Chapter II

188. The Prosecution’s case is that the two Accused participated "in one form or the other" in the attack that took place at Mugonero Complex on 16 April, acting in concert with several local authorities, law enforcement agents, members of the "Hutu militia", and other armed civilians. [242] The attack involved planning at the highest level, confirmed by the presence of local authorities during the attack. [243]

189. The Prosecution does not dispute Elizaphan Ntakirutimana’s claim that between 5.30 and 6.00 a.m. on 16 April gendarmes brought him the letter shown at Appendix 5 of Prosecution exhibit P2. [244] The Prosecution nevertheless maintains that the Accused had knowledge of the imminent attack at the Complex prior to receiving the letter. While the Prosecution concedes that Elizaphan Ntakirutimana made the trip to visit bourgmestre Charles Sikubwabo, it claims that the Accused went to the bourgmestre’s residence, not his office, and that the purpose of the visit was not to deliver a message on behalf of the pastors but to arrange for the evacuation and accommodation of Hutu colleagues and relatives of the Accused.

190. The Prosecution argued that Elizaphan Ntakirutimana left for Gishyita with two gendarmes, having come to the Complex sometime after 6.00 a.m. The gendarmes acted as escorts. The primary purpose of the Accused’s visit to Gishyita was to convey attackers from that location to Mugonero Complex in readiness for an attack that morning. That was the role that Elizaphan Ntakirutimana had been assigned to play in the events of 16 April, a role consistent with his age and one that facilitated, in no small measure, the attack on refugees at the Complex. [245]

191. The Prosecution does not dispute that Elizaphan Ntakirutimana replied to the pastors’ letter, whether orally or in writing, asking gendarmes to deliver the reply to the pastors at the Complex. However, the Prosecution contends that the reply was given at 6.00 a.m. that morning, when the Accused first stopped at the Complex to collect gendarmes on his way to Gishyita. [246]

192. In Gishyita, while Elizaphan Ntakirutimana conversed with Sikubwabo, armed attackers boarded his vehicle so that by 6.30 or 6.40 a.m., according to the Prosecution, the Accused with the attackers in his vehicle and in the company of two other vehicles with attackers on board, including Sikubwabo, departed Gishyita for the five-kilometre journey back to Mugonero. The staging area at Mugonero was the Kabahinyuza market, just outside the Complex and close to Elizaphan Ntakirutimana’s residence. At that location the Accused discharged his cargo of attackers, who waited for other convoys to arrive. They were out of the view of the refugees gathered at the Complex. [247]

193. It is the Prosecution’s case that after returning to Mugonero from Gishyita with armed attackers, Elizaphan Ntakirutimana made his way to the Complex where he was seen by Witness SS talking with Jean Nkuranga. He then went to the ESI Chapel and demanded that Pastor Sebihe surrender to him the chapel’s keys. From there he headed home to prepare for the evacuation to Gishyita. The Prosecution submits that this pre-arranged evacuation included Hutu colleagues and relatives of the Accused and no persons who were unknown to the Accused. The Prosecution rejects as incredible the Accused’s claim that no one had given them permission to stay at the CCDFP in Gishyita, a ploy designed simply to diminish their relationship with the bourgmestre, Sikubwabo. The Prosecution concedes that Elizaphan Ntakirutimana remained at Gishyita on 16 April, this being consistent with the fact that no Prosecution witness claimed to have seen him in the course of the attack at the Complex. [248]

194. The Prosecution disputes that Gérard Ntakirutimana accompanied his father on the first trip to Gishyita on the morning of 16 April. [249] Instead, Gérard Ntakirutimana drove to the gendarmerie camp in Kibuye town (see submissions under 3.7). The Prosecution points out that neither the alibi notices nor the Defence summaries of the expected testimony of the Accused stated that Gérard Ntakirutimana accompanied his father on that first trip to Gishyita. No other Defence witnesses corroborated this claim by the Accused. Moreover, the accounts of the two Accused are not consistent, one saying that Gérard Ntakirutimana waited for his father on the veranda of the commune office, the other that he waited in his car. The Prosecution submits that Gérard Ntakirutimana returned from Kibuye town sometime after 7.30 a.m. on 16 April, which explains why neither Royisi Nyirahakizimana nor Witness 16 saw him at his father’s residence early that morning. [250]

195. Thus the Prosecution does not accept that Gérard Ntakirutimana was with his father, or indeed in Mugonero, on 16 April any time before 8.30 a.m. It submits that, given that Witness OO saw the Accused at the gendarmerie camp between 6.00 and 7.00 a.m., and given that the distance between Kibuye town and Mugonero is some 25 to 27 kilometres, if the Accused had left the camp at 7.30 a.m. he would be at the Complex by 8.30 a.m., or by 9.00 a.m. at the latest, which matches the time Prosecution witnesses first saw him at the Complex. [251]

196. The Prosecution does not dispute that Gérard Ntakirutimana was involved in the evacuation of family and colleagues to Gishyita. [252] However, it is the Prosecution’s case that he returned to Mugonero Complex sometime after 9.30 a.m., together with Pastor Gakwerere, Pastor Ushizimpumu, Mathias Ngirinshuti, and others. The reason Gérard Ntakirutimana assisted with the evacuation to Gishyita was that there was a shortage of vehicles and his was needed to convey the Accused’s relatives and friends. [253]

197. The Prosecution submits that there were two waves of attacks at the Complex on 16 April. There was an initial wave, which was repelled by the refugees, and there was the main attack. [254] As to the prelude to the main attack, the Prosecution contends that the two Accused were seen in a convoy of vehicles among armed attackers arriving at the Complex. The attackers arrived in several groups, some by car, others on foot, between 7.00 and 9.00 a.m. The vehicles ferried the attackers from a variety of locations: Gishyita, in the case of Elizaphan Ntakirutimana; Kibuye, in the case of Gérard Ntakirutimana. Six witnesses testified to seeing Gérard Ntakirutimana at the Complex with attackers: YY, DD, HH, GG, PP, and KK. [255] The Prosecution submits that the use of PP’s vehicle by Obed Ruzindana is indicative of the fact that Gérard Ntakirutimana acted in concert with Ruzindana and other influential authorities in Gishyita in the execution of a plan to exterminate the Tutsi at Mugonero. It also submits that, shortly after 9.00 a.m., the two Accused moved their vehicles from the proximity of the field office. This had to be done to avoid damage during the initial attacks. The Accused then headed to Elizaphan Ntakirutimana’s residence shortly after 9.05 or 9.10 a.m. to carry out the evacuation of family and friends. [256]

198. The Prosecution argues that the Accused needed to place the time of their departure from Mugonero on the morning of 16 April at 8 a.m. because such timing allowed them to contradict the evidence of the witnesses who testified to having seen them arrive with attackers in a convoy of vehicles between 7.00 and 9.00 a.m. However, Defence Witness 32 saw the Accused arrive in Gishyita at 9.30 a.m. This account of the time suggests that they cannot have left Mugonero at 8 a.m. for it is unlikely that it would have taken them one-and-a-half hours to drive a distance of five kilometres. Even Witness 32, who walked to Gishyita, made it there in less time. According to the Prosecution, the fact that the Accused had items thrown at them as they drove past the Complex suggests that they departed the Complex after the initial attacks had commenced, that is, after 9.00 a.m. [257]

199. When Gérard Ntakirutimana and others returned from Gishyita to Mugonero after 9.30 a.m., they actively participated in the attack on Tutsi refugees at the Complex. According to the Prosecution, Witness YY established that Gérard Ntakirutimana shot and killed Kagemana and Macantaraga. Witnesses GG and HH established that he shot and killed Charles Ukobizaba somewhere in the hospital courtyard. Witness SS testified that the Accused shot at him sometime in the afternoon of 16 April. And three witnesses, DD, MM, and YY, testified that some time after the attacks had ceased, in the evening of 16 April, Gérard Ntakirutimana and others walked among the slain refugees in the hospital building pointing torches at their faces to identify who was dead and who was still alive. According to the Prosecution, they were taking stock. [258]

200. According to the Defence, between 5.00 and 6.30 a.m. on 16 April, gendarmes brought Elizaphan Ntakirutimana two letters, one addressed to him personally and the other to the bourgmestre of Gishyita. Elizaphan Ntakirutimana awakened his son, Gérard, and told him about the letter. Royisi Nyirahakizimana was still asleep. Gérard Ntakirutimana moved the hospital vehicle, which was blocking his father’s car, parked it outside the house compound, and drove his father and the gendarme who had brought the letter to Gishyita. They arrived at the bureau communal between 6.30 and 7.00 a.m. They waited for the bourgmestre, who came around 7.00 a.m. Elizaphan Ntakirutimana pleaded with him about the refugees, but he did not change his position. Between five and 15 minutes later Elizaphan Ntakirutimana returned to the car where Gérard Ntakirutimana was waiting. They arrived back in Mugonero before 8.00 a.m. and stopped at the field office. There Elizaphan Ntakirutimana wrote a letter to the pastors, informing them regretfully that his intercession with the bourgmestre had been unsuccessful. He gave his reply to the gendarme to deliver, for as he explained it was the gendarmes who brought the original letter so it was they who would deliver the answer. Elizaphan Ntakirutimana saw armed and angry people in the Complex below the nursing school. Both Accused returned to Elizaphan Ntakirutimana’s house shortly before 8 a.m. [259]

201. Soon after, four gendarmes arrived at Elizaphan Ntakirutimana’s house and spoke to Gérard Ntakirutimana, urging him to leave immediately. The Defence argues that this visit exacerbated the Accused’s sense of insecurity stemming from surrounding violence, fears of a new war, the flight of foreign workers, the pastors’ letter, and many other unsettling recent events. Therefore, upon receiving the gendarmes’ direction to leave, Gérard Ntakirutimana felt he had to comply. He went to get the hospital vehicle which was parked outside the compound, while Elizaphan Ntakirutimana, his wife, and Witness 16 packed some goods into the other car, which within minutes of the order to leave was driven out onto the road. The two vehicles paused momentarily on the road while neighbours and other persons, including friends and colleagues who had earlier taken refuge in the vicinity of the commercial centre where there was greater security, climbed on board. The Defence maintains that the flight to Gishyita was not planned but happened on the spur of the moment. None of those fleeing had made preparations or brought any luggage, except for meagre provisions as were immediately at hand. The vehicles, driven by the two Accused, headed for Gishyita because it was common during times of unrest to seek refuge in administrative and other public buildings. [260]

202. According to the Defence, the two Accused and their passengers set out for Gishyita at approximately 8.00 a.m. or shortly before that time. Along the way they encountered an angry crowd at Mugonero Complex and a tree-trunk blocking the road. Stones and other objects were thrown at them by the crowd. Twenty to thirty minutes later the two vehicles arrived in Gishyita. No one was there to greet them. They waited for some time before an "office boy" came with keys to open up the place where they were to stay. They entered the CCDFP building around 9.30 a.m. The two Accused did not leave Gishyita again on 16 April. In the middle of the morning, at about the time they were let into the CCDFP, the Accused began to hear distant explosions and people shouting and saw people running away from the location of the Mugonero Complex. Later in the day they saw people dressed in rags pass by with loot from the hospital. [261]

203. The Defence submits that the Prosecution has conceded that the two Accused went to Gishyita with family members and others in the morning of 16 April. The Defence contends that if the Accused had prior knowledge of the planned attack they would not have waited until the last minute for the evacuation. It also contends that there was insufficient time for Gérard Ntakirutimana to have driven to and from Kibuye town (as suggested by Witness OO) and to have been back in time for the flight to Gishyita. [262]

204. The Defence’s submissions as to why the testimony of Prosecution witnesses should not be believed will be considered by the Chamber in the course of the following discussion.

205. It is undisputed between the parties that in the afternoon or evening of 15 April 1994, Tutsi pastors at the Complex wrote a letter to Elizaphan Ntakirutimana, in which they informed him that they had heard that they would be killed the following day. They asked him to intervene on their behalf by contacting the bourgmestre of Gishyita, Charles Sikubwabo. The letter was written in Kinyarwanda. A copy of the letter was entered into evidence by the Prosecution. [263] The English translation reads:

206. Five Prosecution witnesses (MM, YY, GG, HH, SS) testified about this letter. [265] According to their evidence, it was prepared in the afternoon or evening of 15 April 1994, read out to the refugees in the ESI Chapel and later given to a gendarme to deliver to Elizaphan Ntakirutimana. It is undisputed that all seven signatories were Tutsi. The letter was written with the knowledge that an attack had been planned against them. Witness HH testified that the refugees were informed by one of the gendarmes around 14 April that the Complex was going to be attacked on 14 or 15 April, or on 16 April 1994 at the latest. [266] The three gendarmes said that they were not in a position to defend such a large number of people. Witness YY testified that he and others were aware of an attack before 16 April 1994, without specifying how long before. [267]

207. Witnesses YY, GG and SS explained that the letter was written to Elizaphan Ntakutimana because he knew Charles Sikubwabo’s father, a Hutu pastor. Together the two pastors could plead for the refugees. [268] Witness MM testified that the letter was written to the Accused because he had cared for his congregation and his pastors, irrespective of whether they were Hutu or Tutsi. As a respected and important person he "would have found ways and means of evacuating people over the lake in order for them to go to Zaire". [269]

208. The Prosecution submits that the letter from the Tutsi pastors was brought by gendarmes to Elizaphan Ntakirutimana in the morning of 16 April 1994, between 5.30 and 6.00 a.m. [270] It is also undisputed that he went to Gishyita that morning. Consequently, the Chamber accepts the Accused’s testimony that he left his home about 6.15 a.m. and arrived in Gishyita to see bourgmestre Charles Sikubwabo shortly after 6.30 a.m. It also accepts that he was accompanied by at least one gendarme. (Whether he was accompanied by his son will be discussed in connection with the allegations against Gérard Ntakirutimana, see below.)

209. While it is the Prosecution’s view that Elizaphan Ntakirutimana met with the bourgmestre that morning it argues that they met at the bourgmestre’s residence, not in his office. The submissions are that 16 April was a Saturday and hence a Sabbath according to the Seventh Day Adventists, not a normal working day. The bourgmestre was an Adventist. According to the Prosecution, it is unlikely that Elizaphan Ntakirutimana would wait for someone who had no reason to be at work on a Sabbath. [271]

210. Elizaphan Ntakirutimana testified that the letter shattered him and that he started to tremble. At 6.15 a.m. he left with his son and a gendarme for Gishyita and waited at the bourgmestre’s office from 6.35 or 6.40 a.m. The Accused stated that the bourgmestre came at 7.00 a.m.:

211. The Accused explained that the brief conversation in Sikubwabo’s office lasted until 7.10 a.m. Both men remained standing during the meeting. Gérard Ntakirutimana and the gendarme waited outside. The watchman of the communal office was also outside. Other employees had not yet arrived. [273]

212. The Chamber considers it of limited importance whether the meeting between Elizaphan Ntakirutimana and the bourgmestre took place in the communal office or at the bourgmestre’s residence. It observes, however, that the Prosecution has not adduced any evidence to support its claim. Only the two Accused testified about the meeting. Their version was that the meeting took place in the bourgmestre’s office.

213. According to the Prosecution, the purpose of the meeting was not to deliver the message from the Tutsi refugees, but rather to arrange for the evacuation and subsequent accommodation of Elizaphan Ntakirutimana’s family and Hutu colleagues. A second purpose, according to the Prosecution, was to convey attackers to the Mugonero Complex in readiness for an attack that morning. [274] The Chamber observes that two persons, Elizaphan Ntakirutimana and Charles Sikubwabo, are said to have been present during the meeting. The only evidence available at trial was Elizaphan Ntakirutimana’s testimony. The Chamber will not speculate or draw the inferences suggested by the Prosecution concerning the alleged substance of the conversation. Consequently, the Chamber accepts the Accused’s version.

214. Elizaphan Ntakirutimana testified that on his way back to the Complex, around 7.30 a.m., he was still trembling. He went to his office with the gendarme and wrote a note for the pastors while his son waited outside:

215. Gérard Ntakirutimana also testified that the response was written in the field office on the morning of 16 April 1994 and handed over to gendarmes. [276] The Prosecution does not dispute that Elizaphan Ntakirutimana replied to the letter from the Tutsi pastors, but leaves open whether the response was written or oral. No written response was available at trial. The Prosecution witnesses who testified that they were at the Complex before and during the attack gave conflicting evidence as to when they received Elizaphan Ntakirutimana’s reply, and whether it was written or oral. Three witnesses (HH, MM, and YY) stated that the reply was received already on 15 April 1994. One of them said that it was in writing, another said that the reply was oral, and the third witness did not know. [277] Prosecution Witness GG, however, testified that he heard Pastor Sebihe, together with his pastor colleagues, read the written response aloud in public, on the morning of 16 April 1994. [278] The Chamber observes that there is considerable evidence in support of the testimony of the Accused that the response was written and accepts this version of events.

216. The parties disagree as to when Elizaphan Ntakirutimana wrote his reply. As mentioned above, the Defence submits that the Accused wrote the letter after his return from Gishyita. The Prosecution argues that the reply was dispatched before the trip, at about 6.00 a.m. The Chamber observes that the Prosecution witnesses did not provide a precise time as to when the refugees received the reply. Consequently, the Chamber accepts the testimony of the Accused.

217. As to the substance of the reply, the evidence lacks clarity. Witness GG, who testified that he heard Pastor Sebihe read out the reply in the morning of 16 April 1994, said that the reply was "that our fate [had] been sealed and that everything was over with us". [279] Witness HH stated that on 15 April, Elizaphan Ntakirutimana "had replied that he could not do anything for them and that their time was up … that they were left to their own devices". [280] He also said that according to those who received the reply the message was that they were "going to die", but he added that he could not know whether this was the actual content of the message or the interpretation of the person who told him. [281] Witness MM testified that on 15 April, "the Pastor had replied in the negative … he had said that he could do nothing". [282] The witness also stated that "the reply did not say that we should prepare to die the next day. The response was that he could do nothing; he had no way of helping us." [283] Witness YY, who gave evidence that the gendarmes delivered the reply on 15 April and did not know whether it was written or oral, stated that, according to the pastors, the reply said "that we would die the following day". He testified that the Accused had replied "that we should pray and put ourselves into the hands of God". [284] The Chamber finds that the evidence about the substance of the reply does not provide a sufficient basis to conclude that Elizaphan Ntakirutimana condoned or supported the attack of 16 April 1994. [285]

218. This being said, the Chamber notes that the Accused chose to send the reply to the Tutsi refugees through gendarmes instead of answering them in person. When asked about this he answered that in view of the angry, armed refugees in the vicinity he did not dare to deliver his reply personally:

219. The Chamber does not find this explanation plausible. The Accused was a pastor and had occupied several important positions within the organization of the Seventh Day Adventists, including the post he held in April 1994 of President of the West Rwanda Field. It is clear from the evidence that this placed him in a position of high authority at the Mugonero Complex. The letter from the Tutsi pastors addressed him with the words "Dear … leader" and stated that God had entrusted him with "the leadership of this flock". [287] The letter was written in a tone of great respect. It is difficult to understand why the Tutsi pastors and the other refugees would have turned against him – a man of authority ‑ if he personally had conveyed the bourgmestre’s negative response. The letter was a cry for help. A person with the Accused’s authority and responsibility would be expected to visit his flock in such a time of distress and to convey the answer directly. Regarding the possibility that the negative message might have provoked aggression towards the Accused, the Chamber observes that the Accused had at that juncture at least one or two armed gendarmes at his disposal and would have little to fear.

220. These observations do not in themselves provide a sufficient basis for drawing the conclusion that the Accused accepted or supported the attacks. A person may, in particular in moments of distress or chaos, make decisions that, with the benefit of hindsight, appear misguided. But the Chamber notes that the Accused distanced himself from his Tutsi pastors and his flock, which is significant in the general context of the morning of 16 April 1994.

221. It is the Prosecution’s case that the Accused had knowledge of the attack prior to receipt of the letter on the morning of 16 April 1994, that he conveyed attackers to the Complex and that he participated in the attack. The Chamber did not conclude that Elizaphan Ntakirutimana had previous knowledge, in connection with its discussion of whether he advised Tutsi and Hutu to seek refuge at or leave the Complex, respectively (3.3 and 3.4). The two remaining issues will be discussed below.

222. A main allegation in the Mugonero Indictment is paragraph 4.7, according to which a convoy of several vehicles, followed by a large number of individuals armed with weapons, went to the Mugonero Complex. It is alleged that individuals in that convoy included, among others, the two Accused and Charles Sikubwabo, members of the gendarmerie, communal police, militia and civilians. This allegation can be divided into two stages: the transport of attackers from Gishyita to the Kabahinyuza trading centre close to the Complex; and the transport of attackers from the trading centre and surrounding areas to the Mugonero Complex.

223. It is the Prosecution’s case that Elizaphan Ntakirutimana conveyed attackers from Gishyita to the Mugonero Complex on the morning of 16 April 1994. The Prosecution submits that the Accused’s meeting with the bourgmestre lasted just enough time to gather people and board them on the Accused’s vehicle under the supervision of the two gendarmes that had escorted him there. Then he left Gishyita for the five-kilometre journey back to Mugonero, in a convoy of three vehicles, one of which was driven by Sikubwabo. According to the Prosecution, the meeting point was the Kabahinyuza trading centre, close to the Accused’s residence. [288] The Defence rejects these submissions.

224. The Chamber observes that there is no evidence in the case that attackers were assembled and boarded onto vehicles in Gishyita. Furthermore, none of the witnesses observed attackers being transported from Gishyita to Mugonero. Consequently, there is no basis for the Prosecution’s allegation. Even if some witnesses saw Elizaphan Ntakirutimana later with attackers (see below) this does not provide a sufficient basis for concluding that he transported attackers from Gishyita. The possibility that the attackers may have gathered at the trading centre close to the residence of the Accused is of limited significance.

225. The second question is whether Elizaphan Ntakirutimana conveyed attackers to the Complex on the morning of 16 April 1994. Below the Chamber will assess the testimony of the seven witnesses that testified about this period. It will then consider Elizaphan Ntakirutimana’s alibi for the relevant period.

226. Witness MM testified that attackers arrived at the Complex at around 8 a.m. on 16 April 1994. [289] They consisted of Hutu farmers, members of the CDR party, Interahamwe in uniforms made out of kitenge cloth, soldiers, Gishyita policemen, military reservists, and gendarmes. [290] Witness MM saw Elizaphan Ntakirutimana bring four or five gendarmes to the Complex in his car, which he said was a beech-coloured Toyota Hilux pickup. They were in military clothing and red berets and were carrying firearms. The gendarmes included those who had previously watched over the refugees. According to the witness, Elizaphan Ntakirutimana was in the front cabin at the steering wheel. Other cars followed that of the Accused. [291] Apart from Elizaphan Ntakirutimana and the gendarmes, Witness MM did not see anybody else in the Accused’s car. [292]

227. According to Witness MM, the Accused stopped at the intersection of the road leading to the hospital and the road towards his residence. The gendarmes alighted and started shooting at the people who were there, as well as at those who were close to the office of the association and the nursing school. [293] The witness was in the workshop near the main hospital building, at a distance he estimated as between 50 and 100 metres from Elizaphan Ntakirutimana’s vehicle, when he saw it coming up the road to the Complex. [294] At the time he saw the gendarmes descend from the Accused’s vehicle the witness had moved towards the parking lot of the hospital. [295] After the attackers alighted, Elizaphan Ntakirutimana drove away, past Gérard Ntakirutimana’s house, taking the road towards Gishyita. [296] At that point, Witness MM allegedly saw FAR soldiers who also started shooting. [297] Witness MM did not see Elizaphan Ntakirutimana at any other time on 16 April 1994. [298]

228. The Chamber notes that Witness MM observed Elizaphan Ntakirutimana in daylight at a distance of 50 to 100 metres. This distance does not render identification unreliable, even if the Accused was at the steering wheel of his car. The witness observed him from two different positions, the workshop and the parking lot. Witness MM gave consistent evidence and appeared credible in court. His testimony relating to Elizaphan Ntakirutimana was generally in conformity with his previous statements to investigators. Some minor discrepancies between his first and second statements can be explained by translation or communication problems. [299] It is true that there is a discrepancy between the statements and the testimony concerning the role of Gérard Ntakirutimana on 16 April 1996. However, in the Chamber’s view, this discrepancy does not reduce the credibility of his testimony relating to Elizaphan Ntakirutimana.

229. The Defence has submitted that Witness MM acted in concert with other witnesses to falsely incriminate the two Accused and has drawn the Chambers attention to the fact that he was the brother of a victim of the 1994 events. [300] The Chamber does not find this argument convincing. Many witnesses appearing before the Tribunal have lost close relatives. Witness MM did not appear biased or emotional. For instance, he testified that Elizaphan Ntakirutimana did not discriminate against Tutsi prior to the events of April 1994. [301] Moreover, he stated that Gérard Ntakirutimana took a number of persons, including a Tutsi woman, Clémentine, and her children to Gisovu on 11 April 2001 for their safety. [302] Furthermore, the Chamber is not persuaded by the Defence contention that Witness MM is biased because of his appearance in a "propaganda" video filmed in 1995 at the Mugonero Complex (see more generally II.7).

230. Witness GG testified that on 16 April 1994 he saw Elizaphan Ntakirutimana arrive in his car at the Complex as part of the second wave of attackers; he also saw Ruzindana, Mika, Sikubwabo, and "other Interahamwe" arrive at that time. [303] The second attack started "a short time before midday". [304] Witness GG claimed to have observed the arriving attackers from a distance of about 30 metres; "it was near enough for me to hear what they were saying". Elizaphan Ntakirutimana was driving a white Hilux with shiny coloured stripes. [305] The witness said he knew the car, for the Accused was his neighbour. The Accused was transporting Interahamwe in the rear hold of the Hilux. According to the witness, some of the attackers wore military uniforms with red berets, but others did not wear military uniforms. Witness GG saw another person sitting in the enclosed part of the vehicle together with the Accused. The second vehicle he saw belonged to Ruzindana. The witness testified that the vehicles stopped before Elizaphan Ntakirutimana’s office. When the attackers realized that the refugees were throwing stones they moved the vehicles and went elsewhere. [306]

231. The Chamber notes that Witness GG allegedly saw Elizaphan Ntakirutimana at the steering wheel from a relatively short distance - 30 metres - in daylight. It accepts that the witness recognized the Accused’s white car, which he knew because the Accused was his neighbour. The fact that the witness also mentioned that there were coloured stripes on the vehicle, without specifying, for example, the size of the stripes, has limited significance. Likewise, the fact that Witness GG characterized the passengers on board the Accused vehicle as being "Interahamwe", of whom only some wore uniforms with red berets, does not constitute a significant discrepancy from the testimony of, for instance, Witness MM, who observed only gendarmes with uniforms and red berets in the back rear of the vehicle. Such variations can be explained by the circumstances surrounding the events and the elapsed time. The Defence argued that the witness’s recognition of Elizaphan Ntakirutimana’s vehicle is unreliable because he said that the word "Hilux" was written on it despite the fact that he could not read. However, it follows from the testimony that the witness was relying on what people had told him about the make of the vehicle. [307]

232. The witness linked the time of the observation to "the second wave" of attackers or "a short time before midday". He also stated that the attack started "when the sun had risen for quite some time". [308] These expressions are imprecise. The Chamber notes that in his first statement to investigators, dated 30 June 1996, Witness GG estimated the time at 9.00 a.m. Based on the available evidence, the Chamber finds that the witness made his observation on the morning of 16 April 1994, but is unable to reach any firm conclusion as to exact time of the observation on the basis of Witness GG’s evidence alone.

233. The Defence submits that the Chamber should disregard the testimony of Witness GG because in the Kayishema and Ruzindana judgement the Trial Chamber found the same witness (then testifying under pseudonym FF) unreliable. [309] The present Chamber notes that the testimony of the witness in Kayishema and Ruzindana was not relevant to the present case and did not relate to Elizaphan and Gérard Ntakirutimana. On these reasons alone the Defence arguments fail. But even more importantly in relation to the Defence contention is the fact that only one element of the testimony of the witness was rejected in Kayishema and Ruzindana. The reason was that the Trial Chamber was not satisfied that he had a clear view of the events at Muyira Hill from the peak of Gitwa Hill, a distance of about three kilometres (para. 426). Consequently, the finding of that Trial Chamber related to the reliability of that particular observation, not the general credibility of the witness. In relation to all other events the Trial Chamber in Kayishema and Ruzindana found the witness credible. [310]

234. The Chamber has also considered the discrepancies alleged by the Defence between Witness GG’s testimony and previous statements to investigators. [311] It follows from his written statement of 30 June 1996 that the refugees sent two letters to Elizaphan Ntakirutimana, on 14 and 16 April, respectively. In his testimony the witness indicated that the letters were sent on 14 April and on "the eve of the Sabbath" (which in the context means 15 April). [312] Another difference is that, in the same written statement, Witness GG said that Elizaphan Ntakirutimana replied to both letters, whereas he testified that the Accused responded only to the second letter. Witness GG was examined extensively about these two letters and maintained that the refugees did not receive any response to the letter of 14 April. He stated that the second letter was written on 15 April and that Elizaphan Ntakirutimana replied on 16 April. [313] The Chamber accepts that the statement to investigators contains a mistake, as claimed by the witness. The Chamber notes that the witness cannot read and has little academic education. It is true that Witness GG was the only witness who testified about a letter of 14 April. However, even if he should be mistaken on this point, the Chamber does not find that this renders him an unreliable witness whose observation of Elizaphan Ntakirutimana in the morning of 16 April 1994 should be doubted.

235. It is also pointed out by the Defence that Witness GG’s statement of 30 June 1996 contained allegations that he saw Elizaphan Ntakirutimana shooting at people. This incident was not mentioned in his testimony. [314] The Chamber clearly accords greater weight to evidence given by the witness under a sworn declaration in court. The witness testified generally that the attackers were shooting. [315] He was not asked whether he saw Elizaphan Ntakirutimana shoot at people, or to comment on his claims in the statement about the role of the Accused. Under these circumstances, the Chamber is unable to conclude that there is a contradiction between the testimony and the earlier statement.

236. The Defence argues that Witness GG is unreliable because his testimony contained incriminating evidence about the second Accused, Gérard Ntakirutimana, which did not appear in his earlier statements. [316] However, the Chamber observes that the statement of 30 June 1996 contains a general declaration that the witness saw Gérard Ntakirutimana killing people, including Charles Ukobizaba, during the attack at the Mugonero Complex. The statement also includes two general remarks about Gérard Ntakirutimana being present amongst attackers at various locations in the Bisesero area. Consequently, the Defence submissions fail. Whether the Chamber can make use of new evidence, about which the Defence has not had prior notice, is a different question and will be discussed in connection with the specific events (see generally II.2.4). The same is true of new allegations made by Witness GG against Elizaphan Ntakirutimana, who is also mentioned in the statement as having participated in attacks in the Bisesero area.

237. According to the Defence, Witness GG is not a credible witness because he knew Assiel Kabera and was even related to him (see generally II.7). [317] The witness denied the Defence’s contention that he was a relative of Kabera, and there is no evidence to support this claim. It may well be, as contended by the Defence, that Defence Witness 9 observed the witness during a meeting with Kabera in early 1995. However, this does not contradict the testimony of Witness GG, who during cross-examination answered that he had known Kabera "for a long time" and that they had met several times, but that they had not discussed "the war". [318] No evidence is available about the substance of the discussions at the alleged meeting in 1995. The Chamber does not find any basis for the submission that the witness was deeply involved in a political campaign against the two Accused. Similarly, it is of limited significance that Witness GG was interviewed by African Rights. Many victims were interviewed by human rights organisations after the events in 1994.

238. On the basis of the above considerations, and having assessed his testimony, the Chamber finds that Witness GG is a credible witness. The Chamber accepts that the witness saw Elizaphan Ntakirutimana drive to the Mugonero Complex in the morning of 16 April with attackers in the hold of his vehicle.

239. Witness PP testified that the attack on 16 April 1994 commenced around 9.00 a.m. There were a large number of assailants, mostly civilians, but also a number of gendarmes wearing red berets. Some of the attackers came in vehicles. [319] The witness said that he was "very far" from the arriving vehicles and did not know their number, but he recognized the communal vehicle in which he saw bourgmestre Sikubwabo, the car of Elizaphan Ntakirutimana, and Obed Ruzindana who was driving the witness’s own vehicle (see below). [320]

240. Witness PP said he was standing in front of the hospital, in the hospital’s parking lot, when he saw Elizaphan Ntakirutimana’s vehicle. It was "two or three hundred metres" away from the witness, parked very close to the Accused’s office. [321] He described it as a "not very white" Hilux pickup. Elizaphan Ntakirutimana was standing next to his car. [322] The Accused had a small or medium-size firearm, of the kind that can be carried on the belt, according to the witness. He was unable to describe it further. [323] This was at the time when the attackers had just arrived, at around 9.00 a.m. or a few minutes after. Witness PP did not see Elizaphan Ntakirutimana again on 16 April 1994. [324] There were no buildings between him and the Accused. Moreover, the events took place a long time ago and the distance of 200-300 metres "was only an approximation, and it’s possible that the distance was in fact less." The witness stated that even though he was in the parking lot of the hospital the vehicles were not so far away that he could not recognize them or persons inside them. [325]

241. Witness PP explained why Ruzindana was using the witness’s car. On 7 April 1994, Witness PP travelled to the Complex in his white Toyota Stout pick-up. Gérard Ntakirutimana gave him permission to place it in the hospital garage, and the witness left his car keys with him. [326] The witness made this request because, according to him, Gérard Ntakirutimana was the medical officer responsible for the hospital, and because on past occasions when there was violence, refugees usually felt safe at the hospital. [327] Witness PP wished to have his vehicle concealed because he was concerned that it would be recognised, and hence that his whereabouts would become known, especially to Mika Muhimana, who had come looking for him at the Complex. [328] He speculated that Gérard Ntakirutimana had given Ruzindana the vehicle, but he did not know this for a fact. [329]

242. The Chamber observes that Witness PP estimated the distance between himself and Elizaphan Ntakirutimana to be about 200-300 metres. When asked how he could be confident about his observation at that distance he answered that the distance could have been less, and insisted that he had seen the Accused. The Chamber notes that the witness claimed to have seen the Accused once he had got out of his vehicle, that he knew the Accused well and that the observation was made in broad daylight. It also accepts that the witness recognized the Accused’s vehicle, in addition to his own car and the communal vehicle. According to the Defence, it follows from the Prosecution’s sketch of the layout of the Complex that if the witness were standing at the parking lot in front of the hospital building, there were several buildings obstructing the view towards Elizaphan Ntakirutimana’s office. [330] When cross-examined about this, the witness emphasized that there were no buildings between him and the Accused. The Chamber observes that, according to the sketch, the parking lot covers a considerable area. It does not follow from the evidence that Witness PP was standing "close to the hospital" and therefore behind buildings, as argued by the Defence. His observation was corroborated by other witnesses.

243. Witness PP gave five written statements to investigators before he testified. According to the Defence, the timing and circumstances of the statements make it clear that the witness was part of a political effort to charge and convict Elizaphan and Gérard Ntakirutimana. [331] The Chamber does not share this view. According to the witness’s first statement, dated 18 October 1995, the attack at the Mugonero Complex occurred on Saturday 16 April 1994. The witness listed bourgmestre Sikubwabo, Ruzindana and Conseiller Mika Muhimana as leaders and stated that Elizaphan Ntakirutimana was also present and armed with a gun. Gérard Ntakirutimana, "formerly a friend", was mentioned briefly because he had the keys to Witness PP’s car. The Chamber does not agree with the Defence that this statement implies that the witness did not consider Gérard Ntakirutimana as one of the attackers at Mugonero. He mentioned this Accused very briefly immediately after having listed attackers. The witness also mentioned the car keys, which he explained fully in court. The parts of the statement relating to Bisesero do not mention Elizaphan or Gérard Ntakirutimana as participants in the attacks there. The Chamber observes, however, that the questions posed by the investigators focused on Kayishema and Ruzindana, and that the witness was asked whether he had seen the prefect, the bourgmestre and "other leaders" in Bisesero. The statement does not contain any questions specifically about the two Accused in the present case.

244. The second statement of 4 April 1996 also referred to attacks at Mugonero and in Bisesero. Elizaphan and Gérard Ntakirutimana are mentioned together with Sikubwabo and certain other bourgmestres and conseillers in relation to the attack at the Complex. Ruzindana was described as the chief leading that attack. The date is not explicitly mentioned. [332] Regarding Bisesero it is briefly added that he saw "only" the cars of the two Accused there. In his third statement of 4 May 1996 he states that the correct date of the Mugonero attack is 16 April 1994. The interview is mainly concerned with the role of Elizaphan Ntakirutimana. Consequently, it is not surprising that his role and influence are emphasized in that statement. It does not cover only Mugonero, but also Bisesero, where Elizaphan Ntakirutimana is alleged to have been driving in his car, shooting at people.

245. The fourth statement of 24 September 1998 focused on Ruzindana’s most active associates in Bisesero. Elizaphan and Gérard Ntakirutimana were listed among the leaders. The fifth statement of 13 February 2000 also contains a brief reference to both Accused in connection with the Mugonero attacks, but focuses primarily on Mika Muhimana.

246. On the basis of a careful reading of Witness PP’s five written statements, the Chamber finds that they are consistent. Variations between them can be explained by the questions asked by investigators. There are no important discrepancies between the statements and the testimony of the witness. It cannot be held against him that he was not asked any questions in court about the involvement of the two Accused in Bisesero. The other observations in the Defence Closing Brief do not alter the Chamber’s view, including the submissions relating to the video that was made in 1995 (allegedly as part of a "campaign" against the Accused, see generally II.7). [333]

247. On this basis the Chamber considers Witness PP as a credible witness. Cross-examination did not undermine his account or his character. The Chamber concludes that he saw Elizaphan Ntakirutimana amongst the attackers at the Mugonero Complex on Saturday 16 April 1994 at around 9.00 a.m., prior to the commencement of the attack.

248. Witness HH testified to seeing attackers arrive at the Complex in the morning of 16 April 1994. He said that the killings started between 8.30 and 9.30 a.m. [334] The first attackers to arrive were lightly armed. The refugees were able to defend themselves and repelled this group. Later, the attackers came back and were stronger. [335] Witness HH saw the arriving attackers from his hiding place behind a wall of a small building next to Elizaphan Ntakirutimana’s office, at a distance the witness estimated at 13 or 14 metres. [336] They consisted of "civilians, farmers or traders, and amongst them, there were former soldiers who had been demobilized, either because of bad conduct or because they had retired from the army". [337] Some of the former soldiers were armed with guns, while the civilians were armed with traditional weapons such as machetes, clubs, and spears. [338]

249. The witness stated that six vehicles arrived at the Complex. He recognized the cars of Elizaphan Ntakirutimana, Gérard Ntakirutimana, the hospital vehicle (a Toyota Stout), Obed Ruzindana’s vehicle, a fifth vehicle said to belong to Ruzindana (although the witness was not sure that he was in fact the owner), and the Gishyita commune vehicle, an open-backed white Toyota. [339] The vehicles, which arrived at different times, [340] parked in front of Elizaphan Ntakirutimana’s office. The witness identified the office in a photograph shown to him. [341] Witness HH said that with the exception of the hospital vehicle, which he saw only after it was already parked, the rest were conveying attackers. Using the carrying capacity of the vehicles as his reference (rather than what he saw and counted) he estimated that between 100 and 120 attackers were being transported. [342] The Gishyita commune vehicle conveyed gendarmes and soldiers. [343]

250. According to Witness HH, Elizaphan Ntakirutimana’s vehicle was a white Toyota Hilux. It came from the direction of the main Kibuye-Cyangugu road and was driven by Elizaphan Ntakirutimana himself. [344] The witness could not tell whether there were other people in the driver’s cabin, as the Accused was the only person he saw coming out of the cabin. In the hold of the Accused’s car were between 15 and 20 persons. [345] They included gendarmes and "civilians who had received military training" in military clothing, including some who were friends of the witness. The attackers were armed with firearms, machetes, clubs, and other kinds of weapons. The civilians wore black berets. The gendarmes wore red berets and some were in military uniforms of several mixed colours; other gendarmes were in khaki-coloured clothing. [346] Elizaphan Ntakirutimana remained standing beside his car in front of his office. [347] The witness did not see the Accused again on 16 April 1994. [348]

251. The Chamber observes that Witness HH, like Witness GG, maintains that there were two waves of attackers, the first, lightly armed, having been repelled by the refugees. According to Witness HH, the assailants commenced the main attack between 8.30 and 9.30 a.m. This is in conformity with the time indicated by other witnesses. Witness HH claims to have seen the main wave of arriving attackers at a distance of about 13-14 metres from his hiding place behind a small wall next to Elizaphan Ntakirutimana’s office. He explained that he was so close because he had been entrusted the task of determining from which direction the attackers were coming, so that the refugees could flee. The Chamber notes that this witness appears to have been very well placed to observe the events. He claimed to have seen six vehicles, two of which, that of Elizaphan Ntakirutimana and the commune vehicle, were also mentioned by several other witnesses, who also alleged that Obed Ruzindana arrived in a vehicle (his own or that belonging to Witness PP). This evidence is also in conformity with the testimony of several other witnesses that the drivers parked the vehicles in front of Elizaphan Ntakirutimana’s office. As for the other vehicles, the evidence of the other witnesses is limited, but the Chamber notes that the witness explained that the vehicles did not arrive at the same time. [349]

252. Of particular importance is Witness HH’s observation of Elizaphan Ntakirutimana standing beside his vehicle. As stated above, he estimated the distance between them to be 13-14 metres. This is powerful evidence that Elizaphan Ntakirutimana conveyed attackers to the Complex on 16 April. It is corroborated by other witnesses of whom some also observed the Accused standing next to his vehicle.

253. The Defence disputes the reliability of Witness HH. [350] It points out that his cousin, who was given as a contact person in his written statement of 2 April 1996 to investigators, was a brother of Assiel Kabera (see II.7). The Chamber notes that when the witness was cross-examined whether he was "blood-related" to Kabera, he first answered in the negative but then immediately said that they were "related". [351] He then explained that he had known Kabera for a long time. He stated that he had heard Kabera on the radio but recalled seeing him no more than three times after June 1994 (probably not in 1994, possibly in 1995 but not in 1996). [352] The Chamber recalls that Kabera was prefect of Kibuye at the time and therefore a prominent public figure. There is no evidence that Witness HH and Kabera actually held conversations relating to the present case. Consequently, the Chamber has no basis for concluding that the limited contact, if any, the witness had with Kabera had any influence whatsoever on his written statement or his testimony.

254. The Chamber notes that Witness HH’s brief allegations in the "Charge Sheet" published by African Rights were not touched upon by either party during his testimony. [353] Similarly, the witness denied having knowingly talked to any representative of the organization Ibuka, and there is no evidence that he ever discussed matters relating to the Accused with members of the RPF, as suggested by the Defence. [354] There is, in other words, no support for the Defence contention that Witness HH was part of a political "campaign" to falsely convict and accuse the two Accused (see more generally II.7). Witness HH in his written statement mentioned that Witness MM was at that time living in Kigali, but this reference alone cannot possibly support the contention by the Defence that these witnesses cooperated with the aim of incriminating the Accused.

255. According to the Defence, Witness HH’s testimony is "riddled with improbability, inconsistencies, contradictions and completely new claims". [355] The Chamber disagrees. For the most part the testimony is consistent with his previous statement. However, some discrepancies call for further scrutiny. In particular, unlike the testimony, the statement does not contain any allegation that Elizaphan Ntakirutimana conveyed attackers on 16 April 1994. When the witness was asked to explain this omission, he answered: "This statement doesn’t come from me, and if it did come from me, it was not properly transcribed, since I did see the pastor-president." [356] Moreover, he explained the absence of reference in his prior statement of 2 April 1996 to the vehicles of the two Accused and to the Gishyita commune vehicle by saying that, at the time, he was answering only questions that were put to him. [357] Furthermore, he addressed the absence of any mention in his prior statement of Gérard Ntakirutimana transporting attackers to the Complex in the following terms: "You should not think that three months of events could be recorded on a document of a few pages"; and "if at a certain point in time I spoke about the presence of Gérard without mentioning his vehicle, then it’s because I was not asked how he got there". [358]

256. While the Chamber does not find Witness HH’s responses to questions concerning the content of his prior statement entirely satisfactory, those responses are in the Chamber’s view not sufficient to cast doubt on his testimony. The statement does place Gérard Ntakirutimana among the persons preparing for the attack. The Accused is mentioned in connection with looting of the hospital and confiscation of Witness PP’s vehicle "shortly before the massacres". [359] The statement continues:

257. In the Chamber’s view, it follows clearly from the quoted text that during the interview Witness HH did not exhaustively list all attackers or vehicles conveying assailants. Apparently, Ruzindana’s vehicle was mentioned because he was observed transporting soldiers. Furthermore, he was perceived to be a leader of the attack. Ruzindana’s prominent role is corroborated by the testimony of other witnesses. This follows also from the Kayishema and Ruzindana Judgement. [360] In the Chamber’s view it does not reduce the credibility of Witness HH that the statement provides less information about Elizaphan and Gérard Ntakirutimana than his testimony. Witness HH’s account of Elizaphan Ntakirutimana’s actions conforms with that of other witnesses.

258. Witness HH testified that he did not know who was driving the hospital vehicle, but that he did know that Gérard Ntakirutimana was driving his own vehicle, a Peugot pickup. [361] No other witnesses testified to seeing Gérard Ntakirutimana’s personal vehicle arrive at the Complex on 16 April. Witnesses YY and KK mentioned seeing the hospital vehicle arrive, and the latter alleged that Gérard Ntakirutimana was driving this vehicle. The Accused’s wife, Ann, testified that her husband had informed her that his personal vehicle had a mechanical problem and that he had taken it to the garage of a person named Pinto. On 16 April, while it was still at Pinto’s garage, the car was damaged in the fighting when a grenade was thrown in its direction. [362] Gérard Ntakirutimana confirmed his wife’s evidence. [363] In view of the above, there arises a doubt as to whether Witness HH correctly identified the vehicle driven by Gérard Ntakirutimana. However, this does not render the rest of his evidence unreliable.

259. According to the written statement, the refugees wrote the letter requesting protection on 15 April 1994 "to pastor Ntakirutimana, to Doctor Gérard Ntakirutimana and to bourgmestre Sikubwabo". It is the view of the Defence that again Witness HH is unreliable, because no other witness ever alleged that there was a letter written to Gérard Ntakirutimana. When cross-examined about this matter, the witness explained that the reference to Gérard Ntakirutimana was a mistake, either because he did not express himself clearly or because the investigators misunderstood what he was saying. He could neither confirm nor exclude that the letter contained any reference to Gérard Ntakirutimana, as he had not read the letter himself. [364] The Chamber considers that this reference in the statement has been adequately clarified by HH and does not affect the credibility of the witness. [365]

260. In the Chamber’s view, Witness HH gave the impression of a credible witness during examination and cross-examination. The Chamber observes generally that it gives higher consideration to sworn witness testimony before it than prior statements. The Chamber also notes that the witness’s statement was about "the massacres which took place at the hospital in Mugonero" generally, and not specifically about the two Accused. Therefore, the Chamber does not accept that what amounts to omissions from the statement can substantially reduce the weight of Witness HH’s testimony. The Chamber has also determined that the alleged discrepancies between the statement and the testimony have no bearing on the witness’s reliability. Consequently, the Chamber finds that, around 9.00 a.m. on the day of the attack, from a short distance, Witness HH saw Elizaphan Ntakirutimana arrive at the Complex transporting attackers. The submissions of the Defence concerning the alleged killing of Charles Ukobizaba and Esdras, which also concern the credibility of Witness HH, will be considered below (see 3.11 and 4.7, respectively).

261. Witness KK, who was 16 years old during the events in 1994, testified that early in the morning of 16 April the last prayers were led by Pastor Sebihe in the chapel of the ESI Nursing School. [366] The witness left the chapel just before 6.00 a.m. He encountered gendarmes outside the chapel, one of whom informed him that the refugees were going to be attacked during the day and suggested that the witness leave. However, Witness KK and those with him stayed and gathered stones for their defence. [367] From his position at the nursing school (ESI) just before 7.00 a.m., the witness saw two vehicles, one driven by Obed Ruzindana, the other driven by bourgmestre Charles Sikubwabo, who was accompanied by Conseiller Mika Muhimana, and a motorcycle ridden by a gendarme. They were coming from a branch of the main Kibuye-Cyangugu Road, climbing past the home of Elizaphan Ntakirutimana, in the direction of the Kabahinyuza trading centre, along the road on the lower side of the hospital. [368]

262. Between 7.00 and 7.30 a.m., the witness saw the vehicles returning; the vehicle of Elizaphan Ntakirutimana, driven by the Accused himself, was among them. [369] On board with the Accused were a communal worker from Gishyita commune (Daniel, son of the Ngoma conseiller) who had a gun in his belt; Habimana (also known as Nyamwanga) who also had a gun in his belt; one Ngabonzima; two gendarmes, who Witness KK could not identify, as their berets were covering their faces; and two other persons who Witness KK also did not recognise. [370] The witness said that some of the people on board the other vehicles were wearing red trousers and red shirts, others were in white, and some were armed. [371] Witness KK claimed that there were about 10 to 15 people in Ruzindana’s vehicle and, while he did not recognize any of them, they included Interahamwe, gendarmes, and persons in military uniform carrying firearms. [372] In the vehicle driven by Sikubwabo, Witness KK was able to recognise two police officers by their uniforms, as well as two other persons standing in the back of the car. [373]

263. At around 8.30 a.m., approximately thirty minutes after seeing the group of vehicles return from the Kabahinyuza centre, Witness KK, still from his position at the nursing school, saw the same group of vehicles approaching from a branch off the main road leading up to the Complex. Elizaphan Ntakirutimana’s vehicle was in front. It was followed by the hospital vehicle, driven by Gérard Ntakirutimana. Two trucks belonging to the COLAS road-construction company had also joined the group. [374] The trucks were "full" of Interahamwe and police officers; the other vehicles, including Gérard Ntakirutimana’s, were transporting armed Interahamwe and soldiers. [375] Witness KK testified to seeing Elizaphan Ntakirutimana next at the ESI Chapel (see 3.10.3 below). [376] The witness went to the chapel at around 9.00 or 9.30 a.m.

264. The Chamber observes that, according to Witness KK, he was at the ESI Nursing School when he first saw the two vehicles and the motorcycle heading in the direction of the trading centre just before 7.00 a.m. Ruzindana drove one of the vehicles. According to the witness, it belonged to a person with the same profession and first name as Witness PP. [377] Sikubwabo drove the other car in which the witness observed Muhimana. Between 7.00 and 7.30 a.m. they returned in the company of Elizaphan Ntakirutimana, who was driving his own car. The witness testified that two of the persons in the rear of the Accused’s vehicle were armed; he could not see whether the other passengers had weapons. He maintained that he made his three observations of the Accused from a place near the ESI Nursing School, and that the road passed very close to the school. [378] The available material does not allow the Chamber to form an opinion on the distance between Witness KK and Elizaphan Ntakirutimana’s car, as the witness was not able to use the sketch (exhibit P2).

265. Submissions of the Defence concerning the credibility of Witness KK are considered elsewhere also. However, one passage in the witness’s written statement is of relevance in this context:

266. The Chamber agrees with the Defence that these portions of the statement differ from the testimony of Witness KK. [379] The Chamber is of the view that the variation in time is of little significance (8.00 instead of 7.00-7.30 a.m.), in view of the lapse of time since the events. It notes that in his testimony the witness did not mention the visit of three persons to Gérard Ntakirutimana’s house before Ruzindana allegedly came to the house with Elizaphan Ntakirutimana. The Chamber does not hold this against the witness as he was not questioned about this discrepancy, but still finds it noteworthy that nowhere in his testimony did he make any reference to Gérard Ntakirutimana’s house. However, of some concern in relation to the credibility of the witness is the declaration that Elizaphan Ntakirutimana was in Ruzindana’s car when they returned from the trading centre, whereas in his testimony, the witness said clearly that the Accused was driving his own car.

267. The Chamber finds that the testimony of Witness KK corroborates the evidence provided by other witnesses that Elizaphan Ntakirutimana was conveying attackers. However, it will not place great weight on Witness KK’s testimony because of doubts created by the discrepancies between the testimony and his previous statement.

268. Witness YY testified that between 7.30 and 8.00 a.m. on 16 April, Obed Ruzindana arrived at the Complex in a white Toyota pickup. The witness was standing close to the road "going towards Ngoma centre where Ntakirutimana lives". Ruzindana parked his vehicle. "The gendarmes were called, and they left with him." [380] At another point in his testimony Witness YY described what would seem to be the same incident, stating there was also another car which belonged to bourgmestre Charles Sikubwabo, in which the witness saw Conseiller Mika Muhimana. The vehicles headed with the gendarmes to Elizaphan Ntakirutimana’s house. [381] It was about 8.00 a.m. and the witness was standing near the hospital building, about 250 metres away from the scene he was observing. [382] "When you are at the Mugonero Hospital, you can clearly see the road leaving the hospital towards Ngoma centre. Now, when they left the hospital, they went towards Ntakirutimana’s house, and proof of that is that when they came back, they were in the company of Ntakirutimana." [383]

269. As suggested in the last sentence, a short time after the above incident, Witness YY saw a number of persons arrive at the Complex in vehicles. He was able to identify a vehicle belonging to a "trader", as well as the Gishyita commune vehicle, the hospital vehicle, and Elizaphan Ntakirutimana’s vehicle. [384] Sikubwabo and Muhimana were aboard the commune vehicle, according to the witness. Ruzindana was aboard the trader’s vehicle. The car driven by Elizaphan Ntakirutimana was a white or whitish Hilux. Witness YY claimed to have seen three gendarmes in it. "At the back of the [Accused’s] vehicle there were many people. In fact, that is the vehicle which brought back the gendarmes who had earlier been taken away by Ruzindana’s vehicle. … The approximate number of people at the back of that vehicle was not less than 20." The witness at that point was about twenty metres away from the Accused’s car but was unable to determine if anyone was riding with the Accused in the front cabin. [385] The Accused was unarmed. [386] This was the only time Witness YY saw Elizaphan Ntakirutimana on 16 April 1994. [387]

270. The Chamber observes that Witness YY claims to have seen the trader’s car driven by Obed Ruzindana, the commune vehicle with Charles Sikubwabo at the steering wheel (in the company of Mika Muhimana) and Elizaphan Ntakirutimana’s car driven by the Accused himself. They were conveying attackers a short time after 8 a.m. The witness claims to have been approximately 20 metres away from the Accused’s car, in whose rear section he saw at least twenty persons, including three gendarmes. The testimony is generally in conformity with the evidence provided by other witnesses, and the observation was made at a relatively short distance.

271. The Defence challenged the credibility of Witness YY, [388] and made reference, in particular, to the witness’s only statement to investigators of 25 October 1999, which is said to contain numerous discrepancies in comparison to his testimony. While the questions put to the witness are not reproduced in his three-page statement, it can be inferred that he was asked to describe the attacks, at both the Mugonero Complex and Bisesero, and name persons connected with the attacks.

272. Witness YY’s statement mentions Elizaphan Ntakirutimana as the recipient of a letter written by the pastors at the Complex. Gendarmes allegedly conveyed the Accused’s reply at around 9.00 p.m. on 15 April (as mentioned above, at 3.8.3(b), this timing of the reply, which was also reflected in Witness YY’s testimony, deviates from the evidence generally given in the case). The statement then explains that on the morning of 16 April Ruzindana arrived in a white Toyota pickup with six soldiers and six civilians and collected the gendarmes at the Complex. A few minutes later "thousands of thousands" of armed attackers surrounded the Complex. "Many attackers gathered near Pastor Ntakirutimana’s office." For about 30 minutes the refugees managed to resist them. The statement continues:

273. It is noteworthy that this part of the statement does not contain any information that Elizaphan or Gérard Ntakirutimana played any role in connection with the attack. There is no reference to Elizaphan Ntakirutimana’s vehicle or the hospital vehicle conveying attackers. (Sikubwabo and Muhimana are mentioned, but not their vehicle.) However, the last paragraph of the statement, after a long description of events in Bisesero, contains the following declaration:

274. This passage seems to indicate that at the end of the interview Witness YY was specifically asked about the two Accused. He stated that he had seen Elizaphan Ntakirutimana "on several occasions", and that "all the time" the witness saw him he was "transporting killers". The declarations are very general and may include the attack at the Mugonero Complex. The Chamber notes in this connection that the reference in the passage to Gérard Ntakirutimana includes the Mugonero attack. Consequently, even if it is somewhat remarkable that the events testified about are not summarized in the statement, the Chamber finds that this lack of detail does not in itself reduce the reliability of his oral testimony.

275. In this context the Chamber makes a more general observation. As mentioned above, the Defence submits that the two Accused were subject to a "political campaign" which started in connection with the video recorded in 1995 (see generally II.7). Witness YY is said to have led a "second wave of politically motivated witnesses". The Chamber notes that Witness YY’s statement of 25 October 1999 was drawn up about four and a half years after the video. This does not support the Defence theory of an organized campaign. Secondly, if the witness’s intention was to incriminate Elizaphan and Gérard Ntakirutimana it could be expected that he would have emphasized, if not embellished, their central role in his statement. However, as observed above, Witness YY only mentions the Accused in passing and at the end of the statement, possibly after having been asked specific questions about them. Thirdly, it is true that Witnesses DD, KK and VV named Witness YY as their contact person, whereas Witness YY designated Witness KK for that purpose. However, at the time he gave his statement Witness YY held public office at the local level and, consequently, was easy to contact. Finally, the Chamber notes that there is no evidence to support the Defence contention that Witness YY comes from the ranks of the RPA and has fabricated evidence with any RPF agents.

276. The Chamber finds that the testimony of Witness YY supports the allegation that Elizaphan Ntakirutimana transported attackers on 16 April 1994 to the Mugonero Complex in the company of Obed Ruzindana and Charles Sikubwabo. Other parts of Witness YY’s testimony relating to Mugonero will be assessed elsewhere (see, for instance 3.10.3).

277. Witness SS saw Elizaphan Ntakirutimana three times on 16 April 1994 prior to the attack. On the first occasion, sometime after 6.00 a.m., the Accused came alone to the Complex in his vehicle and collected two gendarmes from the parking lot of the Mugonero Complex: "He did not spend a long time. He took the gendarmes and they left." [389] Witness SS was standing close to the hospital parking lot. [390] They left along the road to Gishyita. [391]

278. The witness saw Elizaphan Ntakirutimana for the second time less than an hour and a half later, when the Accused returned with the two gendarmes. [392] On this occasion, from his position below the hospital laboratory, Witness SS saw the Accused stop and speak "for a while" with Nkuranga near the hospital car park, after which he saw the Accused get into his vehicle and leave. Later Nkuranga told the witness that the Accused had said "that we were going to be killed on that day". Pressed for more detail on what was said, Witness SS responded: "We did not need too many details because it had already been rumoured that we were going to be killed on that day … All he told us was the decision to kill us had been reached." Witness SS added that "all the people who spoke to the gendarmes upon their return learned from the gendarmes that a decision had been reached: The decision to kill us on that day." [393]

279. Witness SS saw Elizaphan Ntakirutimana for the third time "less than one hour" after seeing him with Nkuranga. The witness was at the field office when he saw the Accused pass in a car, about six metres away. He was accompanied by "Mathias" Gakwerere, a Hutu pastor, whom he had "just picked up … from his home near the parent church". [394] In later testimony, Witness SS explained this assumption: "I saw them come together from that direction, and I thought that they were coming from his house together because I saw them together in the vehicle." [395] He said that Elizaphan Ntakirutimana drove in his car with "Mathias" in the direction of Esapan Secondary School. He thought they were going to Esapan for safety because on the morning of 16 April 1994 he had heard reports that all Hutu pastors residing in the vicinity had sought refuge at the school. [396]

280. As will be discussed elsewhere (3.12.3, 4.10.3, 4.16.3), the Chamber considers Witness SS to be a credible witness. It observes that he did not see Elizaphan Ntakirutimana convey attackers, but notes that his version of the events contradicts the testimony of Elizaphan Ntakirutimana that immediately after returning from Gishyita he wrote the response to the refugees, returned to his house and headed for Gishyita with his family and friends.

Concluding Observations about the Witnesses’ Testimonies Concerning Elizaphan Ntakirutimana

281. The Chamber observes that seven Prosecution witnesses (MM, GG, PP, HH, KK, YY, and SS) testified that they saw Elizaphan Ntakirutimana driving his car within the area of the Mugonero Complex on the morning of 16 April 1994, albeit at various locations and times. Six of these witnesses (all except SS) allegedly observed him transporting attackers. Five out of seven Prosecution witnesses testified that Elizaphan Ntakirutimana was driving his white or whitish Toyota Hilux pickup in the morning of the attack. Of the remaining two witnesses, Witness GG stated that it was white with shining coloured stripes, whereas Witness MM testified that it was beech coloured. [397] As explained above, the Chamber does not consider these differences, taken together, to be significant.

282. The six witnesses allegedly saw Elizaphan Ntakirutimana’s car with other vehicles. Five of the witnesses (GG, PP, HH, KK, YY) saw the car Ruzindana was driving (three of them said that the car belonged to the trader). Four of them observed the communal vehicle (PP, HH, KK, YY). Two of them also saw the hospital vehicle (see below). The witnesses gave similar, but not identical accounts about the attackers that were in the rear of Elizaphan Ntakirutimana’s vehicle. Witness MM mentioned four-five gendarmes with uniform and red berets; Witness HH observed between 15 and 20 persons including gendarmes and civilians in military clothing; Witness GG referred to Interahamwe, some in military uniforms with red berets, others without uniforms; Witness KK was able to identify two gendarmes, two armed civilians and two other persons; and Witness YY claimed to have seen not fewer than 20 persons including three gendarmes. Witness PP did not particularize the attackers, but he saw the Accused standing next to his own vehicle after it was parked very close to his office.

283. While there are some variations among the witnesses, the Chamber finds that they corroborate one another in material respects. The differences may be explained by the passage of time, observations made at different stages of the transport, and differing personal knowledge of the attackers (with the exception of the leaders, two witnesses were able to identify named individuals or previous friends). The witnesses were not observing from a common vantage point or time. The Chamber therefore concludes that there is considerable evidence in support of the Prosecution’s case that Elizaphan Ntakirutimana conveyed attackers to the Mugonero Complex on the morning of 16 April 1994.

284. The Chamber also notes that Witness SS saw Elizaphan Ntakirutimana on 16 April 1994 at Mugonero in his vehicle in the company of two gendarmes and conversing with Jean Nkuranga near the car park at a time when refugees had gathered because of the rumour that impending killings on that day was rife. Seen in the context of the many persons that were killed, including Nkuranga, the evidence of Witness SS provides corroboration of Elizaphan Ntakirutimana’s activities.

285. The Chamber does not find sufficient evidence that Elizaphan Ntakirutimana was wearing a gun at the time when the vehicles transported attackers. Only Witness PP testified about this, and his observation was made from a considerable distance. The Chamber will make its finding as to whether the Accused conveyed attackers after having considered his alibi for this period (see 3.8.3 (e) below).

286. Six witnesses alleged that they saw Gérard Ntakirutimana at the Complex on the morning of 16 April 1994 prior to or during the commencement of the attack. Witness HH testified that he saw Gérard Ntakirutimana come to the Complex that morning conveying attackers in his white Peugeot pickup. [398] As mentioned under 3.8.3 (c) above, the Chamber is not convinced that his observation is accurate. No other witness testified to seeing Gérard Ntakirutimana drive his Peugeot to the Complex. [399]

287. Witness KK testified that at around 8.30 a.m. on 16 April, from his position near the ESI Nursing School he saw a group of cars coming towards the Complex. Elizaphan Ntakirutimana’s vehicle was in front; it was followed by the hospital vehicle, driven by Gérard Ntakirutimana, and two trucks belonging to the COLAS road-construction company. [400] The vehicle driven by Gérard Ntakirutimana was transporting armed Interahamwe and soldiers. [401] The witness explained the lack of any mention in his prior statement of 2 April 1996 of Gérard Ntakirutimana driving a car on the morning of 16 April, saying that the investigators did not ask him a question on that point. [402] As the Chamber noted earlier, the distance between the witness and the group of cars when he made his observation of Gérard Ntakirutimana is unclear. These factors create some doubt and the Chamber will not place great reliance on Witness KK’s testimony on this point (see above).

288. Witness PP testified that he first saw Gérard Ntakirutimana on 16 April with Elizaphan Ntakirutimana, who was standing by his vehicle, 200 or 300 metres away from the witness. [403] "The Pastor and his son, Gérard, came in the same car, in the Pastor’s car, because on that day, I did not see the Doctor’s car and even if it came, he must have left it somewhere else, but I did not see it". [404] This declaration indicates that the witness seemed to draw an inference from his observation of Elizaphan and Gérard Ntakirutimana concerning the way in which the latter arrived. This creates doubts as to whether Witness PP actually saw Gérard Ntakirutimana in a vehicle and, consequently, whether he was conveying attackers. The Chamber notes that no other witness testified that Gérard Ntakirutimana arrived in his father’s car.

289. The remaining three witnesses did not claim that Gérard Ntakirutimana conveyed attackers. Witness YY testified that he saw Gérard Ntakirutimana at the Complex "right from the beginning; I saw him when the attackers arrived. He was amongst those who participated in the attack. He was armed with a gun and he would shoot at us." The witness confirmed that he saw the Accused "as soon as the vehicles reached the location and as soon as they started to shoot at people". He did not know in which vehicle Gérard Ntakirutimana had arrived. [405]

290. Another witness, DD, testified that an attack on refugees at the Complex commenced early in the morning of 16 April. Among the assailants the witness recognized Gérard Ntakirutimana, armed with a big gun. [406] The witness was positioned close to the hospital. [407] Later in his testimony, when he was asked about the first time he had seen Gérard Ntakirutimana on 16 April, the witness did not mention this incident. [408]

291. Finally, Witness GG claimed to have seen Gérard Ntakirutimana twice on 16 April. On the first occasion the Accused was with Mathias Ngirinshuti and Enos Kagaba: "They were placing the attackers in such a way that they surrounded the hospital." [409] The witness did not supply further details or mention a vehicle in this connection (For the second occasion, see 3.11.3).

292. The Chamber finds that of the six witnesses who allegedly saw Gérard Ntakirutimana prior to or during the commencement of the attack only three, Witnesses HH, KK and PP, claimed that he arrived in a vehicle. These witnesses gave three different versions of how he arrived (in his own car, in his father’s car, in the hospital car), and there are some doubts relating to two of these observations. The evidence does not provide a sufficiently detailed or coherent picture to conclude beyond a reasonable doubt that Gérard Ntakirutimana conveyed attackers to the Complex on the morning of 16 April 1994.

293. The Chamber has considered and dismissed Gérard Ntakirutimana’s alibi for the early morning of 16 April, that is, the period 6.30 to 7.30 a.m., approximately (see II.3.7). The next alibi period, which concerns both Accused, is between 8.00 and 9.00 a.m. of the same day, when Prosecution witnesses place the Accused at the Complex, conveying attackers (in the case of Elizaphan Ntakirutimana) or being present among attackers (in the case of Gérard Ntakirutimana).

294. It follows from case law that when the Defence relies on alibi, the Prosecution must prove, beyond a reasonable doubt, that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi. If the alibi is reasonably possibly true, it must be successful. Seven Defence witnesses gave testimony relevant to the alibi period in question. They included the two Accused, who testified last.

295. Witness 16 was Elizaphan Ntakirutimana’s housekeeper. The witness testified that around 7.00 a.m. on 16 April he was summoned by Elizaphan Ntakirutimana: "I went to the living room and he told me: take this mattress and this bag, which contained clothing, and he asked me to put them in a vehicle", namely a Hilux which was parked at its usual location inside the compound. The witness proceeded to put the items in the back of the car. "After that, they came out and [Elizaphan Ntakirutimana] told me to stay at home and informed me that they were going to the commune office", in Gishyita. Witness 16 opened the gates of the compound and Elizaphan Ntakirutimana drove off with his wife on the seat beside him. It was a few minutes after 7.00 a.m., according to the witness. [410] He did not see Gérard Ntakirutimana on the morning of 16 April. [411]

296. The time given by Witness 16 for the departure of the Accused and his wife cannot be accepted. There is no dispute that Elizaphan Ntakirutimana first went to Gishyita (without his wife) early in the morning of 16 April (see above). According to the Accused’s own account, he did not return to Mugonero from that first trip until around 7.30 a.m.

297. Witness 9 testified that on 16 April, at 7.00 a.m., he arrived at Elizaphan Ntakirutimana’s house to take the Accused’s cattle. "When we arrived we didn’t immediately take the cows. We greeted those who were there. We tarried around for a while". The witness claimed that he left the compound at 7.30 a.m. In the course of that half hour, Witness 9, who was accompanied by his father, conversed with Witness 16; he testified that he saw no one else at the compound. When it was pointed out to the witness that a summary of a statement he had given to Defence investigators indicated that he had seen Elizaphan Ntakirutimana at his house on the morning of 16 April, Witness 9 explained that a long time had passed and his memory had failed him. He then gave this account: "On the 16th, the Sabbath day, as I explained to the investigators and as I am going to repeat to you … I met [Elizaphan Ntakirutimana] in the company of his wife in the morning." "I greeted them. … They were getting ready to board the vehicle." Except for greetings, no other words were exchanged between the witness and the Accused. The witness departed with the herd, leaving his father behind with the Accused. [412]

298. Witness 9’s evidence on this point, even if it were to be accepted, does not establish the time at which Elizaphan Ntakirutimana finally left his residence with his wife to make the journey to Gishyita. Therefore this witness does not provide either Accused with an alibi for the 8.00-9.00 a.m. period.

299. Witness 4 testified that on 16 April, "between five and eight o’clock in the morning" [413] , he, his family, and several others, including hospital employees – in total, between 20 and 30 persons – boarded two vehicles and set out for Gishyita township. [414] Later, the witness said: "I do not recall the time. In any event, we left before 8 o’clock." [415] The witness boarded "the hospital vehicle", a white Toyota Stout. [416] It was parked in front of Elizaphan Ntakirutimana’s house. [417] Gérard Ntakirutimana drove this vehicle to Gishyita. [418] The second vehicle, which was close by, belonged to Elizaphan Ntakirutimana. [419] According to the witness, it took the two vehicles 20 to 30 minutes to reach Gishyita. There the group, including the two Accused, took shelter in a large empty building, about 50 metres’ distance from the Gishyita bureau communal. Witness 4 testified that neither Accused left the vicinity of that building on 16 April 1994. [420]

300. Taken at face value, and without reference to the testimony of other Defence witnesses, Witness 4’s testimony may offer both Accused an alibi for the 8.00-9.00 a.m. period. However, Witness 4 was remarkably uncertain about the time the two vehicles departed for Gishyita, saying only that they were boarded sometime in a three-hour period, between 5.00 and 8.00 a.m., and that actual departure was before 8.00 a.m. The Chamber does not find it plausible that Witness 4 should be so uncertain about the boarding time yet so certain about the upper limit of the departure time.

301. Witness 32 testified that "on the 16th, when I got up … my father came and told me that we had to go to Gishyita. … He told us that people had informed him that the hospital was going to be attacked". The witness left the house in which he was staying (next door to that of Elizaphan Ntakirutimana) at 7.00 a.m., and with his brother went on foot to Gishyita, where they arrived at 8.00 a.m. Other members of his family joined them later. [421] Witness 32 testified that at 9.30 a.m. "I saw the vehicle belonging to Pastor Elizaphan Ntakirutimana and the hospital vehicle in which his son was. And they came with other people, some of them in the front part of the vehicle and others in the rear." [422] These other people included Elizaphan Ntakirutimana’s wife and Witness 4. [423] "I was standing at the Gishyita centre, and when I saw the vehicles go towards the communal office, my older brother and I went to see where they were." [424]

302. It follows from the evidence in the case that in April 1994 the drive from Mugonero to Gishyita took 30 minutes, at most, to complete. Therefore, Witness 32’s testimony does not provide the Accused with an alibi for the relevant period. Moreover, it undermines Witness 4’s assertion that the two vehicles left Mugonero for Gishyita before 8.00 a.m. and does not accord with Witness 16’s account of a 7.00 a.m. departure.

303. Royisi Nyirahakizimana, wife of Elizaphan Ntakirutimana, testified that when her husband returned home from Gishyita in the morning of 16 April he informed her that they were leaving Mugonero and instructed her to pack. [425] The reason for their leaving was that "we were aware that the situation was not good", later adding that it was because the gendarmes had said that they could no longer provide protection. [426] According to the witness, the gendarmes informed Elizaphan Ntakirutimana of this around 8.00 a.m. [427] The witness packed cooking implements and mattresses, which their housekeeper (Witness 16) loaded into the rear part of Elizaphan Ntakirutimana’s Hilux, which was parked in the compound. (It is not clear if the packing took place before or after the gendarmes spoke with the Accused.) When the loading had been completed, her husband "took the vehicle out of the compound and stopped further above because he wanted to provide me with space to be able to climb into the vehicle." Elizaphan Ntakirutimana then pulled up in front of the hospital vehicle, which was parked further down the road. Other persons began to board the two cars at this stage. Approximately eight people got into the back of their car; she could not recall how many boarded the hospital vehicle. [428] The cars allegedly left for Gishyita at 8.00 a.m., although the witness specified that "it is [only] on our way that we took the position to go to Gishyita". She saw many people by the roadside along the way." After having gone some distance towards the main road … we had stones thrown at us". The drive to Gishyita took half an hour. At 9.30 a.m. "we went into a building which was used as a reception room when there were visitors", and which was located "six metres" away from the bureau communal. [429] "We were there waiting. We could not have immediate access to the building because we had not prepared that." The group entered the building when watchmen opened it up for them. [430]

304. The Chamber notes that Royisi Nyirahakizimana changed her account of events from one day of testimony to the next, first alleging that her husband informed her, as soon as he returned from his first trip to Gishyita, that they were leaving Mugonero and instructed her to pack, then alleging that gendarmes came, around 8.00 a.m., and informed her husband that they could no longer provide protection and that they should leave. It also notes that her evidence of a 8.00 a.m. departure contradicts the 7.00 a.m. departure mentioned by her housekeeper, Witness 16, as well as the account of Witness 9. Moreover, her testimony that both the decision and the departure took place around 8.00 a.m. does not allow for the intervening time when she said that objects were packed and loaded into the car and passengers picked up.

305. Gérard Ntakirutimana testified that "a few minutes" after he and his father returned from their trip to Gishyita (a contention already rejected by the Chamber) "someone knocked at the door … And what I saw was a gendarme. In fact, it was the other gendarme who had brought the three gendarmes that we saw on the 10th … he told me, ‘You have to leave, you have to leave immediately.’ … He said, ‘Yes, yes, you leave right away.’ He didn’t even tell us where we should be going. … So, right away, I went back into my father’s compound and I said to my father that there was a gendarme who was saying that we must leave. So it’s at that point in time that we began to put together the few belongings we had in order to leave." The gendarme did not explain why they had to leave at short notice, and the Accused did not ask for an explanation. The Accused’s parents loaded some items onto Elizaphan Ntakirutimana’s vehicle, then the latter "drove from the compound, and what I did was to take the hospital vehicle which was parked outside, opposite a building which was quite close by our place. … There were people who were there who had sought refuge with neighbours. … So when they saw us come out, they were surprised, and they said, ‘Can we leave together with you?’, and we said, ‘Well, if you can find room, why not? Just get on and let’s go.’" It was around 8.00 a.m. [431] "At the junction on the road from Kabahinyuza centre and the road going to the hospital … there were many people, many young refugee men, and they started to throw stones [and] bits of wood on our vehicles." [432] m

306. The Chamber observes that Gérard Ntakirutimana’s account of being at his father’s house was supported by his father but not by his mother. No other witness observed him at the house on that morning. Witnesses 4 and 32 said that he was driving the vehicle on its way to Gishyita. Moreover, whereas Gérard Ntakirutimana’s evidence was that the gendarmes spoke with him, his mother testified that they informed Elizaphan Ntakirutimana. The Chamber observes also that she said that the gendarmes informed her husband "around 8.00 a.m.", whereas Gérard Ntakirutimana testified that he spoke with the gendarmes "a few minutes" after he and his father returned from their trip to Gishyita.

307. Elizaphan Ntakirutimana testified that five minutes or so after he and his son returned from Gishyita, Gérard Ntakirutimana informed his parents that a gendarme at the door had said: "[G]o away from here. Leave this place immediately". The gendarme had not given a reason for his instruction. Elizaphan Ntakirutimana asked his wife to load some essentials into the car, which she did with Witness 16’s assistance, and they left. About eight other people came aboard the vehicle outside of the compound. His son was in the hospital car, following behind. "I went on the road towards Gishyita. I passed by the bureau communal. … There was another building next door, and I parked my vehicle between the two buildings." [433] It was between 8.30 and 9.30 a.m. Authorization to stay at a building belonging to the commune was not obtained from the communal authorities; rather, a "messenger" came by and said they could place their belongings there. [434]

308. The Chamber observes that Elizaphan Ntakirutimana was not clear as to the time of his final departure for Gishyita. He testified that the group arrived in Gishyita between 8.30 and 9.30 a.m., which does not exclude the possibility that the group departed Ngoma as late as 9.00 a.m. The Chamber is thus left with six testimonies on which to find that an alibi has been made out: Defence Witness 4’s dubiously confident assertion that departure was before 8.00 a.m.; Witness 32’s claim that he saw the group arrive in Gishyita at 9.30 a.m.; Witness 16’s account of a departure at 7.00; Gérard Ntakirutimana’s evidence of a departure around 8.00 a.m.; Elizaphan Ntakirutimana’s wife’s allegation that the group left Ngoma at 8.00 a.m. but was not admitted into the building before 9.30 a.m.; and Elizaphan Ntakirutimana’s testimony that arrival in Gishyita was between 8.30 and 9.30 a.m.

309. The Chamber does not find that this evidence, considered together with the evidence of Prosecution witnesses, raises a reasonable possibility that the two Accused were not present in the vicinity of the Mugonero Complex between 8.00 and 9.00 a.m. on 16 April.

310. Having thus concluded, with reference to paras. 283-285 in 3.8.3 (c) above, the Chamber finds that Elizaphan Ntakirutimana conveyed attackers to the Mugonero Complex on the morning of 16 April 1994.

[239] The Bisesero Indictment para. 4.7 is virtually identical, but does not contain any reference to Charles Sikubwabo.

[240] The Bisesero Indictment para. 4.8 is almost identical; there is no reference to Charles Sikubwabo, and the sentence continues with the words “and into the night".

[241] The Bisesero Indictment contains an insignificant difference.

[242] T. 21 August 2002 p. 15.

[243] Id. p. 81.

[244] Prosecution Closing Brief paras. 451, 480.

[245] T. 21 August 2002 pp. 18-19, 54.

[246] Id. pp. 24-25.

[247] Id. pp. 22-24.

[248] Prosecution Closing Brief paras. 463 ff., 481 ff.

[249] Id. paras. 453 ff.; T. 21 August 2002 pp. 24-25.

[250] Id. para. 486.

[251] Prosecution exhibit P7; T. 21 August 2002 pp. 24-25, 36.

[252] Prosecution Closing Brief paras. 495, 498.

[253] T. 21 August 2002 p. 65.

[254] Id. pp. 69-70.

[255] Id. pp. 39-42.

[256] Id. p. 53.

[257] Id. pp. 55-58.

[258] Id. pp. 69-78

[259] Defence Closing Brief pp. 204ff.

[263] Appendix A5 of Prosecution exhibit P2; T. 18 September 2001 pp. 96-98. The Prosecutor obtained the letter from Mr. Philip Gourevitch, an author and staff writer at the New Yorker magazine, who had received it from Elizaphan Ntakirutmana during an interview in Laredo, Texas, USA on 25 September 1996. Mr. Gourevitch subsequently referred to this letter in his book We wish to inform you that tomorrow we will be killed with our families. Stories from Rwanda (1998). The interview and excerpts from the book were produced as Prosecution exhibits P42 A and B.

[264] The quotation is from the English translation provided by the Prosecution (see previous footnote). Some minor errors in the exhibited English translation of the letter have been corrected. The spelling of names varies slightly from the original letter. The word “Mwalimu” (No. 7) means “teacher”. The letter was also interpreted orally in court, see T. 6 May 2002 pp. 155-156.

[265] In cross-examination, Witness GG referred also to an earlier letter with similar content, written and sent to Elizaphan Ntakirutimana on 14 April 1994. A person named Assiel delivered this earlier letter (T. 24 September 2001 pp. 108-110, 116-117). No other witness testified that two letters with similar content were sent to Elizaphan Ntakirutimana on separate days.

[266] T. 25 September 2001 pp. 112, 117; T. 26 September 2001 p. 77.

[268] Witness YY (T. 1 October 2001 pp. 128, 130); Witness GG (T. 24 September 2001 pp. 92-93); Witness HH (T. 25 September 2001 p. 113; T. 26 September 2001 p. 88).

[270] Prosecution Closing Brief paras. 163 and 451.

[271] Id. para. 459. (In the last sentence the word “not” seems to be lacking.) See also T. 21 August 2002 p. 21.

[277] Witness HH (hearsay), T. 25 September 2001 pp. 115-116; Witness MM (hearsay), T. 20 September 2001 p. 104; Witness YY, T. 1 October 2001 pp. 130-131 and 2 October 2001 pp. 57-58.

[278] T. 20 September 2001 pp. 130-132 and T. 24 September 2001 p. 96.

[282] T. 19 September 2001 p. 81; T. 20 September 2001 p. 103.

[285] Consequently, the Chamber does not find sufficient evidence to agree with Counsel for the Prosecution, who in his opening statement said that “Pastor Ntakirutimana’s response was contained in a brief, heartless letter which stated: There is nothing I can do for you. All you can do is to prepare to die, for your time has come, or words to that effect” (T. 18 September 2001 pp. 17-18.)

[287] See 3.8.3 (a), where the letter is quoted in its entirety.

[299] Witness MM’s statements were dated 12 September 1995, 11 April 1996 and 15 April 1996. The first statement does not state explicitly that he conveyed attackers in his car, but that “soldiers” came behind him in other vehicles. The second statement refers to four or five “soldiers” in the back of his car, as testified to during the trial (consistently referred to as “gendarmes” during his evidence). The Chamber notes that Witness MM’s testimony was also generally in conformity with his statement to African Rights, Charge Sheet No. 3 (exhibit P29 and 1D5).

[303] T. 20 September 2001 pp. 135-136; T. 24 September 2001 pp. 36-37, 97.

[307] T. 24 September 2001 pp. 165-167; Defence Closing Brief p. 93.

[309] Defence Closing Brief pp. 92-93. In fact, the Defence is revisiting its motion of 24 September 2001 to strike the testimony of Witness GG because of his testimony in the previous case. The Chamber rejected the motion (T. 24 September 2001 pp. 48-54).

[310] Kayishema and Ruzindana (TC) paras. 414, 456, 461 and 466, where Witness FF was considered credible.

[311] Defence Closing Brief pp. 93-97. Witness GG gave three statements to investigators, dated 30 June 1996, 10 July 1996 and 12 November 1999. The second and third statements concern the identification of Elizaphan Ntakirutimana and sexual crimes, respectively.

[312] It is not correct that Witness GG testified to “a third letter” as stated in the Defence Closing Brief at p. 94.

[313] T. 24 September 2001 pp. 108-121; T. 25 September 2001 pp. 60-65.

[318] T. 25 September 2001 pp. 50-54. The witness claimed not to know whether Assiel Kabera was member of the organization Ibuka.

[322] The witness did not remember how the Accused was dressed; T. 8 October 2001 p. 79.

[323] T. 8 October 2001 pp. 19-23, 123-124.

[330] Defence Closing Brief pp. 68-69 and Exhibit P2.

[331] Defence Closing Brief pp. 63-67, 69-70.

[332] In his third statement (below) he corrected a declaration in the second statement, which could be interpreted as if the attack took place on 13 April, and specified that it occurred on 16 April 1994.

[333] The Chamber notes that Witness PP did not give any interview to African Rights (exhibit P29 and 1D5).

[335] Id. p. 119; T. 26 September 2001 p. 13.

[336] T. 25 September 2001 pp. 123-124; T. 27 September 2001 pp. 113-115, 116-117, 121-122.

[339] Id. T. 25 September 2001 pp. 119-120, 137; T. 27 September 2001 pp. 7-8.

[341] Prosecution exhibit P2, Photograph 7; T. 27 September 2001 pp. 116, 119-120, 121.

[342] T. 25 September 2001 p. 135; T. 27 September 2001 p. 147.

[344] T. 25 September 2001 p. 121; T. 27 September 2001 pp. 111-112, 115-116.

[345] T. 25 September 2001 pp. 122, 125; T. 27 September 2001 p. 113.

[346] T. 25 September 2001 pp. 121, 126-128.

[347] Id. p. 128; T. 26 September 2001 pp. 14, 22; T. 27 September 2001 pp. 111-112.

[348] T. 26 September 2001 p. 22; T. 27 September 2001 p. 112.

[351] T. 27 September 2001pp. 132-133. The French expressions are “des liens de sang” and “liens de parenté” (p. 116).

[352] T. 27 September 2001 pp. 131-136, 138-139. It follows from the French version (pp. 116-117) that he “saw” Kabera, not that he “met” him.

[359] During his testimony Witness HH was not asked whether he had seen Gérard Ntakirutimana looting the hospital before the attack or about the alleged confiscation of Witness PP’s car. Consequently, the Chamber cannot consider these as discrepancies which reduce his credibility, as suggested in the Defence Closing Brief pp. 76-77.

[360] Kayishema and Ruzindana (TC) paras. 543-545.

[362] T. 11 April 2002 p. 137; T. 12 April 2002 p. 16; T. 15 April 2002 p. 14.

[365] A mistake of a different nature is found in the English version of the transcripts, according to which the refugees’ purpose in writing the letter was to ensure that Elizaphan Ntakirutimana consulted “with his two sons who were in charge of the hospital” and that they would then contact the bourgmestre (T. 25 September 2001 p. 113; Defence Closing Brief pp. 79-80). Clearly, the French version has been wrongly translated into English (“L’objectif était de faire en sorte que le pasteur Ntakirutimana discute avec son fils - les deux personnes étant responsables du complexe -, et que de cette discussion, il pouvait contacter le bourgmestre …”; p. 126 of the French transcripts).

[367] T. 3 October 2001 p. 100; T. 4 October 2001 pp. 59, 65, 69-71.

[368] T. 3 October 2001 pp. 101-103, 110, 113; T. 4 October 2001 pp. 70-71, 77; T. 5 October 2001 pp. 10- 11.

[369] T. 3 October 2001 pp. 104-105, 111-114; T. 4 October 2001 p. 71; T. 5 October 2001 pp. 10, 13-18.

[370] T. 3 October 2001 pp. 105-107, 114; T. 5 October 2001 pp. 17, 26.

[372] T. 3 October 2001 p. 107; T. 4 October 2001 p. 76; T. 5 October 2001 pp. 19-20.

[373] T. 3 October 2001 p. 108; T. 5 October 2001 p. 21.

[374] T. 3 October 2001 pp. 104-105, 113-115; T. 4 October 2001 p. 71; T. 5 October 2001 pp. 10-11, 17.

[377] This part of the testimony would seem to corroborate the testimony of Witness PP. The Chamber notes, however, that in Witness KK’s written statement of 15 November 1999 the vehicle is described as “Ruzindana’s car”. This may be a mistake or a mere simplification (also during his testimony he used that expression on one occasion even though he had explained that the owner of the car was someone other than Ruzindana).

[378] T. 4 October 2001 pp. 71-72 (“not in the same place”), 77-79 (first sighting of two cars and motorcycle, observed from eucalyptus tree at ESI); T. 5 October 2001 pp. 18-19 (sighting including Elizaphan Ntakirutimana’s vehicle).

[384] T. 1 October 2001 p. 140. The reference to the owner of the vehicle would seem to corroborate Witness PP’s testimony.

[385] T. 1 October 2001 pp. 141-145; T. 2 October 2001 pp. 72-74.

[389] T. 30 October 2001 pp. 82-83, 88; T. 31 October 2001 pp. 95-96.

[391] T. 30 October 2001 p. 89; T. 31 October 2001 p. 95.

[392] T. 30 Oct. 2001 p. 89; T. 31 Oct. 2001 p. 96.

[393] T. 30 October 2001 pp. 90-93; T. 31 October 2001 p. 98.

[394] T. 30 October 2001 pp. 95-100; T. 31 October 2001 p. 101.

[396] T. 30 October 2001 pp. 97-103; T. 31 October 2001 p. 103.

[397] T. 19 September 2001 p. 85 (Witness MM); T. 20 September 2001 pp. 138-141 (Witness GG).

[398] T. 25 September 2001 p. 129.

[399] T. 26 September 2001 pp. 102, 111.

[400] T. 3 October 2001 pp. 104-105, 113, 115; T. 4 October 2001 p. 71; T. 5 October 2001 pp. 10-11, 17.

[401] T. 3 October 2001 pp. 104, 109, 115.

[402] T. 4 October 2001 p. 80.

[403] T. 8 October 2001 p. 27.

[404] Id. p. 123.

[405] T. 2 October 2001 p. 21.

[406] T. 23 October 2001 pp. 79-83.

[407] Id. p. 93; T. 24 October 2001 pp. 32-33.

[408] T. 24 October 2001 p. 32.

[409] T. 24 September 2001 p. 125.

[410] T. 13 February 2002 pp. 144, 147-150; T. 14 February 2002 pp. 21-22, 25-29.

[411] T. 14 February 2002 pp. 20, 53-54.

[412] T. 30 April 2002 pp. 82-91, 93.

[413] T. 7 February 2002 p. 73. The witness answered as follows: “When I say it was in the morning, I mean as from seven … between five in the morning and seven.” Q: Between five and seven in the morning?” A: “To be more precise, let’s say it was between five and eight o’clock in the morning.”

[414] Id. pp. 61, 63-66, 68-69, 169-172.

[415] Id. p. 159.

[416] T. 7 February 2002 pp. 66, 175; T. 11 February 2002 pp. 27-28.

[417] T. 7 February 2002 pp. 67, 163-164; T. 11 February 2002 pp. 10-11, 21-22.

[418] T. 7 February 2002 p. 72.

[419] Id. pp. 69, 72; T. 8 February 2002 pp. 10-12; T. 11 February 2002 pp. 11-12.

[420] T. 7 February 2002 pp. 83-84, 86-87; T. 8 February 2002 pp. 17-23.

[421] T. 16 April 2002 pp. 115-117; T. 17 April 2002 pp. 44, 54-55.

[422] T. 16 April 2002 p. 118.

[423] Id. pp. 118-119; Defence exhibit 2D28 (names of persons on board vehicles to Gishyita).

[424] T. 16 April 2002 p. 128.

[425] T. 10 April 2002 p. 38; T. 11 April 2002 p. 15.

[426] T. 10 April 2002 p. 38, 164; T. 11 April 2002 pp. 20-22.

[427] T. 11 April 2002 p. 26.

[428] T. 10 April 2002 pp. 39-40, 44-45.

[429] Id. pp. 48-52, 55-56, T. 11 April 2002 p. 7.

[430] T. 10 April 2002 p. 166; T. 11 April 2002 p. 10.

[431] T. 9 May 2002 pp. 99-102.

[432] Id. p. 104; T. 10 May 2002 pp. 48-50.

[433] T. 6 May 2002 pp. 73, 169-176.

[434] T. 7 May 2002 pp. 5, 10.