Judge Laity Kama, Presiding Judge Lennart Aspegren Judge Navanethem Pillay Registry:
Mr. Agwu U. Okali Decision of: 2 September 1998
THE PROSECUTOR VERSUS JEAN-PAUL AKAYESU
Case No. ICTR-96-4-T
The Office of the Prosecutor:
Mr. Pierre-Richard Prosper
Counsel for the Accused:
Mr. Nicolas Tiangaye Mr. Patrice Monthe
1.1. The International Tribunal
- This judgment is rendered by Trial Chamber I of the International Tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January and 31 December 1994 (the “Tribunal”). The judgment follows the indictment and trial of Jean Paul Akayesu, a Rwandan citizen who was bourgmestre of Taba commune, Prefecture of Gitarama, in Rwanda, at the time the crimes alleged in the indictment were perpetrated.
- The Tribunal was established by the United Nations Security Council by its resolution 955 of 8 November 1994.1 After having reviewed various official United Nations reports2 which indicated that acts of genocide and other systematic, widespread and flagrant violations of international humanitarian law had been committed in Rwanda, the Security Council concluded that the situation in Rwanda in 1994 constituted a threat to international peace and security within the meaning of Chapter VII of the United Nations Charter. Determined to put an end to such crimes and ” convinced that…the prosecution of persons responsible for such acts and violations … would contribute to the process of national reconciliation and to the restoration and maintenance of peace”, the Security Council, acting under the said Chapter VII established the Tribunal.3 Resolution 955 charges all States with a duty to cooperate fully with the Tribunal and its organs in accordance with the Statute of the Tribunal ( the “Statute”), and to take any measures necessary under their domestic law to implement the provisions of the Statute, including compliance with requests for assistance or orders issued by the Tribunal . Subsequently, by its resolution 978 of 27 February 1995, the Security Council “urge[d] the States to arrest and detain, in accordance with their national law and relevant standards of international law, pending prosecution by the International Tribunal for Rwanda or by the appropriate national authorities, persons found within their territory against whom there is sufficient evidence that they were responsible for acts within the jurisdiction of the International Tribunal for Rwanda”.4
- The Tribunal is governed by its Statute, annexed to the Security Council Resolution 955, and by its Rules of Procedure and Evidence (the “Rules”), adopted by the Judges on 5 July 1995 and amended subsequently.5 The two Trial Chambers and the Appeals Chamber of the Tribunal are composed of eleven Judges in all, three sitting in each Trial Chamber and five in the Appeals Chamber. They are elected by the United Nations General Assembly and represent, in accordance with Article 12(3) (c) of the Statute, the principal legal systems of the world. The Statute stipulates that the members of the Appeals Chamber of the other special internatinal criminal tribunal, namely the Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 (“the Tribunal for the former Yugoslavia”), shall also serve as members of the Appeals Chamber of the Tribunal for Rwanda.
- Under the Statute, the Tribunal has the power to prosecute persons responsible for serious violations of international human law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States, between 1 January and 31 December 1994. According to Articles 2 to 4 of the Statute relating to its ratione materiae jurisdiction, the Tribunal has the power to prosecute persons who committed genocide as defined in Article 2 of the Statute, persons responsible for crimes against humanity as defined in Article 3 of the Statute and persons responsible for serious violations of Article 3 Common to the Geneva Conventions of 12 August 1949 on the protection of victims of war6, and of Additional Protocol II thereto of 8 June 1977, a crime defined in Article 4 of the Statute_7. Article 8 of the Statute provides that the Tribunal has concurrent jurisdiction with national courts over which it, however, has primacy.
- The Statute stipulates that the Prosecutor, who acts as a separate organ of the Tribunal, is responsible for the investigation and prosecution of the perpetrators of such violations. Upon determination that a prima facie case exists to proceed against a suspect, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged. Thereafter, he or she shall transmit the indictment to a Trial Judge for review and, if need be, confirmation. Under the Statute, the Prosecutor of the Tribunal for the former Yugoslavia shall also serve as the Prosecutor of the Tribunal for Rwanda. However, the two Tribunals maintain separate Offices of the Prosecutor and Deputy Prosecutors. The Prosecutor of the Tribunal for Rwanda is assisted by a team of investigators, trial attorneys and senior trial attorneys, who are based in Kigali, Rwanda. These officials travel to Arusha whenever they are expected to plead a case before the Tribunal.
1.2. The Indictment
- The Indictment against Jean-Paul Akayesu was submitted by the Prosecutor on 13 February 1996 and was confirmed on 16 February 1996. It was amended during the trial, in June 1997, with the addition of three counts ( 13 to 15) and three paragraphs (10A, 12A and 12B). The Amended Indictment is here set out in full:
“The Prosecutor of the International Criminal Tribunal for Rwanda, pursuant to his authority under Article 17 of the Statute of the Tribunal, charges:
JEAN PAUL AKAYESU
with GENOCIDE, CRIMES AGAINST HUMANITY and VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as set forth below:
- On April 6, 1994, a plane carrying President Juvenal Habyarimana of Rwanda and President Cyprien Ntaryamira of Burundi crashed at Kigali airport, killing all on board. Following the deaths of the two Presidents, widespread killings, having both political and ethnic dimensions, began in Kigali and spread to other parts of Rwanda.
- Rwanda is divided into 11 prefectures, each of which is governed by a prefect. The prefectures are further subdivided into communes which are placed under the authority of bourgmestres. The bourgmestre of each commune is appointed by the President of the Republic, upon the recommendation of the Minister of the Interior. In Rwanda, the bourgmestre is the most powerful figure in the commune. His de facto authority in the area is significantly greater than that which is conferred upon him de jure.
- Jean Paul AKAYESU, born in 1953 in Murehe sector, Taba commune, served as bourgmestre of that commune from April 1993 until June 1994. Prior to his appointment as bourgmestre, he was a teacher and school inspector in Taba.
- As bourgmestre, Jean Paul AKAYESU was charged with the performance of executive functions and the maintenance of public order within his commune, subject to the authority of the prefect. He had exclusive control over the communal police, as well as any gendarmes put at the disposition of the commune. He was responsible for the execution of laws and regulations and the administration of justice, also subject only to the prefect’s authority.
- Unless otherwise specified, all acts and omissions set forth in this indictment took place between 1 January 1994 and 31 December 1994, in the commune of Taba, prefecture of Gitarama, territory of Rwanda.
- In each paragraph charging genocide, a crime recognized by Article 2 of the Statute of the Tribunal, the alleged acts or omissions were committed with intent to destroy, in whole or in part, a national, ethnic or racial group.
- The victims in each paragraph charging genocide were members of a national, ethnic, racial or religious group.
- In each paragraph charging crimes against humanity, crimes recognized by Article 3 of the Tribunal Statute, the alleged acts or omissions were committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic or racial grounds.
- At all times relevant to this indictment, a state of internal armed conflict existed in Rwanda.
- The victims referred to in this indictment were, at all relevant times, persons not taking an active part in the hostilities.
10A. In this indictment, acts of sexual violence include forcible sexual penetration of the vagina, anus or oral cavity by a penis and/or of the vagina or anus by some other object, and sexual abuse, such as forced nudity.
- The accused is individually responsible for the crimes alleged in this indictment. Under Article 6(1) of the Statute of the Tribunal, individual criminal responsibility is attributable to one who plans, instigates, orders, commits or otherwise aids and abets in the planning, preparation or execution of any of the crimes referred to in Articles 2 to 4 of the Statute of the Tribunal.
- As bourgmestre, Jean Paul AKAYESU was responsible for maintaining law and public order in his commune. At least 2000 Tutsis were killed in Taba between April 7 and the end of June, 1994, while he was still in power. The killings in Taba were openly committed and so widespread that, as bourgmestre, Jean Paul AKAYESU must have known about them. Although he had the authority and responsibility to do so, Jean Paul AKAYESU never attempted to prevent the killing of Tutsis in the commune in any way or called for assistance from regional or national authorities to quell the violence.
12A. Between April 7 and the end of June, 1994, hundreds of civilians (hereinafter “displaced civilians”) sought refuge at the bureau communal. The majority of these displaced civilians were Tutsi. While seeking refuge at the bureau communal, female displaced civilians were regularly taken by armed local militia and/or communal police and subjected to sexual violence, and/or beaten on or near the bureau communal premises. Displaced civilians were also murdered frequently on or near the bureau communal premises. Many women were forced to endure multiple acts of sexual violence which were at times committed by more than one assailant. These acts of sexual violence were generally accompanied by explicit threats of death or bodily harm. The female displaced civilians lived in constant fear and their physical and psychological health deteriorated as a result of the sexual violence and beatings and killings.
12B. Jean Paul AKAYESU knew that the acts of sexual violence, beatings and murders were being committed and was at times present during their commission. Jean Paul AKAYESU facilitated the commission of the sexual violence, beatings and murders by allowing the sexual violence and beatings and murders to occur on or near the bureau communal premises. By virtue of his presence during the commission of the sexual violence, beatings and murders and by failing to prevent the sexual violence, beatings and murders, Jean Paul AKAYESU encouraged these activities.
- On or about 19 April 1994, before dawn, in Gishyeshye sector, Taba commune, a group of men, one of whom was named Francois Ndimubanzi, killed a local teacher, Sylvere Karera, because he was accused of associating with the Rwandan Patriotic Front (“RPF”) and plotting to kill Hutus. Even though at least one of the perpetrators was turned over to Jean Paul AKAYESU, he failed to take measures to have him arrested.
- The morning of April 19, 1994, following the murder of Sylvere Karera, Jean Paul AKAYESU led a meeting in Gishyeshye sector at which he sanctioned the death of Sylvere Karera and urged the population to eliminate accomplices of the RPF, which was understood by those present to mean Tutsis. Over 100 people were present at the meeting. The killing of Tutsis in Taba began shortly after the meeting.
- At the same meeting in Gishyeshye sector on April 19, 1994, Jean Paul AKAYESU named at least three prominent Tutsis — Ephrem Karangwa, Juvenal Rukundakuvuga and Emmanuel Sempabwa — who had to be killed because of their alleged relationships with the RPF. Later that day, Juvenal Rukundakuvuga was killed in Kanyinya. Within the next few days, Emmanuel Sempabwa was clubbed to death in front of the Taba bureau communal.
- Jean Paul AKAYESU, on or about April 19, 1994, conducted house-to-house searches in Taba. During these searches, residents, including Victim V, were interrogated and beaten with rifles and sticks in the presence of Jean Paul AKAYESU. Jean Paul AKAYESU personally threatened to kill the husband and child of Victim U if she did not provide him with information about the activities of the Tutsis he was seeking.
- On or about April 19, 1994, Jean Paul AKAYESU ordered the interrogation and beating of Victim X in an effort to learn the whereabouts of Ephrem Karangwa. During the beating, Victim X’s fingers were broken as he tried to shield himself from blows with a metal stick.
- On or about April 19, 1994, the men who, on Jean Paul AKAYESU’s instructions, were searching for Ephrem Karangwa destroyed Ephrem Karangwa’s house and burned down his mother’s house. They then went to search the house of Ephrem Karangwa’s brother-in-law in Musambira commune and found Ephrem Karangwa’s three brothers there. The three brothers — Simon Mutijima, Thaddee Uwanyiligira and Jean Chrysostome Gakuba — tried to escape, but Jean Paul AKAYESU blew his whistle to alert local residents to the attempted escape and ordered the people to capture the brothers. After the brothers were captured, Jean Paul AKAYESU ordered and participated in the killings of the three brothers.
- On or about April 19, 1994, Jean Paul AKAYESU took 8 detained men from the Taba bureau communal and ordered militia members to kill them. The militia killed them with clubs, machetes, small axes and sticks. The victims had fled from Runda commune and had been held by Jean Paul AKAYESU.
- On or about April 19, 1994, Jean Paul AKAYESU ordered the local people and militia to kill intellectual and influential people. Five teachers from the secondary school of Taba were killed on his instructions. The victims were Theogene, Phoebe Uwineze and her fiance (whose name is unknown), Tharcisse Twizeyumuremye and Samuel. The local people and militia killed them with machetes and agricultural tools in front of the Taba bureau communal.
- On or about April 20, 1994, Jean Paul AKAYESU and some communal police went to the house of Victim Y, a 68 year old woman. Jean Paul AKAYESU interrogated her about the whereabouts of the wife of a university teacher. During the questioning, under Jean Paul AKAYESU’s supervision, the communal police hit Victim Y with a gun and sticks. They bound her arms and legs and repeatedly kicked her in the chest. Jean Paul AKAYESU threatened to kill her if she failed to provide the information he sought.
- Later that night, on or about April 20, 1994, Jean Paul AKAYESU picked up Victim W in Taba and interrogated her also about the whereabouts of the wife of the university teacher. When she stated she did not know, he forced her to lay on the road in front of his car and threatened to drive over her.
23. Thereafter, on or about April 20, 1994, Jean Paul AKAYESU picked up Victim Z in Taba and interrogated him. During the interrogation, men under Jean Paul AKAYESU’s authority forced Victims Z and Y to beat each other and used a piece of Victim Y’s dress to strangle Victim Z.
Counts 1-3 (Genocide) (Crimes against Humanity)
By his acts in relation to the events described in paragraphs 12-23, Jean Paul AKAYESU is criminally responsible for:
COUNT 1: GENOCIDE, punishable by Article 2(3)(a) of the Statute of the Tribunal;
COUNT 2: Complicity in GENOCIDE, punishable by Article 2(3)(e) of the Statute of the Tribunal; and
COUNT 3: CRIMES AGAINST HUMANITY (extermination), punishable by Article 3(b) of the Statute of the Tribunal.
(Incitement to Commit Genocide)
By his acts in relation to the events described in paragraphs 14 and 15, Jean Paul AKAYESU is criminally responsible for:
COUNT 4: Direct and Public Incitement to Commit GENOCIDE, punishable by Article 2(3)(c) of the Statute of the Tribunal.
Counts 5-6 (Crimes Against Humanity) (Violations of Article 3 common to the Geneva Conventions)
By his acts in relation the murders of Juvenal Rukundakuvuga, Emmanuel Sempabwa, Simon Mutijima, Thaddee Uwanyiligira and Jean Chrysostome Gakuba, as described in paragraphs 15 and 18, Jean Paul AKAYESU committed:
COUNT 5: CRIMES AGAINST HUMANITY (murder) punishable by Article 3(a) of the Statute of the Tribunal; and
COUNT 6: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal.
Counts 7-8 (Crimes Against Humanity) (Violations of Article 3 common to the Geneva Conventions)
By his acts in relation the murders of 8 detained men in front of the bureau communal as described in paragraph 19, Jean Paul AKAYESU committed:
COUNT 7: CRIMES AGAINST HUMANITY (murder) punishable by Article 3(a) of the Statute of the Tribunal; and
COUNT 8: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal.
Counts 9-10 Crimes Against Humanity) (Violations of Article 3 common to the Geneva Conventions)
By his acts in relation to the murders of 5 teachers in front of the bureau communal as described in paragraph 20, Jean Paul AKAYESU committed:
COUNT 9: CRIMES AGAINST HUMANITY (murder) punishable by Article 3(a) of the Statute of the Tribunal; and
COUNT 10 VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal.
Counts 11-12 (Crimes Against Humanity) (Violations of Article 3 common to the Geneva Conventions)
By his acts in relation to the beatings of U, V, W, X, Y and Z as described in paragraphs 16, 17, 21, 22 and 23, Jean Paul AKAYESU committed:
COUNT 11: CRIMES AGAINST HUMANITY (torture), punishable by Article 3(f) of the Statute of the Tribunal; and
COUNT 12: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as incorporated by Article 4(a)(cruel treatment) of the Statute of the Tribunal.
In addition and/or in the alternative to his individual responsibility under Article 6(1) of the Statute of the Tribunal, the accused, is individually responsible under Article 6(3) of the Statute of the Tribunal for the crimes alleged in Counts 13 through 15. Under Article 6(3), an individual is criminally responsible as a superior for acts of a subordinate if he or she knew or had reason to know that the subordinate was about to commit such acts or
had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
Counts 13-15 (Crimes Against Humanity) (Violations of Article 3 common to the Geneva Conventions)
By his acts in relation to the events at the bureau communal, as described in paragraphs 12(A) and 12(B), Jean Paul AKAYESU committed:
COUNT 13:CRIMES AGAINST HUMANITY (rape), punishable by Article 3(g) of the Statute of the Tribunal; and
COUNT 14: CRIMES AGAINST HUMANITY, ( other inhumane acts), punishable by Article 3(i) of the Statute of the Tribunal; and
COUNT 15: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ARTICLE 4(2)(e) OF ADDITIONAL PROTOCOL 2, as
incorporated by Article 4(e)(outrages upon personal dignity, in particular rape, degrading and humiliating treatment and indecent assault) of the Statute of the Tribunal.
Louise Arbour Prosecutor
1.3. Jurisdiction of the Tribunal
7. The subject-matter jurisdiction of the ICTR is set out in Articles 2,3 and 4 of the Statute:
Article 2: Genocide
- The International Tribunal for Rwanda shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.
- Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of the group to another group.
3. The following acts shall be punishable:
b) Conspiracy to commit genocide;
c) Direct and public incitement to commit genocide;
d) Attempt to commit genocide;
e) Complicity in genocide.
Article 3: CRIMES AGAINST HUMANITY
The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds:
h) Persecutions on political, racial and religious grounds;
i) Other inhumane acts.
Article 4: Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II
The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the
Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to:
a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
b) Collective punishments;
c) Taking of hostages;
d) Acts of terrorism;
e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
g) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples;
h) Threats to commit any of the foregoing acts.
8. In addition, Article 6 states the principle of individual criminal responsibility: Article 6: Individual Criminal Responsibility
- A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 4 of the present Statute, shall be individually responsible for the crime.
- The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.
- The fact that any of the acts referred to in articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
- The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal for Rwanda determines that justice so requires.
1.4. The Trial
- 4.1. Procedural Background
- Jean-Paul Akayesu was arrested in Zambia on 10 October 1995. On 22 November 1995, the Prosecutor of the Tribunal, pursuant to Rule 40 of the Rules, requested the Zambian authorities to keep Akayesu in detention for a period of 90 days, while awaiting the completion of the investigation.
- On 13 February 1996, the then Prosecutor, Richard Goldstone8, submitted an Indictment against Akayesu, which was subsequently amended on 17 June 1997. It contains a total of 15 counts covering genocide, crimes against humanity and violations of Article 3 Common to the 1949 Geneva Conventions and Additional Protocol II of
1977 thereto. More specifically, Akayesu was individually charged with genocide, complicity in genocide, direct and public incitement to commit genocide, extermination, murder, torture, cruel treatment, rape, other inhumane acts and outrages upon personal dignity, which he allegedly committed in Taba commune of which he was the bourgmestre at the time of the alleged acts.
II. The Indictment was confirmed and an arrest warrant, accompanied by an order for continued detention, was issued by Judge William H. Sekule on 16 February 1996. The following week, the Indictment was submitted by the Registrar to the Zambian authorities, to be served upon the Accused. Akayesu was transferred to the Detention Facilities of the Tribunal in Arusha on 26 May 1996, where he is still detained awaiting judgment.
- The initial appearance of the Accused, pursuant to Rule 62 of the Rules, took place on 30 May 1996 in the presence of his counsel before Trial Chamber I, composed of Judge La<ty Kama, presiding, Judge Lennart Aspegren and Judge Navanethem Pillay. The prosecution team, led by Honore Rakotomanana9, Deputy Prosecutor of the Tribunal, was composed of Yacob Haile-Mariam, Mohamed Chande Othman and Pierre-Richard Prosper10. The Accused pleaded not guilty to all the counts against him. On the same date, the Chamber ordered the continued detention of the Accused while awaiting his trial!!. Simultaneous interpretation in French and English, and where necessary Kinyarwanda, was provided at the hearings.
- The Accused having been found indigent by the Tribunal, in accordance with the provisions of the Directive on Assignment of Defence Counsel12, the Registrar of the Tribunal assigned Johan Scheers as defence counsel for the Accused and counsel’s fees were paid by the Tribunal. By a decision of 31 October 1996, the Chamber directed the Registrar of the Tribunal to withdraw the assignment of Johan Scheers as defence counsel for Akayesu, pursuant to Article 19 of the Directive on Assignment of Defence Counsel, and to immediately assign Michael Karnavas as the new defence counsel for the Accused. In the same decision, the Chamber postponed the trial until 9 January 1997, at the request of the Accused13. On 20 November 1996, the Chamber granted a request for a further change of defence counsel filed by the Accused on 11 November 1996, pursuant to
Article 19 of the Directive. On 9 January 1997, the Registrar assigned Nicolas Tiangaye and Patrice Monthe, who served as defence counsel for the Accused until the end of the trial. On 16 January 1997, the Chamber rejected a third motion for change of defence counsel filed by the Accused on 9 January 199714. The decision of 16 January 1997 also put an end to the interim measures adopted by the Chamber on 13 January 1997, temporarily authorizing the Accused to cross-examine the witnesses himself, along with his two counsel.
- On 27 May 1996, the then counsel for the Accused, Johan Scheers, filed a preliminary motion under Rule 73 of the Rules1_5, requesting the Chamber to (i) rule that the criminal proceedings were inadmissible for reasons of flagrant violations of the rights of Defence; (ii) order the hearing of witnesses and that Defence investigations be conducted; (iii) exclude from the proceedings, all indirect witnesses to the acts for which the Accused is charged; and (iv) order the release of the Accused pending the trial on the merits. During the oral presentation of the motion at the hearing of 26 September 1996, however, the Defence raised issues beyond the framework of the said motion by advancing complaints regarding, on the one hand, the detention conditions of the Accused during his imprisonment in Zambia and, on the other hand, the delay by the Prosecutor in disclosing the Indictment and supporting material. In its decision of 27 September 199616, the Chamber rejected the entire motion on the grounds that the objections raised by the Defence and the manner in which they were presented, did not provide sufficient basis for the Chamber to rule on the merits under Rule 73 of the Rules. That same day, the Chamber adjourned the trial at the request of the Defence and set 31 October 199617 as the official opening date of the trial on the merits.
- On 29 October 1996, the Chamber granted the Prosecutor’s motion of 23 October 1996 for the transfer of a witness detained in Rwanda in order for him to testify before the Tribunal. A similar motion by the Defence, filed on 30 October 1997, was granted by the Chamber, it being ordered that three witnesses then detained in Rwanda be transferred to the Tribunal’s Detention Facilities for a period of not more than two months so as to testify in the trial1_8. However, two subsequent requests by the Defence for the transfer and appearance in court of five and thirteen witnesses detained in Rwanda respectively were rejected, on the basis, inter alia, that the Defence was unable to demonstrate how the appearance of each witness was undoubtedly material in the discovery of the truth or that the conditions stipulated in Rule 90bis (b) of the Rules had been met19.
- Besides the above-mentioned motions, several pre-trial motions were filed by the Defence, including a motion for the defendant to sit at counsel table during trial, a motion for an expedited in camera hearing regarding Prosecutorial misconduct and a motion to compel the Prosecutor to conduct a fair and just investigation. These motions were not granted.
- The trial of the Accused on the merits opened on 9 January 1997 before Trial Chamber I, composed of Judge La<ty Kama, presiding, Judge Lennart Aspegren and Judge Navanethem Pillay. Pursuant to Rule 84 of the Rules, Honore Rakotomanana and Yacob Haile-Mariam made the opening statement for the Prosecutor, which was followed by the opening statement for the Defence, made by Nicolas Tiangaye and Patrice Monthe. During the initial phase of the trial which took place over 26 trial days until 24 May 1997, 22 witnesses, including five expert witnesses, testified for the Prosecutor. Subsequent to the presentation of the Prosecutor’s evidence, an in camera status conference was held after which the Chamber, at the request of the Defence, adjourned the trial until 29 September 1997.
- All Prosecutor and Defence eye-witnesses requiring protection benefited from measures guaranteeing the confidentiality of their testimony 20. No information which could in any way identify the witnesses was given. During the hearings, letters of the alphabet were used as pseudonyms to refer to protected witnesses and screens isolated the said witnesses from the public, but not from the Accused and his counsel. One Defence witness was heard in camera.
- On 13 January 1997, as an interim measure pending a Chamber decision on a request by the Accused for the replacement of his counsel, Akayesu was authorized by the Chamber to cross-examine, along with his assigned counsel, prosecution witnesses. The pertinent decision was rendered on 16 January 199721, whereby the request for replacement of Counsel was dismissed and the interim measure terminated.
- Most of the Rwandan witnesses spoke in Kinyarwanda and their testimonies were interpreted into the two working languages of the Tribunal (French and English). By Decision of 9 March 1998, the Chamber dismissed a Defence motion, based on Rule 91 of the Rules, to direct the Prosecutor to investigate an alleged false testimony by prosecution witness “R”. The Chamber found that for the Defence to raise doubts as to the reliability of statements made by a witness, was not by itself sufficient to establish strong grounds for believing that the witness may have knowingly and wilfully given false testimony 22.
- During the hearing of 23 January 1997, the Chamber requested the Prosecutor, in view of the exceptional nature of the offences, to submit all written witness statements already made available by her to the Defence. The Prosecutor objected to the request; hence the Chamber, by a decision rendered on 28 January 1997, pursuant to Rules 89(A), 89(C) and 98 of the Rules, ordered the Prosecutor to submit all available written witness statements to the Chamber in the case and that all such statements to which reference had been made by either the Prosecutor or the Defence shall be admitted as evidence and form part of the record. However, this was subject to the caveat that disclosure of all the written statements did not necessarily entail their admissibility as evidence23.
- On 4 February 1997, the Prosecutor, who had not yet complied with the order of 28 January 1997, filed a motion requesting the Chamber to reconsider and rescind the said order. The Prosecutor submitted, inter alia, that the order of 28 January 1997 represented an unjustified change in the established order for production of evidence and thus did not satisfy the provisions of Rule 85, that Rule 98 simply allows the Chamber to order the production of specific additional evidence and not the disclosure of all the evidence, that it involves the Chamber in the process of disclosure and, in actual fact, circumvents Rule
66 (A), and that the order is prejudicial to the parties. On 6 march 1997, the Chamber declared the Prosecutor’s motion groundless, and expressed surprise, in the circumstances, at receiving a motion asking it to reconsider and rescind its order, instead of a motion for clarification. The Chamber specified in its decision that the order of 28 January 1997 could only be interpreted with respect to the witness statements already communicated to the Defence24. On 16 April 1997, the Prosecutor filed a notice of intent to comply with the Chamber’s order to submit witness statements.
- As stated above, 24 May 1997 marked the end of the first part of the trial of the Accused with the testimony of the last prosecution witness. However, on 16 June 1997, the Prosecutor submitted a request to bring an expedited oral motion before the Chamber seeking an amendment of the Indictment. During the hearing held to that end on 17 June 1997, the Prosecutor sought leave to add three further Counts, namely, Count 13: rape, a Crime Against Humanity, punishable under Article 3 (g) of the Statute, Count 14: inhumane acts, a Crime Against Humanity, punishable under Article 3 (i) of the Statute, and Count 15: outrages on personal dignity, notably rape, degrading and humiliating treatment and indecent assault, a Violation of Article 3 Common to the Geneva Conventions and of Article 4(2)(e) of Additional Protocol II, as incorporated in Article 4(e) of the Statute. The Chamber granted leave to the Prosecutor to amend the Indictment and postponed the date for resumption of the trial to 23 October 199725
- The second phase of the trial started on 23 October 1997 with the initial appearance of Akayesu for the new counts in a public session before the Chamber. The Accused pleaded not guilty to each of the new counts. The Prosecutor then proceeded to present six new witnesses, including an investigator with the Office of the Prosecutor. In all, the Prosecutor put 28 witnesses on the stand over 31 trial days. The Defence, for its part, presented its evidence over the course of 12 trial days between 4 November 1997 and 13 March 1998. It called 13 witnesses, including the Accused, to the stand. A total of 155 exhibits were submitted during the trial.
- During the second phase of the trial, the Defence requested and obtained the issuance of a subpoena for Major-General Romeo Dallaire, former force Commander of UNAMIR (United Nations Assistance Mission in Rwanda), whose immunity had been partially lifted by the UN Secretary-General, to appear as a witness for the Defence 26. The Chamber also granted leave to a representative of the United Nations Secretariat to appear as an Amicus Curiae to make a statement on the lifting of the immunity Major- General Romeo Dallaire enjoys by virtue of his position as former force Commander of UNAMIR27
- However, the Chamber did not grant the Defence motion for the issuance of a subpoena for two persons accused before the Tribunal to appear as Defence witnesses, on the grounds that their fundamental rights, as recognized by Article 20(4)(g) of the Statute, would perhaps be violated, and that there would be a risk that their appearance as witnesses in the case could cause prejudice to them28. A further Defence motion for the appearance of another accused as an expert witness was similarly dismissed29. The Chamber held therein that the impartiality of the potential expert witness, who is accused
by the Tribunal for crimes related to those with which Akayesu is charged, could not be assured and consequently that he did not fulfil the requisite conditions for appearing as an expert witness. Furthermore, the Chamber found that for this particular Accused to be compelled to appear as an expert witness in the case would be prejudicial to him and could possibly violate his fundamental rights, as recognized by the provisions of Article 20(4)(g) of the Statute and Article 14(3)(g) of the International Covenant of Civil and Political Rights of 1966.
- The Chamber dismissed a Defence motion for a site visit and the conduct of a forensic analysis of the remains of three alleged victims. The Chamber found that a new forensic analysis would not be appropriate nor, in any case, instrumental in the discovery of the truth, on the basis, inter alia, that a number of the purported mass graves, including, without a doubt, those supposedly in the vicinity of the Taba bureau communal’ had been subject of previous exhumations. Moreover, the Chamber felt that the arguments of the Defence Counsel in support of the motion were pertinent mainly to evaluating the credibility of certain witness statements and not to showing the necessity for an exhumation and forensic analysis, as requested30
- None of the parties presented witnesses for rebuttal purposes. The Accused testified in his own defence on 12 March 1998 and was cross-examined the next day by the Prosecutor. The latter presented her final arguments on 19 and 23 March, and the Defence presented its closing arguments on 26 March 1998. The trial on the merits was held over a period of 60 days of hearings, since 9 January 1997. The case was adjourned on 26 March 1998 for deliberation on the Judgment by the Chamber.
1.4.2. The Accused’s line of defence
- The Accused has pleaded not guilty to all counts of the Indictment, both at his initial appearance, held on 30 May 1996, and at the hearing of 23 October 1997 when he pleaded not guilty to each of the new counts which had been added to the Indictment when it was amended on 17 June 1997.
- In essence, the Defence case – insofar as the Chamber has been able to establish it – is that the Accused did not commit, order or participate in any of the killings, beatings or acts of sexual violence alleged in the Indictment. The Defence concedes that a genocide occurred in Rwanda and that massacres of Tutsi took place in Taba Commune, but it argues that the Accused was helpless to prevent them, being outnumbered and overpowered by one Silas Kubwimana and the Interahamwe. The Defence pointed out that, according to prosecution witness R, Akayesu had been so harassed by the Interahamwe that at one point he had had to flee Taba commune. Once the massacres had become widespread, the Accused was denuded of all authority and lacked the means to stop the killings.
- The Defence claims that the Chamber should not require the Accused to be a hero, to have laid down his life – as, for example, did the bourgmestre of Mugina – in a futile attempt to prevent killings and beatings. The Defence alluded to the fact that General
Dallaire, in charge of UNAMIR and 2,500 troops, was unable to prevent the genocide. How, then, was Akayesu, with 10 communal policemen at his disposal, to fare any better? Moreover, the Defence argue, no bourgmestre in the whole of Rwanda was able to prevent the massacres in his Commune, no matter how willing he was to do so.
- As for acts of sexual violence, the Defence case is somewhat different from that for killings and beatings, in that, whereas for the latter the Defence does not contest that there were killings and beatings, it does deny that there were acts of sexual violence committed, at least at the Bureau Communal. During his testimony the Accused emphatically denied that any rapes had taken place at the Bureau Communal, even when he was not there. The Chamber notes the Accused’s emphatic denial of facts which are not entirely within his knowledge.
- As general remarks, the Defence alluded to the fragility of human testimony as opposed to documentary evidence, and specifically referred to the evidence of Dr. Mathias Ruzindana, who had testified about problems in relying on eye-witness accounts of Rwandans31. The Defence also raised problems associated with alleged “syndicates of informers”, in which groups of Rwandans supposedly collaborated to concoct testimony against a person for revenge or other motives. This allegation is specifically dealt with below.
- As regards the Accused, the Defence pointed out that, though the Prosecutor admitted that the Accused had opposed massacres before 18 April 1994, the Prosecutor could not demonstrate that he was a “genocidal ideologue”, since one did not adopt the ideology of genocide overnight. Hence, the Defence argued, he could not be convicted of genocide.
- In general, the Defence argued that the Accused was a “scapegoat”, who found himself Accused before the Chamber only because he was a Hutu and a bourgmestre at the time of the massacres.
- Turning to the specific allegations contained in the Indictment, the Defence case is that there was no change in Akayesu’s attitude or behaviour before and after the Murambi meeting of 18 April 1998. Both before and after, he attempted to save Tutsi lives. Witness DBB testified that the Accused gave a Tutsi woman (witness DEEX) a laissez- passer, although he could not say whether the accused knew at the time that the woman was a Tutsi or not. Witness DEEX confirmed that she was given a laissez-passer by the accused. Witnesses DIX and DJX also heard that Akayesu had saved Tutsi lives.
- The Defence also challenged the premise that the Murambi meeting of 18 April 1994 was the key event which led to a complete change in the accused’s behaviour. Since, the Defence argued, it had not been shown that orders for the extermination of the Tutsi were given at the Murambi meeting by the interim government, it follows that the accused could not have returned to his Commune a changed man because of those non-existent orders. The Defence pointed out that only one prosecution witness and one Defence witness had attended the Murambi meeting, and that neither testified that an explicit message to kill the Tutsi had been given.
- Regarding the Gishyeshye meeting of 19 April 1994, the Defence argued that the accused was forced by the Interahamwe to read a document which allegedly mentioned the names of RPF accomplices, but that the accused tried to dissuade the population from being incited by the document, arguing that the mere appearance of names on a list did not mean that the persons named were accomplices of the RPF. The Defence also noted further “contradictions” in the accounts given by witnesses of the Gishyeshye meeting.
- As regards the killings of the eight Runda refugees and the five teachers, the Defence pointed out that the only witness to these killings was witness K, and that the accused had, at the time of his interview by the OTP in Zambia, cited witness K as a possible Defence witness. It begged credulity that the accused would contemplate calling as a Defence witness a person whom he knew had seen him order such killings.
- Concerning the killings of the Karangwa brothers, the Defence argued that there was such uncertainty as to how they were killed, and by what instruments, that a conviction could not stand in the absence of these material averments. It was because of these inconsistencies and uncertainties that the Defence had asked for an exhumation of the bodies, which had not been granted.
- The charges of beatings the Defence contested on the grounds that no medical examination had been conducted on the alleged victims to verify that the injuries which they claimed were sustained as a result of the accused’s actions could genuinely be so attributed.
- The charges of offences of sexual violence, the Defence argued, were added under the pressure of public opinion and were not credibly supported by the evidence. Witness J’s account, for example, of living in a tree for one week after her family were killed and her sister raped, while several months pregnant, was simply not credible but rather the product of fantasy the Defence claimed – “of interest to psychiatrists, but not justice”.32
- The Chamber has considered the Defence case extremely carefully and it will be treated here in the course of making the various factual and legal findings. There is one aspect which, however, should be dealt with here.
Putting the case to a witness
- In the Defence closing argument, Mr. Nicholas Tiangaye, made the suggestion that some, if not all, of the Prosecution witnesses who had testified against Jean-Paul Akayesu did so because they were colluding in a “syndicate of informers” which would denounce a particular individual for political reasons or in order to take over his property. In this connection, Mr. Tiangaye quoted Rene Degni-Segui, the Special Rapporteur of the Commission on Human Rights on Rwanda, who recounted a story of a demonstrably innocent Rwandan who had been denounced by 15 witnesses as a participant in the genocide. Mr. Tiangaye concluded thus:
“… there were cases of calumny which existed and which enabled people to denounce others regarding their participation in genocide in order to be able to take over their property.”
Mr. Tiangaye then went on to say:
“So, what do we do, Mr. President, ladies and gentlemen, when witnesses come to tell lies before the Chamber, what do we do?” 33
- To the extent that Defence counsel invites the Chamber to disbelieve the testimony of Prosecution witnesses because they may belong to a syndicate of informers or that they may be denouncing Akayesu in order to take over his property, and that they have therefore lied before the Chamber, it is to be noted this is a very serious allegation of false testimony or perjury, which is a criminal offence. Indeed, Defence counsel during the course of the trial made a motion for a certain prosecution witness to be investigated for false testimony; which motion was rejected in a Decision of this Trial Chamber in which it gave its reasons.34. That matter does not concern the Chamber here. What is of concern is whether the Chamber should give any weight, in its deliberations, to the possibility raised by Defence counsel that prosecution witnesses may have been lying for one of the above-mentioned motives.
- The Chamber holds that, as a blanket allegation to undermine the credibility of prosecution witnesses, this allegation can carry no weight, for two reasons. First, an attack on credibility which is not particularised with respect to individual witnesses is no attack at all on those witnesses’ credibility; it is merely a generalised and unsubstantiated suspicion. Doubt can only arise where the criteria for doubt are fulfilled. To state that all prosecution witnesses should be disbelieved because some Rwandan witnesses elsewhere have lied is similar to saying, “some money is counterfeit, therefore all money might be counterfeit”. If, and this is the second point, the Defence wish to challenge prosecution witnesses as members of an informer’s syndicate, or to allege that they are lying in order to be able to confiscate the accused’s property, then the Defence must lay the foundations for that challenge and put the challenge to the witness in question during cross- examination. This is both a matter of practicality and of principle. The practical matter is this: if the Defence does put to a witness the allegation that he is lying because he wishes to take the accused’s property, then this may elicit a convincing admission or rebuttal. The witness may break down and reveal, by his words or demeanour, that he has indeed been lying for that purpose; alternatively, he may offer a convincing rebuttal, for example, by pointing out that the accused has no property which the witness could wish to misappropriate. Either way, the matter might be resolved. To never put the crucial question to the witness is to deprive the Chamber of such a possible resolution. As a matter of principle, it is only fair to a witness, whom the Defence wishes to accuse of lying, to give him or her an opportunity to hear that allegation and to respond to it. This is a rule in Common law,_35 but it is also simply a matter of justice and fairness to victims and witnesses, principles recognised in all legal systems throughout the world.
- It is to be noted that during the trial the Defence did not put, nor even suggest, to a single prosecution witness that he or she was lying because he or she had been drawn into a syndicate of informers and instructed as to how to testify against the accused, or that the
witness was lying because he or she wished to take the accused’s property. In these circumstances, Defence counsel’s attempt in his closing arguments to tar all prosecution witnesses with the same broad brush of suspicion cannot be accepted by the Chamber. Thus the credibility of each witness must be assessed on its merits, taking into account the witness’s demeanour and the consistency and credibility or otherwise of the answers given by him or her under oath.
1.5. The Accused and his functions in Taba (paragraphs 3-4 of the Indictment)
- Paragraphs 3 and 4 of the Indictment appear under the heading, “the Accused”. Taking these paragraphs in turn, paragraph 3 reads as follows:
3. Jean Paul AKAYESU, born in 1953 in Murehe sector, Taba commune, served as bourgmestre of that commune from April 1993 until June 1994. Prior to his appointment as bourgmestre, he was a teacher and school inspector in Taba.
- The Chamber confirms paragraph 3, which is common cause between the Prosecution and the Defence. On the basis of the evidence presented at trial, the Chamber finds the following facts have been established with regard to the Accused generally.
- The Accused, Akayesu was born in 1953 in Murehe sector, Taba commune in Rwanda, where he also grew up. He was an active athlete in Taba and a member of the local football team. In 1978 he married a local woman from the same commune, whom he had then known for ten years. They are still married and have five children together.
- Before being appointed bourgmestre in 1993, the Accused served as a teacher and was later promoted to Primary School Inspector in Taba. In this capacity he was in charge of inspecting the education in the commune and acted as head of the teachers. He would occasionally fill in as a substitute teacher and was popular among pupils and students of different educational levels in the commune. Generally speaking, the Accused was a well known and popular figure in the local community.
- Akayesu became politically active within the commune in 1991 and on 1 July of the same year, following the transition into multipartyism, he was one of the signatories to the statute and a founding member of the new political party R called,Mouvement Democratique Republicain MDR Politically the goal of the MDR was not to be an extension of the traditional MDR Parmehutu, but rather an updated version thereof, diametrically opposed to the MRND. The MDR focused on pointing out the errors of the MRND such as delays in the provision of infrastructure, roads, schools, health facilities, lack of electricity, etc.. Eventually, Akayesu was elected local president of the MDR in Taba commune. A sizeable proportion of the population in Taba became members of the MDR, and as the party grew, a certain animosity between members of the MDR and the MRND began to appear, resulting in several acts of violence. The other parties within the Commune, the Parti Social Democratique, PSD and the Parti Liberal, PL cooperated with the MDR but, like the MDR, both parties experienced similar difficulties in cooperating with the MRND.
- On a personal level, Akayesu was considered a man of high morals, intelligence and integrity, possessing the qualities of a leader, who appeared to have the trust of the local community. These abilities were in all likelihood the main reasons why different groups in the commune, among others the leaders of the MDR, communal representatives and religious leaders, considered Akayesu a suitable candidate for bourgmestre in Taba for the 1993 elections. The Accused himself admits to having been reluctant to run for the post of bourgmestre, but was pressured into candidacy by the aforementioned groups, according to several witnesses, including Akayesu himself.
- In April 1993, Akayesu was elected bourgmestre after an election contested by four candidates. He then served as bourgmestre of Taba Commune from April 1993 until June 1994. According to the Accused, the duties of a bourgmestre were diverse. In short, he was in charge of the total life of the commune in terms of the economy, infrastructure, markets, medical care and the overall social life.Traditionally the role of the bourgmestre had always been to act as the representative of the President in the commune. Therefore the arrival of multipartyism did not particularly change the considerable amount of unofficial powers conferred upon the bourgmestre by the people in the commune. The bourgmestre was the leader of the commune and commonly treated with great respect and deference by the population.
- In Taba Commune, Akayesu played a major role in leading the people. He would give advice on various matters concerning security, economics or on the social well-being of the citizens. His advice would generally be followed and he was considered a father- figure or parent of the commune, to whom people would also come for informal advice. After a period of economic difficulties in Taba Commune due to corruption under the previous administration, a clear difference could be detected when Akayesu took office, as people would now settle their debts trusting the new administration. According to those of his colleagues appearing as witnesses before the Chamber, Akayesu was performing his task as bourgmestre well, prior to the period which is the subject of the Indictment.
- Paragraph 4 of the Indictment reads as follows:
4. As bourgmestre, Jean Paul AKAYESU was charged with the performance of executive functions and the maintenance of public order within his commune, subject to the authority of the prefect. He had exclusive control over the communal police, as well as any gendarmes put at the disposition of the commune. He was responsible for the execution of laws and regulations and the administration of justice, also subject only to the prefect’s authority.
- The Chamber finds it necessary to explore in some detail the powers of the bourgmestre and, in particular, to distinguish between the de facto and de jure powers of a bourgmestre. In so doing, the Chamber will also deal with the allegation in paragraph 2 of the Indictment which reads, “In Rwanda, the bourgmestre is the most powerful figure in the commune. His de facto authority in the area is significantly greater than that which is conferred upon him de jure”.
- A commune is governed by a bourgmestre in conjunction with the communal council which is composed of representatives of the different sectors in the commune. Below the sectors are the cellules and at the lowest level are the units of ten households. The latter two are really party structures, rather than administrative subdivisions.
- Before the advent of multi-partyism, appointment and removal of a bourgmestre was the prerogative of the State President, political loyalty being the criterion. The bourgmestre was the representative of the central government in the commune but embodied at the same time the commune as a semi-autonomous unit. In that capacity, he would, for example, arrange contracts or represent the commune in court. He also had the authority to allocate the resources of the commune, including the land. He had the sole responsibility and authority over the communal police and could call upon the national gendarmerie to restore order. In addition, he was a judicial officer. Moreover, as the trusted representative of the President, he had a series of unofficial powers and duties, to such an extent that he was the central person in the daily life of the ordinary people. Citizens needed his protection in order to function in society. The bourgmestre held considerable sway over the communal council. Although an elected body, the council was less a representative body of the interest of the population than it was simply a channel for passing orders down to the people.
- The introduction of multipartyism in 1991 had its effect on the local and national power structures from 1992 onwards. The MRND had to sacrifice the advantages which it enjoyed when it was the Siamese twin of the administration. A number of bourgmestres were removed on the advice of a pluralistic evaluation commission. The subsequent local elections were a clear victory for the opposition. Other bourgmestres were simply ousted by militia of an opposition party. Since then, the bourgmestres were no longer necessarily the representatives of the State President or of the central authority. Instead, they became primarily the representatives of their political party at the local level. But in any case, they would still remain the most important local representatives of power at the centre.
De jure powers
- The office of bourgmestre in Rwanda is similar to the office of maire in France or bourgmestre in Belgium36. It is an executive civilian position in the territorial administrative subdivision of commune. The primary function of the bourgmestre is to execute the laws adopted by the communal legislature, i.e., the elected communal council37. He “embodies the communal authority”38
The communal administration
- The relationship between a bourgmestre and the communal workforce is spelt out in the body of law which is called administrative law in Civil Law countries (as opposed to labour law which regulates employment in the private sector). The bourgmestre has the power to hire (appoint) and fire (remove) communal employees after advice from the communal council39. The President of the Republic decrees by law the legal status (rights and duties) of the communal personnel. Although the legal situation (administrative law) may be very different from the private sector (labour law), it is very much a relationship of employer and employee and, therefore, strictly limited to the scope of the employment.
The communal police
- The bourgmestre, without being a part of the communal police, has ultimate authority over it and is entirely responsible for its organisation, functioning and control.40
- The communal police is a civilian police whose members do not fall under the military penal code. Sanctions and procedures for sanctions are the subject of administrative law. A bourgmestre has only disciplinary jurisdiction (e.g. blame, suspension) over his communal police.
- Although the law states that only the bourgmestre has authority over the police41, he is, however, not its commander. Article 108 of the Loi sur l’organisation communale states, “Le commandement de la Police communale est assure par un brigadier place sous l’autorite du bourgmestre”. Therefore, the relationship between the bourgmestre and the communal police is comparable to the relationship between a Minister of Defence and the High Command of the armed forces.
- In case of public disturbances, the prefect can assume direct control over the communal police.42
- Paragraph 4 of the Indictment states that Akayesu as a bourgmestre had exclusive control over the communal police as well as any gendarmes put at the disposal of the commune.
- The Gendarmerie Nationale is a military force whose task it is to maintain public order when it is requested to do so43.
- It is the prefect, not the bourgmestre who can request the intervention of the Gendarmerie44. The Gendarmes put at the disposal of the commune at the request of the prefect operate under the bourgmestre’s authority45. It is far from clear, however, that in such circumstances a bourgmestre would have command authority over a military force.46
Powers of a bourgmestre in times of war or national emergency
- Apart from asking the prefect to request the Gendarmerie to intervene (supra), there are few legal provisions on the powers of a bourgmestre in times of war or national emergency.
- A decree of 20 October 1959 (by the Belgian authorities) on the state of emergency is apparently still on the books. It gives the bourgmestre the power, once the the state of emergency has been declared, to order the evacuation, removal and internment of persons.47
De facto powers
- A number of witnesses testified before the Chamber as to the de facto powers of the bourgmestre and there is indeed evidence to support the Prosecutor’s assertion that the bourgmestre enjoyed significant de facto authority.
- The expert witness, Alison DesForges, testified that the bourgmestre was the most important authority for the ordinary citizens of a Commune, who in some sense exercised the powers of a chief in pre-colonial times.
- Witness E said that the bourgmestre was considered as the “parent” of all the population whose every order would be respected. Witness S went further and stated that the people would normally follow the orders of the administrative authority, i.e. the bourgmestre, even if those orders were illegal or wrongful. Witness V said that the people could not disobey the orders of the bourgmestre.
- On the other hand, Witness DAAX, who was the prefect of the Gitarama prefecture in which the accused was bourgmestre – and hence the Accused’s hierarchical superior – testified that the bourgmestre had to work within the ambit of the law and could not exceed his de jure powers, and that if he did so, the prefect would intervene.
- Witness R, himself a former bourgmestre, said that the duties and responsibilities of the bourgmestre were those prescribed and decreed by law, which the bourgmestre had to respect. The witness conceded, however, that the popularity of a bourgmestre might affect the extent to which his orders and advice were obeyed within the Commune. Witness R also admitted that, at least during the transitional period, certain bourgmestres exceeded their de jure powers with impunity, for example imprisoning their political rivals or embezzling from communal resources.
- In light of the above, the Chamber finds it proved beyond a reasonable doubt that, as paragraph 4 of the Indictment states, “As bourgmestre, Jean Paul AKAYESU was charged with the performance of executive functions and the maintenance of public order within his commune, subject to the authority of the prefect”. The Chamber does find it proved that “[the bourgmestre] had exclusive control over the communal police, […][and authority over] any gendarmes put at the disposal of the commune”. The Chamber does find it proved that ” [the bourgmestre] was responsible for the execution of laws and regulations and the administration of justice, also subject only to the prefect’s authority”.
The Chamber does find it proved that, “In Rwanda, the bourgmestre is the most powerful figure in the commune. His de facto authority in the area is significantly greater than that which is conferred upon him de jure”.
2. HISTORICAL CONTEXT OF THE EVENTS IN RWANDA IN 1994
- It is the opinion of the Chamber that , in order to understand the events alleged in the Indictment, it is necessary to say, however briefly, something about the history of Rwanda, beginning from the pre-colonial period up to 1994.
- Rwanda is a small, very hilly country in the Great Lakes region of Central Africa. Before the events of 1994, it was the most densely populated country of the African continent (7.1 million inhabitants for 26,338 square kilometres). Ninety per cent of the population lives on agriculture. Its per capita income is among the lowest in the world, mainly because of a very high population pressure on land.
- Prior to and during colonial rule, first, under Germany, from about 1897, and then under Belgium which, after driving out Germany in 1917, was given a mandate by the League of Nations to administer it, Rwanda was a complex and an advanced monarchy. The monarch ruled the country through his official representatives drawn from the Tutsi nobility. Thus, there emerged a highly sophisticated political culture which enabled the king to communicate with the people.
- Rwanda then, admittedly, had some eighteen clans defined primarily along lines of kinship. The terms Hutu and Tutsi were already in use but referred to individuals rather than to groups. In those days, the distinction between the Hutu and Tutsi was based on lineage rather than ethnicity. Indeed, the demarcation line was blurred: one could move from one status to another, as one became rich or poor, or even through marriage.
- Both German and Belgian colonial authorities, if only at the outset as far as the latter are concerned, relied on an elite essentially composed of people who referred to themselves as Tutsi, a choice which, according to Dr. Alison Desforges, was born of racial or even racist considerations. In the minds of the colonizers, the Tutsi looked more like them, because of their height and colour, and were, therefore, more intelligent and better equipped to govern.
- In the early 1930s, Belgian authorities introduced a permanent distinction by dividing the population into three groups which they called ethnic groups, with the Hutu representing about 84% of the population, while the Tutsi (about 15%) and Twa (about 1%) accounted for the rest. In line with this division, it became mandatory for every Rwandan to carry an identity card mentioning his or her ethnicity. The Chamber notes that the reference to ethnic background on identity cards was maintained, even after Rwanda’s independence and was, at last, abolished only after the tragic events the country experienced in 1994.
- According to the testimony of Dr. Alison Desforges, while the Catholic Church which arrived in the wake of European colonizers gave the monarch, his notables and the Tutsi population privileged access to education and training, it tried to convert them. However, in the face of some resistance, the missionaries for a while undertook to convert the Hutu instead. Yet, when the Belgians included being Christian among the criteria for determining the suitability of a candidate for employment in the civil service, the Tutsi, hitherto opposed to their conversion, became more willing to be converted to Christianity. Thus, they carried along most Hutu. Quoting a witness from whom she asked for an explanation for the massive conversion of Hutu to Christianity, Dr. Desforges testified that the reasons for the conversion were to be found in the cult of obedience to the chiefs which is highly developed in the Rwandan society. According to that witness, “you could not remain standing while your superiors were on their knees praying”. For these reasons, therefore, it can be understood why at the time, that is, in the late 1920s and early 1930s, the church, like the colonizers, supported the Tutsi monopoly of power.
- From the late 1940s, at the dawn of the decolonization process, the Tutsi became aware of the benefits they could derive from the privileged status conferred on them by the Belgian colonizers and the Catholic church. They then attempted to free themselves somehow from Belgian political stewardship and to emancipate the Rwandan society from the grip of the Catholic church. The desire for independence shown by the Tutsi elite certainly caused both the Belgians and the church to shift their alliances from the Tutsi to the Hutu, a shift rendered more radical by the change in the church’s philosophy after the second world war, with the arrival of young priests from a more democratic and egalitarian trend of Christianity, who sought to develop political awareness among the Tutsi- dominated Hutu majority.
- Under pressure from the United Nations Trusteeship Council and following the shift in alliances just mentioned, Belgium changed its policy by granting more opportunities to the Hutu to acquire education and to hold senior positions in government services. This turn-about particularly angered the Tutsi, especially because, on the renewal of its mandate over Rwanda by the United Nations, Belgium was requested to establish representative organs in the Trust territory, so as to groom the natives for administration and, ultimately, grant independence to the country. The Tutsi therefore began the move to end Belgian domination, while the Hutu elite, for tactical reasons, favoured the continuation of the domination, hoping to make the Hutu masses aware of their political weight in Rwanda, in a bid to arrive at independence, which was unavoidable, at least on the basis of equality with the Tutsi. Belgium particularly appreciated this attitude as it gave it reason to believe that with the Hutu, independence would not spell a severance of ties.
- In 1956, in accordance with the directives of the United Nations Trusteeship Council, Belgium organized elections on the basis of universal suffrage in order to choose new members of local organs, such as the grassroots representative Councils. With the electorate voting on strictly ethnic lines, the Hutu of course obtained an overwhelming majority and thereby became aware of their political strength. The Tutsi, who were hoping to achieve independence while still holding the reins of power, came to the realization that universal suffrage meant the end of their supremacy; hence, confrontation with the Hutu became inevitable.
- Around 1957, the first political parties were formed and, as could be expected, they were ethnically rather than ideologically based. There were four political parties, namely the Mouvement democratique repubicain, Parmehutu ( “MDR Parmehutu”), which clearly defined itself as the Hutu grassroots movement; the Union Nationale Rwandaise (“UNAR”), the party of Tutsi monarchists; and, between the two extremes, the two others, Aprosoma, predominantly Hutu, and the Rassemblement democratique rwandais (“RADER”), which brought together moderates from the Tutsi and Hutu elite.
- The dreaded political unrest broke out in November 1959, with increased bloody incidents, the first victims of which were the Hutu. In reprisal, the Hutu burnt down and looted Tutsi houses. Thus became embedded a cycle of violence which ended with the establishment on 18 October 1960, by the Belgian authorities, of an autonomous provisional Government headed by Gregoire Kayibanda, President of MDR Parmehutu, following the June 1960 communal elections that gave an overwhelming majority to Hutu parties. After the Tutsi monarch fled abroad, the Hutu opposition declared the Republic of Gitarama, on 28 January 1961, and set up a legislative assembly. On 6 February 1961, Belgium granted self-government to Rwanda. Independence was declared on 1 July 1962, with Gregoire Kayibanda at the helm of the new State, and, thus, President of the First Republic.
- The victory of Hutu parties increased the departure of Tutsi to neighbouring countries from where Tutsi exiles made incursions into Rwanda. The word Inyenzi, meaning cockroach, came to be used to refer to these assailants. Each attack was followed by reprisals against the Tutsi within the country and in 1963, such attacks caused the death of at least ten thousand of them, further increasing the number of those who went into exile. Concurrently, at the domestic level, the Hutu regime seized this opportunity to allocate to the Hutu the lands abandoned by Tutsi in exile and to redistribute posts within the Government and the civil service, in favour of the Hutu, on the basis of a quota system linked to the proportion of each ethnic group in the population.
- The dissensions that soon surfaced among the ruling Hutu led the regime to strengthen the primacy of the MDR Parmehutu party over all sectors of public life and institutions, thereby making it the de facto sole party. This consolidated the authority of President Gregoire Kayibanda as well as the influence of his entourage, most of who came from the same region as he, that is the Gitarama region in the centre of the country. The drift towards ethnic and regional power became obvious. From then onwards, a rift took root within the Hutu political Establishment, between its key figures from the Centre and those from the North and South who showed great frustration. Increasingly isolated, President Kayibanda could not control the ethnic and regional dissensions. The disagreements within the regime resulted into anarchy, which enabled General Juvenal Habyarimana, Army Chief of Staff, to seize power through a coup on 5 July 1973. General Habyarimana dissolved the First Republic and established the Second Republic.
Scores of political leaders were imprisoned and, later, executed or starved to death, as was the case with the former President, Gregoire Kayibanda.
- Following a trend then common in Africa, President Habyarimana, in 1975, instituted the one-party system with the creation of the Mouvement revolutionnaire national pour le developpement (MRND), of which every Rwandan was a member ipso facto, including the newborn. Since the party encompassed everyone, there was no room for political pluralism. A law passed in 1978 made Rwanda officially a one-party State with the consequence that the MRND became a “State-party”, as it formed one and the same entity with the Government. According to Dr. Desforges, the local administrative authority was, at the same time, the representative of the party within his administrative unit. There was therefore a single centralized organization , both for the State and the party, which stretched from the Head of State down to basic units known as cellules, with even smaller local organs , each comprising ten households, below the cellules. The cellules and local organs were, indeed, more of party organs, than administrative units. They were the agencies for the implementation of Umuganda, the mobilization programme which required people to allocate half a day’s labour per week to some communal project, such as the construction of schools or road repairs.
- According to testimonies given before the Chamber, particularly that of Dr. Desforges, Habyarimana’s accession to power aroused a great deal of enthusiasm and hope, both inside and outside the country, and also among members of the Tutsi ethnic group. Indeed, the regime at the outset did guard against pursuing a clearly anti-Tutsi policy. Many Tutsi were then prepared to reach a compromise. However, as the years went by, power took its toll and Habyarimana’s policies became clearly anti-Tutsi. Like his predecessor, Gregoire Kayibanda, Habyarimana strengthened the policy of discrimination against the Tutsi by applying the same quota system in universities and government services. A policy of systematic discrimination was pursued even among the Hutu themselves, in favour of Hutu from Habyarimana’s native region, namely Gisenyi and Ruhengeri in the north-west, to the detriment of Hutu from other regions. This last aspect of Habyarimana’s policy, considerably weakened his power: henceforth, he faced opposition not only from the Tutsi but also from the Hutu, who felt discriminated against and most of whom came from the central and southern regions. In the face of this situation, Habyarimana chose to relentlessly pursue the same policy like his predecessor who favoured his region, Gitarama. Like Kayibanda, he became increasingly isolated and the base of his regime narrowed down to a small intimate circle dubbed “Akazu”, meaning the “President’s household”. This further radicalized the opposition whose ranks swelled more and more. On 1 October 1990, an attack was launched from Uganda by the Rwandan Patriotic Front (RPF) whose forebear, the Alliance rwandaise pour l’unite nationale (“ARUN”), was formed in 1979 by Tutsi exiles based in Uganda. The attack provided a pretext for the arrest of thousands of opposition members in Rwanda considered as supporters of the RPF.
- Faced with the worsening internal situation that attracted a growing number of Rwandans to the multi-party system, and pressured by foreign donors demanding not only economic but also political reforms in the form of much greater participation of the
people in the country’s management, President Habyarimana was compelled to accept the multi-party system in principle. On 28 December 1990, the preliminary draft of a political charter to establish a multi-party system was published. On 10 June 1991, the new constitution introducing the multi-party system was adopted, followed on 18 June by the promulgation of the law on political parties and the formation of the first parties, namely :
– the Mouvement democratique republicain (MDR), considered to be the biggest party in terms of membership and claiming historical links with the MD^-Parmehutu of Gregoire Kayibanda; its power-base was mainly the centre of the country, around Gitarama;
– the Parti social democrate (PSD), whose membership included a good number of intellectuals, recruited its members mostly in the South, in Butare;
– the Parti liberal( PL); and
– the Parti democrate chretien (PDC).
- At the same time, Tutsi exiles, particularly those in Uganda organized themselves not only to launch incursions into Rwandan territory but also to form a political organization, the Rwandese Patriotic Front (RPF), with a military wing called the Rwandan Patriotic Army (RPA). The first objective of the exiles was to return to Rwanda. But they met with objection from the Rwandan authorities and President Habyarimana, who is alleged to have said that land in Rwanda would not be enough to feed all those who wanted to return. On these grounds, the exiles broadened their objectives to include the overthrow of Habyarimana.
- The above-mentioned RPF attack on 1 October 1991 sent shock waves throughout Rwanda. Members of the opposition parties formed in 1991, saw this as an opportunity to have an informal alliance with the RPF so as to further destabilize an already weakened regime. The regime finally accepted to share power between the MRND and the other political parties and, around March 1992, the Government and the opposition signed an agreement to set up a transitional coalition government headed by a Prime Minister from the MDR. Out of the nineteen ministries, the MRND obtained only nine. Pressured by the opposition, the MRND accepted that negotiations with the RPF be started. The negotiations led to the first cease-fire in July 1992 and the first part of the Arusha Accords48. The July 1992 cease-fire tacitly recognized RPF control over a portion of Rwandan territory in the north-east. The protocols signed following these accords included the October 1992 protocol establishing a transitional government and a transitional assembly and the participation of the RPF in both institutions. The political scene was now widened to comprise three blocs: the Habyarimana bloc, the internal opposition and the RPF. Experience showed that President Habyarimana accepted these accords only because he was compelled to do so, but had no intention of complying with what he himself referred to as “un chiffon de papier”, meaning a scrap of paper.
- Yet, the RPF did not drop its objective of seizing power. It therefore increased its military attacks. The massive attack of 8 February 1993 seriously undermined the relations between the RPF and the Hutu opposition parties, making it easy for Habyarimana supporters to convene an assembly of all Hutu. Thus, the bond built on Hutu kinship once again began to prevail over political differences. The three blocs mentioned earlier gave way to two ethnic- based opposing camps: on the one hand, the RPF, the supposed canopy of all Tutsi and, on the other hand, the other parties said to be composed essentially of the Hutu.
- In March 1992, a group of Hutu hard-liners founded a new radical political party, the Coalition pour la defense de la republique (CDR), or Coalition for the Defence of the Republic, which was more extremist than Habyarimana himself and opposed him on several occasions.
- To make the economic, social and political conflict look more like an ethnic conflict, the President’s entourage, in particular, the army, persistently launched propaganda campaigns which often consisted of fabricating events. Dr. Alison Desforges in her testimony referred to this as “mirror politics”, whereby a person accuses others of what he or she does or wants to do. In this regard, in the morning hours of 5 October 1990, the Rwandan army simulated an attack on Kigali and, immediately thereafter, the Government claimed that the city had just been infiltrated by the RPF, with the help of local Tutsi accomplices. Some eight thousand Tutsi and members of the Hutu opposition were arrested the next morning. Several dozens of them died in jail. Another example of mirror politics is the March 1992 killings in Bugesera which began a week after a propaganda agent working for the Habyarimana government distributed a tract claiming that the Tutsi of that region were preparing to kill many Hutu. The MRND militia, known as Interahamwe, participated in the Bugesera killings. It was the first time that this party’s militia participated in killings of this scale. They were later joined by the militia of other parties or wings of Hutu extremist parties, including, in particular, the CDR militia known as the Impuzamugambi.
- Mirror politics was also used in Kibulira, in the north-west, and in the Bagoguye region. In both cases, the population was goaded on to defend itself against fabricated attacks supposed to have been perpetrated by RPF infiltrators and to attack and kill their Tutsi neighbours. In passing, mention should be made of the role that Radio Rwanda and, later, the RTLM, founded in 1993 by people close to President Habyarimana, played in this anti-Tutsi propaganda. Besides the radio stations, there were other propaganda agents, the most notorious of whom was a certain Leon Mugesera, vice-president of the MRND in Gisenyi Prefecture and lecturer at the National University of Rwanda, who published two pamphlets accusing the Tutsi of planning a genocide of the Hutu49. During an MRND meeting in November 1992, the same Leon Mugesera called for the extermination of the Tutsi and the assassination of Hutu opposed to the President. He made reference to the idea that the Tutsi allegedly came from Ethiopia and, hence, that after they had been killed, they should be thrown into the Rwandan tributaries of the Nile, so that they should return to where they are supposed to have come from50. He exhorted
his listeners to avoid the error of earlier massacres during which some Tutsi, particularly children, were spared.
- On the political front, a split was noticed in almost all the opposition parties on the issue of the proposed signing of a final peace agreement. This schismatic trend began with the MDR party, the main rival of the MRND, whose radical faction, later known as MDR Power, affiliated with the CDR and the MRND.
- On 4 August 1993, the Government of Rwanda and the RPF signed the final Arusha Accords and ended the war which started on 1 October 1990. The Accords provided, inter alia, for the establishment of a transitional government to include the RPF, the partial demobilization and integration of the two opposing armies (13,000 RPF and 35,000 FAR troops), the creation of a demilitarized zone between the RPF-controlled area in the north and the rest of the country, the stationing of an RPF battalion in the city of Kigali, and the deployment, in four phases, of a UN peace-keeping force, the United Nations Assistance Mission for Rwanda (UNAMIR), with a two-year mandate.
- On 23 October 1993, the President of Burundi, Melchior Ndadaye, a Hutu, was assassinated in the course of an attempted coup by Burundi Tutsi soldiers. Dr. Alison Desforges testified that in Rwanda, Hutu extremists exploited this assassination to prove that it was impossible to agree with the Tutsi, since they would always turn against their Hutu partners to kill them. A meeting held at the Kigali stadium at the end of October 1993 was entirely devoted to the discussion of the assassination of President Ndadaye, and in a very virulent speech, Froduald Karamira, senior national vice-President of the Interahamwe, is alleged to have called for unreserved solidarity among all the Hutu, solidarity transcending the divide of political parties. He reportedly concluded his speech with a call for “Hutu-Power”.
- The assassination of President Ndadaye gave President Habyarimana and the CDR the opportunity to denounce, in a joint MRND – CDR statement issued at the end of 1993, the Arusha Accords, calling them treason. However, a few days later, pursuing his policy of prevarication towards the international community, Habyarimana signed another part of the peace accords. Indeed, the Arusha Accords no longer existed, except on paper. The President certainly did take the oath of office, but the installation of a transitional government was delayed, mainly by divisions within the political parties and the ensuing infightings.
- The leaders of the CDR and the PSD were assassinated in February 1994. In Kigali, in the days that followed, the Interahamwe and the Impuzamugambi massacred Tutsi as well as Habyarimana’s Hutu opponents. The Belgian Foreign Minister informed his representative at the UN of the worsening situation which “could result in an irreversible explosion of violence”51 . At the same time, as he stated in his testimony before the Tribunal, UNAMIR commander, Major-General Dallaire, alerted the United Nations in New York of the discovery of arms caches and requested a change in UNAMIR’s engagement rules to enable him to seize the arms; but the request was turned down.
Meanwhile, anti-Tutsi propaganda on the media intensified. The RTLM constantly stepped up its attacks which became increasingly targeted and violent.
- At the end of March 1994, the transitional government was still not set up and Rwanda was on the brink of bankruptcy. International donors and neighbouring countries put pressure on the Habyarimana government to implement the Arusha Accords.
On 6 April 1994, President Habyarimana and other heads of State of the region met in Dar-es-Salaam (Tanzania) to discuss the implementation of the peace accords. The aircraft carrying President Habyarimana and the Burundian President, Ntaryamirai, who were returning from the meeting, crashed around 8:30 pm near Kigali airport. All aboard were killed.
- The Rwandan army and the militia immediately erected roadblocks around the city of Kigali. Before dawn on April 7 1994, in various parts of the country, the Presidential Guard and the militia started killing the Tutsi as well as Hutu known to be in favour of the Arusha Accords and power-sharing between the Tutsi and the Hutu. Among the first victims, were a number of ministers of the coalition government, including its Prime Minister, Agathe Uwilingiyimana (MDR), the president of the Supreme Court and virtually the entire leadership of the parti social democrate (PSD). The constitutional vacuum thus created cleared the way for the establishment of the self-proclaimed Hutu- power interim government, mainly under the aegis of retired Colonel Theoneste Bagosora.
- Soldiers of the Rwandan Armed Forces (FAR) executed ten Belgian blue helmets, thereby provoking the withdrawal of the Belgian contingent which formed the core of UNAMIR. On April 21 1994, the UN Security Council decided to reduce the peacekeeping force to 450 troops.
- In the afternoon of 7 April 1994, RPF troops left their quarters in Kigali and their zone in the north, to resume open war against the Rwandan Armed Forces. Its troops from the north moved south, crossing the demilitarized zone, and entered the city of Kigali on April 12 1994, thus forcing the interim government to flee to Gitarama.
- On April 12 1994, after public authorities announced over Radio Rwanda that “we need to unite against the enemy , the only enemy and this is the enemy that we have always known…it’s the enemy who wants to reinstate the former feudal monarchy”, it became clear that the Tutsi were the primary targets. During the week of 14 to 21 April
1994, the killing campaign reached its peak. The President of the interim government, the Prime Minister and some key ministers travelled to Butare and Gikongoro, and that marked the beginning of killings in these regions which had hitherto been peaceful. Thousands of people, sometimes encouraged or directed by local administrative officials, on the promise of safety, gathered unsuspectingly in churches, schools, hospitals and local government buildings. In reality, this was a trap intended to lead to the rapid extermination of a large number of people.
- The killing of Tutsi which henceforth spared neither women nor children, continued up to 18 July 1994, when the RPF triumphantly entered Kigali. The estimated total number of victims in the conflict varies from 500,000 to 1,000,000 or more.
3. GENOCIDE IN RWANDA IN 1994?
- As regards the massacres which took place in Rwanda between April and July 1994, as detailed above in the chapter on the historical background to the Rwandan tragedy, the question before this Chamber is whether they constitute genocide. Indeed, it was felt in some quarters52 that the tragic events which took place in Rwanda were only part of the war between the Rwandan Armed Forces (the RAF) and the Rwandan Patriotic Front (RPF). The answer to this question would allow a better understanding of the context within which the crimes with which the accused is charged are alleged to have been committed.
- According to paragraph 2 of Article 2 of the Statute of the Tribunal, which reflects verbatim the definition of genocide as contained in the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter, “the Convention on Genocide”)53, genocide means any of the following acts referred to in said paragraph, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such, namely, inter alia: killing members of the group; causing serious bodily or mental harm to members of the group.
- Even though the number of victims is yet to be known with accuracy, no one can reasonably refute the fact that widespread killings were perpetrated throughout Rwanda in 1994.
- Indeed, this is confirmed by the many testimonies heard by this Chamber. The testimony of Dr. Zachariah who appeared before this Chamber on 16 and 17 January 1997 is enlightening in this regard. Dr. Zachariah was a physician who at the time of the events was working for a non-governmental organisation, “Medecins sans frontieres.” In 1994 he was based in Butare and travelled over a good part of Rwanda upto its border with Burundi. He described in great detail the heaps of bodies which he saw everywhere, on the roads, on the footpaths and in rivers and, particularly, the manner in which all these people had been killed. At the church in Butare, at the Gahidi mission, he saw many wounded persons in the hospital who, according to him, were all Tutsi and who, apparently, had sustained wounds inflicted with machetes to the face, the neck, and also to the ankle, at the Achilles’ tendon, to prevent them from fleeing. The testimony given by Major-General Dallaire, former Commander of the United Nations Assistance Mission for Rwanda (UNAMIR) at the time of the events alleged in the Indictment, who was called by the defence, is of a similar vein. Major-General Dallaire spoke of troops of the Rwandan Armed Forces and of the Presidential Guard going into houses in Kigali that had been previously identified in order to kill. He also talked about the terrible murders in Kabgayi, very near Gitarama, where the interim Government was based and of the reports he received from observers throughout the country which mentioned killings in Gisenyi, Cyangugu and Kibongo.
- The British cameraman, Simon Cox, took photographs of bodies in many churches in Remera, Biambi, Shangi, between Cyangugu and Kibuye, and in Bisesero. He mentioned identity cards strewn on the ground, all of which were marked “Tutsi”. Consequently, in view of these widespread killings the victims of which were mainly Tutsi, the Chamber is of the opinion that the first requirement for there to be genocide has been met, the killing and causing serious bodily harm to members of a group.
- The second requirement is that these killings and serious bodily harm, as is the case in this instance, be committed with the intent to destroy, in whole or in part, a particular group targeted as such.
- In the opinion of the Chamber, there is no doubt that considering their undeniable scale, their systematic nature and their atrociousness, the massacres were aimed at exterminating the group that was targeted. Many facts show that the intention of the perpetrators of these killings was to cause the complete disappearance of the Tutsi. In this connection, Alison Desforges, an expert witness, in her testimony before this Chamber on 25 February 1997, stated as follows: “on the basis of the statements made by certain political leaders, on the basis of songs and slogans popular among the Interahamwe, I believe that these people had the intention of completely wiping out the Tutsi from Rwanda so that-as they said on certain occasions – their children , later on , would not know what a Tutsi looked like, unless they referred to history books”. Moreover, this testimony given by Dr. Desforges was confirmed by two prosecution witnesses, witness KK and witness OO, who testified separately before the Tribunal that one Silas Kubwimana had said during a public meeting chaired by the accused himself that all the Tutsi had to be killed so that someday Hutu children would not know what a Tutsi looked like.
- Furthermore, as mentioned above, Dr. Zachariah also testified that the Achilles’ tendons of many wounded persons were cut to prevent them from fleeing. In the opinion of the Chamber, this demonstrates the resolve of the perpetrators of these massacres not to spare any Tutsi. Their plan called for doing whatever was possible to prevent any Tutsi from escaping and, thus, to destroy the whole group. Witness OO further told the Chamber that during the same meeting, a certain Ruvugama, who was then a Member of Parliament, had stated that he would rest only when no single Tutsi is left in Rwanda”.
- Dr. Alison Desforges testified that many Tutsi bodies were often systematically thrown into the Nyabarongo river, a tributary of the Nile. Indeed, this has been corroborated by several images shown to the Chamber throughout the trial. She explained that the underlying intention of this act was to “send the Tutsi back to their place of origin”, to “make them return to Abyssinia”, in keeping with the allegation that the Tutsi are foreigners in Rwanda, where they are supposed to have settled following their arrival from the Nilotic regions. 54
- Other testimonies heard, especially that of Major-General Dallaire, also show that there was an intention to wipe out the Tutsi group in its entirety, since even newborn babies were not spared. Even pregnant women, including those of Hutu origin, were
killed on the grounds that the foetuses in their wombs were fathered by Tutsi men, for in a patrilineal society like Rwanda, the child belongs to the father’s group of origin. In this regard, it is worthwhile noting the testimony of witness PP, heard by the Chamber on 11 April 1997, who mentioned a statement made publicly by the accused to the effect that if a Hutu woman were impregnated by a Tutsi man, the Hutu woman had to be found in order “for the pregnancy to be aborted”. According to prosecution witnesses KK, PP and OO, the accused expressed this opinion on other occasions in the form of a Rwandese proverb according to which if a snake wraps itself round a calabash, there is nothing that can be done, except to break the calabash’ (” Iyo inzoka yiziritse ku gisabo, nta kundi bigenda barakimena)55. In the context of the period in question, this proverb meant that if a Hutu woman married to a Tutsi man was impregnated by him, the foetus had to be destroyed so that the Tutsi child which it would become should not survive. It should be noted in this regard that in Rwandese culture, breaking the “gisabo”, which is a big calabash used as a churn was considered taboo. Yet, if a snake wraps itself round a gisabo, obviously, one has no choice but to ignore this taboo in order to kill the snake.
- In light of the foregoing, it is now appropriate for the Chamber to consider the issue of specific intent that is required for genocide (mens rea or dolus specialis). In other words, it should be established that the above-mentioned acts were targeted at a particular group as such. In this respect also, many consistent and reliable testimonies , especially those of Major-General Dallaire, Dr. Zachariah, victim V, prosecution witness PP, defence witness DAAX, and particularly that of the accused himself unanimously agree on the fact that it was the Tutsi as members of an ethnic group which they formed in the context of the period56 in question, who were targeted during the massacres57.
- Two facts, in particular, which suggest that it was indeed the Tutsi who were targeted should be highlighted: Firstly, at the roadblocks which were erected in Kigali immediately after the crash of the President’s plane on 6 April 1994 and, later on, in most of the country’s localities, members of the Tutsi population were sorted out. Indeed, at these roadblocks which were manned, depending on the situation, either by soldiers, troops of the Presidential Guard and/or militiamen, the systematic checking of identity cards indicating the ethnic group of their holders, allowed the separation of Hutu from Tutsi, with the latter being immediately apprehended and killed, sometimes on the spot. Secondly, the propaganda campaign conducted before and during the tragedy by the audiovisual media, for example, “Radio Television des Milles Collines”(RTLM), or the print media, like the Kangura58 newspaper. These various news media overtly called for the killing of Tutsi, who were considered as the accomplices of the RPF and accused of plotting to take over the power lost during the revolution of 1959. Some articles and cartoons carried in the Kangura newspaper, entered in evidence, are unambiguous in this respect. In fact, even exhibit 25A could be added to this lot. Exhibit 25A is a letter from the “GZ” staff headquarters dated 21 September 1992 and signed by Deofratas Nsabimana, Colonel, BEM, to which is annexed a document prepared by a committee of ten officers and which deals with the definition of the term enemy. According to that document, which was intended for the widest possible dissemination, the enemy fell into two categories, namely:” the primary enemy” and the “enemy supporter”. The primary enemy was defined as “the extremist Tutsi within the country or abroad who are nostalgic
for power and who have NEVER acknowledged and STILL DO NOT acknowledge the realities of the Social Revolution of 1959, and who wish to regain power in RWANDA by all possible means, including the use of weapons”. On the other hand, the primary enemy supporter was “anyone who lent support in whatever form to the primary enemy”. This document also stated that the primary enemy and their supporters came mostly from social groups comprising, in particular, “Tutsi refugees”, “Tutsi within the country”, “Hutu dissatisfied with the current regime”, “Foreigners married to Tutsi women” and the “Nilotic-hamitic tribes in the region”.
- In the opinion of the Chamber, all this proves that it was indeed a particular group, the Tutsi ethnic group, which was targeted. Clearly, the victims were not chosen as individuals but, indeed, because they belonged to said group; and hence the victims were members of this group selected as such. According to Alison Desforges’s testimony, the Tutsi were killed solely on account of having been born Tutsi.
- Clearly therefore, the massacres which occurred in Rwanda in 1994 had a specific objective, namely the extermination of the Tutsi, who were targeted especially because of their Tutsi origin and not because they were RPF fighters. In any case, the Tutsi children and pregnant women would, naturally, not have been among the fighters.
- Consequently, the Chamber concludes from all the foregoing that genocide was, indeed, committed in Rwanda in 1994 against the Tutsi as a group. Furthermore, in the opinion of the Chamber, this genocide appears to have been meticulously organized. In fact, Dr. Alison Desforges testifying before the Chamber on 24 May 1997, talked of “centrally organized and supervised massacres”. Indeed, some evidence supports this view that the genocide had been planned. First, the existence of lists of Tutsi to be eliminated is corroborated by many testimonies. In this respect, Dr. Zachariah mentioned the case of patients and nurses killed in a hospital because a soldier had a list including their names. There are also the arms caches in Kigali which Major-General Dallaire mentioned and regarding whose destruction he had sought the UN’s authorization in vain. Lastly, there is the training of militiamen by the Rwandan Armed Forces and of course, the psychological preparation of the population to attack the Tutsi, which preparation was masterminded by some news media, with the RTLM at the forefront.
- Finally, in response to the question posed earlier in this chapter as to whether the tragic events that took place in Rwanda in 1994 occurred solely within the context of the conflict between the RAF and the RPF, the Chamber replies in the negative, since it holds that the genocide did indeed take place against the Tutsi group, alongside the conflict. The execution of this genocide was probably facilitated by the conflict, in the sense that the fighting against the RPF forces was used as a pretext for the propaganda inciting genocide against the Tutsi, by branding RPF fighters and Tutsi civilians together, through dissemination via the media of the idea that every Tutsi was allegedly an accomplice of the Inkotanyi. Very clearly, once the genocide got under way, the crime became one of the stakes in the conflict between the RPF and the RAF. In 1994, General Kagame, speaking on behalf of the RPF, declared that a cease fire could possibly not be implemented until the massacre of civilians by the government forces59 had stopped.
- In conclusion, it should be stressed that although the genocide against the Tutsi occurred concomitantly with the above-mentioned conflict, it was, evidently, fundamentally different from the conflict. The accused himself stated during his initial appearance before the Chamber, when recounting a conversation he had with one RAF officer and Silas Kubwimana, a leader of the Interahamwe, that the acts perpetrated by the Interahamwe against Tutsi civilians were not considered by the RAF officer to be of a nature to help the government armed forces in the conflict with the RPF60. Note is also taken of the testimony of witness KK which is in the same vein. This witness told the Chamber that while she and the children were taken away, an RAF soldier allegedly told persons who were persecuting her that “instead of going to confront the Inkotanyi at the war front, you are killing children, although children know nothing; they have never done politics”. The Chamber’s opinion is that the genocide was organized and planned not only by members of the RAF, but also by the political forces who were behind the “Hutu- power”, that it was executed essentially by civilians including the armed militia and even ordinary citizens, and above all, that the majority of the Tutsi victims were non- combatants, including thousands of women and children, even foetuses. The fact that the genocide took place while the RAF was in conflict with the RPF, can in no way be considered as an extenuating circumstance for it.
- This being the case, the Chamber holds that the fact that genocide was indeed committed in Rwanda in 1994 and more particularly in Taba, cannot influence it in its decisions in the present case. Its sole task is to assess the individual criminal responsibility of the accused for the crimes with which he is charged, the burden of proof being on the Prosecutor61. In spite of the irrefutable atrocities of the crimes committed in Rwanda, the judges must examine the facts adduced in a most dispassionate manner, bearing in mind that the accused is presumed innocent Moreover, the seriousness of the charges brought against the accused makes it all the more necessary to examine scrupulously and meticulously all the inculpatory and exonerating evidence, in the context of a fair trial and in full resect of all the rights of the Accused.
4. EVIDENTIARY MATTERS
- The Chamber will address certain general evidentiary matters of concern which arose in relation to the evidence produced by the parties during this trial. These matters include the assessment of evidence, the impact of trauma on witnesses, questions of interpretation from Kinyarwanda into French and English, and cultural factors which might affect an understanding of the evidence presented.
Assessment of Evidence
- In its assessment of the evidence, as a general principle, the Chamber has attached probative value to each testimony and each exhibit individually according to its credibility and relevance to the allegations at issue. As commonly provided for in most national criminal proceedings, the Chamber has considered the charges against the accused on the basis of the testimony and exhibits offered by the parties to support or challenge the allegations made in the Indictment. In seeking to establish the truth in its
judgment, the Chamber has relied as well on indisputable facts and on other elements relevant to the case, such as constitutive documents pertaining to the establishment and jurisdiction of the Tribunal, even if these were not specifically tendered in evidence by the parties during trial. The Chamber notes that it is not restricted under the Statute of the Tribunal to apply any particular legal system and is not bound by any national rules of evidence. In accordance with Rule 89 of its Rules of Procedure and Evidence, the Chamber has applied the rules of evidence which in its view best favour a fair determination of the matter before it and are consonant with the spirit and general principles of law.
Unus Testis, Nullus Testis
- The Chamber notes that during trial, only one testimony was presented in support of certain facts alleged in the Indictment; hence the question arises as to the principle found in Civil Law systems: unus testis, nullus testis (one witness is no witness) whereby corroboration of evidence is required if it is to be admitted.
- Without wishing to delve into a debate on the applicability of the rule of corroboration of evidence in this judgment, the Chamber recalls that the proceedings before it are conducted in accordance solely with the Statute of the Tribunal and its Rules and, as provided for by Rule 89(A), it shall not be bound by national rules of evidence. Furthermore, where evidentiary matters are concerned, the Chamber is bound only to the application of the provisions of its Statute and Rules, in particular Rule 89 of the Rules which sets out the general principle of the admissibility of any relevant evidence which has probative value, provided that it is in accordance with the requisites of a fair trial.
- Rule 96(i) of the Rules alone specifically deals with the issue of corroboration of testimony required by the Chamber. The provisions of this Rule, which apply only to cases of testimony by victims of sexual assault, stipulate that no corroboration shall be required. In the Tadic judgment rendered by the ICTY, the Trial Chamber ruled that this “Sub-rule accords to the testimony of a victim of sexual assault the same presumption of reliability as the testimony of victims of other crimes, something which had long been denied to victims of sexual assault in common law [which] certainly does not […] justify any inference that in cases of crimes other than sexual assault, corroboration is required. The proper inference is, in fact, directly to the contrary”62.
- In view of the above, the Chamber can rule on the basis of a single testimony provided such testimony is, in its opinion, relevant and credible.
- The Chamber can freely assess the probative value of all relevant evidence. The Chamber had thus determined that in accordance with Rule 89, any relevant evidence having probative value may be admitted into evidence, provided that it is being in accordance with the requisites of a fair trial. The Chamber finds that hearsay evidence is not inadmissible per se and has considered such evidence, with caution, in accordance with Rule 89.
- During the trial, the Prosecutor and the Defence relied on pre-trial statements from witnesses for the purpose of cross-examination. The Chamber ordered that any such statements to which reference was made in the proceedings be submitted in evidence for consideration63. In many instances, the Defence has alleged inconsistencies and contradictions between the pre-trial statements of witnesses and their evidence at trial. The Chamber notes that these pre-trial statements were composed following interviews with witnesses by investigators of the Office of the Prosecution. These interviews were mostly conducted in Kinyarwanda, and the Chamber did not have access to transcripts of the interviews, but only translations thereof. It was therefore unable to consider the nature and form of the questions put to the witnesses, or the accuracy of interpretation at the time. The Chamber has considered inconsistencies and contradictions between these statements and testimony at trial with caution for these reasons, and in the light of the time lapse between the statements and the presentation of evidence at trial, the difficulties of recollecting precise details several years after the occurrence of the events, the difficulties of translation, and the fact that several witnesses were illiterate and stated that they had not read their written statements. Moreover, the statements were not made under solemn declaration and were not taken by judicial officers. In the circumstances, the probative value attached to the statements is, in the Chamber’s view, considerably less than direct sworn testimony before the Chamber, the truth of which has been subjected to the test of cross-examination.
- Rule 91 of the Rules (False Testimony under Solemn Declaration) provides for, inter alia, the investigation and possible prosecution of a witness whom the Chamber believes may have knowingly and wilfully given false testimony. As held by the Chamber in its decision rendered thereon in relation to a Defence motion requesting the Chamber to direct the Prosecutor to investigate the alleged false testimony by a witness 64, Rule 91(B) provides:
Either the Chamber establishes proprio motu that strong grounds exist for believing that a witness has knowingly and wilfully given false testimony, and thence directs the Prosecutor to investigate the matter with a view to the preparation and submission of an Indictment for false testimony;
Or, at the request of a party, it invites the Prosecutor to investigate the matter with a view to the preparation and submission of an Indictment for false testimony; and in this case, the onus is on the party to convince the Chamber that there exist strong grounds for believing that a witness has knowingly and wilfully given false testimony;
- Further, the Chamber held in the decision, that the onus is on the party pleading a case of false testimony to prove the falsehoods of the witness statements, that they were made with harmful intent, or at least that they were made by a witness who was fully aware that they were false, and their possible bearing upon the judge’s decisions. The
Chamber found that for the Defence to raise only doubts as to the credibility of the statements made by the witness was not sufficient to establish strong grounds for believing that the witness may have knowingly and wilfully given false testimony, and that the assessment of credibility pertains to the rendering of the final judgment.
- The majority of the witnesses who appeared before the Chamber were eyewitnesses, whose testimonies were based on events they had seen or heard in relation to the acts alleged in the Indictment. The Chamber noted that during the trial, for a number of these witnesses, there appeared to be contradictions or inaccuracies between, on the one hand, the content of their testimonies under solemn declaration to the Chamber, and on the other, their earlier statements to the Prosecutor and the Defence. This alone is not a ground for believing that the witnesses gave false testimony. Indeed, an often levied criticism of testimony is its fallibility. Since testimony is based mainly on memory and sight, two human characteristics which often deceive the individual, this criticism is to be expected. Hence, testimony is rarely exact at to the events experienced. To deduce from any resultant contradictions and inaccuracies that there was false testimony, would be akin to criminalising frailties in human perceptions. Moreover, inaccuracies and contradictions between the said statements and the testimony given before the Court are also the result of the time lapse between the two. Memory over time naturally degenerates, hence it would be wrong and unjust for the Chamber to treat forgetfulness as being synonymous with giving false testimony. Moreover, false testimony requires the necessary mens rea and not a mere wrongful statement.
- Were the Chamber to have strong grounds for believing that the witness had knowingly and wilfully given false testimony, with the intent to impede the due process of Justice, then Rule 91 of the Rules would be applied accordingly.
The impact of trauma on the testimony of witnesses
- Many of the eye-witnesses who testified before the Chamber in this case have seen atrocities committed against their family members or close friends, and/or have themselves been the victims of such atrocities. The possible traumatism of these witnesses caused by their painful experience of violence during the conflict in Rwanda is a matter of particular concern to the Chamber. The recounting of this traumatic experience is likely to evoke memories of the fear and the pain once inflicted on the witness and thereby affect his or her ability fully or adequately to recount the sequence of events in a judicial context. The Chamber has considered the testimony of those witnesses in this light.
- The Chamber is unable to exclude the possibility that some or all of these witnesses did actually suffer from post traumatic or extreme stress disorders, and has therefore carefully perused the testimonies of these witnesses, those of the Prosecutor as well as those of the Defence, on the assumption that this might possibly have been the case. Inconsistencies or imprecisions in the testimonies, accordingly, have been assessed in the light of this assumption, personal background and the atrocities they have experienced or have been subjected to. Much as the Witness Protection Programme and the orders for
protection of witnesses issued by the Chamber during this trial were designed primarily to reduce the danger for witnesses in coming to the Tribunal to testify, these measures may also have provided for some alleviation of stress. Reducing the physical danger to the witnesses in Rwanda, and ordering the non-disclosure of their identities to the media and the public, as well as accommodating them during their presence at the seat of the Tribunal in safe houses where medical and psychiatric assistance was available, are, in any event, measures conducive to easing the level of stress.
- The Chamber has thanked each witness for his or her testimony during the trial proceedings and wishes to acknowledge in its judgment the strength and courage of survivors who have recounted their traumatic experiences, often reliving extremely painful emotions. Their testimony has been invaluable to the Chamber in its pursuit of truth regarding the events which took place in the commune of Taba in 1994.
Interpretation from Kinyarwanda into French and English
- The majority of the witnesses in this trial testified in Kinyarwanda. The Chamber notes that the interpretation of oral testimony of witnesses from Kinyarwanda into one of the official languages of the Tribunal has been a particularly great challenge due to the fact that the syntax and everyday modes of expression in the Kinyarwanda language are complex and difficult to translate into French or English. These difficulties affected the pre-trial interviews carried out by investigators in the field, as well as the interpretation of examination and cross-examination during proceedings in Court. Most of the testimony of witnesses at trial was given in the language, Kinyarwanda, first interpreted into French, and then from French into English. This process entailed obvious risks of misunderstandings in the English version of words spoken in the source language by the witness in Kinyarwanda. For this reason, in cases where the transcripts differ in English and French, the Chamber has relied on the French transcript for accuracy. In some cases, where the words spoken are central to the factual and legal findings of the Chamber, the words have been reproduced in this judgment in the original Kinyarwanda.
- The words Inkotanyi, Inyenzi, Icyitso/Ibyitso, Interahamwe and the expressions used in Kinyarwanda for “rape”, because of their significance to the findings of the Chamber, are considered particularly, as follows: The Chamber has relied substantially on the testimony of Dr. Mathias Ruzindana, an expert witness on linguistics, for its understanding of these terms. The Chamber notes that Dr. Ruzindana stated in his testimony that in ascertaining the specific meaning of certain words and expressions in Kinyarwanda, it is necessary to place them contextually, both in time and in space.
- The origin of the term Inkotanyi can be traced back to the 19th Century, at which time it was the name of one of the warrior groups of a Rwandese king, King Rwabugiris. There is no evidence to suggest that this warrior group was monoethnic. Dr. Ruzindana suggested that the name Inkotanyi was borne with pride by these warriors. At the start of the war between the RPF and the Government of Rwanda, the RPF army wing was called Inkotanyi. As such, it should be assumed that the basic meaning of the term Inkotanyi is the RPF army. Based on the analysis of a number of Rwandan newspapers and RTLM
cassettes, as well as his personal experiences during the conflict, Dr. Ruzindana believed the term Inkotanyi had a number of extended meanings, including RPF sympathizer or supporter, and, in some instances, it even seemed to make reference to Tutsi as an ethnic group.
- The basic everyday meaning of the term Inyenzi is cockroach. Other meanings of the term stem from the history of Rwanda. During the revolution’ of 1959, refugees, mainly Tutsi, fled the country. Throughout the 1960’s incursions on Rwandan soil were carried out by some of these refugees, who would enter and leave the country under the cover of the night, only rarely to be seen in the morning. This activity was likened to that of cockroaches, which are rarely seen during the day but often discovered at night, and accordingly these attackers were called Inyenzi. A similar comparison, between insurgent Tutsi refugees and cockroaches, was made when the RPF army carried out a number of attacks in Rwanda in 1990. It was thought that the Inyenzi of 1990 were the children of the Inyenzi of the 1960’s. “The cockroach begets another cockroach and not a butterfly” was an article heading in the magazine Kangura. Another article in this publication made the reference even more explicitly, saying “The war between us and the Inyenzi- Inkotanyi has lasted for too long. It is time we told the truth. The present war is a war between Hutu and Tutsi. It has not started today, it is an old one.”65
- Unlike the term Inkotanyi, the term Inyenzi had a negative, even abusive, connotation. The radio station RTLM broadcast on 20 April 1994, “They are a gang of Tutsi extremists who called themselves Inkotanyi while they are no more than Inyenzi,” and in a speech on 22 November 1992, Leon Mugesera said “Don’t call them Inkotanyi, they are true Inyenzi”. The term Inyenzi was widely used by extremist media, by those who had refused to accept the Arusha Peace Accords and those who wanted to exterminate the Tutsi, in whole or in part. It was often contained in RTLM broadcasts, a radio which, in the opinion of Dr. Ruzindana, was anti-Tutsi in its broadcastings.66
- The term Icyitso, or Ibyitso in the plural, has been in usage in Kinyarwanda for quite some time. It is a common term which means accomplice. In ancient Rwandan history, a king wanting to launch an attack on neighbouring countries would send spies to the targeted country. These spies would recruit collaborators who would be known as Ibyitso. In Rwanda, the term has a negative connotation. Thus it should not be seen as being synonymous with supporter’, a term which can be viewed both positively and negatively, but perhaps rather “collaborator”. The term evolved, as early as 1991, to include not only collaborators, but all Tutsi. The editor of Kangura stated in 1993, “When the war started, Hutu talked openly about the Tutsi, or they referred to them, indirectly, calling them Ibyitso”67.
- The term Interahamwe derives from two words put together to make a noun, intera and hamwe. Intera comes from the verb gutera’ which can mean both to attack and to work. It was documented that in 1994, besides meaning to work or to attack, the word gutera could also mean to kill. Hamwe means together. Therefore Interahamwe could mean to attack or to work together, and, depending on the context, to kill together. The Interahamwe were the youth movement of the MRND. During the war, the term also covered anyone who had anti-Tutsi tendencies, irrespective of their political background, and who collaborated with the MRND youth.
- The terms gusambanya, kurungora, kuryamana and gufata ku ngufu were used interchangeably by witnesses and translated by the interpreters as “rape”. The Chamber has consulted its official trial interpreters to gain a precise understanding of these words and how they have been interpreted. The word gusambanya means “to bring (a person) to commit adultery or fornication”. The word kurungora means “to have sexual intercourse with a woman”. This term is used regardless of whether the woman is married or not, and regardless of whether she gives consent or not. The word kuryamana means “to share a bed” or “to have sexual intercourse”, depending on the context. It seems similar to the colloquial usage in English and in French of the term “to sleep with”. The term gufata ku ngufu means “to take (anything) by force” and also “to rape”.
- The context in which these terms are used is critical to an understanding of their meaning and their translation. The dictionary entry for kurungora 68, the most generic term for sexual intercourse, includes as an example of usage of this word, the sentence “Mukantwali yahuye n’abasore batatu baramwambura baramurongora,” for which the dictionary translation into French is “Mukantwali a recontre trois jeunes gens qui l’ont devalisee et violee” (in English “Mukantwali met three young men who robbed her of her belongings and raped her.”)
- The Chamber notes that the accused objected on one occasion to the translation of the words stated by Witness JJ (“Batangira kujya babafata ku ngufu babakoresha ibyo bashaka”) as “They began to rape them.” It was clarified that the witness said “they had their way with them.” The Chamber notes that in this instance the term used, babafata ku ngufu, is the term which of the four terms identified in the paragraph above is the term most closely connected to the concept of force. Having reviewed in detail with the official trial interpreters the references to “rape” in the transcript, the Chamber is satisfied that the Kinyarwanda expressions have been accurately translated.
Cultural Factors Affecting the Evidence of Witnesses
- Dr. Mathias Ruzindana noted that most Rwandans live in an oral tradition in which facts are reported as they are perceived by the witness, often irrespective of whether the facts were personally witnessed or recounted by someone else. Since not many people are literate or own a radio, much of the information disseminated by the press in 1994 was transmitted to a larger number of secondary listeners by word of mouth, which inevitably carries the hazard of distortion of the information each time it is passed on to a new listener. Similarly, with regard to events in Taba, the Chamber noted that on examination it was at times clarified that evidence which had been reported as an eyewitness account was in fact a second-hand account of what was witnessed. Dr. Ruzindana explained this as a common phenomenon within the culture, but also confirmed that the Rwandan community was like any other and that a clear distinction could be articulated by the witnesses between what they had heard and what they had seen. The Chamber made a
consistent effort to ensure that this distinction was drawn throughout the trial proceedings.
- According to the testimony of Dr. Ruzindana, it is a particular feature of the Rwandan culture that people are not always direct in answering questions, especially if the question is delicate. In such cases, the answers given will very often have to be “decoded” in order to be understood correctly. This interpretation will rely on the context, the particular speech community, the identity of and the relation between the orator and the listener, and the subject matter of the question. The Chamber noted this in the proceedings. For example, many witnesses when asked the ordinary meaning of the term Inyenzi were reluctant or unwilling to state that the word meant cockroach, although it became clear to the Chamber during the course of the proceedings that any Rwandan would know the ordinary meaning of the word. Similar cultural constraints were evident in their difficulty to be specific as to dates, times, distances and locations. The Chamber also noted the inexperience of witnesses with maps, film and graphic representations of localities, in the light of this understanding, the Chamber did not draw any adverse conclusions regarding the credibility of witnesses based only on their reticence and their sometimes circuitous responses to questions.
5. FACTUAL FINDINGS 5.1. General allegations (Paragraphs 5-11 of the Indictment) Events Alleged
- Paragraphs 5 to 11 of the indictment appear under the heading, “General Allegations”. These general allegations are, for the most part, mixed questions of fact and law relating to the general elements of genocide, crimes against humanity, and violations of international humanitarian law, the crimes set forth in Articles 2, 3 and 4 of the Statute of the Tribunal, under which the Accused is charged. Several witnesses testified before the Chamber with regard to historical background and the general situation in Rwanda prior to and during 1994. The Chamber has substantially relied on the testimonies of Dr. Ronie Zachariah, Ms. Lindsey Hilson, Mr. Simon Cox, Dr. Alison Desforges, who testified as an expert witness, and General Romeo Dallaire, the force commander of UNAMIR at the time of these events as well as United Nations reports of which it takes judicial notice, for its general findings on the factual allegations set forth in paragraphs 511 of the indictment.
- Dr. Zachariah, the Chief Medical and Field Coordinator for Medecins sans frontieres (“MSF”), based in the Butare region, testified that he witnessed widespread massacres of civilians in Rwanda from 13 to 24 April 1994. He stated that he travelled from Butare to Gitarama on 13 April 1994 in order to provide medical supplies to a hospital in Gitarama which had received 40 to 50 injured people. From 25 kilometres outside Gitarama, Dr. Zachariah said he and his team began to see refugees on the road, who reported the killings of civilians at roadblocks. At one of these barriers, Dr. Zachariah stated that his driver was treated aggressively by a guard manning the roadblock, because the driver was
Tutsi and the Tutsi were accused of helping the RPF. Dr. Zachariah testified that it soon became apparent upon arrival at Gitarama Hospital that Tutsi civilians were being targeted for attack on a massive scale. Subsequently, Dr. Zachariah witnessed attacks on civilian populations, and killings of civilians. He recounted visiting Kibeho Church on 16 April 1994, where two to four thousand Tutsi civilians were apparently killed, and Butare on 17 April 1994, where a Burundian Tutsi was apparently beaten to death at a checkpoint, and where his purchase officer reported seeing the bodies of 5-10 dead civilians at every checkpoint on the road from Kigali. These checkpoints were apparently manned by well-armed, drunken soldiers and civilians. On the road from Butare to Burundi on 19 April 1994, Dr. Zachariah sated that saw civilians being massacred in villages throughout the countryside and at roadblocks. In his words:
“All the way through we could see on the […] hillside, where there were communities, people […] being pulled out by people with machetes, and we could see piles of bodies. In fact the entire landscape was becoming spotted with corpses, with bodies, all the way from there until almost Burundi’s border”.
(Hearing of 16 January 1997, pp 98-99)
- At the Rwanda-Burundi border, on the same day, Dr. Zachariah testified that he saw a group of 60 to 80 civilians fleeing towards the Burundian border, from men armed with machetes. He stated that most of these civilians were hacked to death before they reached the border. Returning from the Burundian border, on 21 April 1994, Dr Zachariah stated that he had spoken to eye-witnesses who had informed him of the killings of approximately 40 Tutsi MSF personnel, in the Saga camps in Butare. He stated that his driver’s entire family had been killed on the outskirts of Butare by Interahamwe and he had been informed of these killings by his driver who had managed to escape death. Dr. Zachariah testified that he had witnessed, on 22 April 1994, the aftermath of the massacre of the family of a moderate Hutu, Mr. Souphene, the sub-Prefect of Butare, by the Presidential Guard, and, on the same day, the killings of children in the Hotel Pascal in Butare and the executions of tens of Tutsi patients and nurses in Butare Hospital, including a Hutu nurse who was pregnant by a Tutsi man and whose child would therefore be Tutsi. Dr. Zachariah stated that he then decided to evacuate his team from Rwanda and he arrived at the Burundian border on 24 April 1994. On the way to the border and at the border, he stated that he had crossed streams and rivers in which the mutilated corpses of men, women and children floated by at an estimated rate of five bodies every minute. Dr. Zachariah stated under cross-examination that in his opinion the attacks were both “organised and systematic”.
- Lindsey Hilson, a journalist, testified that she was in Kigali from 7 February 1994 to mid-April 1994. Following the aeroplane crash of 6 April 1994 in which the Presidents of Rwanda and Burundi were killed, she said she heard from others and saw for herself the ensuing killings of Tutsi in the capital. On the third day after the aeroplane crash, she toured Kigali with aid workers and saw victims suffering from machete and gunshot wounds. In Kigali central hospital, where she described the situation as “absolutely terrible”, wounded men, women and children of all ages were packed into the wards, and
hospital gutters were “running red with blood”. At the morgue she saw “a big pile like a mountain of bodies outside and these were bodies with slash wounds, with heads smashed in, many of them naked, men and women”. She estimated that the pile outside the morgue contained about five hundred bodies, with more bodies being brought in all the time by pickup trucks. She stated that she also saw teams of convicts around Kigali collecting bodies in the backs of trucks for mass burial, as well as groups of armed men roaming the city with machetes, clubs and sticks.
- Simon Cox, a cameraman and photographer, testified that he was on an assignment in Rwanda during the time of the events set forth in the indictment. He said he entered Rwanda from Uganda, arriving in the border town of Mulindi, in the third week of April 1994. Thence he headed south with an RPF escort and found evidence of massacres of civilian men, women and children, whom it appeared from their identity cards were mostly Tutsi, in church compounds. En route to Rusumo, in the south-east of the country, he visited hospitals where Tutsi civilians suffering from machete wounds were being treated, some of whom he interviewed. At the Tanzanian border, near Rusumo, by the Kagera river which flows towards Lake Victoria, Mr. Cox saw and filmed corpses floating by at the rate of several corpses per minute. Later, at the beginning of May, he was in Kigali and saw more bodies of dead civilians on the roads. The Chamber viewed film footage taken by Mr. Cox.
- On a second trip, in June 1994, Mr. Cox visited the western part of Rwanda, arriving in Cyangugu from Zaire (now the Democratic Republic of Congo) and travelling north towards Kibuye. On that journey, he visited orphanages populated by Tutsi children whose parents had been massacred or disappeared. He visited a church in Shangi where a Priest described how the whole of his congregation who had been Tutsi had been hiding inside the church, because they had heard disturbances, and they were eventually all killed by large armed gangs of people, some of whom were equipped with hand grenades. The church had previously survived five repeated attacks. Mr. Cox himself examined the church and outbuildings and found graves, much blood and other evidence of killings. On the way to Kibuye, he saw further evidence of freshly dug mass graves in churchyards. Later, in the hills of Bisesero, he saw some 800 Tutsi civilians “in a desperate, desperate state”, many apparently starving and with severe machete and bullet wounds, and with a great many corpses strewn all over the hills.
- The testimony of an expert witness, Alison Desforges, which has been referred to and summarised above in the “Context of the conflict” section, also indicates that Tutsi and so-called moderate Hutu civilians were targeted for attacks on a massive scale in Rwanda at the time of the events which are the subject of this indictment.
- In addition, the Chamber heard the testimony of General Romeo Dallaire, who was the force commander of UNAMIR in April 1994. General Dallaire described before the Chamber the massacres of civilian Tutsi which took place in Rwanda in 1994. He also testified in relation to the armed conflict which took place between the RPF and the FAR at the same time as the massacres. This conflict appeared to be a civil war between two well-organised armies. In this context, General Dallaire referred to the FAR and the RPF
as “two armies”, “two belligerents” or “two sides to the conflict.” He noted that the mandate of the UNAMIR was to assist these two parties in implementing the Arusha Peace Accords which were signed on 4 October 1993. Subsequently, other military agreements were signed between the parties, including cease-fire agreements and agreements for arms-free zones. General Dallaire testified that the FAR was under the control of the government of Rwanda and that the RPF was under the control of Paul Kagame. The FAR and RPF occupied different sides of a clearly demarcated demilitarised zone, and according to General Dallaire, the RPF comprised 12,000-13,000 soldiers deployed in three groups: two groups for reaction in the western flank of the demilitarised zone and another group in the eastern flank with six independent battalions. The RPF headquartered in Mulundi, and had a lightweight battalion stationed in Kigali. General Dallaire testified that the RPF troops were disciplined and possessed a well- structured leadership which was answerable to authority and which respected instruction.
- In addition to the testimony of these witnesses, the Chamber takes judicial notice of the following United Nations reports, which extensively document the massacres which took place in Rwanda in 1994: notably, the Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), U.N. Doc. S/1994/1405 (1994); Report of the Special Rapporteur of the Commission on Human Rights on Extrajudicial, Summary or Arbitrary Executions, Bacre Waly Ndiaye, on his mission to Rwanda from 8-17 April 1993, U.N. Doc. E/CN.4/1994/7/Add.1 (1993); Special Report of the Secretary-General on UNAMIR, containing a summary of the developing crisis in Rwanda and proposing three options for the role of the United Nations in Rwanda, S/1994/470, 20 April 1994; Report of the United Nations High Commissioner for Human Rights, Mr. Jose Ayala Lasso, on his mission to Rwanda 11-12May 1994, U.N. Doc. E/CN.4/S-3/3 (1994). See also, generally, the collection of United Nations documents in The United Nations and Rwanda, 1993-1996, The United Nations Blue Books Series, Volume X, Department of Public Information, United Nations, New York.
- The Chamber notes that witnesses from Taba also attested to the mass killings which took place around the country.
- Paragraph 5 of the indictment alleges, “Unless otherwise specified, all acts and omissions set forth in this indictment took place between 1 January 1994 and 31 December 1994, in the commune of Taba, prefecture of Gitarama, territory of Rwanda”. This allegation, which supports the legal finding that the Chamber has territorial and temporal jurisdiction over the crimes charged, is not contested, and the Chamber finds that it has been established by the evidence presented.
- Paragraph 6 of the indictment alleges that the acts set forth in each paragraph of the indictment charging genocide, i.e. paragraphs 12-24, “were committed with intent to destroy, in whole or in part, a national, ethnic or racial group”. That acts of violence committed in Rwanda during this time were committed with the intent to destroy the Tutsi population is evident not only from the testimony cited above of Dr. Zachariah, Ms.
Hilson, Mr. Cox, Dr. Desforges and General Dallaire, but also from the witnesses who testified with regard to events in the commune of Taba. Witness JJ testified that she was driven away from her home, which was destroyed after a man came to the hill near where she lived and said that the bourgmestre had sent him so that no Tutsi would remain on the hill that night. At the meeting which was held on the morning of 19 April 1994, at which the Accused spoke, Witness OO testified that it was said by another speaker that all the Tutsi should be killed so that some day a child could be born who would have to ask what a Tutsi had looked like. She also quoted this speaker as saying “I will have peace when there will be no longer a Tutsi in Rwanda.”. Witness V testified that Tutsi were thrown into the Nyabarongo river, which flows towards the Nile, and told to “meet their parents in Abyssinia”, signifying that the Tutsi came from Abyssinia (Ethiopia) and that they “should go back to where they came from” (hearing of 24 January 1997, p.7)
- In light of this evidence, the Chamber finds beyond a reasonable doubt that the acts of violence which took place in Rwanda during this time were committed with the intent to destroy the Tutsi population, and that the acts of violence which took place in Taba during this time were a part of this effort.
- Paragraph 7 of the indictment alleges that the victims in each paragraph charging genocide were members of a national, ethnic, racial or religious group. The Chamber notes that the Tutsi population does not have its own language or a distinct culture from the rest of the Rwandan population. However, the Chamber finds that there are a number of objective indicators of the group as a group with a distinct identity. Every Rwandan citizen was required before 1994 to carry an identity card which included an entry for ethnic group (ubwoko in Kinyarawanda and ethnie in French), the ethnic group being Hutu, Tutsi or Twa. The Rwandan Constitution and laws in force in 1994 also identified Rwandans by reference to their ethnic group. Article 16 of the Constitution of the Rwandan Republic, of 10 June 1991, reads, “All citizens are equal before the law, without any discrimination, notably, on grounds of race, colour, origin, ethnicity, clan, sex, opinion, religion or social position”. Article 57 of the Civil Code of 1988 provided that a person would be identified by “sex, ethnic group, name, residence and domicile.” Article 118 of the Civil Code provided that birth certificates would include “the year, month, date and place of birth, the sex, the ethnic group, the first and last name of the infant.” The Arusha Accords of 4 August 1993 in fact provided for the suppression of the mention of ethnicity on official documents (see Article 16 of the Protocol on diverse questions and final dispositions).
- Moreover, customary rules existed in Rwanda governing the determination of ethnic group, which followed patrilineal lines of heredity. The identification of persons as belonging to the group of Hutu or Tutsi (or Twa) had thus become embedded in Rwandan culture. The Rwandan witnesses who testified before the Chamber identified themselves by ethnic group, and generally knew the ethnic group to which their friends and neighbours belonged. Moreover, the Tutsi were conceived of as an ethnic group by those who targeted them for killing.
172. As the expert witness, Alison Desforges, summarised:
“The primary criterion for [defining] an ethnic group is the sense of belonging to that ethnic group. It is a sense which can shift over time. In other words, the group, the definition of the group to which one feels allied may change over time. But, if you fix any given moment in time, and you say, how does this population divide itself, then you will see which ethnic groups are in existence in the minds of the participants at that time. The Rwandans currently, and for the last generation at least, have defined themselves in terms of these three ethnic groups. In addition reality is an interplay between the actual conditions and peoples’ subjective perception of those conditions. In Rwanda, the reality was shaped by the colonial experience which imposed a categorisation which was probably more fixed, and not completely appropriate to the scene. But, the Belgians did impose this classification in the early 1930’s when they required the population to be registered according to ethnic group. The categorisation imposed at that time is what people of the current generation have grown up with. They have always thought in terms of these categories, even if they did not, in their daily lives have to take cognizance of that. This practice was continued after independence by the First Republic and the Second Republic in Rwanda to such an extent that this division into three ethnic groups became an absolute reality”.
- Paragraph 8 of the indictment alleges that the acts set forth in each paragraph of the indictment charging crimes against humanity, i.e. paragraphs 12-24, “were committed as part of a widespread or systematic attack against a civilian population on national, political, ethnic or racial grounds”. As set forth in the evidence, the scale of the attack was extraordinary. Defence counsel called the events which took place in Rwanda in 1994 “the greatest human tragedy” at the end of this century. Around the country, a massive number of killings took place within a very short time frame. Tutsi were clearly the target of the attack – at roadblocks, in shelters, and in their own homes. Hutu sympathetic to or supportive of Tutsi were also massacred. That the attack was systematic is evidenced by the unusually large shipments of machetes into the country shortly before it occurred. It is also evidenced by the structured manner in which the attack took place. Teachers and intellectuals were targeted first, in Taba as well as the rest of the country. Through the media and other propaganda, Hutu were encouraged systematically to attack Tutsi. For these reasons, the Chamber finds beyond a reasonable doubt that a widespread and systematic attack began in April 1994 in Rwanda, targeting the civilian Tutsi population and that the acts referred to in paragraphs 12-24 of the indictment were acts which formed part of this widespread and systematic attack.
- Paragraph 9 of the indictment states, “At all times relevant to this indictment, a state of internal armed conflict existed in Rwanda”. The Chamber notes the testimony of General Dallaire, a witness called by the Defence, that the FAR was and the RPF were “two armies” engaged in hostilities, that the RPF had soldiers systematically deployed under a command structure headed by Paul Kagame, and that FAR and RPF forces occupied different sides of a clearly demarcated demilitarised zone. Based on the evidence presented, the Chamber finds beyond a reasonable doubt that armed conflict existed in Rwanda during the events alleged in the indictment, and that the RPF was an organised armed group, under responsible command, which exercised control over territory in Rwanda and was able to carry out sustained and concerted military operations.
- Paragraph 10 of the indictment reads, “The victims referred to in this indictment were, at all relevant times, persons not taking an active part in the hostilities”. The victims referred to in the indictment, several of whom testified before the Chamber, were farmers, teachers and refugees. The Chamber notes that the Defence did not challenge the civilian status of the victims by making any submissions or leading any evidence connecting any of the victims to the RPF or the hostilities that prevailed in 1994.Since the allegations in Paragraphs 13, 17 and those pertaining to Juvenal Rukundakuvuga and Emmanuel Sempabwa in paragraph 15 of the indictment have not been proved beyond a reasonable doubt, the Chamber finds that it is futile to determine whether these alleged victims were in fact civilians, taking no active part in the hostilities that prevailed in 1994. In light of the evidence presented by the Prosecutor, the Chamber finds beyond a reasonable doubt that all the other victims referred to in the indictment were civilians, not taking any active part in the hostilities that prevailed in 1994.
- Paragraph 10A was added to the indictment when it was amended to include charges of sexual violence, set forth in Paragraphs 12A and 12B of the indictment. It is not an allegation of fact, rather it appears to be a definition of sexual violence proposed by the Prosecutor.
- Paragraph 11 of the indictment sets forth the definition of individual criminal responsibility in Article 6(1) of the Statute of the Tribunal and alleges that the Accused is individually responsible for the crimes alleged in the indictment. The Chamber does not consider this to be a factual allegation but rather a matter of legal issue, which is addressed in the legal findings on each count. The Chamber notes that no general allegation has been made by the Prosecution in connection with Counts 13, 14 and 15, under which the Accused is charged with individual criminal responsibility under Article 6(3), as well as Article 6(1) of the Tribunal’s Statute.
5.2 Killings (Paragraphs 12, 13, 18, 19 & 20 of the Indictment)
5.2.1. Paragraph 12 of the Indictment
- The Chamber now considers paragraph 12 of the Indictment, which alleges the responsibility of the Accused, his knowledge of the killings which took place in Taba between 7 April and the end of June 1994, and his failure to attempt to prevent these killings or to call for assistance from regional or national authorities.
179. Paragraph 12 of the Indictment reads as follows:
12. As bourgmestre, Jean Paul AKAYESU was responsible for maintaining law and public order in his commune. At least 2000 Tutsi were killed in Taba between April 7 and the end of June, 1994, while he was still in power. The killings in Taba were openly committed and so widespread that, as bourgmestre, Jean Paul AKAYESU must have known about them. Although he had the authority and responsibility to do so, Jean Paul AKAYESU never attempted to prevent the killing of Tutsi in the commune in any way or called for assistance from regional or national authorities to quell the violence.
- Many witnesses testified regarding the responsibilities of the bourgmestre. Witness DZZ, a former police officer, testified that as bourgmestre, the Accused was responsible for maintaining law and public order in the commune. Witness R, a former bourgmestre, confirmed this testimony, as did Witness V and expert witness Alison DesForges. The responsibilities of the bourgmestre are set forth in Rwandese law, which provides in Article 108 of the Law on the Organization of the Commune that the brigadier has command of the communal police, under the authority of the bourgmestre. Moreover, according to the testimony of witness NN and others, the accused’s authority over the communal police continued, and he continued to issue them orders, throughout the period in question. Many witnesses testified as to their perception of the authority of the bourgmestre. Witness K and Witness NN both stated that as bourgmestre, the Accused was the leader of the commune, and Witness S, Witness V and Ephrem Karangwa, the current bourgmestre of Taba, all testified that the people of the commune respected and followed every order of the Accused, as bourgmestre. The bourgmestre was the most important person in the Commune and its “parent” according to Ephrem Karangwa. He was “paramount for the life of the whole commune” and the representative of the executive power in the commune, according to Witness R, himself a former bourgmestre The Accused himself acknowledged that he was responsible for the maintenance of law and order in the commune. Accordingly, the Chamber finds that this proposition has been established.
- With regard to the allegation that at least 2000 Tutsi were killed in Taba from 7 April to the end of June 1994, the Chamber notes that while many witnesses testified to widespread killings in Taba, very few witnesses were able to estimate numbers of people killed. Ephrem Karangwa, the present bourgmestre of Taba, testified that the population of Taba has decreased by 7,000 persons since April 1994, and he described mass graves in each sector of the commune. While some part of the population decrease may be attributed to refugees leaving the commune, it is clear from the testimony of many witnesses that a substantial number of people were killed in Taba. The number 2000 has not been contested by the Defence, and it seems to the Chamber, based on the evidence of killing and mass graves, a modest estimate of the number of people killed in Taba during this period. The testimony also uniformly establishes that virtually all of these people were Tutsi. Accordingly, the Chamber finds that it has been established beyond a reasonable doubt that at least 2000 Tutsi were killed in Taba from 7 April to the end of June 1994. It has also been established that the accused remained bourgmestre throughout this period.
- The Indictment alleges that the killings in Taba were openly committed and so widespread that the Accused must have known about them. A number of witnesses, including Witness PP and Witness V, testified that they informed the Accused of the killings which were taking place in Taba. Others, such as Witness NN, testified that the Accused was present at the bureau communal and elsewhere when killings took place, and that he witnessed these killings. Others, including Witness KK, Witness NN, Witness G, Witness W, Witness J, Witness C, Witness JJ and Witness V, have testified that the Accused supervised and actively participated in the killings. The Accused himself acknowledged that he knew such killings were taking place. He testified that he was told
that there were killings everywhere in Taba, and that it was the Tutsi who were being killed. He stated that on 19 April 1994, killings spread to most of the commune of Taba. The issue is not contested, and it has been established that the Accused knew that killings were taking place and were widespread in Taba during the period in question.
- The final allegation of paragraph 12 is that although he had the authority and responsibility to do so, Jean Paul Akayesu never attempted to prevent the killing of Tutsi in the commune in any way or called for assistance from regional or national authorities to quell the violence. The Accused contends that he did not have the power necessary to prevent the killings from taking place. The Chamber notes that the issue to be addressed is whether he ever attempted to do so. In the light of the evidence, the Chamber considers that it is necessary to distinguish between the period before 18 April 1994, when the key meeting between members of the interim government and the bourgmestres took place in Murambi, in Gitarama, and the period after 18 April 1994. Indeed, on the Prosecution’s own case, a marked change in the accused’s personality and behaviour took place after 18 April 1994.
- There is a substantial amount of evidence establishing that before 18 April 1994 the Accused did attempt to prevent violence from taking place in the commune of Taba. Many witnesses testified to the efforts of the Accused to maintain peace in the commune and that he opposed by force the Interahamwe’s attempted incursions into the commune to ensure that the killings which had started in Kigali on 7 April 1994 did not spread to Taba. Witness W testified that on the order of the Accused to the population that they must resist these incursions, members of the Interahamwe were killed. Witness K testified that Taba commune was calm during the period when Akayesu wanted that there be calm. She said he would gather the population in a meeting and tell them that they had to be against the acts of violence in the commune. Witness A testified that when the Interahamwe tried to enter the commune of Taba, the bourgmestre did everything to fight against them, and called on the residents to go to the borders of the commune to chase them away. The Accused testified that he intervened when refugees from Kigali were being shot at by the Interahamwe. The police returned fire and three Interahamwe were killed. The Accused testified that he confiscated their weapons and their vehicle.
- The Accused testified that he asked for three gendarmes at the meeting with the Prime Minister in Gitarama on 18 April 1994, to help him maintain order and security and to stop the killing of Tutsi. The only witnesses to attend the Murambi meeting were prosecution witness R, an MDR bourgmestre in Gitarama prefecture like the accused, and Defence witness DAAX, the former prefect of Gitarama. Witness R recalled three meetings of the bourgmestres in Gitarama prefecture convened by the prefect after 6 April 1994, and in his statement to the Office of the Prosecutor he said that the accused did ask for gendarmes at one of those meetings. When testifying before the Chamber, Witness R did not remember the accused having spoken at the Murambi meeting of 18 April 1994, although in his earlier statement to the Office of the Prosecutor, he stated that the accused had spoken at that meeting. Because of these inconsistencies, Defence counsel submitted a motion requesting the Chamber to consider a prosecution for false testimony, which this Chamber rejected in a Decision of 9 March 1998. As the Chamber
stated in that Decision, it did not deem the matter appropriate for an investigation into false testimony, but rather it was a matter for the evaluation of the credibility of the witness in question. In this case, the Chamber considers that, despite discrepancies between Witness R’s testimony and his prior statement to the Prosecutor relating to the sequence of the meetings addressed by the accused, if taken in the light most favourable to the accused, it corroborates the accused’s account that at some point after 6 April 1994, and in all likelihood at the Murambi meeting of 18 April 1994, the accused asked for gendarmes to assist with the problems of security in his commune. Given the accused’s testimony on this point, and its corroboration in part by the sole prosecution witness who was present at the Murambi meeting, the accused’s version of events – that he did call for assistance from the national and regional authorities – must be credited.
- Moreover, Defence witness DAAX, the former prefect of Gitarama supports the accused’s account. Witness DAAX testified that he convened three meetings of bourgmestres between 6 April 1994 and 18 April 1994 – all of which were attended by the accused – the third meeting being the one which was moved from Gitarama to Murambi at the last minute at the request of the Prime Minister so that the Prime Minister and other Ministers could address the prefect and bourgmestres. At this third meeting, the prefect testified, the accused took the floor and complained of the problems of security in his commune, in common with the Prefect and other bourgmestres. Witness DAAX’s testimony agrees with that of the accused that the Prime Minister did not reply directly to the bourgmestre’s expressions of concern about security in their Communes, but that he rather read parts of a prepared policy speech and threatened the complaining bourgmestres with dismissal. Witness DAAX further testified that at least one bourgmestre, the bourgmestre of Mugina, was killed shortly after the meeting as a result. Witness DAAX also testified that the accused had to flee his commune due to pressure from the Interahamwe at some point between 6 April 1994 and 18 April 1994, and in any event after the first two meetings referred to above but before the third meeting. Witness DAAX said the Accused never officially requested gendarmes from him, unlike the bourgmestre of Mugina. Witness DAAX lost contact with the Accused after 18 April 1994. The Chamber notes that the Accused does not assert that he requested assistance from the prefect of Gitarama but rather from the Prime Minister, during the course of the meeting.
- A substantial amount of evidence has been presented indicating that the conduct of the Accused did, however, change significantly after the meeting on 18 April 1994, and many witnesses, including Witnesses E, W, PP, V and G, testified to the collaboration of the Accused with the Interahamwe in Taba after this date. Witness A testified that he was surprised to see that the Accused had become a friend of the Interahamwe. The Accused contends that he was overwhelmed. Witness DAX and Witness DBB, both witnesses for the Defence, testified that the Interahamwe threatened to kill the Accused if he did not cooperate with them. The Accused testified that he was coerced by the Interahamwe and particularly by Silas Kubwimana, the head of the Interahamwe with whom he was seen quite frequently during this time. The Chamber notes that in his pre-trial written statement, the Accused gave a very different account of Silas Kubwimana, describing his mandate in the commune as that of a “peace-maker”.
- The Chamber recognises the difficulties a bourgmestre encountered in attempting to save lives of Tutsi in the period in question. Prosecution witness R, who was the bourgmestre of another commune, in Gitarama prefecture, testified that there was very little he or other bourgmestres could do to prevent massacres in his commune once killings became widespread after 18 April 1994. He averred that a bourgmestre could do nothing openly to combat the killings after that date or he would risk being killed; what little he could do had to be done clandestinely. The Defence case is that this is precisely what the accused did.
- Defence witnesses, DAAX, DAX, DCX, DBB and DCC confirm that the accused failed to prevent killings after 18 April 1994 and expressed the opinion that it was not possible for him to do anything with ten communal policemen at his disposal against more than a hundred Interahamwe.
- The Defence contends that, despite pressure from the Interahamwe, the Accused continued to save lives after 18 April 1994. There is some evidence on this matter, referred to in the section on “the accused’s line of Defence”.
- There is also evidence indicating that after 18 April 1994, there were people that came to the Accused for help, and he turned them away, and there is evidence that the Accused witnessed, participated in, supervised, and even ordered killings in Taba. Witness JJ testified that after her arrival at the bureau communal, where she came to seek refuge, she went to the Accused on behalf of a group of refugees, begging him to kill them with bullets so that they would not be hacked to death with machetes. She said he asked his police officers to chase them away and said that even if there were bullets he would not waste them on the refugees.
- The Chamber finds that the allegations set forth in paragraph 12 cannot be fully established. The Accused did take action between 7 April and 18 April to protect the citizens of his commune. It appears that he did also request assistance from national authorities at the meeting on 18 April 1994. Accordingly, the Accused did attempt to prevent the killing of Tutsi in his Commune, and it cannot be said that he never did so.
- Nevertheless, the Chamber finds beyond a reasonable doubt that the conduct of the Accused changed after 18 April 1994 and that after this date the Accused did not attempt to prevent the killing of Tutsi in the commune of Taba. In fact, there is evidence that he not only knew of and witnessed killings, but that he participated in and even ordered killings. The fact that on one occasion he helped one Hutu woman protect her Tutsi children does not alter the Chamber’s assessment that the Accused did not generally attempt to prevent the killings at all after 18 April. The Accused contends that he was subject to coercion, but the Chamber finds this contention greatly inconsistent with a substantial amount of concordant testimony from other witnesses. It is also inconsistent with his own pre-trial written statement. Witness C testified to having heard the accused say to an Interahamwe ” I do not think that what we are doing is proper. We are going to have to pay for this blood that is being shed..”,a statement which indicates the Accused’s knowledge of the wrongfulness of his acts and his awareness of the consequences of his deeds. For these reasons, the Chamber does not accept the testimony of the Accused regarding his conduct after 18 April, and finds beyond a reasonable doubt that he did not attempt to prevent killings of Tutsi after this date. Whether he had the power to do so is not at issue, as he never even tried and as there is evidence establishing beyond a reasonable doubt that he consciously chose the course of collaboration with violence against Tutsi rather than shielding them from it.
5.2.2. Paragraph 13 of the Indictment
194. Paragraph 13 of the Indictment is worded as follows:
“On or about 19 April 1994, before dawn, in Gishyeshye sector, Taba commune, a group of men, one of whom was named Fran?ois Ndimubanzi, killed a local teacher, Sylvere Karera, because he was accused of associating with the Rwandan Patriotic Front (“RPF”) and plotting to kill Hutu. Even though at least one of the perpetrators was turned over to Jean-Paul Akayesu, he failed to take measures to have him arrested”.
- It is alleged that, by the acts with which he is charged in this paragraph, Akayesu is guilty of the offences which form the subject of three counts:
Count 1 of the Indictment charges him with the crime of genocide, punishable under Article 2(3)(a) of the Statute;
Count 2 charges him with the crime of complicity in genocide, punishable under Article 2(3)(e) of the Statute; and
Count 3 charges him with the crime of extermination which is a Crime against Humanity, punishable under Article 3(b) of the Statute.
- In order to prove the acts alleged against Akayesu under paragraph 13 of the Indictment, it is necessary to first establish that Sylvere Karera, a teacher, was killed in the Gishyeshye sector, Taba commune, on 19 April 1994, before dawn, by a group of men, one of whom was named Fran?ois Ndimubanzi and that he was killed because he was accused of associating with the RPF and plotting to kill Hutu. The Chamber must then be satisfied that at least one of the perpetrators of this killing was indeed turned over to Jean-Paul Akayesu, and that he failed to take measures to have him arrested.
With regard to the killing of Sylvere Karera in the Gishyeshye sector, Taba commune, on or about 19 April 1994, before dawn:
- Several Prosecution witnesses, particularly, those who appeared under the pseudonyms A, W, E and U, as well as Ephrem Karangwa, provided information on the killing of teacher Sylvere Karera in the night of 18 to 19 April 1994.
- Witness A, a Hutu man, testified that, during the night of 18 to 19 April 1994, he heard people shouting that thieves had killed people at Remera school and calling on the population to stop them. Witness A affirmed that, on 19 April 1994, he had gone to Remera school. There he learnt from the headmaster that the prefect of studies, who turned out to be Sylvere Karera, had been killed. The witness saw the body of the teacher before it was covered with a pink sheet at the request of the headmaster.
- Ephrem Karangwa, a Tutsi man, called by the Prosecutor as a witness who, at the material time, performed the functions of Inspecteur de police judiciaire of the Taba commune, stated before the Chamber that Sylvere Karera, a teacher at the Remera Rukoma school complex, was killed in the night of 18 to 19 April 1994 by members of the Interahamwe.
- Witness W, a Tutsi, who resided in Taba, where he worked as a teacher, testified that on returning from night patrols in which he had participated during the night of 18 to 19 April 1994, he learnt that the prefect of studies at the public primary school, Rukoma, had just been killed.
- Questioned on the death of Sylvere Karera, witness E stated that he had gone, in the night of 18 to 19 April 1994, to the entrance of Remera school. He did not directly see Karera’s body, but had heard that the body was in the school premises. No one stopped him from entering the school, but he had preferred to go to the place from where the noise came which had brought him out of his home.
- Prosecution witness U also heard that a teacher, named Karera, had been killed. She stated that throughout the night, she had heard people shouting in the streets and announcing, particularly, that Karera had been killed.
- The Defence has never disputed the killing of Sylvere Karera in the night of 18 to 19 April 1994. The accused has himself confirmed, during his appearance as witness before the Chamber, that the teacher Sylvere Karera had been killed in the night of 18 to 19 April 1994.
Concerning the allegation that Sylvere Karera was killed by a group of men, one of whom was named Francois Ndimubanzi, and that he was killed because he was accused of associating with the RPF and plotting to kill Hutu:
- The Chamber notes that though the Indictment alleges that Sylvere Karera was killed by a group of men, one of whom was named Fran?ois Ndimubanzi, the Prosecutor has adduced no evidence to show number and identity of the perpetrators of the killing.
- As for the reasons alleged by the Prosecutor for the killing of Sylvere Karera, that is, associating with the RPF and plotting to kill Hutu, the Defence stated, in its concluding arguments, that they should be dismissed on the ground that Sylvere Karera was, according to the Defence, Hutu and that the Prosecutor’s allegations that this teacher was killed because he was accused of plotting to kill Hutu were therefore without merit.
Concerning the allegation that at least one of the perpetrators of the killing of Sylvere Karera was turned over to Jean-Paul Akayesu and that he failed to take measures to have him arrested:
- Though the Indictment alleges that at least one of the perpetrators of the killing of Sylvere Karera was turned over to Akayesu, the Prosecutor has adduced no evidence to support this allegation.
- Witness E stated that, in the night of 18 to 19 April 1994, after going to the school entrance where Sylvere Karera had been killed, he went to the place from where camethe noise which had brought him out of his home. At Gishyeshye, from where came the noise, near a roadblock, he saw the body of another person who had been killed. A crowd gathered. It was said that teacher Karera was killed and that the remains near the roadblock were those of the Interahamwe who had just killed Karera. Apart from that dead Interahamwe, no other person was held responsible for killing Karera. Witness E specified that he had heard that Sylvere Karera had been killed by that Interahamwe alone.
- The witness called by the Prosecutor under the pseudonym Z, a Tutsi man, stated that, on or about 19 April 1994, in the early hours of the day following the killing of a Tutsi teacher in Remera and that of his murderer, who was killed by persons in charge of maintaining security, he and other persons stood near the body of the teacher’s murderer. Akayesu, who was armed, separated members of the Interahamwe from the population. According to witness Z, Akayesu, in referring to the body on the spot, reportedly deplored the killing of this person.
- Prosecution witness A testified that, in the night of 18 to 19 April 1994, an Interahamwe was killed. No investigation was conducted. He was simply buried immediately.
- Prosecution witness U stated that some men told him, on 19 April 1994, that a person had been killed and that Akayesu had gone to where the body was and held a meeting there.
- Several other witnesses indicated to the Chamber that a crowd had formed early in the morning of 19 April 1994, in Gishyeshye, around the body of a young member of the Interahamwe. That meeting is at the root of the allegations brought by the Prosecutor against Akayesu under paragraphs 14 and 15 of the Indictment. The factual findings of the Chamber on the holding of the said meeting are elaborated upon below.
- The Prosecutor accepted this version of facts in her concluding arguments. She had then told the Chamber that, following the killing of the Tutsi teacher, Sylvere Karera, in the middle of the night of 18 to 19 April 1994, in Remera, by some members of the Interahamwe, the people of the commune had gone out into the streets to find out what was happening, wondering why a teacher had been killed. Later, according to the
Prosecutor’s statement, they caught one member of the Interahamwe in Gishyeshye and killed him.
- In her concluding arguments, the Prosecutor did not mention any fact designed to show that one of the possible killers of Sylvere Karera was turned over to Jean-Paul Akayesu alive, contrary to what is alleged in paragraph 13 of the Indictment.
- During cross-examination of the accused appearing as witness in his own trial, the Prosecutor had him confirm that Sylvere Karera was killed in the night of 18 to 19 April 1994 and that later, one member of the Interahamwe, the person who had killed Karera, was also killed. The Prosecutor added that Prosecution witnesses had indeed testified to that.
- During his appearance before the Chamber as witness, the accused argued that during the night of 18 to 19 April 1994, he was sleeping in the Bureau Communal, when towards 4 a.m., a certain Augustin Sebazungu, MDR treasurer at Taba, residing in the Gishyeshye sector, came to inform him that the situation in the sector was tense, following the killing of a young man, a member of the Interahamwe. The Bourgmestre then immediately alerted the police and went to the scene, accompanied by two policemen. There he found a body stretched out on the ground, covered with traces of blood, as if it had been hit. The accused affirmed before the Chamber that he seized the opportunity of this gathering which formed as people came to see what was happening, to address the population. He noted that members of the region’s Interahamwe had rushed and surrounded the body of their young member. Akayesu told the Chamber that he had condemned the killing of the young man because he felt that it was not in that manner that law and order would be maintained, and that he had indicated that his arrest would simply have been enough.
- Prosecution witnesses appearing under the pseudonyms A, W, E and U, as well as Ephrem Karangwa, provided information which confirmed the Prosecutor’s allegations as to the killing of teacher Sylvere Karera in the night of 18 to 19 April 1994. On the basis of such corroborative evidence, which was not substantially disputed by the Defence, the Chamber is satisfied that Sylvere Karera was actually killed, in Gishyeshye, in the night of 18 to 19 April 1994.
- The Chamber notes however that the Prosecutor has not adduced conclusive evidence to support her allegations relating to the number and identity of the perpetrators of the killing of Sylvere Karera as well as the reasons for this murder.
- With regard to the allegation that at least one of the perpetrators of the killing of Sylvere Karera had been turned over to Jean-Paul Akayesu and that he failed to take any measures to have him arrested, for the reasons explained above and in the absence of pertinent evidence, the Chamber finds that the Prosecutor has not established beyond reasonable doubt that at least one of the perpetrators of the killing of Sylvere Karera was
turned over alive to Akayesu, and that he failed to take any measures to have him arrested.
5.2.3. Paragraph 18 of the Indictment
- Paragraph 18 of the Indictment reads as follows:
18. On or about April 19, 1994, the men who, on Jean Paul AKAYESU’s instructions, were searching for Ephrem Karangwa destroyed Ephrem Karangwa’s house and burned down his mother’s house. They then went to search the house of Ephrem Karangwa’s brother-in-law in Musambira commune and found Ephrem Karangwa’s three brothers there. The three brothers — Simon Mutijima, Thaddee Uwanyiligira and Jean Chrysostome Gakuba — tried to escape, but Jean Paul AKAYESU blew his whistle to alert local residents to the attempted escape and ordered the people to capture the brothers. After the brothers were captured, Jean Paul AKAYESU ordered and participated in the killing of the three brothers. Events alleged
Testimony Of Ephrem Karangwa (Witness d)
- Ephrem Karangwa was assigned the pseudonym D and placed under the Tribunal’s Witness Protection Unit, pursuant to an order of 26 September 1996, but he waived witness protection and elected to testify under his own name.
- Karangwa testified that he resided in Taba and in April 1994 he was the Inspecteur de Police Judiciaire (IPJ) in the Ministry of Justice for the Prosecutor in Taba commune having taken office in August 1984. As IPJ he investigated criminal complaints and transmitted case files to the Prosecutor. The witness’s office was situated in the bureau communal in Taba. The witness testified that the head of any commune was the bourgmestre. The Accused who was the bourgmestre of Taba during the events of April 1994. The witness had known the Accused for about twenty years. The witness did not belong to any political party and he was not allowed to do so by the Minister of Justice. He testified that there was never any tension between him and the Accused and they had a good working relationship.
- Karangwa testified that in his role as IPJ he became aware that there were problems of a political nature between the political parties in Taba, especially the MDR and the MRND. The MDR had a greater following in Taba and this party was led by the Accused. On one occasion in 1992 there was a demonstration by the MDR which led to violence when the demonstrators tried to forcibly enter the bureau communal. The MDR wanted the bourgmestre at that time removed from office. The matter was investigated by the witness and referred to the Prosecutor for prosecution. The witness did not have any knowledge of the eventual out come of this matter, at the time of testifying. The witness said that he knew of Silas Kubwimana and that he often complained about the Accused and the MDR officials. He said that there existed a file on this complaint at the
Prosecutor’s office. The witness said that he had become aware of the existence of this file in his official capacity as IPJ.
- Karangwa testified that on the morning of 7 April 1994, while preparing to go to work he heard an announcement on the radio that the President had been killed. He also heard an announcement calling on people to remain wherever they were and he therefore decided not to go to work.
- Karangwa testified that he had spoken to many people about the security situation in Taba. On 14 April 1994, he saw a blue Toyota Minibus pass him. He was informed that this motor vehicle and a white “pick up” were confiscated from the Interahamwe by the people of Kamembe. He was further informed that a police officer was killed and an Interahamwe wounded in this process.
- Karangwa testified that on the night of 18 April 1994 he was outside his house because he had heard that Tutsi in Runda commune were being killed and since he was a tutsi he was afraid. He stated that Runda and Taba were neighbouring communes. At approximately 1 am on 19 April 1994, a person came to the witness’s house and informed him that he had just attended a meeting led by the Accused where plans were being made to kill the witness and to commence killings in Taba in a similar manner to killings that were happening in Runda. This person advised the witness to flee with his family. The witness and his family hid on a hill and at dawn the witness’s sisters, mother and wife went on foot to his wife’s sisters house in Musambira and he and his brothers stayed behind because they wanted to verify the information that had been given to him. The witness said that he wondered why someone would want to kill him and his family, since they had no problem with anyone.
- Karangwa testified that from his hiding place on the hill, he could see his house on the opposite hill about 150 metres away. The witness stated that he saw three vehicles drive up to his house between the hours of eight and nine o’clock in the morning. The Accused came in a blue Toyota mini bus, the one that the people had taken away from the Interahamwe. The witness was uncertain as to whether the Accused was driving the blue Toyota Hiace minibus. The witness described the other two vehicles as a white Toyota and a red Toyota. The witness could not see what the Accused had in his hands, but he did see the Accused wearing a military jacket. The Accused and the other people alighted from the motor vehicles and went down to the witness’s house. The witness’s dogs barked and someone in this group of people fired a round from a firearm and the dogs ran away. The witness stated that he saw this group of people then destroy his house and his mother’s house. The witness stated that the houses were looted and burnt. The witness identified prosecution exhibits 50 and 51 as being photographs of the remains of these houses.
- Karangwa testified that this event confirmed the information that he had received and he then decided to join his family in Musambira. He arrived at Musambira at about 3 o’clock in the afternoon. He saw his family at the house of his brother in law, Laurent Kamondo and they immediately left for Kabgayi, whilst he awaited the arrival of his
younger brothers. He stated that he could not stay in the house because he was afraid that the Accused would look for him there. Instead, he hid in an eucalyptus bush on the side of a hill approximately eighty metres from the house.
- Karangwa testified that he saw two motor vehicles, a blue Toyota Hiace minibus and a red Toyota Hilux approach the house. These vehicles stopped approximately twenty five metres away from the house. This was the same minibus that was taken away from the Interahamwe and the Accused was using it at that time. Many people alighted from the vehicles and walked towards Laurent Kamondo’s house. The witness recognised some of these people as the bourgmestre of Musambira, the Accused, a police officer named Emanuel Mushumba from the Taba commune, Mutiji Masivere, Winima Boniface and Munir Yarangaclaude who was the secretary of the MDR party in the commune of Taba (phonetic spelling). The Accused was wearing a military jacket and he had a gun in his hand.
- Karangwa testified that he heard shouts and whistles as this group of people approached Laurent Kamondo’s house. He saw people running and, thereafter, he saw his younger brothers in the court yard with these people. The witness stated that it was then that he realised that his brothers were in Musambira. The witness continued to hear shouts from these people and then he heard the Accused say that his brothers must be shot. The witness heard gun shots and concluded that his brothers were killed and that the Accused had fired the gun. When asked by the Prosecutor whether he saw the gun that was used to kill his brothers, the witness replied that he saw the Accused carrying a gun when he arrived and that he heard the shots.
- Karangwa testified that after the killing of his brothers, he fled to Kabgayi, and on arrival at the cathedral, the witness stated that he saw the Accused in a pick up’ drive up to the cathedral. The Accused was in the company of two police officers from the Taba commune named Emanuel Mushumba ( phonetic spelling) and Ooli Musakarani (phonetic spelling) and a group of people. The witness said that he saw the Accused and these other people alight from the vehicle and look around the courtyard of the cathedral but they did not go inside. They then got back into the motor vehicle and left. The witness was informed by Witness V that the Accused was making enquiries about his whereabouts and he was advised to hide. The witness stayed in the seminary until the end of the war.
- Karangwa testified that he was not able to leave the seminary but that he heard from many people that the Accused was outside the seminary on many occasions. The Accused was able to come into the compound of the seminary from 30 May 1994. The witness recalled that he remembered that day clearly, because it was on that day that the Accused came to take him away, and he was saved by someone.
- Karangwa testified that he stayed in Kabgayi from 21 April 1994 to 2 June 1994. At the beginning of 1995 the witness went to work as IPJ in the public prosecutor’s office in Gitarama and on 3 January 1996 became the bourgmestre of Taba. The witness said that
at that time Tutsi were killed and the only reason the Accused looked for him was because he had worked in the commune and he was Tutsi.
- In response to a question from the bench, Karangwa stated that the fact that the Accused was present made him responsible for the death of his brothers. When asked for clarification as to whether the Accused ordered the shooting, the witness reaffirmed that the Accused ordered their shooting.
- Under cross examination, Karangwa testified that he had a very good working relationship with the Accused. The witness stated that the Accused dealt with civil disputes and he referred all criminal matters to the witness. The witness stated that he was generally invited to meetings pertaining to security in Taba. He testified that he saw the Accused between 6 and 10 April 1994 in Kamembe. The Accused was there assessing the security situation, since there was an influx of people that were fleeing Kigali. The Accused sent commune police officers to ensure the security of these people. The Accused at this stage was opposed to any killing.
- In clarification of an averment in his written statement made to the Office of the Prosecutor (exhibit 105), the witness testified that the Accused held meetings on 18 and 19 April 1994 with a view to planning the genocide. The witness stated that he had not attended any of these meetings but he heard of them. The witness stated that at these meetings a decision was taken that the MDR and the MRND should not fight the Interahamwe and the CDR but they should fight the tutsi. This decision according to the witness, was taken at communal level by the bourgmestre. Although the bourgmestre belonged to the MDR all the political parties at communal level were under his authority. The witness did not go to work from 7 April 1994. The witness stated that he knew that there were major security problems in the commune and expressed the view that if the bourgmestre believed that the witness was competent to resolve these problems, the bourgmestre would have provided the witness with transport to go to work.
- The witness acknowledged the fact that the Accused fought against the Interahamwe after 6 April 1994 and went on to say that if the Accused had not done so the killing in Taba would have started much earlier. The Defence Counsel pointed out that in his written statement to the Office of the Prosecutor, the witness stated that he was about a kilometre away from his house when he saw the Accused come to his house with a group of people. The witness denied this and reaffirmed his testimony that he was 150 metres away from his house, on the opposite hill. According to the witness, he was able to identify the Accused by the way that he walked and the clothes that he was wearing. The witness could also hear what was spoken by the Accused and the group of people when they were at his house, although he was 150 metres away. The witness identified the people with the Accused as assistant bourgmestre Civil Mootijima (phonetic spelling ), assistant bourgmestre Wimina Boniface (phonetic spelling ), manager of a popular bank Aloyce Kubunda (phonetic spelling), businessman Daniel Gasiba (phonetic spelling) and some communal police officers.
- Karangwa testified under cross-examination, that when the Accused arrived at Laurent Kamondo’s house at Musambira he immediately searched the house and found his three brothers. The Accused then killed the witness’s three brothers by shooting them. The Defence Counsel pointed out that, in his written statement, the witness had stated that the Accused killed his brother, Jean Kististan ( phonetic spelling), by shooting him and when his other two brothers tried to escape they were attacked and killed with machetes by the men who were with the Accused. The Defence Counsel requested an explanation from the witness in respect of this discrepancy. The witness denied that he stated this and maintained that all three of his brothers were shot.
- Karangwa testified under cross examination, that he left Musambira immediately after his brothers were killed and when he was asked whether he buried is brothers, his response was that he did not have the time to do so. The Defence Counsel pointed out that the witness had stated in his written statement that he had buried his brothers near the house of Laurent Kamondo and requested the witness to explain this discrepancy. The witness denied this and maintained that his brothers were buried by Laurent Kamondo.
Testimony of Witness S
- Witness S testified that he is a Hutu farmer. In April 1994, he lived in the commune of Musambira. There was safety and security in Musumbira even after 6 April 1994 when the President’s plane had crashed but this had changed on 19 April 1994. Witness S was in his house on 19 April 1994. In the morning of the same day, between 9am and 10 am, Ephrem Karangwa’s wife, sisters and mother went to Witness S’s home. Witness S spoke to these people on their arrival and they had informed him that killings had begun in the Taba commune and many people were leaving their homes and fleeing.
- Witness S testified that Ephrem Karangwa arrived at his home between 11 am and 12 noon on the same day. On his arrival, his wife, mother and sisters immediately left for Kabgayi. Witness S spoke to Ephrem Karangwa who also informed him that killings had began in Taba. Witness S stepped out of his house and he stated that when he looked in the direction of Taba he could see columns of smoke. Witness S stated that Karangwa left saying that he was waiting for his brothers and on their arrival they would set off for Kabgayi to join the rest of their family.
- Witness S testified that Ephrem Karangwa’s three brothers arrived at his house between 4 and 5 o’clock in the afternoon of 19 April 1994. The three brothers went into the witness’s home and asked for their mother and sisters. Witness S informed them that they had already left. He also informed them that Ephrem Karangwa was waiting for them but that he did not know where. The witness said that the three brothers were wearing civilian clothes and they did not have any weapons in their possession. The three brothers together with Witness S went into the house. Whilst in the house, the witness heard the sound of cars. The three brothers went behind the house. Witness S went into the front court yard and he saw the motor vehicle that belonged to the commune of Musumbira. The witness described this motor vehicle as a red dual cab Hilux “pickup”. Witness S then saw the bourgmestre of Musumbira, Justin Nyangwe and the assistant
bourgmestre, Martin Kalisa, on the path that led to his house. He also saw the Accused with the assistant bourgmestre of Taba and a few police officers. Witness S did not know all the police officers that were in the group but he recognised them as police officers by the fact that they were wearing police uniforms and they were in possession of firearms. The witness recognised two of these police officers as being from the commune of Musambira. He did not know or recognise the other people in the group. These people were wearing civilian clothes.
- Witness S testified that he had known the Accused before the events of April 1994. When the witness visited Ephrem Karangwa at his office in the bureau communal, he often saw the Accused. According to Witness S, the Accused was wearing a long military jacket and he had a grenade in his hand. Witness S’s father was also in the group of people that came to his house and the witness noticed that his father was injured in his face and he was bleeding. By this time this group of people had arrived and were standing about three metres away from the house. Witness S’s father said to him if Ephrem Karangwa was in the house he should hand him over or else they will be killed by this group of people. The Accused at this time was standing next to the bourgmestre of Musambira. The bourgmestre of Musambira asked Witness S if Ephrem Karangwa was
in the house. According to the witness he responded by saying that he was not in the house and invited the bourgmestre to search the house if he so wished. The assistant bourgmestre of Musumbira, Martin Kalisa, together with two police officers from Taba searched the house. Witness S was not allowed into the house whilst the search was being conducted and he stood outside. The Accused during this search ordered the police officers to surround the house, to prevent Ephrem Karangwa from running away. By this time many people from the general population of Musambira had gathered to see what was going on and they also acted on the Accused’s instruction and surrounded the house.
- Witness S testified that the people searching the house did not find Ephrem Karangwa. Instead they came out with some cans of sardines and Accused the witness and his family of being “Inyenzi”. At this time Ephrem Karangwa’s brothers were behind the house with the witness’s sister. The witness said he did not see this but he was informed by his sister that the brothers fled. The police officers blew their whistles and said stop these “Inyenzi” from running away and a group of people pursued the three brothers.
- Witness S testified that he heard people shouting “…stop that Inyenzi…” About ten minutes later, the mob of people returned with the three Karangwa brothers. According to Witness S, they had been beaten and although he did not see the beatings he saw the injuries sustained as a result of the beating. The brothers had certain open wounds that were bleeding and their clothes were torn. The three brothers were made to sit on the lawn about two metres from the entrance to the court yard, in the presence of the Accused. The bourgmestre of Musambira, Justin Nyangwe asked the Accused if he knew these three brothers. The Accused replied that they were from his commune. Justin Nyangwe then asked the Accused what must be done with them and the Accused responded by saying “we need to finish these people off…” and he confirmed this response by saying, they need to be shot. The police officers from Musambira made the
three brothers lie on their stomachs. There was a crowd of people that had now gathered and they were asked to step back. All three brothers were shot at close range behind their heads, by two police officers from Musambira. Monzatina (phonetic spelling) shot two of the brothers and Albert shot one of the brothers.
- Witness S testified that he and his family were told by Justin Nyangwe, the bourgmestre of Musambira, to get into the commune motor vehicle. Whilst they were being taken, Witness S heard people say that they were going to destroy his home because he and his family were “Inyenzi”. The Accused and a group of people got into their motor vehicle and drove in the direction of Taba. The motor vehicle that Witness S was in started to move first and as it passed the motor vehicle of the Accused, the witness could see a person tied in the Accused’s motor vehicle. Witness S and his family were taken to the bureau communal of Musambira where they were detained. He later managed to escape, but his three sisters were killed.
- Under cross-examination, Witness S testified that he met the Accused when he went to the bureau communal in Taba to visit Ephrem Karangwa who worked as an IPJ in the commune. He often visited Ephrem Karangwa at the bureau communal. Witness S also met the assistant bourgmestre of Taba, although he did not know his name.
- Witness S testified that before the Accused came to his house he went to his grand father’s house and that was where he found Witness S’s father. On arrival at Witness S’s house, the Accused parked his motor vehicle on the tarred road and the bourgmestre of Musumbira parked his motor vehicle outside Witness S’s house. Witness S was sitting inside his house at this time and he heard the sound of the engine of this motor vehicle the bourgmestre of Musambira travelled in, which was approximately 25 metres away from the house. The motor vehicle the Accused travelled in was approximately three to four hundred metres away on the tarred road. Witness S reiterated that he did not hear the sound of the engine of the Accused’s motor vehicle but rather that of the motor vehicle the bourgmestre of Musumbira travelled in. Witness S realised that the Accused was looking for Ephrem Karangwa when the bourgmestre of Musumbira asked if Ephrem Karangwa was there and also when his father asked him to hand over Ephrem Karangwa to the Accused if he was in the house.
- Under cross-examination Witness S confirmed that he had made a statement to the Prosecutor of Gitarama. This statement was tendered into evidence by the Defence as part of exhibit 104. Witness S stated that this statement did not pertain to the Accused but rather to the former bourgmestre of Musumbira, who was now in prison as a result of his conduct as mentioned in this statement. Witness S stated that he was asked specific questions about the bourgmestre of Musumbira. The Defence Counsel pointed out to Witness S that this statement mentioned that the Accused was with Kalisa Martin, the bourgmestre of Musambira and Justin Nyandwi. Witness S recalled that he had mentioned the Accused’s involvement in respect of the killing of the Karangwa brothers to the Prosecutor of Gitarama but this was omitted from this statement.
- Witness S testified under cross-examination that he saw the Accused with a grenade in his hand. He recognised this item in the Accused’s hand as being a grenade because he saw soldiers with it before the war. Defence Counsel pointed out to Witness S that in his statement to the investigators at the Office of the Prosecutor he stated that the Accused came to his house with a gun and a grenade, whilst in his evidence in chief before the Chamber the witness testified that the Accused only had a grenade. Witness S denied making this statement to the investigators and maintained that he had only seen the Accused with a grenade.
- Witness S testified that police officers in Musambira normally used whistles to indicate that the market was closing. Whistles were also used when there was a security problem in the region. He stated that the Karangwa brothers were chased by the people because at that time there was a search of homes for hidden people. The Police Officers blew their whistles and shouted “catch these Inyenzi, don’t let them get away”. The people immediately chased after the Karangwa brothers. The witness stated that the people acted in this manner because it was an order from the authorities. The people generally followed orders given by the authorities even if the order leads to any wrongful conduct. Defence Counsel pointed out that the Karangwa brothers were not armed and they did not pose any threat to the people of Musambira and despite this they were assaulted by the mob of people chasing them, even though they were not ordered to do so. This illustrated that the people committed wrongful acts even if they were not ordered to do so. Witness S did not tender an explanation in response to this issue raised by Defence Counsel.
The Testimony of Witness DAX
- Witness DAX testified on behalf of the Defence. He stated that he knew Ephrem Karangwa and they are friends. He also knew Ephrem Karangwa’s family. He stated that he did not hear anybody say that Ephrem Karangwa was to be killed or that someone was attempting to kill Ephrem Karangwa. Witness DAX testified that he had heard of the destruction of Ephrem Karangwa’s house and the killing of his brothers. The witness had heard that Ephrem Karangwa’s brothers were making their way to Kabgayi when they were killed in Kivumu in the Nyakabunda Commune (phonetic spelling). The witness stated that the Interahamwe were responsible for the deaths of the Karangwa brothers. The witness stated that he had since met Ephrem Karangwa several times in Kigali and although they did not discuss the details of his brothers death, the witness offered his condolences to Ephrem Karangwa.
- Witness DAX testified that on 19 April 1994, Ephrem Karangwa’s house was destroyed by neighbours. He stated that in a poor country like Rwanda it is difficult for a rich person to stay with poor neighbours. It was the Abaghi family, more specifically a person called Gahibi who destroyed the Karangwa house. A person named Gasimba Daniels, who was an enemy of Ephrem Karanga also participated in destroying the Karangwa house. Gasimba Daniels had purchased and distributed the petrol to the neighbours of Ephrem Karangwa, for the purpose of destroying Ephrem Karangwa’s house. This petrol was used to set Ephrem Karangwa’s house on fire. A certain person
known as Usuri (phonetic spelling) also participated in destroying Ephrem Karangwa’s house. The witness stated that he knew all the people responsible for the destruction of Ephrem Karangwa’s house and the Accused was not involved.
- Witness DAX admitted under cross-examination that he did not see Ephrem Karangwa’s house being destroyed but he had spoken to the people responsible for such destruction immediately after the house was set on fire. He observed that they were carrying doors that they had removed from Ephrem Karangwa’s house and they were boasting about their actions.
The Testimony of the Accused
- The Accused testified that on 19 April 1994 at about 4 o’ clock in the afternoon, he went to Musambira. He stated that the bourgmestre of Musambira promised to give him some fabric that he had intended to use to make a uniform for the new police officer he had employed. The Accused also stated that on 20 April 1994 he went to Kabgayi. He said that his reason for going to Kabgayi was to see one Kayibanda Alfred to ask him for shelter because he thought about fleeing. The Accused said that he saw Ephrem Karangwa’s sister at Kabgayi. She greeted the Accused and he did the same. The Accused said that when he saw Karangwa’s sister he realised that Karangwa was in Kabgayi. The Accused said that Karangwa abandoned him during the events of 1994. He stated that he had written to Karangwa on two occasions during the events of April 1994 and Karangwa had failed to respond. The Accused also stated that during the events of 1994 he saw Karangwa at Kamonyi. On this occasion he had spoken to Karangwa and asked Karangwa why he had abandoned him. That was all the Accused said in his testimony that was relevant to the allegations in paragraph 18 of the Indictment.
- The Chamber finds that on 19 April 1994, the Accused was searching for Ephrem Karangwa. At approximately 1am, on that day, Karangwa received a report that at a meeting led by the Accused, plans were made to kill him and other Tutsi. Karangwa’s evidence that the Accused was in pursuit of him and his family, is corroborated by many witnesses. Witnesses V, E and Z were present at the meeting in the morning of 19 April 1994 at Gishyeshye, addressed by the Accused, when Karangwa’s name was mentioned as being on a list of people to be killed; and the Accused named the IPJ as working with the RPF and told the people to look for him. Witness V reported this meeting to Karangwa, later in Kabgayi. Witness V saw the Accused in Kabgayi twice and on one of these times, on 20 April 1994, the Accused asked him to find Karangwa and bring Karangwa to him. Witness K, in the morning of 19 April 1994, saw the Accused get into his vehicle at the Bureau Communal and instruct others to also get in so that Ephrem Karangwa would not escape them. Witness KK also heard the Accused refer to Tutsi and Ephrem Karangwa and say, “we now have to hunt them and kill all of them”. Defence witness DCC confirmed under cross-examination that the Accused had wasted no time in pursuing Ephrem Karangwa
- Karangwa and his family left their house and went into hiding. His sisters, mother and wife went to his wife’s sister’s house in Musambira and he and his brothers hid on a hill opposite his house. Karangwa saw the Accused arrive at his house on the morning of 19 April 1994 in a blue Toyota Hiace mini bus, accompanied by men in two other Toyota vehicles, one red and the other white. The Accused was wearing a military jacket. A gun was fired which frightened the dogs away. The houses of Karangwa and his mother were burnt and looted. The Accused and the group of people then left. The fact that the Accused was wearing a military jacket during this time is corroborated by other witnesses. Witness S saw him in that military jacket later that day; Witness V saw him at Kabgayi on 20 April 1994 in the military uniform of the Rwandan army; defence Witness DAAX saw the Accused in a military jacket and warned him against it’s use. Defence witness DFX confirmed that the Accused wore a soldier’s shirt. The Accused testified that he wore a military jacket in May, given to him by a colonel of the Rwandan army.
- Karangwa hid on a hill approximately 80 metres from the house of witness S in Musambira, to await his brothers. The Accused, together with the bourgmestre of Musambira, a police officer named Emanuel Musumba and others arrived in two motor vehicles that were blue and red in colour. Karangwa heard shouts and whistles, and thereafter saw his brothers in the courtyard with these people. He heard the Accused say that his brothers must be shot and he heard gun-shots. His three brothers whom he names in his written statement to the prosecutor as; Simon Mutijima, Thadee Uwanyiligira, and Jean Chrysostome were shot dead.
- Karangwa fled to Kabgayi where the Accused continued to look for him. Witness V told Karangwa that the Accused was looking for him in Kabgayi and he himself saw the Accused on two occasions and evaded arrest. Karangwa remained in Kabgayi from 21 April to 21 June 1994. In cross-examination the witness denied various statements attributed to him in his written statement to the prosecutor and adhered to his testimony before the Chamber. He re-affirmed that he had not seen the shooting of his brothers but heard the Accused give the order that they be shot, and the fact that he was there made him responsible for their deaths.
- The Defence Counsel submitted that because of the uncertainties and inconsistencies in the evidence before the Chamber on how the Karangwa brothers were killed and more specifically what weapons were used, material averments in respect of this allegation were not proved.
- The Defence Counsel cross-examined Karangwa on the discrepancy between his evidence that his brothers were shot and his prior statement to the Office of the Prosecutor that two of his brothers died from injuries sustained from machete blows. Karangwa denied stating this to the Office of the Prosecutor and reaffirmed his testimony that all three of his brothers were shot. This explanation was not subjected to further cross-examination by Defence Counsel.
- As noted else where, the Chamber places greater reliance on direct testimony rather than untested prior statements made under variable circumstances. The Chamber accepts
Karangwa’s explanation for the inconsistent prior statement and notes that his evidence that his brothers died of injuries inflicted by gun shots is consistent throughout his testimony and is corroborated by the testimony of witness S.
- The Chamber finds that Karangwa gave a truthful account of events actually witnessed by him and that he did so without exaggeration or hostility. The Chamber is satisfied that the witness could reasonably have seen and heard the matters to which he testified. Witness S confirmed Karangwa’s evidence in all material respects. Karangwa’s three brothers came to Witness S’s house on the afternoon of 19 April 1994. They were not armed and wore civilian clothes. They heard vehicles and the brothers hid behind the house. A red Hilux “pick-up” belonging to the commune of Musambira was outside his house. A group of people came to his house; among them was the bourgmestre and assistant bourgmestre of Musambira, the Accused, whom he knew as the bourgmestre of Taba, the assistant bourgmestre of Taba, men in police uniforms carrying firearms, two of whom he knew as police from Musambira, and civilians.
- The Accused held a grenade in his hand. The Chamber notes that this is in contradiction to Karangwa’s observation that the Accused carried a gun. While it is clear from both their testimony that the Accused held a weapon in his hand, Witness S’s identification thereof is more reliable, as he was in close proximity to the Accused in the courtyard of his house.
- Witness S’s house was searched by the assistant bourgmestre of Musambira and two policemen from Taba. During the search, the Accused ordered the police to surround the house to prevent Karangwa escaping. People from Musambira also acted on this instruction.
- The brothers of Karangwa tried to flee, and the police officers blew their whistles and said stop those “Inyenzi” from running away. A mob of people took up the call, chased after the brothers and brought them back. The brothers were bleeding from open wounds and their clothing was torn. They were made to sit on the ground about 2 metres from the entrance to the courtyard. The bourgmestre of Musambira asked the Accused if he knew the men and what should be done with them. The Accused said they came from his commune and said we need to finish these people off-they need to be shot. All three brothers were then shot dead at close range in the back of their heads by two policemen from Musambira, in the Accused’s presence.
- After the killing, the Accused and his group drove off in the direction of Taba. Witness S saw a person tied up in the Accused’s vehicle. Witness S and his family were detained at the bureau communal in Musambira, from where he later escaped. In cross- examination, the witness confirmed his direct testimony and he explained that he had omitted to give an account of the Accused’s’s involvement , in his statement to the prosecutor of Gitarama because he was asked specific questions related to the bourgmestre of Musambira. The chamber finds this to be a reasonable explanation and accepts the direct, eye-witness testimony of Witness S on these events and rejects the hearsay evidence of defence witness DXX.
- The Accused confirmed his presence in Musambira on the afternoon of 19 April
1994 and in Kabgayi on 20 April 1994 ,but offered explanations for his appearance that are beyond belief, in the light of overwhelming testimony to the effect that he was at that time in hot pursuit of Karangwa. The defence did not specifically address allegations, and failed to challenge the evidence of witnesses S, Karangwa and others on material issues, such as his hunt for Karangwa, orders to look for Karangwa and other tutsi to be killed, his presence at the houses of Karangwa and witness S, his carrying of a grenade and his participation in the killing of the Karangwa’s brothers by ordering their deaths and being present when they were killed.
- The Chamber has not found any evidence that the Accused blew the whistle to alert local residents to the attempted escape of the brothers but finds as proven beyond a reasonable doubt that the Accused was present at both houses, that he was searching for Karangwa, that the houses of Karangwa and his mother were destroyed in his presence by men under his control, that he went to search the house of Karangwa’s brother-in-law in Musimbira and found Karangwa’s brothers at this house, that he participated in the killings of the three brothers, named, Simon Mutijima, Thadee Uwanyiligira, and Jean Chrysostome Gakuba, by ordering their deaths and being present when they were killed by policemen, under the immediate authority of the Accused as bourgmestre of Taba commune and in response to his order made to the bourgmestre of Musambira.
5.2.4. Paragraph 19 and 20 of the Indictment
The Events Alleged
- Paragraphs 19 and 20 of the Indictment read as follows:
- On or about April 19, 1994, Jean Paul Akayesu took 8 detained men from the Taba bureau communal and ordered militia members to kill them. The militia killed them with clubs, machetes, small axes and sticks. The victims had fled from Runda commune and had been held by Jean Paul Akayesu.
- On or about April 19, 1994, Jean Paul Akayesu ordered the local people and militia to kill intellectual and influential people. Five teachers from the secondary school of Taba were killed on his instructions. The victims were Theogene, Phoebe Uwineze and her fiance (whose name is unknown), Tharcisse Twizeyumuremye and Samuel. The local people and militia killed them with machetes and agricultural tools in front of the Taba bureau communal.
- For his alleged participation in the acts described in paragraphs 19 and 20, Akayesu is charged under seven counts, namely:
Count 1, Genocide, punishable by Article 2(3)(a) of the Statute of the Tribunal;
Count 2, Complicity in Genocide, punishable by Article 2(3)(e) of the Statute of the Tribunal;
Count 3, Crimes against Humanity (extermination), punishable by Article 3(b) of the Statute of the Tribunal;
Count 7, Crimes against Humanity (murder), punishable by Article 3(a) of the Statute of the Tribunal;
Count 8, Violations of Article 3 common to the Geneva Conventions, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal;
Count 9, Crimes against Humanity (murder) punishable by Article 3(a) of the Statute of the Tribunal; and
Count 10, Violations of Article 3 common to the Geneva Conventions, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal.
- The Chamber noted, during the presentation of evidence in this case, that the events alleged occurred during a distinct period on or about 19 April 1994 at the bureau communal. Consequently, both paragraphs will be treated together.
- A number of specific acts can be identified in the events set out in paragraphs 19 and 20. It is alleged, as pertains to paragraph 19, firstly, that Akayesu took eight refugees from the bureau communal, secondly, that he ordered militia members to kill them, thirdly, that the refugees were consequently killed with clubs, machetes, small axes and sticks, and fourthly, that the victims had fled from Runda commune and had been held by Akayesu. As regards paragraph 20, firstly, Akayesu is accused of having ordered local people and militia to kill intellectual and influential people, and secondly, five teachers, named in the Indictment, from the secondary school of Taba were killed on his instructions by the local people and militia with machetes and agricultural tools in front of Taba bureau communal. With these specific allegations in mind, the Chamber shall proceed in determining whether the participation of the accused in the events enunciated in paragraphs 19 and 20 of the Indictment has been proved beyond reasonable doubt.
- The first witness to appear for the Prosecutor to testify in relation to the events alleged in paragraphs 19 and 20 was Witness K, a Tutsi woman, married to a Hutu, who was an accountant/cashier at the bureau communal in Taba from 1990 until 1994. She had worked under the authority of Akayesu whilst he was bourgmestre of the commune at the time of the events alleged in the Indictment. Witness K testified as follows.
- On 19 April 1994, between 9h00 and 10h00, she had gone to the bureau communal following a demand from Akayesu who requested her services as the accountant/cashier of the commune. On arriving that morning, she encountered the accused, whose mood appeared to have changed, outside the bureau communal. She said he spoke to her harshly, asking her why she was no longer coming to work. Witness K told him she was scared, and that she had come to the bureau communal on this occasion only because he had asked her. She said Akayesu then told her that she would know why she had come.
- After this exchange, witness K, who was still standing next to the accused, testified that Akayesu called over a certain Etienne, and instructed him to bring the youths’. She saw Etienne drive off in the direction of Remera, and return with a number of youths’ who were armed with traditional weapons, such as machetes and small axes69. Witness K said they all gathered close to Akayesu who told them “Messieurs, if you knew what the Tutsi who live with you are doing, I inform you that what I heard during the meeting is sufficient. Right now, I can no longer have pity for the Tutsi, especially the intellectuals. Even those who are with us, those we have kept here, I want to deliver them to you so that you can render a judgment unto them”70. The witness said Akayesu then proceeded to release the refugees from Runda held in the communal prison, and handed them – with the words here they are’ – to the Interahamwe, whom she also called the killers’.
- Witness K affirmed that there were eight refugees, all men, three of whom she personally knew to be Tutsi. She explained that they did not have their hands tied and that they all looked fine. She said the Interahamwe escorted the eight refugees to the fence of the bureau communal, where they were made to sit on the ground, in a line, their backs to the fence and their legs straight out in front of them. According to the witness, the refugees pleaded for mercy as the Interahamwe prepared to kill them. Witness K testified that Akayesu then said “Do it quickly”, at which point they were killed rapidly by a large group of people who used whatever weapon they had on them.
- After the eight refugees had been killed, witness K said she heard Akayesu instruct a communal policeman to open the communal prison and release the persons who had been imprisoned for Common law offences so that they could bury the dead refugees. She said the persons who had been released from the prison by Akayesu put the bloody bodies of the victims onto a wheelbarrow and took them away to be buried.
- Witness K testified she heard Akayesu tell those present to fetch the one who remained. She said this person was a professor by the name of Samuel. Witness K said that they fetched him and she saw him being killed with a machete blow to the neck.
- According to the witness, Akayesu then gave instructions for the release of all those who had broken the law, and told them to go into the hills with their whistles so as to sensitize the youth. Witness K understood this to mean go to your sectors, increase public awareness of the population and kill with them. Witness K testified she heard the accused tell the killers’ that she would be killed after she had been interrogated about the Inkotanyi secrets. She said Akayesu put her into her office, took her keys and locked her up. The witness said she saw Akayesu get into a car, instructing others to also get in so that Ephrem Karangwa wouldn’t escape them
- Witness K said she had other keys on her person, thus enabling her to access the meeting room in the bureau communal from where she was able to see the events occurring outside. She testified she saw many people being brought to the bureau communal and killed, some of the victims only making it as far as the front of the entrance of the bureau communal before being killed. According to the witness, amongst
those killed were professors from Remera school. She said the bodies of the victims, even those still alive, were put into wheelbarrows and taken for burial.
- When questioned about the use of whistles, Witness K said she saw persons go behind the bureau communal to get a professor who lived there. She said that these persons used whistles so as to terrorize this professor, and to attract the attention of others nearby.
- Pursuant to a question from the Chamber as to the killing of teachers, witness K stated she was unsure how many were killed, but that she knew the names of some of them, Theogene, Tharcisse, a woman called Phoebe (the gerante of Remera secondary school), and her fiance whose name she didn’t know. She explained that the woman was killed because it was alleged a radio for communicating with the Inkotanyi had been found at her house. She further stated that the true reason for the killings of the teachers and the refugees was because they were Tutsi.
- Under cross-examination, questioned about where the teachers she saw being killed had come from, witness K stated that some of the teachers had been brought from the direction of Remera and another from behind the bureau communal. Asked if Akayesu was then still present, she stated that she had explained that Akayesu wasn’t present when the actual killings of the professors took place. She reasserted being next to Akayesu when he gave the order to kill the teachers.
- Under cross-examination, witness K further testified she had heard the refugees had been locked up in the prison of the bureau communal by Akayesu at the request of the bourgmestre of Runda, but that she hadn’t heard whether this bourgmestre had asked for these refugees to be killed. She said she had found out the refugees were from Runda by speaking to at least two other individuals from Runda whom she knew. The witness testified not knowing why exactly the refugees had been locked up in the communal prison, but was adamant they had been killed because of their Tutsi ethnicity. Witness K also confirmed that she was next to Akayesu at the bureau communal when he gave the instructions to fetch the youths/Interahamwe and that she heard Akayesu order the killing of the refugees from Runda.
- Witness KK for the Prosecutor, a Hutu woman married to a Tutsi and residing in Taba commune in 1994, also testified in relation to the events alleged in paragraphs 19 and 20. She said that shortly after April 6 1994, the houses of Tutsi including her own were pillaged, and that she sought refuge at the bureau communal with her Tutsi husband and nine children. She said many refugees came to the bureau communal, but that they were treated differently depending on their ethnicity. According to the witness, the atmosphere changed a few days later with the arrival of a number of Interahamwe from Remera. She said the Interahamwe addressed the refugees in the presence of Akayesu in front of the bureau communal. According to witness KK, the Interahamwe stated that they had uncovered a Tutsi plan to kill the Hutu, but as their God was never far, and because they had discovered the plan, they were going to put the Tutsi where the Tutsi had planned to put the Hutu.
- According to the testimony of witness KK, Akayesu then went to his office. On his return, she asserted he was angry and brandished a document which he read to the refugees, by saying “We lived with Tutsi, there was a hatred between us. The IPJ, Karangwa Ephrem had planned to kill me so that he could replace me in my function as bourgmestre. We now have to hunt them and find all of them”71. The witness testified Akayesu continued by talking of a landmine planted by the Tutsi that had exploded at the primary school. This landmine, she heard the accused state, was the beginning of the planned killings of Hutu. She said the accused then stated that as schoolchildren of all ethnicities were in this school, when the explosion happened, it was aimed at all Rwandans.
- Witness KK testified Akayesu said further “there are many accomplices in our commune. There is an accomplice who is to be found behind the bureau communal, who is called Tharcisse. He was a professor”72. She said Akayesu then told the policemen and Interahamwe to fetch him. The witness saw Tharcisse and his wife being made to sit in the mud. She said the wife was undressed and told to go and die elsewhere. She also heard Akayesu ask Tharcisse for information on the Inkotanyi.She said Tharcisse replied “do what you will because I know no secrets”. She testified Tharcisse was killed by the Interahamwe on the road outside the bureau communal. She testified Akayesu was standing near to where the victim was sitting.
- Witness KK said she also heard Akayesu order the Interahamwe to bring the teachers who taught in Remera, and say that the intellectuals were the source of all of the misery. She testified that she saw the Interahamwe return very angry with the teachers. She saw the teachers, the number of which she was unsure of being made to sit in the mud on the road outside the bureau communal, where Tharcisse had been killed. According to the witness, it was alleged that these teachers had communicated by radio with Inkotanyi. Witness KK said a young couple who were soon to be married was killed first. She said that all the teachers were killed on the road in front of the bureau communal with little hoes and clubs and that she had heard it being stated that to kill them with a bullet or grenade would be inflicting a less atrocious death. The witness added that no one could ask for help because Tutsi were not allowed to live in Taba commune. She said the bodies of the teachers were then taken to makeshift ditches, and covered in earth and grass. According to witness KK, some of the teachers were still breathing when buried.
- Under cross-examination, witness KK asserted that no teachers had taken up refuge at the bureau communal, but that the massacres had started with the killing of the teachers. The Defence attempted to discredit the witness by raising doubts as to the various dates she spoke of during her testimony, however she explained that considering all that happened to her in April 1994, it was very difficult for her to remember with certainty the specific dates. She also confirmed never having seen Akayesu kill anyone himself, save that it was he who ordered the killings which took place before his eyes.
The case for the Defence
- Witness DCC for the Defence, detained in Rwanda at the time of his appearance before the Chamber, was a driver at the Taba bureau communal from 1 July 1993 until the events in 1994. During his examination-in-chief, he stated that he had not heard of Akayesu being an anti-Tutsi in the month of April, 1994. He also testified he came every day to the bureau communal during the massacres. During cross-examination, he added he had seen a substantial number of persons being killed at the bureau communal. According to the witness, the bodies of those killed were taken next to the primary school, however he said he never personally witnessed any burials of cadavers because he was not part of the people who took the bodies away. He maintained this statement even though he testified that he walked past the school every day on his way home. The Chamber notes thereupon, that in answer to questions put to him by the Chamber, pertaining to there being mass graves in the vicinity of the bureau communal, the witness said that he rarely went to the bureau communal during 1994 and that he had never seen any mass graves.
- Witness DCC testified that after 6 April 1994, refugees from Runda and Shyorongi started arriving at the bureau communal of Taba, where they were welcomed by the authorities and lodged in various premises. He said the refugees were all free and none were locked up in the prison. Witness DCC testified he saw Interahamwe on two occasions come to the bureau communal and kill people. On the first of these occasions, he said the Interahamwe were from Taba but that he did not personally see Akayesu. On the second of these occasions, he saw the Interahamwe from Runda with military personnel search the office of Akayesu after having forced him out of the bureau communal. He said the Interahamwe terrorised the people at the bureau communal and asked for identity cards. According to witness DCC, the Interahamwe took the Tutsi away to be killed. He also said that Akayesu did not have a good understanding with the Interahamwe who accused him at times of being an Inkotanyi as he was welcoming refugees at the bureau communal.
- Reference was also made by the Defence to the statement given by witness DCC to the Prosecutor73, in which he stated “What I know, Akayesu was only present at the commune office one time when four people were killed at the entrance of the office. Akayesu did not do anything about it. Akayesu knew that the killings of Tutsi took place in the commune. The killers were Interahamwe”. According to the witness, Akayesu did nothing to stop the Interahamwe because he was powerless to do so.
- During cross-examination, the witness asserted that he was 34 years old, that in
1994, he did not flee Taba or go to Uganda, and that he did not have knowledge of and never saw Akayesu searching for Karangwa. Witness DCC said he was arrested in Rwanda on 30 April 1996. The Prosecutor produced a report, “Witness to Genocide”, of an interview given by witness DCC to an NGO named Africa Rights74. Witness DCC confirmed speaking to a Human Rights Organization in 1996. The Prosecutor summarized extracts of the said document which stated that at the time of the interview, Witness DCC was 33 years old, that he had been recruited as the driver of the commune on 1 July 1993, that he had returned to Rwanda and was arrested on 30 April 1996. The Prosecutor read out another extract: “According to Akayesu’s driver, […] Akayesu lost no
time in pursuing Ephrem. On 19 April, Akayesu, assistant bourgmestre Mutijima and a communal policeman, Mushumba, went to Kamonyi to look for the IPJ of the commune, Ephrem Karangwa, saying that he was a great accomplice of the RPF. Akayesu and his team came back in the afternoon'”. Witness DCC confirmed that Akayesu had not wasted any time in pursuing Karangwa, but denied having spoken of Kamonyi, of Akayesu’s return or that Akayesu had called Karangwa an accomplice of the RPF.
- Witness DZZ for the Defence, a Hutu policeman in 1994 detained in Rwanda at the time of his appearance before the Chamber, testified manning barriers in the commune of Taba and guarding the bureau communal at the time of the events alleged. He said massacres had become widespread in the commune of Taba after 18 April 1994 and that he had heard of massacres at the bureau communal. He said he went to the bureau communal on a regular basis and manned a barrier nearby, but asserted that he did not personally witness any crimes at the bureau communal. He testified that he had not heard of Akayesu participating in the massacres, and that the accused had preached peace amongst the refugees. The witness said that Akayesu saved certain Tutsi, namely witness K and Karangwa, during the massacres. In his mind, they had been saved because, had Akayesu supported the killings, Akayesu would also have targeted Karangwa and witness K.
- Akayesu testified going to the bureau communal on 19 April 1994. On his arrival within the vicinity of the bureau communal, he said he saw the refugees running everywhere. In the courtyard of the bureau communal, according to Akayesu, the Interahamwe were killing the refugees who had fled from Runda and Shyorongi. He said he parked the car and saw the cashier, witness K. Akayesu said he was perplexed at seeing her and wondered from where she had come. He testified that he called out to her, ordering her to go into her office. He said he had to stop someone with a machete from attacking her and subsequently escorted her personally into the office of the bureau communal. According to Akayesu, he went back into the courtyard and saw refugees who had been killed, and noted that others had managed to escape. However, at a later stage during his examination-in-chief, when asked whether anyone had ever been killed in the courtyard of the bureau communal, Akayesu stated that when he was at the bureau communal or when there had been Interahamwe attacks during his absence, no one had been killed in the courtyard. After these events, Akayesu said he departed with the communal police in the direction of Mbizi, consequent upon receiving information that some of the killers had gone to Mbizi.
- During cross-examination, the Prosecutor presented tape recordings of interviews of Akayesu carried out by the Office of the Prosecutor on 10 and 11 April 1996 in Zambia75. The Prosecutor questioned the credibility of Akayesu’s testimony before the Chamber regarding answers he had given about the refugees at the bureau communal on 18, 19 and 20 April 1994. During his testimony, Akayesu stated he was unable to distinguish intellectuals from the rest of the refugees on the basis that there was no criteria to make it possible to tell an intellectual apart from other persons. However, in the said interviews, the accused said he was surprised not to have seen intellectuals of the commune amongst the refugees who, in his opinion, appeared to be farmers, old women,
children, and old people. The Chamber questioned Akayesu as to the differences in the answers given in court, on the one hand, and before the Office of the Prosecutor, on the other. Akayesu said he had not seen anyone who could be categorized as an intellectual/teacher, but that he was able to find out by speaking with the refugees whether or not there were any intellectuals/teachers amongst them.
- Furthermore the accused confirmed that in the context of the events in 1994, had he told the population to fight the enemy, this would have been understood as meaning fight the Tutsi. He also asserted not having control of the population after 18 April 1994. He said witness KK was at the bureau communal on 19 April 1994. Questioned as to the killings at the bureau communal on 19 April 1994, Akayesu said he did not see anyone killed with a machete because he was in the courtyard of the bureau communal attending to witness K. Akayesu added that he never saw any bodies either outside or inside the perimeter of the bureau communal and never went behind the primary school. Further, Akayesu testified never personally seeing cadavers save for the bodies of two dead children in his sector. In answer to questions on the fate of the schoolteachers whom he said he knew, Akayesu stated only hearing of their killings near the bureau communal three days after their deaths.
- In support of its case, the Defence recalled that at least 19 witnesses in this case had never seen Akayesu either personally kill or order killings, and that only one witness, witness K, had been called to testify in relation to the events in paragraphs 19 and 20 of the Indictment. The Defence questioned the credibility of witness K on the grounds that Akayesu, during the said interviews of 1996, had cited this particular witness as a potential defence witness. If witness K had really lived through all the events she testified on, argued the Defence, why would Akayesu have named her as a defence witness.
- The testimonies of witnesses K and KK evidenced, on the one hand, events which both K and KK witnessed, and on the other hand, events that only one of the two had witnessed. The Chamber recalls that the requirement of corroboration of a witness’ testimony unique to certain events, i. e. the principle of unus testis nullus testis, is not applicable under the Rules of the Tribunal76. The Chamber found both witness K and witness KK to be credible. Their testimonies were not marked by hostility and were confirmed under cross-examination. The Defence attempted to discredit witness KK on the basis of her inability to remember specific dates and times. However, the Chamber considers that these lapses of memory were not significant and an inability to recall dates and times with specificity – particularly in the light of the traumatic experience of this witness – is not by itself a basis for discrediting the witness77.
- Further, the Defence contested the credibility of witness K on the premise that Akayesu had indicated to the Prosecutor in April 1996 that she was a potential defence witness. The Chamber finds this to be a mere affirmation by Akayesu of his intent to call a certain witness, and that it does not constitute a defence per se as to the allegations contained in paragraphs 19 and 20 of the Indictment. Further the Defence claimed the
Prosecutor had called only one witness in respect of the events alleged in the said paragraphs. In light of the testimonies of two witnesses, namely K and KK, the Chamber finds the latter to be an erroneous submission by the Defence.
- In view of the aforementioned, the Chamber finds the testimonies of witnesses K and KK both to be credible on their own, and that when dealt with together they offer sufficient correlation as to events, dates and locations for the Chamber to base its findings thereon.
- During their respective testimonies before the Chamber, both witnesses DCC and DZZ were evasive in answering questions in relation to the events alleged in paragraphs 19 and 20 of the Indictment. However, the Chamber notes that the reluctance of these witnesses in answering certain questions was limited either to their individual participation in the acts, or to events they had personally seen. The Chamber recalls that both witnesses DCC and DZZ were at the time of their testimonies, detained in prisons in Rwanda, hence it is understandable that neither wished to present self-incriminating evidence. The Chamber has considered the probative value of their testimonies in light of the above, and finds that the evasiveness and reluctance which punctuated their oral testimony reduced their credibility.
- Witnesses K and KK for the Prosecution, testified that they witnessed massacres at the bureau communal. Witness K specified seeing the massacres on 19 April 1994 at the bureau communal, and witness KK testified that the massacres started with the killing of teachers.
- Both witnesses presented by the Defence, witness DCC and DZZ, also testified that killings took place at the bureau communal. Witness DCC went to the bureau communal everyday during the events. He saw people, mainly Tutsi, being massacred by the Interahamwe and taken to be buried behind the primary school. Furthermore, the Defence presented as evidence the statement given by witness DCC to the Prosecutor78. The section quoted by the Defence clearly indicates that Akayesu was at the bureau communal when four people were killed at the entrance of the office and that he knew the killing of Tutsi was taking place in the commune. Questioned as to why Akayesu did nothing to stop these acts perpetrated by the Interahamwe, witness DCC said Akayesu was powerless to do so. The Chamber notes that the testimony of witness DCC supports the prosecution’s evidence that people were killed at the bureau communal, in the presence of the accused; and conflicts with Akayesu’s testimony that no killings took place at the bureau communal and that the only dead bodies he saw were those of two children
- Witness DZZ testified that he went regularly to the bureau communal but that he never personally saw any massacres or crimes he had heard of being perpetrated. He added that Akayesu never participated in the massacres and even preached peace amongst the refugees. He also affirmed that massacres in Taba had become widespread after 18 April 1994. However, the Chamber notes that for witness DZZ to stipulate on the occasions he went to the bureau communal he did not see any of the massacres, and
further that he had not heard of Akayesu’s participation in massacres, does not refute the specific allegations in paragraphs 19 and 20. Indeed, it is alleged killings occurred at the bureau communal in the presence and under the instructions of Akayesu. DZZ had heard there were massacres at the bureau communal but never personally witnessed any. The Chamber notes thereon that the defence presented by the testimony of witness DZZ supports the fact that there were massacres at the bureau communal but that it does not specifically address the events in the said paragraphs, as the witness was not present when the killings he had heard of took place.
- Akayesu admitted during his examination-in-chief that he saw massacres of refugees at the bureau communal on 19 April 1994. This is corroborated by the testimonies of witnesses DZZ, DCC, K and KK in relation to there being massacres at the bureau communal. The Chamber finds it has been proved beyond reasonable doubt that, firstly, there were refugees at the bureau communal and, secondly, that massacres did occur at the bureau communal on or about 19 April 1994.
- Akayesu confirmed under cross-examination that he was able to identify intellectuals, teachers being an example he put to the Chamber, from the rest of the refugees. Witnesses K and KK both stated that Akayesu ordered the killing of certain intellectuals and other refugees. The Defence did not specifically address these allegations. Under cross-examination, questioned as to these allegations, Akayesu said he never saw anyone killed in the courtyard with a machete because he was attending to witness K, that he never saw any bodies inside or outside the courtyard of the bureau communal and that he heard of the deaths of the teachers three days after their killings. The Chamber finds that the veracity of these answers can be doubted. Indeed, Akayesu affirmed himself during his examination-in-chief that, on 19 April 1994, he saw refugees being attacked at the bureau communal, and that he saw some killed and others escape. Further, the Chamber finds implausible the assertion that he heard of the deaths of the Remera teachers three days later. Witnesses, including himself, have placed Akayesu at the bureau communal on 19 April 1994. Akayesu testified to seeing and hearing of searches of various intellectuals in Taba throughout the day of 19 April 1994, yet he somehow did not hear of killings that took place at the bureau communal the same day. The Chamber cannot accept Akayesu’s assertion with regard to the killing of teachers. Further, the Chamber notes that Akayesu did not specifically contest the allegations that he ordered the militia and local population to kill intellectuals and influential people.
- As pertains to the allegations in paragraph 19, evidence set out above has demonstrated that refugees from Runda had been held at the bureau communal by Akayesu. Evidence has established that Akayesu told the Interahamwe he had sent for that “[…] he could no longer have pity for the Tutsi. Even those who we have kept here, I want to deliver them to you so that you can render a judgment unto them”. It has been demonstrated that he then ordered the release of the refugees and handed them over to the Interahamwe with the words here they are’. Evidence has demonstrated that these refugees were made to sit next to the fence of the bureau communal and that when they begged for mercy, Akayesu said to the Interahamwe do it quickly’. It has been established that immediately after Akayesu had said this, the refugees were killed in his presence, by persons nearby who used whatever weapons they had on them. It has been established that the refugees were killed because they were Tutsi.
- The Chamber finds that it has been proved beyond reasonable doubt that Akayesu released eight detained men of Runda commune whom he was holding in the bureau communal and handed them over to the Interahamwe. It has also been proved beyond reasonable doubt that Akayesu ordered the local militia to kill them. It has been proved beyond reasonable doubt that the eight refugees were killed by the Interahamwe in the presence of Akayesu. The Chamber also finds that it has been proved beyond reasonable doubt that traditional weapons, including machetes and small axes, were used in the killings, though it is has not been proved beyond reasonable doubt that sticks and clubs were used in the killings. It has been proved beyond reasonable doubt that the eight refugees were killed because they were Tutsi.
- Evidence has demonstrated that after the killing of the refugees, Akayesu instructed people near him to fetch the one who remained’, and that consequent to this instruction, a certain professor by the name of Samuel was brought to the bureau communal. It has been established that Samuel was then killed with a machete blow to the neck.
- Evidence has demonstrated that on or about 19 April 1994, Akayesu addressed refugees and Interahamwe in front of the bureau communal, calling for all Tutsi within the commune to be hunted and found. It has been established that Akayesu stated that there were accomplices in the commune, one of whom lived behind the bureau communal. It has been established that Akayesu cited a professor by the name of Tharcisse as the accomplice and ordered the Interahamwe and communal policemen to fetch him. Evidence has established that persons using whistles fetched Tharcisse and his wife from behind the bureau communal. Tharcisse and his wife were made to sit in the mud on the road outside the bureau communal, whereupon his wife was undressed and told to leave. It has been established that Akayesu asked Tharcisse for information on the Inkotanyi, after which the Interahamwe killed Tharcisse in the presence of Akayesu.
- Evidence has shown that Akayesu said to the Interahamwe that the intellectuals were the source of all the misery, and that he ordered the Interahamwe to bring the teachers from Remera. It has been demonstrated that a number of teachers from Remera school were brought to the road outside the bureau communal and killed with traditional weapons, including hoes and clubs. Evidence identified the victims to be Theogene and Phoebe Uwineze and her fiance.
- The Chamber finds that it has been proved beyond reasonable doubt that on or about 19 April 1994, Akayesu ordered the local people and Interahamwe to kill intellectual people’. It has been proved beyond reasonable doubt that, after the killing of the refugees, Akayesu instructed the local people and Interahamwe near him at the bureau communal to fetch the one who remains’, a professor by the name of Samuel, and that consequent to this instruction, a certain professor by the name of Samuel was brought to the bureau communal. It has been proved beyond reasonable doubt that Samuel was then killed by the local people and Interahamwe with a machete blow to the neck. The Chamber finds that it has been proved beyond reasonable doubt that teachers from the commune of Taba were killed pursuant to the instructions of Akayesu. The Chamber finds it has been proved beyond reasonable doubt that amongst the teachers who were killed were Tharcisse, Theogene, Phoebe Uwineze and her fiance. It has been proved beyond reasonable doubt that Tharcisse was killed in the presence of Akayesu. The Chamber finds it has been proved beyond reasonable doubt that the victims were all killed by local people and Interahamwe using machetes and agricultural tools on the road in front of the bureau communal. The Chamber finds that it has not been proved beyond reasonable doubt that Akayesu ordered the killing of influential people, nor that the victims were teachers from the secondary school of Taba.
- The Chamber finds that it has been proved beyond reasonable doubt that the teachers were killed because they were Tutsi.
5.3.1. Paragraphs 14 and 15 of the Indictment
- Paragraph 14 of the Indictment reads as follows: “The morning of April 19, 1994, following the murder of Sylvere Karera, Jean Paul Akayesu led a meeting in Gishyeshye sector at which he sanctioned the death of Sylvere Karera and urged the population to eliminate accomplices of the RPF, which was understood by those present to mean Tutsi. Over 100 people were present at the meeting. The killing of Tutsi in Taba began shortly after the meeting”.
- It is alleged that by the acts with which he is charged in this paragraph, the Accused is guilty of offences covered under four counts:
Count 1 of the Indictment charges him with the crime of genocide, punishable under Article 2 (3)(a) of the Statute;
Count 2 charges him with the crime of complicity in genocide, punishable under Article 2 (3)(e) of the Statute;
Count 3 charges him with the crime of extermination which constitutes a crime against humanity, punishable under Article 3 (b) of the Statute; and
Count 4 charges him with the crime of direct and public incitement to commit genocide, punishable under Article 2 (3)(c) of the Statute.
- The Chamber deems that, in order to derive clear and articulate factual findings regarding the acts alleged in paragraph 14 of the Indictment, it is necessary to consider, separately, the facts relating to:
firstly, the holding on the morning of 19 April 1994 of a meeting in Gishyeshye sector, alleged to have been attended by over 100 people and led by the Accused alone following the death of Mr. Karera;
secondly, the fact during that meeting, the Accused is alleged to have sanctioned the death of Sylvere Karera;
thirdly, the fact during that meeting, the Accused is alleged to have urged the population to eliminate the accomplices of the RPF, which was understood by those present to mean Tutsi; and
Fourthly, the killing of Tutsi in Taba is alleged to have begun shortly after the said meeting.
- With regard to the facts in paragraph 14 of the Indictment detailed as follows: “The morning of April 19, 1994, following the murder of Sylvere Karera, Jean Paul
Akayesu led a meeting in Gishyeshye sector. ( ) Over 100 people were present at the
- The Chamber finds a substantial disparity between the French and English versions of paragraph 14 of the Indictment. While in the French version it is said that ” Jean Paul Akayesu alone led a meeting,” the English version only indicates that “Jean Paul Akayesu led a meeting,’ without specifying whether he led the meeting alone. The Chamber is of the opinion that the French version should be accepted in this particular case, because the Indictment was read to the Accused in French at his initial appearance, because the Accused and his counsel spoke French during the hearings and, above all, because the general principles of law stipulate that, in criminal matters, the version favourable to the Accused should be selected. In the present case and in accordance with the French version of the Indictment, the Prosecution must not only establish that the Accused led the meeting, but also that he led it alone.
- The murder of Sylvere Karera, a teacher killed on the night of 18 to 19 April 1994, and the subsequent events, alleged under paragraph 13 of the Indictment, have already been discussed supra.
- Prosecution witness A testified that after he saw the remains of Sylvere Karera at the Remera school, he went to Gishyeshye on 19 April 1994, towards 6 or 7 o’clock in the morning, where he found a large gathering of 300 to 400 people at a crossroads. The witness stated that no one had convened the meeting but that it was rather a gathering of people attracted by the events. The crowd stood near to the body of a person identified as an Interahamwe from Gishyeshye, who was alleged to have killed Sylvere Karera. A small group of people, including the bourgmestre , the Accused, sector council members and four armed members of the Interahamwe, who could be identified by the MRND coat of arms on their caps, faced the crowd in such a way that enabled them to address it. The
sector councillors called on the crowd to pay attention to the speech by the . Witness A pointed out that the Interahamwe stood near a blue minibus in which the Accused had arrived, and that they seemed to have been escorting the latter, which was a surprise to the crowd.
- A Tutsi man, appearing as a Prosecution witness under the pseudonym Z, testified that on or about 19 April 1994, in the early hours of the day following the murder of a Tutsi teacher in Remera, the murderer of this teacher was killed by persons responsible for maintaining law and order. Witness Z and other people gathered around the body of the teacher’s murderer. The crowd Accused the Interahamwe present of having caused the death of the teacher. The Accused, who was armed, separated the rest of the population from members of the Interahamwe and then addressed the crowd.
- Prosecution witness V, a teacher in Taba for nearly 30 years, went to Gishyeshye sector where he attended a meeting, at the place where the body of a Hutu man lay. He confirmed that a meeting was then held on the road in Gishyeshye, in the presence of the Accused, who was carrying a gun, and who organized the said meeting. The witness estimated that it was attended by some 500 people. The people were standing in front of a house. The Accused himself stood in the middle of the road with the Interahamwe next to him, across the road from the people.
- Ephrem Karangwa, a Tutsi man, called as witness for the Prosecution, who, at the time of the acts alleged in the Indictment, was the Inspecteur de police judiciaire (Senior law enforcement Officer, criminal investigation department) of the Taba commune, testified before the Chamber that on 19 April, the Accused held a meeting in Gishyeshye sector.
- Men, who had gone to inquire after Sylvere Karera, told witness U that a person had been killed following the murder of Karera and that the Accused himself had gone to where the body was and held a meeting there.
- The holding of the said meeting was confirmed by the Accused himself, who told the Chamber during his testimony as witness, that at about 4 a.m., on the night of 18 to 19 April 1994, a certain Augustin Sebazungu, treasurer of the MDR in Taba and a resident of Gishyeshye sector, came to see him at the Bureau communal, where he had been sleeping, to inform him that the situation in Gishyeshye sector was tense, following the murder of a young man who was a member of the Interahamwe. The bourgmestre immediately alerted the police and went to the scene with two policemen, in a blue minibus. In Gishyeshye, he found a body stretched out on the ground, covered with traces of blood, as if it had been hit. The Accused affirmed before the Chamber that since people were coming to see what was happening, he took advantage of the fact that a crowd had gathered there to address the population. He noted that the Interahamwe of the region had flocked around the body of their young member. The Accused puts the crowd at the meeting at about 100 to 200 people, including Hutu and Tutsi, members of the Interahamwe, members of the MDR and probably other political parties. The Accused
admitted before the Chamber that he asked the crowd to draw closer, and then addressed the crowd, while the two policemen accompanying him stood behind him.
- In his closing arguments, the Defence counsel underscored that the Accused never convened the Gishyeshye meeting, but that a crowd had spontaneously gathered after a man had been killed. The Accused, as bourgmestre, reportedly found himself among the crowd thus assembled which included members of the Interahamwe.
- With regard to the facts in paragraph 14 of the Indictment detailed as follows:
” Jean Paul Akayesu (…) sanctioned the death of Sylvere Karera”
- According to Prosecution witness V, the Accused stated that Sylvere Karera died because he was working with the Inkotanyi. The bourgmestre further stated that the person whose body lay at the meeting place had been wrongly killed, but that Sylvere Karera had been justly killed. Under cross-examination by the Defence, witness V reiterated that the Accused stated that Karera had been killed because he was working with the Inkotanyi.
- Witness Z, a Tutsi man, testified that at the meeting which followed the murder of the Remera teacher, the Accused, who was armed, separated the rest of the population from the members of the Interahamwe and, speaking of the body on the ground, he reportedly deplored the murder of the person and stated that this person was dead and yet the enemy was still alive. According to witness Z, the Accused told the crowd that papers detailing Tutsi plans to exterminate the Hutu had been seized at the home of the teacher.
- The Accused told the Chamber, during his testimony, that he had inquired of the crowd standing around the body of the young Interahamwe, why the young man had been killed. The people gathered there, answered that he had looted and that he had been justly punished. The bourgmestre then stayed on to speak to the people, trying to explain to them that killing as a habit must stop and making them aware of the consequences. He condemned the murder of the young man because he felt that such was not a way of maintaining law and order, and explained that it would have been enough to arrest the young man. The Accused told the Chamber that he had asked Augustin Sebazungu why he, as a prominent figure and an educated man, had failed to stop the population from killing the young man, to which Sebazungu reportedly replied that there was nothing he could do.
- With regard to the facts in paragraph 14 of the Indictment detailed as follows:
” Jean Paul Akayesu (…) urged the population to eliminate the accomplices of the RPF, which was understood by those present to mean Tutsi.”
- Prosecution witness A testified that, during the said meeting, the Accused held papers which he allegedly showed to the crowd saying that the papers had been seized at the home of an Inkotanyi accomplice. He also said the papers detailed what the Inkotanyi accomplices were to do. The Accused showed the papers to the public. He stated that things had changed and that the Inkotanyi and their accomplices wanted to seize power.
According to witness A, the bourgmestre stated that everyone should do everything possible to fight against those people because they were seeking to restore the former regime. He said that he was personally going to search for some of the people. A teacher then told the Accused that he knew of an accomplice to which the Accused replied: “Go fetch this person”. Witness A also stated that the Interahamwe allegedly told the Accused he was to put the people of the commune at their disposal. The bourgmestre then told the crowd to fight against the Inkotanyi and their accomplices. The witness stated that the crowd remained rather calm even though it was stunned by the unusual statement made by the Accused. Witness A was personally surprised, just as, in his words, the rest of the people present, to see that the bourgmestre had changed and that he seemed, among other things, to have become friends with the Interahamwe.
- Prosecution witness V told the Chamber that at the Gishyeshye meeting of 19 April 1994, the Accused asked the population to collaborate with the Interahamwe in the fight against the Tutsi, the sole enemy of the Hutus. According to witness V, the Accused brandished documents which he said contained a list of names of Hutu that the Tutsi wanted to kill. He read the papers and said that the Tutsi were holding meetings to exterminate the Hutu. Witness V felt that the bourgmestre wanted to make the population understand that the Tutsi were their enemies. The Accused said the Tutsi, the real and only enemies of the Hutu, must be killed. He called on the population to work with the Interahamwe to search for the sole enemy. He also said that there were well-known Tutsi people living in the commune, who were working with the RPF. Witness V stated that apart from the Accused, only a certain Fran?ois took the floor, to state that a list of receipts for contributions, allegedly made by the Tutsi to the Inkotanyi, had been seized.
- According to Prosecution witness C, during that meeting, showed the Accused the crowd documents which included a list of the names of Hutu whom the Inkotanyi and the Tutsi inhabitants of Taba wanted to kill and a list of the names of Tutsi who had paid their contributions to the RPF. The witness noted that, while the Interahamwe seemed to be happy, the crowd was stunned by the change in the behaviour of the bourgmestre. Witness C stated that the Accused said during the meeting that the Tutsi was the sole enemy of the Hutu. He confirmed that he did hear the Accused say the Tutsi must be killed.
- Witness Z, a Tutsi man, testified that at the meeting which followed the murder of the Remera teacher, the Accused, who was armed, called on all those present to bury their political differences and unite to fight the enemy, the enemy being the Tutsi, the accomplices of the Inkotanyi. Witness Z stated that the Accused, speaking of the body of the young Interahamwe believed to have killed Sylvere Karera, deplored the murder of the person and said that he was dead whereas the enemy was still alive. Witness Z further testified that, at the meeting, the Accused had in his possession papers which included a list of names. The Accused read the papers and stated that the Tutsi were holding meetings to exterminate the Hutu. In addition to the Accused, a member of the Interahamwe, named Fran?ois, also took the floor, holding papers his hands. He showed the papers and said they had been seized at the home of the teacher killed in Remera. The documents included a list of the names of Tutsi who had paid their contributions to the
Inkotanyi. The crowd was surprised to see that the Accused then seemed to be cooperating with the Interahamwe. Witness Z felt that, during the said meeting, the Accused was addressing the Hutu and telling them to kill the Tutsi.
- A certain Ephrem Karangwa, who was the Inspecteur de police judiciaire of Taba Commune at the time of the events, testified before the Chamber that at the Gishyeshye meeting, the Accused told the population to kill the Tutsi in Taba. The bourgmestre told the people that whether they supported the MDR, MRND or the PSD, they should unite and understand that there was only one enemy, namely the Tutsi. The Accused told the people not to fear the Interahamwe. According to the witness the people who attended the said meeting affirmed to him that, during the meeting, the Accused showed a list of people to be killed, which included the name of Ephrem Karangwa. Allegations that the Accused, inter alia, named Ephrem Karangwa during the said meeting, are included in paragraph 13 of the Indictment and elaborated upon here infra.
- Men reportedly told Prosecution witness U that, at the meeting held by the Accused near the body of Sylvere Karera’s murderer, it was said that the only enemy was the Tutsi and that all Tutsi must be killed. According to witness U, the crowd then allegedly said that the “plane” had been shot by the Inkotanyi, and that the Inkotanyi were the Tutsi.
- Several Prosecution witnesses confirmed the Prosecution allegation that, when the Accused called on the people to fight against the enemy, the people present took it to mean that the Tutsi must be killed. Witness C, a male Hutu farmer like witness N, a female Hutu farmer, told the Chamber that, at the time of the alleged events, the “Inkotanyi” and the “Inyenzi” meant the Tutsi. Witness N specified that the Accused himself, as a leader, took the Tutsi to mean the Inkotanyi and the Inyenzi. Witness V also pointed out that, at the time of the events, the words Inkotanyi and Tutsi, were interchangeable in the countryside. He specified that, while all Inkotanyi were not Tutsi, everyone understood at the time that all Tutsi were Inkotanyi. Witness V also confirmed that the words Tutsi and Inkotanyi were synonymous and stated that the Tutsi had been pursued with such shouts as ” There they are, those Inkotanyi, those Tutsi.” He explained that the Tutsi were assimilated to the Inkotanyi.
- Dr. Mathias Ruzindana, Professor of Linguistics at the University of Rwanda, appearing as expert witness for the Prosecution, explained to the Chamber that, based on his own analyses of Rwandan publications and broadcasts by the RTLM and on his personal experience, he was of the opinion that, at the time of the events alleged in the Indictment, the term Inkotanyi had several extended meanings, from an RPF sympathizer to members of the Tutsi group, depending on the context.
- According to witness DIX, a Hutu woman, appearing as a Defence witness, explained that in her opinion, the Interahamwe started to kill people because they thought that their neighbours had in their midst accomplices of enemies from outside the country.
- A certain Joseph Matata, a Defence witness, testified before the Chamber that the contention that when the Accused called on the people to fight against the enemy, those present took it to mean that the Tutsi must be killed, had to rebutted. According to him, the latter’s speech must be interpreted with two factors in mind, namely the context of RPF incursions into the Rwandan territory and the fact that people who knew the bourgmestre could not have construed his speech as a call to kill the Tutsi.
- A Defence witness appearing under the pseudonym DZZ, denied that the Accused ever held a meeting in Taba commune at the time of the alleged acts.
- During his testimony before the Chamber, the Accused stated that the Interahamwe began to shout when the crowd had gathered at Gishyeshye. He called on them to calm down, stating that it was necessary to work in an orderly fashion. The Interahamwe then reportedly informed the bourgmestre that soldiers, the Inkotanyi, were allegedly infiltrating the commune. The Accused maintained before the Chamber that he had replied that if they knew of a family harbouring an RPF militant, they could reveal such information to a councillor, an officer of the Cellule, a policeman or the bourgmestre , who would then take up the case and follow it up. The Accused denied that he himself told the crowd that people, the accomplices of the Inkotanyi, should be flushed out, but admitted that it was said in the crowd that certain families were harbouring RPF soldiers.
- In response to Prosecution questions regarding the lists of names mentioned by several Prosecution witnesses, the Accused stated under cross-examination, that a certain Fran?ois had given him papers he rapidly read through silently for his personal edification. Those papers included the names of people and their functions. The Accused testified that the Interahamwe ordered him twice to read out the list and he refused to do so. According to him, members of the Interahamwe then said that the list, which included the names of RPF soldiers and their supporters, had been seized in the office of an “Inspecteur de police judiciaire” in Runda, a member of the RPF, who had been killed while he was shooting at the soldiers and the communal police.
- The Accused testified before the Chamber that he refused to read the list aloud to the crowd because he had had time to recognize certain names on the list such as those of Karangwa, Charlotte, Rukundakuvuga and Mutabazi. According to the Accused, he allegedly explained to the assembled population that the list contained names which included that of Ephrem Karangwa, and that such a list constituted a real danger since anyone could someday find their name on such a list. Thus, he reportedly cautioned the people against such documents.
- The Accused then specifically admitted before the Chamber that mentioning a name on such a list was seriously damaging to the person thus named and jeopardized their life. He also confirmed that made by a public official, such as the bourgmestre , such a statement would have so much more impact on the people, who would understand that the person was thus being denounced and that they would certainly be killed.
The position of the Defence as stated, particularly, during the closing arguments, regarding the documents read by the Accused, is that overexcited members of the Interahamwe allegedly forced the bourgmestre to read a document in their possession, which included the names of a certain number of people considered to be accomplices of the RPF. The Accused allegedly tried to dissuade the demonstrators from denouncing anyone in such a manner, by explaining that there was no proof that the people whose names appeared on the list were indeed RPF supporters.
- With regard to the facts in paragraph 14 of the Indictment detailed as follows: ” The killing of Tutsi in Taba began shortly after the meeting.”
- With regard to the allegation made in paragraph 14 of the Indictment, the Chamber feels that it is not sufficient to simply establish a possible coincidence between the Gishyeshye meeting and the beginning of the killing of Tutsi in Taba, but that there must be proof of a possible causal link between the statement made by the Accused during the said meeting and the beginning of the killings.
- Witness Ephrem Karangwa, who was the “Inspecteur de police judiciaire” of Taba commune, at the time of the events testified that until 18 April 1994, the people of Taba were united and there were no killings in Taba at that time.
- According to Prosecution witness C, the Taba population followed the instructions given by the bourgmestre at the Gishyeshye meeting and began thereafter to destroy houses and to kill. The witness recalled that the people once again complied with the instructions of the Accused as they always had.
- Prosecution witness W, a Tutsi, clearly stated that the attacks began on 19 April 1994. The first attack he witnessed took place on 19 April 1994 at about 2:00 p.m. Just before that, his younger brother, who had gone to find out what had happened in Rukoma, told him that a list of “Collaborators” had allegedly been discovered in the home of Sylvere Karera, and that the name of witness W was allegedly on the list. The witness then immediately went into hiding and later sought refuge in Kayenzi commune.
- Prosecution witness A, a Tutsi man, testified before the Chamber that five Tutsi were killed on the day of the meeting. From that date, witness A personally observed that the people were destroying houses, taking away corrugated iron sheets, doors and anything they could carry, and killing cows which they ate. Some of the people tried to run away when the killings began. Most of the victims were Tutsi. Witness A said that in his opinion when the Accused began to have good relations with the Interahamwe, the latter did whatever they wanted with the commune. He felt that the people were thus subjected to propaganda designed to make one part of the population hate the other. The people were believed to have changed because of repeated statements and promises made to them and that, as a result, they allegedly began to kill.
- Witness N, a 69-year old female Hutu farmer, also explained that the destruction of houses, the killing of cows and even the killings, began following said meeting. She attributed the scale of the killings to the Accused’s fiery mood during said meeting and his urging to wage war against the Inkotanyi and the Tutsi. She felt that had the Accused not held the meeting in question, the killings would never have started at that very moment, even if the Interahamwe were more powerful than the bourgmestre .
- The Accused himself confirmed to the Chamber that killings started in Taba on 19 April 1994. He said that, on that day, after addressing the crowd at Gishyeshye, he went to the Bureau communal where he noted that the Interahamwe had killed a good number of people, who had sought refuge there, including elderly people, women and children.
- During its closing arguments, the Defence pointed out that Prosecution witness V had testified before the Chamber that many Tutsi had sought refuge at the Bureau communal on the night of 19 April 1994. It therefore expressed doubt as to the reliability of Prosecution Witness V who had also stated, during his testimony, that on the morning of the same 19 April 1994, the Accused had ordered the Tutsi to be killed.
- A certain Joseph Matata, called as a Defence witness, explained to the Chamber that, in his opinion and according to testimonies he had allegedly collected in Taba, the militia began to neutralize the Accused as from 19 April 1994. He therefore concluded that the beginning of the massacres was not linked to the Gishyeshye meeting, but that it was an unfortunate coincidence.
- Factual findings:
- On the basis of consistent evidence and the facts confirmed by the Accused himself, the Chamber is satisfied beyond a reasonable doubt that the Accused was present in Gishyeshye, during the early hours of 19 April 1994, that he joined the crowd gathered around the body of a young member of the Interahamwe militia, and that he took that opportunity to address the people. The Chamber finds that the Accused did not convene the meeting, but that he joined an already formed gathering. Furthermore, on the basis of consistent evidence, the Chamber is satisfied beyond a reasonable doubt that on that occasion, the Accused, by virtue of his functions as bourgmestre and the authority he held over the population, did lead the crowd and the ensuing proceedings.
- With regard to the Prosecution allegation that the Accused sanctioned the death of Sylvere Karera, the Chamber finds that the Accused himself admitted to having condemned the death of a young Interahamwe who had allegedly killed Karera, but failing to mention that he also condemned the death of Karera. The Chamber nevertheless points out that failure to condemn is not tantamount to approval in this case. However, on the basis of testimonies by witnesses V and Z, the Chamber finds that the Accused could very well have attributed the death of Sylvere Karera to his alleged complicity with the Inkotanyi and may have added that Karera had been justly killed. The Chamber however finds that no other evidence corroborated the testimony of witness V, whereas some ten witnesses had been questioned about facts relating to the murder of Sylvestre Karera and the ensuing meeting at which the Accused spoke. Consequently, the Chamber holds that in the absence of conclusive evidence, the Prosecution has failed to establish beyond a reasonable doubt that the Accused publicly sanctioned the death of Sylvere Karera at the Gishyeshye gathering.
361. With regard to the allegation that the Accused urged the population, during the said gathering, to eliminate the accomplices of the RPF, after considering the weight of all
supporting and corroborative evidence, the Chamber is satisfied beyond a reasonable doubt that the Accused clearly called on the population to unite and eliminate the sole enemy: accomplices of the Inkotanyi. On the basis of consistent evidence heard throughout the trial and the information provided by Dr. Ruzindana, appearing as an expert witness on linguistic issues, the Chamber is satisfied beyond a reasonable doubt that the population construed the Accused’s call as a call to kill the Tutsi. The Chamber is satisfied beyond a reasonable doubt that the Accused was himself fully aware of the impact of his statement on the crowd and of the fact that his call to wage war against Inkotanyi accomplices could be construed as one to kill the Tutsi in general.
- Finally, relying on substantial evidence which was not essentially called into question by the Defence, and as it was confirmed by the Accused, the Chamber is satisfied beyond a reasonable doubt that there was a causal link between the statement of the Accused at the 19 April 1994 gathering and the ensuing widespread killings in Taba.
The events alleged
- Paragraph 15 reads as follows:
At the same meeting in Gishyeshye sector on April 19, 1994, Jean Paul Akayesu named at least three prominent Tutsis — Ephrem Karangwa, Juvenal Rukundakuvuga and Emmanuel Sempabwa — who had to be killed because of their alleged relationships with the RPF. Later that day, Juvenal Rukundakuvuga was killed in Kanyiya. Within the next few days, Emmanuel Sempabwa was clubbed to death in front of Taba bureau communal.
It is the alleged that by his participation in relation to these acts the accused committed offences charged in six counts:
Count 1, Genocide, punishable by Article 2(3)(a) of the Statute of the Tribunal;
Count 2, Complicity in Genocide, punishable by Article 2(3)(e) of the Statute of the Tribunal;
Count 3, Crimes against Humanity (extermination), punishable by Article 3(b) of the Statute of the Tribunal;
Count 4, Direct and Public Incitement to Commit Genocide, punishable by virtue of Article 2(3)(c) of the Statute of the Tribunal;
Count 5, Crimes against Humanity (murder), punishable by Article 3(a) of the Statute of the Tribunal; and
Count 6, Violations of Article 3 common to the Geneva Conventions of 1949, as incorporated by Article 4(a)(murder) of the Statute of the Tribunal.
- Paragraph 15 of the Indictment alleges that, at a meeting held on 19 April 1994 in Gishyeshye sector, the accused called for the killing of three prominent Tutsi due to their alleged relationships with the RPF. As a supposed consequence of being named, at least two of them, namely Juvenal Rukundakuvuga and Emmanuel Sempabwa, were subsequently killed. The acts which were allegedly further perpetrated as regards to Ephrem Karangwa are the subject of paragraphs 16, 17 and 18 of the Indictment.
- It has already been established beyond reasonable doubt, as alleged in paragraph 14 of the Indictment, that Akayesu was present at an early morning gathering in Gishyeshye sector on April 19 1994. The Chamber found that Akayesu urged those present to unite to eliminate the only enemy, the accomplice of the Inkotanyi. The Chamber also found the terms Inkotanyi and accomplice during the said meeting to refer to Tutsi and that the accused was conscious that his utterances to the crowd would be understood as calls to kill the Tutsi in general.
- It now needs to be established whether during this gathering, Akayesu specifically named Ephrem Karangwa, Juvenal Rukundakuvuga and Emmanuel Sempabwa who had to be killed because of their alleged relationships with the RPF. If it is proved beyond a reasonable that Akayesu named the said three, the Chamber will consider evidence presented in relation to their subsequent fates as alleged in the second and third sentences of paragraph 15 of the Indictment.
The Role, if any, of the Accused
- A number of the witnesses, namely witnesses V, C, A, Z and Akayesu, who testified in relation to the events alleged in paragraph 14 of the Indictment, also testified in relation to the specific allegations contained in paragraph 15 of the Indictment. Hence, the Chamber will limit itself to recalling the testimonies of these witnesses only as pertains to the paragraph 15 of the Indictment, i.e. the naming of three individuals and their subsequent fates, factual findings having already been made above to there having been a gathering in Gishyeshye and the pertinent general allegations.
- Witness Z, a Tutsi man, testified that on or about 19 April 1994, in the early hours of the morning, he was present at the Gishyeshye sector gathering, which was attended by Akayesu. He said Akayesu separated the crowd from the Interahamwe and called for all those present to forget their political differences until the enemy had been eliminated, the enemy being the Tutsi, the accomplices of the Inkotanyi.
- Witness Z said Akayesu, who was holding documents, cited Ephrem Karangwa as someone wanting to kill him and replace him as bourgmestre. He said the accused did not name anyone else in particular. According to witness Z, Akayesu said that he didn’t want to give the names of the other persons because they lived nearby and someone might warn and help them escape. The witness said an Interahamwe by the name of Fran?ois spoke about papers. According to the witness, the Interahamwe said the papers had been seized from the dead professor’s house (see factual findings on paragraphs 13 and 14 of the Indictment) and contained details of monies paid by the Tutsi to the Inkotanyi.
- Witness Z testified Akayesu announced on leaving that he was going so that those persons who are to be found between Taba and Kayenzi did not escape him. He said the accused left in a vehicle with the Interahamwe. Once back at his house which was on a neighboring hill, the witness said he observed the persons who had been in the vehicle with Akayesu break down the door of Rukundakuvuga’s house. He later heard that Rukundakuvuga was arrested. Under cross-examination, witness Z confirmed that Akayesu had not named Rukundakuvuga but added that Akayesu read from documents at the gathering.
- Witness V, a Tutsi teacher in Taba in Taba commune for nearly 28 years, testified he was present at the gathering at the Gishyeshye sector. He said that, during this gathering, Akayesu asked the population to collaborate with the Interahamwe in the fight against the only enemy of the Hutu, namely the Tutsi. The witness said Akayesu brandished documents on which there was a list of names of Hutu who were to be killed by the Inkotanyi and the Tutsi, and a list of RPF collaborators. The witness affirmed Akayesu said he knew of a number of people in the commune, namely three teachers, to be RPF collaborators who lived in Kanyenzi, and a fourth person, the “inspecteur de police judiciaire” who worked at the office of the commune. Witness V said the accused told the crowd that these people had to be sought to prevent them from escaping. The witness testified the accused named Ephrem Karangwa during the meeting, and by reference to where they lived also implicitly spoke of Juvenal Rukundakuvuga and Emmanuel Sempabwa, who were both Tutsi. According to the witness, the crowd understood that Akayesu was looking for these people as they were supposedly RPF accomplices.
- Witness V testified that of the four individuals spoken of by the accused, he saw two of the bodies at the bureau communal, and the body of Rukundakuvuga on the Kanyiya road as he fled the commune of Taba. The fourth person named at the meeting was able to escape.
- Under cross-examination, witness V asserted that Akayesu brandished three documents during the gathering. He said there was a list of people who were financing the RPF, a list of Hutu who had to be killed by the Tutsi, and a list of Tutsi RPF collaborators. The witness testified that Akayesu only named Karangwa. Questioned as to the identification of other individuals, witness V said they weren’t expressly cited, but Akayesu pointed to where they lived and said that they were teachers. According to witness V, as people immediately went to search for them it had been possible for individuals at the gathering to guess about whom Akayesu was speaking.
- Witness E, a Hutu man from Taba testified that he was present at the Gishyeshye gathering on the morning of 19 April 1994. He said Akayesu arrived in a car and addressed the crowd. According to the witness, Akayesu, who was armed with a rifle, pointed to the Interahamwe who were alongside him and told the crowd that the Interahamwe and the MRND, the party to which belonged the Interahamwe, meant them no harm. Witness E said Akayesu told the crowd that all of the political parties were at present one and the same, and that the only enemy was the accomplice of the Inkotanyi.
The witness said a certain Fran?ois gave Akayesu some documents which had allegedly been found at the residence of a RPF accomplice. He said Akayesu told the crowd that all of the Inkotanyi accomplices had to be sought. Questioned as to any names being cited by Akayesu, the witness said only that of Ephrem Karangwa was mentioned.
- Witness A, a Hutu man who worked with Akayesu from April 1993 up until 7 April 1994, testified that he attended the Gishyeshye gathering in the early hours of 19 April 1994. He said that on arriving, around 06h00 and 07h00 in the morning, he saw a crowd gathered around a body. According to the witness, amongst the people present were the bourgmestre, conseillers, the local population who had heard the noise the night before and Interahamwe. The witness said the members of the cellules and the conseillers asked the crowd to listen to the bourgmestre. Witness A declared Akayesu showed a number of documents to the people, and told the crowd that things had changed, that the Inkotanyi and their accomplices wanted to take power. Questioned as to the citing of names, the witness stated that Akayesu mentioned only Ephrem Karangwa, the “inspecteur de police judiciaire”, as someone who had a plan to replace him. The witness added that Akayesu told the crowd that everyone had to do whatever they could to fight these people so as not to return to the previous regime, and that he too would personally search for these people. Witness A testified that a teacher in the crowd informed Akayesu that he knew of another accomplice, in response to which Akayesu ordered that this person be found.
- Under cross-examination, witness A affirmed that during the gathering in Gishyeshye, Akayesu named only Ephrem Karangwa, and mentioned no other names.
- Witness C, a Hutu farmer, testified that he attended the Gishyeshye gathering. He said Akayesu addressed the crowd. According to the witness, the accused took documents from his jacket and stated that he was going to read the contents of the documents found at the Professor’s house who had been killed in Remera. He said that Akayesu called for the crowd to listen attentively and to put into practice the contents of the documents. Witness C declared that thereafter Akayesu read out the documents.
- Akayesu testified that on the morning of 19 April 1994 in Gishyeshye sector, a number of people, including Interahamwe, had assembled around the cadaver of an Interahamwe. Akayesu explained that during his discussions on commune security with the crowd at this gathering, a certain Fran?ois, who had arrived with the Interahamwe, gave him a number of documents on which there figured names and occupations of supposed RPF accomplices and told him to read them. Though Fran?ois told him to read out the names on the lists, the accused asserted that he did not do so, save for citing, reluctantly so, that of Ephrem Karangwa. In so doing he said he explained to those present at the gathering “there is on this list Ephrem Karangwa, tomorrow you may find yourselves on the list; will it then be said that you too are housing elements of the RPF, a soldier of the RPF?”.
- Under cross-examination, Akayesu declared that he did not read out any names but that he did cite that of Ephrem Karangwa. He added that he had summarized the contents of the documents in his possession by saying there was a list of names on which figured
Ephrem Karangwa, tomorrow others could appear on the list, would it then be said that they too are hiding RPF soldiers. Akayesu said the Rukundakuvuga was also on the list, but denied having read it out. Akayesu stated it would be dangerous to publicly designate an individual as an accomplice of the RPF
- The Defence argued that Akayesu never convened the gathering at Gishyeshye. Instead, the accused was amongst a group of people who had gathered there after a man had been killed. The Defence submitted that Interahamwe were angry, and forced Akayesu to read a document, which contained the names of persons they believed to be accomplices of the RPF. The Defence averred that Akayesu tried to dissuade the Interahamwe from denouncing people in this manner as there was nothing to prove on the list that these people were accomplices of the RPF.
Findings of fact
- The Chamber has already found beyond a reasonable doubt that Akayesu was present and did speak at the gathering in Gishyeshye sector on the morning of 19 April 1994. This has been developed in the factual findings pertaining to paragraph 14 of the Indictment.
- Akayesu admitted to having been given a number of documents by the Interahamwe Fran?ois, and that he did cite the name of Ephrem Karangwa during this gathering, as a forewarning to those present that they too could be deemed RPF accomplices if their names figured on the list. Akayesu also admitted it would be dangerous to cite the name of an individual as an RPF accomplice. However, he was adamant that at he did not read out the documents as such, but summarized them for the crowd. Akayesu confirmed names, save that of Ephrem Karangwa, also appeared on the list. Further, the Defence submitted in its closing arguments that Akayesu had been forced to read out the documents given to him by the Interahamwe.
- Akayesu’s testimony, as regards the naming of Ephrem Karangwa, is supported by the evidence presented by witnesses Z, V, E and A in this matter. All four affirmed that only the name of Ephrem Karangwa had been cited during the Gishyeshye gathering. Witnesses V and Z added that in their opinions it was possible to infer, from Akayesu’s gestures and subsequent conduct, reference to Sempabwa and Rukundakuvuga.
- The Chamber finds that it has been proved beyond reasonable doubt that Akayesu did cite Ephrem Karangwa during the Gishyeshye meeting. It has also been established beyond a reasonable doubt he did so knowing of the consequences of naming someone as an RPF accomplice in the temporal context of the events alleged in the Indictment.
- However, the Chamber is of the opinion that the evidence presented in this matter does not support the specific allegations that Akayesu named Juvenal Rukundakuvuga and Emmanuel Sempabwa. The evidence presented shows only an implicit, yet remote, allusion by Akayesu during the Gishyeshye gathering to these two individuals, and does not demonstrate that Akayesu expressly named them. Hence, the Chamber finds that it
has not been proved beyond reasonable doubt that Akayesu named Juvenal Rukundakuvuga or Emmanuel Sempabwa during the Gishyeshye gathering on 19 April 1994, and that their fates were consequent upon the utterances of Akayesu at the Gishyeshye gathering.
5.4 Beatings (Torture/Cruel Treatment) (Paragraphs 16, 17, 21, 22 & 23 of the Indictment)
Charges Set Forth in the Indictment
- Jean Paul Akayesu, on or about April 19, 1994, conducted house-to-house searches in Taba. During these searches, residents, including Victim V, were interrogated and beaten with rifles and sticks in the presence of Jean Paul Akayesu. Jean Paul Akayesu personally threatened to kill the husband and child of Victim U if she did not provide him with information about the activities of the Tutsi he was seeking.
- On or about April 19,1994, Jean Paul Akayesu ordered the interrogation and beating of Victim X in an effort to learn the whereabouts of Ephrem Karangwa. During the beating, Victim X’s fingers were broken as he tried to shield himself from blows with a metal stick.
- On or about April 20, 1994, Jean Paul Akayesu and some communal police went to the house of Victim Y, a 68 year old woman. Jean Paul Akayesu interrogated her about the whereabouts of the wife of a university teacher. During the questioning, under Jean Paul Akayesu’s supervision, the communal police hit Victim Y with a gun and sticks. They bound her arms and legs and repeatedly kicked her in the chest. Jean Paul Akayesu threatened to kill her if she failed to provide the information he sought.
- Later that night, on or about April 20, 1994, Jean Paul Akayesu picked up Victim W in Taba and interrogated her also about the whereabouts of the wife of the university teacher. When she stated she did not know, he forced her to lay on the road in front of his car and threatened to drive over her.
- Thereafter, on or about April 20, 1994, Jean Paul Akayesu picked up Victim Z in Taba and interrogated him. During the interrogation, men under Jean Paul Akayesu’s authority forced Victims Z and Y to beat each other and used a piece of Victim Y’s dress to strangle Victim Z.
386. The Chamber notes that paragraph 16 of the Indictment includes allegations with respect to Victim V and Victim U. As the evidence which was given by and about Victim V (Witness A) relates to events which are described in paragraphs 21, 22 and 23 of the
Indictment, the Chamber will consider this component of paragraph 16 together with the allegations set forth in paragraphs 21, 22 and 23.
- Witness K (Victim U), a Tutsi woman married to a Hutu man, was an accountant who worked for the Accused in the office of the bureau communal in Taba, during the events of April 1994. Witness K testified that on the morning of 19 April 1994 she went to the bureau communal at the request of the Accused and that she found him there outside the office with many people, changed in mood and in temper. She said he asked her why she had not been coming to work and sh e told him that she was afraid and had come only at his request. After then witnessing the killing of Tutsi at the bureau communal, which she said was ordered by the Accused, Witness K said the killers asked the Accused why she had not been killed as well. She said he told them that they were going to kill her after questioning her about the secrets of the Inkotanyi. According to Witness K, the Accused then took her keys, locked her in her office and left, saying he was going to search for Ephrem Karangwa, the Inspector of Judicial Police.
- The Accused returned, said Witness K, with other men whom she referred to as “killers”, and they questioned her. She said they asked her to explain how she was cooperating with the Inkotanyi, which she denied. She said the Accused insisted and said that if she did not tell them how she worked with the Inkotanyi, they would kill her. After further discussion, she said the Accused again threatened her, saying she should tell them what she knew or they would kill her, and then left. At this time she estimated it was about three o’clock in the afternoon. Witness K testified that the Accused returned at around midnight with a police officer and asked her whether she had decided to tell them what she knew. When she said she knew nothing, she said he told her, “I wash my hands of your blood.” She said he then told her to leave the office and go home and when she expressed concern about the late hour, he asked the driver and the police to accompany her home.
- Under cross-examination, Witness K stated that her husband was a friend of the Accused. When asked why she was not killed, she said that Tutsi women married to Hutu men were not killed. In his testimony, the Accused confirmed that he saw Witness K at the bureau communal on 19 April 1994 and said that he had wondered why she was there. He said that he saw a man behind her with a machete and that he came between them and escorted her to the office, and told her to keep the door closed.
- Witness Q (Victim X), a Tutsi man who lived in Musambira, testified that on the same day, 19 April 1994, while he was there visiting, the Accused came to the home of his parents, looking for Ephrem Karangwa, the Inspector of Judicial Police for the commune of Taba. Witness Q told the Chamber that the four people who came – one of whom was a policeman armed with a gun, another armed with grenades and another with a small hatchet – made him, his brother, his sister and his brother-in-law sit down in the courtyard at the entrance of the house. He said they asked where Ephrem Karangwa was, and after a discussion in French, entered the house to search, leaving the policeman with them in the courtyard, his gun charged and ready to shoot. Witness Q said he recognized the policeman, who told his brother-in-law that it was Akayesu, the bourgmestre of Taba,
who had come to his house. He said that Akayesu was wearing a long military jacket. Witness Q had not previously met the Accused but was able to identify him in court. He said the Accused and two other people came out of the house with boxes, papers and photographs, which they scattered in the courtyard, saying the photographs of family members in Uganda had been sent by Inkotanyis. Witness Q said he and his relatives were then beaten and kicked by the two men who were with the Accused, and he was hit with a small axe on his right hand. He said his brother-in-law was hit and wounded in the head. The witness displayed in court his right hand with a bent index finger, which he said had been broken from the beating when he raised his hand to ward off the blows. Witness Q testified that the Accused was present during this beating and watched it. He said the Accused was the one apparently responsible.
- The other house-to-house searches referred to in the relevant paragraphs of the Indictment appear to have taken place on the next day and relate to the search by the Accused for Alexia, the wife of Pierre Ntereye, a university teacher. Witness N (Victim Y), a Hutu farmer, testified that she knew where Alexia was hiding. She said the Accused, whom she had known for two years, came to her house with three Interahamwe – Mugenzi, Francois and Singuranayo – at nine o’clock in the evening, the day after the meeting in the commune (i.e. 20 April), looking for Alexia. She said the Accused stayed in his vehicle, near the entrance of her home. The others broke down the door and pointed their guns at her, ordering her to show them the Inkotanyi hiding in her house. She said she told them to search the house, and one of them went to search while the other one stayed at the door. Witness N testified that Mugenzi, who was a communal police officer, took her by the arm to the door and hit her on her head with the barrel of his rifle. She said Francois, who had gone into the house, found a young girl whom he told to open her mouth. According to Witness N, Singuranayo then forced open her mouth and struck her with the barrel of the gun.
- Witness N said that when she told them that she did not know where Alexia was, she was lifted by her arms and legs by the three men and taken outside to the Accused. She said the Accused told her to lie down, which she did. She said Mugenzi then stepped on her neck and pushed the butt of his rifle into her neck. She said he stomped on her with a lot of force, and that the Accused then hit her with a club on her back. When she shouted, she said the Accused told her to be quiet, calling her the mother-in-law of the Inkotanyi and a “poisonous woman.” Witness N testified that they then took her in the vehicle to a partially opened mine at a place called Buguli. She said the Accused ordered her to lie down in front of the vehicle, got into the driver’s seat and told her that he was going to run her over. Mugenzi told her to tell them where the people she was hiding were or they would kill her. She said she told them that she did not know and that they should kill her if they wanted. Witness N said Mugenzi then bound her arms and legs with a piece of cloth, pushed her to the ground and stomped on her with his foot. She said the others also joined in and stomped on her.
- Witness N said she was then put in the vehicle and taken to the house of Ntereye’s sisters. When they arrived, she said Francois called for Ntereye’s niece Tabita (Victim W) and they questioned her. According to Witness N, the Accused remained in the vehicle
and called Tabita from there. He asked her where Alexia was, and she said she did not know. Witness N testified that Tabita was then taken in the vehicle back to the mine. There, she said, they made her get out and told her to get in front of the vehicle. The Accused threatened to run her over and again asked her for the whereabouts of the people in question. She said Tabita was afraid and said that they had hidden in a sorghum field but that she did not know where they were. According to her testimony, Witness N was then told by the Accused that she was a “poisonous woman” and that she had hidden these people. She said they then began to strike her with their gun[s].
- Witness N said that she and Tabita were then taken in the vehicle to a roadblock, where they picked up Victim Z, and they were then taken to Gishyeshye Sector. Witness N testified that she was at this time “almost dead” from the beating she had suffered. When they arrived, Witness N said she was thrown on the road, next to Victim Z, and they began to beat him with a club. She said the Accused then instructed Victim Z to beat her. She said Victim Z stood up and began to beat her, and that he beat her several times on her leg with a club. During this time, she testified that the Accused was standing next to them near the vehicle. Witness N said her hands were then tied in the back with a piece of cloth, the other end of which was used to strangle Victim Z. She said they tightened the cloth, and his eyes almost came out of their sockets. Victim Z then said that he thought he knew who had hidden Alexia. She said [they] then started hitting him again, very hard, and the Accused asked [him] to hit her hard, to make her talk. Witness N said she threatened to bite [him] if [he] continued to hit her.
- Witness N testified that she was then taken in the vehicle with Victim Z to a roadblock and there they picked up a person identified as Victim V(Witness A). She said they were taken to Victim V’s house, where they were taken out of the vehicle and thrown on the ground. According to the testimony, they started beating Victim Z again with the club and they also beat Victim V and told him to bring out the person he was hiding. Victim V said he was not hiding anybody. On direct examination, Witness N said the Accused told Victim V to raise his arms so that they could shoot him. On cross- examination, Witness N testified that Mugenzi told Victim V to raise his arms so that they could shoot him. She said they did not shoot him, and that the Accused told Victim V that they would continue searching for Alexia and that if they did not find her he would have to die.
- Witness N testified that as a result of the beatings she received, her arm is limp. She said that she can no longer walk as she did before and that she needs help to get dressed. She testified that she can no longer work on the farm. The Trial Chamber notes that Witness N walked with difficulty, aided by a walking stick.
- Witness C (Victim Z), a Hutu farmer, testified that he knew Alexia, that she was a Tutsi teacher and the wife of Ntereye. He said that she hid in his house during April 1994 and that she had come to his house because she realized that he had not participated in the killings. Witness C testified that some Interahamwe came to his house while he was out harvesting coffee. He said one of his children came to look for him after the child had been beaten and asked where Alexia was. Witness C returned to his house and found the
Interahamwe at the entrance, carrying machetes and clubs. He said some also had grenades. According to the testimony, the Interahamwe surrounded Witness C and accused him of hiding Alexia. Witness C said that Alexia was not in his house, and one of them started beating him on his back with the blunt side of a machete. He said he then told them that Alexia sometimes hid in his house and sometimes in another person’s house. They continued to beat him, and Witness C testified that when he realized that he was about to be killed he said that Alexia was in another [room]. He said the Interahamwe took him to Victim Y’s house, and when they arrived they continued beating him. He said they asked Victim Y where Alexia was, and she said that Alexia had gone to her husband’s relatives. Witness C said that the Interahamwe then left the house, taking him with them, and after a distance released him, saying that they had from him what they needed.
- Witness C (Victim Z) testified that one week after this incident, while participating in a night patrol, he saw the Accused, whom he had known for a long time, with three Interahamwes, Victim Y (Witness N) and Tabita, the niece of Ntereye, in a white twin cab. He said the Accused was driving and stopped at the roadblock, got out of his car and told the Interahamwe that they should bring Witness C to him. He said the Accused told him to get into the vehicle, which he did, and they drove to the forest. In the middle of the forest, Witness C said they stopped and asked him to get out and lie down in front of the vehicle. He said the Accused then stepped on his face, causing his lips to bleed, and kept his foot on Witness C’s face while two of the Interahamwe – Francois and Mugenzi – began to beat him with the butt of their guns. During this time, he said he was asked repeatedly where Alexia was hiding.
- Witness C said that during the beating, Victim Y(Witness N), who was in the vehicle, urged him to tell them where Alexia was, and when he realized that they were going to kill him, he told them that she was at his home. Concerned that they would find her there, Witness C said he then told them she was somewhere else and Victim Y told them that Victim V could advise them of her whereabouts. Witness C testified that he was then made to sit next to Victim Y and they were bound together, side by side, with a rope by the Interahamwe Mugenzi. He said the rope was put around his neck. Under cross-examination, Witness C clarified that the rope was in fact a piece of cloth that he had been wearing. When he began to vomit, Witness C said they were untied and the Accused then told them to get back into the vehicle. Witness C also testified on examination that he was asked by Francois to hit Victim Y and given a cudgel, with which he struck her once on the leg. He said he was told to tell Victim Y to tell them where Alexia was hiding. After this, Witness C testified that the Accused told them to get back into the vehicle and they were taken to the roadblock.
- At the roadblock, Witness C testified that they picked up Victim V and the Accused drove them to Victim V’s house. When they arrived, he said the Accused asked his Interahamwes to search the house. He said two of them went in and came back, saying that Alexia was not in the house. According to Witness C, the Accused then told Victim V twice to step aside and raise his arms in the air so that they could shoot at him. One of the Interahamwe told him a third time to raise his arms so that they could shoot him.
Witness C said they did not shoot at Victim V, but they again beat him, Witness C, on the back with the blunt side of a machete. He said they were then asked to get back in the vehicle and went near the home of Victim Y, who was dropped off. They continued, he said, dropping one Interahamwe off at a roadblock and stopping at another roadblock, where the members of Ntereye’s family had been arrested. Witness C testified that the Accused asked them to get in the vehicle – a woman, three children and three men. He said they then went to a commercial center near Remera Rukoma, and the people were taken to a prison there. Witness C and Victim V were left to wait in the vehicle while the Accused, Francois and Mugenzi went to drink beer at a place about fifteen feet from the vehicle. From the vehicle, Witness C testified that he heard the Accused say to the Interahamwe “I do not think that what we are doing is proper. We are going to have to pay for this blood that is being shed.” After the Accused and the Interahamwe drank beer and returned to the vehicle, Witness C said they were taken near the school of Remera Rukoma, dropped off there and told to be at the office the next morning at 7:00.
- Witness C showed the Trial Chamber the scars he said he had from this beating, on the left side of his back. He said that he did not have scars on his lips but that he did have wounds on his head and a scar on his nose. He testified that he has continuing health problems such as a bleeding nose and pains in his head, and that his body is no longer what it was before.
- Witness A (Victim V), a Hutu man, testified that he knew Alexia and that he was the person who had found the hiding place for her. He said he saw the Accused, whom he had known for ten years and worked with, one night while he was on patrol, sometime between 7:00 and 9:00. He said the Accused was alone in a white pickup truck, and while they were talking, he saw people, including the Interahamwe Francois and a commune police officer, coming from the house of an elderly woman, who lived near him. He said they put this woman in the vehicle and took her to the forest, and shouts were heard as they beat her. Later, he said the Accused came back and took away another of his neighbours who was doing the night patrol, and he also heard this person crying out as he was being beaten. Witness A said they came back and picked him up and went to his house. He said the Accused was driving the vehicle. He said they came into his house and searched for people they said were hiding there, in particular Alexia. Witness A said they had guns, and that after they searched the house they took him and the others to the gate of the house, and the commune police officer and Francois began to beat them with the butt of a rifle and a stick, asking them where Alexia was. At this time, he said the Accused was standing next to them and watching. He said when they discovered that Alexia was not in the house, they stopped the beating and put them in the vehicle. He said they released the elderly woman and sent her back to her house, and they continued to detain him and Victim Z.
- Witness A testified that near his house, they found nine people from families who had been stopped by night patrols. He said these people were presented to the Accused who put them in the vehicle and took them to a prison near Remera Hospital. He said the Accused and Francois went to have drinks and he was left in the vehicle with Victim Z and a young girl, guarded by the commune police officer. Afterwards, he said they went back to the bureau communal and on the way the Accused told them to go home but come back to the bureau communal early the next morning. At this time, he said it was approximately 2:00 in the morning. On cross-examination, Witness A said that he did not sustain serious injuries from the beatings apart from a broken rib which was treated.
- The Accused testified that after Ntereye was killed on 10 May 1994, people were saying that they still did not know where his wife was. The Accused said he knew that she was being sought, and he said he was determined to save her. He said that Ntereye had told him that she was going from house to house. He said he found an Interahamwe called Francois and told him that he had someone to save. He said he asked Francois to help him for a price and gave him twenty thousand. He said he then went to Ntereye’s sister’s house and found his niece who told him that Alexia was living in the house of an elderly woman. He said he knew her to be a tough old lady and asked the niece to come with him to reassure her. He said they left – himself, a police officer and Francois. He said they called for the lady and she came, and he spoke to her. He said she told him that Alexia had been there but left and gone to Kayenzi. He said when he asked her whether she was telling the truth, she told him “I cannot lie because you are going to do good for Alexia and then I have also heard that you tried to save Ntereye.” He said he left with the niece and drove to Buguli and that he spoke to her and her sisters, warning them not to let the children go outside because they would be killed. In his testimony, the Accused then moved on to other events. The Accused later testified that when he went to look for Alexia, there were two or three people at the roadblock near the home of the old lady, but that neither Victim V nor Victim Z was there, and he did not see them on this occasion. He testified that Victim Y, Victim Z and Victim V were known to him. He also said there were no mines in Buguli.
- The Chamber finds that on 19 April 1994, Victim U (Witness K) was threatened by the Accused at the bureau communal. She went to the bureau communal because she had been summoned there by the Accused. She was questioned by the Accused in the presence of men whom she had just seen killing Tutsi at the bureau communal. In response to a question from the killers, Victim U heard the Accused tell them that she would be killed after she was questioned about the secrets of the Inkotanyi. The Accused then questioned Victim U and threatened that she would be killed if she did not divulge information about her cooperation with the Inkotanyi. The Accused then locked Victim U in her office and left. When he returned in the afternoon, he resumed questioning Victim U and again threatened that she would be killed if she did not provide information about the Inkotanyi. He left again and returned at midnight with a police officer. The Accused asked her whether she would tell them what she knew and when she said she knew nothing, he said, “I wash my hands of your blood.” He then asked the driver and the police to accompany her home.
- The Chamber found Victim U to be a very credible witness whose testimony was not marked by anger or hostility and whose testimony was confirmed under cross- examination. The Chamber notes that the Accused in his testimony confirmed the presence of Victim U at the bureau communal on 19 April 1994. The Chamber does not accept his explanation of her presence there or his actions. If he intended to protect her, as he suggested, why did he take her key from her, why did he question her about the Inkotanyi, and why did he leave her there until midnight? The Accused did not address any of these questions or specifically deny that he did any of these things. He did not even deny specifically that he told the others in her presence that she would be killed after questioning or that he threatened her when he questioned her. The Chamber notes that there is no evidence to suggest that the Accused threatened the husband or child of Victim U.
- With regard to the allegations set forth in paragraph 17 of the Indictment, the Chamber is unable to find, beyond a reasonable doubt, that the Accused ordered the interrogation and beating of Victim X (Witness U) on 19 April 1994. The evidence presented in support of the allegation relies entirely on a single witness, the credibility of whom the Defence has successfully challenged. In cross-examination, the Defence questioned Witness Q regarding the details of the incident at his father’s home, as they had been described by him in his pre-trial written statement. When asked about his prior statement that the Accused had been accompanied by two policemen rather than one, Witness Q explained that one of the policeman was from Taba and the other from Musambira. He said the second policeman had remained on the main road, and he had not actually seen this policeman which is why he did not mention him in his testimony. When asked about his prior statement that the Accused was armed rather than unarmed, Witness Q said that he had said that the Accused was wearing a military jacket and that he had heard that another policeman had a gun. When asked about his prior statement that he had been beaten by a policeman with a metal bar, Witness Q said that he was beaten by a man in civilian clothes, whom he assumed was a policeman because he was carrying a grenade. He said he was beaten with a metal instrument which had a pointed end. When asked about his prior statement that the Accused arrived in a red Toyota and that he saw a man lying in the rear seat of the vehicle with his hands tied, Witness Q said that he did not see the man in the back seat but that he heard about him. He said he did not see the vehicle as it was 500 meters away, but that he had heard that it was red.
- While the Chamber has been cautious in allowing the contents of pre-trial written statements to impeach the testimony of witnesses before it, in this case the inconsistencies between the testimony and the written statement of Victim X are many and too significant to justify a finding of credibility without corroboration of other testimony. The Chamber notes that even if it were to accept the testimony of Victim X in full, it would not be able to find, beyond a reasonable doubt, that the Accused ordered the interrogation and beating of Victim X. The witness testified that the Accused was present and watched the beatings, but there is no evidence that he gave any orders. There is only evidence that words were spoken in French. No evidence has been presented as to what was said and by whom.
- With regard to the search for Alexia, wife of Ntereye, the Chamber finds that at on the evening of 20 April 1994, the Accused went with two Interahamwe named Francois and Singuranayo and one communal police officer named Mugenzi to the house of
Victim Y (Witness N), a  year old woman at the time. Mugenzi took her by the arm to the door and hit her on the head with the barrel of his rifle. Victim Y was then forcibly taken to the Accused, who ordered her to lie down. In the presence of the Accused, Victim Y was beaten by the communal police officer Mugenzi who stepped on her neck, pushed the butt of his rifle into her neck, and stomped on her. Victim Y was also beaten by the Accused, who hit her with a club on her back. She was interrogated by Mugenzi and the Accused about the whereabouts of Alexia, the wife of Ntereye, a university professor. She was then taken to Buguli, where the Accused made her lie down in front of the vehicle and threatened to run her over. At the mine, in the presence of the Accused, she was also threatened and interrogated by Mugenzi, who bound her arms and legs and stomped on her with his foot. The others stomped on her as well.
- Later that night, the Accused picked up Tabita (Victim W) and interrogated her also about the whereabouts of Alexia, the wife of Ntereye. She was then taken in the vehicle back to the mine. She was asked to get in front of the vehicle, and the Accused threatened to run her over and again interrogated her about the whereabouts of Alexia.
- Thereafter, on the same evening, the Accused picked up Victim Z (Witness C) and took him to a forest in Gishyeshye Sector, where the Accused stepped on his face, causing his lips to bleed, and kept his foot on Victim Z’s face while the Interahamwe Francois and the commune police officer Mugenzi beat him with the butt of their guns. Victim Z was tied to Victim Y with a piece of cloth by Mugenzi, which was used to choke him. Victim Z was also forced by Francois to beat Victim Y with a cudgel he was given. During this time, Victim Z was interrogated, but it is unclear who actually did the interrogation.
- Following the interrogation of Victim Y and Victim Z, the Accused picked up Victim V at a roadblock and took him, with Victim Y and Victim Z, to his house, which was searched by Interahamwe at the direction of the Accused. The Accused then told Victim V to raise his arms in the air and threatened to shoot him. In the presence of the Accused, Victim V was then beaten under interrogation by the Interahamwe Francois and the commune police officer Mugenzi with the butt of a rifle and a stick. Victim Z was beaten on the back with the blunt side of a machete. Victim Y, Victim Z and Victim V were then taken away in the vehicle and, after Victim Y was released near her home, Victim Z and Victim V were kept in the vehicle while the Accused and the others drank beer. Victim Z and Victim V were released at approximately 2:00 in the morning.
- As a result of the beatings, Victim Y has trouble walking. Victim Z has scars on his back and continuing health problems. Victim V sustained a broken rib from the beatings.
- The Chamber notes that the testimony of Witness N, Witness C and Witness A closely correlate in all material respects and even with regard to minor details. There were very few inconsistencies, of an extremely minor nature. Witness N said, for example, that Victim Z (Witness C) was beaten with a club. Victim Z testified that he was beaten with the butt of a gun. It is clear that there was a club, as it was used by Victim Z to hit Victim Y (Witness N) when he was forced to do so. It is understandable
that Victim Y may have therefore mistaken the instrument used on Victim Z. Victim Z initially testified that he was tied to Victim Y with a rope, whereas Victim Y testified that it was a piece of cloth. On cross-examination, however, Victim Z clarified that in fact it was a piece of cloth that was used.
415. The Chamber finds these facts have been established beyond a reasonable doubt. In making its factual findings, the Chamber has carefully considered the cross-examination by the Defence of Prosecution witnesses and the evidence presented by the Defence in the form of testimony by the Accused. With regard to cross-examination, the Chamber notes that the Prosecution witnesses substantially confirmed their direct testimony. In his testimony, the Accused confirmed that he picked up the niece of Ntereye, with the Interahamwe Francois and his police officer, and went with her to the house of Victim Y. He confirmed that he drove with Ntereye’s niece to Buguli, stating only that there were no mines in Buguli. The Accused also confirmed that he was looking for Alexia, the wife of Ntereye, but he maintained that he was determined to save her. He said that he paid Francois to help him in this effort. The Accused testified that he did not see Victim Z or Victim V at the roadblock near the home of Victim Y, although they all testified that they saw him and each other. According to the testimony of the Accused, the search for Alexia took place after the death of Ntereye on 10 May 1994. All the prosecution witnesses, however, date this search to 20 April 1994. The Defence in its cross-examination did not question the evidence given by the Prosecution witnesses about the date. The Accused also testified that when he spoke to Victim Y, she said “I cannot lie because you are going to do good for Alexia and then I have also heard that you tried to save Ntereye.” Having heard Victim Y’s (Witness N’s) testimony, the Chamber finds it highly unlikely that she would have made such a statement and notes that the statement was not put to her by the Defence on cross-examination, in which the Accused himself participated. Moreover, the Accused’s account of his efforts to find and save Alexia simply tapered off in his testimony, without any explanation as to whether he continued the search or gave it up and if so, why. The Chamber also notes the testimony of Witness PP, which it has accepted as credible, that when Alexia and her nieces were brought to the bureau communal, the Accused said to the Interahamwe, “Take them to Kinihira. Don’t you know where killings take place, where the others have been killed?” The actions of the Accused were incompatible with a desire to save Alexia, and the Chamber does not accept the testimony of the Accused on these events as credible.
5.5 Sexual Violence (Paragraphs 12A & 12B of the Indictment)
Charges Set Forth in the Indictment
12A. Between April 7 and the end of June, 1994, hundreds of civilians (hereinafter “displaced civilians”) sought refuge at the bureau communal. The majority of these displaced civilians were Tutsi. While seeking refuge at the bureau communal, female displaced civilians were regularly taken by armed local militia and/or communal police and subjected to sexual violence, and/or beaten on or near the bureau communal premises. Displaced civilians were also murdered frequently on or near the bureau communal premises. Many women were forced to endure multiple acts of sexual violence which were at times committed by more than one assailant. These acts of sexual violence were generally accompanied by explicit threats of death or bodily harm. The female displaced civilians lived in constant fear and their physical and psychological health deteriorated as a result of the sexual violence and beatings and killings. 12B. Jean Paul Akayesu knew that the acts of sexual violence, beatings and murders were being committed and was at times present during their commission. Jean Paul Akayesu facilitated the commission of the sexual violence, beatings and murders by allowing the sexual violence and beatings and murders to occur on or near the bureau communal premises. By virtue of his presence during the commission of the sexual violence, beatings and murders and by failing to prevent the sexual violence, beatings and murders, Jean Paul Akayesu encouraged these activities. Events Alleged
- Allegations of sexual violence first came to the attention of the Chamber through the testimony of Witness J, a Tutsi woman, who stated that her six year-old daughter had been raped by three Interahamwe when they came to kill her father. On examination by the Chamber, Witness J also testified that she had heard that young girls were raped at the bureau communal. Subsequently, Witness H, a Tutsi woman, testified that she herself was raped in a sorghum field and that, just outside the compound of the bureau communal, she personally saw other Tutsi women being raped and knew of at least three such cases of rape by Interahamwe. Witness H testified initially that the Accused, as well as commune police officers, were present while this was happening and did nothing to prevent the rapes. However, on examination by the Chamber as to whether Akayesu was aware that the rapes were going on, she responded that she didn’t know, but that it happened at the bureau communal and he knew that the women were there. Witness H stated that some of the rapes occurred in the bush area nearby but that some of them occurred “on site”. On examination by the Chamber, she said that the Accused was present during one of the rapes, but she could not confirm that he saw what was happening. While Witness H expressed the view that the Interahamwe acted with impunity and should have been prevented by the commune police and the Accused from committing abuses, she testified that no orders were given to the Interahamwe to rape. She also testified that she herself was beaten but not raped at the bureau communal.
- On 17 June 1997, the Indictment was amended to include allegations of sexual violence and additional charges against the Accused under Article 3(g),Article 3(i) and Article 4(2)(e) of the ICTR Statute. In introducing this amendment, the Prosecution stated that the testimony of Witness H motivated them to renew their investigation of sexual violence in connection with events which took place in Taba at the bureau communal. The Prosecution stated that evidence previously available was not sufficient to link the Accused to acts of sexual violence and acknowledged that factors to explain this lack of evidence might include the shame that accompanies acts of sexual violence as well as insensitivity in the investigation of sexual violence. The Chamber notes that the Defence in its closing statement questioned whether the Indictment was amended in response to public pressure concerning the prosecution of sexual violence. The Chamber understands that the amendment of the Indictment resulted from the spontaneous testimony of sexual violence by Witness J and Witness H during the course of this trial and the subsequent
investigation of the Prosecution, rather than from public pressure. Nevertheless, the Chamber takes note of the interest shown in this issue by non-governmental organizations, which it considers as indicative of public concern over the historical exclusion of rape and other forms of sexual violence from the investigation and prosecution of war crimes. The investigation and presentation of evidence relating to sexual violence is in the interest of justice.
- Following the amendment of the Indictment, Witness JJ, a Tutsi woman, testified about the events which took place in Taba after the plane crash. She that she was driven away from her home, which was destroyed by her Hutu neighbours who attacked her and her family after a man came to the hill near where she lived and said that the bourgmestre had sent him so that no Tutsi would remain on the hill that night. Witness JJ saw her Tutsi neighbours killed and she fled, seeking refuge in a nearby forest with her baby on her back and her younger sister, who had been wounded in the attack by a blow with an axe and two machete cuts. As she was being chased everywhere she went, Witness JJ said she went to the bureau communal. There she found more than sixty refugees down the road and on the field nearby. She testified that most of the refugees were women and children.
- Witness JJ testified that the refugees at the bureau communal had been beaten by the Interahamwe and were lying on the ground when she arrived. Witness JJ encountered four Interahamwe outside the bureau communal, armed with knives, clubs, small axes and small hoes. That afternoon, she said, approximately forty more Interahamwe came and beat the refugees, including Witness JJ. At this time she said she saw the Accused, standing in the courtyard of the communal office, with two communal police officers who were armed with guns, one of whom was called Mushumba. Witness JJ said she was beaten on the head, the ribs and the right leg, which left her disabled. That evening, she said, the Accused came with a policeman to look for refugees and ordered the Interahamwe to beat them up, calling them “wicked, wicked people” and saying they “no longer had a right to shelter.” The refugees were then beaten and chased away. Witness JJ said she was beaten by the policeman Mushumna, who hit her with the butt of his gun just behind her ear.
- Witness JJ testified that she spent the night in the rain in a field. The next day she said she returned to the bureau communal and went to the Accused, in a group of ten people representing the refugees, who asked that they be killed as the others had been because they were so tired of it all. She said the Accused told them that there were no more bullets and that he had gone to look for more in Gitarama but they had not yet been made available. He asked his police officers to chase them away and said that even if there were bullets they would not waste them on the refugees. As the refugees saw that death would be waiting for them anywhere else, Witness JJ testified they stayed at the bureau communal.
- Witness JJ testified that often the Interahamwe came to beat the refugees during the day, and that the policemen came to beat them at night. She also testified that the Interahamwe took young girls and women from their site of refuge near the bureau
communal into a forest in the area and raped them. Witness JJ testified that this happened to her – that she was stripped of her clothing and raped in front of other people. At the request of the Prosecutor and with great embarrassment, she explicitly specified that the rapist, a young man armed with an axe and a long knife, penetrated her vagina with his penis. She stated that on this occasion she was raped twice. Subsequently, she told the Chamber, on a day when it was raining, she was taken by force from near the bureau communal into the cultural center within the compound of the bureau communal, in a group of approximately fifteen girls and women. In the cultural center, according to Witness JJ, they were raped. She was raped twice by one man. Then another man came to where she was lying and he also raped her. A third man then raped her, she said, at which point she described herself as feeling near dead. Witness JJ testified that she was at a later time dragged back to the cultural center in a group of approximately ten girls and women and they were raped. She was raped again, two times. Witness JJ testified that she could not count the total number of times she was raped. She said, “each time you encountered attackers they would rape you,” – in the forest, in the sorghum fields. Witness JJ related to the Chamber the experience of finding her sister before she died, having been raped and cut with a machete.
- Witness JJ testified that when they arrived at the bureau communal the women were hoping the authorities would defend them but she was surprised to the contrary. In her testimony she recalled lying in the cultural center, having been raped repeatedly by Interahamwe, and hearing the cries of young girls around her, girls as young as twelve or thirteen years old. On the way to the cultural center the first time she was raped there, Witness JJ said that she and the others were taken past the Accused and that he was looking at them. The second time she was taken to the cultural center to be raped, Witness JJ recalled seeing the Accused standing at the entrance of the cultural center and hearing him say loudly to the Interahamwe, “Never ask me again what a Tutsi woman tastes like,” and “Tomorrow they will be killed” (Ntihazagire umbaza uko umututsikazi yari ameze, ngo kandi mumenye ko ejo ngo nibabica nta kintu muzambaza. Ngo ejo bazabica). According to Witness JJ, most of the girls and women were subsequently killed, either brought to the river and killed there, after having returned to their houses, or killed at the bureau communal. Witness JJ testified that she never saw the Accused rape anyone, but she, like Witness H, believed that he had the means to prevent the rapes from taking place and never even tried to do so. In describing the Accused and the statement he made regarding the taste of Tutsi women, she said he was “talking as if someone were encouraging a player” (Yavugaga nk’ubwiriza umukinnyi) and suggested that he was the one “supervising” the acts of rape. Witness JJ said she did not witness any killings at the bureau communal, although she saw dead bodies there.
- When Witness JJ fled from the bureau communal, she left her one year-old child with a Hutu man and woman, who said they had milk for the child and subsequently killed him. Witness JJ spoke of the heavy sorrow the war had caused her. She testified to the humiliation she felt as a mother, by the public nudity and being raped in the presence of children by young men. She said that just thinking about it made the war come alive inside of her. Witness JJ told the Chamber that she had remarried but that her life had never been the same because of the beatings and rapes she suffered. She said the pain in
her ribs prevents her from farming because she can no longer use a hoe, and she used to live on the food that she could grow.
- Witness OO, a young Tutsi woman, testified that she and her family sought refuge at the bureau communal in April 1994 and encountered many other Tutsi refugees there, on the road outside the compound. While she was there, she said, some Interahamwe arrived and started killing people with machetes. She and two other girls tried to flee but were stopped by the Interahamwe who went back and told the Accused that they were taking the girls away to “sleep with” them. Witness OO told the Chamber that standing five meters away from the Accused, she heard him say in reply, “take them”. She said she was then separated from the other girls and taken to a field by one Interahamwe called Antoine. When she refused to sit down, he pushed her to the ground and put his “sex” into hers, clarifying on examination that he penetrated her vagina with his penis. When she started to cry, she said he warned her that if she cried or shouted, others might come and kill her.
- According to Witness OO, Antoine left her in the field and returned that night to take her to the house of a woman called Zimba, where she spent three nights. On the fourth night, she said Antoine returned and took her to another Interahamwe called Emanuel. She said that Antoine did the same thing he had done before to her, and that Emanuel followed him in turn. Witness OO told the Chamber she spent three days and nights at the house of Emanuel where every day she was sexually violated by both Antoine and Emanuel. Afterwards, she said she was chased away by them.
- Witness OO returned to the bureau communal when she heard that an order had been given to stop the killing of women and children, but after hearing the Accused, Kubwimana and Ruvugama all call for the killing of Tutsi, she left and went back into hiding. Subsequently, she and her seven year-old sister were apprehended by Interahamwe and taken to a roadblock. Her sister and two other people were imprisoned overnight and killed in the morning. At the time of these events, Witness OO was fifteen years old. When asked how it was that the Accused had the authority to protect her from rape, Witness OO replied that if he had told the Interahamwe not to take her from the bureau communal, they would have listened to him because he was the bourgmestre. Witness OO was unable to identify the Accused in the courtroom. She told the Chamber that someone had pointed him out to her at the bureau communal as the bourgmestre but that she had not looked at him closely and that it had been a long time ago.
- Witness KK, a Hutu woman married to a Tutsi man, also sought refuge at the bureau communal in Taba after her home was destroyed. She testified that the Tutsi refugees there were beaten often by the police and the Accused, whom she described as “supervising.” She recalled the Accused publicly name a teacher called Tharcisse as an accomplice and send the police to find him. They brought Tharcisse and his wife and made them sit in the mud. With the Accused standing nearby they then killed Tharcisse. They took off his wife’s clothing and told her to go and die somewhere else. Witness KK testified that on the same day, on the orders of the Accused, the Interahamwe brought teachers from Remera, who were also forced to sit in the mud. She said they started by
clubbing a young teacher who had been brought with his fiancee, and that during this time the Accused was walking around and supervising the police, who were beating refugees. The teachers were critically wounded with small hoes and taken in a wheelbarrow to a mass grave, many still breathing, left to die a slow death.
- Witness KK testified that her husband was beaten at the bureau communal and injured on the head. After escaping, he was captured by Interahamwe, and Witness KK received a message from him requesting to speak to her before he died. She found him behind the bureau communal with Interahamwes armed with clubs and spears, who then took him away between the two buildings of the bureau communal. She learned later that he was killed. Witness KK later went to the Accused and asked him for an attestation to help her keep her children alive. She said he replied that it was not he who had made them be born Tutsi and that “when rats are killed you don’t spare rats that are still in the form of fetus.” Witness KK testified that she had been pregnant and miscarried after being beaten by police and Interahamwe. Of her nine children, only two survived the events of this period.
- Witness KK also recalled seeing women and girls selected and taken away to the cultural center at the bureau communal by Interahamwes who said they were going to “sleep with” these women and girls. Witness KK testified regarding an incident in which the Accused told the Interahamwe to undress a young girl named Chantal, whom he knew to be a gymnast, so that she could do gymnastics naked. The Accused told Chantal, who said she was Hutu, that she must be a Tutsi because he knew her father to be a Tutsi. As Chantal was forced to march around naked in front of many people, Witness KK testified that the Accused was laughing and happy with this. Afterwards, she said he told the Interahamwes to take her away and said “you should first of all make sure that you sleep with this girl.” (Ngo kandi nababwiye ko muzajya mubanza mukirwanaho mukarongora abo bakobwa.) Witness KK also testified regarding the rape of Tutsi women married to Hutu men. She described, after leaving the bureau communal, encountering on the road a man and woman who had been killed. She said the woman, whom she knew to be a Tutsi married to a Hutu, was “not exactly dead” and still in agony. She described the Interahamwes forcing a piece of wood into the woman’s sexual organs while she was still breathing, before she died. In most cases, Witness KK said that Tutsi women married to Hutu men “were left alone because it was said that these women deliver Hutu children.” She said that there were Hutu men who married Tutsi women to save them, but that these women were sought, taken away forcibly and killed. She said that she never saw the Accused rape a woman.
- Witness NN, a Tutsi woman and the younger sister of JJ, described being raped along with another sister by two men in the courtyard of their home, just after it was destroyed by their Hutu neighbours and her brother and father had been killed. Witness NN said one of the men told her that the girls had been spared so that they could be raped. She said her mother begged the men, who were armed with bludgeons and machetes, to kill her daughters rather than rape them in front of her, and the man replied that the “principle was to make them suffer” and the girls were then raped. Witness NN confirmed on examination that the man who raped her penetrated her vagina with his
penis, saying he did it in an “atrocious” manner, mocking and taunting them. She said her sister was raped by the other man at the same time, near her, so that they could each see what was happening to the other. Afterwards, she said she begged for death.
- According to the testimony of Witness NN, after these men left, two other men who were neighbours came and one of them raped her, while the other took her sister a little further away and raped her sister. She recalled that the neighbour said that marriage had been refused to them, but now they were going to sleep with the girls without penalty (peine). She said the men left afterwards, warning the girls that they would kill them if they did not stay where they were. That evening, she said two other younger men, around the age of 15 or 16, came and asked them to “teach them because they didn’t know how it was done”. After these two men raped the girls, Witness NN said their mother asked her daughters to leave rather than continue to be tortured in front of her. The girls left and went into hiding with a relative.
- After hiding for a week and one half, Witness NN said she heard that Akayesu had stopped the killings, and she went with her sister towards the bureau communal. On the way, having taken a different route from her sister, Witness NN said she met two men who said they would accompany her to the bureau communal and that they had been given orders by the bourgmestre. She said the two men then took her a short distance away and raped her, each of them in turn, leaving her there afterwards lying naked. Subsequently, she said four men herding cattle came upon her, and two of them raped her. These incidents took place in the countryside, not very far from the bureau communal, according to Witness NN. After the rapes, Witness NN said she could not move – she was unable to get up and unable to dress herself. She said her sister found her and brought her some ghee to put in her lower parts to relieve the muscles. When she was able to get up, Witness NN said she continued on her way to the bureau communal with her sister.
- Witness NN estimated that she arrived at the bureau communal some time in the beginning of May, and she said she found about three hundred refugees there, mostly women and children. The morning after she arrived, she said she saw the Accused with a towel around his neck, moving to the place where two Interahamwes were driving a woman to rape her, between the bureau communal and the cultural center. She said she saw the Accused standing watching the men drag the woman and later on he entered the office. She said she saw the Interahamwe circle this woman and saw them on top of her but did not see them penetrate her. She also said there were many refugees watching while this was happening. During the rape, she said there were two commune policemen who were in front of the office of the bourgmestre, one called Mushumba and one called Nsengiyumva who was in plain clothes. She said they did nothing to prevent the rape from happening and that the Accused did nothing as well – only watched and entered his office. She said after the rape she saw that the naked woman was hungry and cold, and the woman was pregnant. She said she was told by an Interahamwe that the woman died at the bureau communal. Witness NN said she did not see anyone raped inside the cultural center but that the Interahamwe did come at night and take some girls away.
- Two days after arriving at the bureau communal, Witness NN recounted seeing an Interahamwe called Rafiki, whom she had known previously and who had previously told her that he wanted to live with her. When he saw her at the bureau communal, she said he told her that he was going to rape her and not marry her. She said Rafiki took her to his home not far from the bureau communal and locked her up there for two days, during which time he raped her repeatedly day and night, a total of approximately six times. She said often when he came to rape her, he had been smoking herbs or drinking alcohol. When she returned to the bureau communal, Witness NN said she found her sister, who told her that she also had been raped again, at the bureau communal. Witness NN testified that her sister was hungry and cold, and could not move. Her sister died and when they went to bury her, they found her body had been eaten by dogs.
- Witness NN said she saw the Accused often at the bureau communal and that she heard him tell police to remove the refugees, citing one occasion where a policeman named Mushuba beat and chased them away after receiving such an order from the Accused. She also recalled seeing the Accused when Ntereye was taken from the prison and killed. She did not witness this killing but heard a gunshot and later saw the corpse of Nteyere, his head crushed as if by a hammer. Subsequently, Witness NN said on two consecutive days she was taken with a group of several hundred people, mostly women and children, to a hole near the bureau communal where the Interahamwe were intending to kill them with a grenade. The first day they were apparently unable to find a grenade. On the second day, they were beaten and brought back to the hole. At that time Witness NN said Rafiki, the Interahamwe who had locked her in his house, took her out of the group and said that she was his wife. According to her testimony, the Interahamwe then started stabbing the group of people, beating them with machetes and throwing them into the hole while she was standing by. Witness NN said she closed her eyes but could hear people crying and shouting. She estimated that the killing of the group took twenty minutes, and recalled feeling as if she were dead, apart from the fact that she was still breathing.
- Witness NN said she was then taken by the younger brother of Rafiki back to his home where she stayed for one week. While she was there, she said she was locked up by Rafiki, who gave the key to other young men who came and “slept with” her, which she explained meant that they took their “sex” and put it into hers. She did not recall how many times this happened, stating that they came every day but that sometimes they did not rape her. After a week, Witness NN told the Chamber that she ran away and hid in the bush. Witness NN expressed the opinion in her testimony that the Accused had the power to oppose the killings and rapes and that by not giving refuge to anybody at the bureau communal, he authorized the rapes which took place. She testified that as a result of the rapes she has had recurring vaginal discharge and pain which require treatment in hospital.
- Witness PP, a Tutsi woman married to a Hutu man, lived very near the bureau communal. Witness PP testified that she saw three women – Alexia, the wife of Ntereye, and her two nieces Nishimwe and Louise – raped and killed at Kinihira, a basin near the bureau communal. Witness PP said that the women were brought by the Interahamwe, at the direction of the Accused, in a vehicle of the bureau communal driven by Mutabaruka, the driver of the commune of Taba. She said she first saw the women in the vehicle at the bureau communal, where she heard the Accused say to the Interahamwe, “Take them to Kinihira. Don’t you know where killings take place, where the others have been killed?” According to Witness PP, who then went to Kinihira herself, the three women were forced by the Interahamwe to undress and told to walk, run and perform exercises “so that they could display the thighs of Tutsi women.” All this took place, she said, in front of approximately two hundred people. After this, she said the women were raped. She described in particular detail the rape of Alexia by Interahamwe who threw her to the ground and climbed on top of her saying “Now, let’s see what the vagina of a Tutsi woman feels like.” According to Witness PP, Alexia gave the Interahamwe named Pierre her Bible before he raped her and told him, “Take this Bible because it’s our memory, because you do not know what you’re doing.” Then one person held her neck, others took her by the shoulders and others held her thighs apart as numerous Interahamwe continued to rape her – Bongo after Pierre, and Habarurena after Bongo. According to the testimony, Alexia was pregnant. When she became weak she was turned over and lying on her stomach, she went into premature delivery during the rapes. Witness PP testified that the Interahamwe then went on to rape Nishimwe, a young girl, and recalled lots of blood coming from her private parts after several men raped her. Louise was then raped by several Interahamwe while others held her down, and after the rapes, according to the testimony, all three women were placed on their stomachs and hit with sticks and killed.
- Witness PP said that no one tried to rape her because they did not know which ethnic group she belonged to. She also said she was protected from rape by an Interahamwe named Bongo because she had given him a sandwich and tea, and he told the other Interahamwe not to harm her. Witness PP testified that some women and children were able to escape from the bureau communal in April 1994 but that they had to “sacrifice themselves” in order to survive. By sacrifice she said she meant that they submitted to rape and she said that she helped to care for one of these women who subsequently came to her house for a week. On cross-examination, Witness PP described her encounter with a woman called Vestine, whom she had rescued from the pit at Kinihira where people were being thrown and where Vestine had just given birth. Witness PP said she brought Vestine to stay in the house of Emmanuel, a man she knew, and when she went back two days later, he told her that Vestine had been taken by an Interahamwe called Habarurena to a sorghum field in a place known as Kanyinya. According to Witness PP, Habarurena kept Vestine in the sorghum field for a week and raped her repeatedly. When she next saw Vestine there was a liquid flowing from her private parts and Vestine told her, “I think it would be better to go Kinihira to be killed.” The next day Witness PP said she saw Vestine being raped, together with other women, and there was nothing she could do. On the following day, from the church where she went to pray, Witness PP said she saw Vestine being killed with a machete, by an Interahamwe called Bongo, and thrown into the pit, having been brought back there by the Interahamwe Habarurena.
- Defence Witness DBB, a former student of the Accused currently in detention in Rwanda, testified that he went to the bureau communal on the 17 April 1994. Thereafter he went into hiding during the massacres and did not go to the bureau communal at all. Witness DBB testified that he never heard of or saw violence perpetrated against women during the events which took place in 1994, and that no women in his sector were raped. Subsequently he did say that he heard people saying that women were being raped in the commune of Taba, outside of his sector, but he said he did not witness this. Witness DBB said he did not hear the name of the Accused mentioned in connection with sexual violence and that it was being attributed to the people who were participating in the massacres and looting. Witness DBB expressed the view that these incidents were being done out of sight of the Accused. On cross-examination he said he did not know anything about the Accused allowing women to be taken away and raped at the bureau communal.
- Defence Witness DCC, the driver of Taba commune, testified that he never heard about violence perpetrated against women in Taba commune, that the Accused perpetrated violence against women in the commune or that the Accused gave orders for women to be raped. He said that during the period he was at the bureau communal, in April and throughout May, there were refugees there and he was there every day. He said nothing happened to the women refugees, and that he did not witness any of them being beaten or taken away to be raped. He said he did not know Alexia, Ntereye’s wife, and denied going to look for her, finding her, and driving her in the communal vehicle to the bureau communal and then to Kinihira. He said the bureau communal vehicle had broken down before the massacres started
- Defence Witness DZZ , a former Taba communal policeman currently in detention in Rwanda, testified that he went to the bureau communal every day and that incidents of sexual violence did not take place there. Witness DZZ also testified that he saw no crimes of any type being committed at the bureau communal. Witness DZZ was quite insistent that he heard of no cases of rape in the entire commune of Taba during this period. Defence Witness DCX in a similar statement said that when he was in Taba he heard no mention of sexual violence. He stated categorically that there was no rape. Defence Witness DAX when asked whether he had heard that the Interahamwe had committed crimes of sexual violence against women stated that nobody talked about such things where he was. He said he could not affirm that elsewhere maybe such things were heard or took place.
- Defence Witness Matata, called as an expert witness, noted only one case he had heard of in Taba, an attempted rape of two girls aged fourteen and fifteen. He expressed his opinion that the bourgmestre would not have been aware of this case as it was in a region, Buguri sector, which the bourgmestre had never gone to. Witness Matata noted that there is a cultural factor which prevented people from talking about rape, but also suggested that the phenomenon of rape was introduced afterwards for purposes of blackmail. He said he had come across incidents of rape in other parts of the country but suggested that cases of rape were not frequent and not related to an ethnic group. Witness Matata expressed the opinion that rapists were more interested in satisfying their physical needs, that there were spontaneous acts of desire even in the context of killing. He noted that Tutsi women, in general, are quite beautiful and that raping them is not necessarily intended to destroy an ethnic group, but rather to have a beautiful woman.
- Defence Witness DIX testified that her father lent his vehicle to the Accused and helped him ensure security in the commune during this period. Witness DIX testified that she was at home in Taba and heard all the news but that she did not hear anything about rape or sexual violence during the killings which took place. However, she said that she received all her information from her parents and neighbours and did not once go to the bureau communal after the killings started. She said that she herself saw the Accused just one time, in April. According to her testimony, she did not speak to him at that time, and has never spoken to him at any other time. Nevertheless, Witness DIX expressed the opinion that the Accused had committed no crime, and she was surprised that he was in prison. Defence Witness DJX, a minor and the brother of Witness DIX, also testified that he did not hear anything about rape and he did not see any cases of rape. The Chamber notes that the written statements of these two witnesses, prepared and submitted by the Defence, are identical. Witness DJX was twelve years old at the time of the events, and like Witness DIX, he testified that he did not go to the bureau communal during this period. He said he saw the Accused two times.
- Witness DFX testified that she was never a witness to acts of rape or sexual violence in Taba and that she never even heard anyone talk about them. The Chamber notes that this witness, who is a protected witness, has a close personal relationship to the Defendant. She testified, on examination by the Chamber, that the Accused did not tell her what was happening at the bureau communal, that she did not ask him, and that her source of information was from other people. On cross-examination by the Prosecution, she testified that she herself never went to the bureau communal during this period for security reasons. On examination by the Chamber, the Witness acknowledged that in her written statement submitted by the Defence she had mentioned reports that the Interahamwe were abducting beautiful Tutsi girls and taking them home as mistresses. She conceded that such conduct could be considered sexual violence as it was not consensual.
- Defence Witness DEEX, a Tutsi woman, testified that before killing women the Interahamwes raped them. Asked whether the Accused encouraged or authorized them in this sexual violence, she said she did not know. On cross-examination, she said that she did not personally witness sexual violence, although she heard that the girls at the house of the family where she had taken refuge were raped by the Interahamwe. Witness DEEX testified that she was given a laissez-passer by the Accused, which helped her to move around safely.
- The Accused himself testified that he was completely surprised by the allegations of rape in Taba during the events which took place. He asserted that anyone saying that even a single woman was raped at the bureau communal was lying. While he acknowledged that some witnesses had testified that they were raped at the bureau communal, he swore, in the name of God, that the charge was made up. He said he never saw, and never heard from his policemen, that any woman was raped at the bureau communal. He said that he heard about rape accusations over Radio Rwanda and that women’s associations had organized demonstrations and a march from Kigali to Taba. He suggested that perhaps this was intended to make the Chamber understand that in Taba women were raped at the bureau communal, but he insisted that women were never raped within the premises of the bureau communal or on land belonging to the bureau communal or the commune.
- In his testimony, the Accused recalled the allegation that he had forced a young girl, Chantal, to march naked. He said he did not know her and that it never took place. He said he would not do something like that. He referred to the account of a woman raped with a wooden stick as “savagery”, questioning how a woman could witness such a thing, and he referred to the statement he had been accused of making at the entrance to the cultural center as “too much”. He also testified that the cultural center building is such that it would be difficult to see what was going on inside from the door and that it would be difficult for a woman lying down inside to know who is at the door. The Accused testified that there were women taking refuge all over and outside the bureau communal and that there were women in the cultural center. He denied that the Interahamwe brought women to the cultural center. He said that some of the women who took refuge at the bureau communal were killed and others escaped.
- On examination by the Chamber, the Accused stated that he did hear about rapes in Kigali but only after he was out of the country. When asked by the Chamber for a reaction to the testimony of sexual violence, the Accused noted that rape was not mentioned in the pre-trial statements of Witness J and Witness H, although Witness H said on examination by the Chamber that she had mentioned her rape to investigators. The Accused suggested that his Indictment was amended because of pressure from the women’s movement and women in Rwanda, whom he described as “worked up to agree that they have been raped.” On examination by the Chamber, the Accused acknowledged that it was possible that rape might have taken place in the commune of Taba, but he insisted that no rape took place at the bureau communal. He said he first learned of the rape allegations in Taba at the Chamber and maintained that the charges were an “invented accusation.
- Having carefully reviewed the testimony of the Prosecution witnesses regarding sexual violence, the Chamber finds that there is sufficient credible evidence to establish beyond a reasonable doubt that during the events of 1994, Tutsi girls and women were subjected to sexual violence, beaten and killed on or near the bureau communal premises, as well as elsewhere in the commune of Taba. Witness H, Witness JJ, Witness OO, and Witness NN all testified that they themselves were raped, and all, with the exception of Witness OO, testified that they witnessed other girls and women being raped. Witness J, Witness KK and Witness PP also testified that they witnessed other girls and women being raped in the commune of Taba. Hundreds of Tutsi, mostly women and children, sought refuge at the bureau communal during this period and many rapes took place on or near the premises of the bureau communal – Witness JJ was taken by Interahamwe from the refuge site near the bureau communal to a nearby forest area and raped there. She testified that this happened often to other young girls and women at the refuge site. Witness JJ was also raped repeatedly on two separate occasions in the cultural center on the premises of the bureau communal, once in a group of fifteen girls and women and once in a group of ten girls and women. Witness KK saw women and girls being selected and taken by the Interahamwe to the cultural center to be raped. Witness H saw women being raped outside the compound of the bureau communal, and Witness NN saw two Interahamwes take a woman and rape her between the bureau communal and the cultural center. Witness OO was taken from the bureau communal and raped in a nearby field. Witness PP saw three women being raped at Kinihira, the killing site near the bureau communal, and Witness NN found her younger sister, dying, after she had been raped at the bureau communal. Many other instances of rape in Taba outside the bureau communal – in fields, on the road, and in or just outside houses – were described by Witness J, Witness H, Witness OO, Witness KK, Witness NN and Witness PP. Witness KK and Witness PP also described other acts of sexual violence which too