International Criminal Tribunal for Rwanda Tribunal pénal international pour le Rwanda UNITED NATIONS NATIONS UNIES Or.: Eng. TRIAL CHAMBER I Before: Judge Erik Møse, presiding Judge Khalida Rachid Khan Judge Solomy Balungi Bossa Registrar: Adama Dieng Date: 15 July 2004 THE PROSECUTOR v. EMMANUEL NDINDABAHIZI Case No. : ICTR-2001-71-I JUDGEMENT AND SENTENCE The Prosecution Charles Adeogun-Phillips Wallace Kapaya Peter Tafah The Defence Pascal Besnier Guillaume Marçais Prosecutor v. Ndindabahizi, Case No. ICTR-2001-71-I TABLE OF CONTENTS CHAPTER I INTRODUCTION 1. The Tribunal and its Jurisdiction 2. The Accused 3. The Indictment 4. Procedural History 5. Evidentiary Matters CHAPTER II FACTUAL FINDINGS 1. Introduction 2. Notice: Vagueness and Errors in the Indictment 3. General Issues 3.1 Introduction 3.2 Position of the Accused in Interim Government, April-July 1994 3.3 Participation of the Accused in Meeting of 3 May 1994, Kibuye 3.4 Forced Resignation of Witness GKH, June 1994 3.5 Fabrication of Evidence and Collusion Amongst Witnesses 4. Actions of the Accused at Gitwa Hill, April 1994 4.1 Introduction 4.2 Distribution of Weapons, Incitement and Participation in Attack, mid-April 4.3 Distribution of Weapons and Incitement, 23 April 4.4 Distribution of Weapons and Incitement, 24 April 4.5 Absence of the Accused from Gitwa Hill 4.6 Alibi 4.7 Factual Findings 5. Incitement By the Accused at Meeting With Bourgmestre of Gitesi Commune, April or May 1994 6. Actions of the Accused at Three Roadblocks in Gitesi Commune, May 1994 6.1 Distribution of Weapons and Incitement at Gaseke Roadblock, Late May 6.2 Distribution of Weapons and Incitement at Faye Roadblock, Late May 6.3 Distribution of Weapons and Incitement at Nyabahanga Bridge Roadblock, Late May 6.4 Alibi 7. Incitement By the Accused at Gitaka Centre, May 1994 8. Distribution of Weapons and Incitement at Kibirizi Market, Late May 1994 Judgement and Sentence i 15 July 2004 Prosecutor v. Ndindabahizi, Case No. ICTR-2001-71-I CHAPTER III LEGAL FINDINGS 1. Genocide 1.1 Applicable Law 1.2 Application to Factual Findings 2. Extermination as a Crime Against Humanity 2.1 Applicable Law 2.2 Application to Factual Findings 3. Murder as a Crime Against Humanity 3.1 Applicable Law 3.2 Application to Factual Findings 4. Conviction for Cumulative Charges CHAPTER IV VERDICT CHAPTER V SENTENCE 1. Applicable Provisions and General Principles of Sentencing 2. Submissions 3. Deliberations Annex A Indictment Annex B Cited Materials/Defined Terms Judgement and Sentence ii 15 July 2004 Prosecutor v. Ndindabahizi, Case No. ICTR-2001-71-I Chapter I INTRODUCTION 1. The Tribunal and Its Jurisdiction 1. This Judgement in the case of Prosecutor v. Emmanuel Ndindabahizi is rendered by Trial Chamber I (“the Chamber”) of the International Criminal Tribunal for Rwanda (“the Tribunal”), composed of Judges Erik Møse, presiding, Khalida Rachid Khan, and Solomy Balungi Bossa. 2. The Tribunal was established by United Nations Security Council Resolution 955 of 8 November 1994 in response to reports indicating that genocide and other widespread, systematic, and flagrant violations of international humanitarian law had been committed in Rwanda.1 The Security Council determined that this situation constituted a threat to international peace and security and was convinced that the prosecution of persons responsible for serious violations of international humanitarian law would contribute to the process of national reconciliation and peace in Rwanda. Consequently, the Security Council, acting under Chapter VII of the United Nations Charter, adopted Resolution 955 establishing the Tribunal. 3. The Tribunal is governed by the Statute annexed to Resolution 955 (“the Statute”) and by the Rules of Procedure and Evidence of the Tribunal (“the Rules”).2 4. Pursuant to the Statute, the Tribunal has the authority to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States. Under Article 1 of the Statute, the Tribunal’s jurisdiction is limited ratione temporis to acts committed between 1 January 1994 and 31 December 1994. The Tribunal has ratione materiae jurisdiction over genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and Additional Protocol II thereto, as provided in Articles 2, 3, and 4 of the Statute. 2. The Accused 5. Emmanuel Ndindabahizi was born in 1950 in Gasharu, Gitesi Commune, Kibuye Prefecture, Rwanda.3 After completing primary school at Kirambo and Nyagato in Gitesi Commune in 1964, he attended the Shyogwe Secondary School in Gitarama Prefecture (1964 to 1967) and the Official College in Kigali (1967-1970).4 At the University of Butare, he obtained a Bachelor degree in Economics and Social Sciences in 1974 and a Degree in 1 U.N. Doc. S/RES/955 (1994); Preliminary Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), U.N. Doc. S/1994/1125; Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), U.N. Doc. S/1994/1405; and Reports of the Special Rapporteur for Rwanda of the United Nations Commission for Human Rights (U.N. Doc. S/1994/1157, Annexes I and II). 2 Originally adopted by the Judges of the Tribunal on 5 July 1995, the Rules were last amended on 23-24 April 2004 during the Fourteenth Plenary Session. The Statute and the Rules are available at the Tribunal’s website: <http://www.ictr.org>. 3 During his testimony, the Accused provided an overview of his education and career. T. 24 November 2003 pp. 5-15. 4 Defence Exhibit 55. Judgement and Sentence 1 15 July 2004 Prosecutor v. Ndindabahizi, Case No. ICTR-2001-71-I Management (licencié en Sciences de la Gestion) in 1976.5 From November 1976, the Accused worked at Trafipro, a consumer cooperative with headquarters in Kigali and with thirty or more stores throughout Rwanda, where he was the head of the Finance Division until the end of 1981.6 He was then transferred to the Electrogaz Company in Kigali, where he headed the Administrative and Financial Department. In 1985, the Accused was transferred to the Ministry of Planning in Kigali to head the Internal Financing Section. 7 In 1991, he left the civil service to work for Audico, a private consulting and auditing firm, until 1992.8 6. The Accused joined the Social Democratic Party, Parti Social Démocrate (“PSD”), in 1992. In September 1992 he was appointed Directeur de Cabinet in the Ministry of Finance, second in authority only to the Minister, and remained in that position until 6 April 1994.9 He was elected Executive Secretary of the PSD in Kibuye in 1993.10 The Accused was sworn in as Minister of Finance of the Interim Government on 9 April 1994. He left Rwanda for Goma in the Democratic Republic of Congo (Zaire) on or around 13 or 14 July 1994.11 3. The Indictment 7. Under the amended Indictment of 1 September 2003, the Accused is charged with three counts, pursuant to Articles 2 and 3 of the Statute: genocide; extermination as a crime against humanity; and murder as a crime against humanity. The Indictment, which is set out in full in Annex A to this Judgement, charges the Accused with individual criminal responsibility under Article 6 (1) for these crimes. 4. Procedural History 8. The initial Indictment, confirmed by Judge Pavel Dolenc on 5 July 2001, charged the Accused with four counts: genocide; direct and public incitement to commit genocide; murder as a crime against humanity; and extermination as a crime against humanity. 12 Pursuant to a warrant issued on the same day, the Accused was arrested at Verviers, Belgium, on 12 July 2001.13 By order of 10 July 2001, Judge Dolenc granted the Prosecution’s ex parte application, dated 26 June 2001, for confidentiality of the Indictment until the Accused’s arrest and non-disclosure of the identity of witnesses, whose statements had been submitted in support of the Indictment.14 The Accused was transferred to the United Nations Detention Facility in Arusha, Tanzania on 25 September 2001. 9. On 3 October 2001, Judge Dolenc granted the Prosecution leave to amend the Indictment by adding a charge of rape as a crime against humanity, and the Accused’s alleged superior responsibility under Article 6 (3) of the Statute. Judge Dolenc also issued a non- 5 Defence Exhibits 56 and 57. 6 Defence Exhibit 58. 7 Defence Exhibit 60. 8 T. 24 November 2003 pp. 11-13; T. 27 November 2003 p. 2. 9 Defence Exhibit 61. 10 T. 24 November 2003 p. 17. 11 T. 25 November 2003 p. 12. 12 Confirmation of Indictment, 5 July 2001. 13 Warrant of Arrest and Orders for Transfer and Detention and for Search and Seizure, 5 July 2001. 14 Order for Non-Disclosure (TC), 10 July 2001. Judgement and Sentence 2 15 July 2004 Prosecutor v. Ndindabahizi, Case No. ICTR-2001-71-I disclosure order for the protection of witnesses.15 The amended Indictment of 4 October 2001 was filed on the following day. 10. At the Initial Appearance on 9 October 2001, Judge Navanethem Pillay adjourned the proceedings to afford the Accused additional time to examine the amended Indictment.16 On 19 October 2001, the Accused pleaded not guilty to all five counts of the amended Indictment. The same date, the Prosecution disclosed to the Defence twenty-seven witness statements in redacted form and fourteen other supporting documents. On 30 May 2002, the Chamber dismissed a motion, filed by the Defence on 19 November 2001, challenging the legality of this Indictment.17 11.