1. INTRODUCTION
1.1 The International Tribunal
1.2. The Indictment
1.3 Procedural Background
1.4 Evidentiary Matters
1.5 The Accused
1.1 The International Tribunal
- This Judgement is rendered by Trial Chamber I of the International Criminal
Tribunal for Rwanda (the "Tribunal") composed of Judge Laïty Kama,
presiding, Judge Lennart Aspegren, and Judge Navanethem Pillay, in the case
of The Prosecutor v. Georges Anderson Nderubumwe Rutaganda.
- The Tribunal was established by the United Nations Security Council, pursuant
to resolution 955 of 8 November 1994, after it had considered United Nations
Reports(1) which indicated that genocide and systematic,
widespread and flagrant violations of international humanitarian law had been
committed in Rwanda. The Security Council determined that this situation constituted
a threat to international peace and security, and was convinced that the prosecution
of persons responsible for serious violations of international humanitarian
law would contribute to the process of national reconciliation and to the
restoration and maintenance of peace in Rwanda. The Security Council established
the Tribunal, under Chapter VII of the United Nations Charter.
- The Tribunal is governed by its Statute (the "Statute") annexed
to Security Council Resolution 955, and by its Rules of Procedure and Evidence
(the "Rules"), which were adopted by the Judges, on 5 July 1995
and subsequently amended.(2)
1.2 The Indictment
- The Indictment (the "Indictment") against Georges Anderson Nderubumwe
Rutaganda (the "Accused") was submitted by the Prosecutor on 13
February 1996 and was confirmed on 16 February 1996. The Indictment is set
out here in full:
"The Prosecutor of the International Criminal Tribunal for Rwanda, pursuant
to his authority under Article 17 of the Statute of the Tribunal charges:
GEORGES ANDERSON NDERUBUMWE RUTAGANDA
with GENOCIDE, CRIMES AGAINST HUMANITYand VIOLATIONS
OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS, as set forth below:
Background
-
On April 6, 1994, a plane carrying President Juvenal Habyarimana of
Rwanda and President Cyprien Ntaryamira of Burundi crashed at Kigali airport,
killing all on board. Following the deaths of the two Presidents, widespread
killings, having both political and ethnic dimensions, began in Kigali and
spread to other parts of Rwanda.
The Accused
- Georges RUTAGANDA, born in 1958 in Masango commune, Gitarama prefecture,
was an agricultural engineer and businessman; he was general manager and proprietor
of Rutaganda SARL. Georges RUTAGANDA was also a member of the National and
Prefectoral Committees of the Mouvement Républicain National pour le Développement
et la Démocratie (hereinafter,"MRND")and a shareholder of Radio
Télévision Libre des Mille Collines. On April 6, 1994, he was serving
as the second vice president of the National Committee of the Interahamwe,
the youth militia of the MRND.
General Allegations
- Unless otherwise specified, all acts set forth in this indictment took
place between 1 January 1994 and 31 December 1994 in the prefectures of Kigali
and Gitarama, territory of Rwanda.
- In each paragraph charging genocide, a crime recognized by Article 2 of
the Statute of the Tribunal, the alleged acts were committed with intent to
destroy, in whole or in part, a national, ethnical or racial group.
- The victims in each paragraph charging genocide were members of a national,
ethnical, racial or religious group.
- In each paragraph charging crimes against humanity, crimes punishable by
Article 3 of the Statute of the Tribunal, the alleged acts were committed
as part of a widespread or systematic attack against a civilian population
on political, ethnic or racial grounds.
- At all times relevant to this indictment, a state of internal armed conflict
existed in Rwanda.
- The victims referred to in this indictment were, at all relevant times,
persons taking no active part in the hostilities.
- The accused is individually responsible for the crimes alleged in this
indictment. Under Article 6(l) of the Statute of the Tribunal, individual
criminal responsibility is attributable to one who plans, instigates, orders,
commits or otherwise aids and abets in the planning, preparation or execution
of any of the crimes referred to in Articles 2 to 4 of the Statute of the
Tribunal.
Charges
- On or about April 6, 1994, Georges RUTAGANDA distributed guns and other
weapons to Interahamwe members in Nyarugenge commune, Kigali.
- On or about April 10, 1994, Georges RUTAGANDA stationed Interahamwe members
at a roadblock near his office at the "Amgar" garage in Kigali.
Shortly after he left the area, the Interahamwe members started checking identity
cards of people passing the roadblock. The Interahamwe members ordered persons
with Tutsi identity cards to stand on one side of the road. Eight of the Tutsis
were then killed. The victims included men, women and an infant who had been
carried on the back of one of the women.
- In April 1994, on a date unknown, Tutsis who had been separated at a roadblock
in front of the Amgar garage were taken to Georges RUTAGANDA and questioned
by him. He thereafter directed that these Tutsis be detained with others at
a nearby building. Later, Georges RUTAGANDA directed men under his control
to take 10 Tutsi detainees to a deep, open hole near the Amgar garage. On
Georges RUTAGANDA's orders, his men killed the 10 Tutsis with machetes and
threw their bodies into the hole.
- From April 7 to April 11, 1994, thousands of unarmed Tutsi men, women and
children and some unarmed Hutus sought refuge at the Ecole Technique Officielle
("ETO school") in Kicukiro sector, Kicukiro commune. The ETO school
was considered a safe haven because Belgian soldiers, part of the United Nations
Assistance Mission for Rwanda forces, were stationed there.
- On or about April 11, 1994, immediately after the Belgians withdrew from
the ETO school, members of the Rwandan armed forces, the gendarmerie and militia,
including the Interahamwe, attacked the ETO school and, using machetes, grenades
and guns, killed the people who had sought refuge there. The Interahamwe separated
Hutus from Tutsis during the attack, killing the Tutsis. Georges RUTAGANDA
participated in the attack at the ETO school, which resulted in the deaths
of a large number of Tutsis.
- The men, women and children who survived the ETO school attack were forcibly
transferred by Georges RUTAGANDA, members of the Interahamwe and soldiers
to a gravel pit near the primary school of Nyanza. Presidential Guard members
awaited their arrival. More Interahamwe members converged upon Nyanza from
many directions and surrounded the group of survivors.
- On or about April 12, 1994, the survivors who were able to show that they
were Hutu were permitted to leave the gravel pit. Tutsis who presented altered
identity cards were immediately killed. Most of the remainder of the group
were attacked and killed by grenades or shot to death. Those who tried to
escape were attacked with machetes. Georges RUTAGANDA, among others, directed
and participated in these attacks.
- In April of 1994, on dates unknown, in Masango commune, Georges RUTAGANDA
and others known to the Prosecutor conducted house-to-house searches for Tutsis
and their families. Throughout these searches, Tutsis were separated from
Hutus and taken to a river. Georges RUTAGANDA instructed the Interahamwe to
track all the Tutsis and throw them into the river.
- On or about April 28, 1994, Georges RUTAGANDA, together with Interahamwe
members, collected residents from Kigali and detained them near the Amgar
garage. Georges RUTAGANDA and the Interahamwe demanded identity cards from
the detainees. A number of persons, including Emmanuel Kayitare, were forcibly
separated from the group. Later that day, Emmanuel Kayitare attempted to flee
from where he was being detained and Georges RUTAGANDA pursued him, caught
him and struck him on the head with a machete and killed him.
- In June 1994, on a date unknown, Georges RUTAGANDA ordered people to bury
the bodies of victims in order to conceal his crimes from the international
community.
Counts 1-2
(Genocide)
(Crimes Against Humanity)
By his acts in relation to the events described in paragraphs 10-19 Georges
RUTAGANDA committed:
COUNT 1: GENOCIDE, punishable by Article 2(3)(a) of the Statute
of the Tribunal; and
COUNT 2: CRIMES AGAINST HUMANITY (extermination) punishable
by Article 3(b) of the Statute of the Tribunal.
Counts 3-4
(Crimes Against Humanity)
(Violations of Article 3 common to the Geneva Conventions)
By his acts in relation to the killings at the ETO school, as described in
paragraph 14, Georges RUTAGANDA committed:
COUNT 3: CRIMES AGAINST HUMANITY (murder) punishable by Article
3(a) of the Statute of the Tribunal; and
COUNT 4: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS,
as incorporated by Article 4(a) (murder) of the Statute of the Tribunal.
Counts 5-6
(Crimes Against Humanity)
(Violations of Article 3 common to the Geneva Conventions)
By his acts in relation to the killings at the gravel pit in Nyanza, as described
in paragraphs 15 and 16, Georges RUTAGANDA committed:
COUNT 5: CRIMES AGAINST HUMANITY (murder) punishable by Article
3(a) of the Statute of the Tribunal; and
COUNT 6: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS,
as incorporated by Article 4(a) (murder) of the Statute of the Tribunal.
Counts 7-8
(Crime Against Humanity)
(Violation of Article 3 common to the Geneva Conventions)
By killing Emmanuel Kayitare, as described in paragraph 18, Georges RUTAGANDA
committed:
COUNT 7: CRIME AGAINST HUMANITY (murder) punishable by Article
3(a) of the Statute of the Tribunal; and
COUNT 8: VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS,
as incorporated by Article 4(a) (murder) of the Statute of the Tribunal.
(Signed)
Richard J. Goldstone
Prosecutor; Kigali
12 February 1996
1.3 Procedural
Background
- On 13 February 1996 the Prosecutor submitted
an Indictment against Georges Rutaganda for confirmation, pursuant to Article
17 of the Statute of the Tribunal.
- On 16 February 1996, Judge William H. Sekule,
after having reviewed the Indictment and accompanying supporting material,
confirmed the Indictment against the Accused, pursuant to Articles 18 of the
Statute and Rule 47 of the Rules. On the same day the learned Judge issued
a Warrant of Arrest for the Accused, which requested the Republic of Zambia
to transfer the Accused to the custody of the Tribunal. The Accused was subsequently
transferred to the Tribunal detention facility in Arusha, Tanzania, on 26
May 1996.
- The Accused made his initial appearance before
the Tribunal on 30 May 1996, pursuant to Rule 62 of the Rules, and he was
formally charged. At this hearing the Accused was represented by Counsel,
and he pleaded not guilty to all the counts in the Indictment.
- On 8 September 1996, the Defence filed an extremely
urgent motion requesting the postponement of all criminal proceedings against
the Accused and the provisional release of the Accused, due to his state of
health. The Chamber subsequently held that the Defence had not satisfied the
provisions of Rule 65 of the Rules and denied this motion. Due to the ill
health of the Accused, the Chamber adjourned the commencement of trial to
6 March 1997.(3)
- On 6 December 1996, the Defence filed another
motion requesting the provisional release of the Accused, on the grounds of
the Accused's state of ill health and his need for medical treatment. The
Chamber denied this motion and held that the Tribunal was able to provide
adequate medical care to the Accused, and that there had been neither serious
regression in his medical condition nor had other exceptional circumstances
arisen which justified his provisional release.
- The Accused requested the assignment of Counsel
to represent him. The Registrar, after having established that the Accused
was indigent, assigned Counsels Luc De Temmerman and Tiphaine Dickson to represent
him. However, on 25 August 1997, the Accused requested the withdrawal of Mr.
Luc De Temmerman, stating that he had lost confidence in the said Counsel
because he had failed to provide sufficient legal and strategic support to
his defence. Mr. De Temmerman subsequently withdrew and the Accused was represented
by Ms Tiphaine Dickson throughout the trial. The Prosecutor was represented
during the trial by Mr. James Stewart, Mr. Udo Herbert Gehring and Ms Holo
Makwaia.
- On 6 March 1997, the Chamber adjourned the
trial for two weeks, following a request to this effect from the Prosecutor.
The trial commenced on 18 March 1997. Twenty seven prosecution witnesses,
including five experts, testified before the Prosecutor closed her case on
29 May 1998. The Defence case commenced on 8 February 1999. Fourteen witnesses,
including three experts, testified on behalf of the Defence. The Defence closed
its case on 23 April 1999. The Parties presented their closing submissions
on 16 and 17 June 1999.
- During the course of the pre-trial and trial
stages of the criminal proceeding, the Parties filed many motions on various
procedural and substantive issues, including motions for disclosure of witness
statements, a motion requesting that the deposition of sixteen witnesses be
given by means of a video conference, pursuant to Rule 71 of the Rules, and
a motion pertaining to the false testimony of a witness.
- Both Parties filed motions, requesting protective
measures for their witnesses, pursuant to Article 19 and 21 of the Statute
and Rule 69 an 75 of the Rules. The Chamber granted these motions and ordered
inter alia that the names, addresses and other identifying information
of the witnesses shall not be disclosed to the media and public, the witnesses
will be assigned pseudonyms and they will be referred to by these pseudonyms
in all criminal proceedings before the Chamber and in discussions with the
Parties. Therefore, most of the witnesses referred to in this Judgement are
referred to by their assigned pseudonyms.
- In her closing arguments, the Prosecutor requested
an amendment of the time periods alleged in paragraphs 10, 16 and 19 of the
Indictment. The Chamber finds the Prosecutor's request inadmissable.
1.4 Evidentiary Matters
- The Chamber finds that it is necessary to address certain issues relevant
to the assessment of the evidence presented at trial.
- The Chamber notes that Rule 89(A) of the Rules provides that it is not bound
by the rules of procedure and evidence of any particular national jurisdiction
and concurs with the finding in the Judgement in The Prosecutor v. Jean-Paul
Akayesu (the "Akayesu Judgement") which held:
"[...] the Chamber [...] is not restricted under the Statute of the
Tribunal to apply any particular legal system and is not bound by any national
rules of evidence"(4).
- In all pre-trial and trial proceedings and in the admission and evaluation
of all evidence and exhibits presented at the trial, the Chamber has applied
the Rules in a manner best favoured to a fair determination of the matter
before it, and which is consonant with the spirit of the Statute and the general
principles of law.
- The Chamber notes that, pursuant to Rule 96(i) of the Rules, no corroboration
of the victim's testimony is required in the case of rape and sexual violence.
The Chamber concurs with both the Akayesu Judgement (5)
and the judgement of the International Criminal Tribunal for the former Yugoslavia
in The Prosecutor v. Dusko Tadic, (the "Tadic
Judgement")(6), judgements which held that the fact that
Rules stipulate that corroboration of the victims testimony is not required
for crimes of sexual assault, does not justify the inference that corroboration
of witnesses' testimony is, in fact, required, for other crimes. The Chamber's
approach is that it will rely on the evidence of a single witness, provided
such evidence is relevant, admissible and credible. Pursuant to Rule 89 of
the Rules, the Chamber may assess all relevant evidence which it deems to
have probative value. The Rules do not exclude hearsay evidence, and the Chamber
has the discretion to consider such evidence. Where the Chamber decides to
consider such evidence, it is inclined to do so with caution.
- The Chamber notes that during the trial, the Prosecutor and the Defence
relied on pre-trial statements from witnesses for the purposes of direct and
cross-examination. In many instances, inconsistencies and contradictions between
the pre-trial statements of witnesses and their testimonies at trial were
pointed out by the Defence. The Chamber concurs with the reasoning in the
Akayesu Judgement, which held:
"[...] these pre-trial statements were composed following interviews
with witnesses by investigators of the Office of the Prosecutor. These interviews
were mostly conducted in Kinyarwanda, and the Chamber did not have access
to transcripts of the interviews, but only translations thereof. It was
therefore unable to consider the nature and form of the questions put to
the witnesses, or the accuracy of interpretation at the time. The Chamber
has considered inconsistencies and contradictions between these statements
and testimony at trial with caution for these reasons, and in the light
of the time lapse between the statements and the presentation of evidence
at trial, the difficulties of recollecting precise details several years
after the occurrence of the events, the difficulties of translation, and
the fact that several witnesses were illiterate and stated that they had
not read their written statements. Moreover, the statements were not made
under solemn declaration and were not taken by judicial officers. In the
circumstances, the probative value attached to the statements is, in the
Chamber's view, considerably less than direct sworn testimony before the
Chamber, the truth of which has been subjected to the test of cross-examination."(7)
- During the trial proceedings, the Defence filed motions requesting investigations
of alleged false testimony against two of the Prosecutor's witnesses. These
motions were dismissed by the Chamber and this decision was appealed by the
Defence. The Appeals Chamber dismissed these appeals. This Chamber reaffirms
its position that false testimony is a deliberate offence which requires wilful
intent on the part of the perpetrator to mislead the Judge and thus to cause
harm(8). The onus is on the party pleading
a case of false testimony to prove the falsehood of the witness' statements
and to establish that they were made with harmful intent, or, at least, that
they were made by a witness who was fully aware that they were false. To only
raise doubt as to the credibility of the statements made by the witness is
not sufficient to reasonably demonstrate that the witness may have knowingly
and wilfully given false testimony. In the Chamber's view, false testimony
cannot be based solely on inaccurate statements made by the witness, but rather
requires wilful intent to give false testimony. The Appeals Chamber pointed
out that there is a clear distinction between the credibility of witness testimony
and false testimony of a witness. The testimony of a witness may lack credibility,
but this does not necessarily mean that it amounts to false testimony falling
within the ambit of Rule 91(9).
- The Chamber notes the Defence submission that some of the Prosecution witnesses
are unreliable because they testified to events that they previously heard
other people talk about, and that therefore the Prosecution's case is marred
by "contamination". The Defence also submitted that some of the
evidence was obtained by illegal means, which rendered it inadmissible(10).
The Chamber finds that this is neither a matter of "contamination",
nor of "illegal means of collecting information", but of hearsay.
- Many of the witnesses who testified before the Chamber in this case have
seen atrocities committed against members of their families and close friends
and/or have themselves been the victims of such atrocities. Some of these
witnesses became very emotional and cried in the witness box, when they were
questioned about certain events. A few witnesses displayed physical signs
of fear and pain when they were asked about certain atrocities of which they
were victims. The Chamber has taken into consideration these factors in assessing
the evidence of such witnesses.
- The Chamber has also taken into consideration various social and cultural
factors in assessing the testimony of some of the witnesses. Some of these
witnesses were farmers and people who did not have a high standard of education,
and they had difficulty in identifying and testifying to some of the exhibits,
such as photographs of various locations, maps etc. These witnesses also experienced
difficulty in testifying as to dates, times, distances, colours and motor
vehicles. In this regard, the Chamber also notes that many of the witnesses
testified in Kinyarwanda and as such their testimonies were simultaneously
translated into French and English. As a result, the essence of the witnesses'
testimonies was at times lost. Counsel questioned witnesses in either English
or French, and these questions were simultaneously translated to the witnesses
in Kinyarwanda. In some instances it was evident, after translation, that
the witnesses had not understood the questions.
1.5 The Accused
- On 8 April 1999, the Accused testified that he was born on 28 November 1958
in Ngoma, in Gishyita Commune, Kibuye Préfecture in Rwanda. He grew up in
Gitarama and Kibuye Préfecture, before studying and working in Butare and
Kigali Préfectures.
- The Accused testified that his father, Esdras Mpamo, held many civil, public
and political offices and government appointments, such as the Prefect of
Kibuye, Cyangugu, and Butare Préfectures, the Rwandese Ambassador to Uganda
and Germany and the Bourgmestre of Masango Commune, in the Gitarama Préfecture.
The Accused testified that although he traveled a lot he considered his origin
to be Masango Commune in the Gitarama Préfecture because his father was the
Bourgmestre in this Commune, and he returned there throughout his youth. The
Accused also testified that his father was a devout Seventh Day Adventist,
and that his father's religious and political beliefs significantly influenced
his upbringing and subsequent political decisions.
- The Accused testified that he is married and he is a father of three children.
He stated that he received a degree in agricultural engineering in 1985, from
National University of Rwanda and thereafter he was appointed agricultural
engineer. He stated that as an agricultural engineer, he conducted agricultural
research and he managed a farm which served as a model farm to the farmers
of Huye Commune. According to the Accused, he was allowed to purchase this
farm by virtue of a Presidential decree.
- The Accused testified that he applied to the Agricultural Ministry to be
transferred from Butare in 1991, because of threats he had received from certain
people in the Huye Commune, following his purchase of the farm that
he managed. He stated that he was subsequently transferred to a post with
the Rwandese Ministry of Agriculture in Kigali, although his family remained
in Butare.
- The Accused testified that, in June 1991, he commenced work as a business
man in Kigali, dealing with import, under the name of Rutuganda SARL. He stated
that Rutaganda SARL was a highly profitable enterprise, and maintained exclusive
imports and distribution agreements with a number of European food and beverage
producers, as well as exclusive supply agreements with smaller bars, distributors,
and organizations in Rwanda.
- The Accused testified that he joined the MRND on or about September or October
1991. He stated that various political parties offered him membership, but
he joined the MRND because he believed that this political party was in a
position to provide the best economic and military protection, both of which
were significant concerns for him as a business proprietor in Rwanda.
- The Accused testified that, after he joined the MRND party in 1991, he became
the second vice president of its youth wing, the Interahamwe za MRND. He stated
that he was involved in the creation of the Interahamwe za MRND and met regularly
with its other leaders.
1. Preliminary Report of the Commission of Experts
established pursuant to Security Council resolution 935 (1994), Final Report of the
Commission of Experts established pursuant to Security Council resolution 935 (1994)
(Document S/1994/1405) and Reports of the Special Rapporteur for Rwanda of the United
Nations Commission on Human Rights (Document S/1994/1157, annexes I and II).
2. The Rules were successively amended on 12 January 1996,
15 May 1996, 4 July 1996, 5 June 1997, 8 June 1998, and 4 June 1999.
3. Decision on the
Request Submitted by the Defence, The Prosecutor v. Georges Rutaganda,
Case No. ICTR-96-3-T, 25 September 1996.
4. The Prosecutor v. Jean-Paul Akayesu
(Case No. ICTR-96-4-T), Judgement of 2 September 1998, para. 131.
5. Akayesu Judgement, para. 134.
6. The Prosecutor v. Dusko Tadic
(Case No. IT-94-1-T) Judgement of 7 May 1997, para. 535 to 539.
7. Akayesu Judgement, para. 134.
8. The Prosecutor v. Georges Anderson Nderubumwe Rutaganda,
(Case No. ICTR-96-3-T) Decision on the Defence Motion to Direct the Prosecutor
to Investigate the Matter of False Testimony by Witness E.
9. The Prosecutor v. Georges Anderson Nderubumwe Rutaganda,
(Case No. ICTR-96-3-T) Decision on Appeals against the Decisions by Trial Chamber
I Rejecting the Defence Motions to Direct the Prosecutor to Investigate the
Matter of False Testimony by witnesses "E" and "CC", 8 June
1998, para. 28.
10. See the Defence submissions, transcripts of 17 June
1996.
1. Introduction | 2. The
Applicable Law | 3. The Defence Case | 4. Factual
Findings | 5. Legal Findings | 6. Verdict
| 7. Sentencing