Untitled Document

269. Witness GGV’s account of the Accused’s killing of an old man and young boy in Kiziba in Bisesero was set out in II.2.9.1 above.

271. The Chamber recalls that the alibi evidence was examined and rejected in II.2.9.3 above.

272. Based on the totality of the evidence, the Chamber finds that on or about 18 June 1994, sometime between 11.00 a.m. and 3.00 p.m. or 4.00 p.m., the Accused was involved in an attack against Tutsi refugees, at Kiziba in Bisesero, together with many attackers, when one of the attackers claimed to have found Inyenzi, an old man and a young boy. The Accused told him not to kill them but to bring them to him. The Accused told them that their relatives had almost killed him, then loaded his gun and shot the old man in the chest. He shot the young boy in the head and the body, and told the attackers to “remove the filth”, being a reference to their corpses. From the Accused’s comment about the two persons’ relatives, and considering that the attack the Accused was referring to targeted Tutsi, and from other evidence, it is reasonable to infer that the two persons were Tutsi. [236]

273. Witness KJ saw the Accused on 28 June on his way from Charroi Naval to Kibuye for breakfast. [237] Close to the Ecole Normale Technique (“ENT”), the Technical Training College, he saw the Accused pass by in his vehicle on the road from Charroi Naval to the camp. When the vehicle was some distance away, it passed a chocolate-coloured Renault sedan coming from the opposite direction. The witness heard a gunshot, and saw the other vehicle flip over below the road, approximately 15 metres away from the witness. The witness stated that the car had flipped over because the driver had been shot. When he was five metres away, he saw a man and a woman, both dead, inside the vehicle. He saw bullet marks on the bodies and there was blood. One of the bullet holes had gone through the neck and exited from the throat of one of the victims. The Accused was standing next to the vehicle with two “Power” persons, “Power” being the name the Interahamwe gave themselves. The Accused instructed one of them to undress the woman and to fetch a piece of wood. That person brought a branch from the tree, which the Accused asked him to sharpen to a point. He then asked them to bring the bodies from the vehicle, and ordered that the piece of wood be inserted in the genitalia of the woman. This was done by the Interahamwe pursuant to the Accused’s instructions. When the witness returned from the camp that same day, he saw the corpse of the woman still lying there, and a piece of wood in her genitalia. The woman’s body remained there for three days with flies all over it; the vehicle had been removed. He did not know what happened to the man’s body. He did not know the ethnic identity of the two dead persons but the Accused referred to the woman as an Inyenzi. At the time, “Inyenzi” was used to refer to the Tutsi, or anyone opposed to the government at that time. [238]

274. The Chamber refers to the discussion of Witness KJ’s credibility in II.2.2.2 above.

275. With respect to this incident, the Defence suggested that if there was a body lying on the road for three days as the witness testifies, given the French troops were in the region, there would have been a report about it and it would not have remained there for three days. Defence Witness TEN-6 stated that, by 28 June, security had been restored in Kibuye and people could move about freely thanks to the French presence in that zone. [239] TEN-6 further said that there were no more killings after the French arrived on 22 June and that by the month of June bodies could no longer be seen in the streets of Kibuye town. [240] In particular, Witness TEN-6 testified to a reception held in honour of the Pope’s envoy, Cardinal Etchegaray, at the Kibuye prefecture hall on 28 June from 11.00 a.m. until 1.00 p.m., which was attended by approximately 100 people, who would all have had to pass the ENT to get to the reception. In addition, all the people working at the prefectural buildings would have had to pass the ENT on their way home. TEN-6 said that he would pass the ENT on his way to work at 8.00 a.m. On 28 June, he walked past the ENT again at 3.00 p.m., when he left work to walk home. He did not notice anything abnormal and confirmed that he did not hear of any accidents on the road in question or of any shooting or of any dead bodies along the roadway. [241] The witness did not see the body of the dead woman and said that if such an incident had occurred, the population would have talked about it. [242] He said it was unbelievable that killers would be in the area since the French troops were stationed there. [243] Witness KJ disagreed with the Defence proposition and said that in any event, the French did not do anything to stop the genocidal events occurring at the time. The witness himself did not report this incident as senior officials were not opposed to the events at the time and the civilian Interahamwe were stronger than they were. [244] The witness later said that there were numerous decomposing bodies lying on the road at the time, not just that of the woman’s, so much so that it was difficult for vehicles to manoeuvre around them. [245]

276. The Chamber notes that Witness TEN-5 contradicts TEN-6’s evidence to the extent that TEN-5 stated that until 9 July 1994, wounded patients were being brought into the medical center in which he worked for treatment. [246] No other evidence has been adduced to show that the French troops arrived on 22 June. In addition, the Chamber refers to II.3.1.3 above, wherein it was decided that in light of the fact that TEN-6 testified to having given false information in a prior statement, the witness’s evidence is of questionable veracity. For these reasons, the Chamber will not rely on TEN-6’s evidence.

277. Witness KJ did not mention the bullet holes and the make of the victims’ car (Renault) until cross-examination and the Defence suggested he was making things up as he went. The Chamber notes that these details were elicited by specific questions. In addition, his statement mentions a red car having turned over, not a chocolate-coloured one as mentioned during testimony. The Defence suggested he had difficulty differentiating between colours. The Chamber does not consider that this affects the witness’s credibility.

278. The witness added in cross-examination that the Accused told the Interahamwe to undress the woman first. This detail is mentioned in his statement but not in direct examination. [247] As for the Accused’s vehicle, he said it was red with MININFOR inscribed on it, and was his usual car. [248] However, he later said it was inscribed with the word “ORINFOR” in white. The witness explained that ORINFOR was a subsidiary organ of MININFOR, the Ministry of Information. [249] The Chamber does not consider that this discrepancy affects the witness’ credibility.

279. Regarding the instruction from the Accused to the Interahamwe to sharpen a piece of wood and insert it into the woman’s genitalia, the witness clarified that he had been frightened and had left the scene before seeing the act carried out, and he had only noticed the piece of wood in the woman’s genitalia after he returned from the camp. Therefore, he did not see the act itself being committed. [250]

280. Although there are inconsistencies in the witness’s evidence, they do not affect the substance of his testimony. The discrepancies relating to the colour or make of the cars do not detract from the substance of his testimony regarding this incident. The Trial Chamber is satisfied that the witness knew and identified the Accused during the events alleged.

281. The witness’s credibility was considered as a whole in II.2.2.2 above, including submissions relating to this incident, and Witness KJ was found to be a credible witness.

282. The Defence adduced alibi evidence from TEN-10 and TEN-22 to rebut this allegation.

283. Witness TEN-10’s alibi evidence on these dates was examined and rejected in II.2.9.3 above.

284. Witness TEN-22 said that he stayed for three days in mid-June 1994 in Muramba, where the Interim Government was located. He testified to seeing the Accused during his stay in Muramba, when the latter gave an interview that was broadcast. [251] The witness did not provide further detail and he could not narrow the date of the sighting of the Accused further.

285. After this three-day stay in Muramba in mid-June 1994, the witness returned to Gisenyi where he stayed until 13 or 14 July. The witness saw the Accused during this stay in Gisenyi, but he did not know why the Accused was there. [252] The witness did not provide further detail in respect of his sightings of the Accused in Gisenyi from mid-June 1994 to 13 or 14 July 1994.

286. The Chamber considers that Witness TEN-22’s evidence does not provide the Accused with an alibi, given the uncertainty of the dates of the witness’s sightings of the Accused. Therefore, the evidence does not raise a reasonable doubt that the Accused was in the vicinity of ENT on 28 June.

287. Based on the totality of the evidence, the Chamber notes that the witness did not see who fired the gun, or the direction the gunshot came from. His evidence is that at the time he heard the gunshot, he was 15 metres away from the vehicle in which the two people were. He did not see who killed these two people. Consequently, the Chamber finds that there is insufficient evidence in support of the allegation that the Accused killed the man and woman. The Chamber’s findings with respect to the alleged sexual violence committed on the body of the dead woman will be set out in II.7.2.4 below.

288. Witness GGM saw the Accused at the border between Jurwe and Nyarutovu cellules in the morning around the middle of June, after the 12^th. He was hiding in a bush on the upper side of the road from Mubuga to Gisovu, at Bisesero School, close to Kinibaga Hill. He had earlier returned home and proceeded to the top of Gitwe Hill to observe the attackers who were coming from everywhere – the refugees were surrounded. The Accused, who was always accompanied by soldiers, was with about 30 soldiers and civilians. There was a vehicle parked next to them. They were waiting for refugees to come out so that they could shoot them. Some children were flushed out from the lower side of the road by soldiers searching in the bushes. These children were brought to the Accused. They were asked where the adults were hiding, and they replied that they would rather be killed than answer that question. The Accused ordered them to be killed and personally clubbed one child on the back, who then fell. The attackers used machetes to cut up the children. He did not know the names of those children but the one that was clubbed was the daughter of a farmer called Gasarasi. There were four children about 6-7 years old. The Accused was about 15 metres away from the witness. [253] The witness testified to approximately 70 attacks in June. [254]

289. The Chamber notes that this incident is not specified in the Indictment, nor is there mention of it in the Pre-trial Brief, or in either of the witness’s statements; it was disclosed in court just before the witness began his testimony. The Chamber notes that this was a specific act of murder of individuals and as such, should have been specifically alleged in the Indictment. This defect was not cured by additional disclosure, like witness statements. As a result, the Defence had little or no notice of this alleged act of killing. Consequently, applying the reasoning adopted by this Chamber in Ntakirutimana, the Chamber will disregard this evidence.

290. Witness GGM saw the Accused on the border between Uwingabo and Gitwe cellules in June, two or three days after his brothers and sisters had died. The Accused was wearing ordinary clothing, without a vest. The witness was on Nyabushyoshyo Hill, [255] hiding in the woods in a small bush. The witness stated that although he could not see clearly who the people were on the road, he was close enough to be able to see the road and could see the Accused. [256] A young man from Gatiti, who had been flushed out and had fallen, was brought to the Accused and questioned. However, the witness could not hear everything that was said. He was about 40-50 metres away. He explained that in a valley the sound of a voice travels far and that the attackers did not speak in low voices. The soldiers addressed the Accused as “Chief” and asked him what he wanted to do with the man. The Accused ordered the soldiers to kill him. [257] The soldiers then shot this man. [258]

291. This incident is not mentioned in the Indictment, the Pre-trial Brief, or either of the witness’s statements. It emerged in court during the witness’s testimony. The Chamber notes that this was a specific act of murder of individuals and as such, should have been specifically alleged in the Indictment. This defect was not cured by additional disclosure, like witness statements. As a result, the Defence had little or no notice of this alleged act of killing. Consequently, applying the reasoning adopted by this Chamber in Ntakirutimana, the Chamber will disregard this evidence.

292. On 20 May, Witness DAF was hiding in a bush on a hill at a place close to the house of Kabanda who was a very well-known trader. It was not far from the Gisovu-Kibuye road. At this time, he saw Interahamwe, who were accompanying the Accused, looking for people in hiding. They caught a young girl whose age he estimated at 13-15 years. They took this girl to the Accused and put her in his vehicle. The Accused was seated in his vehicle, a red jeep, with the door open. The distance between the witness and the car was about 37 metres. The Accused shut the door and was alone with the girl in his vehicle for about 30 minutes. The witness could not see what the Accused did to the girl in the vehicle because the door was closed. However, the witness stated that the Accused raped the girl and subsequently threw her in front of the vehicle and shot her with a big gun, killing her. He knew that the girl had died because as soon as the Accused shot her, she fell to the ground. She was wearing a skirt and a T-shirt. At the time that he shot the girl, the Accused was seated in his vehicle with the door open, and one leg out. His head was visible to the witness but his other leg was not. The witness reaffirmed under cross-examination that it was indeed the Accused whom he had seen in the vehicle and who had shot the girl. [259] Later, he overheard the Interahamwe talking about the girl having been raped. When the witness came out of the bush after the Interahamwe had left the area, he found the girl in that place spread out on the ground and she was dead. [260]

293. The Defence suggested that Witness DAF was mistaken in his identification of the Accused. At the time that he shot the girl, the Accused was seated in his vehicle with the door open, and one leg out. His head was visible to the witness but his other leg was not. The witness reaffirmed under cross-examination that it was indeed the Accused whom he had seen in the vehicle and who had shot the girl. [261] The witness’s account of this rape and killing of the young girl by the Accused is consistent with his prior statement dated 6 February 1997. The Chamber refers to II.2.6.3 above wherein Witness DAF was found to be a credible witness.

295. Witness TEN-16 said the Accused did not commit this crime and if he had, she would have been aware of it. [262] This evidence does not provide the Accused with an alibi and does not raise a reasonable doubt that the Accused was at the scene of the alleged rape on 20 May.

296. Witness TEN-8 stated that, during the month of April, he did not see the Accused in the region. [263] Nor did the witness ever hear that the Accused was involved in any killing or rape, whether personally or by inciting others, during this period in Kibuye. [264] This evidence does not provide the Accused with an alibi and does not raise a reasonable doubt that the Accused was at the scene of the alleged rape on 20 May.

297. As part of his functions, Witness TEN-9 signed a document to authorize the disbursement of allowances for an official mission entrusted to the Accused and another official by the President of the Republic. The two were to travel to Goma and Gisenyi to negotiate with the Zairean authorities for a new fuel route from Goma to Gisenyi. The mission was supposed to extend from 15 May until 2 or 3 June 1994. [265] The witness declared that he did not accompany the officials on mission. He stated that when a mission order was issued, it was executed; however, he was not in a position to confirm that this mission was in fact carried out. [266] He stated that he did not see the Accused in Gitarama where the Accused usually was, and where he himself was staying at the time, during the period of this mission. [267]

298. The Chamber notes that the witness did not know if the Accused actually went on this mission. He cannot say that he knew that the Accused was in Goma at this time. In addition, the witness does not say that the Accused stayed in Goma everyday from 15 May to 2 or 3 June, even if the Accused did go on mission. The Accused could have left Goma and returned subsequently, without the witness’s knowledge. The Chamber does not consider that this evidence provides the Accused with an alibi and does not raise a reasonable doubt that the Accused was at the alleged rape.

299. The Chamber refers to the examination of TEN-10’s alibi evidence for this period of time in II.2.2.3 above. In addition, Witness TEN-10 testified to a mission the Accused undertook to Goma in mid-May, from 10 to 20 May 1994. [268] The witness had seen the mission warrant intended for Niyitegeka, but he could not remember the length of the mission, nor had he seen a mission report containing more details of the mission. [269]

300. The Chamber notes that the witness did not know if the Accused actually went on this mission. He cannot say that he knew that the Accused was in Goma at this time. In addition, the witness did not state the exact dates of the mission and did not know the length of the mission. The Chamber does not consider that this evidence provides the Accused with an alibi and the Chamber therefore finds that the evidence does not raise a reasonable doubt that the Accused was at the scene of the alleged rape and murder of the young girl. In addition, the Chamber recalls that TEN-10 was found not to be a credible witness in II.2.2.3 above.

301. The witness did not see the Accused rape the young girl. He surmised that the girl had been raped by the Accused in light of the circumstances, and because he had later heard the Interahamwe talk of the girl having been raped. The Interahamwe could not have seen the act either, since it allegedly occurred in a closed vehicle and there is no evidence that the Interahamwe had peered into the vehicle. Nor did the witness state that their reported conversation named the Accused as the perpetrator. There is insufficient evidence for a factual finding that the girl had been raped, or that the alleged rape was perpetrated by the Accused. Therefore, the Chamber finds that there is insufficient evidence to support the allegation that the Accused raped the young girl.

302. However, the Chamber accepts the eyewitness testimony as to the killing of the girl. Therefore, the Chamber finds that on 20 May 1994, the Accused shot and killed a girl of 13-15 years of age in Bisesero by the Gisovu-Kibuye road.

303. On 22 June 1994, Witness GGO saw the Accused from the woods by a ravine close to a cassiterite quarry at Cyamaraba [270] on Kazirandimwe Hill, opposite the Accused’s residence. He saw the Accused with Mika, Sikubwabo and Ndimbati, whom he identified as leaders. They wanted to surround the Tutsi in the pine forest. The Accused was about 50 metres away from the witness. The Accused told the attackers who were tired of killing, to work seriously. Therefore, the attackers remained and it was then that Assiel Kabanda was found. The attackers rejoiced at his capture - they had been looking for Kabanda for several days because he was an influential trader and well-liked. They shouted out that they had found Kabanda and were so happy that they stopped killing that day and returned home. Kabanda was killed after his capture but the witness could not see who shot Kabanda as all the attackers there had guns and there was a series of bullet shots. However, the witness stated that the Accused did not commit the killing. At this time, the Accused was about 70 metres from Kabanda. The witness then saw Mika cut off Kabanda’s head with a machete, and castrate him. Kabanda’s skull was pierced through the ears with a spike and carried away by two men, each holding one end of the spike with the skull in the middle. The Accused was standing close by throughout this incident and was jubilant and rejoicing while the acts were being perpetrated. Mika, Ruzindana, Sikubwabo and others left with the skull. The entire incident lasted 30 minutes to an hour. The witness heard Kabanda’s head was subsequently displayed at Mika’s shop in Gishyita. The genitals were hung on a spike until the witness and others found them and buried them. The witness saw his body without his genitals. [271]

304. The witness knew the Accused when the Accused was a journalist, and also knew that he came from the same area as himself. He saw the Accused during the legislative election campaigns, and during the project of construction of a road from 1981-1983, of which the Accused was a leader. The Accused also arranged for the financing of this project from Adra-SOS. This road branched off from the Cyangugu road, passed by Mugonero Hospital and the Accused’s residence, and led to the Rushishi Centre. The witness was a paid labourer employed on the project for six months, during which time he would see the Accused often when he came to the site. [272] He also saw the Accused during Sikubwabo’s investiture as the bourgmestre of Gishyita commune, which he attended as an inhabitant of the commune. [273] The Accused attended as the representative of the “Power” wing of the MDR Party. Sikubwabo was also a representative of the MDR. Kayishema was present as well. [274] The witness said that the MDR “Power” wing was the wing of the MDR that participated in the massacres against Tutsi. MDR used to be one party but had split into two and this wing was said to be the new MDR. [275] He did not know why the party had split. [276] The witness described the Accused as a stocky man, relatively tall, whose hairline started not far from his eyes, with hairy arms and a potbelly. [277] The witness identified the Accused in court. [278]

305. The Defence argues that the evidence relating to the Accused’s alleged exhortation to the attackers to work seriously late in the day should not be taken into account as it had had no prior notification that this evidence was forthcoming. [279] The Accused’s alleged exhortation to the attackers to work seriously was not mentioned in any of the witness’s prior statements, the Indictment, or the Pre-trial Brief. Therefore, the Defence had no notice of this allegation. The Chamber considers that this allegation is not a mere detail provided during testimony; it is a material allegation against the Accused, of which notice should have been provided to the Defence. Consequently, the Chamber will disregard evidence relating to this alleged act for lack of notice.

306. Discrepancies exist between Witness GGO’s prior written statements as to the date on which he had fled to Bisesero. He explained that a distinction had to be made between Bisesero, the region, and Bisesero, the hill, as he lived on the edge of Bisesero. [280] In his statement dated 6 November 1999, he stated that Kabanda was taken away to Gitwa Hill; yet he testified in the present case to having seen Kabanda being shot and decapitated at the place in which he was found. He explained that he meant that Kabanda’s head was taken away as he felt the head represented the individual. The witness confirmed that his testimony in court was accurate. [281]

307. His testimony in Musema mentions that he woke up after being shot but he claims in this case that he was conscious throughout and merely pretended to be dead. When the attackers left he got up and escaped. He was asked how he could have seen Fran�ois being shot when he was pretending to be dead, but he stated that Fran�ois was shot before he was. He had his eyes open and could observe the attackers pursuing his cousin and subsequently leaving the scene. This was a different Fran�ois from that mentioned in his November 1999 statement. [282]

308. The Defence put it to the witness that the Accused was at a Council of Ministers meeting in Muramba in Gisenyi during the entire day of 22 June 1994, and had made a press announcement during the 7.00 p.m. evening news. This meeting continued until the 24 June 1994. The witness confirmed that he had seen the Accused as testified. He also suggested that the Accused could have absented himself for periods of time during the meeting. [283]

309. The Defence submits that the Chamber should note that Prosecution Witness GGM, who was closely related to Kabanda, did not mention the Accused’s involvement in his gruesome death, and that this casts doubt on Witness GGO’s evidence. [284] The Prosecution pointed to the reference in Witness GGM’s statement to a Kabanda who was killed by gun and machete. The Chamber does not believe that Witness GGM’s omission to volunteer evidence of Kabanda’s death, particularly since he had not been asked specifically to relate what he knew, should be taken as consideration to discredit Witness GGO.

310. There were minor discrepancies in the witness’s evidence, but the Chamber notes his explanation that he answered questions asked by investigators and that his experience of fleeing and being without food for three months meant one did not always have the presence of mind to provide details. The Chamber notes that Witness GGO took care to testify to that which he saw, without exaggeration. He does not allege that the Accused was a perpetrator of the act of killing and mutilation of Kabanda, merely that he was present and observed the event. The Chamber finds that Witness GGO is a credible witness.

311. The Chamber refers to II.2.9.3 above where TEN-10’s alibi evidence in respect of this time period was examined and rejected.

312. Based on the totality of the evidence, the Chamber finds that on 22 June 1994, sometime in the afternoon after 3.00 p.m., at Kazirandimwe Hill, the Accused was with others leading an attack against Tutsi refugees. The attackers found a prominent Tutsi trader, Assiel Kabanda, for whom attackers had been looking several days. The Accused and the others rejoiced when they found him. The Accused and others were jubilating when Kabanda was killed and subsequently decapitated and castrated, and his skull pierced through the ears with a spike. His genitals were hung on a spike, and visible to the public. Although the Accused did not personally kill Kabanda, the Chamber finds that he was part of the group that perpetrated these crimes, and rejoiced at the commission of these acts.

313. The Chamber refers to Witness KJ’s evidence of the sexual assault on the body of a dead woman on 28 June near ENT set out in II.5.2.1 above.

314. The Chamber refers to II.5.2.2 above, wherein Witness KJ was found to be a credible witness.

315. The Chamber refers to II.5.2.3 above, wherein the alibi evidence relating to this incident was examined and rejected.

316. Although the witness did not see the act of inserting the piece of wood into the woman’s genitalia, he heard the order being issued by the Accused and later saw the woman lying on the road with wood sticking out of her genitalia. Based on the totality of the evidence, the Chamber finds that on 28 June 1994, near the Technical Training College, on a public road, the Accused ordered Interahamwe to undress the body of a woman who had just been shot dead, to fetch and sharpen a piece of wood, which he then instructed them to insert into her genitalia. This act was then carried out by the Interahamwe, in accordance with his instructions. The body of the woman, with the piece of wood protruding from it, was left on the roadside for some three days thereafter. The Accused referred to the woman as “Inyenzi” which the Chamber is satisfied was meant to refer to Tutsi.

317. Evidence of other issues was raised by the Prosecution and the Defence. These relate to the Accused’s political affiliations, the condition of the roads in Bisesero at the material time, the fact that the Accused is overweight, the good character of the Accused, the denial of genocide in Rwanda, and the allegation of influence or pressure exerted upon Prosecution witnesses. The Chamber will now present its findings in respect of these issues.

318. The Prosecution and the Defence made submissions as to the Accused’s involvement in the MDR Party and the Interim Government.

319. The Prosecution submits that due to internal conflicts within the MDR Party, it had split into two factions. One faction was a moderate faction under the leadership of Faustin Twagiramungu, which supported the Arusha Accords. The other faction was termed “MDR Power”. This second faction, the Prosecution argues, was against the Arusha Accords and advocated hatred and violence against the Tutsi, according to a Hutu-based ideology aligned with that of the former MDR Parmehutu. The Prosecution contends that the Accused was a member of the “bigoted POWER wing”. In addition, the Prosecution submits that MDR’s participation in the Interim Government together with the MRND, which was anti-Tutsi, shows that the MDR’s platform was not one of democracy. Although the Statute of the Party advocates democracy, the Prosecution submits that that does not mean that the Accused himself possessed those ideals.

320. The Accused’s participation as Minister of Information in the Interim Government, which had no Tutsi members and advocated a policy of violence against the Inkotanyi and their accomplices, the Prosecution contends, shows his ethnic bias. The Prosecution points out that the Accused did not resign from his post, nor publicly condemn the atrocities in Rwanda; instead, he participated in cabinet meetings, issued government reports on Radio Rwanda, and personally participated in crimes in the Kibuye Prefecture. According to the Prosecution, by doing nothing, the Accused tacitly approved of the government’s actions, and failed to abide by his duties set out in the Constitution. [285]

321. The Defence denies that there was a formal split of the MDR Party into two factions. It contends that some members, including Faustin Twagiramungu, were removed from the party, and it was these former members who subsequently used the term “MDR Power” to refer to the members who had remained within the MDR Party. Therefore, there was no party called “MDR Power”.

322. The Defence submits that the MDR Party promoted democratic ideals and was not ethnically biased. It pointed to Defence witnesses who testified to having joined the MDR Party as they were attracted to its democratic ideals. The Defence asserts that the Accused continued to support a democratic MDR Party.

323. In response to the Prosecution’s submissions that the Interim Government had no Tutsi representatives, the Defence pointed out that the Tutsi supported the RPF. It asserts that the Accused supported the Arusha Accords and democracy in Rwanda. The Defence submits that the Accused joined the Interim Government in order to ensure peace and democracy for Rwanda and the implementation of the Arusha Accords. [286]

324. Witness GK stated that in 1993, the MDR Party split into two: the “Power” wing and the “MDR” wing. According to the witness, the Accused belonged to the extremist one, the “Power” faction, which was not in favour of the Arusha Accords. Regarding the split of the MDR Party, it was said that the leadership of the party was causing problems with the smooth functioning of the party; it was known to outsiders that there were problems, which caused people to follow the leader of one wing or the other. As for the “Power” wing’s platform, the witness testified that they believed that the Accords were signed by Inkotanyi, and they were not willing to review the Accords. The majority of both wings of the MDR Party was Hutu. However, the witness said that the problem in MDR was not ethnic in nature, but political. [287]

325. Witness GK was not a member of the MDR; he was a member of the MRND Party from 1990 to 1992, and from 1993, of the PSD (“Parti Social D�mocrate”) Party. Therefore, his information is not that of an insider to the functioning of the MDR Party. The Chamber refers to its finding in II.4.3.2 above that Witness GK is a credible witness.

326. Andr� Sebatware held the positions of Minister of Post and Telecommunications, Minister of the Interior and Justice, and Prefect of Kigali Prefecture twice. On 31 January 1981, Sebatware was dismissed from his position as Prefect of Kigali prefecture and worked as an independent businessman, until 6 April 1994. [288] The witness was a member of the MDR political bureau, and its vice-chairman for Ruhengeri Prefecture. After 7 April 1994, he remained as a nominal member of the political bureau. [289]

327. Sebatware first knew the Accused in 1975, when the Accused was a journalist and reported on MRND or prefectural meetings. Later a close relationship developed, based on their common MRND membership at that time. [290]

328. The witness stated that the Accused was the MDR chairman in Kibuye and a member of its political bureau. The witness supported the Accused’s nomination by the MDR as a member of the Broad-Based Transitional Government. According to the witness, in conformity with MDR policy, the Accused supported the rapid implementation of the Arusha Accords. The Accused wanted peace to be restored in the country, and he strived for a democratically elected government. [291]

329. Sebatware was among those who re-launched the MDR-Parmehutu, a party established in 1959 and dedicated to “defend people, especially the Hutus who had no rights in their country.” He said that the word “Parmehutu” was deleted from the name of the new party because it referred to the emancipation of the Hutu, a goal which had been achieved, and because the law on political parties prohibited ethnicism. The party was then called “MDR Party”. [292]

330. According to Sebatware, the MDR did not split into two factions, and he denied that there was a faction called “MDR Power”. The witness further denied that the word “Power” was used in respect of an alliance of the majority (the Hutu) against the minority (the Tutsi). He first heard the word being used by Froduald Karamira. He said that when Karamira used the word, he was referring to those who were in combat or who were attacking Rwanda. Karamira had not suggested that everyone was to unite against the Tutsi. Further, on subsequent meetings with the witness, Karamira never expressed such views to the witness. Like Defence Witness Nkezabera, Sebatware stressed that there were no documents showing that the party was called “MDR Power”. [293]

331. Sebatware stated that Twagiramungu was expelled from the MDR because he had made decisions without confirmation from the party. He had taken the unilateral decision of appointing himself Prime Minister in the Broad-Based Transitional Government, without nomination by the MDR Party, after the Prime Minister of Rwanda, Agathe Uwilingiyimana’s, death on 7 April 1994. His expulsion was confirmed by the Tribunal of First Instance of Kigali. A few people followed Twagiramungu, but the majority of the members of MDR remained in the party. As a result of this, the MDR lost three ministerial posts in the Broad-Based Transitional Government during the Arusha Accords negotiations and it could not accomplish its objectives. [294]

332. Regarding the relations between the MRND Party and the MDR Party, Sebatware declared that members of the MRND were attacking members of opposition parties in Rwanda in 1992. The witness testified that the Accused and others were victims of such political violence. As an example, he referred to the destruction of the Accused’s house. Although MRND members had attacked MDR members, the MDR participated in the Interim Government to work for democracy, to organize elections and to stop the war. The witness denied that the MDR joined the MRND-dominated Government to achieve the common objective of defeating the enemy. He asserted that the draft constitution of the MDR (Defence Exhibit D43) contained key articles showing that membership was open to all ethnic groups. Sebatware said that the MDR advocated the swift implementation of the Arusha Accords. Sebatware stated that the Accused could not have had any relationship with the MRND since the MRND party was in contravention of the principles in its Statute, notably, when it pursued acts of violence. [295]

333. Sebatware stated that the non-Twagiramungu faction of the MDR proposed the MDR candidates for the new government of 9 April 1994: Kambanda (Prime Minister), Bicamumpaka (Minister of Foreign Affairs), the Accused (Minister of Information), and Rwamabuka (Minister of Education). He knew of no Tutsi participating in the Interim Government. Sebatware testified that the MDR struggled to have the RPF stop fighting in order to have a government comprised of Hutu and Tutsi. [296] Sebatware stated that this government was a democratic government. However, Sebatware explained that the Interim Government could not achieve its objective, to restore peace in Rwanda, because it was not respected by the international community. [297]

334. According to Sebatware, the MDR did its best to achieve its objectives and remained true to its fundamental principles. The MDR chose representatives for the Interim Government who were committed to these principles. According to Sebatware, Kambanda was such a person, and if he committed genocide, he betrayed the party, as did Twagiramungu. Sebatware did not accept the proposition that Kambanda had committed genocide. He emphasized that Kambanda was not ordered by the party to commit genocide. [298]

335. The witness denied that one of the ideals of the MDR was to form an alliance against anti-democratic Tutsi, and he denied that there was a plan to kill Tutsi, including women and children. He stated that those who had taken up arms against Rwanda were opponents of the MDR, whether Hutu, Tutsi or Twa. However, the witness acknowledged that women and children were killed at the time. The witness emphasized that many people had already died when the government was set up on 9 April 1994 and noted that the government immediately took measures. [299]

336. Sebatware testified that Kambanda’s government issued pacification messages. He did not remember dates, but that he had heard many pacification messages of the Interim Government broadcast on Radio Rwanda by the Accused as the Minister of Information. In these messages, the witness never heard the Accused express the view that Tutsi men, women and children should be specifically targeted and killed. He added that this would have been against the nature of the Accused. [300]

337. The witness recalled one specific speech made by the Accused as a Minister of the Interim Government, in Butare, which he heard on the radio (Defence Exhibit D44). According to Sebatware, the Accused’s general message was that people should not kill each other, but that they should rather work together, that killing would not resolve the problems of Rwanda, and that people should not be victims on the basis of their ethnic origins. [301] Sebatware further explained that the word “enemy” was “a military term” which referred to the accomplices of the RPF. The witness denied that there had been a genocide in Rwanda. [302]

338. The Chamber observes that the witness was a high-level member of the MDR Party and offered an insider’s perspective of the politics within the MDR Party. However, the Chamber notes that there are some inconsistencies in the witness’s testimony in some crucial respects. The evidence is unclear as to whether there were two factions within the MDR Party, one called “MDR-Power”, and as to what its platform was. The witness did not adequately explain how the Accused could have joined the MRND-dominated Interim Government given that he stated that the Accused could not have had any relationship with the MRND as the Accused was averse to its violent actions, and given that the MRND had committed violent acts against the Accused himself by destroying his property. In addition, the witness stated that Kambanda was one of those committed to the democratic principles of the MDR. His opinion was that Kambanda had betrayed the MDR if he had committed genocide. The witness was reluctant to say that there were no Tutsi in the Interim Government.

339. The witness was among the founding members of the MDR. Prior to and during the events, he was vice-chairman of the party in Kigali-ville and a parliamentary candidate for the Broad-Based Transitional Government.

340. The witness knew of the Accused in the early 1980s when the Accused was a journalist. He used to hear the Accused on Radio Rwanda. Once in a while they would see each other on the road in Kigali. However, the first time that the witness actually met the Accused was in 1991, when they became involved in politics together. He and the Accused were among the founders of the MDR in 1991. [303] Both thereafter assumed high positions within the MDR on the national level. [304]

341. In the course of the democratization process, following a speech by President Habyarimana on 5 July 1990, the MDR-Parmehutu was re-established and officially launched on 31 July 1991 with the name MDR.

342. According to Nkezabera, there were substantial differences between the MDR and its predecessor, the MDR-Parmehutu, in their respective economic, political and social programs. [305] The witness suggested that the MDR-Parmehutu had been solely dedicated to protecting the interests of the Hutu and emancipating the Hutu from the oppression of the Tutsi, but he also declared that the MDR-Parmehutu’s message was not only directed at the Hutus but also at emancipating the masses. [306] The founders of the MDR Party, among them the Accused and the witness, dropped the term “Parmehutu” as they wanted to create a party without any ethnic ideology and the word “Parmehutu” was no longer necessary because democracy in Rwanda concerned everyone.

343. The witness testified to the platform of this new MDR: it advocated democracy, individual freedoms, the reunion of Rwandans regardless of ethnic considerations, and the end of violence. Its motto, as shown in the party’s Statute, was: “Liberty, Justice, Work”. The new MDR respected its principal objectives and the notion of non-discrimination. [307] The witness indicated that there were Tutsi members in the MDR. However, he acknowledged that none of the MDR representatives in the governments prior to the events was Tutsi. [308]

344. Nkezabera said that there was no split in the MDR; rather, it was a fringe that had broken away from the party. This fringe, however, did have the power to continue the Arusha negotiations. [309]

345. According to the witness, the first reference to the term “Power” was made by Twagiramungu in a radio broadcast. [310] However, he admitted that Karamira used the term “Power” during a speech held in the Nyamirambo stadium on 23 October 1993 after President Ndadaye’s assassination in Burundi. The witness maintained that the MDR did not approve of this speech. He emphasized that, in a subsequent meeting, Karamira was blamed for statements that went counter to the MDR ideology. [311] The witness disagreed that each party in Rwanda, including the MDR, had an extremist Power-branch. He referred to the headings used on official MDR-documents, where the word “Power” did not appear. [312] He stated that Twagiramungu had been expelled from the party for taking unilateral actions without consulting the party. [313]

346. The witness testified to attacks by the MRND against the Accused. According to the witness, the Accused was the object of attacks because of his opinions and his position within the MDR. In March 1992, grenades were thrown at the Accused at Gitega, as he was passing in his vehicle. After the signing of the Arusha power-sharing protocols, in January 1993, the Accused’s garage and petrol station in Nyabugogo, Gatsata, were pillaged during protests organised by the MRND. In the second half of 1993, the Accused was assaulted after chairing a political rally in Kibuye, when passing through Birambo. [314]

347. The witness agreed with the contents of a letter dated 13 April 1994 from the Permanent Representative of Rwanda to the UN, Jean-Damasc�ne Bizimana, to the Security Council, [315] wherein it is stated that the government is pursuing negotiations with the RPF, that it is seeking to provide security for the population and that it has regained control of the situation in Rwanda. [316]

348. Witness Nkezabera also offers an insider’s perspective on the internal political tensions within the MDR Party. The Chamber finds that there is insufficient evidence as to whether there was a faction called “MDR-Power”, and even if there was, what its platform was. He did not explain why the Accused or the MDR joined the MRND-dominated Interim Government despite their violent actions against the Accused and members of opposition parties. In addition, as he was not in Rwanda at the material time, his evidence as to events at the time is of limited value.

349. The witness said that he had heard the Accused on the radio both when the Accused was a journalist, and later when he was a Minister and excerpts from his speeches were broadcast. The Accused said the MDR was a democratic party, which provided everyone with the necessary liberties and the opportunity of expressing himself. He said that the party was different from other parties. It was a party that did not practice ethnic or religious discrimination. [317] TEN-23’s testimony is not direct evidence about the Accused himself.

350. The witness declared that MDR Chairman Faustin Twagiramungu had been expelled from the party because of his failure to comply with instructions from the party. Among other problems, Twagiramungu would take unilateral decisions instead of consulting other leaders of the party. Specifically, Twagiramungu nominated himself for the position of Prime Minister in the Broad-Based Transitional Government without seeking the approval of the appropriate committee. The MDR National Committee therefore excluded him and the decision was confirmed by the Nyamirambo Tribunal of First Instance in Kigali. [318]

351. The witness denied the existence of factions within the MDR. He added that there was only one MDR, and that Twagiramungu and his followers, dismissed from the party, referred to those remaining in the party as the MDR-Power. He then declared that the Accused was among those who remained in the MDR. [319]

352. The Chamber refers to its findings as to the reliability of TEN-9’s alibi evidence above in II.6.1.3 and II.2.7.4. The Chamber finds that there is insufficient evidence as to whether there was a faction called “MDR-Power”, and even if there was, what its platform was, and therefore makes no finding in this regard.

353. Witness TEN-5 stated that he joined the MDR in 1991 because it was against dictatorship and for democracy. The party wanted transparency in elections, and the party did not practice ethnic, religious or regional discrimination. The witness further stated that he supported the Arusha Accords. In response to a question regarding the Accused’s role in the MDR, the witness stated that the Accused was a member and activist, but he did not think the Accused occupied any post within the MDR. [320]

354. The witness does not address the Accused’s political affiliations. Further, considering the lack of knowledge the witness had about the Accused’s role in the MDR, the Chamber finds his evidence to be of little value.

355. The witness became a member of the MDR. He found the MDR’s objectives, namely reconciliation and development without distinction in terms of region or group membership, appealing. He never held any post of responsibility within the MDR. He could not recount the party’s view on the Arusha Accords, as he had been a member of the MDR for four months only. [321]

356. The Chamber recalls that Witness TEN-10 was found not to be a credible witness in II.2.2.3 above. Given his brief time as a member of the MDR, and his lack of knowledge about the MDR Party, the Chamber considers that the witness’s evidence is of limited value in this regard.

357. There is insufficient evidence to enable the Chamber to make findings on the politics and ideologies followed by the various groups and individuals in Rwanda at the material time, or on the internal politics of the MDR Party in particular. It is not disputed that the Accused was a member of the MDR Party and that the Interim Government was formed on 9 April 1994, which comprised MDR Party members, including the Prime Minister Jean Kambanda and the Accused, as Minister of Information. The Interim Government comprised solely members of the Hutu ethnic group.

358. Contrary to the Defence’s assertions, the Accused was invited to join the Interim Government and did so of his own volition. [322] The Accused’s own words during a meeting in Butare (Exhibit D44) do not indicate he was coerced or forced into joining the government: “As far as I am concerned, I was doing rounds when I was contacted. At the time, I did not know that I was going to become a minister. I was doing rounds to ensure my own security…When they [the RPF] attacked, the army intervened to defend the country and we were asked to do rounds. It was necessary given the gravity of the situation. Why then was I taking part in the rounds? Was I doing so while waiting for a post within the government of killers? Other members of the government were called upon while they were carrying out other duties.” [323] The Chamber finds that the Accused was an active participant in the government and supported its policies and activities. He attended government meetings at cabinet level, represented the government’s point of view in disseminating information as Minister of Information. In particular, he supported the Prime Minister Jean Kambanda [324] and spread his message on Radio Rwanda and at public meetings like that held on 3 May 1994 at Kibuye Prefectural Office.

359. The Defence adduced evidence that the condition of the roads in Bisesero at the time of the events alleged were so bad due to the rainy season that heavy vehicles would not have been able to access the roads, for example, vehicles like the buses and lorries that the Prosecution claims transported attackers to sites of attacks in Bisesero.

360. Both Prosecution Witness Lucassen and Defence Witness Nzeyimana, who photographed various areas in Bisesero and whose reports were admitted as exhibits, were not in Bisesero at the material time and were not able to testify to the condition of the roads in April-July 1994.

361. Defence Witness TEN-8 testified to the bad condition of the road from Mubuga to Bisesero so that ONATRACOM buses could not have used the road. [325] However, the Chamber notes that Nzeyimana testified to more than one route that one could take from various locations within Rwanda to Bisesero. [326]

362. There is therefore insufficient evidence to support the Defence contention that the roads were impassable at that time.

363. The Defence adduced evidence to the effect that the Accused could not be found to have participated personally in attacks as alleged by the Prosecution, because his obesity hampered his ability to run about the hills, chasing after and killing Tutsi refugees, as alleged.

364. Defence Witness TEN-22 described the Accused in 1994 as fat (110-130 kilos) and of medium height, someone who moved around with difficulty and who could not play a game of football. Defence Witness TEN-9 described the Accused in the first months of 1994 as “a fat person”, “a giant” weighing about 120 kilograms. He said that he always saw the Accused out of breath after climbing the stairs to the second floor of the Kigali building where the MDR-Kibuye Section held their regular Monday meetings. He added that, as a result, he usually needed “a little break” before the meeting started. [327] However, TEN-23 stated that the Accused was not so fat that he could not move around, and that he was in good health. [328]

365. The Chamber notes that it is alleged that the Accused drove to the attacks in Bisesero in a vehicle, and did not arrive on foot. He was able to climb the stairs to the MDR meetings in Kibuye, as testified to by TEN-9. For these reasons, the Chamber considers that this defence is without merit. For the record, the Chamber observed during the trial that the Accused was not noticeably overweight.

366. The Defence adduced evidence of the good character of the Accused, of his commitment to democratic principles and of his standing as a good Christian who would not have committed the crimes alleged.

367. Defence Witness Sebatware knew the Accused to be an intellectual person, who loved truth and opposed ethnicism. Sebatware was surprised to hear of the charges against the Accused. He stated that the crimes the Accused was charged with contravened the MDR objectives and the Accused’s religious convictions; he further stressed that the Accused’s father was a pastor. [329] He also stated that the Accused was the victim of attacks by MRND members against members of opposition parties (see paragraph 16 above).

368. Defence Witness TEN-22 recalled a few communiqu�s about the results of government meetings delivered by the Accused over the radio. In those communiqu�s, the Accused did not call for killings or say anything against the Tutsi. The witness testified that from the few broadcasts which he heard, he could not discern the Accused’s political interests. [330]

369. Defence Witness TEN-23 testified to an incident when the Accused saved him and others from Interahamwe who were trying to break into the place in which they were sheltering (see II.2.7.4 above).

370. Defence Witness TEN-9 testified to the Accused’s speeches at MDR rallies and meetings. The Accused spoke of respect for others’ rights, whether they be Hutu, Tutsi or Twa. He said that even if Hutus were in the majority they should understand that Tutsi and Twas also had rights. He was against discrimination amongst Rwandans, and was a moderate person who defended human rights. The witness testified about the fundamental principles of the MDR, stressing that, in his opinion, the Accused respected these principles in all that he did: (i) respect for individual rights, which applied to all Rwandans whether Hutu, Tutsi or Twa, and (ii) sound management of public property. [331] He added that the Accused was “of high morality” and “a man of moral rectitude”. [332]

371. The witness explained that, during the meeting he had with the Accused and other representatives of Rwandan political parties, in Washington DC in September 1990, in regard to power sharing, a representative of the Liberal Party (which was, according to the witness, mainly comprised of Tutsis) declared that he did not understand how a Hutu could join a Tutsi party. The witness testified to the Accused’s reaction to this statement as being that each person had a right to join the party of that person's choice, whether the party is comprised of Hutus or Tutsis. The Accused said that the important thing is that that party should speak on behalf of Rwandans and everybody should be allowed to take part. [333]

372. The witness referred to an MDR rally held in Kivumu Commune, Kibuye Prefecture, in 1993 at the Nyamitanga Stadium, where the audience comprised the Hutu, Tutsi and Twa. The Accused called on the bourgmestre of Kivumu and told him that the MDR wanted to see all ethnic groups in his commune live in harmony just like the trees are living in harmony in the forest. The participants applauded and shouted merrily. At the end of the meeting, the witness met Tutsi from his area who expressed their happiness at hearing the Accused’s speech and added that they thought that the MDR was a good and peaceful party that brought all the people together. [334]

373. Witness TEN-8 stated that he never heard any member of the Interim Government tell the population to kill the Tutsi. [335]

374. Defence Witness Nkezabera knew the Accused to be someone who loved dialogue. He had never heard the Accused express extremist anti-Tutsi views. [336]

375. The evidence given by Defence witnesses of the good character and democratic ideals of the Accused are mainly based on their knowledge of him prior to the events of 6 April 1994. The Chamber notes that jurisprudence has established that character evidence is rarely of probative value in showing the Accused’s propensity to act in conformity therewith. [337]

376. The Defence adduced evidence to show that there was no genocide at the time in Rwanda, but that Rwanda was in a state of war, presumably indicating that the people killed were casualties of an ongoing war.

377. Defence Witness Sebatware stated that Hutu, Tutsi and Twa killed each other. He stated it was not true that people from one ethnic group were killed solely because they belonged to that ethnic group, and that the number of Hutu killed was greater than the number of Tutsi killed. Sebatware stated that he did not know about massacre sites in Kigali-rural in which women and children were slaughtered because he did not go out. [338] As Sebatware had no personal knowledge of these events occurring at the time, the Chamber accords limited weight to this part of his testimony.

378. Defence Witness TEN-10 did not believe that genocide had occurred in Rwanda and, more specifically, he denied having ever heard about a massacre in Gatwaro Stadium, let alone a massacre of Tutsi, or about the massacre in Mubuga Church. The Chamber notes that both events took place in Kibuye, the witness’s native region. In the witness’s view, people were killing each other during the war and the authorities could not put an end to it. The witness denied that Tutsi children were killed from 7 April and 17 July, and stated that nobody verified the ethnicity of those killed. The witness further denied that people were divided into ethnic groups during the period from 7 April and 17 July. [339] He attributed the killings to RPF soldiers who were standing at a roadblock, disguised as FAR soldiers. The witness’s lack of knowledge about large-scale massacres in his area, such as in Gatwaro Stadium and Mubuga Church, casts doubt on his credibility and indicates a bias. The Chamber also recalls that TEN-10 was found not to be credible in II.2.2.3 above.

379. Defence Witness TEN-16 testified to the movement of people from her secteur to West Kivumi, to defend their cattle and their own lives from bandits. She stated that the inhabitants of her secteur were mostly Tutsi, except for two Hutu, who were the witness’s brother and cousin. According to the witness, Tutsi from outside the vicinity sought refuge with the group. Witness TEN-16 noted that at the time, everybody was afraid, and Hutu and Tutsi alike slept outside of their houses at night. The witness said that she understood at that time that there was a war, but she did not understand why the war had started. In this area where she had taken refuge the witness observed groups of people attacking others, using sharp objects, and chasing them over long distances. [340]

380. On cross-examination, Witness TEN-16 stated that, between April and July 1994, she never personally travelled to the Bisesero region. She also never travelled to the Mubuga region while she lived in Rushushi. The witness further acknowledged, on cross-examination, that she had not witnessed what had occurred at the sites in Bisesero or at the Mubuga Church. She stated, “I am unable to talk about those events, but I can talk about what I heard regarding those events.” [341] As the witness was never personally at the scene of the alleged crimes in Bisesero, her testimony is of limited value.

381. During cross-examination, Witness TEN-23 testified that he had not heard of any killings having occurred at Gatwaro Stadium, or at a church in Kibuye, and stated that, although he had heard that people had been killed in the hills of Bisesero, he did not know the ethnicity of those people. “I heard that people were killed there, but I don't know their ethnic group … All I know is that Tutsis and Hutus died. I cannot identify either the Tutsis, or the Hutus”. [342] Asked why he thought Tutsi women and children had died after 7 April 1994, Witness TEN-23 responded: “They died because it was war time. Many people were killed by guns, others were killed by criminals. Tutsis who were killed were killed because they were accomplices of the Inkotanyi. Men, women and children, and the Hutus who were accomplices of the Inkotanyi were also killed during that time, because there were accomplices in the two groups”. [343] The witness’s evidence that women and children were killed as they were accomplices of the Inkotanyi indicates a bias in the witness’s view of events in Rwanda at the time. Yet the witness himself testified to Tutsi being sought in Witness TEN-19’s house, where he was sheltering (see II.2.7.4 above), thereby acknowledging that Tutsi were being targeted at the time. Considering the witness’s evident bias, the Chamber does not find him to be a credible witness in this respect.

382. Defence Witness TEN-8 stated that Tutsi and some Hutu moved toward Mugonero Hospital and Bisesero because a broadcast by the radio station Muhabura called on them to do so. The witness understood that the RPF army would provide for the security of the refugees. According to Witness TEN-8, another reason for the flight of the Tutsi to Bisesero was that parents, who had sent their children to join the RPF, had decided to flee once they understood that the RPF had not complied with the Arusha Accords. [344]

383. As for the attacks on Tutsi, the witness explained that there were two groups of people who attacked and killed the refugees who gathered at the Mugonero complex: a group of bandits, and a group of persons who were angry about the theft and destruction of their crops by Tutsi, as well as about the RPF’s violation of the terms of the Arusha Accords. [345] However, Witness TEN-8 was never personally at Mugonero or Bisesero, although he said that he saw the bandits move toward the area of the Mugonero Hospital and proceed on to Bisesero. [346]

384. Witness TEN-8 admitted that he never saw RPF soldiers during the period from 7 April to mid-July 1994 and he did not believe that the RPF were protecting the Tutsi in Mugonero. Moreover, the witness acknowledged that he never heard on the radio that the RPF were protecting Tutsi at Gatawaro Stadium. Nevertheless, Witness TEN-8 claimed that he believed the RPF had protected the Tutsi on the hills of Bisesero. [347]

385. The witness attributes killings to bandits, and people angry about the theft of crops and about the RPF’s activities. He acknowledges that he never saw RPF soldiers from 7 April to mid-July 1994. In addition, the witness was never personally present at Mugonero and Bisesero and his testimony as to the events occurring in those places at the time is therefore of limited value.

386. Witness TEN-9 testified to the resumption of the war between the RPF and the government in Kigali on 7 April 1994. He was an eyewitness to fighting between the RPF stationed in the CND building and the gendarmerie stationed in a camp on Kicukiro Hill. According to the witness, the RPF opened fire, and the gendarmerie shot back at the CND.

387. He specified that the two exit roads were blocked by the RPF and that “the RPF was killing Hutus”. [348] At one roadblock, on the Nyabarongo river, he saw both Hutu and Tutsi being detained because they did not have an identity card. He did not see any killings at the roadblocks.

388. Witness TEN-9 testified to RPF opening fire and gendarmes returning fire in Kigali; it is not his testimony that the RPF were killing civilians. He mentioned the resumption of war in Kigali, but not in the area of Bisesero. The witness’s testimony does not address the evidence of genocide in Bisesero.

389. Defence Witness TEN-22 testified to a specific attack by “bandits” on the house of a Tutsi in his neighbourhood. He could not specify the attackers’ ethnic identity. One day, a bandit went to his house with another person and asked him for cigarettes. The witness gave them money, because otherwise he feared they would harm him. The witness defined this incident as a threat rather than an attack. [349] The witness’s testimony does not address the evidence of genocide in Bisesero.

390. Witness TEN-5 did not think that there was genocide. [350] However, the witness testified to individuals attacking his house, looking for people hiding inside and for his wife, who was suspected of being a Tutsi, or “an accomplice”. He further declared that on 16 April 1994 five Tutsi patients were abducted from the medical clinic and murdered. [351] Witness TEN-5 testified to his wife being sought, on the suspicion that she was Tutsi, thereby confirming that the Tutsi were being targeted at the time. His statement that there was no genocide has little weight as he was in the hospital at the time, and was not in a position to know the events taking place outside; all his information in this regard was obtained from the patients in the hospital.

391. The Prosecution contends that the Defence’s submissions are flawed as evidence shows Tutsi civilians and non-combatants were killed. Further, it submits that there is no evidence that the RPF were in Kibuye at the time or that the Tutsi were an armed force constituting combatants. In addition, even if Hutu were killed, the Prosecution argues that that does not justify the killing of Tutsi civilians. [352] Prosecution Witness GK testified to the absence of RPF in Kibuye and said that people would claim that the RPF were present as an excuse to attack Tutsi (see II.4.3.4 above).

392. The Chamber took judicial notice of the fact that in Rwanda, in 1994, including the period April to July 1994, attacks were suffered by civilians on the grounds of their perceived political affiliation or ethnic identification. [353]

393. The evidence does not point to the presence of RPF forces in Kibuye at this time. The Chamber notes that the letter of J�r�me-Cl�ment Bicamumpaka, Foreign Affairs Minister, to the UN Security Council dated 13 April 1994, reported that the Government had gradually been regaining control and that murder and looting had decreased across the nation. [354] The letter mentions that the RPF were in the north of Rwanda only. There is evidence from Defence witnesses as well that the RPF were not present at the time in the areas covered by their testimony, mainly Kibuye. Witness TEN-9 testified to the resumption of war in Kigali, not in other parts of Rwanda, like Bisesero. The Chamber accepts that there was a war between the Rwandan government and RPF forces at the time, but there is no evidence of the presence of RPF forces in Kibuye during that period. In any event, that there was an ongoing war at the time does not negate the occurrence of genocide in Rwanda.

394. Regarding the denial of genocide specifically, the Chamber notes that there is overwhelming evidence of massacres targeting Tutsi civilians, from both Prosecution and Defence witnesses (TEN-23, TEN-8 and TEN-5), to adopt the Defence’s position would be so contrary to the evidence as to be perverse. The Chamber further notes that the Prime Minister, Jean Kambanda, pleaded guilty to genocide before the Tribunal and was convicted on 4 September 1998.

395. During a speech at a meeting in Butare to a Hutu audience, which was broadcast over Radio Rwanda on 30 April 1994 (Exhibit D44C), the Accused said that foreign media were calling the Interim Government a “government of killers”, thereby acknowledging that there was criticism in the international community of the government’s actions. The Accused defended himself and the government in his speech, and said the government was seeking peace. Both the Accused and Kambanda admitted the people were “tear[ing] each other to pieces”. Both referred to “people”, that is, civilians, engaging in this violence, not armies or soldiers, as would be the case in a war. The Accused was aware that there was some resistance to his message (“You, President of the Court of First Instance, you say you are not involved in politics. You are not being asked to play politics.”), and in reaction to this, he resorted to threatening the President and the Bishop who was also present: “We will no longer tolerate people talking about a government of killers, if you fold your arms even when we have told you how to help us combat crime. We have a shared responsibility. If we are found guilty of mass killing, we will say that we are not the only killers.” [355]

396. The Accused made this speech voluntarily and had joined the government of his own volition as well – his speech does not indicate he was coerced or forced into joining the government. He says that “As far as I am concerned, I was doing rounds when I was contacted. At the time, I did not know that I was going to become a minister. I was doing rounds to ensure my own security…When they [the RPF] attacked, the army intervened to defend the country and we were asked to do rounds. It was necessary given the gravity of the situation. Why then was I taking part in the rounds? Was I doing so while waiting for a post within the government of killers? Other members of the government were called upon while they were carrying out other duties.” [356] Sebatware stated that the Accused was nominated by his own MDR Party to join the Interim Government. The anti-Tutsi propaganda of the Accused does not bear out the Defence’s arguments that there was a war, not genocide, in Rwanda at the time. Consequently, the Chamber finds that there was a genocide in Rwanda at the time, when massacres were committed by Hutu against the Tutsi. The Accused was aware of this and actively supported these killings.

397. The Defence submits that the testimony of Prosecution witnesses may have been influenced by RPF, IBUKA, African Rights or others, and that such a possibility should be taken into account by the Chamber when deliberating upon the credibility of witnesses. [357]

398. Defence Witness TEN-6 testified to having been influenced and pressured by one Assiel Kabera to insert the names of important dignitaries into his statement dated 27 September 1995. The falsehood in TEN-6’s statement is discussed in II.3.1.3 above. The witness stated that paragraph 5 of the statement, wherein he stated he had seen the Accused and Edouard Karemera regularly in Kibuye Prefecture from 6 April to July 1994, was not true and he had signed it under pressure from his superior and out of fear for his life. However, paragraph 5 does not in itself incriminate the Accused and would not have served those who allegedly pressured him into making the statement. [358] The Chamber is not persuaded by the witness’s evidence on this issue. In any event, as the witness claimed that he had made a false statement, the Chamber finds that TEN-6’s evidence is of questionable veracity.

399. Defence Witness TEN-5 also testified to having been influenced by Kabera, and having heard about the other people who had been similarly influenced.

400. The Prosecution denies the allegation and asserts that the Defence has failed to substantiate its claim by showing that there was a campaign to falsely incriminate the Accused, and that said campaign influenced the Prosecution Witnesses. [359]

401. The cross-examination of Prosecution witnesses by the Defence does not show that the Prosecution witnesses had been influenced or pressured to testify in the manner in they have, nor was this shown by any evidence adduced by the Defence.

[236] See II.2.2.1 above, wherein Witness KJ testified to the Accused calling Tutsi “Inyenzi”.

[237] T. 15 Oct. 2002, pp. 40-43; T. 16 Oct. 2002, pp. 43; 103-104.

[238] T. 15 Oct. 2002, pp. 41-48; T. 16 Oct. 2002, pp. 43, 57-63, 66-67.

[240] T. 21 Oct.2002 p. 101; T. 22 Oct.2002 p. 38.

[248] Id., p. 119; T. 16 Oct. 2002, p. 119 (Fr.). In the English transcripts, the witness is recorded as having said “MINAFOR”; in the French, “MININFOR” is used. The French is favoured as the first translation from the original Kinyarwanda.

[253] T. 23 Aug. 2002, pp. 15-17, 63; T. 26 Aug. 2002, pp. 30, 32, 35, 39-40, 42-44, 72, 75.

[255] The spelling in the French transcripts is favoured over the English (“Nyabushushu Hill”) as the first translation from the original Kinyarwanda - T. 26 Aug. 2002, p. 76 (Fr.); T. 26 Aug. 2002, p. 46.

[257] T. 23 Aug. 2002, pp. 17-18; T. 26 Aug. 2002, pp. 46-47, 50.

[260] Id., pp. 89-91, 107-109, 112-113, 123, 125.

[265] T. 30 Oct. 2002, pp. 23-33 (closed session).

[268] T. 11 Nov. 2002, pp. 19, 82-83. The witness described the role he played in regard to the two missions on a piece of paper, in Kinyarwanda, T. 11 November 2002, p. 20. This piece was marked as Defence Exhibit 40 (A), (B) and (C), p. 53.

[269] T. 11 Nov. 2002, pp. 99-100. The witness had the opportunity to see mission requests in the course of his work. He could not immediately recall requests from other ministers, but he said he might remember if he was given some time, T. 11 November 2002, pp. 105-106.

[270] The French spelling is favoured over the English (“Cyanaraba”) as the first translation from the original Kinyarwanda – T. 28 Aug. 2002, pp.177-178 (Fr.); T. 28 Aug. 2002, pp. 111-112.

[271] T. 28 Aug. 2002, pp. 106-119; T. 29 Aug. 2002, pp. 40-47, 80-93, 98-99.

[279] Defence Final Trial Brief, p. 175, para. 17.

[284] Defence Final Trial Brief, p. 172, para. 10; Witness GGM’s statement dated 20 March 1996.

[285] Prosecution Final Trial Brief, paras. 7-23.

[286] Defence Final Trial Brief, pp. 206-227.

[287] T. 18 June 2002, pp. 14-25; T. 20 June 2002, pp. 119-121, 151-155.

[288] See, in general, T. 12 Nov. 2002 pp. 4-13.

[291] Id. pp. 24-26. For the support of the MDR to the Arusha Accords, see also Id. p. 69.

[293] Id. pp. 102-104; 113-115; and T. 14 Nov. 2002 pp. 19-20.

[294] T. 12 Nov. 2002 p. 36-38, 44, 104-106.

[295] Id. pp. 18-20, 93-95, 124-126; T. 14 Nov. 2002 pp. 7-10.

[310] T. 13 Nov. 2002, p. 110, see also T. 14 Nov. 2002, p. 105.

[311] T. 14 Nov. 2002, pp. 97-98, see also p. 143.

[313] T. 13 Nov. 2002, pp. 85-93. See also T. 14 Nov. 2002, pp. 91-92.

[315] Exhibit D51, including annex of letter from Foreign Affairs Minister, J�r�me-Cl�ment Bicamumpaka.

[322] Defence Counsel, during her Opening Arguments, stated that there was no prior consultation with the Accused as to whether he would join the government. According to the Defence, on the morning of 9 April, an armoured vehicle manned by armed soldiers turned up at the Accused’s house where his wife and children were cowering in fear, and they told him he was now a Minister and had to leave with them; T. 17 Oct. 2002, p. 12.

[324] Kambanda was convicted by the Tribunal of genocide and other crimes on 4 September 1998 after he pleaded guilty to various acts of genocide and other crimes committed in his ex officio capacity against Tutsi and moderate Hutu who did not support the government.

[337] Ntakirutimana (TC), para. 729, citing Kupreskic, Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque, dated 17 February 1990.

[351] T. 23 Oct. 2002 pp. 90-93; T. 24 Oct. 2002 p. 34.

[352] Prosecution Final Trial Brief, paras. 116-120.

[353] Decision on the Prosecutor’s Motion for Judicial Notice of Facts dated 4 September 2002.

[354] UN Doc. S/1994/428 (Exhibit D51), p. 2.

[355] Defence Exhibit D44, pp. K0238741-748.

[357] Defence Final Trial Brief, pp. 192-198.

[359] Prosecution Final Trial Brief, paras. 62-63.