CHAPTER III

778. In the present Chapter, the Chamber will make legal findings based on the factual findings made above in Chapter II. The Chapter is divided into two main sections. One deals with the Mugonero Indictment (Section 2) and the other, with the Bisesero Indictment (Section 3). In addition, the Chamber will address preliminary issues (Section 1) and some legal issues raised by the Defence (Section 4).

779. Prior to addressing the legal findings on the specific counts alleged in the Mugonero Indictment, the Chamber will make preliminary legal findings applicable to all counts alleged in both Indictments against the two Accused.

780. It is not disputed that in Rwanda in 1994, the Tutsi were perceived as members of an ethnic group (see II.3.2, para. 75).

781. It is admitted by the Defence that, on 6 April 1994, the plane transporting President Juvénal Habyarimana of Rwanda was shot down as it approached Kigali Airport, Rwanda. The Chamber accepts that soon after this incident, attacks and murders of civilians began, including in Kibuye Prefecture (see II.3.2, para. 76).

782. The Chamber notes that the alibi raised by the two Accused was found not to raise a reasonable possibility that the Accused were not present during the events alleged in the Mugonero Indictment (see II.3.7, II.3.8.3(e) and II.3.11.4 above) and the Bisesero Indictment (see II.4.3 above).

783. Count 1A of the Mugonero Indictment charges both Accused with genocide pursuant to Article 2(3)(a) of the Statute. The Indictment alleges that during the month of April 1994, in Gishyita commune, Kibuye Prefecture, the Accused are responsible for the killing and causing of serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, an ethnic or racial group, as such, and have thereby committed genocide.

784. The elements of genocide within the meaning of Article 2 of the Statute are well established. [1146] In order for a conviction on this count to be entered, the Chamber must find that the following two elements have been proved beyond a reasonable doubt:

785. The Chamber found that a large number of men, women and children, the majority unarmed Tutsi, sought shelter from violence and attacks around Mugonero in the days following 6 April 1994 and that many assembled at the Mugonero Complex for that purpose. The Chamber further found that the attack of 16 April at the Complex, which lasted throughout the day and into the night, claimed hundreds of lives among the refugees at the Complex and left many wounded. It further found that the attack specifically targeted the Tutsi population -- irrespective of age or sex -- for the sole reason of their ethnicity. In the Chamber’s view, the massive and systematic character of the attack and ensuing onslaught, as described above, leaves no doubt as to the fact that the violent assault proceeded on the basis of an intent to destroy, in its whole, the Tutsi population at the Complex. [1148]

787. The elements of "aiding and abetting" within the meaning of Article 6(1) are well established. [1149] In order for the Chamber to enter a conviction on this count, it must find that the following three elements have been proved beyond a reasonable doubt:

788. At para. 310 in Section II.3.8.3 (e) above (see also paras. 283-285 in II.3.8.3(c)), the Chamber found that Elizaphan Ntakirutimana conveyed armed attackers to the Mugonero Complex in his vehicle on the morning of 16 April 1994, and that these attackers proceeded to kill Tutsi refugees at the Complex. Considering his position of authority in the community as a senior pastor, the Chamber finds that his act of personally driving armed attackers in his own vehicle to the scene of the attack, his association with these armed attackers, and his presence at the scene of the attack at the Complex, constituted practical assistance and encouragement to these attackers, which substantially contributed to the commission of the crime of genocide by these attackers.

789. From his presence and actions in relation to the attack at the Complex, from the letter he received on the eve of the attack, in which the Tutsi Pastors plead for his assistance adding, "tomorrow we shall die with our families", Elizaphan Ntakirutimana knew that Tutsi, in particular, were being targeted for attack, and that by transporting attackers to the Complex, he would be assisting in the attack against the Tutsi. The Chamber has also taken into account his actions in Bisesero, for instance, transporting armed attackers to various parts of Bisesero and pointing out Tutsi refugees to the armed attackers who then attacked these refugees, and ordering attackers to remove the roof of Murambi Church so that it could not be used as a hiding-place for Tutsi. Based on the totality of the evidence before it, the Chamber finds that Elizaphan Ntakirutimana had the requisite intent to commit genocide, that is, the intent to destroy, in whole the Tutsi ethnic group.

790. The Chamber finds that, in conveying armed attackers to the Complex, Elizaphan Ntakirutimana is individually criminally responsible for aiding and abetting in the killing and causing of serious bodily or mental harm to the Tutsi refugees at the Complex on 16 April 1994, pursuant to Article 6(1) of the Statute. Accordingly, the Chamber finds that Elizaphan Ntakirutimana is guilty of genocide as charged in Count 1A of the Mugonero Indictment.

791. The Chamber found, in II.3.13.3 above, that Gérard Ntakirutimana participated in attacks on 16 April 1994 at the Complex and shot at refugees. Whilst participating in the attack on the refugees at the Complex, Gérard Ntakirutimana killed Charles Ukobizaba by shooting him in his chest, from a short distance, in Mugonero Hospital courtyard around midday on 16 April 1994 (see II.3.11.5 above). Gérard Ntakirutimana also procured ammunition and gendarmes for the attack on the Complex (see II.3.7.3 above). In addition, he participated in the attack on Witness SS (a refugee in the Complex), during which time he was armed and in the company of other armed attackers (see II.3.12.3 above).

792. The Chamber recalls that Charles Ukobizaba, Witness SS, and finds that the refugees whom Gérard Ntakirutimana shot at in the Complex were of the Tutsi ethnic group.

793. Considering his killing of Charles Ukobizaba and his shooting at Tutsi refugees at the Complex, his participation in this attack, including procuring ammunition and gendarmes for the attack, together with his killing of Esdras, son of Munyandinda (a Tutsi) and shooting at Tutsi refugees during attacks in various parts of Bisesero, the Chamber finds that Gérard Ntakirutimana had the requisite intent to destroy, in whole, the Tutsi ethnic group.

794. The Chamber finds that in killing Charles Ukobizaba and shooting at the refugees, Gérard Ntakirutimana is individually criminally responsible for the death of Charles Ukobizaba, pursuant to Article 6(1) of the Statute.

795. Accordingly, the Chamber finds that Gérard Ntakirutimana is guilty of genocide as charged in Count 1A of the Mugonero Indictment.

796. In light of the finding above in relation to Count 1A, the alternative Count 1B – Complicity in Genocide, ceases to apply with respect to both Elizaphan Ntakirutimana and Gérard Ntakirutimana.

797. Count 2 of the Mugonero Indictment charges both Accused with conspiracy to commit genocide pursuant to Article 2(3)(b) of the Statute. The Indictment alleges that during the month of April 1994, in Gishyita commune, Kibuye Prefecture, both Accused did conspire, with each other and with Charles Sikubwabo, to kill or cause serious bodily or mental harm to members of the Tutsi population with intent to destroy, in whole or in part, an ethnic or racial group, as such, and have thereby committed conspiracy to commit genocide.

798. In the Tribunal’s judgements to date there have been one conviction and one acquittal on conspiracy to commit genocide. The conviction was in the Kambanda Judgement, which followed a guilty plea. The law relating to conspiracy has so far been considered only in the Musema Judgement (paras. 184-198), in which the Accused was acquitted on the conspiracy count. The Trial Chamber inter alia concluded that "conspiracy to commit genocide is to be defined as an agreement between two or more persons to commit the crime of genocide" (para. 191).

799. The Chamber notes that the Prosecution’s case is that the two Accused and Charles Sikubwabo conspired "with each other" to commit genocide. In order for the Chamber to enter a conviction on this count, it must find that the following two elements have been proved beyond a reasonable doubt:

800. It was found, in II.3.3.3 above, that Elizaphan Ntakirutimana did not participate in meetings with persons who were seen during the attack of 16 April. The Chamber also observed that the letter of 15 April written by the refugees to Elizaphan Ntakirutimana indicates that the refugees were unaware of any previous activity that might link the Accused to any planning or conspiracy. In II.3.7.3 above, the Chamber found that Gérard Ntakirutimana attended a meeting with the commander of the gendarmerie camp and Obed Ruzindana in Kibuye town on the afternoon of 15 April, but the substance of the meeting is not known. Further, neither Elizaphan Ntakirutimana nor Charles Sikubwabo is alleged to have been present, or proved to have collaborated or come to an agreement with Gérard Ntakirutimana, to commit genocide. The Chamber is unable, based on the evidence, to draw any inference that the two Accused were part of a plan, together with Charles Sikubwabo, to commit genocide.

801. Therefore, the Chamber does not find that Elizaphan Ntakirutimana or Gérard Ntakirutimana planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation and execution of a conspiracy to commit genocide. Accordingly, the Chamber finds that Elizaphan Ntakirutimana and Gérard Ntakirutimana are not guilty of conspiracy to commit genocide as charged in Count 2 of the Mugonero Indictment.

802. Count 3 of the Mugonero Indictment charges both Accused with a crime against humanity (murder) pursuant to Article 3(a) of the Statute. The Indictment alleges that during the month of April 1994, in Gishyita commune, Kibuye Prefecture, both Accused are responsible for the murder of civilians, as part of a widespread or systematic attack against a civilian population on political, ethnic or racial grounds and have thereby committed a crime against humanity (murder).

803. The elements of a crime against humanity within the meaning of Article 3 of the Statute are well established.^[1151] In order for the Chamber to enter a conviction on this count, it must find that the following three elements have been proved beyond a reasonable doubt:

804. The act must be committed as part of a widespread or systematic attack, and need not be a part of both. "Widespread" is defined as massive or large-scale, involving many victims; "systematic" refers to an organized pattern of conduct, not a mere random occurrence. [1152]

805. The Chamber is not satisfied that Elizaphan Ntakirutimana planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation and execution of a crime against humanity (murder). Accordingly, the Chamber finds that Elizaphan Ntakirutimana is not guilty of a crime against humanity (murder) as charged in Count 3 of the Mugonero Indictment.

806. In II.3.11.5 above, the Chamber found that Gérard Ntakirutimana killed Charles Ukobizaba, a civilian Tutsi, during the attack at the Mugonero Complex on 16 April 1994.

807. The Chamber finds that there was a widespread and systematic attack against the civilian Tutsi population at the Complex on 16 April 1994, in which Tutsi refugees, in particular, were repeatedly attacked throughout the day and into the night by many groups of armed attackers arriving one after the other, leaving many hundreds of Tutsi killed and wounded. The Chamber finds that the conduct of Gérard Ntakirutimana formed part of this attack.

808. Given Gérard Ntakirutimana’s participation in the attack against Tutsi, his shooting of Tutsi refugees at the Complex, his procurement of ammunition and gendarmes for the attack and his association with the armed attackers, the Chamber finds that in killing Charles Ukobizaba, Gérard Ntakirutimana had the requisite intent to kill him and knew that it was part of a widespread and systematic attack against the civilian Tutsi population on ethnic grounds.

809. The Chamber finds that in killing Charles Ukobizaba, Gérard Ntakirutimana is individually criminally responsible for his death, pursuant to Article 6(1) of the Statute.

810. The killing of Charles Ukobizaba constitutes murder committed as part of a widespread and systematic attack on the civilian Tutsi population on ethnic grounds and as such constitutes a crime against humanity. Accordingly, the Chamber finds that Gérard Ntakirutimana is guilty of a crime against humanity (murder) as charged in Count 3 of the Mugonero Indictment.

811. Count 4 of the Mugonero Indictment charges both Accused with a crime against humanity (extermination) pursuant to Article 3(b) of the Statute. The Indictment alleges that during the month of April 1994, in Gishyita commune, Kibuye Prefecture, both Accused are responsible for the extermination of civilians, as part of a widespread or systematic attack against a civilian population on political, ethnic or racial grounds and have thereby committed a crime against humanity (extermination).

812. In order for the Chamber to enter a conviction on this count, it must find that the following three elements have been proved beyond a reasonable doubt:

813. The Chamber notes that in Akayesu, extermination was defined as "a crime which by its very nature is directed against a group of individuals. Extermination differs from murder in that it requires an element of mass destruction, which is not required for murder."^[1153] Akayesu further noted that an element of the offence is the "killing of certain named or described persons".^[1154] The Trial Chamber in Vasiljevic held that extermination would be found where the Accused were responsible for the deaths of a large number of individuals, even if their part therein was remote or indirect.^[1155] Vasiljevic took the view that extermination "supposes the taking of a large number of lives."^[1156]

814. The Chamber found above the killing of only one named or described individual, that is, Charles Ukobizaba. The Chamber is not persuaded that the element of "mass destruction" or "the taking of a large number of lives" has been established in relation to the Accused, or that the Accused were responsible for the mass killing of named or described individuals. There is insufficient evidence as to a large number of individuals killed as a result of the Accused’s actions. Therefore, the Chamber is not satisfied that Elizaphan Ntakirutimana or Gérard Ntakirutimana planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation and execution of a crime against humanity (extermination). Accordingly, the Chamber finds that Elizaphan Ntakirutimana and Gérard Ntakirutimana are not guilty of a crime against humanity (extermination) as charged in Count 4 of the Mugonero Indictment.

815. Count 5 of the Mugonero Indictment charges both Accused with a crime against humanity (other inhumane acts) pursuant to Article 3(i) of the Statute. The Indictment alleges that during the month of April 1994, in Gishyita commune, Kibuye Prefecture, both Accused did commit other inhumane acts, including but not limited to, the causing of serious bodily harm, the causing of serious mental harm and the persistent searching for and killing of individuals in the months following the attack, as part of a widespread or systematic attack against a civilian population on political, ethnic or racial grounds and have thereby committed a crime against humanity (other inhumane acts).

816. In order for the Chamber to enter a conviction on this count, it must find that the following three elements have been proved beyond a reasonable doubt:

817. The Chamber notes that the Prosecution submits that Gérard Ntakirutimana’s acts of closing the medical store, denying treatment to Tutsi patients and cutting off utility supplies constitute "other inhumane acts". The Prosecution submits that Elizaphan Ntakirutimana is responsible for these acts by virtue of his position as head of the Complex. However, the Chamber did not find these allegations to have been proved (see II.3.5 and II.3.6 above).

818. Therefore, the Chamber does not find that Elizaphan Ntakirutimana or Gérard Ntakirutimana planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation and execution of a crime against humanity (other inhumane acts). Accordingly, the Chamber finds that Elizaphan Ntakirutimana and Gérard Ntakirutimana are not guilty of a crime against humanity (other inhumane acts) as charged in Count 5 of the Mugonero Indictment.

2.7 Charges Against Gérard Ntakirutimana of Individual Criminal Responsibility as a Superior

819. Gérard Ntakirutimana is additionally charged pursuant to Article 6(3) of the Statute with individual criminal responsibility as a superior with respect to Counts 1A, 1B, 3, 4 and 5 of the Mugonero Indictment. Article 6(3) provides that civilian leaders may incur criminal responsibility for acts committed by their subordinates or others under their "effective control",^[1158] although the control exercised need not be of the same nature as that exercised by a military commander.^[1159]

820. For Gérard Ntakirutimana to be held criminally responsible under Article 6(3), the Prosecution has to prove beyond a reasonable doubt that Gérard Ntakirutimana had "effective control" over persons at the relevant time, like Mathias Ngirinshuti.

821. As discussed in II.3.15.3 above, there is some evidence that Gérard Ntakirutimana took charge of Mugonero Hospital in the days before 16 April 1994 and even thereafter. Additionally, there is evidence that Gérard Ntakirutimana played a prominent role during some attacks at Bisesero during the period April to June 1994. However, it does not follow from any of the testimonies that Gérard Ntakirutimana had effective control over any person. In particular, there is little evidence on the capacity in which Mathias Ngirinshuti was acting, whether alone or pursuant to another’s orders.

822. Therefore, the Chamber did not find that Gérard Ntakirutimana had effective control over any person during the period up to and including 16 April 1994 or thereafter. In view of the fact that the Prosecution has failed to prove that Gérard Ntakirutimana had effective control over any person in the relevant period, the Chamber does not find it necessary to consider evidence going to the other elements of individual criminal responsibility under Article 6(3) of the Statute. Accordingly, the Chamber finds that Gérard Ntakirutimana did not incur individual criminal responsibility as a superior as charged in Counts 1A, 1B, 3, 4 and 5 of the Mugonero Indictment.

823. The Chamber will proceed to make legal findings on the specific counts alleged in the Bisesero Indictment.

824. Count 1 of the Bisesero Indictment charges both Accused with genocide pursuant to Article 2(3)(a) of the Statute. The Indictment alleges that during the months of April through June 1994, in the area known as Bisesero, in Gishyita and Gisovu communes, Kibuye Prefecture, the Accused are responsible for the killing and causing of serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, an ethnic or racial group as such, and have thereby committed genocide.

826. In Section II.4 above, the Chamber found that a large number of men, women and children, who were predominantly Tutsi, sought refuge in the area of Bisesero from April through June 1994, where there was widespread violence during that period, in the form of attacks targeting this population on an almost daily basis. Witnesses heard attackers singing songs referring to the extermination of the Tutsi. The Chamber concludes that these attacks were carried out with the specific intent to destroy in whole the Tutsi population in Bisesero, for the sole reason of its ethnicity. [1160]

827. The elements of Article 6(1), in relation to aiding and abetting, have been considered in paras. 786 and 787 above.

829. By transporting attackers in his vehicle to the scene of the attacks, instructing them to pursue Tutsi refugees and pointing out the locations of Tutsi refugees in Bisesero, Elizaphan Ntakirutimana provided practical assistance and encouragement to the armed attackers, which substantially contributed to the commission of the crime of genocide by these attackers, as established at para. 826 above.

830. From his presence and participation in attacks in Bisesero, from the fact that at certain occasions, he was present when attackers he had conveyed set upon chasing Tutsi refugees nearby, singing songs about exterminating the Tutsi, Elizaphan Ntakirutimana knew that Tutsi in particular were being targeted for attack, and that by transporting armed attackers to Bisesero and pointing out Tutsi refugees to the attackers, he would be assisting in the killing of the Tutsi in Bisesero. The Chamber has also taken into account his act of conveying to the Mugonero Complex attackers who proceeded to kill Tutsi. Having considered all the evidence, the Chamber finds that Elizaphan Ntakirutimana had the requisite intent to commit genocide, that is, the intent to destroy, in whole, the Tutsi ethnic group.

831. The Chamber finds that, in conveying armed attackers to Bisesero and in acting as described above, Elizaphan Ntakirutimana is individually criminally responsible for aiding and abetting in the killing and causing of serious bodily or mental harm to Tutsi in Bisesero, pursuant to Article 6(1) of the Statute. Accordingly, the Chamber finds that Elizaphan Ntakirutimana is guilty of genocide as charged in Count 1 of the Bisesero Indictment.

833. The Chamber found that Esdras, the wife of Nzamwita and the refugees whom Gérard Ntakirutimana shot at in Bisesero were of the Tutsi ethnic group.

834. The Chamber finds that in shooting and killing Esdras and the wife of Nzamwita, in pursuing and shooting at the refugees, in transporting and leading armed attackers in the attacks, and considering his participation in attacks against Tutsi refugees in Mugonero Complex, in particular his murder of Charles Ukobizaba, Gérard Ntakirutimana had the requisite intent to destroy, in whole, the Tutsi ethnic group.

835. In shooting at the refugees and participating in the attacks, Gérard Ntakirutimana is individually criminally responsible for the death of Esdras and the wife of Nzamwita, and the harm caused to these Tutsi refugees, pursuant to Article 6(1) of the Statute.

836. Accordingly, the Chamber finds that Gérard Ntakirutimana is guilty of genocide as charged in Count 1 of the Bisesero Indictment.

837. In light of the finding above in relation to Count 1, the alternative Count 2 – Complicity in genocide, ceases to apply with respect to Elizaphan Ntakirutimana and Gérard Ntakirutimana.

838. Count 3 of the Bisesero Indictment charges both Accused with conspiracy to commit genocide pursuant to Article 2(3)(b) of the Statute. The Indictment alleges that during the months of April through June 1994, in the area known as Bisesero, in Gishyita and Gisovu communes, Kibuye Prefecture, the Accused did conspire with each other to kill and cause serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, an ethnic or racial group as such, and have thereby committed conspiracy to commit genocide.

840. The Chamber notes that the Prosecution’s case is that the two Accused conspired "with each other" to commit genocide. In II.4.25.3 above, the Chamber found that Gérard Ntakirutimana 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. 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. It is not alleged that Elizaphan Ntakirutimana was present at those meetings, or proved that he collaborated with or entered into an agreement with Gérard Ntakirutimana, to commit genocide. Consequently, the Chamber is unable, based on the evidence, to draw any inference that the two Accused conspired with each other to commit genocide.

841. Therefore, the Chamber does not find that Elizaphan Ntakirutimana or Gérard Ntakirutimana planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation and execution of a conspiracy to commit genocide. Accordingly, the Chamber finds that Elizaphan Ntakirutimana and Gérard Ntakirutimana are not guilty of conspiracy to commit genocide as charged in Count 3 of the Bisesero Indictment.

842. Count 4 of the Bisesero Indictment charges both Accused with a crime against humanity (murder) pursuant to Article 3(a) of the Statute. The Indictment alleges that during the months of April through June 1994, in the area known as Bisesero, in Gishyita and Gisovu communes, Kibuye Prefecture, the Accused are responsible for the murder of civilians, as part of a widespread or systematic attack against a civilian population on political, ethnic or racial grounds, and have thereby committed a crime against humanity (murder).

844. The Chamber is not satisfied that Elizaphan Ntakirutimana planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation and execution of a crime against humanity (murder). Accordingly, the Chamber finds that the Prosecution has not proved that Elizaphan Ntakirutimana is guilty of a crime against humanity (murder) as charged in Count 4 of the Bisesero Indictment.

845. The Chamber found that Gérard Ntakirutimana killed Esdras, a civilian Tutsi, at Gitwe Primary School during the attacks in Bisesero (see II.4.7.3 above).

846. The Chamber found that Gérard Ntakirutimana shot and killed the wife of Nzamwita, also a civilian Tutsi, whilst participating in the attack against Tutsi refugees at Muyira Hill on 13 May 1994.

847. The Chamber found that there was a widespread and systematic attack against the civilian Tutsi population in Bisesero, in which Tutsi refugees were attacked almost everyday over a period of time from April 1994 to June 1994 by groups of armed attackers, leaving many, possibly thousands, of Tutsi killed and wounded. The Chamber finds that the conduct of Gérard Ntakirutimana formed part of this attack.

848. Considering Gérard Ntakirutimana’s participation in the attacks against Tutsi refugees in Bisesero by pursuing and shooting at them, and leading armed attackers in attacks against them, the Chamber finds that in killing Esdras and the wife of Nzamwita, Gérard Ntakirutimana had the requisite intent to kill them and knew that it was part of a widespread and systematic attack against the civilian Tutsi population on ethnic grounds.

849. In killing Esdras and the wife of Nzamwita, Gérard Ntakirutimana is individually criminally responsible for their deaths, pursuant to Article 6(1) of the Statute. The killings of Esdras and the wife of Nzamwita constitute murders committed as part of a widespread and systematic attack on the civilian Tutsi population on ethnic grounds and as such, constitute crimes against humanity. Accordingly, the Chamber finds that Gérard Ntakirutimana is guilty of crimes against humanity (murder) as charged in Count 4 of the Bisesero Indictment.

850. Count 5 of the Bisesero Indictment charges both Accused with a crime against humanity (extermination) pursuant to Article 3(b) of the Statute. The Indictment alleges that during the months of April through June 1994, in the area known as Bisesero, in Gishyita and Gisovu communes, Kibuye Prefecture, the Accused are responsible for the extermination of civilians, as part of a widespread or systematic attack against a civilian population on political, ethnic, or racial grounds, and have thereby committed a crime against humanity (extermination).

852. The Chamber found above the killing of only two named or described individuals, that is, the killings of Esdras and the wife of Nzamwita, by Gérard Ntakirutimana. The Chamber is not persuaded that the element of "mass destruction" or "the taking of a large number of lives" has been established in relation to the Accused, or that the Accused were responsible for the mass killing of named or described individuals. There is insufficient evidence as to a large number of individuals killed as a result of the Accused’s actions. The Chamber is not satisfied that Elizaphan Ntakirutimana or Gérard Ntakirutimana planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation and execution of a crime against humanity (extermination). Accordingly, the Chamber finds that Elizaphan Ntakirutimana and Gérard Ntakirutimana are not guilty of a crime against humanity (extermination) as charged in Count 5 of the Bisesero Indictment.

853. Count 6 of the Bisesero Indictment charges both Accused with a crime against humanity (other inhumane acts) pursuant to Article 3(i) of the Statute. The Indictment alleges that during the months of April through June 1994, in the area known as Bisesero, in Gishyita and Gisovu communes, Kibuye Prefecture, the Accused did commit other inhumane acts, including the causing of serious bodily harm, the causing of serious mental harm and the persistent searching for and killing of individuals in the Bisesero area, as part of a widespread or systematic attack against a civilian population on political, ethnic, or racial grounds, and have thereby committed a crime against humanity (other inhumane acts).

855. The Prosecution submits that the act of removal of the Murambi Church roof by the two Accused constitutes an "other inhumane act". The Chamber found that there was insufficient notice to Gérard Ntakirutimana that he would be alleged to have been present at Murambi Church, and the allegation was consequently disregarded (see II.4.23.3 above). As for Elizaphan Ntakirutimana, the Chamber found that he conveyed attackers to the scene and ordered them to remove the roof so that Tutsi could not use the church as a hiding-place, and that this act facilitated the hunting down and killing of the refugees. However it has not been proved that this act resulted in serious physical or mental suffering, or amounted to a serious attack on human dignity, of the refugees. Further, the Chamber is not satisfied that this act amounts to an act of similar seriousness to other enumerated acts in the Article.

856. Therefore, the Chamber does not find that Elizaphan Ntakirutimana or Gérard Ntakirutimana planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation and execution of a crime against humanity (other inhumane acts). Accordingly, the Chamber finds that Elizaphan Ntakirutimana and Gérard Ntakirutimana are not guilty of a crime against humanity (other inhumane acts) as charged in Count 6 of the Bisesero Indictment.

857. Count 7 of the Bisesero Indictment charges both Accused with serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 4(a) of the Statute. The Indictment alleges that during the months of April through June 1994, in the area known as Bisesero, in Gishyita and Gisovu communes, Kibuye Prefecture, the Accused are responsible for violence to life, health and physical or mental well-being of persons, including murder and serious bodily and mental harm, and have thereby committed serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II thereof.

858. In order for the Chamber to enter a conviction on this count, it must find that the following elements have been proved beyond a reasonable doubt:

859. The provision seeks to protect persons not taking an active part in the hostilities in armed conflicts not of an international character, and the statement "violence to life, health and physical or mental well-being of persons" encompasses, at least, acts such as murder and cruel treatment.

860. To date, no findings of guilt have been made on this provision by the Tribunal. In the ICTY, in Vasiljevic, it was held that customary international law does not provide a sufficiently precise definition of a crime under this provision. Therefore, based on the principle of nullum crimen sine lege, the Accused was acquitted on this count in Vasiljevic (paragraphs 193-204).

861. Apart from the lack of clarity about this provision, the Chamber is not satisfied that the settled elements of the offence, such as the existence of a nexus between the alleged act or acts and the armed conflict, have been proved in the present case. Therefore, the Chamber does not find that Elizaphan Ntakirutimana or Gérard Ntakirutimana planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation and execution of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. Accordingly, the Chamber finds that Elizaphan Ntakirutimana and Gérard Ntakirutimana are not guilty of serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II as charged in Count 7 of the Bisesero Indictment.

862. Finally, the Chamber will address the issue of cumulative charges and convictions, which is applicable to both Indictments.

863. Cumulative charging is generally permissible, as it is not possible to determine which charges will be proven against an Accused prior to the presentation of the evidence.^[1161]

864. Cumulative convictions are permissible only if the crimes involved comprise materially distinct elements.^[1162]In this case, Gérard Ntakirutimana is guilty of genocide and a crime against humanity (murder). The Chamber considers that the two offences comprise materially distinct elements. For example, the mens rea of genocide is the intent to destroy, in whole or in part, an ethnic or racial group, which element is not required for a crime against humanity. The mens rea of a crime against humanity (murder) is the knowledge that the murder is part of a widespread or systematic attack against a civilian population on discriminatory grounds. Accordingly, convictions on both counts will be entered against Gérard Ntakirutimana.

865. Section V of the Defence Closing Brief is entitled "The Defence Renews its Motion to Dismiss the Indictment".^[1163] The reference is to a motion filed on 26 February 2001,^[1164] which was heard and dismissed by oral decision on 2 April 2001.^[1165] Section V of the Brief reproduces all but one of the seven subheadings of the earlier motion. It asks the Chamber to reconsider its decision in light of "new evidence and experiences". The Chamber considers Section V to be not a separate motion appended to the Brief but a set of arguments for acquittal forming part of the Brief. Neither Party specifically referred to Section V in its oral closing arguments.

866. Under the subheading "A trial under existing circumstances will violate the fundamental rights of the accused to present their defence and confront witnesses against them", the Defence maintains that it faced "enormous difficulty" finding witnesses and was unable to obtain a single witness from within Rwanda. The Chamber would have given this argument serious consideration had the Defence supplied any evidence that witnesses it had located were intimidated by the Rwandan authorities or otherwise improperly prevented from coming to Arusha to testify for the Defence. No such evidence was put before the Chamber. Instead, Section V states that:

867. The above remarks assume that potential Defence witnesses who are so much as contacted by the Defence are immediately put in danger. If there is a factual basis to this assumption it is not stated in Section V. The Defence nevertheless concedes that it did make contact through intermediaries with two "very important" potential witnesses who "agreed to testify in Arusha if conditions for their security [in Rwanda] could be arranged".^[1167] The Tribunal has a specialized witness-protection program for Defence witnesses. Section V provides no evidence that the Defence attempted to utilize this program to arrange for the on-going safety of these two potential witnesses.

^868. Section V also complains about the unavailability of certain Defence witnesses from outside Rwanda, such as Dr Giordano who, according to the Defence, was unable to travel out of Madagascar because of the political crisis there. The Chamber observes that both Prosecution and Defence will not always succeed in securing the attendance of witnesses from all parts of the world. In the present case, the Defence was able to have admitted as exhibits three affidavits from witnesses who for various reasons were unable to travel to Arusha^{.
[1168]}

869. The final argument of the Defence under the first subheading is that it was "deprived of the right" to obtain evidence from within Rwanda to prove that the Rwandan Patriotic Front, the Rwandan victims’ organisation IBUKA, the human rights organisation African Rights, and others, "framed a political case" against the two Accused.^[1169]As the Defence does not claim that it even attempted to obtain the evidence it alludes to from the aforementioned sources, the Chamber finds no merit in the argument.

870. Under the second subheading the Defence alleges that the Tribunal has not indicted a single official of the Rwandan Patriotic Front, the Rwandan Patriotic Army, the present government of Rwanda, or a person of Tutsi ethnicity. This supposedly shows the Tribunal’s "discriminatory purpose", which is to "inflict victors justice" on the surviving leadership and military of the former government of Rwanda.^[1170] The Chamber understands the argument of the Defence, which is very sketchy, to be a complaint about selective prosecution. This topic has been dealt with by the Appeals Chamber of the ICTY in its Judgement in the Delalic Case. [1171]

871. Article 15(2) of the Statute requires the Prosecutor to act independently and prevents her from seeking or receiving instructions from a government or any other source. According to the standard articulated by the ICTY Appeals Chamber in Delalic, where an appellant alleges selective prosecution he or she must demonstrate that the Prosecutor improperly exercised her prosecutorial discretion in relation to the appellant himself or herself.^[1172] It follows that the Accused in the present case must show that the Prosecutor’s decision to prosecute them or to continue their prosecution was based on impermissible motives, such as ethnicity or political affiliation, and that she failed to prosecute similarly situated suspects of different ethnicity or political affiliation. In view of the failure of the Defence to adduce any evidence to establish that the Prosecutor had a discriminatory or otherwise unlawful or improper motive in indicting or continuing to prosecute the Accused, the Chamber does not find it necessary to consider the additional question of whether there were other similarly situated persons who were not prosecuted or against whom prosecutions were discontinued.

872. The third subheading relates mainly to the administration of the Tribunal. Allegations having to do with bureaucratic impediments, late payment of fees, and mismanagement of protected witnesses should have been referred to the Registrar, if anyone. They do not demonstrate any resulting disadvantage or unfairness in the presentation of the Defence case. The Chamber will briefly address two other issues under this subheading.

873. The first concerns Mr. Ephrem Gasasira, who was Elizaphan Ntakirutimana’s preferred candidate for co-counsel. Mr. Gasasira was not appointed to the post, because the Defence was unable to provide the Registrar with adequate proof that the candidate "had acted as visiting professor at a certain level and with sufficient regularity" over a minimum period of ten years at academic institutions, which according to the Chamber would have satisfied the relevant condition of appointment in Rule 45 of the Rules then in force.^[1173] The Defence disparages the "acceptance of patently false information from the Justice Minister of Rwanda concerning the teaching record of Judge Gasasira at the National University and Judges’ College [in Rwanda]", yet provides no evidence that the information was inaccurate, let alone falsified.^[1174]

874. The Defence questions the quality of translations at the Tribunal. In particular, "[c]ourtroom translation was a constant concern and frequent problem in this case, assuming the best efforts and intentions of all. All too frequently, difficulty with translation caused uncertainty as to what a witness said, or meant."^[1175] The Chamber observes that simultaneous interpretation from Kinyarwanda through French into English, though inherently difficult, generally proceeds smoothly. The Defence multilingual assistant, who switched between the channels, periodically intervened through his Counsel to propose corrections to the interpretation. In the interests of an accurate record the Chamber always gave consideration to those interventions. The Kinyarwanda channel is recorded and the soundtrack is available to the Parties. The concern of the Defence about occasions on which undetected errors "may have been made" which gave a wrong, or misleading meaning to the witnesses’ actual words, does not establish that the record of the proceedings contains any significant error.^[1176]

875. The last subheading of Section V of the Defence Closing Brief, entitled "The Charter of the United Nations Does Not Empower the Security Council to Establish any Criminal Court", revisits the issue of the Tribunal’s legality, already dealt with in the Chamber’s decision of 2 April 2001.^[1177] The Chamber is not persuaded that the additional remarks of the Defence on the subject require it to reconsider its decision.

876. In conclusion, the arguments given by the Defence in its "renewal of its motion to dismiss the indictment", viewed whether individually or collectively, fail to demonstrate any unfairness justifying the relief sought by the Defence, or any relief.

[1146] See e.g. Kayishema and Ruzindana (AC) paras. 135-173.

[1147] Other acts are deliberately inflicting conditions of life calculated to bring about the group’s physical destruction, preventing births within the group, and forcibly transferring children of the group to another. The Statute also includes “national” or “religious” groups, but this is not part of the Prosecution’s case.

[1148] See in particular II.3.2 paras. 69-77, II.3.9.3 paras. 334-339, II.3.10.3 para. 350.

[1149] See Akayesu (TC) paras. 484-485; Furundzija (AC) paras. 124-127.

[1150] Either “aiding” or “abetting” alone would suffice for this count, see Akayesu (TC) para. 484.

[1151] See eg. Akayesu (AC) paras. 447-469; Bagilishema (TC) paras. 72-95.

[1152] See eg. Akayesu (TC) paras. 579-580.

[1154] Para. 592. This definition was not subject to appeal in Akayesu, and has since been followed in Musema (TC) and Rutaganda (TC) (pending appeal).

[1155] Para. 227. The discussion states in para. 222: “It is worth noting that in none of the reviewed cases were minor figures charged with “extermination” as a crime against humanity. Those who were charged with that criminal offence did in fact exercise authority or power over many other individuals or did otherwise have the capacity to be instrumental in the killing of a large number of individuals. Those, such as executioners, who were not in such position but who had participated in the killing of one or a number of individuals were generally charged with murder or related offences whilst the charge of “extermination” seems to have been limited to individuals who, by reason of either their position or authority, could decide upon the fate or had control over a large number of individuals.”

[1160] See, II.4.4 to 4.25 in conjunction with II.4.2 supra.

[1161] See eg. Musema (AC) paras. 346-370.

[1164] Motion to Dismiss or in the Alternative Supplemental Motion for the Production and Disclosure of Evidence and Other Discovery Materials.

[1168] See id. p. 259 and exhibits 1D52 (A), (B), and (C).

[1171] Delalic (AC), Part X, Selective Prosecution.

[1173] Decision of 13 July 2001 on the Motion of the Defence for the Assignment of Co-counsel for Elizaphan Ntakirutimana, para. 19.

[1177] T. 2 April 2001 pp. 126-130.

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