that the caskets wereeven searched at theAgakingiro roadblock, where also that there were six people to bury.
151.Witness DF statedthat he sawthe Accused at thisburial, which DF thoughttook place on 10April 1994. Witness DF further testified that people manning the roadblock atAgakingiro wantedto open the caskets being transported forburial, and that they were also stopped close to a mosqueat Biryogoand at a roadblockclose to St Andrewsschool in Nyirambo.
Judgement,Prosecutor versus Rutaganda 64 CaseNo: ICTR-96-3-T
¯,, ¯,, ,, ¯, ¯ ,,, ,,,., ¯,,., ¯ ,,, ,,, ,,,, ¯ ,, ¯ ,, ¯ ,, .,,., ,,,,,. ,, ,,, ,,, ,, ,,, ,,, ,, ,,, ,,, ,,, ,,, ,,, ,,, ,,, ,,, ,,, ,, ,,, ,, ,,, ,,, ,, ,,, ,, ,., ,, ,,, ,,, ,, ,,, ,¯, ,¯ ¯,, ¯, ¯ ,, ¯ .,,,,, ,, ,,, ,,, ,, ¯,¯ ,,, ,, ,,, ,,¯ ,,, ,¯ ¯,, ...... ,H 152.Witness DD provideda detailed description of the day of theburial of 7 peoplein 5 coffins.Hetestified that they were detained atthe Agakingiro roadblock, 10 metres from Amgar, whilethe coffins that he andthe Accused were transporting were searched. Witness DD could notremember if thedate was April 10; however, he thoughtthat it tookplace on a Sunday afternoon.
153.The Accused,Witness DDD, Witness DF, andWitness DS gavetestimony concerning thewhereabouts of the Accused between 11 and14 April1994.
154.The Accused stated that at 7:30a.m. on 11 April1994, he leftKicnkiro along with thirteenother people in a "505"sedan. They stopped at the house of an acquaintance where, the Accusedtestified, hewished to leave his family. Since this was not possible, they returned tohis house.The Accused stated that they drove to MasangoCommune instead, and that they arrived inKarambi in Masangoat around 5:30 p.m. The Accused testified that he remainedin hishouse in Karambion thenight of 11 April1994. He statedthat he hadnever been into the ETO compound,and was not near the premises on 11April 1994. The Accused testified that early in themorning of 12 April1994, he beganthinking about how to finishconstruction ofhis house inKarambi. Hetestified that he drew up a contractwith a traderand a masonfor the construction work.He supervisedthe commencement of this work on 13 April1994. The Accused stated that hereturned toKigali on the evening of14 April 1994. He further testified that he could not reach Kicukirobecause of the danger involved¯ Instead, he stated,he remainedat theAmgar garage complex.The Accused testified that he found people hiding there. He stated to theChamber that he tookpity on these people and fed and cared for them. He also began to think of a strategyto evacuatethem.
155.Witness DDD stated that she arrived in Kiyovuwith the Accused at 9:00 a.m. on 11 April 1994and stayed with a friendwho was living there until about midday on thatsame day. DDD testifiedthat they did not receive any special treatment atthe roadblocks. Eachof the adults had
Judgement,Prosecutor versus Rutaganda 65 CaseNo: ICTR-96-3-T ~
toshow their identity card at the roadblocks. Witness DDD stated that the officials manning the roadblocksdidnot have a specialreaction toany of the occupants ofthe vehicle she traveled in. Theycrossed Nyabarongo and arrived in Masangoat about6:00 p.m. Witness DDD testified that theaccused remained there for three days, departing for Kigali on 14April 1994. Witness DDD testifiedthat over the course of these three days, the Accused did not participate inany meetings.
156.Witness DF testifiedthat the Accused left after the burial on 10 April1994, and came backafter two days. Witness DF stated that he sawthe Accused at theAmgar garage. DF further statedthat all of thepeople at the Amgar garage were there willingly, and had not been taken thereby force.
157.The Accused, Witness DDD, Witness DEE, and Witness DS gavetestimony concerning thewhereabouts of the Accused from 15-18 April 1994.
158.The Accused testified that he arrivedat the Amgarcomplex on 14 April1994 and remainedthere on 15 April1994. He alsotried to collectmoney before returning to Masango Commune,where he toldthe Chamber he remainedduring the nightof 16 April1994. The Accusedstated that he returned to Kigaliearly in the morning on 17 April1994. The Defence Counselsubmitted that the Accused organized the evacuation of vulnerable persons from the Amgargarage complex. The Chamber notes that the Accused did not specify a dateon which thesaid evacuation occurred. The Accused stated that he methis mother and sister at the Red Crossin Kiyovu.He tookthem to theAmgar complex, he testified,and later a convoywas organizedto move them. This was done with great difficulty. TheAccused testified that they weresent back during their first attempt. The Accused testified that he remained inKigali from 17April 1994 until 29 April 1994.
159.Witness DEE testified that on 12 April1994, she went to CHKhospital in Kigali.DEE statedthat she then spent two days there and on the third she went to the Amgar complex. DEE
Judgement,Prosecutor versus Rutaganda 66 Case No: ICTR-96-3-T ~.~’-~J
statedthat she spent two days there, and that she saw the Accused there on bothdays. Witness DEEtestified that when she saw the Accused there, he waswearing civilian clothing. DEE furthertestified that she never saw him enter the house carrying a weapon. Witness DEE testified thatshe spent two days at theAmgar complex and that on thethird day the Accused organized thedeparture for their respective prefectures.
160.Witness DEE testified that she, the Accused, and four other people, departed in a vehicle whichthe Accused drove. Witness DEE testified that they were stopped at roadblocks.On 9 February1999, DEE stated to theChamber that at thefirst roadblock everyone in thecar, includingthe Accused, was asked to produce their identity cards. However, on10 February1999, duringher second day of testimony,shestated that they were not even asked for their identity cards71. ThisWitness testified that there was no special recognition orrelationship between the Accusedand the roadblock controller, andthat this was evident because the Accused was asked toproduce his identity card.
161.At a secondroadblock which the witness stated was near the petrol station at Nyabugogo, theAccused was asked again to show his identity card. The people manning the roadblock also demandedthe identity card of WitnessDEE. Upon seeing it, these people told the witness that theyshould kill her. At this point, Witness DEE testified, theAccused begged them not to do so andgave them money. The Witness testified that the people at theroadblock did not know the Accused,which surprised her. DEE stated that she found this surprising because she thought that the72 Accused was well known throughout the country as he wasan officialof theMRND party.
162.At a thirdroadblock, which was not far from the second, and was situated along the road, in thedirection of theroad to Gitarama,there were many people who had been stopped. DEE testifiedthat on the evening before this trip, the RTLM had broadcast that the vehicle in which
71 See Testimonyof WitnessDEE, transcripts of 9 & 10 February1999.
72 See Testimonyof WitnessDEE, transcripts of 9 & 10 February1999.
Judgement,Prosecutor versus Rutaganda 67 Case No: ICTR-96-3-T ~K~
theywere traveling was being sought because the vehicle was said to havebeen used to find Tutsiand hide them. The witness testified, however, that the owner alleged by theRTLM was notthe Accused, but was a personwho was at theAmgar garage. This car was identified at the roadblock,but its passengers were not required to producetheir identity cards. They turned aroundand went straight back to theAmgar complex. Witness DEE testified that the Accused organizedanother trip the next day. They traveled in a differentcar and reached Masango that night,17 April1994. They stayed in Masangoat the house of theAccused’s father.
163.Witness DDD statedthat the Accusedreturned to Masangoon 16 April1994. DDD testifiedthat the Accused left for Kigali again on theevening of 17 April1994. Witness DDD furthertestified that the Accused did not do anything special when he was at Masango,and that allhe did was bring back food.
164.The Accused testified that he remainedin Kigaliwithout leaving between 17April 1994 and29 April1994. He testified that he was very busy selling out his stocks of beerduring this time.The Accused testified that he was approached by the Red Cross during the week of 17 to 24 April1994. The Accused testified that the Red Cross asked him to drawup a communiqu6 appealingto MRNDmembers, and in particularto membersof theInterahamwe za MRND, if theywere involved inkilling, tostop, and to facilitate thetransport ofthe wounded. The Accused statedthat he left Kigali on 29 April 1994 and went to deposit his money at a bankin Gitarama. Hethen went to Masango to visithis family and stayed the night there. The Accused stated that he returnedto Amgaron thefollowing day and stayed there for about a week.On 8 May1994, theAccused returned to Masango.He statedthat he triedonce again to depositmoney in Gitaramabefore leaving. This did not work, so he askedhis wife to depositthis money. He testified,without providing a date, that he went immediately back to Kigaliand tried to shut downhis business. The Accused testified that he couldnot state that he remainedat Amgar permanentlyduring the month of May1994. Rather, he testified,he moved around a greatdeal andtried to attend to many matters.
Judgement,Prosecutor versus Rutaganda 68 CaseNo: ICTR-96-3-T
165.Witness DDD stated that the Accused went to Kigalifrom Masango on the eveningof 17April 1994 and did not return for a periodof twoto three weeks.
166.Witness DEE testified that she saw the Accused in Butareonce but that they did not have anyinteraction. DEEstated that this was either at the end of April or the beginning ofMay 1994. DEEtestified that Rutaganda did not stay in Butare for the month or sothat followed. Witness DEEbelieved that the Accused was in Masangostaying either with his parents or at hishome. However,DEE never actually saw the Accused in Masango.
167.The Accused,Witness DDD, Witness DS, WitnessDD, WitnessDF, and WitnessDEE gavetestimony concerning the whereabouts of the Accused from the end of May1994 to the beginningof July 1994.
168.Defence Counsel submitted that the Accused left Kigali on 25 May1994 and that he did notreturn there again. The Accused stated that he leftthe Amgar complex in Kigalion 27 May 1994.The Defence further stated that the Accused reached Cyangugu on 31 May1994. The Accusedtestified that one week later, around 10 June1994, he leftRwanda. He further testified thathe returnedto Rwandatwice to seehis family. He stated that he didnot return to Rwanda afterthe end of June 1994.
169.Witness DDD testified that the Accused arrived at Masangoon theevening of 27 May 1994.According to hertestimony, DDD and the Accused departed for Gitarama together on 28 May1994. DDD statedthat they then went to Ngange,in KivumuCommune before returning to Masango.According to the testimonyof DDD theythen departed for Cyanguguon the followingday, 29 May1994. They passed through roadblocks. At each one they had to present identitycards. DDD testified that the people manning the roadblocks did not recognize the Accused.DDD testifiedthat they reached Cyangugu on the nightof 31 May 1994.DDD
Judgement,Prosecutor versus Rutaganda 69 CaseNo: 1CTR-96-3-T
testifiedthat they stayed there together for a month,before leaving on 1 July1994, and that the Accuseddid not return to Kigali.
170.Witness DS testifiedthat he andthe Accused left Kigali on 27 May1994 and that they wentto Gitarama.
171.Witness DD testifiedto havingleft the Amgar complex in companyof theAccused on 27 May1994. They experienced difficulties crossing roadblocks, and had to paypeople who weremanning the roadblocks¯ Witness DD testifiedthat their trip lasted three days, and that this wasdue to the difficulties theyencountered trying to cross the roadblocks. DDstated that he saw theAccused often when the Accused came to visithis family in Cyangugu.
172.Witness DF statedthat DF andthe Accused left the Amgar complex on thesame day, on 27 May1994. DF testifiedthat the Accused was at firstnot allowed to passthrough the Gikongororoadblock, and that if he hadbeen able to do so theywould not have spent so many daysthere. DF statedthat they reached Cyangugu on 31 May1994. Witness DF statedthat DF leftRwanda on 17 July.DF thought that the Accused departed two weeks earlier. DF testified thatwhen the Accused reached Cyangugu, the Accused did not go to Kigalior Gikongoro.
173.Witness DEE stated that around 17 to 19 June1994, she left Gikongoro for Cyangugu withthe Accused and others. At a roadblockthe Accused’s vehicle was searched. DEE testified
A thatthe Accused’s attitude was not that of someone in control when they were at theroadblocks. DEEtestified that other people were supervising andcontrolling theroadblocks. DEEtestified thaton thefollowing day the Accused suggested that he shouldtake them to Bukavu, Zaire. They went73 to Zaire at some point not later than 26 June 1994.
73 SeeTestimony of lVitnessDEE, transcripts of 09 & 10 February1999.
dudgement,Prosecutor versus Rutaganda 70 CaseNo: ICTR-96-3-T
174. TheChamber considers the defence of alibi,after having reviewed the Prosecutor’s case inthe factual findings onthe relevant paragraphs ofthe Indictment. ¯ 74
74 SeeChapter 4 of thisJudgement.
Judgement,Prosecutor versus Rutaganda 71 Case No: ICTR-96-3-T
4. FACTUAL FINDINGS
4.1 Paragraph10 of theIndictment
175. Paragraph10of theindictment reads as follows:
"Onor aboutApril 6, 1994,Georges Rutaganda distributed guns and other weapons to Interahamwemembers in Nyarugengecommune, Kigali."
Eventsalleged
176.Witness J, a Tutsiman who lived in theCyahafi sector in theNyarugenge Commune, testifiedthat he hadknown the Accused since he wasyoung because they were in neighboring Communes.He knew the Accused as thePresident of a sportsteam, as a Tuborgbeer importer, andas someonehe hadseen leading several demonstrations of the Interahamwe of the MRND party.Witness J said that on 15 April,a policemannamed Munyawara arrived in Cyahafifrom Kimisagaraandsaid that the lnyenzi had attacked and shot at the councillor of Cyahafi sector. Thepoliceman gathered people together, including Witness J, andtold them to follow him to go andfight the Inyenzi who were coming down.
177.Witness J saidthe group stopped just below a barcalled Mount Kigali by a public standpipenear Mr. Shyirakera’s house. At 3:00p.m., they saw a pick-uptruck arrive and stop nearthe standpipe. They approached the truck and saw two people in frontand two people in backin theopen bed of thetruck. The Accused got out on the passenger side, and went to the backof thetruck. He openedthe cab and they saw him distributing weapons to youngpeople, some of whom WitnessJ said he recognizedas lnterahamwe.Among these he named Bizimungo,Ziad, Muzehe, Cyuma and Polisi and saidthey were Interahamwe who had gone fortraining in theCommune of Bicumbi.He saidthey were his neighbors and he knewthem.
Judgement,Prosecutor versus Rutaganda 72 CaseNo:ICTR-96-3-T ~
WitnessJ said that he was close to the vehicle, indicating the length of thecourtroom as a measure.He clarifiedon examination that the Accused did not himself distribute the weapons butwas standing next to thetruck as they were distributed. After this distribution ofweapons, accordingtoWitness J, the shooting started. Witness J testified that Muzehe immediately shot someonecalled Rusagara, who was standingwith them, and Rusagara died on thespot. He estimatedthat from the time of the arrival ofthe vehicle tothe time of this first shot, less than ten minutespassed. When he heardthe shot, Witness J immediatelyfled. The shooting continued,and Muzehe and Bizimungoshot at youngpeople known to WitnessJ, whomhe namedas KalindaViater and Musoni Emmanuel. Witness J saw themfail immediately and jumpedover their bodies as he fledhome. He stated that all the men he sawshot were Tutsi.
178.On cross-examination,theDefence produced two pre-triai written statements of Witness J.In the first statement, which was dated 5 December1995, the witness said the event described hadoccurred on 6 April1994. In thesecond statement, which was dated 3 May1996, the witnesshad corrected this date to read 7 April1994. Witness J maintained that it was either 15 or16 Aprilthat Munyawera came to gatherpeople together and stated that he had said it was 16 Aprilat the time he madethe statement. Witness J noted that it musthave been 16 April,as on 6 Aprilthe plane had not yet been shot down. He said it was not possible that this happened on 7 Aprileither because there was still calm on that date. He also stated that he did not remember sayingto the Office of the Prosecutor that the event took place on 7 April.
179.Witness J wasalso questioned as to whetherthe councillor of Cyahafi was shot before or afterthe distributionofarms. In histestimony he indicated the shooting was beforehand and inthe pre-trial statement itwas indicated ashaving happened afterwards. Thewitness stated that thecouncillor was shot during a meetingwhich took place before the firearms arrived. He suggestedthat what he saidmight not have been written down accurately. He explained that he hadbeen in a hurryto getback to workwhen the interpreter translated the statement into Kinyarwanda.Theinterpreter hadsaid he wouldcome back to himwith a revisedstatement but
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...... ,...... ,...,,.....,...... ,...... ,.,...... ,...... ,,.....,...... ,,...... ¯...... ,..,...... ¯....,..,.....,..,..... WitnessJ said he neverdid. When asked whether he had not met with investigators again on 3 May1996, he saidhe didn’t really remember that.
180.Witness J confirmedon cross-examinationthat the Accused did notdistribute the weaponsbut that he got out and stood next to the vehicle while those in the back distributed the weapons.Witness J was also questioned as to when he fled - whetherit wasafter Mr. Rusagara hadbeen shot as he stated on direct examination, or as soon as people began getting out of the pickuptruck, as reportedinthe pre-trial written statement. Heresponded that when the young menreceived weapons and approached them, they thought they were going to be defended.But thenthe firing began and at that time he fled.
181.Witness M, a Tutsiman, testified that he wasin NyarugengeCommune, in thesector of Kimisagara,when he heardof thePresident’s plane crash on RTLMradio. On thenext day, 7 April,he went to take refuge at the CHK hospital, which was 8 kmfrom his house, after seeing peoplewho had been killed by theInterahamwe and left strewn along the road, including neighborshe knew.On theway to thehospital he sawlnterahamwe who were armed and bodies of peoplewho had just been killed. He alsosaw two roadblocks, manned by soldiersand lnterahamwe,with dead bodies lying nearby. He avoidedthese roadblocks for fear of being killed.Atthe hospital, Witness M saw many refugees and many dead bodies, three of whichhe recognizedas MinisterZamubarumbao Fredrick and hisdaughter, and councillorNgango Felistian.On12 April, Witness M left the hospital and went to the Cyahafi sector, where he took refugein thehome of Nyamugambo,a Tutsi man, who told him that the sector was being protectedbysoldiers.
182.Witness M saidthat the sector was peaceful until 15 April,when the Accused "had the killingsstarted". Hesaid he saw the Accused at9:30 a.m. with six people inside a pick-up truck. Theywere armed with guns and wearingUNAMIR clothing and vests.Witness M was at a standpipewith other people, and had been there about one hour when the Accused arrived,
Judgement,Prosecutor versus Rutaganda 74 CaseNo: ICTR-96-3-T wearinga military uniform, and stopped in frontof thehouse of ShirakaraNishon. After he arrived,Witness M saw the Accused giving the guns he hadbrought to thelnterahamwe, andsaw himgive a gunto a mannamed Muzehe. Witness M said the Accused sent his driver, Francois, to lookfor lnterahamwe to whom the guns would be distributed.He said the guns were short blackrifles, which he sawhimself, and he saidhe knewthe men were Interahamwe because the personleading them was the vice-president of the Interahamwe and they were wearing the clothingofthe MRND party. He saidthat the Accused told the Interahamwe tokill the Tutsi and ifthey did not, he would bring in a tankto exterminatethem all. Witness M said he waseight to tenmeters away from the vehicle and that the Accused, whom he identifiedin court, was speakingina loudvoice.
183.Witness M said that the killing began that aftemoon. After hearing the Accused say that theTutsi should be killed,Witness M wentback to wherehe wasstaying. In theafternoon, Muzeheshot Nyamugambo, the person who had provided refuge to WitnessM, withthe gun he hadreceived from the Accused and then he cameto lootthe house. Witness M heardMuzehe sayto an lnterahamwewho was with him that he wasgoing to tellthe Accused that he had alreadystarted the job, and Muzehe left directly to gotowards the Accused. Witness M was not ableto hearwhat was said thereafter because he fledimmediately. He stated that Muzehe did notkill him immediately because Muzehe was his friend and a taxidriver for whom he wasa client.According toWitness M, of the31 peoplewho took refuge in Nyamugambo’shouseprior to the15 April,the others were all killed by thelnterahamwe. He said he knewthey died becausehe hadn’tseen them since. Witness M subsequentlysought refuge with Alexander Murego,whose house was nearby, and he stayedin thishouse until the end of thewar, during whichhis parents were killed.
184.On cross-examination,Defence counsel questioned the circumstances in which Witness M wentto theCHK. The witness stated that he went alone and that all those in the house with himseparated when they fled. Defence counsel questioned the date on whichWitness M saw the
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¯1 III III ~11 III III III II ¯...... ~I, II I I I ¯ I I ¯ I I I I I I I ¯ I I ¯ I I i i I i I I I I I I I I I I I I I I ¯ I I I I I I I I I I I I I I I I i i I i I ¯ I, II I I I I I I I I I ¯ I I I I I I I I I, ¯i I I i I I i I I I I I Accused,which he testifiedhad been 15 April. In the pre-trial written statement dated December 4, 1995,the date had been recorded as 16 April.The witness maintained that it was 15 April whenhe sawthe Accused. The Defence pointed out to thewitness that on directexamination hehad testified that he was with five to ten people at the standpipe, whereas his written statement hadindicated that eighty people were there, and that while he testified that the date on which he lefthis house for refuge was 7 April,the pre-trial written statement indicated this date as 9 April. WitnessM affirmed that there were eighty people at the standpipe ashe had said in the pre-trial statement.He maintained that he lefthis house on 7 April,suggesting that it mayhave been writtendown incorrectly.
185.The Defence also challenged Witness M to explainwhy he hadtestified that he wentto thestandpipe toget water, while the pre-trial written statement indicates that he said he went to thestandpipe to getguns, which he heardwould be handedout for protection of the Tutsi. WitnessM affirmed that he went to get guns as statedin his pre-trial statement and he said he thoughthe had testified tothis on direct examination. Defence counsel pointed out that Witness M’s statementsays that when he reached the standpipe the Accused had already arrived, whereas in histestimony Witness M said that he hadbeen there for an hourwhen the Accused arrived. Defencecounsel questioned Witness M as to howhe knew that the people with the Accused were lnterahamwe.He said he knewa numberof themand that they were the ones carrying guns and killing.Witness M wasalso questioned on histestimony that they were wearing UNAMIR clothing,which he said he hadheard had been taken from the Belgian soldiers who were killed.
186.Witness M reaffirmedon cross-examinationthat he heardthe Accusedsay to the Interahamwethat they should go andkill the Tutsi or hewould bring tanks to exterminate them. He wasasked why he hadnot mentioned having heard this in hispre-trial statement, and he indicatedthat the statement hemade at that time had been limited, whereas the Tribunal had not limitedhim and asked him for many more facts. He affirmedthat the statement made by the
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Accusedwas theimmediate provocation to beginkillings. When asked how he couldhave forgottento mentionsuch an importantstatement, he said his memory was not good.
187.Defence counsel questioned Witness M on a numberof otherdetails relating to the incident.In response to thequestion of whetheror notMuzehe was armed before he received a weaponfrom the Accused, Witness M stated that he didnot remember well, that he had given approximatedates and numbers, and that his statement had been made a longtime ago. He again revieweddetails of theevent, stating that the eighty people present were crowded but not too closely,and reaffirming thedetails of his earlier testimony of the killing of Nyamugambo and thathe witnessed this killing.
188.Witness U testified that after the death of thePresident, the lnterahamwe began killing inNyarugenge. After two days, he left his home because of the killing. Hesaid the lnterahamwe stoppedhim and others with him, arrested them and took them to a placewhere they were killing people.According to Witness U, soldiersfrom the Kigali camp arrived at around2:30 p.m. to calmdown the situation. They told the lnterahamwe tostop killing, which they did briefly, and thesoldiers went back to theircamp. Afterwards, Witness U said that the Accused arrived, drivinga pickuptruck which was filled with firearms and machetes which he himselfsaw. WitnessU stated that he knew the Accused because he hada shopin the business district which soldbeer. Witness U said the Accused distributed theweapons to theInterahamwe andordered themto work,and the Accused said there was a lotof dirtthat needed to be cleanedup. The Accusedremained there with a riflewhich he hadover his shoulder.
189.Seeing this, Witness U said he left the place because they had started killing the people whoremained. He hidin bushesbelow a nearbygarage, which appeared to theChamber to be theAmgar garage. At thistime it was 3:00 p.m. and there was no one at the garage. Witness U thensaw the Accusedarrive, with many other lnterahamwe who seemed to be his guards. WitnessU estimatedthat they were approximately thirty in number.Witness U was very near
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thegarage and said he couldsee clearly through the bush. He saidthe Accused spoke loudly as therewere many people, and Witness U was able to hear. Witness U said this incident took place justbelow the garage. He saidbe didnot know the name of theowner of thegarage. Witness U leftthe bushes and went further down. When he turnedaround he sawthat they were killing peoplewith machetes and throwing them in thehole.
190.On crossexamination, Witness U wasasked how he knewthe Accused, how often he had seenhim and where. The witness replied that he usedto see the Accused in Kigali,in hisshop or whenhe passedby onthe way to meetings.He said he knewthe Accused was President of the Interahamwefrom the radio and from the meetings, and the fact that he tookthe floor at the meetingsand spoke on theradio. On furtherquestioning regarding how he knewthe Accused to be Presidentof theInterahamwe and the relationship between the MRND and the lnterahamwe, WitnessU said he had heard the Accused on the radio encouraging people to killone another but thatthis was before the war.
191.When questioned on the distribution of weapons he witnessed,Witness U affirmedthat thisevent took place two days after the President’s plane was shot down. When confronted by Defencecounsel with his pre-trial written statement, which recorded him as having said that the distributiontookplace on a Fridayat the end of April 1994, he said he did not remember telling investigatorsthatit was at theend of April.He said the day Agakingiro was attacked was the sameday the weapons were distributed andthe killings took place.
192.Witness U affirmed having said to investigatorsthat he hidnear the Accused’s garage. WhenDefence counsel recalled that on directexamination he had said he didnot know whose garageit was he hid near, he affirmed having said that he did not know the owner of the garage. Defencecounsel elicited further detail from the witness on thecircumstances priorto the arrival of theAccused in a pickupwith weapons, and the witness affirmed that soldiers told the
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lnterahamwe,whohe said were from Kimisagara and Cyahafi, to stopkilling. He statedthat the soldiersdid not seize the weapons and left the Interahamwe armed.
193.Witness T testified that he was a neighbourof the Accused in Cyahafi sector, and that he knewhim. He said that the killings that started after the death of the President on6 Aprildid not reachCyahafi until late April because there was a groupof Abakombozi, people from the Parti SocialDemocrate ("PSD"), defending the sector from Interahamwe from neighboring sectors. He saidthat around the time of 24 April,the Interahamwe attacked the Abakombozi and the killingsstarted at around5 p.m.He saidthe Interahamwe used guns in theattack. Witness T saidthat the Accused was present during the attack and had a redpick-up in whichhe brought weapons.He saidthat the Accused was standing in thevehicle and at that time the Tutsis and Hutuswere separated and that when the killings were taking place, the Accused was sitting in thevehicle. He hadan Uzzigun, and Uzzi guns were being used for the killings. Witnes T said therewere guns in the pick-up and that the Accused distributed some of them and the rest stayed in the pick-up¯He saidthe Accusedwas assistedby the seniorInterahamwe in the neighborhood,including Francois, the President of theInterahamwe in Cyahafi. He saidthe Accusedgave the weapons to thePresident of theInterahamwe, whoin turndistributed them. He saidthe Interahamwe gave weapons to thosein theneighborhood whodid not have any. On cross-examination,Witness T was asked about the weapons that he sawthe Accused distribute, andspecifically whether there pistols or onlyguns. He repliedthat the only type of weapon broughtby theAccused was the Uzzi, although the Interahamwe may have gotten pistols from elsewhere.
194.Witness Q alsostated that the Accused distributed firearms. Responding to questions fromthe Judgeson the connectionbetween the Accusedand the Interahamwe,Witness Q testifiedthat the Accused was a leaderof the Interahamwe andcited the fact that he was the one whodistributed firearms and ordered the distribution of firearms. Witness Q also stated that
dudgement,Prosecutor versus Rutaganda 79 CaseNo: ICTR-96-3-T
everyonesaid that the Accused was distributing weapons at theCommune level. Witness Q was notcross-examined on this statement.
FactualFindings
195.Witness J and Witness M both testified about a distributionoffirearms which took place in mid-Aprilin CyahafiSector, Nyarugenge Commune. The Chamber found Witness J to be credible.He wasconsistent in his testimony on cross-examinationandprovided reasonable responsesto the questions raised on cross-examinationwithregard to inconsistencies between histestimony and his pre-trial statement. Witness M, however, stated on cross-examination, that hismemory had been affected by theevents he had witnessed.The Chamberconsiders the testimonyofWitness M to beunreliable with respect to details,particularly ondates, time, numbersand the sequence of events.The inconsistencies which arose in histestimony during cross-examinationaswell as the inconsistencies between his testimony and his pre-trial written statementare of a materialnature in some cases. Although parts of his evidence are corroborated bythe evidence ofWitness J, otherparts are materially inconsistent withthe evidence ofWitness J. Althoughthe Chamber found Witness M to be a crediblewitness in thathe madea sincere efforttruthfully to recall what he saw and heard, and readily acknowledged hismemory lapses, theChamber considers that it cannotrely on thetestimony of Witness M in itsfindings. The Chamberfound Witness U, WitnessT and Witness Q to be crediblein theirtestimonies.
196.The Chamber notes that the testimony of theAccused and Witness DDD indicates that theAccused did leave his house on 8 April,and that he wasin Kigali at theAmgar office on 15 Apriland on 24 April. His defence to theallegations setforth in paragraph 10of the Indictment isa baredenial. The Chamber notes that under cross-examination, theDefence did not suggest tothe Prosecution witnesses that the Accused had not participated inthe distribution ofweapons, or thathe wasnot present at NyarugengeCommune on 8, 15 and24 April1994. Further the Defencedid not produce any witnesses toconfirm an alibiby testifyingthat the Accused was
Judgement,Prosecutor versus Rutaganda 80 CaseNo: ICTR-96-3-T ~ 111111111111111...... ~i.II ~11 ~11 i~1 ~11 IIi IIi IIi IIi IIi iI ~1 iii IiI iii ii ii. iI ~1 III III III IIII III ,11 II1111 I...... II ~1 III III ,11 III III II III III II ~11 II] III II ,I] III II III II ~11 ~1, II, II, II III III III II III III elsewherewhen the events described by theProsecution witnesses took place, as he doesin respectof other allegations inthe Indictment. A number of Defence witnesses testified that the Accusedwas very busy selling beer after his return to Kigalion 14 April,but the Chamber considersthat selling beer would not have precluded the Accused from also engaging in the distributionofguns as alleged by the Prosecutor. Forthese reasons, the Chamber considers that theDefence has not provided evidence which effectively refutes the evidence presented by the Prosecutorinsupport of the allegations setforth in paragraph 10of the Indictment.
197.The Chamber finds that on 15 April1994 in theaftemoon, the Accused arrived in a pick- up truck,with a driverand two men in theback, at a publicstandpipe in CyahafiSector, NyarugengeCommune. In theback of thepickup truck were guns. The Accused got out of the vehicle,opened the back of thetruck, and the men in theback distributed the guns to lnterahamwe,including Bizimungo, Ziad, Muzehe, Cyuma and Polisi, while the Accused stood by.A crowdof people,including Witness J, hadbeen gathered together at the standpipe by a policemannamed Munyawara before the arrival of theAccused. Immediately following the distributionof the guns, Muzehe shot Rusagara, who died on thespot, and the shooting continued.Kalinda Viater and Musoni Emmanuel were shot by Muzeheand Bizimungo and fell immediately.Allof themen shot were Tutsi. The crowd did not immediately disperse when the gunswere distributed because they had been led to believethe Interahamwe whohad received theweapons would protect them.
198.The Chamber finds that on theafternoon of 8 April1994, the Accused arrived in a pickup truckat a placein Nyarugenge where the Interahamwe hadbeen taking and killing people from theCommune. The pickup truck was filled with firearms and machetes, which the Accused distributedtothe Interahamwe. Heordered them to work and said that there was a lotof dirt that neededto be cleanedup. The Accused was armed with a rifleslung over his shoulder and a machetehanging from his belt.
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199.The Chamber finds that on or about24 Aprilin Cyahafisector, the Accused distributed Uzziguns to thepresident of the Interahamwe ofCyahafi during an attackby the lnterahamwe on theAbakombozi.
200.In itsfindings on thesethree incidents, the Chamber notes certain common features. In eachcase, the Accused arrived in a pick-uptruck with guns, which he distributedor had distributed,to Interahamwe in Nyarugenge Commune. The distribution of these weapons was immediatelyfollowed by thekilling of peoplewho, in at leasttwo of theincidents, had been gatheredtogether atthese places prior to the arrival ofthe Accused.
201.The Chamber notes that the dates of the three incidents - 8 April,15 April, and 24 April - vary75.from the date on or about6 April,which is set forth in paragraph 10of the Indictment Thephrase "on or about"indicates an approximatetime frame, and the testimonies of the witnessesdate the events within the month of April.The Chamber does not consider these variancesto be materialor to haveprejudiced the Accused. The Accused had ample opportunity tocross-examine thewitnesses. Inreviewing the allegation set forth in this paragraph ofthe Indictment,theChamber finds that the date is not of the essence. The essence of the allegation isthat the Accused distributed weapons in this general time period.
75 SeeChapter 1, Section3 of thisJudgement.
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4.2.Paragraph 11 of theIndictment
202. Paragraph11 of the Indictment reads as follows:
"Onor about10 April1994, Georges Rutaganda stationed lnterahamwe members at a roadblocknear his office at the "Amgar" garage in Kigali. Shortly after he left the area, thelnterahamwe members started checking identity cards of peoplepassing the roadblock.The Interahamwe members ordered persons with Tutsi cards to standon one sideof theroad. Eight of theTutsis were then killed. The victims included men, women andan infantwho had been carded on theback of oneof thewomen".
203.The Chamber is of theopinion that for the sake of clarity with respect to itsfindings on theevents alleged in paragraph 11of the Indictment, itis necessary todiscuss successively the eventsrelating to:
Firstly,the fact that Georges Rutaganda stationed Interahamwe members at a roadblocknear the Amgar garage;
Secondly,the fact that the Interahamwe members checked the identity cards of peoplepassing the roadblock and ordered persons with Tutsi cards to standon oneside of the road; and
Thirdly,the fact that eight Tutsis were then killed and the victims included men, womenand an infantwho had been carried on theback of oneof thewomen.
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Regardingthe fact that Georges Rutaganda stationedlnterahamwe members at a roadblocknear the "Amgar"garage:
204.The Chamber is of theopinion that as faras theabove allegation is concerned,the Prosecutormust not only prove that a roadblockora barrierwas erected near the Amgar garage and mannedby Interahamwemembers but alsothat the Accusedhimself had stationed lnterahamwemembers there.
205.Prosecution Witnesses AA andHH identifiedin the slide tendered by theProsecutor as exhibit144, the location where the roadblock obstructing traffic was mounted, the location of thetraffic lights and, on the left of the same slide, the wall of the Amgar Garage. According to theProsecutor, the Amgar garage was located at theboundary of theCyahafi secteur, in the NyarugengeCommune, Prdfecture of Kigali-ville. Themain entrance to thegarage opened onto theAvenue de la Justicewhere the said roadblock had allegedly been erected and which was indeedthe location that witnesses AAand HH had identified asthe location of theroadblock.
206.Witness HH, a Tutsiman, testified before the Chamber under direct examination that the roadblocknear the Amgar garage was manned by membersof thelnterahamwe whom he could recognizedby the lnterahamwe uniform they wore, made out of red,yellow and green kitenge material,which was similar to theMRND party flag. During his cross-examination, theDefence askedWitness HH to explainthe inconsistencies between his testimony and the statement he madeto the investigators, asrecorded inthe transcripts ofhis questioning, tothe effect that the roadblockwas manned by soldiers.Witness HH repliedthat some lnterahamwe dressed like soldiers.
207.Witness HH alsotestified before the Chamberthat the youngpeople manning the roadblockand with whom he hadbeen in touch,had told him that the roadblock in frontof Amgarwas "Georges’". Witness HH, stated that he hadbeen hiding near the Amgar garage and
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asa resultwitnessed what took place at that roadblock. He testified that he sawthe Accused cometo thesaid roadblock many times, often in a Peugeotpick-up. According to WitnessHH, theroadblock was the Accused’s, indeed, like all roadblocks inKigali and Rwanda, which were allunder his control.
208.Witness HH alsotestified before the Tribunal that, on 20May 1994,the Interahamwe had closedthe road on which the said roadblock was erected. Witness HH assertedthat he witnessed thearrival of theAccused at theroadblock around 9:00 a.m. According to HH,the Accused orderedthe lnterahamwe to open the road and they complied.
209.Prosecution Witness AA testified that, up until18 April 1994, the road in front of Amgar Garage,like the neighbourhood, wascontrolled by the inhabitants ofAgakingiro (Cyahafi). The peoplehad erected a roadblock onthat road which the lnterahamwe destroyed on18 April1994. Accordingto WitnessAA, after the Interahamwe had attacked the neighbourhood andtaken controlof it,the Accused had a newroadblock erected in front of the gate to his garage. That roadblockwas solidly built, with beer cases and wreckage from cars spanning the entire width ofthe road.
p--. 210.Witness AA statedthat among the lnterahamwe who used to cometo the roadblocks, somewere dressed in militaryuniforms while others wore lnterahamwe uniforms.
211.According to WitnessAA, the Accused was a famousman and the Amgar Garage, which belongedto him,was referred to at thetime as a venuefor the Interahamwe. According to the witness,people even spoke of "Rutaganda’s soldiers"at that time.
212.Prosecution Witness T testifiedthat soldiers of theRwandan Armed Forces had erected a roadblockon thepaved road, by a kiosk,near the Agakingiro market. Once resistance waned
Judgement,Prosecutor versus Rutaganda 85 CaseNo: ICTR-96-3-T in Cyahafi,towards the end of April,that roadblock was then controlled by the lnterahamwe, whotook over from the soldiers, who had gone to thefrontline.
213.Prosecution Witness BB testifiedthat he wasarrested at theroadblock near the Accused’s home.There were more than 10 peoplethere, some of whomwore items of militaryuniform and othersthe Interahamwe uniform. BB explained, however, that none of thosepeople was a real soldier.Some wore berets, with the sign of a pruninghook and a smallhoe, identifying them as belongingto the Interahamwe. They were armed with guns, clubs, pangas, hammers, and knives. WitnessBB stated that the Interahamwe hadtold him that their leaders were Robert Kajuga and GeorgesRutaganda. The people manning the roadblocks said they would not kill anyone without priorinstruction from Robert Kajuga or GeorgesRutaganda.
214.Three defence witnesses confirmed that there was a roadblockinfront of AmgarGarage. WitnessesDS S andDF statedthat a roadblockhad been mounted in frontof AmgarGarage from 9 April1994. Accordingto Witness DD, the roadblock was erected from 7 April1994 and was locatedabout ten metres away from the garage, close to the traffic lights on Avenue de la Justice.
215.Witness DD testifiedthat the peoplemanning that roadblock were "bandits". He explainedthat some of themwere armed, but that he sawneither uniforms nor any other signs suggestingthat they were members of theInterahamwe. Witness DD alsosaw no distinctive signsor symbolsthat identified the people manning the roadblock with any political group whatsoever.
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Regardingthe matter of thelnterahamwe checking the identity cards of personswho passed throughthe roadblock and orderingpersons whose identity cards indicated they were Tutsi to standon one side of the road."
216.ProsecutionWitness HHtestified that he passedthe roadblock on 8 April1994. He stated thatpeople crossing the roadblock had to show their identity cards and also raise their hands so thattheir pockets could be checkedfor grenades. According toWitness HH, the people manning theroadblock shot at personswhose identity cards indicated they were Tutsi. Witness HH testifiedbefore the Chamber that he managed to cross that roadblock despite the fact that he was Tutsibecause he wasin themiddle of a crowdand he wascarrying his identity card at arm’s lengthso that his pockets could be searched.
217.During cross-examination, the Defence asked Witness HH to explainan apparent differencebetween his testimonyand a pre-trialstatement he madeto the Prosecution investigators.Witness HH hadtold the investigators that he passedthrough the roadblock withoutshowing his identity card because there was a crowdof people around.
218.Witness HH addedthat from the location where he washiding near the roadblock, he had heardthe Accused tell the Interahamwe manning the roadblock to check the identity cards very well.Witness HH specifiedthat when the Interahamwe saw a cardwith the reference "Tutsi", theytook the holder into a housenearby. According to HH,people were arrested in thisway everyday.
219.Prosecution Witness AA testified that, at thetime of thealleged events, the roadblocks, includingthe one near Amgar Garage, were used by theInterahamwe to "do their job", which, accordingto AA, meant to arrest Tutsis or other persons and to strip them of their belongings. Accordingto AA, to passa roadblock,one had to showone’s identity card or otherdocument thatindicated theholder’s identity.
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220.Prosecution Witness BB testifiedthat he wasarrested at theroadblock near the residence of theAccused where he wasasked to producehis identity card. According to BB,when the lnterahamwewhomanned the roadblock realized that he wasTutsi, they told him that they had receivedorders that very day to present anyone who had been apprehended at the roadblock to theirpresident or vice-president.Twolnterahamwe, oneof whomcarded a gunand the other grenades,removed his shoesand tookhim to theAccused at AmgarGarage. BB was then allegedlybeaten by oneof the lnterahamwe.According to BB,the Accused then left and returneda little later and asked why BB whowas Tutsi had not been killed. BB thanheld the Accusedby theleg of hispants and asked him why he hadnot yet allowed the Interahamwe to killhim. BB testifiedthat the Accused then kicked him and sent him away to do somework, gatheringdirt in some area close by.
221.Under cross-examination, Witness BB acknowledgedthat upon his arrivalat Amgar, whenhe wastaken to theAccused, he was giventea becausehe wasvery weak. BB also admittedthat a servanthad brought him food. He then explained that it was indeed after he had beengiven the tea and food that the Accused had kicked him.
222.Defence Witness DD testifedthat he couldnot confirm that the people manning the roadblockin front of AmgarGarage checked identity cards. He stated that he did not see anyone beingtaken aside and made to standon oneside of theroad¯ Defence Witnesses DD, DDD and DNNtestified that identity cards were checked at theroadblocks in orderto identifyRPF "infiltrators"¯
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,,,,,,+,,,,+¯,,¯,,...... ¯..¯ ¯., .¯, ,,, ¯, ,,, ,,, ,, ,,, ,¯ ,,¯ ¯,, ,, .,, ,,, ,, ¯., .., .¯, ,, ,,, ¯,, ,, ,,, ,,. ,., .¯,., ¯.,¯¯, ,., ,,, ,¯ ,¯¯ ¯,¯ ¯,¯ ,,, ,,, ,¯ ,,, ,,. ,,, ,, ,.. ,,, ,¯ ¯,, ,, ,...¯ ¯., .¯ ¯,, .¯ ,,¯ ¯.¯ .,..., .¯¯.¯ ¯.¯ ¯., .¯, Regardingthe fact that eight Tutsis had been killed, including men, women and an infant on the backof oneof thewomen:
223¯Prosecution Witness HH testifiedthat immediately after crossing the roadblock, hehad heardthe sound of gunfireas he ranaway; he hadturned around and seen dead bodies on the ground.Witness HH testifiedbefore the Chamber that they were eight of themincluding, children,men and women. One of thewomen who fell was carrying an infanton herback. WitnessHH testifiedfurther that the youths manning the roadblock later gave him protection. Theytold him that they had killed men, women and children.
224¯Under cross-examination, Witness HH initially testified that on crossingthe roadblock, he hadnot paid attention to whetherthe identity cards of peoplein thecrowd were being checked.Inreply to theJudges’ question as tothe material discrepancy between his testimony underdirect examination and his statement under cross-examination, Witness HH statedthat Tutsiswho appeared at theroadblock were detained there.
225.Prosecution Witness AA, after testifying that the Interahamwe stopped Tutsis or anyone elseat roadblocks to strip them of theirbelongings, explained that when people were arrested, theywere led away and the sound of gunfirecould then be heardclose to Amgar.
FactualFindings
226.Based on corroboratedtestimonies, theChamber finds that as froman unspecifieddate in mid-April,a roadblock was erected by lnterahamweonthe Avenue de la Justice near a traffic lightnot far from the entrance to theAmgar Garage at theCyahafi Sector boundary, in NyarugengeCommune of theKigali-ville Prdfecture. The Chamber holds that, at thesaid roadblock,thelnterahamwe checked the identity cards of those who crossed it and detained those whocarried identity cards bearing the "Tutsi" ethnic reference or were otherwise considered as
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I [ i i i I ¯ i I ¯ i i,II I I II iIii II¯ IIi III i,Ill Iii i ii i...... ~ I IIi I I ]I ¯ I ]i I I Ii I I I I I I II I ¯ II I I II ], I,i II I I I i¯ I ~, ii I Ii I ¯ II, I I I I Ii I, III I Ii I I I iI I I iI I, Ii] ¯ I,I I I ¯ I I I[ I I I I I I¯ I I I I I I I ¯ lI I ¯ Ii ], III I I, II I Ii I I ¯l I I II I "Tutsi"because they had stated that they were not in possession of an identity card. However, theChamber notes that the Prosecutor has not led evidence to theeffect that the Interahamwe manningthe roadblock had been stationed there by theAccused. Hence, the Chamber finds that ithas not been proven beyond reasonable doubt that the Accused stationed lnterhamwe members atthe said roadblock.
227.With respect to theallegation regarding the killing of eightTutsis, including men, women andan infantcarded on herback by one of the women, the Chamber notes that just one witness -WitnessHH - hadtestified to those specific events. However, it notesthat the Prosecution WitnessHH wasunable to providea convincing explanation of the material inconsistencies, identifiedbythe Defence, inhis testimony before the Chamber and his earlier statement tothe Prosecutioninvestigators, as recorded. Accordingly, theChamber has decided to disregard his testimony.Since the Prosecutor had not called any other witness, apart from Witness HH, to testifytosuch events, the Chamber finds that the allegation regarding thekilling ofeight Tutsis hasnot been proven beyond reasonable doubt.
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4.3Paragraph 12 of theIndictment
228. Paragraph12of theIndictment reads as follows:
"InApril 1994, on a dateunknown, Tutsis who had been separated at a roadblockin frontof theAmgar garage were taken to GeorgesRUTAGANDA and questioned by him. Hethereafter directed that these Tutsis be detained with others at a nearbybuilding. Later,Georges RUTAGANDA directed men under his control to take10 Tutsidetainees to a deep,open hole near the Amgar garage. On GeorgesRUTAGANDA’s orders, his menkilled the 10 Tutsis with machetes and threw their bodies into the hole."
Regardingthe allegations that on a dateunknown, inApril 1994, Tutsis who had been separated at a roadblockin frontof theAmgar garage were taken to GeorgesRutaganda and questioned byhim. He thereafter directed that they be detained with others at a nearbybuilding."
229.The Chamber notes that the said allegation follows the allegations contained inparagraph 11of the Indictment. TheChamber, inits findings supra on the allegations setforth in paragraph 11,held that a roadblockhad indeed been erected by theInterahamwe on Avenue de la Justice, neara trafficlight, not far from the entrance tothe Amgar Garage, atthe Cyahafi sector boundary in NyarugengeCommune.
230.Prosecution Witness BB testifiedbefore the Chamber that he wasarrested at the roadblocknear the residence of theAccused because he wasa Tutsi.There were many people there,some of whomwore items of militaryuniform, while others were clad in Interahamwe uniform.According to WitnessBB, the people at theroadblock said that they would kill no personwithout prior instruction from Robert Kajuga or GeorgesRutaganda. When they realized thatBB was Tutsi, the Interahamwe told him that they had received orders that very day to take
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anyoneapprehended at the roadblock to "thepresident or vice-president".TwoInterahamwe, oneof whomcarded a gunand the other grenades, removed his shoes.
231.They took him to a locationwhich Witness BB identifiedon theslide tendered by the Prosecutoras exhibit 145 as theAmgar garage. Witness BB wastaken to theAccused in his office.An Interahamwehit him. The Accused left the office and returned later. Witness BB testifiedthat he heldthe Accused by the leg of his trousers and asked him why he had not yet allowedthe Interahamwe to kill him. Witness BB testifiedthat he beggedfor mercy but the Accusedkicked him and sent him away to do somework, gathering dirt in a placewhere a cellar wasunder construction. Witness BB explainedthat the Accused had forced him to workon the cellarconstruction site without payment¯ In hisopinion, he wastherefore a slave of the Accused’s.Witness BB testifiedthat he stayedat Amgaruntil Kigali was captured by theRPF becausehe couldno longermove about as hehad thrown his identity card in somelatrine.
232.Under cross-examination, Witness BB explainedthat the cellarwas not under constructionbutthat they were actually assigned todemolish part of a wallto create an entrance intothe cellar from the Amgar garage. Witness BB alsoadmitted that a masonhad been hired todo the work and that the people, including himself, who were involved in suchwork were not prisoners,but mere workmen. Witness BB statedthat there were no prisonersat that time and that,in fact,there were ordinary workmen who went home in theevenings.
A 233.Moreover, under cross-examination, whenasked by theDefence to explainwhy, if the Accusedhad been the leader of a groupof killers, BB hadchosen to stay at the Accused’s place ratherthan to move about and had found it safer to doso, Witness BB statedthat he could not provideany explanation tothat.
234.Prosecution Witness T who had testified that, at thetime of the alleged events, he lived nearAmgar garage, indicated that a neighbourofhis, a Tutsiman, told him that, for a while,he
Judgement,Prosecutor versus Rutaganda 92 CaseNo:ICTR-96-3-T ~ wasforced to liveinside Amgar garage. Around the end of May1994, that man was killed. That sameday, Witness T, his brother and their employee were arrested. The latter two men were also killed.
235.Prosecution Witness Q testified that, around 21 April 1994, he arrived at theAgakingiro roadblockwhere he was arrested because he did not have an identitycard and because one of the peoplethere, Vedaste Segatarama, hadrecognized him. Around 8 a.m.,he was led into a garage, togetherwith three other people who had also been detained at theroadblock because they had beenidentified asTutsis on the basis of their identity cards.
236.Witness Q testified that he had not been to that garage before. He identifiedit before the Chamberon theslide which had been tendered by theProsecutor as exhibit 145.
237.Witness Q stated that he wasled, along with the three other Tutsis who had also been arrested,into the Chief’s office. Hetestified before the Chamber that he recognized theoffice of theAccused to which he hadbeen taken on the slide that had been filed as exhibit149. They wereintroduced tothe Accused, who ordered that they be lockedup in theprison because they wereInyenzi. Witness Q explained that, in that office, the people who had been arrested were undergoingsome kind of registration.
238.According to WitnessQ, theprison where they were detained was in an Indiantemple withthe inscription "Hindi Mandal". He recognizedit on a slide,tendered as exhibit165. WitnessQ stated that the temple was full, with about two hundred people. Only a smallroom, locatedbehind the building and used for storage, was not full. Witness Q said that he was there forsome three hours. The Accused then returned and said that 10 people should be taken out.
239.Defence Witnesses DD, DF and DDDtestified before the Chamber that, in April,the Accusedcontinued to sell beer within the premises of theAmgar garage. Witness DD stated that
Judgement,Prosecutor versus Rutaganda 93 CaseNo: ICTR-96-3-T ~ ¯ .¯.., .¯ .., .¯, .¯, ,,, .¯,.,, .¯.., .., .¯ .., .., .¯, .¯, ,1.1, .¯,,, .¯, .1 ,,, .¯, .,, ...... ¯ ..,.., .¯ ..¯ .¯, .¯ ,,¯ .,, ,., ,.. ,..¯..¯, .¯*., .¯ ..¯ .¯1 .¯, ,,, .¯, ,¯ ,,¯ .,, .¯,., ,..., ...... ,.¯..,.n..,,.¯ he knewthe people who had come to takerefuge at Amgar.According to WitnessDF people ofvarious ethnic groups had been given refuge at Amgar, and no one was held against his or her will.Both Witnesses DD andDF testifiedthat they saw no prisonersat Amgar.However, WitnessDD explainedthat he did not go aroundthe property to check.
240.Defence Witness DS testifiedthat he remainedwiththe Accused at Amgarfrom 14 April to27 May 1994. Throughout that period, he neversaw any prisoners or anyone being mistreated.
241¯Defence Witness DEE stayed at Amgarfrom14 to17 April1994. She explainedthat she wasnot the only Tutsi there. She knew some of the other Tutsis there. Of the Tutsis she did not know,she was told that they were hiding at Amgar.Witness DEE testified that she never saw anyprisoners during her stay at Amgar, nor did she see anyone beaten, tortured orkilled.
Regardingthe allegations that Georges Rutaganda later directed men under his control to take 10 Tutsidetainees to a deep,open hole near the Amgar garage, and that upon his orders, his menhad killed the 10 Tutsis with machetes and thrown their bodies into the hole."
242.Prosecution Witness BB identifiedon the slide tendered as exhibit169, a sitelocated betweenthe ETM and the Accused’s garage, where according to himthe Tutsis were killed. Accordingto Witness BB, at thetime of theevents referred to inthe Indictment, there was a metalsheet wall near the blue fence located atthe back to the right. It was at that spot that the Tutsishad been shot.
243.Prosecution Witness Q testifiedthat after spending approximately three hours in the Indiantemple, he wasbrought out, on the orders of the Accused, who had ordered that 10 people betaken outside. Witness Q stated that he himself,the three people who had been arrested with himat the roadblock and 10 other detainees were led away, around 10 or 11 a.m., to a pit,by men actingon the orders of the Accused. The pit was behind the garage, where there was a housewith
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a tiledroof and a fence¯Witness Q identified themetal sheet fence on a slidetendered by the Prosecutoras exhibit 156¯ He recognizedthe location of thepit on theslide as exhibit 172, explainingthat the metal item pictured on the slide was not there at the time of the events alleged.
244.At thesaid pit, the 14 personswere made to sitdown in a hole,the location of which WitnessQ recognized ona slide,tendered as exhibit168, and ordered to lookdown. The people whohad taken them to thepit then asked the Accused, who was present at the site, whether to useguns or machetes tokill them. The Accused allegedly told them "to kill with guns, is a waste ofbullets." Witness Q stated that the people who had taken them to the pit then started to kill withmachetes. At that point he bowed his head and then he lostconsciousness uponseeing two personsdie.
245.During cross-examination, theDefence asked Witness Q to explainwhy his statement tothe investigators reflected that he hadfainted after one man had killed three persons and a secondperson had killed three others. Witness Q confirmed before the Chamber that he fainted aftertwo persons had been killed. He assertedthat he hadmade the same statement to the investigators.
246.According to WitnessQ, afterthose two persons had been put to death,the other four personsstill alive, including himself, were made to getup andbury them. Witness Q testified beforethe Chamber that at that point he had no strengthleft and the Accused spared him and anotherman. The Accused kicked Witness Q and told him to leave,and told him that he would be killedon the day of Habyarimana’s burial.
247.During cross-examination, theDefence asked Witness Q to explainthe disparity between histestimony before the Tribunal and his earlier statement tothe investigators. In the said statement,Witness Q had indicated that the Accused had ordered the four persons still alive to
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throwthe bodies of the victims into the pit and that, once they had finished doing that, the Accusedkicked Witness Q who further explained that he then left with the four other persons.
248.In reply to the question, Witness Q testified before the Chamber that he didnot bury the peopleand that when the investigators hadread out the statement tohim before he signed it, it didnot include any reference tothe effect that he had buried the bodies.
249.Defence Witness DD testifiedthat he knewabout the pit behind the Amgar garage and thataround 26 April 1994, the Accused had a closedsheet metal fence built in front of the pit. DefenceWitness DF alsotestified that the Accused had a metalfence built to protect his beer stocks.The said fence had no door.Witness DF explainedthat it was impossible to hear what wasgoing on behindthe fence from the garage. According to WitnessDF, he wasnot aware thatkillings were going on at that location, but explained, however, that after the fence had been built,he could not know what was happening there. He didnot hear any gunshots from the said location,but rather from the valley behind the "Hindi Mandal" temple.
250.Defence Witness DEE testified that on 14 April1994, the day he arrivedat theAmgar garage,she saw a groupof about10 peopleincluding men, women and children there. She spoke tosome of themand they told her that they had found refuge there. Witness DEE who was not surewhere the others had come from, thought that they were the Accused’s family members.
251.During the time that she was at Amgar,from 14 to 17 April1994, DEE heard gunshots andgrenade explosions, butshe was not sure where they came from. She explained that she was pregnantand sick at the time and was often lying down.
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FactualFindings
252.The Chamber finds that all the Prosecution witnesses who testified to the aforementioned allegationsarecredible, including Witnesses BBand Q, andconsequently decides to admit their testimonies.Indeed, the Chamber is of theopinion that although under cross-examination the Defencepointed out some contradictions in the testimonies of Witnesses BB andQ, such contradictionsarenot of a materialnature and do not vitiate the consistency ofthe substance of theirtestimonies, asto their account ofthe facts at issue in the instant case.
253.With respect to WitnessQ in particular,theChamber holds that the said contradictions canprobably beattributed tothe trauma he may have suffered from having to recountthe painful eventshe witnessedand of whichhe was a victim.The Chamber stresses further that the time lapsebetween the events and the testimony ofthe witness must be taken into account in assessing therecollection ofdetails.
254.Further, the Chamber recalls that the inconsistencies inthe witnesses’s testimonies and theirpre-trial statements must be assessed inlight of the difficulties inherent inter alia in interpretingthequestions asked to the witnesses. Italso important tonote that these statements werenot made under oath before a commissionerof oaths.
255.The Chamber notes that the testimonies of DefenceWitnesses DD, DF,DS, DEE and DDDdo not refute the fact that the Accused was in hisoffice at the Amgar garage from 15 to24 April1994. Such testimonies were offered to provethat the Accused was transacting business at Amgarduring that period. The Defence submitted that the Accused welcomed into Amgar refugeesofdiverse ethnic groups including Tutsis and that no one was held at Amgar against his orher will, nor mistreated, ortortured orkilled. The Chamber considers that, in any case, these factswould not exclude the Accused’s participation inthe events alleged in paragraph 12of the Indictment.
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256.The Chamber notes, furthermore, that Witness Q identified the hole where the ten persons werekilled and where their bodies were thrown on the slide tendered bythe Prosecutor asexhibit 168.The Chamber observes that the said slide shows the site identified as RUG-1 by Professor WilliamHaglund, a forensicanthropologist, who appeared as an expertwitness for the Prosecution.According to ProfessorHaglund, who exhumed several sites near Amgar garage, threebodies were exhumed from the hole identified as site "RUG-1 ". Dr.Nizam Peerwani, a pathologist,whohad worked jointly with Professor Haglund and who also appeared as an expert witnessfor the Prosecutor submitted the following findings on thethree exhumed bodies: the firstbody was that of a managed between 35 and 45 at thetime of death, the probable cause of whichwas homicide; the second body was that of a woman,aged between 30 and39 at thetime of death,the probable cause of whichwas homicide; and the third body was that of a man,aged between35 and45 atthe time of death,the probable cause of whichwas blunt force trauma.
257.Firstly, the Chamber, on thebasis of thetestimony by Dr.Kathleen Reich, a forensic anthropologist,calledby the Defence as an expert witness, isnot satisfied that the scientific methodused by Professor Haglund is such as to allow the Chamber to relyon his findings inthe determinationofthe case.
258.Secondly, and above all, the Chamber notes that the Prosecutor failed to showa direct linkbetween the findings of ProfessorHaglund and Dr. Peerwani and the specific allegations in theIndictment. Consequently, theChamber holds that the findings of thesaid expert witnessesshould not be admittedinthe instant case.
259.Accordingly, theChamber holds that the findings of thesaid expert witnesses donot help theChamber determine the facts of thecase. Moreover, the Chamber is not satisfied that the gravesite referred to by WitnessQ and the one exhumed by ProfessorHaglund are one and the same.
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260.Thus, on thebasis of thecorroborating testimonies of Witnesses Q and BB, the Chamber is satisfiedbeyond any reasonable doubt that, in April 1994, Tutsis who had been separated at a roadblockin frontof Amgargarage were taken to theoffice of theAccused inside Amgar garage.Based on thecorroborating testimonies ofWitnesses Q and T, theChamber is satisfied beyondreasonable doubt that the Accused ordered that the Tutsis thus brought to him be detained withinthe premises of theAmgar garage.
261.Based on thetestimony of WitnessQ, theChamber is satisfiedbeyond any reasonable doubtthat the Accused ordered men under his control to takefourteen detainees, including at leastfour Tutsis, to a deephole located near Amgar garage and that on theorders of Georges Rutagandaand in hispresence, his men killed ten of thesaid detainees with machetes. The bodiesof the victims were thrown into the hole.
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4.4Paragraphs 13, 14, 15 and16 of theIndictment
262. Thecharges set forth in paragraphs 13,14, 15 and16 of the Indictment areas follows.
263. Paragraph13reads as follows:
"FromApril 7 to April11, 1994, thousands of unarmedTutsi men, women and children andsome unarmed Hutus sought refuge at the J~cole Technique Officielle "ETO school" in Kicukirosector, Kicukiro Commune. The ETO school was considered a safe haven becauseBelgian soldiers, part of theUnited Nations Assistance Mission for Rwanda forces,were stationed there."
264. Paragraph14 reads as follows:
"Onor aboutApril 11, 1994, immediately after the Belgians withdrew from the ETO school,members of theRwandan armed forces, the Gendarmerie and militia, including theInterahamwe, attacked the ETO school and, using machetes, grenades and guns, killedthe people who had sought refuge there. The Interahamwe separated Hums from Tutsisduring the attack, killing the Tutsis. Georges Rutaganda participated inthe attack atthe ETO school, which resulted inthe deaths of a largenumber of Tutsis."
265. Paragraph15 reads as follows:
"Themen, women and childrenwho survivedthe ETO schoolattack were forcibly transferredbyGeorges Rutaganda, members of the Interahamwe andsoldiers to a gravel pitnear the primary school of Nyanza. Presidential Guard members awaited their arrival. More lnterahamwemembers converged upon Nyanzafrom many directionsand surroundedthe group of survivors."
Judgement,Prosecutor versus Rutaganda 100 266. Paragraph16 reads as follows:
"Onor aboutApril 12, 1994, the survivors who were able to showthat they were Hutu werepermitted toleave the gravel pit. Tutsis who presented altered identity cards were immediatelykilled. Most of theremainder of thegroup were attacked and killed by grenadesor shotto death.Those who tried to escapewere attacked with machetes. GeorgesRutaganda, among others, directed and participated inthese attacks".
EventsAlleged
267.Witness A, a Tutsiman who had worked for the Accused as a mason,testified that on 7 April1994 he wentwith his wife and five children to theETO, a kilometreaway from his house,to seekrefuge and protection because the UNAMIR troops were stationed there. Upon his arrival,he realizedhe hadnot brought any food or blanketsand returned home for supplies, leavinghis family in theETO compound. According to WitnessA, therewere approximately sixthousand refugees in theETO compound, outside and inside the buildings. When Witness A returnedthat evening, after circumventing theInterahamwe he encountered outside, he was unableto re-enterthe compound for there were too many people. He spentthe night near the sportsfield of theETO.
268.According to WitnessA, thenext day Colonel Leonides Rusatila arrived and asked the Hutusto separatethemselves from the group. Thereafter approximately 600to 1,000Hutus left thecompound. The witness testifiedthat on 10 April1994, UNAMIR troops left the compound, althoughthe refugees begged them to stay, as theInterahamwe hadalready surrounded the ETO compound.The departure of theUNAMIR troops created panic among the refugees and caused manyof themto leavethe ETO entrance; as a result,Witness A wasable to re-enterthe compoundwhere he wasreunited with his family. The Interahamwe also came in at thattime and
Judgement,Prosecutor versus Rutaganda 101 CaseNo: ICTR-96-3-T
¯ ...¯,1¯,.¯, ¯, *¯ ,*¯, *¯,*¯ ,*, *¯ **, *¯ ,*¯ ,*. **. ¯.....¯ ,.¯*., *¯, 1. *¯¯ *¯, *¯ *¯ ¯,¯ *¯, ,¯ ,¯, .¯. ¯. ¯¯¯ ¯¯, .¯, *¯, *¯, *¯, *¯, *¯, ,¯, ,¯ ¯¯¯ ,¯, .¯ ¯¯¯ ¯¯¯ .¯. ¯¯ ¯¯¯ .¯. ¯¯. ¯..¯. ¯¯.¯, ¯¯ .¯. ¯¯ ,¯¯ ¯¯ ...... ,,¯,.¯,¯¯H¯H,.¯.¯¯¯¯.. mixedin withthe crowd of refugeesinside the building. According toWitness A, therefugees thendecided to proceedtogether to theAmahoro stadium. They therefore left the ETO and headedin that direction but were diverted enroute by soldiers ata roadblock.They were gathered togetherwith their arms up overtheir heads, and ordered to lieon the ground. A soldier with a megaphonethen came to themand told them it wasnot a goodidea to go to thestadium and suggestedinstead that they go to Nyanza,where he saidthey would be safe.
269.Thereupon, Witness A andhis family headed for Nyanza in a groupof approximately 4,500persons, flanked on bothsides by Interahamwe. According tothe Witness, at this time the Interahamwe,armed with machetes, clubs, axes, spears, and nail studded metal sticks had started killingpeople along the way, threatening people, forcibly taking young girls, spitting on them andcommitting atrocities. Along the way, Witness A sawthe Accused coming in theopposite directionfrom Nyanza in his vehicle. Hepulled over to the side of the road, got out, and stood leaningagainst the vehicle¯ Witness A sawa masonwho had worked for the Accused pleading himfor help, but the Accused waved him away.
270.Upon arrival at Nyanza,Witness A saw the Accusedagain who was directingthe lnterahamweinto position to surroundthe refugees who had been gathered together inone spot. Armedsoldiers had taken position onthe hill overlooking this spot. A sackfull of grenadeswas broughtby a man,and Hutus were told to showtheir identity cards. These Hutus were allowed to leave.Some Tutsis who tried to pass for Hutus were killed on thespot by thelnterahamwe whoknew them, and others were forced back into the group. A grenadewas then hurled into the crowdand the soldiers began to firetheir guns. Those who tried to fleefrom the group were snatchedback by theInterahamwe surrounding them. Witness A sawthe child his wife was carryingon herback blown offby a grenade¯He wasshot and fell to theground, still holding anotherof hischildren inhis arms. Others fell on top of him.
Judgement,Prosecutor versus Rutaganda 102 CaseNo: ICTR-96-3-T
271.When the shooting stopped, Witness A heard the soldiers tell the lnterahamwe to go to work,and the latter proceeded to kill people with clubs and other types of weapons. They also singledout some girls and put them aside. Accordingto thewitness they "had their way" with thesegirls and then killed them. Most of thewomen killed were stripped oftheir clothing, "so thatTutsi women could be seennaked." The lnterahamwe continued to "havetheir way" until theyleft satisfied ataround 11 p.m. Witness A’s wife and four of his children were killed in this attack.His five year old child, whom he hadshielded in hisarms, sustained injuries from a grenadeexplosion. According to WitnessA, whenthe Interahamwe returned the next day at dawn,he pretendedto be dead.His injured arm was stepped on andhe was hit on thehead with a sharpobject to see if he was alive, but he did not move. He spent that day, which he testified wasTuesday 12 April, at thatspot, while the Interahamwe looted the bodies. In themorning of 13 April,RPF soldiers came and took him and other survivors away. Witness A testified that therewere approximately twohundred survivors.
272.During the cross-examination, Defence counsel challenged the testimony of WitnessA asbeing inconsistentwith hisprior statement dated 7 December1995 made to OTP investigators. Hehad stated that he hadthree children, all of whomhad died in theattack. When asked about hisprior statement asto thenumber of children he hadthe witness maintained that four of his childrenhad died in the attack and that only one had survived. Hetestifiedthat hehad no interest insaying there was a survivoramong his children ifthey had all been killed.
273.Witness A was also asked about which radio station he waslistening to on themorning of 7 April1994. On directexamination he had testified that on thatday he hadtuned in to RTLM.The Witness explained that he generallylistened to RTLMbut that on thatparticular morninghe hadtuned in to RadioRwanda. He furthertestified that RTLM broadcast only in the afternoonand that he had also learnt about the death of the President onRTLM on 7 April1994 in theafternoon. Defence counsel also asked him how he had managed to listento theradio, as
Judgement,Prosecutor versus Rutaganda 103 CaseNo:ICTR-96-3-T ~ hehad testified that he did not own a radio.The witness explained that he listened tothe radio at hisneighbour’s house.
274.The Defence also asked the witnesswhether he knewthe Accused well. The witness answeredthat he hadnever spoken to theAccused but had known him for six years, having seen himmany times and having worked for him. Through further examination, Defence elicited additionaldetails with respect to WitnessA’s earlier testimony regarding such matters as there beingother persons with the Accused in hisvehicle and the Accusedpositioning the lnterahamweat Nyanza.
275.Witness H, a Tutsiman from Kicukiro, testified that his house was attacked and searched inFebruary 1994 by Interahamwe,armed with clubs, who had arrived shortly before a vehicle. WitnessH was told that General Karangwa and the Accused, who owned the vehicle,were inside it.The Witness said that the Accused was his neighbour and lived 600 metres from his house. He knewthe Accused as a businessmanwho imported beer, and he alsoknew him as thevice- presidentof thelnterahamwe. When the killings began after the plane crash on 6 April, WitnessH took his family to theETO school, for their protection, where UNAMIR troops told themto comeinside the compound. He statedthat there were 3,500 to 4,000refugees at the ETO,some of whomwere in buildingsbut most of whomwere on thesports field where Witness H was.The witnesstestified that the lnterahamwe, armed with guns, grenades and other weapons,came and surrounded the ETO, but that they did not attack because they were afraid of the UNAMIRtroops.
276.On 11 April1994, Witness H sawthe UNAMIR troops packing up to leave.A groupof refugees,including the Witness, positioned themselves in frontof a UNAMIRvehicle and beggedthe troops to stay,but they would not. According to WitnessH, onceUNAMIR left the ETOcompound, the lnterahamwe immediately entered and proceeded to attack,firing guns and hurlinggrenades. At that time, Witness H saw the Accused with Gerard Karangwa, the President
Judgement,Prosecutor versus Rutaganda 104 CaseNo:ICTR-96-3-T ~ i I ¯ i i I i i i i I ~1ii I1111 i III] I IIi iIIi IiI iiii i1~i, I ...... i I Ili I Ii I I Ii I I Ii I I Ii I I I~ I I Ii ¯ I Ii I I II I I Ii I I I iI I I iI ¯ I iI I ii ¯ii i I I ¯I ¯ I ¯] I I II ¯ I I I I I I I iI I I Ii I I II I I iI I I I I I iI ¯ I Ii I I Ii I, IiI I I ...... I I I I I I I I I ¯ I ¯ III ofthe lnterahamwe at the commune level. According to the Witness, as anlnterahamwe official atthe national level, the Accused ranked higher than Karangwa. They were in the group in front of him,and the group began throwing grenades and firing. The Witness saw the Accused before theshots were fired.
277.Witness H testified that he left the ETO with others and headed for the Amahoro stadium whichhe thought would be safe as itwas under RPF control. En route,they were stopped by the lnterahamweandled to a roadwhere they found soldiers who ordered them to sitdown on the road.Thereafter, a military commander came and told them that he wastaking them to Nyanza wherehe couldensure their safety. Led by ColonelRusatila and surrounded on both sides by soldiersand lnterahamwe, thegroup of refugeeswas escorted to Nyanza.Along the way, the lnterahamwe,who were armed with machetes, grenades, spears and other weapons, beat and threatenedthe refugees. Ofthe four thousand refugees, many were injured en routeto Nyanza. WitnessH sawthe Accused on theway to Nyanza,at theKicukiro centre. The Accused was in a separategroup talking to a numberof people,including Mr. Kagina, a teacherat theETO schoolwhom he knewto be a memberof thelnterahamwe. When they arrived at Nyanza,the Interahamweandthe soldiers ordered the refugees to stopand to sitdown. The Hutus were told toidentify themselves andto stand up. They showed their identity cards and were told to leave. Thereafter,grenades were thrown and shots fired at thegroup. Witness H managedto escape and hideunder a smallbush sixty metres away. From that location, the witness heard shots and cries ofpain. When the soldiers ran out of grenades and bullets, they asked the lnterahamwe tobegin killingpeople with knives. The killing lasted for more than an hour.Witness H heardthe soldierstell the Interahamwe to look around for people who were not dead yet and finish them off.Witness H testified that he did not see the Accused at Nyanza.He hadwaited until nightfall, andthen fled to Kicikuro.
278.Under cross-examination, Witness H confirmedthat he hadbeen at theETO compound from7 to 11 April.The Defence asked Witness H whetherhe hadmet lnterahamwe on the way
Judgement,Prosecutor versus Rutaganda 105 CaseNo:ICTR-96-3-T ~ to theETO, to whichhe repliedthat he hadseen several groups of lnterahamwecarrying weapons,but that they had not prevented him from going to theETO. The Defence also asked WitnessH to state specifically where he waslocated on theETO sports field, the number of UNAMIRtroops and their location. Witness H statedthat he hadmoved around on thesports fieldduring his stay at theETO. He testifiedthat the UNAMIR troops were camped near the sportsfield. When questioned onthe activities ofthe lnterahamwe before the soldiers left, and thecircumstances of his departure from the ETO, Witness H stated that while he was at the ETO thelnterahamwe did launch small-scale attacks, which were repelled by theUNAMIR troops.
279.Defence counsel also asked Witness H how the refugees reacted to beingdiverted from theroad to Amahorostadium towards Nyanza, whether they believed what they had been told abouttheir safety, how they felt, his location within the crowd of refugees, enroute to Nyanza, andthe location ofthe bush at Nyanza where he hidduring the attack on therefugees aswell as thelocation of theInterahamwe and the soldiers during that attack. To thoseand related questionsfrom the Defence, Witness H replied by providingadditional information that had remainedunclear under direct examination.
280.Witness DD, a Tutsiman who was a highschool student in 1994,testified that he was a neighbourof theAccused and also knew him as thevice-president of the lnterahamwe. When helearned of the death of the President, Witness DD and his family fled to the ETO for refuge becausethe UNAMIR troops were there and they thought their safety would be ensured.While at ETO,Witness DD sawthe Interahamwe, some on footand others in vehicles.They were armed,but Witness DD saidthey felt safe because of theUNAMIR presence. At theETO, WitnessDD stayedon thesports field, and had gone into one of thebuildings only once. He estimatedthat there were approximately 5,000 refugees on theETO premises. On 11 April, whenthe UNAMIR troops left, Witness DD sawthe lnterahamwe attack. He testifiedthat lnterahamweleaders were present and named the Accused as wellas thecouncillor of Kicukiro, whowas also his neighbour, as having been among these leaders. He sawthe Accused at about
Judgement,Prosecutor versus Rutaganda 106 CaseNo:ICTR-96-3-T ~ fiftymetres away from the ETO entrance, together with the councillor and many others he was unableto identify.According to WitnessDD, all of themwere armed, and the Accused had a gun.Witness DD fledthe ETO when the Interahamwe attacked and was thus separated from his family.
281.Witness DD wentto theSonatube factory, where he andother persons were stopped by soldierswho ordered them to siton theground, which they did. The soldiers said they would takethem to Nyanzawhere they would provide them with assistance. According to WitnessDD, thewomen with children were forcibly separated from the group and raped by theInterahamwe. WitnessDD statedthat he learnedonly later that the women had been raped, when he saw them againand they told him that the Interahamwe had made them their wives, raped them and impregnatedthem. When they arrived at Nyanza,the refugees were assembled and surrounded by soldiersand Interahamwe. TheHutus were then asked to showtheir identity cards and to separatethemselves from the group, following which they were allowed to leave.Witness DD alsosaw a personwho tried to passfor a Hutu,shot on thespot. Once the Hutus had been separated,the soldiers began to killpeople and throw grenades. When they stopped throwing grenades,they asked the Interahamwe to check the bodies for any survivors and to finishthem off.Witness DD testifiedthat he didnot see the Accused again after the ETO.
282.During cross-examination, Defence counsel asked Witness DD aboutthe circumstances inwhich he hadseen the Accused at theETO - whereprecisely ithad been, and whether it was anopen space with unobstructed view. The witness testified that he had been on the sports field whenhe sawthe Accused. The Defence counsel submitted that in hispre-trial statement, WitnessDD had stated that he hadseen the Accused when he leftthe classroom with his family andthat the Accused was in theschool yard. The witness maintained that he hadbeen on the sportsfield, and reiterated that he had come out of theclassroom tosee members of hisfamily. Hestated that the confusion stemmed from the fact that there was a basketballcourt near the entranceto theETO. The Defence Counsel noted that there were several buildings between the
Judgement,Prosecutor versus Rutaganda 107 CaseNo:ICTR-96-3-T ~
...... ,..,...... ¯...... ,....¯...., ¯.,....,...... ¯.....,...,....¯...... ¯....¯...... ¯.¯...... ,.. sportsfield and the ETO entrance and that the witness could have had an open,unobstructed view.The witness responded that he hadbeen on thesports field and that there were no buildingsthere.
283.Witness W, a Tutsiman, also a neighbourof theAccused’s, testified that he knewthe Accusedas the vice-president ofthe Interahamwe, andalso as anengineer and a businessman. On themorning of 7 April,Witness W fledhis home, for Luberizi. On theway, he metthe Accusedsetting up a roadblockin thecompany of theInterahamwe.
284.There were many people at thatlocation and Witness W was able to returnto hishouse, wherehe hidin thenearby bushes until nightfall, when he fled to the ETO together with four of hissister’s children. He wentto theETO because the UNAMIR troops were there. Witness W testifiedthat after the UNAMIR troops left, the Interahamwe and the Presidential Guard immediatelyentered the ETO compound,armed with grenades, machetes and clubs.He recognizedsome of theInterahamwe he had seen with the Accused at theroadblock on his way to theETO but did not see the Accused. The Interahamwe then began to throwgrenades onto thesports field and between the buildings where there were many people. His older brother’s childrenand other people he knewwere killed in that attack. Witness W also saw his mother die froma blowfrom a club.He himselfwas injured though not seriously and was able to flee throughthe back of theETO compound to thehouse of a whiteperson he knew.The latter who couldnot keep him in hishouse advised him to go to Sonatube.
285.Witness W walkedtowards Sonatube, together with others who had fled the ETO. They werestopped at Sonatube by soldierswho told them that Rusatila had ordered that they be sent to Nyanzawhere their security would be ensured. There were approximately 4, 500 refugees at Sonatube.They sat on theground for about 30 minutes,and were forced towards Nyanza by the Interahamweand soldiers of thePresidential Guard. Along the way, the refugees, surrounded by theInterahamwe, were mistreated. Some were stripped off their clothing or money,and
Judgement,Prosecutor versus Rutaganda 108 CaseNo: ICTR-96-3-T otherswere killed by thelnterahamwe andthe Presidential Guards. Witness W recognized some of theInterahamwe on the road to Nyanza, and he observedthe vehicle of the Accused bringing inInterahamwe asreinforcements. Hetestified that the Accused could have been in thisvehicle, whichhe onlysaw from afar, but he didnot actually see the Accused. As theyapproached Nyanza,Witness W realized that they would be killedrather than protected. He and about 150 of hiscompanions broke away from the group and fled. Some of themwere shot from behind by the lnterahamwe.Witness W and hiscompanions hid in theforest nearby waiting for nightfall,during which time they heard gunfire from the Nyanza hill. They then fled to anRPF zone,the group of 150 having been reduced to only 60 by thetime they arrived.
286.During cross-examination, Defence counsel asked Witness W whichmembers of his familyarrived at theETO school with him. The Witness stated that his father, the children of hiselder brother and others living in thehouse were with him. When confronted with his testimonyon directexamination, he explained that he hadmistakenly said he waswith the childrenofhis sister but that he meant his brother. Most of the cross-examination ofWitness W relatedto other events and not to his experience at the ETO and Nyanza.
287.Luc Lemaire, a captain in theBelgian army who served with UNAMIR, testified that he wasstationed at theETO school, until the departure of UNAMIRtroops from ETO on 11 April. He testifiedthat there were approximately 2,000 refugees in theETO compound by thetime UNAMIRleft. Captain Lemaire testified that at that time there was increased aggression bythe lnterahamwenear the ETO and that the latter were gathering quite near the compound, and were seensometimeswith weapons. Under cross-examination, Captain Lemaire was questioned about thelnterahamwe. He stated that he had not seen Interahamwe in uniform near the ETO, but that heknew that the people he hadseen were Interahamwe forthey were able to moveabout freely andhe hadbeen told so by thoseat theETO compound who knew them.
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288.Defence Witness DZZ, a Hutuwoman from Kicukiro, testified that she fled to a nearby churchmission on 7 April,after hearing the sound of shooting.From there, on thesame day she wastaken by a Belgianpriest to theETO, about one and a halfkilometres away, along with a groupof 25 other refugees. She testified that when she arrived, there were about 2,000 refugees at the ETO.More people came subsequently, and Witness DZZ said she continued to hear gunshots.While she was at theETO, she said that RPF soldiers in uniformcame to takeaway somepeople who were Tutsi. On 9 April,the UNAMIR soldiers told Witness DZZ that they wouldbe leaving,and she left the next day, on 10 April.Witness DZZ said that about 500 peopleremained at ETOby thetime she left, and that many of thosewho left went to the Amahorostadium. Witness DZZ returnedhome, which was approximatelythree kilometres away.She testified that she did not see any bodies or anyroadblocks onthe way. Under cross- examination,Witness DZZ stated that she could not testify to what happened at theETO after sheleft on 10 April,or towhat happened subsequently at Nyanza.
289.Defence Witness DPP testifiedthat in April1994 she was livingin Kicukiro, approximately400 to 500metres from the ETO. She said that she saw the UNAMIRtroops leavethe ETO on 11 April on her way to get medicine for her sick child. After they left, she saw aboutfifty people including some people she knew go into ETO. She testified that they were not wearinguniforms and that some of themwere armed. She heard gunshots, but from far away. WitnessDPP saw people coming out of theETO, carrying away school property, and then she A sawmen, women and children leaving the compound. She stated that they were not running and wereunharmed. She testified that she did not see the Accused. In May1994, Witness DPP soughtrefuge at the ETO. She said that at thattime bullets were falling on the ETO, and she encounteredsome people who had taken refuge there after 6 Apriland stayed there throughout thisperiod. She testified that there were mostly Tutsi but some Hutu refugees as well.After 11 May,Witness DPP said that Government soldiers came to campat theETO as well,and that therewas no problem between them and the Tutsis there. She testified that on 23 Mayeveryone leftthe ETO, as the RPF were shooting. During cross-examination, Witness DPP stated that she
Judgement,Prosecutor versus Rutaganda 110 CaseNo:1CTR-96-3-T ~ stayedby theETO for two hours on 11 April.She said that she did not see people in theETO beingattacked and clarified that she saw people entering but could not see the place where the refugeeswere from where she was. She stated that one person she spoke to toldher they were onthe way to the stadium but had been stopped en routeand forced back. This person also told herthat when they reached where they were going some were killed by knivesor shotdead.
290.The Accused testified that on the morning of 11 April,his neighbour woke him up totell himthat the RPF were already in theneighbourhood andthat they had killed a child.The Accuseddecided that he andhis family had to leave their house in Kicukiro.They left around 7:30a.m., with 14 people in his vehicle, and they drove to the house of an acquaintance, passing throughmanyroadblocks. He found his acquaintance about to leavefor Kibuye with his family. Theyleft the house of this acquaintance around noon, and after much trouble at theroadblocks, arrivedaround 5: 3 0 p.m.in Masango,where the Accused had a housein Karambi.The Accused describeda mass exodus from the city, with many people on footand others in vehicles.The Accusedsaid he was never in the ETO, at the entrance or in thecompound, on 11 April or any othertime. He saidhe knewof thebuildings there only through the slides which had been presentedduring the trial proceedings and that he hadhad no reasonto go to theETO. The Accusedsaid he remainedin Masangocommune until 14 April,when he returnedto Kigali. Duringcross-examination, theAccused said that he had not been aware of the fact that there were refugeesat theETO.
291.Defence Witness DDD testified that she and the Accused and their family had left their homeon the morning of 11April and gone to the house of a familyfriend in Kiyovu, where they arrivedat around9 a.m.They found that this friend was leaving Kiyovu for security reasons. Aftermanaging to obtainpetrol, Witness DDD said they left Kiyovu around mid-day for Masango,where they arrived at 6 p.m.She said that the Accused remained in Masangountil 14April.
Judgement,Prosecutor versus Rutaganda 111 CaseNo: 1CTR-96-3-T
FactualFindings
292.Having heard and reviewed the testimony of theProsecution witnesses regarding the allegationssetforth in paragraphs 13,14, 15 and 16 of the Indictment, theTrial Chamber finds WitnessA, WitnessH, WitnessDD, Witness W andCaptain Luc Lemaire all to be credible witnesses.They presented a similar account of the refugee situation atthe ETO, the attack by thelnterahamwe following the departure of UNAMIRtroops, the diversion of refugeesheading towardsAmahoro stadium to Nyanza,and the massacreof refugeesby soldiersand the Interahamwewhich took place at Nyanza.Extensive cross-examination of the witnesses primarilyelicited further details and background, without revealing any material inconsistencies. TheChamber considers that such inconsistencies aspointed out were not material and could for themost part be attributed toexternal factors relating topre-trial statements andother language andtranslation issues. For example, the Defence highlighted thefact that the trial testimony of WitnessA that he had four children who died and one who survived was inconsistent with the pre-trialstatement hesigned in 1995 stating that he had three children, all of whom died. The Chamberconsiders that the witness knew how manychildren he hadand howmany of them died,and that the error can be attributed todifficulties oftranscription andtranslation, as addressedunder the Evidentiary Matters.
293.Having heard and reviewedthe testimonyof theDefence witnesses, including the Accused,regarding the allegations setforth in paragraphs13,14, 15 and16 of the Indictment, theTrial Chamber makes the following findings with regard to theirevidence.
294.The Chamber notes that Witness DZZ was not, and did not claim to be,an eyewitnessto theevents at theETO compound and at Nyanzaon 11 April.Her testimony confirms that there wererefugees atthe ETO compound, but as she left prior to the events alleged in theIndictment, hertestimony cannot challenge the eyewitness accounts of theseevents presented by the Prosecution.Herassertion that most refugees had left the compound and that only about 500
Judgement,Prosecutor versus Rutaganda 112 Case No: ICTR-96-3-T ~ ,,,...¯.¯..¯¯¯,.,,,,H,,¯,,...... ,¯,¯,,¯,..,.,,,,,H¯, ...... ¯.¯. ¯¯ ,,¯ .¯,., ,,,,, ,,¯ .,, ,, .,, .., ,¯. ,¯ ,, .., ,., .¯, .¯, .¯, ,¯ .,¯ ,,¯ ,,,., ....., .¯.,,., ,.¯,,, .¯ .,, .,,., ,,,.¯, .¯, .¯, .,,., ..,,,, .¯,., .,, .¯,. remainedthere by thetime she left on 10April, is inconsistent with the testimony ofall the witnesseswho were still there on 11 Aprilwhen UNAMIRleft, including Captain Luc Lemaire, whoestimated - as they all did - thatthere were severalthousand refugees at theETO compound on 11April.
295¯Witness DPP was on theroad in frontofthe ETO on 11 April,and she saw the UNAMIR troopsleaving. She saw other people, including some armed, enter the compound, but she could notsee inside the compound from where she was standing. She heard gunshots, although she saidthey were far away. She subsequently sawsome people departing from the ETO but those peoplewere not harmed and they were not rurming. The Chamber considers that much of this testimonyis consistentwith evidence provided by Prosecutionwitnesses, with regard to the departureof theUNAMIR troops and the subsequent incursion of otherswho were armed. WitnessDPP concluded that these others went to loot the building, but testified that she was not ina positiontosee what was happening inside¯
296¯The Chamber accepts the evidence of DefenceWitness DZZ andDefence Witness DPP butfindsthat this evidence does not refute the evidence presented bythe Prosecution withrespect tothe allegations setforth in paragraphs 13,14, 15 and 16 of the Indictment.
297.The Chamber has considered the testimony of theAccused and Witness DDD, jointly, as theirtestimony isconsistent and puts forward a defence of alibi,claiming that the Accused wasen routeto Masangoon 11 April and was not present at theETO, at Nyanza,or at any of the locationson theway to theETO from Nyanza where Witness A, WitnessH, WitnessDD and WitnessW testified that they saw him on that day. The Chamber notes that the alibi defence was notintroduced until near the end of the trial, after the Prosecution rested its case. Neither the Accusednor Witness DDD mentioned the alibi at thetime of thearrest of the Accused or during anyof the pre-trial proceedings¯
Judgement,Prosecutor versus Rutaganda 113 CaseNo:ICTR-96-3-T ~
298.The Chamber particularly notes that Defence counsel did not mention the alibi of the Accusedin heropening statement or in hercross-examination of any of theProsecution witnesseswho testified over a periodof 18 months.Consequently, Witness A, WitnessH, WitnessDD andWitness W were never confronted with and given an opportunityto respond to theassertion that the Accused was not present on 11April at the ETO or at Nyanza and that their testimonymust therefore be false.The Chamber has found these Prosecution witnesses to be credible,and finds the extremely delayed revelation of an alibidefence to be suspect.The inferencetobe drawn is that this defence was an afterthoughtandthat the account of dates was tailoredby the Accusedand DefenseWitness DDD, following the conclusionof the Prosecution’scase. The only witness to supportthe alibi of theAccused is WitnessDDD, and theChamber is mindfulthat she has a personalinterest inhis protection. Forthese reasons, the Chamberdoes not accept the testimony of theAccused and Witness DDD that they were on the wayto Masangoon 11 April.
299.On thebasis of thetestimony cited above, the Chamber finds it establishedbeyond a reasonabledoubt that from 7 Aprilto 11 April1994, several thousand people, primarily Tutsis, soughtrefuge at theETO. As allof thewitnesses testified, they went to theETO because UNAMIRtroops were stationed there and they thought they would find protection there. The lnterahamwe,armed with guns, grenades, machetes and clubs,gathered outside the ETO compound,effectively surrounding it. Colonel Leonides Rusatila separated Hutus from Tutsis at theETO, prior to theattack, and several hundred Hutus left the ETO compound. When the UNAMIRtroops left the ETO on 11 April1994, the Interahamweand membersof the PresidentialGuard entered and attacked the compound, throwing grenades, firing guns and killingwith machetes and clubs. A largenumber of Tutsis,including many family members and othersknown to the witnesses, were killed in this attack.
300.Witness H saw the Accused at the time of this attack on theETO, just before shots were fired,together with Gerard Karangwa, the President of the lnterahamwe at the Commune level,
Judgement,Prosecutor versus Rutaganda 114 CaseNo:ICTR-96-3-T ~ in a groupwhich began throwing grenades and firing. Witness DD alsosaw the Accused at the timeof theattack, armed with a gun,about 50 metresaway from the ETO entrance. Based on thisevidence, the Chamber finds beyond a reasonabledoubt that the Accused was present and participatedin the attack on Tutsi refugees atthe ETO school.
301.Many of the refugeeswho escapedor survivedthe attackat ETOheaded in groups towardsthe Amahoro Stadium, where they thought they would be safeas it wasunder RPF control.These groups were stopped en route by soldiers,gathered together near the Sonatube factoryand diverted, having been told that Colonel Rusatilahad ordered them to Nyanza where theirsafety would be ensured.Some women were takenforcibly from the groupand subsequentlyraped. Flanked on bothsides by Interahamwe,approximately 4,000 refugees were thenforcibly marched to Nyanza.Along the way, these refugees were abused, threatened and killedby soldiersand by theInterahamwe surrounding them, who were armed with machetes, clubs,axes, and other weapons.
302.When they arrived at Nyanza,the refugees were stopped by thelnterahamwe, assembled togetherand made to sitdown in onespot, below a hillon whichthere were armed soldiers. Theywere surrounded by Interahamwe and soldiers. Hutus were told to standup andidentify themselvesand were allowed to leave.Some Tutsis who tried to leave,pretending they were Hums,were killed on thespot by lnterahamwewho knew them. Grenades were then thrown into thecrowd by the lnterahamwe, andthe soldiers began to firetheir guns from the hillside. Those whotried to fleewere brought back by thelnterahamwe surrounding them. This attack took placeon 11 April, in the late afternoon and into the evening¯ Many were killed in this attack, includingWitness A’s wife and four oftheir five children. Following the shooting and grenades, thesoldiers told the Interahamwe to begin killing people. The Interahamwe then began killing peoplewith clubs and other weapons. Some girls were selected, put aside, and raped before they werekilled. Clothinghad been removed from many of thewomen who were killed. The killing lastedmore than an hour. The soldiers then told the Interahamwe tolook for those who were not
Judgement,Prosecutor versus Rutaganda 115 Case No: 1CTR-96-3-T ~ ~1~ ,i Iiiii Iii Iii iIi IIi IIi II IIi IIi iI ~11 Iii iIi iI ~1III iII ill Iii Iii iIi iI Iii ~i III III I111 III III III I I ...... II~11 II] I~ i Iii II III iii ~1, ii ~11 Iii iI IIIIi iiIii III III II III II III III II III III III III III II III 11] III I] 11 111 I deadand finish them off. The lnterahamwe left at approximately11:00 p.m. and returned on the morningof 12 April,when they came back to lootand to killall survivingrefugees. Approximately200people survived the massacre.
303.On the way to Nyanza,Witness A saw the Accusedcoming in a vehiclefrom the directionofNyanza,pullover to the side of the road and get out. Thereafter, hesaw the Accused waveaway a personwho had worked for him and approached him from the marching group of refugeesfor assistance. Witness H also saw the Accused on theway to Nyanza,standing in a grouptalking to a memberof thelnterahamwe whom he recognizedand other people.
304.Witness W saw a vehiclebelonging to the Accusedbringing in lnterahamweas reinforcements.At Nyanza, Witness A againsaw the Accused, directing the Interahamwe who werearmed with grenades, machetes and clubs - intoposition tosurround the refugees just prior tothe massacre. The Chamber finds beyond a reasonabledoubt that the Accused was present and participatedinthe forced diversion of refugees toNyanza and that he directed and participated inthe attack at Nyanza.
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4.5.Paragraph 17 of theIndictment
305¯ Paragraph17 of the Indictment reads as follows:
"In Aprilof 1994,on datesunknown, in MasangoCommune, Georges Rutaganda and othersknown to theProsecutor conducted house-to-house searches for Tutsis and their families.Throughout these searches, Tutsis were separated from Hutus and taken to a river.Georges Rutaganda instructed the lnterahamwe to track all the Tutsis and throw theminto the river".
Regardingallegations according to whichin Aprilof 1994,on datesunknown, in Masango Commune,Georges Rutaganda and others known to theProsecutor conducted house-to-house searchesfor Tutsis and their families, and that throughout these searches, Tutsis were separated fromHutus and taken to a river:
306.ProsecutionWitness EE testified that he saw, on three occasions, thefather of the accused andother lnterahamwe go to pick up Tutsis in vehicles, telling them that they were taking them toa safelocation. Witness EE testifiedthat he had seen these vehicles goto the river. He also explainedthat other people were led on foot to the river. He testified that his neighbours hadtold himthat the people taken to the river had been thrown into it. Witness EE alsostated that, from thewindow of his house, he heardpeople say they were returning from the river where they had justthrown Tutsis.
307.Under cross-examination, in reply to theDefence, EE indicatedthat he could not see the riverfrom his house.
308.Prosecution Witness C alsotestified before the Chamber that, in Masango,the people whowere tracking the Tutsis went to collectthose who had sought refuge at theBureau
Judgement,Prosecutor versus Rutaganda 117 CaseNo:ICTR-96-3-T ~ communalinorder to beat and kill them. Witness C testified that many Tutsis had therefore been killedin theMasango region. Those who sought refuge at the river were thrown into it while otherswere thrown into mass graves. In replyto questionsfrom the Chamber, Witness C specifiedclearly that he did not see the Accused participate inthe said massacres.
Regardingthe allegationsformulated as follows"Georges Rutaganda instructed the Interahamwetotrack all the Tutsis and throw them into the river":
309.Prosecution Witness O testifiedbefore the Chamber that he saw theaccused, on 22 April1994, at about5 p.m.,in Masango.According to Witness O, the Accused was in mufti, armedwith a shortfirearm and was driving a whiteToyota pick-up which he parkedat some 15metres from Witness O’s shop. Witness O then stated that he saw at the rear of this vehicle, gunspartially covered with a tarpaulin.Witness O alsotestified that the Accused was accompaniedby RobertKajuga, National President of theInterahamwe and some10 other peopleincluding about four in militaryuniform and others in thedistinctive green, red and yellowInterahamwe uniform. Witness O testifiedthat some of themen accompanying the Accusedcarried grenades orfirearms and that Kajuga was carrying grenades onhis belt. Witness O furtherstated that he sawthe Accused speak with a certainKarera, in charge of theYouth Wingof thelocal lnterahamwe za MRND, in Masango,near a polefrom which a flagflew.
310.Prosecution Witness V testified before the Chamber that the Accused held a meetingat a placeknown as Gwanda(sic), located between Masango and Karambi, on a datehe couldnot accuratelyrecall. During the examination-in-chief, WitnessV situated this meeting at the beginningofthe month of May1994 and, under cross-examination, hestated that it was rather inApril 1994. Witness V stated that the Accused conducted this meeting in his capacity asVice- Presidentofthe Interahamwe. Witness V testifiedthat theAccused said during that meeting that itwas necessary tostop eating the cows of Tutsis and to get rid of the Tutsis instead. Witness V, a Tutsiman, who attended the meeting, fled to safety.According to Witness V, themassacres
dudgement,Prosecutor versus Rutaganda 118 CaseNo:ICTR-96-3-T ~
in Masangostarted after the Accused had held the said meeting. Witness V testified that prior tothat there had been some looting but no killings.
311.Prosecution Witness C saw the Accusedattending an MRNDmeeting at Masango. Accordingto the witness, the Accused was wearing the uniform of thelnterahamwe. Thefather of theAccused, Esdras Mpamo, was also in attendanceas well as a certainJean-Made Vianney Jyojyi.The two individuals whotook the floor, MwanafunziAnted anda Protestant pastor urged thegathering not to support the Arusha Accords and to fight the enemy. Accordingto Witness C, theRPF and the Tutsis were referred to as "theenemy" at the time. The witness also testified thatthe proverbs used at the meeting were meant to convey the notion that Tutsis, their families andchildren were to be tracked.Witness C noted that the Accused was present throughout the meetingand did not object to thestatements made there. He wasseated with Mwananfuzi Anteri andSebuhuro at thetable facing the gathering. His father, Esdras Mpamo, a former Bourgmestre of Masangowho at thetime of theevents alleged was an MRNDparliamentarian wasalso seated atthe table next to the speakers. Witness C testified that the attacks against the Tutsis started afterthat meting.
312.Prosecution Witness EE, for his part, testified before the Chamber that he hadattended a meeting,after 6 April1994, at whichthe father of the Accused, Mpamo, who was chairing the p~ meeting,had declared that Tutsis had to be killedto preventthem from taking over. The meetingwas held near the Masango Communal Office. According to EE, theAccused was in attendanceand was seated next to his father, at a tablefacing the audience. He explained that theAccused and his father were not the only ones seated at the table and that the Accused had nottaken the floor.
313.Under cross-examination, Witness EE testified that he hadattended that meeting because he hadreceived a written invitation from Esdras Mpamo. He confirmedthat he waspersonally surprisedat thestatements made at themeeting and that he hadnot reacted, nor had the
Judgement,Prosecutor versus Rutaganda 119 CaseNo:ICTR-96-3-T ~ bourgmestre,Louis, who was also present. Witness EE thenindicated that he wasalso seated atthe table, next to the speakers, facing the audience.
FactualFindings
314.The Chamber notes that the Prosecutor had led no evidencein supportof the allegations thatin April1994, the Accused had conducted house-to-house searches for Tutsis and their familiesin MasangoCommune and that, throughout these searches, Tutsis were separated from Hutusand taken to a fiver.
315.Regarding the allegations that Georges Rutaganda had ordered the lnterahamwe to track downall Tutsis and throwthem into the river, the Chamber is satisfied, based on the testimonies ofWitnesses C, V andEE, that the Accused had attended at leastone meeting at which specific statementsof incitement tokill Tutsis were made. The Chamber notes that the Accused did not objectto such statements andthat, in view of the authority heexercised over the population and theposition heoccupied during that meeting, being seated at the table of speakers next to his father,the former bourgmestre of the Commune, he hadacquiesced to suchstatements. The Chambernotes however that only Prosecution Witness V hadtestified that the Accused had chairedthe meeting and had taken the floor. The Chamber notes that V’s testimony onthis point is notcorroboratedby those of Witnesses C and EE, both of whomhad declared that the Accused wasindeed present at the meeting and had taken a seatat the table of speakersbut had himself nottaken the floor. Accordingly, the Chamber holds that, on thebasis of uncorroborated testimoniespresented to it, it has not been proven beyond a reasonable doubt that the Accused orderedthat all Tutsis be tracked and thrown into the fiver.
Judgement,Prosecutor versus Rutaganda 120 CaseNo:ICTR-96-3-T ~
4.6Paragraph 18 of theIndictment
316. Paragraph18 of theIndictment reads as follows:
"Onor aboutApril 28, 1994, Georges Rutaganda, together with lnterahamwe members, collectedresidents from Kigaliand detainedthem near the Amgargarage. GeorgesRutaganda and the lnterahamwe demanded identity cards from the detainees. A numberof persons,including Emmanuel Kayitare, were forcibly separated from the group.Later that day, Emmanuel Kayitare attempted to fleefrom where he wasbeing detainedand Georges Rutaganda pursued him, caught him and struck him on thehead witha macheteand killed him."
Regardingthe allegations that on or aboutApril 28, 1994, the Accused, together with Interahamwemembers, collected residents from Kigali and detained them near the Amgar garageand demanded identity cards from them:
317.Prosecution Witness U testified before the Chamber that, on a day,that he was unable to pinpoint but that he put after 6 April1994, at about3 p.m.,he hid in a bushnear a garageof whichhe knewneither the name nor the owner. Later, Witness U recognized the said garage on a slidetendered bythe Prosecutor asExhibit 143. The Chamber notes that the garage identified is Amgar.
318.The witness testified that he clearly saw the following events unfold near the garage from wherehe washiding. The Accused and some 30 Interahamwe,some of whomwere in military uniformand others in mufti, armed with tools such as machetes, took away some 30 people there to killthem. According to WitnessU, theInterahamwe looked like the bodyguards of the Accused.
Judgement,Prosecutor versus Rutaganda 121 /6o0
CaseNo:ICTR-96-3-T ~
319.Prosecution Witness AA testifiedthat on 28 April1994, around 10 a.m.,Interahamwe conducteda house-to-house search in theAgakingiro neighbourhood asking the people to show theiridentity cards. They took away those they detained towards the "Hindi Mandar’ temple, locatednear the Amgar garage and a massgrave, at a placenow called Jango. According to WitnessAA, streams of peoplewho had been forced out of theirhomes headed up towardsthat location.Witness AA wasamong the persons detained and led near the garage. He testified that theAccused was present at the location where the detainees were gathered. Accordingto Witness AA,the Accused was the leader of thoselnterahamwe. He wore a militaryuniform, comprising a coatand trousers, andcarried a rifle.
320.Under cross-examination, Witness AA reiteratedhis testimony that the Accused himself didnot directly conduct searches, atleast he didnot see him do so. The Accused was present at thelocation where the detainees were gathered, near Amgar garage. The accused was already therewhen AA arrived.Also under cross-examination, Witness AA testifiedthat the Accused carrieda pistol and not a rifle,and that he also carried grenades onhis belt.
321.According to WitnessAA, the persons who managed to leavethis site where people had beenassembled were Hutus. Those who were kept behind were either Tutsis or peoplefrom anotherethnic group, known as memberof politicalparties opposed to the government. AccordingtoWitness AA, those persons were later killed and buried on thespot.
Regardingthe allegationsthat a numberof persons,including Emmanuel Kayitare, were forciblyseparated from the group and that when Emmanuel Kayitare attempted toffee, the Accusedpursued him, caught him and struck him on thehead with a macheteand killed him:
322.Witness AA testifiedthattheAccused was on thespot where the detainees including him wereassembled. According to WitnessAA, all the persons detained had their eyes riveted on theAccused in thehope that he wouldhave mercy. Witness AA testifiedthat the people were
Judgement,Prosecutor versus Rutaganda 122 CaseNo:ICTR-96-3-T ~ afraidand that whenever the Accused looked at themthey cast their eyes downwards. Witness AA wasseated, crouching some 10 or 20 metresaway from the Accused.
323¯According to WitnessAA, the detaineesincluded Emmanuel Kayitare, nicknamed Rujindiri.Witness AA knewEmmanuel Kayitare’s younger brother, Michel Kayitare very well. A mancalled Cekeri told Emmanuel that he knewhim and that he wasaware that he wasgoing to theCND. Witness AA testifiedduring the examination-in-chief thatEmmanuel took fright andtook offrunning. Witness AA sawthe Accused grab Emmanuel by thecollar to preventhim fromescaping. The Accused seized a machetefrom Cekeri with which he struckEmmanuel on theneck¯
324.In answerto questionsfrom the Bench, Witness AA reiteratedthat the Accused did kill Emmanuelnot with a bulletbut rather with a machete.Witness AA thenexplained that the Accusedwas not carrying a gun but rather a pistol.When reminded by theDefence that he had testifiedbefore the Chamber, just as he hadstated to theinvestigators ofthe Office of the Prosecutorthat the Accused was carrying a gun, Witness AA replied that it was a pistol.
325.Under cross-examination, Witness AA testifiedthat the Accused had grabbed Emmanuel bythe collar of his shirt when the latter stood up to run and therefore had not chased after him. Hefurther stated that the Accused had not even taken a step;he had merely turned around and grabbedEmmanuel. In answerto theDefence, Witness AA addedthat the Accused had seized Emmanuelwith one hand while holding the weapon withthe other hand. Witness AA confirmed thatthe Accused did not run after Emmanuel. Witness AA thenstated that when he wascalled by Cekeri,Emmanuel stood up as if to walktowards him. Emmanuel walked by theAccused. Thatwas when the Accused grabbed him by theneck.
Judgement,Prosecutor versus Rutaganda 123 CaseNo: ICTR-96-3-T ~
326.Witness AA theninsisted on thefact that the Accused held Emmanuel by thecollar of hisshirt and not by the neck as he had previously stated to the investigators ofthe Office of the Prosecutor.
327.Under cross-examination, Witness AA reiteratedhis statement to theeffect that the Accusedhad struck Emmanuel on theneck with a machete.In responseto theDefence pointing outan inconsistency between his testimony and his statement tothe investigators ofthe Office of theProsecutorin which he had alleged that the Accused had split Emmanuel’s skull, Witness AAstated that he hadseen the Accused strike Emmanuel with a machete,that there had been a splashof blood and that he had covered his eyes with his hands.
328.In answerto theBench which had asked whether the splash of bloodwas from the front or theback of thehead, Witness AA stated that Emmanuel had fallen with his head to the ground andthat there was so much blood that neither his face nor his hair could be seen.
329.Prosecution Witness U testifiedbefore the Chamber that Emmanuel and another person, nicknamedVenant, were among those arrested and taken near the garage close to wherehe was hiding.U knewEmmanuel very well. He statedthat Emmanuel and Venant were tied together withtheir shirts lest they escaped. The Accused untied them.
330.Witness U testified that he hadthen heard the Accused, speaking out loud so as to be heard,telling those who were with him that he wasgoing to showthem how they should work. Accordingto U, theAccused had a machetehanging from his belt with which he hitEmmanuel on thehead. Witness U testified that Emmanuel’s head was split in two.Emmanuel fell dead instantly.According to WitnessU, Emmanuelwas killed by machetein a singleblow.
Judgement,Prosecutor versus Rutaganda 124 CaseNo:ICTR-96-3-T ~
331.Witness U testifiedfurther that when Emmanuel fell, the Accusedthen took the kalachnikovwhich he wascarrying on hisshoulder and shot Venant who also fell beside Emmanuel.
332.Again according to WitnessU, theAccused then picked up theirbodies and threw them intoa pitwith the help of thosewho were with him. Witness U identified the pit into which Emmanueland Venantwere thrown on the slidetendered as ProsecutionExhibit No.169. AccordingtoU, Emmanuelwas a Tutsiand Venant, a Hutu who did not approve of thekillings.
333.Witness U also stated that as he attemptedtoflee, he sawthe Accused engaged in killing witha macheteassisted by lnterahamwe.Thebodies were then thrown into a pit.Witness U statedthat there were two pits - a smallone into which two bodies were thrown and a largerinto whicha lotof bodieswere dumped.
FactualFindings
334.The Chamber is of theopinion that Witness AA is credibleand, consequently, accepts histestimony. Although contradictions emerged under cross-examination in his testimony with regardsto details, such contradictions arenot material and do not impugn the substance of his testimonyon thecircumstances of the death of EmmanuelKayitare. The Chamber finds that suchcontradictions maybe attributedto the possible trauma caused to WitnessAA as a result ofrecounting thepainful events he hadwitnessed and the period of timebetween the said events and AA’sappearance before the Chamber.Additionally, the Chamberrecalls that the inconsistenciesbetween the witness testimony and statements made before the trial must be analysedinthe light of difficulties linked, particularly, tothe interpretation ofthe questions asked andthe fact that those were not solemn statements made before a commissionerof oaths.
Judgement,Prosecutor versus Rutaganda 125 CaseNo:ICTR-96-3-T ~
335.In the instant case, the Chamber notes, for instance, that the difficulties Witness AA faced indescribing accurately thetype of weapon carded by the Accused, that is, whether it wasa rifle ora pistol,may be explained by lack of knowledge ofweapons and by the fact that the witness isunable to tell apart the two types of weapons.Similarly, the Chamber is of theopinion that WitnessAA’s inability to indicate whether the blow unleashed by the Accused cut offthe head orneck of the victim cannot call into question the reliability ofhis testimony since it is difficult fora layperson to ascertain therespective limits of the head and the neck.
336.Based on AA’stestimony, as substantiallycorroborated by Witness U, theChamber is satisfiedbeyond any reasonable doubt that, on 28 April1994, the lnterahamwe conducted a house-to-housesearch in theAgakingiro neighbourhood, asking people to showtheir identity cards.The Tutsi and people belonging tocertain political parties were taken towards the "Hindi Mandal"temple, near Amgar garage. The Accused was present at thelocation where the people caughtwere gathered¯ Hewore a militaryuniform, comprising a coat and trousers, and carried arifle.
337.Furthermore, after considering the respective testimonies of Witnesses AA andU, the Chamberis satisfiedthat they are corroborative as regards the circumstances surrounding the killingof EmmanuelKayitare, a Tutsi, by theAccused.
338.The Chambernotes that Witness U identifiedthe gravewhere Emmanuel and Venant werekilled and into which their bodies were thrown on theslide tendered by theProsecutor as exhibit169.
339.The Chamber observes that said slide tendered as exhibit169 shows the same view as the onetendered by theProsecutor as exhibit 269, which has been referred to byProfessor William Haglund,a forensic anthropologist, whohad appeared as anexpert witness for the Prosecutor, asan exhtunationsite identified as"RUG-1".
Judgement,Prosecutor versus Rutaganda 126 CaseNo:ICTR-96-3-T ~
340.According to ProfessorHaglund, three bodies were exhumed from the hole shown on the slidetendered asexhibit 26976. Dr. Nizam Peerwani, a pathologist, whohad worked jointly with ProfessorHaglund and who had also appeared as anexpert witness for the Prosecutor, submitted thefollowing findings on thethree bodies exhumed: The first body was that of a managed between35 and45 yearsat thetime of hisdeath the probable cause of which,according to Dr.Peerwani, was homicide. The second body was that of a woman,aged between 30 and39 yearsat thetime of herdeath the probable cause of whichwas homicide. The third exhumed bodywas that of a managed between 35 and45 at thetime of hisdeath the probable cause of which,according toDr. Peerwani, was blunt force trauma injuries.
341.Firstly, the Chamber, on thebasis of thetestimony by Dr.Kathleen Reich, a forensic anthropologist,calledby the Defence as an expert witness, isnot persuaded that the scientific methodused by ProfessorHaglund is suchas to allowthe Chamber to relyon hisconclusions inthe determination ofthe case.
342.Secondly and, above all, the Chamber notes that the Prosecutor hasfailed to show a direct linkbetween the findings of ProfessorHaglund and Dr. Peerwani and the specific allegations in theIndictment oreven to call the attention ofthe Chamber to thefact that the slide tendered by theProsecutor as exhibit 169, identified byWitness U as showingthe hole where Emmanuel and Venantwere killed and into which their bodies were thrown shows the same view as theslide tenderedas exhibit 269, featuring the exhumation site "RUG-1".
343.Consequently, theChamber holds that the said findings are not helpful to theChamber indetermining thefacts of thecase. Moreover, the Chamber is notsatisfied that the grave site
76SeeChapter 4, section3 (ofthe present Judgement), factual findings on theallegations contained paragraph12 of theIndictment.
Judgement,Prosecutor versus Rutaganda 127 CaseNo: ICTR-96-3-T referredto by WitnessU and Witness AA andthat exhumed by ProfessorHagltmd is oneand the salTle.
344.Finally, on thebasis of thetestimonies of Witnesses AA andU, theChamber finds that ithas been established beyond any reasonable doubt that the Accused struck Emmanuel Kayitare witha macheteand that the latter died instantly.
Judgement,Prosecutor versus Rutaganda 128 CaseNo:ICTR-96-3-T ~
4.7Charges as setforth in Paragraph19 of theIndictment.
345. Paragraph19 of the Indictment reads as follows:
"InJune 1994, on a dateunknown, Georges RUTAGANDA ordered people to burythe bodiesof victims in order to conceal his crimes from the international community."
EventsAlleged
346.In respect of the aforementioned allegation, Witness Q testified in direct examination that he was hidingin thehouse that belonged to a personhe identifiedas Thomaswhen an Interahamwenamed Cyuma took him and a younggirl to a holebehind the Technical school of Muhazi(l~cole technique deMuhazi). The Witness said that when he arrived at this hole he saw thecorpse of this nephew lying inside. He said that the young girl was killed by an lnterahamwe namedKarangwa, on theorders of Cyumaand he was aboutto be killedwhen a womanhe identifiedasMartha, who at thattime was the head of the cell, stopped Cyuma and the others fromkilling him.
347.Witness Q testified indirect examination that, whilst at thehole behind the Technical schoolof Muhazi, he sawanother hole that he referred toin hisevidence asthe third hole and hestated that he saw the Accused, inthe company ofother people, standing inthe vicinity ofthis hole.The Witness stated that, from where he was, he could see this hole but he could not get to it.The Witness stated that the Accused thereafter called Martha who immediately went to him, whereuponthe Accused ordered a stopto allkillings during the day and the dead buried immediately,as the killings were badly perceived by thepeople the Witness described as "whites"and "foreigners". According to the Witness, the Accused further ordered that killing shouldonly take place at night.
Judgement,Prosecutor versus Rutaganda -129- Case No: ICTR-96-3-T ~ I I I I I I I I ~ ~ I IllI IiiI iiiI ii I ~1 iI ~1 IIII IIII IIII III 111 I IIII IIII IIII III I ~ll ]III III I~I, III ...... I I II~ I ~ I I I I I I I~ I I I I~ I ] I I I I I ’ I I ~ I I I I I I I I I I I I ~ I I ’ I I I I ~ I I I I I I I I I I I I I ’ I I ’ I I I I I I I I l I I I I I I I I I I I I I I I I I I I I ~ I I I I I I 348.Witness Q testifiedin directexamination that the Accused was addressing all those peoplein thevicinity of thisthird hole when he ordered that all killings be stoppedand all corpsesburied. The Witness stated that he did not hear the Accused give these orders but that he hadlearnt of theseorders when Martha returned to thevicinity of thehole behind the Technicalschool and conveyedthem to Cyuma,Karangwa and the otherswho had been participatingin killings. When the Witness was asked by theProsecutor tostate what Martha said,in conveyingthe orders of theAccused, the Witness stated that Martha said that it was necessarytostop the killing. The remaining people will be killed after the burial of the Late PresidentJuvenal Habyafimana.
349.Under cross examination Witness Q statedthat Martha conveyed the orders of the Accusedwhen she stated that the killing must stop and the dead must be buriedimmediately, becausethe foreigners were not in favour of the killing. Inthe tail end of his cross examination, theWitness stated that he sawand he heardthe Accused give orders to Marthaand the other peoplethat were in the vicinity ofthe third hole. The Witness also testified that this incident tookplace at the end of April1994.
350.Witness AA testifiedin chief,that on 28 April1994 he sawthe Accused kill Emmanuel behindthe Amgar garage. The Witness also testified that there was a massgrave site at this locationand many bodies, including that of Emmanuelwere later exhumed from this mass grave.
351.Witness HH testifiedthat he washiding in a bushnear a roadblockand he sawPrefect Renzahotelling people manning a roadblock tostop the killings during the day because there was a satellitethat was monitoring their activities.
352.The Accused testified that he wastaken by a memberof UNAMIRto a roadblockwhere a UNAMIRconvoy was stopped. He statedthat there were 72 adultsin theconvoy. He stated thatthe roadblock was manned by angrypeople who were armed and soldiers. He stated that on
Judgement,Prosecutor versus Rutaganda 130 CaseNo:ICTR-96-3-T ~
hisarrival at theroadblock, people from the neighbourhood, some of whomwere armed with sticksand machettes, gathered around. The Accused stated that the people at the roadblock were intenton killing those traveling inthe convoy. The Accused said that when the people saw him alightthe UNAMIR motor vehicle, they mocked him. The Accused stated that he spoketo some ofthe people at the roadblock and he told them that they were being monitored bysatellite, in an attemptto persuade them to allowthe convoy to pass.
353.Under cross-examination, the Accused confirmed saying to peoplethat they were monitoredby satellite and therefore people should not be killed¯He statedthat he made these statementsto remind people of theirresponsibility. According to theAccused, he alsoused anotherargument to remindpeople of theirresponsibility. Hewould say that the International Communitywould not come to theirassistance ifthey knew about any killings, but the Accused statedthat he didnot have any contact with anybody in the International Community.
FactualFindings
354.The Chamber considers that Witness Q identifiedthe Accused in court,he knewof the Accusedand of hisfather, before the events of 1994and he describedthe Accused as a rich A businessman who lived in theneighbouring Commune of Masango.The Witness also testified that,after having been stopped at a roadblockat Agakingiro,he was taken by a personhe identifiedas Vedaste Segatarama to the Accused. The Witness described how he wasmade to entera littleoffice and presented to the Accused. The Chamber is satisfied beyond a reasonable doubtthat Witness Q is able to positively identify the Accused and that the Accused was present atthis hole that served as a massgrave, as testified toby the Witness.
355.The Chamber notes that there are discrepancies in the testimony of WitnessQ, suchas hisfactual account of theexact words used by theAccused, in conveyinghis (the Accused’s) orders.Despite these discrepancies, theWitness nevertheless conveyed clearly the crux of what
Judgement,Prosecutor versus Rutaganda 131 Case No: ICTR-96-3-T wasordered, that is the killing should stop and the bodies buried in order to conceal the dead fromthe foreigners.
356.It isclear from Witness Q’s evidence that the Accused was present at this mass grave site andthat he ordered the burial of bodies.However there is noevidence that the Accused gave theseorders, in orderto concealhis crimes from the International Community. The Chamber is satisfiedbeyond a reasonabledoubt, that the Accused ordered the burial of bodies in order to concealthe dead from foreigners. The Chamber is howevernot satisfied beyond a reasonable doubt,that in givingthe said order the Accused sought to concealhis crimes from the InternationalCommunity.
Judgement, Prosecutor versus Rutaganda 132 CaseNo:ICTR-96-3-T ~
4.8 Generalallegations (Paragraphs 3-9 of the Indictment)
357.The Chambernow considersthe generalallegations in Paragraphs5, 6, 7 and 8 of the Indictment.
Paragraph6 alleges:"In eachparagraph charging crimes against humanity, crimes punishable by Article3 of the Statuteof the Tribunal,the allegedacts were committed as partof a widespreador systematicattack against a civilianpopulation on political,ethnic or racial grounds";
Paragraph7 alleges: "At all times relevant to thisIndictment, a state of internal armed conflict existedin Rwanda";
Paragraph8 alleges: "The victims referred to in thisindictment were, at all relevanttimes, personstaking no activepart in the hostilities ":
358.In respectof theallegations in Paragraph 6 of theIndictment, Witness C testifiedthat at a MNRDmeeting held in April1994, it wasstated that Tutsis were the accomplicesof theRPF. It wasalso stated that every Tutsi was the enemy w. WitnessEE testifiedthat a meetingwas held at theCommune office, following the deathof PresidentHabyarimana. During this meeting the Accused’s78. father stated that Tutsis had to be killed,to preventthem from assuming power WitnessHughes testified that, following radio announcements calling for the apprehensionof Tutsis,people actively sought Tutsis at roadblocksand on thestreets. Tutsis were terrified to walkthe streets. Hughes stated that Tutsis were in hiding,even in areaswhere the killings had
77SeeTestimony of WitnessC, transcriptof 04 March,1998
78SeeTestimony of WitnessEE, transcript of 04 March1998
Judgement,Prosecutor versus Rutaganda 133 CaseNo:ICTR-96-3-T ~ notbegun 79.Witness W testified that following the death of thePresident, people in vehicles usedmegaphones to spreadpropaganda messages about the Inkotanyi.Following this announcementTutsis were killed, their houses looted and burned, and their cattle killed.
359.The Chamber considers that Witnesses A, B, H, W, O, Z, BB andHH testifiedabout the constructionofroadblocks immediately after the death of President Habyarimana¯ People fleeing forsafety, were intercepted atsuch roadblocks. Some people were selected tobe killed, whilst otherswere allowed to proceed. Such selection and separation process began with the erection of8° suchroadblocks.
360¯Witness W testified that the Accused ordered Councillors andheads of cellulesto erect roadblocks.Roadblocks were immediately erected and all personspassing through these roadblocks,whoproduced identity cards indicating their Tutsi ethnicity, were apprehended and some8~ were immediately killed.
361.Witness A testifiedto havingobserved Tutsis separated from Hutus at theNyanza crossroadss2.Witness DD alsotestified that, at Nyanza,soldiers and membersof the Interahamwesurrounded her group. According to thewitness Hutus were asked to leavesuch group.Hutus were then asked to producetheir identity cards. On producing their cards, a man whohad lied about his ethnicity was immediately killed¯ The Tutsis were thereafter attackedby soldiersandmembersofthelnterahamwe.Thewitness recalled that grenades were used in such attack83.Witness H also testified, that soldiers were everywhere. Thesoldiers asked them to sit
79SeeTestimony of WitnessMr Hughes,transcripts of 25, 26 and27 May1998
8°Seesupra, Chapter 4, part2, on FactualFindings, para. 11
81 SeeTestimony of WitnessW, transcriptof 28 May1997
82SeeTestimony of WitnessA, transcriptof 24 March1997
g3seeTestimony of WitnessDD, transcript of 27 May1997
Judgement,Prosecutor versus Rutaganda 134 CaseNo:ICTR-96-3-T ~ downand told Hutus to identifythemselves and leave. They attacked the remaining group of people,by throwinggrenades and firing guns into the group. The Interahamwe also participated killingpeople, with their knives s4.Mr Hughestestified that a groupof survivors from the Nyanzas5 massacre were found with machete wounds to theback of theirheads and limbs,
362.Witness Z, a Hutuliving in Kicukiro,testified that when he cameout of his house, he observedcorpses of menand women near a roadblock.Hestated that he and others were divided into86.four groups to dig holes, collect and bury bodies
363.An expertwitness for the Prosecutor, Mr Nsanzuwera testified that the Accused held a highposition within the lnterahamwe andexercised authority over members of the lnterahamwe. Thewitness also testified that the Accused was often present at roadblocksandbarriers, issuing orders87.The Accused testified that after he joinedthe MRND party in 1991, he wasinvolved in thecreation of itsyouth wing, the Interahamwe za MRND, and was subsequently itssecond vice-president.
364.Defence witness DNN testifiedto hearingthat the lnterahamwereceived military training.*s. The witness also stated that such training commenced at the beginning of the war Witnesssg. DNN confirmed that they received this training
84SeeTestimony of WitnessH, transcript26 March1997
85SeeTestimony of WitnessMr Hughes,transcript of 25 May1998 86 SeeTestimony of WitnessZ, transcriptof 20 March1998
87 SeeTestimony of expertwitness Mr Nsanzuwera,transcript of 24 March1998
88 SeeTestimony of WitnessDZZ, transcript of 11 February1999
89 SeeTestimony of WitnessDNN, transcript of 16 February1999
Judgement,Prosecutor versus Rutaganda 1 35 CaseNo:ICTR-96-3-T ~
365.Defence Witness DZZ stated that she had heard aboutthe Interahamwe receiving military training,but only after the beginning of thewar 9°.Defence Witness DNN confirmed that the Interahamwereceived91 such training.
366.Defence witnesses DDD 92,DD 93, DNN94 and DZZ95 testifiedthat RPF infiltrators were identifiedatroadblocks, byvirtue of their falsified identity cards. Defence Witness DEE testified thatidentity cards were verified at allroadblocks she passed through in Kigali, except the roadblocknear the hospital. She stated that being in possession ofan identity card, indicating Tutsi96 ethnicity, wasjustification enough to be killed.
367.Witnesses H and DD testifiedto hidingin thehouse of a Burtmdianand survived house to housesearches. Defence Witness DF testified tohouse to house searches conducted inKigali. WitnessesU,T, J andQ testifiedthat the Accused was present and participated inthe distribution of weaponsto theInterahamwe. It has been established that weapons were distributed to the lnterahamwe.TheAccused was present and participated in the distribution of weapons on at leastthree occasions.
90 SeeTestimony of WitnessDZZ, transcript of 11 February1999
91 SeeTestimony of WitnessDNN, transcript of 16 February1999
92 SeeTestimony of WitnessDDD, transcript of 16 February1999
93 SeeTestimony of WitnessDD, transcript of 17 March1999
94 SeeTestimony of WitnessDNN, transcript of 16 February1999
95 SeeTestimony of WitnessDZZ, transcript of 11 February1999
96 SeeTestimony of WitnessDEE, transcript of 09 February1999
Judgement,Prosecutor versus Rutaganda 136 CaseNo:ICTR-96-3-T ~
368. TheAccused testified that:
"Itdeveloped a situation such that the people who were identified asRPF unfortunately I regretthe fact and most of them were Tutsis. 90 percentwere Tutsis and this led to a generalisationandexcessive behaviour which also affected people who I - youknow - old’’97men, children and so on and so forth.
"Whathappened in my country- in ourcountry is an incidentwhich I wouldcall a tragedy,a tragedy. It’s a seriesof massacres, ofkillings which affected people from the RPFand the Inkotanyi. Yesterday, I spoke about the generalisation ofthe Tutsis and this even’’gsaffected children.
369.According to ExpertWitnessNsanzuwera, theTutsi were systematically targeted as such, becausethey were considered tobe opponentsofthe regime. Mr Nsanzuwera testified that, the militia,including the lnterahamwe, killed Tutsis and Hutus who opposed the Hutu Regime, the
A
97 SeeTestimony of the Accused, transcript of21 April1999. In Frenchthis reads:
"I1a ~volu6,et unesituation telle que les gens identifi6s comme au FPR, malheureusement je regrette, ~Staient/l plusde 90%Tutsi. Ce quia conduittt uneglobalisation queje d~plore- et m~mejusqu’~t maintenant - ~ une globalisationet hun exc~s, un d6bordement..,un d~bordement qui a touch66galement les personnes vraiment que moije... des personnes, desvieillards, desenfants, tout ca."
98 SeeTestimony of theAccused, transcript 0f22 April 1999. In Frenchthis reads:
"Cequi s’est pass6 dans notre pays c’est un incident,mais pas un incident,toni je lequalifie de drame,de drame. C’estune s~Srie de massacres, detueries, qui ont gard6 les gens du FPRet les lnkotanyi, j’ai expliqu6 hier dans Ia globalisationdesTutsis, qui a connum~,me des d6bordements jusqu’b, atteindre les enfants."
Judgement,Prosecutor versus Rutaganda 137 CaseNo:ICTR-96-3-T ~ victimsof thesemassacres being civilians Mr Nsanzuweraalso confirmed that the lnterahamwe’sinvolvement inthe killing of Tutsiswas not spontaneous but well planned9t
370.Professor Reyntjens, anexpert witness for the Prosecution, testified tothe existence of a planformulated years prior to the events of 1994in Rwanda, which suggests that the attacks weresystematic t°°.Mr Hughes testified that the attacks appeared tobe pre-planned dueto their consistentpattern.~°l
371.The Chamber finds that there is sufficientevidence of meetingsheld to organiseand encouragethe targeting and killings of theTutsi civilian population as such and not as "RPF Infiltrators",as testified to by DefenceWitnesses DDD, DD, DNN and DZZ. The Chamber also findsthat this organisation andencouragement tookthe form of radiobroadcasts calling for the apprehensionof Tutsi, the use of mobileannouncement units to spreadpropaganda messages aboutthe InkontanyL the distribution of weapons to theInterahamwe militia, the erection of roadblocksmanned by soldiersand members of the Interahamwe tofacilitate the identification, separationandsubsequent killing of Tutsi civilians and, the house to house searches conducted toapprehend Tutsis, clearly suggest that a systematicattack on the Tutsi civilian population existedthroughout Rwanda in 1994.
372.The Chamber accepts the testimony of expertWitnesses Mr Nsanzuweraand Professor Reyntjensthat the attack on theTutsi population was of a systematiccharacter. The Chamber alsoaccepts Mr. Nsanzuwera’s evidence that the victims of themassacres were civilians. The Chamberfinds that the attack on theTutsi population occurred invarious parts of Rwanda, such as in Nyanza,Nyarngenge Commune, Kiemesakara Sector in theKigali Prefecture,Nyamirambo,
99 SeeTestimony of expertWitness Mr Nsanzuwera~transcript of 23 April,1998
100See Testimony of expertWitness Mr Reyntjens,transcript 13 October 1997
101See Testimony of WitnessMr Hughes,transcript of 25 May1998
Judgement,Prosecutor versus Rutaganda 138 Case No: ICTR-96-3-T
Cyahafi,Kicukiro, Masango. The Chamber finds beyond a reasonabledoubt that the attack on theTutsi civilian population was of a widespreadand systematic character.
Withregard to theallegation in paragraph 5, whichalleges that : "’Thevictims in each paragraphcharging genocide were members of a national,ethnical, racial or religious group ".
373.As indicatedsupra in thediscussion on the applicable law, the Chamber holds that in assessingwhether a particular group may be consideredasprotected from the crime of genocide, itwill proceed on a case-by-casebasis, taking into account both the relevant evidence proferred and~°2the political, social and cultural context.
374.The Chamber concurs with the Akayesu Judgement 103, that the Tutsi population does not haveits own language or a distinctculture from the rest of theRwandan population¯ However, theChamber finds that there are a numberof objective indicators of the group as a groupwith a distinctidentity. Every Rwandan citizen was, before 1994, required tocarry an identity card whichincluded anentry for ethnic group, the ethnic group being either Hutu, Tutsi or Twa. The RwandanConstitution andlaws in forcein 1994also identified Rwandans by referencetotheir ethnicgroup. Moreover, customary rules existed in Rwandagoverning the determination of ethnicgroup, which followed patrilineal lines. The identification ofpersons as belongingtothe groupof Hutuor Tutsior Twahad thus become embedded in Rwandanculture, and can, in the lightof thetravauxprdparatoires ofthe Genocide Convention, qualify as a stableand permanent group,in theeyes of boththe Rwandan society and the international community. In Rwanda in 1994,the Tutsi constituted anethnic group.
102 See Chapter2, section2 of thisJudgement
103 AkayesuJudgement, para. 170
Judgement,Prosecutor versus Rutaganda 139 376.The Chamber notes that the Defence did not challenge the fact that the Tutsi constitutes a groupprotected under the Genocide Convention, and further notes that the Kayishema and RuzindanaJudgement ~04 and the Akayesu Judgement lo5 establish that the Tutsi group is a group envisagedby theGenocide Convention.
377.Consequently, after having reviewed all the evidence presented, the Chamber finds that theTutsi group is characterisedby its stability and permanence andis generallyaccepted as a distinctgroup in Rwanda. Therefore, theChamber considers that it constitutes a group protected bythe Genocide Convention and, thence, by Article2 of theStatute.
Regardingparagraph 7,which alleges that at all times relevant to thisindictment, a state of internalarmed conflict existed in Rwanda."
378.Paragraph 7 of the Indictment alleges that there existed in Rwandaat the time set out in theIndictment a state of internalarmed conflict. According to thetestimony of Professor Reyntjens,in theearly 1990’s Rwanda experienced a period of politicalturmoil while in transitionto a multipartypolitical system. During this time several political parties were organisedin oppositionto theruling party MRND. These parties included the Mouvement DdmocratiqueRdpublicain (MDR), Parti Social Ddmocrate (PSD), Parti Liberal (PL), Parti DdmocrateChrdtien (PDC) and the Coalition pour la Ddfensede la R~publique(CDR). The
104Kayishema and Ruzindana Judgement para. 291
105Akayesu Judgement para. 170-172
Judgement.Prosecutor versus Rutaganda 1 40 CaseNo:ICTR-96-3-T ~
Accusedtestified that these political parties competed to recruitnew members. Among the activitiesto attract newcomers was the creation of youthwings, and the Interahamwe wasthe youthwing of the MRND.
379.According to theAccused, the term Interahamwe attained a negative connotation and cameto beused to describein popularusage, after 6 April1994, a largeor looselyorganized militiawhich is said to have fought against the RPF1°6.
380.Mr Nsanzuweratestified that the lnterahamwe evolved from the youth wing of a political partyinto a militia1°7.Mr Nsanzuwera further testified that, on 5 January1994, the President of Rwandawas sworn in buthe did notswear in a governmentand theNational Assembly as intendedby theArusha Peace Accords. Moreover certain obstacles remained that prevented the fullparticipation ofother political parties in theinterim government. Consequently, widespread insecurityprevailed in Kigali.On 6 April1994 the plane carrying President Habyarimana crashed.The interim government appealed to thepopulation to join the civil defence and the RAF~°8.to fightagainst the RPF and eliminate the moderate wing within the government
381.The armed conflict between the governmentand theRPF resumed. The RPFbattalion engagedin hostilitieswith the RAF, according to testimoniesby Mr Reyntjensand Mr Nsanzuwera.Immediately, roadblocks were erected in andaround Kigali and later extended to therest of thecountry to preventthe penetration ofRPF. However, according totestimonies of eyewitnesses1°9, heard by the Chamber, and of Mr Reyntjens asexpert witness for the Prosecutor
106SeeTestimony of theAccused, transcript of 22 and23 April1999.
107 SeeTestimony of expertWitness Mr Nsanzuwera.transcript of 24 March1998.
108Ibid.
109 SeeTestimony of expertWitness Mr Reyntjens,transcript of 14 October1997.
Judgement,Prosecutor versus Rutaganda 141 CaseNo: ICTR-96-3-T ~ oneonly needed to be a suspectedsympathiser of the RPF to be targeted.This resulted in a globalisationofcrimes with Tutsis being systematically targeted and eliminated forrepresenting themajority of RPFinfiltrators. TheAccused further testified that roadblocks were set up initiallyH°. by civilians who, as the"civil defence" were rallying together against the RPF Accordingto Mr Nsanzuwera,the civil defence was mainly composed of Interahamwemembers andradical youth wings of otherpolitical parties like the CDR which aimed at theelimination ofthe Tutsi as a supportfor the RPFlll. The Defence expert witness, Professor Mbonimpa, called theRPF a militiaand agreed that militia also had a commandstructure, wore a differentuniform, wasarmed, and capable of carryingout war. Both sides mobilised people for war through their radios,including the RTLM radio on the government’s side. He stated that the RPF said that any force~12.that intervened inthe conflict was regarded asan enemy force
382.The Chamber notes the findings in theAkayesu Judgement and finds that the evidence establishesthatthere existed an internalarmed conflict inRwanda during the time period alleged inthe Indictment.
110 See Testimonyof the Accused,transcript of 22 April1999
111 See Testimonyof expertWitness Mr Nsanzuwera,transcripts of 23, 24 and 27 March1998
112 See Testimonyof expertWitness Mr Mbonimpa,transcript of 6 April1999
Judgement,Prosecutor versus Rutaganda 142 5. LEGAL FINDINGS
5.1Count 1: Genocide
383.Count 1 coversall the acts described inthe Indictment. Itis theProsecutor’s contention that,by his acts as alleged in paragraphs 10to 19of the Indictment, theAccused committed the crimeof genocide punishable by Article 2(3)(a) of the Statute.
384.In its findings suprd J3 on thelaw applicable to the crime of genocide, the Chamber held thatfor the crime of genocide tobe established, itwas necessary, firstly, that one of the acts enumeratedunder Article 2(2) of the Statute be perpetrated; secondly, that such act be directed againsta group specifically targeted assuch on ethnic, racial or religious grounds; and thirdly, thatsuch act be committed with intent to destroy the targeted group in whole or inpart.
Regardingthe acts alleged in paragraphs10 to 19 of theIndictment and based on itsfactual findingssupra, the Chamber is satisfiedbeyond any reasonable doubt of thefollowing:
385.Regarding the facts alleged in paragraph10, the Chamber finds that it is established beyondany reasonable doubt that, on theafternoon of 8 April1994, the Accused arrived at Nyarugengein a pick-uptruck, filled with firearms and machetes. The Accused personally distributedweapons to theInterahamwe andordered them to go to workstating that there was a lotof dirtthat needed to be cleanedup. The Accused was carrying a rifle slung over his shoulderand a machetehanging from his belt. The Chamber also finds that it isestablished beyondany reasonable doubt that on 15 April1994 in the afternoon, the Accused arrived at the CyahafiSector, Nyarngenge Commune, in a pick-uptruck. The pick-up was parked near a public standpipe.The Accused got out of the vehicle, opened the back of the truck where the guns were
113See Chapter 2, Section2 of thisJudgement.
Judgement,Prosecutor versus Rutaganda -143- CaseNo: ICTR-96-3-T kept.The men who had come with him distributed the weapons to membersof theInterahamwe. Immediatelyafter the distribution of rifles, those who received them started shooting. Three personswere shot dead; all were Tutsis. The Chamber also finds that it isestablished beyond a reasonabledoubt that on or about 24 April 1994, in the Cyahafi Sector, the Accused distributed Uzziguns to thePresident of the lnterahamwe ofCyahafi during an attackby the Interahamwe on the Abakombozi.
386.In theopinion of theChamber, the Accused is individuallycriminally responsible by reasonof such acts for having aided and abetted inthe preparation forand perpetration ofkillings ofmembers of the Tutsi group and for having caused serious bodily or mentalharm to members ofsaid group.
387.With respect to theacts alleged under paragraph 11 of theIndictment, the Prosecutor failedto satisfy the Chamber that such acts are proven beyond any reasonable doubt and that the Accusedincurs criminal responsibility asa result.
388.Regarding the allegations included in paragraph12 of theIndictment, the Chamber is satisfiedbeyond any reasonable doubt that in April 1994, Tutsis who had been separated at a roadblockinfront of Amgargarage were taken to theoffice of the Accused inside Amgar garage andthat the Accused thereafter directed that these Tutsis be detained within Amgar. The Accused subsequentlydirected men under his control to takefourteen detainees, at least four of whom wereTutsis, to a deephole near Amgar garage. On the orders of the Accused and in his presence, hismen killed ten of thedetainees with machetes. The bodies of the victims were thrown into thehole.
389.In theopinion of theChamber, the Accused is individuallycriminally responsible as chargedfor having ordered, committed, aided and abetted in thepreparation andexecution of
Judgement,Prosecutor versus Rutaganda 144 CaseNo:ICTR-96-3-T ~ killingsof membersof theTutsi group and caused serious bodily or mental harm to membersof saidgroup.
390.As concemsthe acts alleged in paragraphs13, 14, 15 and16 of theIndictment, the Chamberfinds that these have been established beyond any reasonable doubt. From 7 Aprilto 11 April1994, several thousand persons, most of themTutsis, sought refuge at theETO. Membersof theInterahamwe, armed with rifles, grenades, machetes and cudgels gathered outsidethe ETO. Prior to theattack, the Hutus were separated from the Tutsis who were at the ETO,following which hundreds of Hutusthen left the ETOcompound. When UNAMIR troops withdrewfrom the ETO on 11 April1994, members of theInterahamwe and of thePresidential Guardsurrounded the compound and attacked the refugees, throwing grenades, firing shots and killingpeople with machetes and cudgels. The attack resulted inthe deaths of a largenumber of Tutsis.The Accused was present during the ETO attack, armed with a riflein themidst of a groupof attackerswho proceeded to throwgrenades and fire shots. He wasseen about fifty metresaway from the entrance to theETO. The Chamber finds that it isestablished beyond any reasonabledoubt that the Accused was at the ETO and that he participated in the attack against theTutsi refugees.
391.A largenumber of therefugees who managed to escapeor survivedthe attack on theETO thenheaded in groupsfor the Amahoro Stadium. On theirway, they were intercepted bysoldiers whoassembled them close to theSonatube factory and diverted them towards Nyanza. They wereinsulted, threatened and killed by soldiersand members of thelnterahamwe who were escortingthem and who were armed with machete s, cudgels,axe s andother weapons. At Nyanza, thelnterahamwe forced the refugees tostop; they were assembled and made to sit at thefoot of a hillwhere armed soldiers stood. The refugees were surrounded byInterahamwe andsoldiers. TheHutus were asked to standup andidentify themselves and were subsequently allowed to leave.Some Tutsis who tried to leavepretending tobe Hutus were killed on the spot by members of the Interahamwewho knewthem. Grenades were then hurled into the crowdby the
Judgement,Prosecutor versus Rutaganda 145 CaseNo: ICTR-96-3-T
,,,,H,,H.,,H,,,...... ¯,,,, ,, ¯,. ,,, ,,, ,, ,,1 ,, ¯,, ,,, ,..,, ¯,,,, ¯,, ¯,, ¯,, ¯. ¯,, ,,, ,,¯ ,,, ,,, ,., .., .., ¯,, ¯,, ¯, ¯,¯ ¯,, ¯¯ ¯,¯ ¯¯ ¯,, ¯, ,,, ,, ,, ,,, ,,, ,¯ ,,, ,,, ,, ,,, ,., ,,, ,,, ,, ,,, ,,, ,, ,,,, ,,,,, ,, ,,, ,,, ,,, ,,, Interahamweand the soldiers on thehill started shooting. Those who tried to escapewere escortedback by theInterahamwe. Many people were killed. After firing shots and throwing grenadesatthe refugees, the soldiers ordered the lnterahamwe to start killing them. Thereupon theInterahamwe started killing, using cudgels and other weapons. Some young girls were singledout, taken aside and raped before being killed. Many of thewomen who were killed were strippedoftheir clothing. The soldiers then ordered the Interahamwe to check for survivors and to finishthem off. The Accused directed the Interahamwe who were armed with grenades, machetesand clubs into position to surroundthe refugees just prior to themassacre. The Chamberfinds that it hasbeen established beyond any reasonable doubt that the Accused was presentand participated in the Nyanza attack. Furthermore, it holds that by his presence, the Accusedabetted in the perpetration ofthe crimes.
392.With respect to theacts alleged against the Accused, asdescribed inparagraphs 13to 16 of theIndictment, theChamber finds that individual criminal responsibility attached to the Accusedfor having committed, aided and abetted in thekillings of membersof the Tutsi group andhaving caused serious bodily or mentalharm to membersof theTutsi group.
393.With respect to theallegations made in paragraph17 of theIndictment, the Chamber notesthat the Prosecutor hasfailed to lead evidence insupport of theallegations that, in April 1994,the Accusedconducted searches in the MasangoCommune. Nor has the Prosecutor satisfiedthe Chamber beyond any reasonable doubt that the Accused instructed that all Tutsis betracked down and thrown into the river.
394.The Chamber finds, with regard to theevents alleged in paragraph18, thatit is establishedbeyond any reasonable doubt that, on 28 April1994, lnterahamwe conducted house- to-housesearches inthe Agakingiro neighbourhood demandingidentity cardsfrom people. Tutsis andpeople belonging to certain political parties were taken to the"Hindi Mandal" temple, near Amgargarage. The Accused was present at thelocation where the detainees had been gathered.
Judgement,Prosecutor versus Rutaganda 146 CaseNo:ICTR-96-3-T ~
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He wasdressed in militaryuniform, including a coat and trousers, and was carrying a rifle. Amongthe detainees was Emmanuel Kayitare, alias Rujindiri, a Tutsi. A mancalled Cekeri told Emmanuelthat he knewhim and thathe was awarethat he was goingto the National DevelopmentCouncil (CND). Emmanuel became frightened and took off running. The Accused caughtEmmanuel by thecollar of his shirtto preventhim from running away. He struck EmmanuelKayitare on thehead with a machete,killing him instantly.
395.The Chamber finds that the Accused incurs individual criminal responsibility forsuch actsfor having personally killed a Tutsi and for having aided and abetted in the preparation or causingof seriousbodily and mental harm on membersof theTutsi group.
396.Regarding the events alleged in paragraph19 of theIndictment, theChamber finds that, whileit is establishedthat the Accused ordered that the bodies of thevictims be buried,the Prosecutor,however, failed to satisfythe Chamber beyond reasonable doubt that the Accused gavesuch orders in orderto conceal his crimes from the international community.
397.In lightof theforegoing, the Chamber is satisfiedbeyond reasonable doubt that the Accusedincurs criminal responsibility, underArticle 6(1) of theStatute, for having ordered, committedor otherwiseaided and abetted in thepreparation or execution ofmurders and the causingof seriousbodily or mentalharm on membersof the Tutsi group.
Judgement,Prosecutor versus Rutaganda 147 CaseNo:ICTR-96-3-T ~
As to whetherthe above-mentioned actswere committed against the Tutsi group, specifically targeted,as such, and whether the Accused had the requisite intent in committing the above - mentionedacts for which he incurs criminal responsibility:
398.In its findings on theapplicable law with respect to the crime of genocidem, theChamber heldthat, in practice,intent may be determined, ona caseby casebasis, through a logical inferencefrom the material evidence submitted toit, and which establish a consistent pattern of conducton the part of the Accused. Quoting a text from the findings in theAkayesu Judgement, itholds: "Onthe issue of determining theoffender’s specific intent, the Chamber considers that theintent is a mentalfactor which is difficult, even impossible, todetermine. This is the reasonwhy, in the absence of a confessionfrom the Accused, his intent can be inferred froma certainnumber of presumptions offact. The Chamber considers that it is possible todeduce the genocidal intent inherent in a particularact charged from the general contextofthe perpetration ofother culpable acts systematically directed againstthat same group,whether these acts were committed by thesame offender or by others.Other factors,such as the scale of atrocities committed, their general nature, in a regionor a country,orfurthermore, thefact of deliberately andsystematically targeting victims on accountof theirmembership ofa particulargroup, while excluding the members of other groups,Hs can enable the Chamber to inferthe genocidal intent of a particularact".
399.The Chamber notes that many corroborating testimonies presented at trial show that the Accusedactively participated inthe widespread attacks and killings committed against the Tutsi group.The Chamber is satisfied that the Accused, who held a positionof authoritybecause of hissocial standing, the reputation of his father and, above all, his position within the
114See Chapter 2, Section2 of thisJudgement.
115Akayesu Judgement, para. 523.
Judgement,Prosecutor versus Rutaganda 148 CaseNo:[CTR-96-3-T ~ lnterahamwe,ordered and abetted in thecommission of crimes against members of theTutsi group.He alsodirectly participated in committing crimes against Tutsis. The victims were systematicallyselected because they belonged tothe Tutsi group and for the very fact that they belongedto thesaid group. As a result,the Chamber is satisfied beyond any reasonable doubt that,at the time of commissionofall the above-mentioned actswhich in its opinion are proven, theAccused had indeed the intent to destroythe Tutsi group as such.
400.Moreover, on thebasis of evidenceproffered at trialand discussed in thisJudgement underthe section on the general allegations, ~6the Chamber finds that, at the time of the events referredto in theIndictment, numerous atrocities were committed against Tutsis in Rwanda. Fromthe widespread nature of such atrocities, throughout theRwandan territory, andthe fact that thevictims were systematically anddeliberately selected owing to theirbeing members of the Tutsigroup, to theexclusion of individualswho were not members of thesaid group, the Chamberis able to infera generalcontext within which acts aimed at destroying theTutsi group wereperpetrated. Consequently, theChamber notes that such acts as arecharged against the Accusedwere part of an overall context within which other criminal acts systematically directed againstmembers of the Tutsi group, targeted as such,were committed.
401.The Chamber recalls that, in its findings onthe general allegations, italso indicated that, inits opinion, the Tutsi group clearly constitutes a protected group, within the meaning of the Conventionon genocide.
402.In light of theforegoing, the Chamber is satisfied beyond any reasonable doubt; firstly, thatthe above-mentioned actsfor which the Accused incurs individual responsibility onthe basis of theallegations under paragraphs 10, 12, 13, 14, 15, 16 and18 of theIndictment, are constitutiveof the material elements of thecrime of genocide;secondly, that such acts were
116See Chapter 4, Section8 of thisJudgement.
Judgement,Prosecutor versus Rutaganda 149 CaseNo:1CTR-96-3-T ~ committedby theAccused with the specific intent to destroythe Tutsi group as such;,and thirdly,that the Tutsigroup is a protectedgroup under the Conventionon genocide. Consequently,theChamber finds that the Accused incurs individual criminal responsibility for thecrime of genocide.
5.2 Count2: CrimeAgainst Humanity (extermination)
403. Count2 of the Indictmentcharges the Accusedwith crimesagainst humanity (extermination),pursuant toArticle 3(b) and Article 6(1) of the Statute, for the acts alleged paragraphs10to 19of theIndictment.
404.In respectof paragraph 10 of theIndictment, the Chambers finds that on 8 April1994, theAccused arrived at NyarugengeCommune in a pick-uptruck, carrying firearms and machetes. TheAccused distributed weapons to thelnterahamwe and ordered them to go to work,stating thatthere was a lotof dirt that needed to be cleaned up.
405.The Chamber finds that on theafternoon of 15 April1994, the Accused went to Cyahafi Sector,Nyarugenge Commune in a pick-uptruck. The Accused opened the back of thetruck and themen who were with him distributed weapons to theInterahamwe. The Chamber also finds thaton or about 24 April 1994 and in the Cyahafi sector, the Accused distributed firearms to the Presidentof the Interahamweof Cyahafi,during an attackby the lnterahamweon the Abakombozi.
406.In respect of the allegations inparagraph 12of the Indictment, theChamber finds that in April1994 Tutsis were singled out at a roadblocknear the Amgar garage and taken to the Accused,who ordered the detentionofthese people. The Accused subsequently ordered that 14 detaineesbe taken to a holenear the Amgar garage. On the orders of theAccused and in his presence,ten of these detainees were killed and their bodies were thrown into the hole.
Judgement,Prosecutor versus Rutaganda 150 407.In respectof theallegations in paragraphs 13and 14 of theIndictment, theChamber findsthat several thousand people, mostly Tutsis, sought refuge at theETO, from 7 to11 April 1994.Following the departure of UNAMIRfrom the ETO, on 11 April1994, Colonel Leonides Rusatilawent into the ETO compound and separated Hutus from Tutsis and several hundred Hutusleft the ETO. Thereafter the lnterahamwe, together with the Presidential Guard attacked thepeople in thecompound. The Accused was present and participated in this attack. A number of Tutsis,including many family members and others known to thewitnesses were killed in the attack.
408.In respectof theallegations inparagraphs 15 and 16 of theIndictment, the Chamber findsthat the Accused was present and participated inthe forced diversion ofrefugees toNyanza andthat he directed and participated inthe attack at Nyanza on 11 April1994.
409.The Chamber notes that paragraph 16 of theIndictment alleges that certain events, namelythe separation of Hutus and Tutsis refugees and the attack on theTutsis refugees, took placeon or about12 April 1994¯ As noted by the Prosecutor, these events took place on 11 April 1994.The Chamber does not consider this variance to bematerial, particularly inlight of the language"on or about".The sequence of eventsleading to themassacre is describedin paragraphs14, 15 and16 of theIndictment as having commenced on 11 April1994¯ Moreover, thekilling at Nyanzawas resumed on the morning of 12April 1994. The Chamber considers that 11 April1994 constitutes "onor about April 12, 1994".
410.The Chamber further notes that paragraphs 15 and16 of theIndictment allege that refugeeswere transferred to a gravelpit near the primary school of Nyanza,where they were surroundedand attacked. As theDefence indicated in herclosing statement, none of the witnessesdescribed the site of the massacre asa gravelpit. The evidence establishes that the refugeeswere assembled and surrounded at a siteat Nyanza,at thebase of a nearbyhill. The
Judgement,Prosecutor versus Rutaganda 151 /5-7-o
411.In respectof theallegations inparagraph 18of the Indic~nent, theChamber finds beyond a reasonabledoubt that on 28April 1994, Emmanuel Kayitare, together with other people, were takento the"Hindi Mand~" temple, near the Amgar Garage, where they were detained. The Accusedwas present at thislocation, and when Emmanuel Kayitare ~ied to escapeby running off,the Accused grabbed ~m by hiscollar and smack him on hishead with a machete,which resultedinhis death.
412.The Chamber relies on this factual finding to hold the Accused criminally responsible for crimesagmnst humanity (murder), as chargedin Count7 of theIndictment. The Chamber finds thatthe act of killing Emmanuel Kayitare, token together with other proven acts, such as, the distributionoffire arms and machetes to thelnterahamwe andthe killings at ETO and Nyanza cumulativelyform the basis for crimes agmnst humanity (extermination). TheChamber vail thereforetake into consideration thefactual findings inparagraph 18,together with other proven acts,when assessing the responsibiliU ofthe Accused, in respectof Count2.
413.In respect of the allegation in paragraph 19 of the Indictment, theChamber finds that the accusedordered the burial of bodies,in order to concealthe dead ~om the "’foreigners". The Chamberfinds that there is no evidence tosuggest that the Accused ordered the burial of bodies to concealhis crimes from the international community. The allegation in paragraph 19 has thereforeonly been proved in pa~.
414.In respect of the allegations in paragraphs 11 and 17 of the Indictment, theChamber finds thatthese allegations have not been proved, beyond a reasonable doubt.
Judgement,Prosecutor versus Rutaganda 152 CaseNo:ICTR-96-3-T ~
415.The Chamber notes that Article 6(1) of the Statute, provides that a personwho "planned, instigated,ordered, committed or otherwise aided and abetted in theplanning, preparation or executionofa crimereferred toin Articles 2 to 4 ofthe present Statute, shall be individually responsibleforthe crime."
416.The Chamber finds beyond a reasonabledoubt that the Accused: aided and abetted in thekillings by distributingweapons to the Interahamwe on 8, 15 and 24 April 1994; ordered the killingof 10 people in April1994 who were subsequently killed in hispresence; participated in anattack on the people who sought refuge at the ETO; directed and participated inthe attack at Nyanza;murdered Emmanuel Kayitare and by hisconduct intended to cause the death of a large numberof people belonging to the Tutsi ethnic group, because of their ethnicity.
417.The Chamber finds beyond a reasonabledoubt that in thetime periods referred to in the indictmentthere was a widespreadand systematic attack on theTutsi ethnic group, on ethnic grounds.The accused had knowledge of this attack, and he intended his conduct to beconsistent withthe pattern ofthis attack and to be a partof this attack.
418.The Chamber therefore finds beyond a reasonabledoubt that the Accused is individually criminallyresponsible forcrimes against humanity (extermination), pursuant toArticles 2(3)(b) and6(1) of the Statute.
Judgement,Prosecutor versus Rutaganda 153 CaseNo: ICTR-96-3-T
5.3 Count3: CrimeAgainst Humanity (murder)
419.Count 3 of theIndictment charges the Accused with crimes against humanity (murder), pursuantto Articles3(a) and 6(1) of the Statute, for the acts alleged in paragraph 14 of Indictment.
420.The Chamber notes that pursuant to Count2 of theIndictment, the Accused is charged forcrimes against humanity (extermination), underArticles 3(b) and 6(1) of the Statute Tribunal,forthe acts alleged inparagraphs 10-19 of the Indictment, which acts include the attack on theETO compound, as allegedin paragraph14. The allegations in paragraph 14 of the indictmentalso form the basis for Count 3, crimes against humanity (murder)
421. TheChamber concurs with the reasoning in theAkayesu Judgement 117that:
"[...]it is acceptable toconvict the accused oftwo offences inrelation tothe same set of factsin the following circumstances: (1)where the offences have different elements; (2)where the provisions creating the offences protect different interests; or(3) where isnecessary torecord a conviction forboth offences inorder fully to describe what the accuseddid. However, the Chamber finds that it is not justifiable toconvict an accused of twooffences in relationto thesame set of facts where (a) one offence is a lesser includedoffence of theother, for example, murder and grievous bodily harm, robbery andtheft, or rapeand indecent assault; or (b)where one offence charges accomplice liabilityand the other offence charges liability as a principal,e.g. genocide and complicityingenocide."
117Akayesu Judgement, para. 468.
Judgement,Prosecutor versus Rutaganda 154 CaseNo:ICTR-96-3-T ~
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422.As crimesagainst humanity, murder and extermination share the sameconstituent elementsofthe offence of a crimeagainst humanity, that it is committed aspart of a widespread orsystematic attack against any civilian population onnational, political, ethnic, racial or religiousgrounds. Both murder and extermination areconstituted by unlawful, intentional killing.Murder is a thekilling of one or more individuals, whereas extermination is a crime whichis directed against a group of individuals.
423.The Chamber notes that in theAkayesu Judgement, a series of murdercharges set forth inindividual paragraphs ofthe Indictment were held collectively toconstitute extermination. In thatcase the individual allegations which formed the basis for counts of murder and at the same timeformed the basis for a collectivecount of exterminationwere incidents in whichnamed personshad been murdered. In thiscase, the single allegation of the ETO attack, although chargedas murder,isin itself an allegation ofextermination, thatis the killing ofa collective groupof individuals.
424.Having held the Accused criminally responsible forhis conduct, as allegedin paragraph 14of theIndictment, inrespect of crimes against humanity (extermination), ascharged in Count 2, theChamber finds that he cannotalso be heldcriminally responsible for crimes against humanity(murder), as charged in Count3 ofthe Indictment onthe basis of the same act.
Judgement,Prosecutor versus Rutaganda 155 5.4 Count5: CrimeAgainst Humanity (murder)
425.Count 5 of theIndictment charges the Accused with crimes against humanity (murder), pursuantto Articles 3(a) and 6(1) of the Statute, for the acts alleged in paragraph 15and 16 theIndictment.
426.The Chamber notes that the Accused is charged,pursuant to Count2 of theIndictment forcrimes against humanity (extermination), underArticles 3 (b) and 6(1) of the Statute, for actsalleged in paragraphs 10-19 of theIndictment, which acts include the massacre of Tutsi refugeesatNyanza, as alleged in paragraphs 15and 16. These allegations also support Count 5, crimesagainst humanity (murder).
427.For the reasons set forth in the legal findings pertaining toCount 3 above,the Chamber findsthat the Accused cannot be heldcriminally responsible for crimes against humanity (murder),ascharged in Count5 of theIndictment.
Judgement,Prosecutor versus Rutaganda 156 CaseNo: |CTR-96-3-T
5.5 Count7: CrimeAgainst Humanity (murder)
428¯Count 7 of theIndictment charges the Accused with crimes against humanity (murder), pursuantto Articles3(a) and 6(1) of theStatute, for the acts alleged in paragraph 18 of Indictment.
429¯The Chamber finds beyond a reasonabledoubt that on 28 April1994, EmmanuelKayitare togetherwith other people were taken near the Amgar Garage, where they were detained. The Accusedwas present at thislocation and when Emmanual Kayitare tried to escapeby running off,the Accused grabbed hold of himby his collar and struck him on his head with a maehette, whichresulted inhis death.
430.The Chamber notes that Article 6(1) of theStatute of the Tribunal provides that a person who"planned, instigated, ordered, committed or otherwise aided and abetted in theplanning, preparationorexecution ofa crimereferred toin articles 2 to 4 ofthe present Statute, shall be individuallyresponsible forthe crime." The Chamber finds beyond a reasonabledoubt that the Accuseddetained oralternatively aided and abetted in the detention ofTutsis and other people belongingto certain political parties and that he murderedEmmanual Kayitare when the said Kayitareattempted to escape.
431. The Chamberfinds beyond a reasonabledoubt that EmmanualKayitare was a civilianbelongingtothe Tutsi ethnic group.
432.The Chamber finds beyond a reasonabledoubt that in April1994 there was a widespread andsystematic attack on theTutsi ethnic group, because of theirethnicity. The accused had knowledgeofthis attack and he intended the murder of Kayitare tobe consistent with the pattern ofthis attack and to be a partof this attack.
Judgement,Prosecutor versus Rutaganda 157 Case No: ICTR-96-3-T ~J
433.The Chamber finds beyond a reasonabledoubt that the Accused is individually criminally responsibleforcrimes against humanity (murder), ascharged in Count7 ofthe Indictment.
Judgement,Prosecutor versus Rutaganda 158 CaseNo: 1CTR-96-3-T
5.6Counts 4, 6, and8 : Violationof CommonArticle 3 of theGeneva Conventions (murder)
434.Counts 4, 6 and 8 of the Indictmentcharge the Accused with violations of Common Article3 of the1949 Geneva Conventions, as incorporated in Article 4 of theStatute. The Prosecutorhas chosen to restrictthe wording of thesecounts to violationsof Common Article 3 only,even though Article 4 of theStatute covers both Common Article 3 and also Additional ProtocolII of1977 to theGeneva Conventions of 1949. As indicated supra byha, theChamber AdditionalProtocol II merelysupplements and reaffirms Common Article 3, withoutmodifying thearticle’s field of applicability. Theonly true difference between the Article and the Protocol is thehigher threshold to bemet for internal conflicts to be characterizedas meeting the requirementsof the Additional Protocol.
435.The Prosecutor, in her closing brief, outlined the elements ofthe offences and the burden ofproof with which she was laden. In so doing, she developed not only the material requirements tobe met for an offence to constitutea serious violation ofCommon Article 3,but also presented tothe Chamber the material requirements tobe metfor Additional Protocol IIto beapplicable. It thustranspires from her argumentation that she intended to provethat the material requirementsof both Common Article 3 andAdditional Protocol II hadto be metbefore any findingof guilt could be madewith regard to counts4, 6 and 8 ofthe Indictment. Moreover, were anydoubt to remainas to whetherthe Prosecutor needs to demonstratethat Common Article 3 is applicable,or that both Common Article 3 and Additional Protocol II areapplicable, the Chamberrecalls that in criminal proceedings, matters in doubt should be interpreted in favour of theAccused. Furthermore, theTrial Chamber considers the material requirements of Article 4 ofthe Statute to beindivisible, inother words, that Common Article 3 and Additional Protocol II mustbe satisfied conjunctively, before an offencecan be deemed to be coveredby Article4 ofthe Statute. Thus, it is the opinion ofthe Chamber that for a findingofguilt to be made for any
118See section 2.4 of ApplicableLaw
Judgement,Prosecutor versus Rutaganda 159 CaseNo:ICTR-96-3-T ~ oneof counts4, 6 and8 of theIndictment, the Chamber must be satisfiedthat the material requirementsof Common Article 3 and Additional Protocol II haveto be met.Consequently, the Prosecutormust prove that at the time of the events alleged in the Indictment there existed an internalarmed conflict inthe territory ofRwanda, which, at the very least, satisfied thematerial requirementsof Additional Protocol II, as theserequirements subsume those of CommonArticle 3.
436.On thebasis of evidencepresented in this case by ProfessorReyntjens, Mr. Nsanzuwera, ProfessorMbonimpa and Captain Lemaire, the Chamber is satisfiedthat at thetime of theevents allegedin the Indictment, namely, in April, May and June 1994, there existed an internal armed conflictbetween, onthe one hand, the government forces and, on theother, the dissident armed forces,the RPF.The RPF wereunder the responsiblecommand of GeneralKagame and exercisedsuch control over part of theirterritory asto enable them to carry on sustained and concertedmilitary operations. TheRPF also stated to theInternational Committee ofthe Red Crossthat it considered itself bound by the rules of internationalhumanitarian law119.Moreover, thetheater of combat in April 1994 included the town of Kigali,as theopposing forces fought togain control ofthe capital.
437.Evidence adduced in support of the paragraphs contained inthe general allegations, and morespecifically paragraphs 7 and 8, and also the allegations setout in paragraphs 14,15, 16 and 18of the Indictment, demonstrate that the victims of the offences were unarmed civilians, men, womenand children who had been identified as the "targets" on the basis of theirethnicity. Thosepersons who had carried weapons were disarmed by theUNAMIR troops on enteringthe ETOcompound. The Chamber does not consider that the beating of theseweapons prior to being disarmeddeprived the victims of theprotection afforded to themby CommonArticle 3 of the GenevaConventions andAdditional Protocol II. Indeed, the Chamber is notof theopinion that
119See Report of theUnited Nations High Commissioner for Human Rights on hisMission to Rwanda11-12
May1994, paragraph 20.
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...... ¯...... ¯...... ,....,...... ¯....¯.. ¯...... ¯...... ¯...... ¯...... ¯...... ¯.....¯...... thesearmed clvthansweretakmgadlrectpartmthehostdltles, butratherfindsthatthebearmg ofthese weapons was a desperateand futile attempt at survival against the thousands of armed assailants¯
438.The Chamber is satisfiedthat the victims were persons taking no activepart in the hostilitiesandwere thus protected persons under Common Article 3 of theGeneva Conventions andAdditional Protocol II.
439.The Accusedwas in a positionof authorityvis-h-vis the lnterahamwemilitia. Testimoniesin thiscase have demonstrated that the Accused exerted control over the lnterahamwe,that he distributed weapons to them during the events alleged in this Indictment, aidingand abetting inthe commission ofthe crimes and directly participating in the massacres withthe lnterahamwe. The expert witness, Mr. Nsanzuwera, testified that the Interahamwe militiaserved two roles during April, May and June 1994, on theone hand, they supported the RAFwar effort against the RPF, and on theother hand, they killed Tutsi and Hutu opponents.
440.Moreover, as testifiedby Mr.Nsanzuwera, there is meritin the submissionof the Prosecutorthat, considering theposition of authorityof the Accused over the Interahamwe, and therole that the lnterahamwe served in supportingthe RAF against the RPF, there is a nexus betweenthe crimes committed and the armed conflict. Insupport thereof, the Prosecutor argues thatthe lnterahamwe werethe instrument ofthe military inextending the scope of the massacres.
441.Thus, the Chamber is alsosatisfied that the Accused, as secondvice-president of the youthwing of theMRND, being known as theInterahamwe za MRND and being the youth wing of thepolitical majority in thegovemment inApril 1994, falls within the category of persons whocan be held individually responsible forserious violations of the provisions ofArticle 4 of theStatute.
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442.The Prosecutor argues that the lnterahamwe orchestrated massacres as partof their supportto theRAF in theconflict against the RPF, and as theAccused was in a positionof authorityover the lnterahamwe, that, ipsofacto, theacts of the Accused also formed part of that support.Such a conclusion,without being supported bythe necessary evidence, is, in the opinion ofthe Chamber, insufficient toprove beyond reasonable doubt that the Accused is individually criminallyresponsible forserious violations ofCommon Article 3 and Additional Protocol II. Consequently,theChamber finds that the Prosecutor has not shown how the individual acts of theAccused, asalleged in theIndictment, during these massacres were committed in conjunction withthe armed conflict.
443.Moreover, in theopinion of theChamber, although the Genocide against the Tutsis and theconflict between the RAF and the RPF are undeniably linked, the Prosecutor cannot merely relyon a findingof Genocide and consider that, as such,serious violations of Common Article 3 andAdditional Protocol IIare thereby automatically established. Rather, the Prosecutor must dischargeher burden by establishing thateach material requirement ofoffences under Article 4 ofthe Statute are met.
444.The Chamber therefore finds that it hasnot been proved beyond reasonable doubt that thereexisted a nexusbetween the culpable acts committed by theAccused and the armed conflict.
445.Consequently, theChamber finds the Accused not guilty of Counts4, 6, and8 of the Indictment,being serious violations of Common Article 3 of theGeneva Conventions (murder), asincorporated under Article 4 (a) of the Statute.
Judgement,Prosecutor versus Rutaganda 162 6. VERDICT
FOR THEFOREGOING REASONS, having considered all of the evidenceand the arguments, THE CHAMBERunanimously finds as follows:
Count1: Guiltyof Genocide
Count2: Guiltyof CrimeAgainst Humanity (Extermination)
Count3: NotGuilty of CrimeAgainst Humanity (Murder)
Count4: NotGuilty of Violationof Article3 Common to theGeneva Conventions (Murder)
Count5: NotGuilty of CrimeAgainst Humanity (Murder)
Count6: NotGuilty of Violationof Article3 Common to theGeneva Conventions (Murder)
Count7: Guiltyof CrimeAgainst Humanity (Murder)
Count8: NotGuilty of Violationof Article3 Common to theGeneva Conventions (Murder)
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¯...... ,..,....,..,....,..¯,..,,..,...... ,.,.....,..,.. ¯.,...,,.,,,..,,.,...... ,..,..,..,..,,.,,.,,.,,,,,.. *,..,.*,....,..,....,.. ¯.,..¯.,...... ,,,.,,..,,..,,.,.,,,,..,.,,.,,,.,,.,,..,,.,,,. 7. SENTENCE
446.The Chamber will now summarize the legal texts relating to sentencesand penalties and theirenforcement, before going on to specify the applicable scale of sentences, onthe one hand, andthe general principles governing the determination of penalties, onthe other.
A. Applicabletexts
447.The Chamber will apply the statutory and regulatory provisions hereafter. Article 22 of theStatute on judgement, Articles 23and 26 dealing respectively withpenalties and enforcement of sentences,Rules 101, 102, 103 and 104 of theRules which cover respectively sentencing procedureon penalties, status of the convicted person, place and supervision ofimprisonment.
B.Scale of sentencesapplicable to the Accused found guilty of oneof thecrimes listed in Articles2, 3 or 4 ofthe Statute of theTribunal
448.The Tribunal may imposeon an accusedwho pleads guilty or is convictedas such, penaltiesranging from prison terms up toand including life imprisonment. TheStatute of the Tribunalexcludes other forms of punishment such as thedeath sentence, penal servitude or a e, fine.
449.Whereasin most national systems the scale of penaltiesis determined in accordance with thegravity of the offence, the Chamber notes that the Statute does not rank the various crimes fallingunder the jurisdiction ofthe Tribunal and, thereby, the sentence to behanded down. In theory,the sentences are the same for each of thethree crimes, namely a maximumterm of life imprisonment.
Judgement,Prosecutor versus Rutaganda 164 CaseNo:ICTR-96-3-T ~
450.It should be noted,however, that in imposing the sentence, the Trial Chamber should take intoaccount, inaccordance with Article 23 (2)of the Statute, such factors as thegravity of the offence.In theopinion of theChamber, it is difficultto rankgenocide and crimes against humanityasone being the lesser of the other in terms of their respective gravity. The Chamber holdsthat both crimes against humanity, already punished by the Nurembergand Tokyo Tribunals,and genocide, a concept defined later, are crimes which are particularly shocking to thecollective conscience.
451.Regarding the crime of genocide, in particular,thepreamble to the Genocide Convention recognizesthat at all periods of history, genocide has inflicted great losses on humanityand reiteratesthe need for international cooperation to liberate humanity from such an odious scourge.The crime of genocideis uniquebecause of itselement of dolus specialis, (special intent)which requires that the crime be committed with the intent ’to destroy inwhole or in part, a national,ethnic, racial or religious group as such’, as stipulated inArticle 2 of the Statute; hencethe Chamber is of the opinion that genocide constitutes the"crime of crimes", which must be takeninto account when deciding the sentence.
452.There is no argumentthat, precisely onaccount of theirextreme gravity, crimes against humanityand genocide must be punishedappropriately. Article 27 of theCharter of the NurembergTribunal empowered that Tribunal, pursuant to Article6(c) of thesaid Charter, sentenceany accused found guilty of crimesagainst humanity to deathor such other punishment asshall be determined byit to be just.
453.Rwanda, like all the States which have incorporated crimes against humanity or genocide intheir domestic legislation, provides the most severe penalties forsuch crimes under its criminal legislation.To this end, the Rwandan Organic Law on theOrganization of Prosecutions for
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Offencesconstituting Genocide or Crimesagainst Humanity, committed since 1 October1990, ~20,groups accused persons into four categories, according totheir acts of criminal participation. Includedin the first category are the masterminds ofthe crimes (planners, organizers), persons inpositions ofauthority, and persons who have exhibited excessive cruelty and perpetrators of sexualviolence. All such persons are punishable by the death penalty. The second category coversperpetrators, conspirators or accomplices in criminal acts, for whom the prescribed penaltyis lifeimprisonment. Included in thethird category are persons who, in additionto committinga substantive offence, are guilty of other serious assaults against the person. Such personsface a short-termimprisonment. The fourthcategory is thatof personswho have committedoffences against property.
454.Reference to the practice of sentencinginRwanda and to the Organic law is forpurposes of guidance.While referring asmuch as practicable tosuch practice ofsentencing, theChamber maintainsits unfettered discretion topass sentence on personsfound guilty of crimes failing withinits jurisdiction, taking into account the circumstances of the case and the individual circumstancesof the accused persons.
C. Generalprinciples regarding the determination of sentences
455.In determiningthesentence, the Chamber shall be mindful of thefact that this Tribunal wasestablished by the Security Council pursuant to ChapterVII of theCharter of theUnited Nationswithin the context of measuresthe Council was empowered to takeunder Article 39 of thesaid Charter to ensure that violations ofinternational humanitarian lawin Rwanda in 1994 werehalted and effectively redressed. Theobjective was to prosecute and punish the perpetrators of theatrocities inRwanda in sucha wayas to putan endto impunityand thereby to promote nationalreconciliation andthe restoration ofpeace.
120Organic Law No. 8/96 of 30 August1996, published in theGazette of theRepublic of Rwanda,35th year. No. 17,1 September1996.
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456.That said, it isclear that the penalties imposed on accusedpersons found guilty by the Tribunalmust be directed, onthe one hand, at retribution ofthe said accused, who must see their crimespunished, and over and above that, on other hand, at deterrence, namely to dissuadefor ever,others who may be tempted in the future to perpetratesuch atrocities byshowing them that theinternational community shall not tolerate the serious violations o finternationalhumanitarian lawand human rights.
457.The Chamber also recalls that, in thedetermination of sentences, it is requiredunder Article23(2) of the Statute and Rule 101 (B) of the Rules to take into account a number of factors includingthe gravity of theoffence, the individual circumstances ofthe convicted person, the existenceofany aggravating or mitigating circumstances, including the substantial co-operation withthe Prosecutor bythe convicted person before or after his conviction. Itis a matter,as it were,of individualizing thepenalty.
458.Clearly, however, as faras the individualization of penalties is concerned, thejudges of theChamber cannot limit themselves tothe factors mentioned inthe Statute and the Rules. Here again,their unfettered discretion inassessing thefacts and attendant circumstances should enable themto take into account any other factor that they deem pertinent.
459. Similarly,thefactors referred toin the Statute and in the Rules cannot be interpreted as havingtobe applied cumulatively inthe determination ofthe sentence.
Judgement,Prosecutor versus Rutaganda 167 CaseNo: ICTR-96-3-T
D. Submissionsof the Parties
Prosecutor’ssubmissions
460. In herfinal brief and in her closing argument made in open court on 16June 1999, the Prosecutorsubmitted that the crimes committed by Rutaganda,in particularthe crime of genocideand crimes against humanity, are of extremely serious offences calling for appropriate punishment.She submitted that the Chamber should take into account the status of Rutaganda inthe society, his individual role in the execution ofthe crimes, his motivation, hismental dispositionandhis will, the attendant circumstances ofhis crimes and his behaviour after the criminalacts.
461. TheProsecutor submitted that the following aggravating circumstances aresuch as to justifya more severe sentence inthis matter:
(i) Rutagandawas known in societyas thesecond vice-president of the lnterahamweat the national level. He also was a richbusinessman;
(ii)His criminal participation extended to alllevels. He actedas principalauthority at Amgargarage, ETO and Nyanza massacres. He incited to killand he alsokilled with his own hands. He provided logistical support indistributing weapons;
(iii)He endorsed the genocidal plan of theinterim government. At the same time,he seized the occasion for his personal gain;
(iv) He playeda leadingrole in thegenocide. He killedor orderedhis victimstobe killed in cold blood;
Judgement,Prosecutor versus Rutaganda 168 CaseNo:ICTR-96-3-T ~
(v) He orderedthe Interahamwe tokill the victims with various blunt and sharpweapons in completedisregard for the suffering ofthe individual victim. Thevictims were placed in a worldof total persecution which lasted for 100 days;
(vi)In hiscapacity as directsupervisor of the Interahamweat Amgar garage,hefailed to punish the perpetrators. Infact, he was one of the principal offenders.
462. Furthermore,theProsecutor submits that there are no mitigatingcircumstances. The Accuseddidnot cooperate with the Prosecutor. He has shown no remorsefor his crimes.
463. Withregard to the issue of multiplesentences which could be imposedon Rutaganda asenvisaged by Rule 101(c) of the Rules, the Prosecutor asked for separate sentences for each of thecounts on whichRutaganda was found guilty while specifying that the Accused should servethe more severe sentence. The Prosecutor, submitted that the Chamber should impose a sentencefor each offence committed inorder to fullyrecognize the seriousness ofeach crime, andthe particular role of the convicted person in its commission.
464. In conclusion,theProsecutor recommends life imprisonment foreach count for which theaccused is convicted¯
Defence’ssubmissions
465. Duringthe final arguments hearing, the Defence submitted that Rutaganda is innocent andasked that he be acquittedofall the eight counts charged. The Accused himself expressed hissorrow to the Rwandan population especially those who live in his native land. He called on
Judgement,Prosecutor versus Rutaganda 169 CaseNo:ICTR-96-3-T ~ theChamber to considerespecially hishealth condition and though he did not feel he was guilty, heprayed that the Chamber afford him time to live with his children, should it find him guilty.
E. Personalcircumstances of GeorgesRutaganda
466. Rutagandawas bornon 28 November1958. His fatherwas a prominentperson in Rwanda.Rutaganda is marriedand has three children. He wasa richbusinessman. He was a memberof MRND at thenational and prefectural levels. He servedas the second vice- president ofthe Interahamwe atthe national level.
467. TheChamber has scrupulously examined all the submissions presented by theparties indetermination of sentence; from which it derivesthe following:
F. Aggravatingcircumstances
(i) Gravityof the Offences:
468. Theoffences with which the accused Georges Rutaganda is chargedare, indisputably, extremelyserious, as theTrial Chamber already pointed out when it described genocide as the "crimeof crimes".
(ii) Theposition of authorityof GeorgesRutaganda in theInterahamwe
469. Rutagandawas the second vice- president ofthe Interahamwe at the national level. The Chamberfinds that the fact that a personin a highposition abused his authority and committed crimesis to be viewed as an aggravating factor.
Judgement,Prosecutor versus Rutaganda 170 Case No: ICTR-96-3-T
(iii) Therole played by Rutagandain the execution ofthe crimes
470. TheChamber finds that Rutaganda played an importantleading role in theexecution of thecrimes. He distributed weapons to theInterahamwe forthe purpose of killling Tutsis. He positionedthe lnterahamwe at Nyanza and incited and ordered the killing of Tutsison several occasions¯As a secondvice president of the Interahamwe,. He killed Emmanuel Kayitare, alias Rujindiri,a Tutsi, by stricking him on the head with a machete.
G. Mitigatingcircumstances
(i) Assistancegiven by GeorgesRutaganda to certainpeople
471. TheDefence alleges that Georges Rutaganda, during the period of thecommission of thecrimes with which he is charged, helped people to evacuate tovarious destinations atvarious timesand by various means. The Chamber accepts, asmitigating factors, the fact that Rutaganda hadevacuated the families of witnessesDEE and DS andthat he hadused exceptional means to savewitness DEE, the Tutsi wife of oneof his friends and that he provided food and shelter to somerefugees.
A
(ii) Rutaganda’shealth condition
472. Rutagandarequested that the Chamber consider his present health condition. The Chambernotesthat Rutaganda isin poor health and has had to seekmedical help continously.
473. Havingreviewed all the circumstances of the case, the Chamber is of theopinion that theaggravating factors outweigh the mitigating factors, especially asRutaganda occupied a high positionin the lnterahamweat the timethe crimeswere committed. He knowinglyand
Judgement,Prosecutor versus Rutaganda 171 CaseNo:ICTR-96-3-T ~
consciouslyparticipated in the commission ofsuch crimes and never showed remorse for what heinflicted upon the victims.
TRIAL CHAMBER I
FOR THE FOREGOING REASONS,
DELIVERINGits decision in public,interpartes andin the first instance;
PURSUANTto Articles23, 26 and 27 of theStatute of the Tribunal and Rules 101, 102, 103 and 104of theRules of Procedureand Evidence;
Notingthe general practice regarding sentencing in Rwanda;
Notingthat Rutaganda has been found guilty of:
Genocide -Countl CrimeAgainst Humanity (extermination) -Count2
Al’~. CrimeAgainst Humanity (murder) -Count7
Notingthe brief submitted by the Prosecutor;
Havingheard the Prosecutor and the Defence;
IN PUNISHMENT OF THE ABOVE MENTIONED CRIMES,
Judgement,Prosecutor versus Rutaganda 172 CaseNo:[CTR-96-3-T ~
SENTENCESGeorges Rutaganda to:
A S1NGLE SENTENCE OF LIFE IMPRISONMENT FOR ALL THE COUNTS ON WHICH HE HAS BEEN FOUND GUILTY
RULESthat imprisonment shall be served in a Statedesignated bythe President ofthe Tribunal, in consultationwith the Trial Chamber, the Government of Rwanda and the designated State shallbe notified ofsuch designation bythe Registrar;
RULESthat this judgement shall be enforcedimmediately, andthat, however:
(i) Untilhis transfer to thedesignatedplace ofimprisonment, Georges Rutaganda shallbe kept in detention under the present conditions;
(ii) Uponnotice of appeal, if any, the enforcement ofthe sentence shall be stayed untila decisionhas been rendered onthe appeal, with the convicted person nevertheless remainingin detention.
Arusha,6 December1999,
LeunAspegren I Presiding/udge Judge / Judg~ ]
(Sealof the Tribunal)
Judgement,Prosecutor versus Rutaganda - 173-