4.12    Nyarutovu Cellule and Gitwa Hill in Middle and Second Half of May (Witness CC)

4.12.1    Prosecution

587.   On the basis of Witness CC’s testimony the Prosecution submits that, in the middle of May 1994, Elizaphan Ntakirutimana transported attackers in his vehicle near the Gishyita-Gisovu road in Nyarutovu cellule and instructed them to search for refugees. He was also seen in the second half of May 1994 at Gitwa Hill in the company of armed attackers, close-by his vehicle, acting as their leader. In the Prosecution’s view, Witness CC was a credible witness. Inconsistencies between his testimony and prior statements to investigators were not significant. [939]

4.12.2    Defence

588.   The Defence contends that Witness CC’s testimony is insignificant and incredible. He claimed to have seen the Accused very briefly on only two occasions as opposed to the four referred to in his prior statement. In respect of the event at Gitwa Hill, he did not see the Accused do anything. The witness was not credible because of discrepancies between his testimony and his prior statements and in view of his evidence in Kayishema and Ruzindana. [940]

4.12.3  Discussion

(a)        Nyarutovu Cellule

589.   Witness CC testified about an event which took place one morning in mid-May 1994 at around 11.00 a.m. in Nyarutovu cellule, which is close to Gitwa Hill in the Bisesero area. He and other Tutsi refugees were fleeing from attackers when he decided to take cover in bushes. From his hiding place, he saw Elizaphan Ntakirutimana’s off-white vehicle approaching down the Gishyita-Gisovu road. Interahamwe in white uniforms and soldiers in military uniforms, all of them carrying guns, machetes, spears, and nail-embedded clubs, descended from the rear hold. The Accused came out of the front cabin. He was unarmed. The witness then heard him address the attackers, pointing at fleeing refugees and saying: "There they are!" The attackers then chased these refugees, singing "Exterminate them; look for them everywhere; kill them; and get it over with, in all the forests." The witness explained that he observed this scene from his hiding place at a distance of approximately 100 meters and for a couple of minutes or so, before he went further down the hill to hide in other bushes. [941]

590.   This incident is not specifically mentioned in the Indictment but is summarized as part of Witness CC’s anticipated evidence in Annex B of the Prosecution’s Pre-trial Brief. [942] The Brief was filed about a month and three weeks prior to the witness’ testimony and about six months prior to the opening of the Defence Case. The event is also described in his statement to investigators of 12 June 1996, which was disclosed to the Defence on 29 August 2000. The Chamber is of the view that the Defence received sufficient and timely notice (see para. 2.4 above).

591.   Regarding the credibility of Witness CC, the Chamber notes that he testified about two events in the Bisesero area. His testimony was generally consistent. The Defence has referred the Chamber to alleged discrepancies with his prior statement. The Chamber is not convinced by these submissions. It is true that his written statement of 12 June 1996 did not include Elizaphan Ntakirutimana in a list of ten attackers he had seen in Bisesero. However, it follows clearly from the wording of the statement that the list was not exhaustive. [943] Later the witness stated to investigators that he saw the Accused "at least" four times in Bisesero and describes an event "on the road between Gishyita and Gisovu". This clearly refers to his sighting of the Accused at Nyarutovu.  Similarly, in the Chamber’s view it does not affect the credibility of the witness that his statement describes the attackers in the vehicle as armed civilians whereas in court he testified that they were armed Interahamwe and soldiers. The same statement’s general description of attackers in Bisesero included soldiers, civilians, Interahamwe and policemen.

592.   Witness CC testified that he was not able to identify the make of Elizaphan Ntakirutimana’s vehicle because he did not know how to read. The Defence points out that in his statement of 1996 he described it as a Toyota pick-up. The Chamber notes that the witness described the Accused’s car in a way which corresponded to the description by other witnesses who observed it on other occasions.

593.   According to the statement, Witness CC said that the daily attacks in Bisesero started almost every day at 4.00 a.m., whereas in court he denied having said this to investigators. The Defence observes the difference to his testimony in Kayishema and Ruzindana where he testified that the attacks started at 9.00 a.m. The Chamber does not find this significant and notes that during cross-examination in the present case the witness stated that the attackers would not come at any fixed moments in time and would arrive at 7.00, 8.00 or 9.00 a.m. Similarly, the Defence submissions about Witness CC’s different estimates of the distances between his home and Ngoma Church and Muyira Hill, respectively, do not relate to the involvement of the Accused and are of little importance.

594.   The Chamber recalls that Witness CC made his observation in broad daylight for two minutes. He testified that he had known Elizaphan Ntakirutimana since 1977, having seen him at the church in Gisiza where the Accused came during religious gatherings, and from the Adventist church in Ngoma secteur. It is quite possible to recognize a person at a distance of about 100 meters. Even if the witness was not able to describe the clothes worn by the Accused he explained that he was not armed, that he came out of his vehicle, and that he heard the Accused’s statement quoted above. There is no evidence that there were any persons or vegetation between the witness and the Accused that may have obstructed his view. In his written statement of 12 June 1996 to investigators he stated that he was standing on the slope of a mountain and could see the Accused and his car with the armed civilians very clearly. His evidence was coherent and consistent with the written statement. The Chamber accordingly finds that Elizaphan Ntakirutimana brought armed attackers in the rear hold of his vehicle to Nyarutovu Hill one day in the middle of May 1994, and that the group was searching for Tutsi refugees and chasing them. Furthermore, the Chamber finds that, at this occasion, Elizaphan Ntakirutimana pointed out the fleeing refugees to the attackers who then chased these refugees singing "Exterminate them; look for them everywhere; kill them; and get it over with, in all the forests."

(b)        Gitwa Cellule

595.   Witness CC testified about seeing Elizaphan Ntakirutimana in the company of individuals he described as assailants carrying guns in the second half of May 1994, about a week after his first sighting of the Accused in Nyarutovu cellule. This occurred in Gitwa cellule, about ten-minute walk from Nyarutovu. The witness estimated that he was about 50 metres away from the Accused when he saw him. There were trees and bushes in between. The sighting lasted a few moments. He further saw the Accused’s vehicle, which was parked. He left a moment afterwards and went to hide in other bushes. Elizaphan Ntakirutimana was not carrying a gun, but he was, according to the witness, "leading the attackers". He specified that: "He didn’t do anything, as such; but he came with the attackers and the attackers were coming to … work". [944]

596.   This event is not specifically referred to in the Indictment. However, Annex B of the Prosecution’s Pre-trial Brief gives a summary of Witness CC’s testimony which includes four sightings of Elizaphan Ntakirutimana in Bisesero, and reference to the facts that on all occasions the witness saw the Accused with attackers and that he directed them to attack Tutsi refugees.Even though the date and place of this particular sighting were not specified, the Chamber finds that the Defence received timely and sufficient notice of the present allegation, considering the sheer scale of the massacres (see generally 2.4).

597.   As already noted, the Chamber found Witness CC to be generally consistent and reliable. It is true that in his prior statement of 12 June 1996 he did not mention seeing Elizaphan Ntakirutimana at Gitwa cellule. However, the general formulation according to which the witness saw the Accused at least four times during the attacks in the Bisesero area could well include the incident at Gitwa. The witness testified that he did mention this incident to the investigators but that they may not have put it down.

598.   Even though the witness declared that there were trees and bushes between him and the Accused, the Chamber notes that the distance between Elizaphan Ntakirutimana and him, at the time of the observation, was not far -- about 50 meters -- and conforms to a positive identification of the Accused. The Chamber is therefore satisfied beyond a reasonable doubt that Elizaphan Ntakirutimana was present among armed attackers at the occasion of an attack against Tutsi refugees at Gitwa cellule, and that his car was parked nearby. Although this evidence is limited in respect of the Accused’s exact role or conduct in connection with the attack, it corroborates other sightings of the Accused in Bisesero, in the company of attackers, during the time-period relevant to the Bisesero Indictment.

4.13     Kabatwa and Gitwa Hills, End of May 1994 (Witness KK)

4.13.1  Prosecution

599.   The Prosecution, relying on Witness KK, alleges that both Accused were seen as part of a convoy of attackers at Kabatwa Hill, Nyarutovu cellule, at the end of May 1994 and that Elizaphan Ntakirutimana was later observed close to his vehicle between Gitwa and Kabatwa Hills with attackers, where he instructed them to attack refugees. [945]

4.13.2    Defence

600.   The Defence submits generally that Witness KK’s allegations are not credible and part of a campaign against the Accused. In relation to the incident at Kabatwa Hill, the Defence points out discrepancies between his evidence and his written statement of 15 November 1999. [946]

4.13.3  Discussion

601.   Witness KK testified that, one day before noon towards the end of May 1994 he saw several cars following each other at Kabatwa Hill, Nyarutovu cellule. The distance between the vehicles was about 10 meters. The vehicles were approaching from where he stood, hiding with a group of 31 Tutsi refugees. He observed the vehicle of bourgmestre Charles Sikubwabo, Elizaphan Ntakirutimana’s Toyota Hilux, the Mugonero Hospital vehicle driven by Gérard Ntakirutimana, and another vehicle which the witness did not describe further. Armed individuals were aboard the vehicles, some of which stopped at a place called Ngendombu, and others at Kabatwa, below the Gitwa road. About 20 metres away from the witness, he saw attackers climb down the cars (the witness did not specify which cars these were among those he previously saw), searching for Tutsi refugees hiding in the bushes and shooting at them. The witness described the assailants as Hutu individuals carrying machetes and clubs. Among them, he recognised the conseiller of Gishyita commune Mika Muhimana.

602.   The shooting lasted for about four hours. During the attack Witness KK and other Tutsi refugees climbed up and reached the Gitwa road.On Gitwa Hill, on the other side of the road, he saw, 20 meters away, individuals he described as Hutu harvesting peas and placing them in Elizaphan Ntakirutimana’s vehicle. Mika Muhimana was standing nearby, shooting at refugees. The witness testified that Elizaphan Ntakirutimana saw their group and shouted to "soldiers" who were above the Accused on the hill: "there they are, down below. Catch them". The soldiers then chased the group of refugees, shooting at them. They threw a grenade which wounded the witness in the leg and arm and killed three others. At this stage, the witness hid further down the hill. He specified that the attack at Kabatwa hill lasted the whole day. [947]

603.   According to the testimony of Witness KK it was broad daylight when he saw Elizaphan Ntakirutimana’s car arriving towards Kabatwa Hill, on the Gitwa road, transporting armed individuals, 20 meters away from him. Although he did not testify to seeing the Accused driving it, he did see him in the afternoon that day during an attack on neighbouring Gitwa Hill close by his vehicle. According to the witness, this observation also took place from a relatively short distance, about 20 meters from Elizaphan Ntakirutimana’s vehicle, the Accused standing nearby his car. The witness heard him tell attackers nearby to "catch" the Tutsi refugees. Witness KK was able to provide precise details about the scene of the incident, such as the position of Elizaphan Ntakirutimana’s vehicle and the fact that it was being loaded with peas.

604.   The Chamber will now consider whether this part of the testimony of Witness KK is credible. Certain aspects of his credibility have been discussed elsewhere. [948] The Chamber does not accept the Defence submissions that the witness formed part of a campaign against the Accused. It does not consider it important that the witness only acquired knowledge to identify weapons after the events in 1994, apparently during training sessions in 1998. Furthermore, the Chamber accepts that the Witness KK knew Elizaphan Ntakirutimana. He testified that he was very young, only 12 years old, when he first saw the Accused about 1990 but he observed him not only on two occasions at the church but also on other occasions "during other assemblies of the faithful". The Chamber does not consider it significant that the witness had problems during his testimony to identify the exact periods during which he saw the Accused. It has also considered the other Defence submissions concerning the general credibility of Witness KK and does not consider that they cast reasonable doubt on the evidence of the witness.

605.   In the present context, the Defence submits, in particular, that Witness KK’s account of this event is inconsistent with his prior statement of 15 November 1999. In particular, the Defence argues that in his prior statement the witness declared that he was at Kabatwa towards the end of April and that the attack during which he saw the Accused’s car being loaded with peas took place around the 4 May, whereas in court he estimated the date to be at the end of May. The Chamber notes that during his testimony the witness was not asked to explain this difference. It further observes that Witness KK’s testimony included dramatic events that he experienced during a period of about 90 days.

606.   The Defence also points out that in his prior statement the witness attributed the sighting of the group of Tutsi refugees on Kabatwa Hill to a group of attackers on the hill opposite Elizaphan Ntakirutimana’s car, and that it was these attackers (and not Elizaphan Ntakirutimana as testified in court) who then shouted, "Catch them; catch them" prior to chasing them down the hill. [949] Under cross-examination, Witness KK explained that what he said was "not properly taken down" and "not exactly what [he] said." [950] The Chamber notes that, in general, the other details in the witness’s statement relating to this incident are consistent with those given in his testimony, and accepts the explanation given by the witness about the inconsistency.

607.   On the basis of Witness KK’s credible testimony, the Chamber finds that Elizaphan Ntakirutimana participated in a convoy of vehicles carrying armed attackers to Kabatwa Hill at the end of May 1994, and that, later on that day, at neighbouring Gitwa Hill, he pointed out the whereabouts of Tutsi refugees to attackers who attacked the refugees causing injury to Witness KK.

608.   Turning to Witness KK’s sighting of Gérard Ntakirutimana at Kabatwa Hill, the Chamber observes that the witness did not mention him in connection with this event in his prior statement. The Chamber accepts his explanation that he was only answering questions about given individuals which did not include the Accused. [951]   It also notes his general remark in the statement that he would come with the attackers to the Bisesero area "every day". However, considering that the witness provided no details as to Gérard Ntakirutimana’s presence and role, if any, at Kabatwa Hill (other than that he arrived in the hospital vehicle), Chamber finds that the Prosecution has not proved beyond a reasonable doubt that Gérard Ntakirutimana was present at Kabatwa Hill.

4.14     Mubuga Primary School, Middle of May 1994 (Witness GG)

4.14.1  Prosecution

609.   Relying on Witness GG, the Prosecution submits that both Accused participated in attacks perpetrated against Tutsi refugees at or near Mubuga Primary School in the vicinity of Gitwa Hill in May 1994. During this period Elizaphan Ntakirutimana allegedly shot and killed a Tutsi called Thomas Habayo. The Prosecution does not consider it significant that none of Witness GG’s three prior statements mention this killing, and it stresses the primary importance of evidence given in court. Witness GG testified that he had told investigators about Habayo and the Prosecution submits that the witness "should not be blamed for omissions done by other persons". [952]

4.14.2    Defence

610.   The Defence objects generally to Witness GG’s credibility. The witness is part of the campaign against the Accused and her evidence is fabricated. More specifically, it is submitted that Witness GG never mentioned this episode in any of his statements. The Defence also argues that when the witness testified about Mubuga School in Kayishema and Ruzindana he did not claim that any of the Accused were present. [953]

4.14.3    Discussion

611.   The Chamber notes that Witnesses HH and SS also testified that they saw both Accused or only Gérard Ntakirutimana participate in attacks against Tutsi refugees at Mubuga Primary School in June 1994 (see 4.15 and 4.16 below). Witness GG said that the event considered in the present section (4.14) took part in the middle of May 1994. Moreover, there are certain variations between the three testimonies. The Chamber will therefore consider these attacks at Mubuga Primary School as three separate events dealt with in uncorroborated testimonies. [954] Also Witness DD mentioned an event relating to Mubuga Primary School. He stated first that one of the Accused, then that the other Accused shot and killed his wife and two children. The Prosecution chose not to rely on this evidence, and this incident is therefore not part of the Prosecution case. The event was mainly used by the Defence in its argument against the credibility of this witness (see 4.8 above).

612.   Witness GG testified that around the middle of May 1994, he saw Elizaphan Ntakirutimana arrive at Mubuga School in his Hilux vehicle and Gérard Ntakirutimana in the hospital vehicle.  They were in a convoy which included two buses. All vehicles transported attackers. They were parked less than ten metres away from a tree where the witness was roasting potatoes. Elizaphan Ntakirutimana was holding a firearm. The attackers were also armed. At the time, about 30 refugees were sheltered at the school. The attackers started to sing "Let us exterminate them" and proceeded to kill people until the evening. According to the witness, Gérard Ntakirutimana was directing the attackers and told them to search in the bushes for refugees in hiding. At one point during the attack, one Thomas Habayo, a young man who had been hiding on the lower side of the road, was flushed out of his hiding place by the Interahamwe. Trying to escape, he ran by Elizaphan Ntakirutimana’s vehicle. Witness GG declared that, seeing Habayo, Elizaphan Ntakirutimana took out his gun and shot him. In the evening the witness returned to the school premises together with some other refugees and buried the victim’s body. [955]

613.   The Chamber observes that neither the Indictment nor the Prosecution’s Pre-trial Brief makes reference to this attack at Mubuga School or to the killing of Thomas Habayo. None of Witness GG’s three statements to Prosecution investigators specifically relates to this incident. The summary of Witness GG’s anticipated evidence in Annex B of the Pre-trial Brief only indicates that the witness often saw Elizaphan and Gérard Ntakirutimana and the Prefect in "Mumubuga" between April and June 94, without further particularization. In its opening statement the Prosecution made no reference to the attack at Mubuga School or to the killing of Habayo.

614.   It is the Chamber’s view that the Defence for Elizaphan Ntakirutimana did not receive sufficient notice that Witness GG would allege that the Accused shot and killed Thomas Habayo at Mubuga Primary School in mid-May 1994. It consequently disregards the witness’s testimony of the killing of Habayo by Elizaphan Ntakirutimana. The Chamber however finds, on the basis of Witness GG’s evidence, that Elizaphan Ntakirutimana was present in the midst of the killing of Tutsi at Mubuga in mid-May, that he was in his vehicle transporting armed attackers as part of a convoy which included two buses, all carrying armed attackers. The attackers sang "Let us exterminate them" and proceeded to kill people until the evening.

615.   In relation to Gérard Ntakirutimana the Chamber notes the paucity of evidence and finds that the Prosecution has not proved beyond a reasonable doubt that he participated in the same attack at Mubuga Primary School.

4.15    Mubuga Primary School, June 1994 (Witness HH)

4.15.1    Prosecution

616.   The Prosecution submits that both Accused participated in attacks against Tutsi refugees at Mubuga Primary School also in June 1994. Reference is made to Witness HH, who according to the Prosecution is reliable because he observed the Accused at a short distance. There were no obstacles to prevent identification. [956]

4.15.2 Defence

617.   The Defence alleges generally that Witness HH formed part of a campaign against the Accused. In respect of this event, the witness did not testify to have seen either of the Accused actually participate in the attack. He could not say whether Elizaphan Ntakirutimana had a gun or not. Witness HH contradicted evidence by several Defence witnesses that weapons were never kept in family houses. According to the Defence, there were discrepancies between his testimony and his witness statement. [957]

4.15.3    Discussion

618.   Witness HH testified that between the end of May and 15 June 1994 he occasionally stayed in the vicinity of Mubuga Primary School while he sought refuge in Bisesero. One day in June, he observed an attack against Tutsi refugees who sought shelter at the school. Among the attackers, who mostly carried machetes and clubs but also firearms, he saw the two Accused. Gérard Ntakirutimana was carrying a gun. Regarding Elizaphan Ntakirutimana, the witness first declared that he could not clearly see whether he was armed, then that he could see that he had a weapon in his suit, but that he did not know what this weapon was. Witness HH testified that while he was hiding he observed Elizaphan Ntakirutimana from a distance of "about" 30 meters. The witness did not see either Accused kill anyone at Mubuga School but saw "lots of bodies" strewn in the school yard. [958]

619.   The Chamber notes that Witness HH did not see either Accused kill anyone. Regarding Elizaphan Ntakirutimana, he estimated the distance between himself and the Accused to be "about 30 meters". Yet, he also stated that the Accused was "far away", that the distance was "quite long" and first said that he did not know whether he could estimate it but would say that it was "above 30 meters". [959] He also said that he was not able to see clearly what the Accused was carrying "because he was far". The Chamber is left with the impression that the distance may have been considerable. Moreover, even if the witness stated that there were no obstacles between him and Elizaphan Ntakirutimana it follows from his testimony that there were persons moving about and "at one point … when there was nobody" between them he could see the Accused. It is unclear how long the witness observed him. The Chamber is aware that it was broad daylight but also recalls the stressful conditions under which the observations was made. Consequently, it does not find beyond a reasonable doubt that Witness HH observed Elizaphan Ntakirutimana participating in the attack at Mubuga Primary School in June 1994.

620.   Turning now to Witness HH’s alleged observation of Gérard Ntakirutimana, the Chamber notes that the evidence concerning his presence and role in the attack is even sparser than that given in respect of his father. The witness simply testified that he could see Gérard Ntakirutimana and that he was armed. No further information was given about the distance between the witness and the Accused or the type of weapon he was carrying. The Chamber has considered the witness’s reconfirmation statement of 25 July 2001, where reference is made to an undated incident at Mubuga Primary School. According to the statement, the witness made his observation at a distance of about 100 metres. [960] Such a distance would not necessarily preclude a reliable identification of the Accused. However, Witness HH did not specify whether his view of the Accused was generally unobstructed. The Chamber is therefore not satisfied beyond a reasonable doubt that the witness observed Gérard Ntakirutimana during this attack at Mubuga Primary School.

4.16    Mubuga Primary School, June 1994 (Witness SS)

4.16.1  Prosecution

621.   Witness SS testified about an attack against Tutsi refugees at Mubuga School in June 1994 and stated that Gérard Ntakirutimana was among the participants. During its oral submissions the Prosecution argued that the witness was credible and his observation reliable. [961]

4.16.2  Defence

622.   The Defence submits generally that Witness SS is part of a campaign against the Accused. In respect of this event the Defence points out that according to his testimony he did not know how the Accused and the other attackers arrived at Mubuga, and that he did not see any vehicles, despite his claim that he was near the classrooms when he observed the alleged attack. [962]

4.16.2    Discussion

623.   Witness SS testified that one day in June 1994, towards dawn, he went to hide in bushes near Mubuga School after having slept at the school premises. Later, before 10.30 a.m., he saw between 20 and 60 attackers approach the school on foot. He did not see any vehicles and did not know how the attackers had arrived. According to the witness, Gérard Ntakirutimana was in front of the attackers and carried a weapon, which he described as a "long gun". He saw the Accused shoot at Tutsi refugees within the school from the door of the classroom, and at some others trying to flee through the school windows. The witness then saw him pursue refugees who were trying to flee from the school. After the attackers’ departure, Witness SS returned to find "many dead bodies, stacked one on top of the other" both inside and outside the school buildings. [963]

624.   The Chamber notes that in Annex B of its Pre-trial Brief, filed on 15 August 2001, the Prosecution indicated that Witness SS would testify that he saw Gérard Ntakirutimana after the attack at the Mugonero Complex, attacking Tutsi individuals hiding in Mubuga in the Bisesero area. Moreover, according to the witness’s written statement of 18 December 2000 the Accused chased Tutsi refugees and shot at them "Mu Mubuga" Primary School. The Chamber accordingly finds that the Defence received sufficient notice about this event.

625.   The Chamber has accepted that Witness SS knew Gérard Ntakirutimana and was able to recognize him during the events from April to June 1994. It considers the witness generally credible (see 3.8.3 (d) and 3.12.3). In relation to the present event, the Chamber notes that the witness observed the Accused during an attack which took place in the middle of the morning. The witness said that the distance between him and the attackers was "not that much" but wider than the distance of the court room. The Chamber accepts that the witness observed the Accused even though he was not able to estimate the distance between them at the time of his observation. [964] The witness specified that Gérard Ntakirutimana was standing in front of the group of 20 to 60 attackers, and that he saw that the Accused was carrying a long gun. Moreover, Witness SS observed the Accused shooting at refugees when he was at the door of the classroom and subsequently pursuing them. The witness observed the attackers from the bushes where he remained because he was afraid to be seen if he left his hiding place. The Chamber does not consider it significant that the witness was unable to recall how the Accused was dressed.

626.   During cross-examination the Defence pointed out that Witness SS’s prior statement of 18 December 2000 does not indicate that he saw Gérard Ntakirutimana kill anyone at Mubuga Primary School. The witness answered that a question to this effect was not put to him by the investigators, and that he was only asked "whether I saw him". [965] In the Chamber’s view, this does not affect the credibility of the witness. It is noted that according to his statement he saw the Accused "shooting at the people hiding in the school".

627.   Finally, the Chamber does not consider it significant that Witness SS did not see the attackers, including the Accused, arriving in vehicles before the attack, and that he did not observe their vehicles being parked by the school during the attack. Even if vehicles were observed in the vicinity of the school on other occasions (see 4.14, Witness GG), the reliability of Witness SS is not affected. The Chamber recalls that Witness HH made no reference to seeing vehicles during the attack at Mubuga School (see 4.15).

628.   On the basis of the evidence provided by Witness SS, the Chamber finds that Gérard Ntakirutimana participated in an attack at Mubuga Primary School in June 1994 and shot at Tutsi refugees. He was leading a group of 20 to 60 attackers and carrying a long gun. He and the attackers shot at Tutsi refugees within the school and Tutsi fleeing through school windows and thereafter pursued the fleeing refugees. Many bodies were left both inside and outside the school.

4.17    Muyira (Muhira) Hill, Middle of May (Witness GG)

4.17.1  Prosecution

629.   The Prosecution submits that in mid-May 1994, Witness GG saw Gérard Ntakirutimana leading attackers in Muyira Hill during an assault launched against Tutsi refugees. [966]

4.17.2    Defence

630.   The Defence generally objects, in regard of all Muyira-related allegations, that they did not have sufficient prior notice to meet the particular issues brought by the witnesses in the course of their testimony in court. As far as Witness GG is concerned, the Defence submits that he is part of a campaign against the Accused. More specifically, the Defence contends that this event is not mentioned in any of the witness’ prior statements or in his testimony in the Kayishema case. [967]

4.17.3    Discussion

631.   Witness GG testified that, one day in mid-May 1994, he saw Gérard Ntakirutimana at a place called Rwiramba in Bisesero. Gérard Ntakirutimana was arriving in his vehicle. A number of other vehicles, including buses, were part of the convoy approaching Muyira Hill. All the vehicles were full of individuals armed with clubs and machetes chanting, "Let’s exterminate them; let us flush them out of all the bushes; let us flush them out of all the caves." The attackers left their vehicles at the bottom of Muyira Hill and moved up the slope flushing out refugees along the way. Individuals he described as the leaders, among whom the Accused, sent the other attackers to pursue the refugees up a steep hill called Rugona. Gérard Ntakirutimana was seen with Clément Kayishema, Obed Ruzindana, Charles Sikubwabo, Musema, Mika Muhimana, and Aloys Ndimbati. The witness specified that many people were killed as a result of this attack. [968]

632.   The Chamber will first consider whether the Defence received sufficient notice. Except for the event at Murambi Church, the Indictment is silent as to the places in Bisesero where the Accused allegedly participated in attacks, or the specific dates when they supposedly took place. This is true also in respect of the present event at Muyira Hill, which is located in Bisesero. The summary of Witness GG’s anticipated evidence in Annex B of the Prosecution Pre-trial Brief refers to several locations in Bisesero but does not specifically indicate that the witness was expected to testify to events at Muyira. His statement of 20 June 1996 to investigators contains a general formulation according to which the witness saw Gérard Ntakirutimana "many times" in Bisesero. His two other prior statements of 10 July 1996 and 12 November 1999 do not refer to events in that area.

633.   This being said, the Chamber observes that Witness HH’s prior statement of 25 July 2001, which was disclosed to the Defence prior to trial, refers to Gérard Ntakirutimana as having participated in an attack on Muyira Hill (spelt Muhira in the statement). It also follows from the summary of Witness HH’s anticipated evidence in Annex B of the Pre-trial Brief that the Prosecutor would rely on this witness to allege that Gérard Ntakirutimana participated in various attacks in Bisesero. Muyira Hill is located in the Bisesero area. Furthermore, during its opening statement the Prosecution announced that the "evidence will prove that Elizaphan and Gérard Ntakirutimana caused the death of Tutsis … at numerous places in Bisesero including Muyira …". [969] The Chamber is of the view that the Defence had sufficient notice of this allegation.

634.   The Chamber found Witness GG generally credible and dismissed the Defence allegation that he was part of a political campaign against the Accused (see, in particular 3.8.3 (c) and (d), 4.4). In respect of this specific event, the Chamber does not consider it significant that the witness did not give the specific locality of Muyira Hill as a place where he saw Gérard Ntakirutimana participating in an attack but rather stated in his first statement of 20 June 1996 that he saw Gérard Ntakirutimana "many times" in Bisesero. His two subsequent interviews with investigators only dealt with the attack at the Mugonero Complex and his identification of Elizaphan Ntakirutimana. The witness further explained in court that he had mentioned the incident but that the investigators may not have written it down. [970]

635.   There is evidence of numerous attacks occurring over a period of time in the hills of Bisesero. As will be seen below, Witnesses HH, CC and YY also testified about attacks on Muyira Hill, albeit at other time-period or with different details. The Chamber accepted their evidence. There is therefore corroborative evidence that Gérard Ntakirutimana was in the company of leaders named by Witness GG. The Chamber accordingly finds that sometime in mid-May 1994 in Muyira Hill, Gérard Ntakirutimana led armed attackers in an attack on Tutsi refugees, as a result of which many Tutsi were killed.

636.   Witness GG observed the Accused for the second time when the attackers alighted from their vehicles and started chasing the refugees. He declared: "We were not at a fixed place because we were on the run. People were coming across each other’s path. They were running away from people who were trying to kill you." [971] The witness did not specifically describe the Accused, and he did not say whether he was armed or not. There is very little information concerning his alleged actions at the time. On the other hand, the evidence before the Chamber corroborates such a sighting of the Accused participating in attacks against Tutsi refugees at Bisesero and, specifically in Muyira Hill (as will be seen below). The Chamber accordingly finds that Gérard Ntakirutimana took part in the attack. On the basis of the evidence, the Chamber is not convinced that the Accused was one of the leaders of the attack at Muyira Hill. The witness did not mention why he considered the Accused to be a leader. He explained that, while attackers chased a group of refugees up a steep hill called Rugona, "the … leaders didn’t take the trouble of going there. They sent … people, who were armed with clubs and machetes; whereas, they, the leaders, remained comfortably at the top of the hill." [972] The leaders held positions of authority, such as a prefect. Gérard Ntakirutimana’s association with such persons persuades the Chamber that he was acting with knowledge of the widespread attack against the Tutsi. However, there is no evidence that the Accused issued any orders or had effective control over the attackers.

4.18    Muyira Hill, 13 May 1994 (Witness YY)

4.18.1 Prosecution

637.   The Prosecution relies on Witness YY’s evidence in support of its allegation that Elizaphan and Gérard Ntakirutimana participated in attacks against Tutsi refugees on Muyira Hill on 13 and 14 May 1994. The witness made his observation under good conditions and his testimony is credible. In a prior written statement he mentioned seeing Gérard during attacks in the Bisesero area generally, even though the present event was not specifically mentioned. [973]

4.18.2 Defence

638.   As mentioned previously, the Defence disputes the general credibility of Witness YY. In respect of this event, it is submitted that the Defence did not receive notice that the witness would allege that the Accused participated in an attack on Muyira Hill. A similar objection is made in respect of the date of the attack and in relation to the specific allegation that Gérard Ntakirutimana killed the wife of one Nzamwita. According to the Defence, this constitutes a violation of the rights of the Accused to be informed in detail of the charges against them. [974]

4.18.3    Discussion

639.   Witness YY testified that he saw Gérard Ntakirutimana at "large scale attacks on the 13th and 14th of May on the Bisesero hills." He particularly described that of 13 May 1994, during which he saw Elizaphan Ntakirutimana and Gérard Ntakirutimana’s vehicles parked at Ku Cyapa, between Gishyita and Gisovu communes, with numerous other vehicles. These had come earlier in the morning than usual. He did not see who was at the steering wheel when they arrived. Elizaphan Ntakirutimana was standing, unarmed, next to his car at Kucyapa. The witness was on top of Muyira Hill when he saw Gérard Ntakirutimana, at 50 meters distance at the bottom of the hill, in front of a group of attackers, shooting at refugees. He specifically saw him shoot at the wife of one Nzamwita who was passing on stones to the witness and other refugees who tried to oppose some resistance to the attackers. The witness stated that she was killed, that he saw her being hit and falling in front of him. The group of refugees then ran away amidst gunshots and grenade explosions, while the wounded were "finished off" by machetes, spears and hoes. He identified the two Accused as the leaders of the attack, along with bourgmestre Ndimbati (heading a group of attackers from Gisovu), Eliézer Niyitegeka, Alfred Musema, Charles Sikubwabo, Obed Ruzindana and Mika Muhimana. [975]

640.   The Chamber has previously found this witness to be generally credible. As already indicated, the Chamber considers that the Defence received sufficient notice that they would have to meet allegations relating to both Accused’s participation in attacks against Tutsi refugees at Muyira Hill. The fact that the information received did not specify the exact date at which the present attack was alleged to have occurred does not, in the Chamber’s view, justify a dismissal of the entire allegation.

641.   As to Witness YY’s other evidence in respect of Gérard Ntakirutimana’s involvement in the attack of 13 May 1994 at Muyira Hill, the Chamber notes that the observational conditions were good and particularly conclusive. The witness observed the Accused shooting at refugees with a gun as he was standing above him and while the Accused was in front of the group of attackers climbing the hill, at a distance of 50 meters in daylight. The witness did not specify the distance at which he was from Elizaphan Ntakirutimana when he saw him at Kucyapa, nearby Muyira, where the attackers had parked their vehicles.

642.   Consequently, the Chamber finds that Gérard Ntakirutimana participated in the attack against Tutsi refugees at Muyira Hill on 13 May 1994 and that he shot and killed the wife of one Nzamwita, a Tutsi civilian. However, it is not satisfied beyond reasonable doubt that Witness YY positively identified Elizaphan Ntakirutimana in Ku Cyapa from where he stood on Muyira Hill.

4.19     Muyira Hill (Dege), 20 May 1994 (Witness II)

4.19.1  Prosecution

643.   The Prosecution relies on Witness II and argues that Elizaphan Ntakirutimana played a leading role during an attack against Tutsi refugees on Muyira Hill on 20 May 1994. It is submitted that the witness was reliable and his testimony in conformity with his prior written statement to investigators. The initial failure of the witness to identify the Accused in court should not be held against his credibility. His explanation was plausible and subsequently he identified the Accused in the courtroom. The fact that someone bearing the witness’s name gave an interview to African Rights does not affect the credibility of the witness. [976]

4.19.2    Defence

644.   Defence submits that Witness II was untruthful. He was unable to identify Elizaphan Ntakirutimana in court when first requested to do so. He contradicted himself as to whether Elizaphan Ntakirutimana could see rapes being perpetrated on Tutsi women by attackers. The witness did not say to investigators that any of the women had been killed after the rape. He denied having given an interview to African Rights, in which he allegedly gave another account of a sighting of Elizaphan Ntakirutimana in June. This is not in conformity with his declaration that he saw the Accused only once in Bisesero. [977]

4.19.3    Discussion

645.   Witness II sought refuge in Bisesero after 7 April through May 1994. He testified that on 20 May 1994 he saw Elizaphan Ntakirutimana among attackers at Dege, which is part of Muyira Hill in the area of Bisesero. He testified that he was hiding in a bush with three women when Interahamwe discovered them. A Twa was among the group of attackers. He seriously injured him to the left of the head and to the chest with a spear, and to his hips by a sword. The four captives were taken to the Gisovu-Gishyita road. There he saw Elizaphan Ntakirutimana standing very close to his vehicle, dressed in a black suit and wearing spectacles. The women were then taken approximately 15 meters away and raped, out of view of the witness, by the bourgmestre of Gisovu commune and by Alfred Musema. Two of the women were killed. At one point, the Accused addressed one of the attackers, a Hutu called Rwambimbi who knew the witness, telling him to kill the witness and to take him lower down "so that there wasn’t any stench around the place where they were parking their vehicles." The Accused allegedly also said: "Take him further away. Don’t waste your bullets on him and go and cut him up." Rwambimbi and the Twa took the witness away. Rwambimbi promised a goat to the Twa so that the witness could be spared. The witness was advised to scream out, pretending that he was being killed. [978] Later he sought refuge in a hole until the arrival of the French, who brought him to Ngoma for medical treatment.

646.   The Prosecutor does not allege that Elizaphan Ntakirutimana was complicit, aided or abetted in connection with the rapes of the three captured women. [979] The Chamber observes, however, that the testimony of Witness II does not give any basis to conclude that the Accused saw or was in any way involved in these acts. He was close to his car and there was a distance of about 15 meters to the place where the women were brought. Furthermore, the witness explained that there was a number of trees which blocked the view in the area. The questions the Chamber is confronted with are whether it is satisfied beyond a reasonable doubt that the Accused participated in the attack, and that he ordered Rwambimbi to kill the witness.

647.   Witness II testified that he had known Elizaphan Ntakirutimana from the "age of reason", the age where he could tell the difference between one thing and another, and recognize people. He further stated that the Accused had been his pastor and that he had baptized him in 1986.  However, at the end of his first day in court Witness II failed to identify Elizaphan Ntakirutimana. [980] The following day, the witness explained that he had been suffering from problems with his eyes due to the length of his testimony on the first day. [981] On the third trial day, he correctly identified Elizaphan Ntakirutimana and explained further that, at the time of the first attempt at identifying the Accused, the latter was ducking his head "but when we all stood up, I recognised him. I said that to the interpreter but the President had already closed the session." [982] Having observed the witness the Chamber does not consider that the episode on the first day of his testimony affects his credibility. The Chamber accepts Witness II’s explanation.

648.   Turning now to the reliability of the testimony the Chamber notes that Witness II was aggressive and obstructive, especially during cross-examination. Having observed him in the courtroom the Chamber is convinced that he is a Bisesero survivor and that the events have left traces. His emotions during his testimony should be seen in this light and are not indicative of untruthfulness. The witness was consistent in describing what he knew and observed. He did not want to speak of events he had not personally seen but merely heard about, for example, the allegation in his written statement that the Accused was present at all the attacks at Bisesero. [983] It is true that he emphasized that Elizaphan Ntakirutimana was a powerful person and had a case to answer but it is not the impression of the Chamber that he sought to incriminate him to a wider extent than what followed from the witness’s own observations.

649.   The observational conditions appear to have been good. According to Witness II he was standing close to Elizaphan Ntakirutimana and at hearing distance from him. [984] His line of vision was unobstructed, since he testified that he was on the Gishyita-Gisovu road and that the Accused was standing on the road, nearby his vehicle. It was broad daylight. His account is generally consistent with his prior witness statement of 28 January 2000. He distanced himself from his prior statement in respect of the dates given for attacks other than that of 20 May. The Chamber considers these discrepancies as minor (notably the fact that, when he and the three women he had been hiding with were discovered by the Interahamwe, he was hit by one Twa and not several individuals, as his statement reads, or the fact that he did not see the Accused in his vehicle, but outside of it).

650.   Prior to his appearance in the present case the witness testified before the Appeals Chamber in Musema about the rape of a woman by Mika Muhimana during an attack against Tutsi refugees on Muyira Hill on 13 May 1994. In the present case, the Defence suggested to him that he was in fact referring to the same attack of 13 May. The witness maintained that these events were not the same, explaining that he was sure about the date of 20 May 1994 because he heard the Accused ask Ndimbati what day it was and that the response was 20 May. According to the witness, the Accused then said that they had to hurry as the French were going to arrive soon. [985]

651.   The Chamber has considered this explanation carefully. It notes Witness II’s statement that the refugees had lost their sense of time, and that his only basis for dating the present event to 20 May is the remark allegedly uttered by Elizaphan Ntakirutimana. On the other hand, it is a matter of public record that Operation Turquoise reached Kibuye only at the end of June 1994. Under these circumstances, the Chamber has to assess whether it appears credible that the Accused, over a month prior to the arrival of the French battalion, would be aware that this would happen. The Chamber finds it surprising that the Accused would be in a position to make such a statement so early. It is also puzzling, as the Defence submits, that the Accused should ask for the date in the midst of an attack and that the witness should overhear the conversation, thereby being in a position to remember the date of one specific attack in the Bisesero area. This creates a certain doubt in the Chamber’s mind.

652.   The Defence disputes the credibility of Witness II on the basis of an interview he allegedly gave to African Rights in November 1999. Excerpts of such an interview are found in a document published on 1 February 2001. [986] In that document the person who is being interviewed gives an account of an encounter with Elizaphan Ntakirutimana, Obed Ruzindana and other attackers in mid-June 1994. According to the interviewed person they offered medical supplies to the refugees, who feared an ambush and tried to attack, encircle and capture the attackers. The following day the attackers came back with a "huge horde of killers". This interview, if given by Witness II, would contradict the witness’ testimony that he saw the Accused only once on 20 May in Bisesero.

653.   In court, the witness denied that he had ever given such a statement. He explained that the person interviewed could have been someone from the same area as his and bearing the same name. Both his secteur and commune were quite big. He added that in June 1994, he had left Rwanda for Ngoma in Zaire and was being treated there after having been evacuated by the French, and that he only returned to Rwanda on 3 July 1994. [987] The Chamber notes his complete denial and the possibility of a namesake having given the interview but finds his explanation about Ngoma confusing. As mentioned above, the French arrived in Kibuye at the end of June. This implies that the witness was still in Bisesero until that time.

654.   The Chamber notes that the witness and the person interviewed by African Rights bear the same first name and surname, are both farmers from Bisesero born in the same year, and both sustained a machete wound to the left of the head. These are striking similarities. On the other hand, it has not been provided with the full statement of the person interviewed by African Rights. Neither does it have clear and conclusive evidence that Witness II and the person interviewed by African Rights are the same person. Still, the evidence is not quite clear.

655.   The Chamber accepts that Witness II was present during an attack at Muyira Hill involving the killing of women and that the order was given to kill him. It is, however, not certain that the witness account is correct in all details. The Chamber observes that the witness made his alleged observation of Elizaphan Ntakirutimana after having been seriously wounded. He then spent several weeks in Bisesero, hiding in a hole and in miserable condition. The account of the conversation between the Accused and Ndimbati about the date of 20 May as well as the interview in the African Rights publication with someone having striking similarities with Witness II are quite surprising elements. The witness explained that his memory had been affected by the events and the injuries he sustained as a result. His testimony is uncorroborated. Under these circumstances, the Chamber is not in a position to conclude beyond a reasonable doubt that Elizaphan Ntakirutimana participated and behaved as alleged by the Prosecution during this attack at Muyira Hill (Dege).

4.20     Muyira Hill, Ku Cyapa (Witness SS)

4.20.1  Prosecution

656.   According to Witness SS, Elizaphan Ntakirutimana was at Ku Cyapa near Muyira Hill one day in May or June 1994. On that day there was a wide-scale attack against the Tutsi refugees gathered in this area of Bisesero. The Prosecution did not make any explicit reference to this event in its Closing Brief or oral submissions.

4.20.2  Defence

657.   The Defence objects to all allegations in respect of Muyira Hill and maintain its general objections to Witness SS’ credibility. No further submissions were made in respect of this part of the witness’s testimony. [988]

4.20.3  Discussion

658.   Witness SS testified that he saw Elizaphan Ntakirutimana nearby Muyira one day in May or June 1994, not long after the incident he testified upon at Murambi (see 4.10 above). Before noon on that day, the witness was on his way from a place called Kazirandimwe, and preparing to cross the Gishyita-Gisovu road in the direction of Muyira Hill when, at a distance of approximately 14 or 15 metres, he saw Elizaphan Ntakirutimana in his single cabin Hilux, parking the vehicle at Ku Cyapa. The witness saw other vehicles following that of the Accused. He first saw Obed Ruzindana’s car (but not Ruzindana). He then saw, at a distance, two big green buses which were full of attackers and had just passed the house of one Kwakambanda, towards Ku Cyapa where the Accused was parking his vehicle. The witness did not see many attackers in the vehicles of the Accused or Ruzindana but explained that attackers were on their way in buses, climbing the hill.

659.   The witness did not remain to ascertain whether the Accused got out of the car once it was parked. He explained that he had no other option but to immediately flee, towards Muyira Hill. Once there, he saw "a lot of individuals" standing nearby the parked vehicles of the Accused and Ruzindana in Ku Cyapa. They were too far for him to be able to identify any of them. The buses were parked further behind in Ku Cyapa, at a place he could not see very well. The witness confirmed that, on the day of the sighting, there was a wide-scale attack launched in that area of Bisesero. [989]

660.   The Chamber has already found Witness SS to be generally credible. [990] In relation to the present event his testimony was quite consistent and his answers appeared truthful. The Chamber considers his observation reliable. The witness saw the Accused’s car from not more than 15 meters before noon in full daylight. He was able to describe the vehicle. His prior written statement of 18 December 2000 generally conforms to his account in court, save for minor details. For instance, according to the statement the witness saw Elizaphan Ntakirutimana "going in the vehicle". During cross-examination the Defence understood this to mean that Witness SS declared to investigators that he had seen the Accused boarding the vehicle. The witness maintained that he had not said so to the investigators and insisted that he had only declared that he had seen the Accused driving his vehicle and parking it. The Chamber accepts the explanation of the witness. Furthermore, he gave details which are in conformity with other evidence, such as the arrival of big buses carrying attackers, the fact that the vehicles parked at Ku Cyapa prior to the attack on the Muyira Hill area, and that attackers assembled near the vehicles prior to the attack.

661.   Witness SS did not provide any description of the persons in the vehicles of the Accused or Ruzindana, for instance whether they were armed. Furthermore, the witness observed Elizaphan Ntakirutimana driving his vehicle but did not see him do anything. In the Chamber’s view the evidence must be viewed in context. It follows from the evidence in the case that vehicles were often followed by buses with attackers. Moreover, on the day that Witness SS made his observation there was, according to the witness, a wide-scale attack at Ku Cyapa. He said that the buses were transporting persons who were "perpetrators of the genocide". Consequently, the Chamber finds that one day in May or June the Accused was seen arriving at Ku Cyapa in a vehicle followed by two buses of attackers. The Chamber is convinced that the Accused was part of a convoy which included attackers. The evidence establishes that these attackers among others participated in the killing of a large number of Tutsi. Witness SS declared: "On that day the killings were beyond comprehension, and that is the day most people were killed."

4.21     Muyira Hill and Ku Cyapa, June 1994 (Witness HH)

4.21.1  Prosecution

662.   Relying on Witness HH, the Prosecution alleges that one day in June 1994 Gérard Ntakirutimana was seen on Muyira Hill carrying a big firearm, firing on Tutsi refugees in the company of other attackers armed with traditional weapons. On another day, the witness observed Elizaphan Ntakirutimana at Ku Cyapa near Muyira Hill. The Prosecution argues that omissions or absence of information in the testimony compared to the witness’s prior statements to investigators do not affect his credibility. [991]

4.21.2  Defence

663.   Generally, the Defence submits that Witness HH was part of a campaign against the Accused. In respect of the present event, the Defence submits that in his prior statements the witness never mentioned that he saw Gérard Ntakirutimana at Muyira Hill. It is further submitted that the witness admitted in court that he did not see Gérard Ntakirutimana fire at anyone at Muyira Hill. According to the Defence, the witness’s account of his sightings of Elizaphan Ntakirutimana at Muyira Hill and in Bisesero in general are in contradiction with his first statement, which reads: "In Bisesero, I did not see Pastor Ntakirutimana among the group of attackers from Ngoma." [992]

4.21. 3 Discussion

664.   Witness HH testified that he stayed at Muyira Hill at certain times between the end of May and 15 June. One day in June he was with other refugees on the side of Muyira Hill, throwing stones at several groups of advancing attackers, each with a leader. There he saw Gérard Ntakirutimana, who carried a big firearm and fired it as he approached the refugees. The Accused was heading a group of attackers. The rest of the group remained slightly behind because they were waiting for the refugees to start running away to advance. [993] Witness HH further declared generally that he saw Elizaphan Ntakirutimana once near Ku Cyapa, at some point after his sighting of the Accused at Mubuga School, which he dated to June 1994 (see 4.15 above). [994]

665.   The Defence objects on the basis of lack of notice because there is no reference in any of Witness HH’s prior statements that he saw Gérard Ntakirutimana at Muyira Hill. The Chamber notes that the Accused was mentioned while the witness sought refuge for about one month at Gitwe Hill but not in the following period in Bisesero. It follows from the anticipated summary of the witness’s testimony in Annex B to the Pre-trial Brief that in "May 1994 he fled to Bisesero where he saw that Dr. Gérard Ntakirutimana" and other persons "for[m] part of the contingent of attackers who attacked them almost daily between then and June 94". The Annex was filed on 15 August 2001. Consequently, the Defence knew that it would be alleged that the Accused committed attacks in the area of Bisesero, where Muyira Hill is located. Moreover, Witness HH’s reconfirmation statement of 25 July 2001, which was disclosed to the Defence on 14 September 2001, specifically refers to Witness HH’s observation of Gérard Ntakirutimana "attacking us with a rifle" at Muhira Hill, "at some stage". Witness HH gave testimony on 25 to 27 September 2001. It follows that the Defence was aware that Witness HH would allege specifically that Gérard Ntakirutimana was involved in an attack at Muyira (spelt Muhira) Hill from May 1994 onwards. The Chamber is of the view that the Defence received sufficient notice (see generally 2.4).

666.   The Chamber has previously found this witness to be credible. [995] This conclusion extends to his account of the present event. In the Chamber’s view it is not significant that Gérard Ntakirutimana, who was mentioned elsewhere in the statement of 2 April 1996, was not listed among the attackers in Bisesero. It is noted that the Accused was included in the witness’s reconfirmation statement.

667.   Turning to the conditions during which Witness HH made his observations the Chamber observes that in court he testified that the Accused stood at about 40 meters away from him. [996] The formulation in his reconfirmation estimates the distance to "less than 100 meters". The witness further testified that this distance was "long", which also suggests that it may have been greater than 40 meters. [997] However, even assuming that the distance between the witness and the Accused was in fact between these two estimates, the witness was standing in the front line of refugees throwing stones at the assailants, above the armed individuals advancing towards the group, whereas the Accused was heading the group of attackers. The witness further declared that there was nothing in the way between him and the Accused. The observation was made in broad daylight. The witness knew the Accused and identified him in court. The Chamber accepts that the witness saw Gérard Ntakirutimana during the attack.

668.   The Defence rightly notes that the witness declared, "I cannot say that he [Gérard Ntakirutimana] was the one who was shooting at us [the refugees]". [998] In the Chamber’s view, this statement does not cast doubt on the Accused’s participation in this attack. The fact that the Accused may have been firing elsewhere than at the group of refugees comprising the Accused does not mean that the Accused did not participate in the attack. The witness stated unambiguously that the Accused was heading the attackers, armed with a gun. The Chamber accordingly finds that, one day in June 1994, Gérard Ntakirutimana headed a group of armed attackers at Muyira Hill. He carried a gun and shot at Tutsi refugees. It is however noted that there is no evidence that the Accused killed anyone.

669.   Regarding Witness HH’s sighting of Elizaphan Ntakirutimana at Ku Cyapa, the Chamber notes that this evidence was provided during cross-examination and only mentioned very briefly. No further information was given. Accordingly, the Chamber disregards this part of the evidence. [999]

4.22     Mutiti Hill, June 1994 (Witness FF)

4.22.1  Prosecution

670.    The Prosecution’s case is that Witness FF saw Gérard Ntakirutimana in the company of Interahamwe in the Mutiti area around June 1994, when he entered an Adventist church previously occupied by Tutsi refugees. Subsequently, she saw Gérard Ntakirutimana and the Interahamwe shoot at these Tutsi refugees. The witness explained that this event is not mentioned in her prior written statements because she had not been asked about it. [1000]

4.22.2    Defence

671.    The Defence submits that Witness FF is part of a propaganda campaign against both Accused. This incident was not mentioned to investigators or when she testified in Musema. Her testimony is not credible. [1001]

4.22.3    Discussion

672.   Witness FF testified that she arrived at Mutiti Hill in June 1994 where she saw Gérard Ntakirutimana with many Interahamwe. From her position close to a church, she observed these attackers in a forest below the church. They were looking for refugees hiding in the church. In order to seek refuge from these attackers, Witness FF and other refugees went to the back of the church, crossed the road and entered a big forest by the road. She stated that there was a big group of refugees at Mutiti, but could not provide an estimate of the number. The witness testified that Gérard Ntakirutimana was carrying a firearm and that he and the Interahamwe were shooting at the refugees. She later clarified that she did not actually see him shoot at the refugees, as she was fleeing with the others at the time and could not identify who was shooting at them. [1002]

673.   The Chamber recalls that it generally found Witness FF to be a credible witness, and that it rejected the Defence submissions that Witness FF is part of a campaign against the Accused. [1003] With respect to the present event, the Chamber accepts the witness’s explanation that she had not mentioned this incident before because she was not asked about it. Her testimony in court was clear and consistent and was not shaken under cross-examination. The Chamber accordingly finds that Witness FF is credible also in the present context.

674.   The Chamber notes that the Indictment alleges that attacks were carried out in the area of Bisesero, in which Mutiti Hill is located. In Annex B to the Pre-trial Brief, the summary of her anticipated testimony makes reference "several attacks between April and June 1994 in the hills of Bisesero, including Rwakamena, Muyira, Murambi and Gitwe hills" where she saw Gérard Ntakirutimana. It follows from her four prior statements that she observed the Accused participating in attacks several or many times. In court she expanded on the details and specific locations when asked to do so. There is therefore no issue of a lack of notice to the Defence. The Chamber accordingly finds that, sometime in June 1994, Gérard Ntakirutimana was at Mutiti Hill with Interahamwe and that they shot at refugees in a forest by a church.

4.23     Murambi Church, End of April (Witnesses DD, GG, SS, YY)

4.16 At one point during this time period, Elizaphan Ntakirutimana was in Murambi within the area of Bisesero. Elizaphan Ntakirutimana went to a church located in Murambi where many Tutsis were seeking refuge from the ongoing massacres. Elizaphan Ntakirutimana ordered the attackers to destroy the roof of this church so that it could no longer be used as a hiding place for the Tutsis.

4.23.1  Prosecution

675.    The Prosecution contends that Witnesses GG, DD, SS, and YY are unanimous that, at one point in time in the second half of April 1994 or in early May 1994, both Accused participated in the removal of the Murambi Church roof in Bisesero. It is the Prosecution’s case that these witnesses led conclusive evidence that the Accused arrived at Murambi Church in one or two vehicles full of attackers, after which Elizaphan Ntakirutimana ordered the attackers to climb onto the roof, remove the iron sheeting and place it in his car. It is submitted that Gérard Ntakirutimana was present at the scene and that he transported attackers in the Mugonero Hospital vehicle. The Prosecution further submits that the removal of the church roof was part of an attack against the Tutsi refugees in the vicinity of the church and aimed at denying them a shelter from rain, snakes or any nocturnal danger. This, according to the Prosecutor, "goes to genocidal intent" of the perpetrators’ removal of the roof. Thus is excluded any other interpretation for this action, for instance, that those involved in the removal of the roof sought to prevent the roof from being stolen by thieves or thugs. [1004]

676.    The Prosecutor further relies on Witness YY’s testimony that immediately before the removal of the church roof, from his hiding place in a forest close to the church, he saw both Accused inside the church shooting with guns at Tutsi refugees sheltered there, who had been too weak to run away when the attackers arrived. Witness YY could not see which of the Accused had killed whom, but he did see Elizaphan Ntakirutimana shooting a pregnant woman from Nyacyiabo who was unable to move because her feet were swollen. After the attack, the witness identified the body of a child called Antoine, who had been his neighbour, and the body of a man called Vianney Ntaganira. [1005]

4.23.2  Defence

677.    The Defence objects to the lack of notice of the allegation that Gérard Ntakirutimana was present during the removal of the Murambi Church roof would be made. The Defence also objects to the Prosecution’s failure to provide notice of the allegation that the two Accused shot and killed Tutsi refugees at Murambi Church. [1006]

678.    The Defence contends that Witness DD’s testimony was fabricated and should have been withdrawn by the Prosecutor. The Prosecution’s decision not to rely on the witness’s allegation that Elizaphan Ntakirutimana killed the witness’s wife and child at Mubuga School constitutes an implicit acknowledgement that Witness DD was lying. [1007] The Defence further challenges the credibility of Witness SS, noting that he indicated to investigators that the distance at which he observed Elizaphan Ntakirutimana was 250 metres. [1008]

679.    In respect of Witness YY’s allegation of a shooting committed by both Accused at Murambi Church, the Defence questions how the witness could have mentioned the removal of the church’s iron roof sheets in his prior statement and not the dramatic episode of both Accused’s shooting at the refugees in the church. It is also argued that in his prior statement, the witness never placed Gérard Ntakirutimana at Murambi Church. Moreover, the witness gave different estimates of the distance he was from the road nearby the church. Thus, the Defence expresses doubt about the witness’s ability to identify the Accused and maintains that his description of the shooting was exaggerated. None of the other three witnesses to the event (Witnesses DD, SS and GG) testified about murders committed by the Accused at Murambi Church. The Defence concludes that Witness YY’s testimony of murder, which revealed ignorance of people, places and events, is uncorroborated and should not be relied upon by the Chamber. [1009]

680.    The Defence further refers to a statement given by Witness UU to investigators on 10 November 1999, according to which Gérard Ntakirutimana prepared and participated in attacks on Murambi in June 1994. This account contradicts the Prosecution’s theory that the attacks on Murambi occurred at the end of April or in May 1994. [1010] The Prosecutor responds that Witness UU’s prior statement is in accord with the Prosecution's case and that Witness FF, among other witnesses, testified that attacks were indeed perpetrated between April and June 1994 at Murambi Hill. [1011]

681.    In any event, the Defence argues, should the Chamber consider that the evidence establishes the Accused’s participation in the removal of the church roof, the Prosecution has not proved that the removal was a criminal act as such under the Statute. Furthermore, the Defence contends, the Prosecutor has not proved that the removal of the roof was part of an attack against Tutsi refugees. [1012]

4.23.3    Discussion

(a)       Removal of the Church Roof

Witness GG

682.    Witness GG testified that one morning towards the end of April 1994 he saw the two Accused arrive at Murambi Church in Elizaphan Ntakirutimana’s Hilux vehicle, with other people in the back. They walked around the church before Elizaphan Ntakirutimana told the individuals accompanying him "to go up and remove the roof of the church so that Tutsis can no longer find a place from where they can shelter from the rain." At the time, Tutsi refugees were in fact using the church as a shelter. He described Elizaphan Ntakirutimana as wearing a jacket, trousers, a shirt, and spectacles. Gérard Ntakirutimana was wearing a white T-shirt and white shorts. [1013] Pursuant to Elizaphan Ntakirutimana’s order, the iron sheets of the roof were removed and taken away, together with the windows. The witness observed the event at quite some distance but he could see and hear what was said. [1014] He thought that Elizaphan Ntakirutimana then took the iron sheets to his home. [1015] The Chamber found Witness GG to be a credible witness (see 3.8.3 (d)).

Witness DD

683.    Witness DD testified that he stayed at Murambi Hill from 17 April 1994 until early May 1994, during which time the Adventist Church in which he had sought refuge came under attack. [1016] The attack occurred sometime before noon. Gérard Ntakirutimana and Elizaphan Ntakirutimana arrived in two vehicles full of Interahamwe armed with machetes, clubs, and spears. Elizaphan Ntakirutimana drove his white Hilux, which was followed by the hospital vehicle, a Toyota van, driven by Gérard Ntakirutimana. [1017] The vehicles came from the direction of Ngoma.

684.    Witness DD left the church and fled across a brook to a pine forest nearby, about 12 metres away, from which he had an unobstructed view of the church. [1018] The vehicles parked close to the church, about 4.5 metres from its entrance. Elizaphan Ntakirutimana stood close to his vehicle nearby the church. He ordered the twenty or more persons who had come in his vehicle to remove the sheeting of the church’s roof. [1019] The witness observed the entire operation, until the attackers departed with the roofing material, which was placed in one of the vehicles. [1020] The Chamber has accepted the credibility of this witness in some other respects, and also finds him credible in the present context. It does not consider it significant that he was unable to identify Murambi Church on Photograph No. 55 in Prosecution Exhibit No. 2 when it was presented to him during his testimony. The witness was able to describe the church, and he was not used to identifying photographs. [1021]

Witness SS

685.    Witness SS reached Gitwe Hill during daytime on 16 April 1994. He was at a place above the primary school. He testified that before noon on a certain day in April 1994, a few days after the attack at the Complex, the assailants went on to attack Murambi. Witness SS could not identify individuals, but he saw Elizaphan Ntakirutimana’s vehicle stop near the church. [1022] He declared that he observed the scene from "a short distance" [1023] (in later testimony, he declared that the distance was average [1024] ), on a small hill below Gitwe Hill facing Murambi Church. He saw the people in the vehicle proceed to climb the roof of the church to remove the iron sheets. [1025] The witness left immediately thereafter.

686.    The Chamber generally found Witness SS to be credible (see 3.8.3 (d) and 3.12.3 above). In respect of this event, the Chamber observes that in the witness’s previous written statement the investigators assessed the distance he had to run before he looked back at the attackers to about 250 meters. [1026] The Chamber accepts the witness’s explanation that this was a mere estimate. In court he described the distance first as "short", then as "average, … not very far, nor very short, but the distance was such that one wouldn’t be able to recognize somebody from that distance". [1027] This is in conformity with his written statement, according to which he did not see Elizaphan Ntakirutimana, but recognized his car. Considering that Witness SS declared that he was standing on a small hill overlooking Murambi Church and that the sighting occurred one morning before noon in broad daylight, the Chamber is satisfied that he was in a position to identify the Accused’s vehicle which was known to the witness and to observe individuals removing the Church roof. Witness SS’s prior statement does not contradict his testimony in court in this respect.

687.    Witness YY testified that he reached Murambi Church around 3.00 a.m. on 17 April 1994. Other refugees, all Tutsi, were sheltered there. [1028] The witness testified that one day towards the end of April or beginning of May 1994, between 8 and 9.00 a.m., Elizaphan Ntakirutimana’s vehicle arrived. At the time, 50 to 70 refugees were sheltered in the church, with more refugees inside surrounding buildings, without roofs. There were approximately 150 refugees in the vicinity of the church. [1029] When the vehicle arrived, the refugees started running away. The witness hid in a forest close to the church, about 30 metres away. He hid there for about three hours. Both Accused shot at the refugees (see (b) below), after which the people with Gérard Ntakirutimana and Elizaphan Ntakirutimana climbed up the roof of the church, removed the iron sheets and placed the sheets in Elizaphan Ntakirutimana’s vehicle, which was the same vehicle he had seen on the morning of the attack at Mugonero Complex. [1030] The vehicle then returned along the road on which it came. Witness YY’s opinion was that the roof was removed to deny shelter to refugees. [1031] The Chamber has accepted Witness YY’s testimony in relation to several events. In the present context, the Chamber notes that his observation of the two Accused in connection with the removal of the church roof is corroborated by three other witnesses. The fact that only he, among witnesses who testified about this incident, witnessed the shooting (see (b) below), does not render his account implausible, insofar as each as each witness observed the scene from a different vantage point and for a different length of time.

688.    The Chamber notes that paragraph 4.16 is the only section of the Indictment which specifically refers to Murambi and, in particular, to the removal of a church roof. The paragraph mentions Elizaphan Ntakirutimana only. There is no mention of Gérard Ntakirutimana. The question at issue is whether this lack of notice was cured by subsequent timely, clear and consistent information (see 2.4 above). The event at Murambi Church is referred to in the Prosecution’s Pre-trial Brief and its Annex B. Paragraphs 16 and 17 of the Brief read as follows:

… Some of the refugees who survived the attack at the Mugonero Complex on 16 April 1994, escaped to the Seventh Day Adventist Church, located at Murambi, around Gitwe hill. Dr, Gérard Ntakirutimana and Pastor Elizaphan Ntakirutimana conveyed attackers and personally pursued the refugees at this location. Several refugees were either wounded or killed by Dr. Gérard Ntakirutimana.

… Some of these killings were done in the presence of Pastor Elizaphan Nakirutimana. In the course of the said attacks and killings Pastor Elizaphan Ntakirutimana ordered the destruction of the roof of the Seventh Day Adventist church at Murambi and ordered that the iron sheets there from, be loaded in his vehicle.

689.    Annex B of the Pre-trial Brief referred to Gérard Ntakirutimana in the summary of Witness GG’s testimony. That summary was based on the witness’s statement to investigators of 30 June 1996, which was disclosed to the Defence on 10 April and 29 August 2000 (in redacted and unredacted form, respectively). However, the previous statements of Witness DD, SS, and YY and the summaries in the Pre-trial Brief of their testimonies made no reference to Gérard Ntakirutimana in connection with the Murambi Church. Moreover, Witness DD included the Accused in this event only in his third statement, produced the day before he commenced his testimony.

690.    The Chamber observes that the removal of the roof was a specific allegation of which the Prosecution had knowledge since Witness GG gave his statement to investigators in 1996. This is not a situation where "the sheer scale of the alleged crimes" makes it "impracticable" to require a high degree of specificity about the means by which the acts were committed. That the Indictment did not allege that Gérard Ntakirutimana was present, only Elizaphan Ntakirutimana, is a more serious case of lack of notice than omissions relating to details of acts alleged. Therefore, and in view of its general discussion under 2.4 above, the Chamber finds that there was insufficient notice to the Defence that it would be alleged that Gérard Ntakirutimana was present at Murambi Church.

691.    As for the involvement of Elizaphan Ntakirutimana in the removal of the church roof, the Chamber notes that Witnesses DD, GG and YY all identified him as having participated in the removal of the roof, and Witnesses DD and GG testified that he personally gave the order for the removal. Witness SS’s testimony regarding his sighting of Elizaphan Ntakirutimana’s vehicle supports the other witnesses’ testimonies. Witnesses GG and YY testified that the church was being used by Tutsi refugees as a shelter, and Witness DD testified that he was himself seeking refuge in the church at the time. The witnesses concur that this incident took place between 17 April 1994 and early May 1994. Witnesses GG and YY saw the iron sheets being removed and placed in Elizaphan Ntakirutimana’s car while Witness DD saw the sheeting being placed in one of the two cars. The Chamber finds that there is evidence, beyond a reasonable doubt, that sometime between 17 April and early May 1994, Elizaphan Ntakirutimana was in Murambi within the area of Bisesero, that he went to a church in Murambi where many Tutsi were seeking refuge and that he ordered attackers to destroy the roof of the church.

692.    The Chamber will proceed to consider the issue of the criminal character of this act and, specifically, whether the Prosecution has established beyond a reasonable doubt that the destruction of the roof was done "so that it could no longer be used as a hiding place for the Tutsis" (paragraph 4.16 of the Indictment). Witness GG testified that he heard Elizaphan Ntakirutimana say that the purpose of the removal of the roof was to deny the Tutsi refugees a shelter. Witnesses GG and YY testified that the church was indeed being used by Tutsi refugees as a shelter, and Witness DD testified that he was himself seeking refuge in the church at the time.

693.    The Chamber notes that this act of removing the roof left the Tutsis unprotected from the elements and visible to attackers. The Chamber has considered other reasonable interpretations of this act; for instance, that Elizaphan Ntakirutimana took the iron sheets for himself or removed them to prevent looting. However, if he had been concerned about possible theft of the roof, it could be postulated that he would also have removed the roof sheeting from his own home or from Ngoma Church, and it is difficult to understand why the Accused would concern himself with the protection of property at a time when lives were in danger. He must have been aware that there were people seeking shelter inside the church. Also of note is Witness DD’s description of the individuals who arrived at the church in the Accused’s vehicles, as Interahamwe armed with machetes, clubs, and spears. Of further note is that all four witnesses were consistent in their descriptions of the individuals referred-to above as attackers or in characterizing the incident as an attack. Furthermore, the witnesses consistently related how those hiding in the church or its vicinity fled upon sight of the approaching attackers. The Chamber is therefore satisfied that those taking part in these events, including Elizaphan Ntakirutimana, could not have had peaceful intentions. In light of the above, and having regard to the context of the events in Rwanda at the relevant time, the Chamber rejects any other interpretations of the act of removal of the roof or of the transportation of the individuals involved. The Chamber accordingly finds that Elizaphan Ntakirutimana conveyed attackers to Murambi Church and ordered the removal of the church roof so that it could no longer be used as a hiding place for Tutsi. In so doing, he facilitated the hunting down and killing of the Tutsi refugees hiding nearby Murambi Church in Bisesero.

(b)   Killings at the Church

694.    Witness YY testified that the two Accused were armed with guns at the church. Both Accused and the individual accompanying them shot at the refugees who could not flee, for example, children, the wounded and some women who were weak. A total of about ten refugees were too weak to flee. The witness testified that he saw Elizaphan Ntakirutimana shoot refugees in the church. In particular, Witness YY stated that Elizaphan Ntakirutimana shot the following persons: a pregnant woman who was a native of Nyacyiabo, a child named Antoine who was the witness’s neighbour and a man called Ntaganira. However, the witness later said that he could not be certain of the identity of the individuals killed by Elizaphan Ntakirutimana. [1032] Once the attackers left, he and other refugees came out of hiding and went to the church, where they saw the bodies of people who had been killed. [1033]

695.    Paragraph 4.16 of the Bisesero Indictment, which is the only reference to Murambi Church in the Indictment, addresses the removal of the church roof. It does not include any allegation that both Accused killed Tutsi refugees on this occasion. Paragraphs 4.13 and 4.15 of the Indictment refer generally to the two Accused’s participation in almost daily attacks against the Tutsi population in Bisesero. These paragraphs further refer to their searching for and attacking members of that population, their killing or causing them serious bodily and mental harm, without further detail. Even if Murambi Church is considered to be within the Bisesero area the Chamber finds that the Prosecution’s omission of allegations of killing in paragraph 4.16 constitutes a failure to provide proper notice to the Defence.

696.    Turning now to the issue of whether this defect in the Bisesero Indictment was subsequently cured by timely, clear and consistent information (see 2.4 above), the Chamber recalls the wording of paragraph 16 of the Prosecution’s Pre-trial Brief, which states that both Accused "conveyed attackers and personally pursued the refugees" at Murambi Church, and that "[s]everal refugees were either wounded or killed" by Gérard Ntakirutimana. According to paragraph 17 of the Brief, "[s]ome of these killings were done in the presence of Elizaphan Ntakirutimana", who "in the course of the said attacks and killings" ordered the destruction of the church roof. Witness YY’s prior statement of 25 October 1999 to Prosecution investigators contains a general paragraph concerning both Accused (quoted at para. 273 above). [1034] The witness stated that he saw Gérard Ntakirutimana "in all attacks" when he was at "Bisesero hill", running after refugees and shooting at them. Elizaphan Ntakirutimana was seen "on several occasions", armed with a gun, transporting killers in his car, and the witness "also saw him when supervising Interahamwe to take off the iron sheets of Murambi Adventist Church".

697.    The Chamber concludes that neither the Pre-trial Brief nor Witness YY’s previous statement contains any explicit allegation that Elizaphan Ntakirutimana killed persons at Murambi Church. This was first raised by Witness YY during his testimony. Consequently, the defect in the Indictment was not cured by subsequent timely notice.

698.    With respect to Gérard Ntakirutimana, the Chamber found above that there was insufficient notice that it would be alleged that Gérard Ntakirutimana was present at the removal of the Murambi Church roof. Moreover, as stated above, paragraph 4.16 did not contain any allegation that he killed anyone on that occasion. This was an important omission. The proper way to add such allegations would have been for the Prosecution to seek an amendment of the Indictment, which is the principal accusatory instrument against the Accused (see 2.4). The addition of these allegations in paragraph 16 of the Pre-trial Brief amounted to a transformation of the Prosecution’s case against Gérard Ntakirutimana in relation to the event at Murambi Church. Consequently, the Chamber does not consider that the defect in the Indictment was cured by the notice in the Pre-trial Brief.

4.24.    Actions of the Accused at Unspecified Locations in the Bisesero Area

4.24.1  Prosecution

699.   Prosecution Witnesses YY and HH testified about attacks involving Gérard Ntakirutimana at unspecified locations in Bisesero. The Prosecution did not refer in its written or oral submissions to Witness YY’s allegations in this regard, it did refer to Witness HH’s testimony that attacks were launched at Bisesero almost everyday and that he saw Gérard Ntakirutimana with a firearm each time there was an attack at Bisesero. [1035]

4.24.2  Defence

700.   The Defence, while denying that Gérard Ntakirutimana took part in any fighting at Bisesero, did not respond specifically to the allegations of Witnesses YY or HH on these points, except to state that Witness HH spoke proudly of losses on the attackers’ side as well, and of "kamikaze" attacks by the refugees. [1036]

4.24.3  Discussion

701.   Witness YY testified about attacks directed against houses without roofs in the Bisesero area. Occasionally, he saw Gérard Ntakirutimana amongst the attackers who came at night. The witness listed nighttime attacks in Murambi on the houses of Ngendahayo where nine people were killed, of Habimana, and of Kanyamiganda where 14 people were killed. Attacks that occurred in the day were launched from Gisovu and the attackers would leave from Murambi. He testified that at Murambi Church, the attackers called out to some of the refugees that they knew and told them to go and eat the spoilt meat which was at Habimana’s house, referring to the flesh of persons that they had killed there. When asked why he had not mentioned these incidents before, the witness answered that he had not been asked the relevant questions. [1037]

702.   Witness HH stayed in various parts of Bisesero, including Muyira Hill, Mumubuga and Kucyiha, until 15 June 1994. He testified that during his stay in the region, attacks took place almost everyday. There were very few days when they were attacked that loss of life did not result. Refugees were armed with traditional weapons like spears, machetes and stones, and later obtained guns that were abandoned by the attackers, but the magazines had already been removed by the attackers. The witness said that he saw both Accused where the refugees were but saw only Gérard Ntakirutimana involved in actual fighting. He saw him with a firearm each time there was an attack in Bisesero. As for Elizaphan Ntakirutimana, the witness claimed to have seen him only twice in Bisesero: at Mubuga School and at Ku Cyapa. When asked why he had not mentioned these incidents before, the witness answered that the questions had not been put to him. [1038]

703.   The Chamber accepts Witnesses YY and HH’s explanation that they did not mention these events before as these specific questions were not put to them. Their testimony in court was consistent under cross-examination, and the Chamber finds that Witnesses YY and HH are credible.

704.   The Indictment alleges that attacks were carried out in various locations in the area of Bisesero almost on a daily basis for several months. In their statements, Witnesses YY and HH mentioned seeing both Accused during attacks in Bisesero and later expanded on the details when asked to do so in court. The Defence therefore had sufficient notice that such allegations would be made. The Chamber accordingly finds that Gérard Ntakirutimana participated in attacks in Bisesero.

4.25     Planning Meetings and Distribution of Weapons, June 1994 (Witness UU)

4.25.1  Prosecution

705.   The Prosecution submits that in June 1994 Gérard Ntakirutimana attended meetings where attacks against Tutsi in Bisesero were coordinated and arms were distributed for this purpose. The Prosecution relies mainly on Witness UU and additionally on Witness OO. [1039]

706.   In oral arguments the Prosecution submitted that Witness UU’s testimony regarding attacks in Murambi in June 1994 accords with the Prosecution’s theory of the case, as Witness FF testified that attacks in Murambi took place between April and June 1994. In addition, paragraph 4.16 of the Indictment indicates that the Murambi attacks occurred during this period. [1040]

4.25.2  Defence

707.   The Defence submits that Witness UU is not credible for the following reasons. The witness claimed not to be a member of the RPF nor its supporter, nor to have any political affiliation. However, he repeatedly placed himself in dangerous situations, taking risks only an RPF spy would take. The Defence refers to Defence Witness 21’s testimony that he and Witness UU were classmates at Esapan school and that the latter was politically partisan, bragging openly that he was an RPF supporter. The witness claimed to have made miraculous escapes from hazardous situations, to have participated in an attack in Bisesero and to have attended meetings in Kibuye town in mid-June in the presence of Interahamwe and other persons who could have recognized him as a Tutsi.

708.   The Defence notes that in Witness UU’s lengthy prior statement he does not state that Gérard Ntakirutimana made a request for firearms at the meeting of 10 June 1994, or that the Accused was wearing white shorts, or that Niyitegeka made a sketch on the blackboard. The Defence notes that the witness explained that he recalled certain facts after being asked to testify. [1041]

709.   The Defence’s general submissions as to Witness OO were considered earlier (II.3.7.3). In relation to the specific allegation that Witness OO saw Gérard Ntakirutimana attend a meeting at the prefectural office in Kibuye town in June 1994, the Defence argues that the witness was inconsistent when he testified that Prefect Kayishema did not attend that meeting, in contradiction with his prior statement and his testimony in the Musema case. The Defence notes that Witness OO referred to only one public meeting, at which Gérard Ntakirutimana said nothing, without any mention of the other June meetings alleged by Witness UU. [1042]

4.25.3  Discussion

710.   Witness UU testified that he knew Gérard Ntakirutimana from about 1992-1993 in his capacity as a doctor. Prior to April 1994, he would see Gérard Ntakirutimana between three and five times per week at the Mugonero Hospital. [1043] Gérard Ntakirutimana was thus known to the witness prior to the events of June 1994 discussed below.

711.   Witness UU testified about having attended three meetings convened in Kibuye town in June 1994. The first took place around 10 June in the conference room of the prefectural office. He attended with Omar and another friend. To disguise himself, he wore a military cap, dark glasses, and an overcoat. The meeting started between 10.00 and 11.00 a.m. It was attended by Interahamwe and various officials, including Prefect Kayishema, Ruzindana (a trader), Musema (the manager of Gisovu tea factory), Eliézer Niyitegeka (a member of parliament and government minister), Gérard Ntakirutimana, and the bourgmestres of the communes surrounding Bisesero, seated in the front row. More than 50 other persons were present, and some gathered outside the conference room because there was not enough room for them inside. The witness was positioned towards the back of the room, about 25 to 40 metres from the front row. Ruzindana took the floor and explained to the participants that the meeting was aimed at evaluating their progress in killing Tutsi in the Bisesero area and to decide what still needed to be done to finish that task. Gérard Ntakirutimana also took the floor, saying that the problem they faced in completing the work was that they had insufficient guns and ammunition. Like other speakers at the meeting, Gérard Ntakirutimana spoke through a microphone connected to loudspeakers. Witness UU estimated that he observed Gérard Ntakirutimana from a distance of 20 to 30 metres. When the meeting ended, between 1.30 and 3.00 p.m., Gérard Ntakirutimana left in a white Toyota pickup belonging to the Mugonero Hospital. [1044]

712.   Witness UU testified about a second meeting that took place about a week later at the same venue. It also started between 10.00 and 11.00 a.m. and lasted about four hours. The same officials who attended the first meeting also attended the second. Many other persons, including Interahamwe, were present, inside and outside the room. Gérard Ntakirutimana was carrying a long gun. The objective of the second meeting was to distribute firearms, a task that was performed by Niyitegeka and Ruzindana. Gérard Ntakirutimana received weapons for the area of Murambi. Gérard Ntakirutimana was at the front of the room and the distance separating him from Witness UU was roughly the same as at the first meeting. Gérard Ntakirutimana was dressed in white shorts and a white shirt. Witness UU heard Gérard Ntakirutimana speak with Ruzindana’s younger brother and say that the weapons that they had obtained were insufficient. Niyitegeka then announced a programme of attacks that were to be launched the following day. He drew a circle on the board and within that circle he wrote the word "Bisesero". Using this circle he indicated where the attacks by different groups of attackers should start, and the leaders of the various groups of attackers. Gérard Ntakirutimana was named as a member of the "Ngoma group", which included Enos Kagaba and Mathias Ngirinshuti and was to attack Murambi. On his way out of the room, the witness was able to study the blackboard closely, for five to ten minutes as there was a bottleneck around the exit and also because he did not want to move away from his friend Omar. Witness UU read on the board that Gérard Ntakirutimana was one of the leaders of the attackers, and saw that Gérard Ntakirutimana would take the floor whenever he wanted, leading the witness to conclude that Gérard Ntakirutimana held an influential leadership role. [1045]

713.   The third meeting at which Witness UU saw Gérard Ntakirutimana was held in the canteen of the prefectural office around 18 June 1994 at dusk. The objective of that meeting was to recapitulate the events. Gérard Ntakirutimana and all the leaders of the attacks were in the canteen. Witness UU was outside, about a metre away from the canteen windows, which were open and free of curtains. The distance between himself and Gérard Ntakirutimana was 3 to 5 metres. He heard Gérard Ntakirutimana make the following pronouncement in French, then repeat it in Kinyarwanda: "The thorns must be uprooted because, otherwise, they will grow again and can kill you or disable you. There should be no pity for Tutsi women and children because they are the ones who will reproduce in future, and we will be faced with the exact same problems that we are having now." Gérard Ntakirutimana said that the results of the Murambi attack were satisfactory. Towards the end of the meeting, Niyitegeka announced that it was necessary to go back to Bisesero to kill the survivors. Witness UU then saw Gérard Ntakirutimana go to a canteen window and announce to certain persons outside that the attacks would continue the next day at the same time. [1046]

714.   The Chamber notes that this allegation was not contained in the Indictment but was referred to in the anticipated evidence of Witness UU in Annex B of the Pre-trial Brief. Therefore any lack of notice would be cured as indicated above (see 2.4).

715.   With respect to Defence’s submission that it was incredible the witness would put himself in such dangerous situations, the Chamber considers that in extraordinary times, when the risk of death to a person is very high, his claim to have taken extraordinary steps to survive cannot be treated as inherently implausible. Whatever its relevance, there is no evidence that Witness UU was associated with the RPF. With respect to Defence Witness 21’s allegation that Witness UU bragged about the RPF, the Chamber considers that while this might suggest that Witness UU supported the RPF, it certainly is not evidence that he was an agent of the organization in 1994. Witness 21’s evidence about Witness UU allegedly bragging of RPF was not put to Witness UU in cross-examination. Thus, given the circumstances in which Witness UU found himself, the Chamber does not agree with the Defence that it is implausible that he chose to conceal himself by associating with people who might have killed him had they realized his true identity. Risky though the strategy was, the witness calculated that it was a strategy that would keep him alive at a time when Tutsi choosing other methods of concealment or escape were also at great risk. Witness UU was not unassisted in his strategy, for he relied on friends and past associates, who advised him that he would attract attention should he remain in houses, and that in order to avoid such attention he should associate with young Hutu or Interahamwe. His Hutu protector Omar actively directed this scheme to keep the witness beyond suspicion.

716.   Regarding Witness UU’s prior statement made in November 1999, which does not contain certain allegations made against Gérard Ntakirutimana during his testimony, the Chamber accepts the witness’s explanation that he had just recalled these facts. The Chamber considers the discrepancies to be inconsequential and they do not contain new allegations, merely additional details that emerged in response to questions asked in court. The Chamber has considered all the discrepancies, although it does not see the need to address each of them individually. None of them can be said to be so material as to diminish the witness’s credibility or reliability. The Chamber observes that Witness UU gave a consistent account in his evidence-in-chief and cross-examination. He was subjected to thorough cross-examination, from which he emerged as a credible witness in the Chamber’s view.

717.   Witness OO testified to seeing Gérard Ntakirutimana towards the end of June 1994, not at the camp of the Gendarmerie, but at a naval post near Lake Kivu, which post was near the prefectural office. He saw Gérard Ntakirutimana among about 400 people in cars heading for the office, some in civilian attire and others in military clothes, with various types of weapons and dancing and singing "Let’s exterminate them. Let’s eliminate them from the forests. We will exterminate them, we will conquer them". Witness OO followed the crowd. He testified that at the prefectural office, Eliézer Niyitegeka, Minister of Information, took the floor and spoke through a loud-speaker. According to the witness, he said that they should continue to work together and that they had already done a good job. He thanked them, but said they should continue and double their efforts in order to continue the work. The meeting lasted from about 2.00 to 6.00 p.m. [1047]

718.   Although this evidence does not establish that Witness OO saw Gérard Ntakirutimana at one of the meetings referred to by Witness UU, it provides additional evidence that Gérard Ntakirutimana attended a meeting in June 1994 at which the Bisesero attacks were discussed and encouraged.

719.   Gérard Ntakirutimana does not have a specific alibi for any date in June 1994. His general alibi for the period was assessed in section 4.3 above, where the Chamber concluded that the evidence presented in support of the alibi does not make it reasonably possibly true that the Accused was not present in Kibuye town or in Bisesero at the times alleged.

720.   On the basis of the above discussion, the Chamber finds that Witness UU knew Gérard Ntakirutimana and was in a position to identify him. The Chamber also finds that the Accused attended three meetings in Kibuye town, held between 10 and 18 June 1994 (approximately), at which he made statements about the need to eliminate all Tutsi and called for more arms and ammunition. The details are set out in the discussion above. At those meetings Gérard Ntakirutimana also participated in the distribution of weapons, discussed the planning of attacks at Bisesero, was assigned a role in such an attack, and reported back on its success. Witness UU’s evidence, taken together with the whole of Witness OO’s evidence (see, in particular, II.3.7 above) leads the Chamber to conclude that Gérard Ntakirutimana played a prominent role in some attacks in Bisesero during the period of April to June 1994.

cont....


[939] Prosecution Closing Brief paras. 330, 339, 341; T. 21 August 2002 pp. 117-119.

[940] Defence Closing Brief pp. 86-91.

[941] T. 9 October 2001 pp. 10-17, 42, 53-57, 68-70.

[942] Witness CC’s summary of expected evidence reads: “The witness will testify further that on one occasion, he saw the Pastor on the road between Gishyita and Gisovu in his white Toyota pick-up. In the car were armed civilians. When the car stopped the Pastor and the attackers disembarked. The Pastor pointed out groups of Tutsi refugees to the attackers. The attackers went to the said refugees and killed them.” (Italics omitted.)

[943] This follows in particular from the following formulation: “Almost every day there were attacks on us. There were many attackers. I saw many, many attackers. … I recognized the following persons among the attackers” (followed by the list of ten names, italics added).

[944] T. 9 October 2001 pp. 17-20, 62, 72-73.

[945] Prosecution Closing Brief paras. 334-337; T. 21 August 2002 p. 112.

[946] Defence Closing Brief pp. 144-153, in particular pp. 151-152.

[947] T. 4 October 2001 pp. 14-25; T. 5 October 2001 pp. 39-49.

[948] See, in particular, 3.8.3 (c), 3.10.3, 4.6.3, 4.13.3.

[949] The relevant passage of the witness’ written statement of 15 November 1999 reads: “Meanwhile Pastor Ntakirutimana was standing near his car which was parked near Sikubwabo’s car. Mika Muhimana was standing near him. He was supervising a group of Interahamwe who were harvesting a field of green peas and placing them in the Pastor’s car. On the hill opposite, there was another group of attackers. They saw us and shouted, “Catch them; catch them”. Then a group of military came down the hill after us. I was with thirty-one (31) other refugees. Charles Sikubwabo was on an opposite hill far from his car.”

[950] T. 5 October 2001 p. 46.

[951] T. 4 October 2001 p. 127.

[952] Prosecution Closing Brief paras. 342-345; T. 21 August 2002 pp. 119-120.

[953] Defence Closing Brief pp. 91-98, in particular pp. 96-97.

[954] Some witnesses use the name “Mumubuga” or Mu Mubuga”. This is not significant.

[955] T. 24 September 2001 pp. 11-25; T. 25 September 2001 pp. 6-45.

[956] Prosecution Closing Brief para. 327; T. 21 August 2001 pp. 115-116.

[957] Defence Closing Brief pp. 75-86, in particular pp. 84-85.

[958] T. 26 September 2001 pp. 45-48, 57-65; T. 27 September 2001 p. 126.

[959] T. 26 September 2001 p. 60. The French version reads (p. 69): “Il y avait une assez longue distance entre moi et le pasteur, je ne sais pas comment l’estimer, mais je pense qu’elle était supérieure à 30 mètres. Q: Avez-vous dit: “supérieure à 30 mètres”? A: “Oui, aux environs, il s’agit d’une estimation.”

[960] The relevant passage of this statement reads: “When I had seen them [which appears to refer to the two Accused, Ruzindana and Mika], I was in front of one of the classrooms. I saw them at a distance of about 100 metres.” It follows from the statement that the two Accused were with “a lot of attackers”.

[961] There is no reference to this event in the Prosecution Closing Brief or in its Closing arguments of 21 August 2002. However, the Prosecution declared that it relied on all evidence led against the Accused. (T. 21 August 2002 p. 134).

[962] Defence Closing Brief pp. 158-163, in particular pp. 162-163.

[963] T. 30 October 2001 pp. 139-146; T. 31 October 2001 pp. 76-86 and 92.

[964] According to Witness SS’s witness statement of 18 December 2000 the distance was about 40 meters.

[965] T. 31 October 2001 p. 88.

[966] Prosecutor’s Closing Brief para. 347.

[967] Defence Closing Brief pp. 91-98, in particular p. 97.

[968] T. 24 September 2001 p. 26-38.

[969] T. 28 September 2001 p. 33.

[970] T. 24 September 2001 p. 90.

[971] Id. pp. 32-33.

[972] Id. p. 38.

[973] Prosecution Closing Brief paras. 352-358; T. 21 August 2002 p. 122.

[974] Defence Closing Brief p. 123.

[975] T. 2 October 2001 pp. 42-44, 48-53, 89; T. 3 October 2001 pp. 64-65, 75-77. See also Fr. T. 2 October 2001 pp. 60-61.

[976] Prosecution Closing Brief paras. 359-370; T. 21 August 2002 p. 128.

[977] Defence Closing Brief pp. 153-157 and 173-174.

[978] T. 22 October 2001 pp. 106-112, 116, 122-129; T. 23 October 2001 pp. 7, 32-33.

[979] During the Pre-Trial Conference, the Prosecution clarified that, “the issue of rape would not arise in the testimony of our witnesses. I do not intend to lead any evidence, neither do my colleagues, of rape”. (T. 17 February 2001 p. 42 ‑ closed session). The Prosecutor confirmed this during Witness II’s testimony. See 22 October 2001 p. 121.

[980] T. 22 October 2001 p. 132.

[981] T. 23 October 2001 p. 2.

[982] T. 25 October 2001 p. 39.

[983] T. 22 October 2001 p. 110.

[984] Id. p. 123.

[985] T. 23 October 2001 pp. 18-19.

[986] Charge Sheet No. 3 Elizaphan Ntakirutimana U.S. Supreme Court Supports Extradition to Arusha”, Defence Exhibit 1D5 (under seal).

[987] T. 25 October 2001 pp. 9 and 13. See also T. 23 October 2001 pp. 19-20.

[988] Defence Closing Brief pp. 158-163.

[989] T. 30 October 2001 pp. 134-138; T. 31 October 2001 pp. 124-132.

[990] See 3.8.3 (c), 3.12.3, 4.10.3, 4.16.3, 4.20.3

[991] Prosecution Closing Brief para. 348-350; T. 21 August 2002 p. 121.

[992] Defence Closing Brief pp. 75-86, in particular p. 85.

[993] T. 26 September 2001 pp. 45-48, 58, 64-70.

[994] T. 27 September 2001 pp. 126-127.

[995] See particularly 3.8.3 (c), 4.7, 4.15, 4.24.

[996] T. 26 September 2001 p. 66.

[997] The witness specified that “This was a long distance because they were still in the valley when they started shooting”. T. 26 September 2001 p. 66.

[998] See Witness HH in T. 26 September 2001 p. 68.

[999] Witness HH’s reconfirmation statement of 25 July 2001 contained only one sentence (“I saw Past[or] Elizaphan Ntakirutimana also approaching to attack us, but he was more far”).

[1000] Prosecution Closing Brief paras. 325-326.

[1001] Defence Closing Brief pp. 55-63, in particular p. 62.

[1002] T. 28 September 2001 pp. 68-72; T. 1 October 2001 pp. 120-121.

[1003] See particularly 3.4.3 (c), II.7

[1004] T. 22 August 2002 pp. 132-133.

[1005] Prosecution Closing Brief para. 372-390; T. 21 August 2002 pp. 100-107.

[1006] T. 22 August 2002 pp. 6 and 7.

[1007] Defence Closing Brief pp. 24-26, 133-135.

[1008] Id. pp. 158-163, in particular p. 159.

[1009] Defence Closing Brief pp. 117-118; T. 22 August 2002 pp. 46-48.

[1010] Id. p. 131.

[1011] T. 21 August 2002 p. 107.

[1012] Defence Closing Brief pp. 24-25; T. 22 August 2001 pp. 6, 145.

[1013] T. 24 September 2001 pp. 4-10.

[1014] In his written statement of 30 June 1996 the witness estimated the distance to be about 20 meters.

[1015] Id. pp. 163, 165.

[1016] T. 23 October 2001 pp. 120-121.

[1017] T. 25 October 2001 pp. 75-76.

[1018] T. 23 October 2001 pp. 123-124, 127-128.

[1019] Id. pp. 121-122.

[1020] T. 25 October 2001 p. 71.

[1021] T. 24 September 2001 pp. 6-7 and T. 25 October 2001 pp. 64-68.

[1022] T. 31 October 2001 p. 104.

[1023] T. 30 October 2001 p. 125. The French version p. 144 reads: “La distance n’était pas grande”.

[1024] T. 31 October 2001 p. 106.

[1025] T. 30 October 2001 pp. 123, 124-125.

[1026] The statement reads: “When we had run a distance like the one from here to the road over there (investigators: we estimate this to be a distance of about 250 meters), we looked back. We saw many attackers.”

[1027] T. 31 October 2001 p. 106.

[1028] T. 2 October 2001 pp. 32-33.

[1029] T. 3 October 2001 p. 16.

[1030] T. 2 October 2001 p. 36.

[1031] Id. pp. 40-41.

[1032] T. 2 October 2001 p. 37-38; T. 3 October 2001 pp. 66-67.

[1033] T. 3 October 2001 p. 27.

[1034] The unredacted statement was disclosed on 29 August 2000. The redacted version was disclosed prior to that date.

[1035] Prosecution Closing Brief p. 65.

[1036] Defence Closing Brief p. 86.

[1037] T. 2 October 2001 pp. 102-108.

[1038] T. 26 September 2001 pp. 47-56; T. 27 September 2001 pp. 126-128.

[1039] Prosecutor’s Closing Brief paras. 391-408.

[1040] T. 21 August 2002 p. 107.

[1041] Defence Closing Brief pp. 123-133; see also p. 115.

[1042] Id. pp. 111-112.

[1043] T. 25 October 2001 p. 108.

[1044] T. 25 October 2001 pp. 115-129; T. 29 October 2001 pp. 84-95.

[1045] T. 29 October 2001 pp. 5-38; pp. 106-108; T. 30 October 2001 pp. 54-55.

[1046] T. 29 October 2001 pp. 30-51.

[1047] T. 1 November 2001 pp. 175-184; T. 2 November 2001 p. 95-97.