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ECLI:NL:RBDHA:2013:8710

Instantie
Rechtbank Den Haag
Datum uitspraak
01-03-2013
Datum publicatie
18-07-2013
Zaaknummer
09/748004-09/translation
Rechtsgebieden
Strafrecht
Bijzondere kenmerken
Eerste aanleg - meervoudig
Inhoudsindicatie

Unofficial translation of ECLI:NL:RBDHA:2013:BZ4292. Only the Dutch text of the full verdict is authentic.

The defendant is tried for abetting genocide, attempted genocide, murder, conspiracy to genocide, incitement to genocide and war crimes, commited in Gikondo in Kigali, Rwanda. The court sentences the defendant to the maximum term of imprisonment of 6 years and 8 months.

Vindplaatsen
Rechtspraak.nl
Verrijkte uitspraak

Uitspraak

DISTRICT COURT IN THE HAGUE

Criminal Division

Three-judge criminal section

Case number 09/748004-09

Date of judgement: 1 March 2013

Judgement in a contended action

Based on the charges and following an examination in court, the District Court in The Hague pronounced the following judgement1 in the case of the Public Prosecutor against the defendant:

Yvonne N. [Yvonne Basebya],

Born in [place of birth] (Rwanda) on [date of birth] 1947,

address: [address].

Currently in detention in the Penitentiary Institution [name PI]

The court hearings were held on 22, 23, 25, 26, 29 and 30 October 2012, 1, 2, 12, 15, 16, 26, 27 and 29 November 2012, 6, 7, 11, 14 and 20 December 2012 and 1 March 2013.

The District Court has taken note of the actions instituted by the Public Prosecutors Messrs. H.C.M. van Bruggen, W.N. Ferdinandusse and T. Berger as well as the evidence put forward by the defendant’s Counsels Messrs. V.L. Koppe, T.M.D. Buruma and G.K. Sluiter, lawyers in Amsterdam, and by the defendant.

1 THE CHARGES

1. The defendant is charged with involvement in serious offences allegedly committed in Rwanda during the period from October 1990 up to and including July 1994. These offences have been described in the amended indictment, which forms an integral part of this judgement as enclosure I.

2. Briefly stated, the charges are as follows:

1. Genocide in the immediate living environment

In the period from 22 February 1994 up to and including 18 July 1994, the defendant was involved in genocide, in her living environment (in the Gikondo district, municipality Kicukiro, prefecture Kigali, in Rwanda). Together with others, she killed/seriously caused physical and/or mental harm to members of the Tutsi population group. She did this with the aim to wholly or partly exterminate this population group. In the process, the co-perpetrators of the defendant used machetes, other (traditional) striking or stabbing weapons and fire weapons.

In particular the defendant is reproached for her participation in the genocide at three moments in time:

  • -

    The murder of [victim B], [victim D] and other Tutsis and the rape of [victim E] on or around 22 February 1994;

  • -

    The massacre of Tutsis in the PallottiChurch in Gikondo on or around 9 April 1994;

  • -

    The murder of [victim A] on or around 11 April 1994.

Principally, the defendant is accused of having committed (as intellectual instigator) the genocide jointly and in conjunction with others.

Alternatively, she is charged with incitement of genocide in the period from 1 October 1990 up to and including 15 April 1994 and more alternatively being an accessory to this genocide. The defendant has incited porters at the market and other poor young men, some of them named personally in the indictment and all together referred to as Interahamwe/ Impuzamugambi, to commit genocide or aided them to commit genocide. Using her leading position within the CDR party, she ventilated her extremist anti-Tutsi sentiments during meetings which included these young men. She would sing extremist anti-Tutsi songs such as the infamous “Tubatsembatsembe” and told the men that they should defend themselves against the enemy, being the Tutsi population group. She told them that all Tutsis were followers of the RPF, that they were prepared to support the RPF in their military advance and consequently they were the enemy. For this reason the Tutsis had to be killed. In this way, the defendant solicited the commission of violence against Tutsis. She awarded participants in the meetings with money, beer and/or food and provided them with uniforms, military training and/or weapons. She also disclosed information about the hiding places of the Tutsis so they could be attacked; she kept lists with names of Tutsis who had been killed or still had to be killed and she gave orders to the young men to kill every Tutsi in the vicinity or to rape the Tutsi women.

2. Attempted genocide in the living environment

In the period from 22 February 1994 up to and including 18 July 1994, the defendant was involved in attempted genocide on Tutsis in her immediate living environment. The attempts as charged include the following:

  • -

    Attacks on Tutsis on or around 22 February 1994. At that time, an armed group went searching for the following Tutsis (among others): [witness 2] (the wife of [witness 1]), [the mother of witness 2], [witness 8] and [witness 6] (the wife of [victim F) with the intent to kill them, to inflict serious physical and/or mental harm or to rape them. This crime was not completed because the group was unable to find these victims (due to fences or resistance).

  • -

    A search for Tutsis with the same intent in the period from 6 April until 18 July 1994. During this period, an armed group went to the dwelling of (among others) [witness 1], searching for Tutsis in hiding which included [victim F, husband of witness 6], [witness 5], [witness 7], [person M], [person N] and [person O]. This time too, it was only an attempt.

Principally, the defendant is charged with having co-committed (as intellectual instigator) genocide, alternatively, she is charged with incitement of genocide and/or being an accessory. The incitement/complicity has been charged in the same way as in count 1. The perpetrators are the same persons as well.

Most alternatively, under count 2 the defendant is charged with the attempted incitement of (attempted) genocide. Here again, this involves the same perpetrators and the same manner of incitement.

3. The murder of [victim C]

The defendant is principally charged with the co-commission of the murder of [victim C], the wife of [witness 5], on 22 February 1994. The defendant is the intellectual perpetrator of this murder, which was committed by one or more of the young men referred to in counts 1 and 2. They killed [victim C] by use of strike and/or stab weapons. They assumed erroneously that [victim C] was a Tutsi.

This offence has been charged alternatively as incitement and more alternatively as complicity as an accessory, in the same manner as in counts 1 and 2.

4. Conspiracy to commit genocide

The defendant is charged with the offence that she, during the period from 1 October 1990 up to and including 14 April 1994, in the immediate vicinity of her living environment, with one or more persons, conspired to commit genocide on the Tutsi population group. With these other persons she participated in meetings during which the participants were incited to kill Tutsis and to commit violence against Tutsis. There, she sang extremist anti-Tutsi songs about the extermination of Tutsis (including the Tubatsembatsembe song). She also kept a list with names of murdered Tutsis, Tutsis who had to be searched for and killed, as well as their hiding places, which information she shared with these other persons. With the latter, she also discussed the progress of the Tutsi killings. In this manner, the defendant came to the agreement to destroy the Tutsi population as such.

5. Incitement to commit genocide

The defendant is charged with the offence that, during the period from 1 October 1990 up to and including 14 April 1994, in her immediate living environment, she publicly and verbally incited to commit genocide.

She did this by leading a group of people including poor youngsters and market porters and/or women in the singing of extremist anti-Tutsi songs, including songs about the extermination of the Tutsi population group and about the use of violence against this population group (including the Tubatsembatsembe song).

She also shared her anti-Tutsi sentiments with them and ventilated that all Tutsis had to be exterminated. She did this in the immediate vicinity of her dwelling and she could be seen and heard from the public road.

6. War crimes (unlawful assault on human dignity and threat)

The defendant is charged with committing war crimes, during the period from 1 October 1990 up to and including 14 April 1994, in the immediate vicinity of her living environment, together and in conjunction with others. These war crimes allegedly took place in a non-international armed conflict between the armed forces of the State of Rwanda and the Rwandese Patriotic Front (RPF). The victims were persons who did not participate in the hostilities. Some of those have been named in the indictment. The defendant brought these people in situations in which they were seriously publicly humiliated and had to fear for their lives, mental and physical wellbeing and that of their close family members. The defendant and her co-perpetrators did this by way of showing weapons in a threatening way which could be seen and heard by the victims, by ventilating extremist anti-Tutsi sentiments, by calling for violence against Tutsis and/or accomplices of the enemy (ibyitso), by leading the singing of the Tubatsembesembe song and other anti-Tutsi songs and to call for the search and killing of Tutsis and/or the ibyitso.

2 JURISDICTION AND COMPETENCE OF THE COURT

1. Although it was not disputed by the parties, the Court will first investigate whether the Dutch Judge has jurisdiction regarding the offences as they appear in the indictment. After all, the indictment refers to offences committed outside of the Netherlands, against non-Dutch victims by a defendant, who at that time, did not have the Dutch nationality.

2. During the period referred to in the indictment, genocide and conspiracy to genocide were punishable acts pursuant to the articles 1, first and second paragraph of the Genocide Implementation Act (hereafter: Implementation Act). Incitement to genocide was punishable pursuant to article 131 of the Dutch Criminal Code (Sr1) in conjunction with article 1, first paragraph of the Implementation Act. The Dutch legislator had not provided for universal jurisdiction. Pursuant to article 5, first paragraph of the Implementation Act, Dutch criminal law was actually applicable to Dutch citizens who were guilty of genocide, conspiracy to genocide and incitement to genocide. Moreover, article 5, paragraph 2 of the Implementation Act stated that prosecution for these offences could also take place if the defendant had become a Dutch citizen after committing the offence(s). This is the case. On 7 December 2004, the defendant obtained Dutch citizenship.2

3. In this respect, the Court notes that the International Crimes Act (hereafter: WIM2), which entered into force on 1 October 2003, has established jurisdiction with respect to genocide, without granting retroactive effect however. Since the amendment of this Act, entered into force on 1 April 2012, universal jurisdiction has been established with respect to genocide committed after 24 October 1970.

4. Concerning the war crimes imputed to the defendant, article 3 of the Criminal Law in Wartime Act (WOS3), which entered into force on 10 July 1952 and is valid until the implementation of the WIM, stipulated that this act was applicable to ‘any person’ and with respect to the crimes as referred to in article 8 of that Act. The WIM recognises universal jurisdiction regarding these crimes as well.

5. On the basis of article 5 of the Dutch Criminal Code, besides the requirement of Dutch nationality also the requirement of double punishability applies to the murder as charged. In this case as well, prosecution may take place after the defendant has become a Dutch citizen only after having committed the offence. In the Netherlands, murder is punishable pursuant to article 289 of the Dutch Criminal Code. In the Rwandese Criminal Code, as applicable in 1994, murder had been made punishable pursuant to article 312.

6. In accordance with article 15 of the WIM, this Court has exclusive jurisdiction over international crimes as well as the crimes imputed to the defendant by the indictment.

3 THE ADMISSIBILITY OF THE PUBLIC PROSECUTION SERVICE

  1. At the time referred to in the indictment, incitement to genocide (count 5) was punishable pursuant to article 131 Sr in conjunction with article 1 of the Implementation Act. In article 131 Sr, the maximum penalty had been established at a term of imprisonment of not more than 5 years. Pursuant to article 70, first paragraph under 3 Sr, the right to institute criminal proceedings regarding crimes with this maximum penalty was barred by prescription after twelve years. On 1 October 2003, the WIM became effective. This act made incitement to genocide punishable pursuant to article 3, second paragraph. The maximum term of imprisonment was established at fifteen years. In article 13, the WIM also determines that incitement to genocide is considered to be a crime to which statutory limitation cannot be applied.

  2. Given the above, during the hearing the Court raised the question whether this should not lead to a partial disallowance of the Public Prosecution Service concerning this count, since the right to institute proceedings had possibly become prescribed for the period up to October 1991.

3. The Public Prosecution Service reacted to this by arguing that the rules for prescription in the Dutch Criminal Code are not, and have never been, applicable to incitement to genocide, since article 3 of the Implementation Act states that article 70 Sr is not applicable to crimes as referred to in the articles 1 and 2 of the Implementation Act. Although incitement to genocide has not been included in these articles, the Prosecution requests the Court to interpret article 3 of the Implementation Act in such a way that it will apply to incitement to genocide as well.

4. The Prosecution has primarily argued that incitement is a particular type of provocation and therefore is excluded from prescription in article 3 of the Implementation Act. Incitement and provocation are equally liable to punishment. Therefore, for both crimes the same prescription regime should be applicable.

5. The Court does not follow the Public Prosecution Service in this respect. Although incitement and provocation are related to each other since they both pertain to inducing another person to commit an offence, provocation is an offence committed in participation and incitement is an independent offence. There are more essential differences: contrary to incitement, one can only speak of provocation if the agitator has used the means as referred to in article 47 and if the offence, or the criminal attempt, has actually been committed. Besides, contrary to provocation incitement is only punishable if it takes place in the public environment. Moreover, although both offences are considered liable to punishment, they are not to the same punishment. Therefore, it is the court’s judgement that it is not self-evident that the same prescription regime should apply to both offences.

6. Secondly, the Prosecution has argued that it must have been an obvious omission by the legislator not to include incitement within the reach of article 3 of the Implementation Act. After all, the Genocide Convention does not make any difference between incitement to genocide, the commission of genocide, conspiracy to genocide, attempted genocide and complicity to genocide. Since, based on the Dutch Criminal Code, incitement to genocide was already punishable, the Implementation Act did not arrange for special regulations with respect to his offence. Thus, the legislator did not make a conscious choice to exclude incitement from article 3 of the Implementation Act, but simply did not think of it.

7. Thus, what is asked here by the Prosecution from the Court is more than the correction of an obvious mistake made by the legislator. The Court did not find any reasons to believe that the legislator made a conscious choice to exclude incitement from the reach of article 3 of the Implementation Act either. Actually it looks like it should be considered as an omission that is the result of a law-systematic less fortunate choice to make incitement punishable pursuant to article 131 Sr (in conjunction with article 1, first paragraph of the Implementation Act). However, it is not up to the Court to correct this, but up to the legislator. In the meantime, the legislator has acted accordingly with the implementation of the WIM.

8. Finally, the Prosecution has argued that the State of the Netherlands neglects its conventional-law and moral duties if incitement to genocide should not fall under article 3 of the Implementation Act, since otherwise incitement to genocide as the implementation of a legal order or an administrative order, would be legitimate.

9. This argument neither gives the Court any reasons to read the Implementation Act in a different way than what it says. There is no stipulation in the Genocide Convention that prohibits the prescription of crimes referred to in this Convention. To attain this however, in the 1974 the European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes was concluded. In the Netherlands, this Convention became effective on 27 June 2003. Article 1 of this convention reads as follows:

Each ContractingState undertakes to adopt any necessary measures to secure that statutory limitation shall not apply to the prosecution of the following offences, or to the enforcement of the sentences imposed for such offences, in so far as they are punishable under its domestic law:

1. the crimes against humanity specified in the Convention on the Prevention and Punishment of the Crime of Genocide adopted on 9 December 1948 by the General Assembly of the United Nations;

The Court determines that this convention “may not be applicable to all parties” but that it requires the State of the Netherlands to adapt national legislation if necessary. Therefore, from article 93 of the Constitution arises that this stipulation in this Convention does not set aside Dutch criminal law. In the meantime, by introducing the WIM, the Netherlands have met this Convention obligation. It should be noted here that different from the Prosecution’s argument, this Convention demonstrates that neither the Genocide Convention, nor any other convention excluded statutory limitation with respect to these crimes.

1. With its reference to moral obligations, the Prosecution possibly aims at the unwritten rule of international customary law which resists statutory limitation of crimes from the Genocide Convention. The Court also sees strong indications which point at the existence of such a rule.4 However, article 94 of the Constitution provides that the Court shall not be allowed to test the law against international customary law.5

1. Therefore, the Court comes to the following conclusion. Concerning the period in the indictment from 1 October 1990 up to and including 1 October 1991, the right to institute proceedings regarding count 5 had already prescribed on 1 October 2003. The twelve years had gone by and no act of prosecution had been instituted against the defendant. Concerning this part of the indictment, the Court declares the Public Prosecutor inadmissible in the prosecution.

1. Extending the period of statutory limitation as from 1 October 2003 does not lead to the fact that crimes already prescribed may be prosecuted anew, but according to legal precedent it extends the current prescription period of crimes already having been committed. (HR4 29 January 2010, LJN BK1998).

1. In so far as the charges under count 5 had not yet prescribed on 1 October 2003, the right to institute legal proceedings has remained. This is the case for the period as charged from 2 October 1991 up to and including 15 April 1994.

1. It should be noted here that no circumstances have arisen which could bar the admissibility of the Public Prosecution Service.

4 THE INVESTIGATION

Preliminary inquiry

1. In May 2007, the National Office of the Public Prosecutor was advised by the Rwandese Public Prosecution Service and the human rights organisation African Rights that the husband of the defendant, (X) who lived in the Netherlands, appeared on a list of wanted persons in Rwanda.6 This was the cause for the initiation of an investigation under code name Vos into his possible involvement in the Rwandese genocide in 1994.

2. On 10 December 2007, a request was sent to the Rwandese authorities for information about [X, husband of defendant].7 The Rwandese authorities complied with this request.8 They forwarded a number of witness statements rendered before the Rwandese Parquet Général in 2006 about Basebya.9 In these statements, different witnesses called the defendant a leading figure in the political party CDR10 (Coalition pour la Défense de la République).

3. They also forwarded documents from the Rwanda-Tribunal11, including the so-called Cladho-report. This report was drawn up in December 1994 by the Cladho (Collectif des Ligues et Associations de Défense des Droits de L'Homme). The report’s subject is the investigation into the events in Rwanda as from 6 April 1994. Attached to this report was a list of persons who are suspected of participation in the genocide. The list includes the name [X, husband of the defendant] as well as the defendant’s name.12

4. They also forwarded statements from witnesses who had testified in a Danish criminal case against a person accused of genocide. These statements also mentioned that the defendant had played a role in the genocide.13

5. Subsequently, investigators of the National Criminal Investigation Service (NCIS) went to Rwanda where they heard a number of witnesses and investigated the so-called gacaca-courts.14 This investigation furnished, among other matters, a gacaca-file about the defendant.15

6. Based on this information the Public Prosecution Service extended the investigation to include the defendant. 16

7. Subsequently, the NCIS heard more witnesses, inside and outside of Rwanda. Special investigation powers were implemented, which included the wire tapping of telecommunications, internet data and confidential communication inside the dwelling of the defendant.17

8. On 12 May 2010, an article was published in the Rwandese newspaper "The New Times" in which they referred to the investigation by a Dutch team into [X, husband of defendant] and his wife.18 This caused the investigation to gain momentum. Once more, special investigative actions were implemented and on 11 June 2010, a search was conducted in the dwelling of the defendant and her husband. During this search, a computer, data carriers, audio and video equipment and documents were seized.19

9. On 21 June 2010, the defendant was arrested in her home. That very same day, she was taken into police custody. Subsequently, on 24 June 2010, the Examining Judge remanded her in custody and she was transferred to a detention centre.

1. After this, the NCIS continued the investigation, parallel to the investigation conducted by the Examining Judge described below. Among other matters, this investigation consisted of hearing witnesses and analysing seized data and documents which had become available in other ways within the scope of the investigation.

Investigation by the Examining Judge

1. Upon an order issued by the Public Prosecutor, on 2 July 2010, the Examining Judge opened a preliminary inquiry.20 On 5 August 2010, he held an agenda hearing with the Public Prosecutor and the Counsel. This hearing was about organisational issues, the requests to conduct investigations, local inspections and photography in Gikondo, parallel investigation and planning.21

1. On 3 and 4 September 2010, the Examining Judge visited Kigali with the Public Prosecutor and the Counsel of the defendant. This first visit of the Dutch delegation based on the request for legal assistance in criminal matters (rogatory commission) concentrated on a local inspection of the Gikondo district and taking photographs of locations selected by the Examining Judge and the parties in that district.22

1. Pursuant to article 258, second paragraph of the Code of Criminal Procedure, the preliminary investigation was concluded with the indictment of the defendant.23

1. The first pro forma hearing took place on 27 September 2010. On that occasion, the Court handed over the documentation to the Examining Judge for the purpose of further investigation, i.e. the taking of testimony of a number of witnesses, the appointment of an expert, hearing the defendant and to carry out all other actions deemed to be “in the interest of the investigation”, according to the Examining Judge. Each time during the succeeding pro forma hearings, (the progress of) the investigation carried out by the Examining Judge was discussed. The Court took certain decisions about the investigation during these hearings and always made the documentation available to the Examining Judge with the same ‘open referral’.

1. For use during each pro forma hearing, the Examining Judge drew up an official court record in which all investigative activities in the interim period were included. There are 11 official court records in total. Of all rogatory commissions he made reports in official reports of findings of all relevant findings and observations during these trips. In the file there are 30 official reports of findings of the rogatory commissions. The Examining Judge also reported about other investigative activities in the official reports of findings.

1. During the course of his investigation, the Examining Judge frequently consulted with the Public Prosecutor and the Defence.

1. The Examining Judge heard the defendant on 2, 3 and 7 March 2011 and on 13 October 2011.24

1. On 19 May 2011, the Examining Judge, with the approval of the parties, appointed Prof Dr André Guichaoua, professor at the University of Paris I Panthéon-Sorbonne (France) as expert, and requested him to report about the political and historical context of the events in Rwanda during the period 1990-1994.25 After publication of the report, questions in writing were submitted to the expert by the Court, the Examining Judge, the Defence and the Public Prosecution Service. The expert answered those questions in writing as well.26 On Thursday 11 October 2012 and Friday 12 October 2012, the expert was interviewed by the Examining Judge; during this interview, questions were put to the expert by the Defence exclusively.

1. Furthermore, at the request of the Defence and with the approval of the Prosecution, the Examining Judge appointed Prof Dr Jean de Dieu Karangwa, connected to the Institut National des Langues et Civilisations Orientales (INALCO) in Paris, as an expert. Following a letter from 2006 written by witness [witness 13], this expert wrote a report about the use of the words “We” and “Us” in the Kinyarwanda language.27

20. As laid down in article 177 of the Code of Criminal Procedure, several times the Examining Judge ordered detectives of the NCIS to carry out certain investigations.28

21. The pièce de résistance of the Examining Judge’s Investigation was the hearing of witnesses. From September 2010 up to and including November 2012, he took evidence from 70 witnesses, many of those more than once and during many, long days. Most witnesses were heard in foreign countries: in Rwanda, Belgium, France, Switzerland, Poland, Canada, the United States of America, South Africa, Malawi and Kenya.29

The witness examinations by the Examining Judge

22. The Examining Judge preferred to take evidence from each witness in his or her mother tongue.30 Therefore, practically all witnesses were heard in their mother tongue, with the assistance of an interpreter, mostly in Kinyarwanda.

23. In the official records of witness interview, the Examining Judge literally reproduced all remarks and questions put to the witness by him, questions by the Public Prosecutor and the Defence, and all answers given by the witnesses. By using this reporting form, he was able to realise an almost 100% true and literal representation of the witness interviews.31 32

24. At the start of each interview, the Examining Judge gave the following explanation:

“I am an Examining Judge of the District Court in The Hague in the Netherlands. You have come here in order to be heard as a witness.

I would like to give a further explanation to you about this interview and what is going to happen, but before we start I would like to introduce the other persons present here. First, next to me is my clerk. Then there is the Public Prosecutor, who in the Netherlands instituted proceedings against the defendant, in whose case you will be interviewed today. Also present is the Defence Counsel for the defendant, the lady over there. This gentleman is the interpreter, but of course you had already understood this.

In the Netherlands, there is a person who has to stand trial concerning crimes that were committed prior to and during the genocide in 1994 inKigali, Rwanda. This person was arrested by the police in the Netherlands and is presently on remand in custody awaiting trial. This person is prosecuted by the Public Prosecutor because the latter suspects her of being involved in the genocide in Rwanda in 1994. But this person denies the charges and the Counsel defends this person. In the end, in this criminal case the District Court in The Hague will have to decide whether this person is guilty or not. To prepare for these proceedings, an inquiry has to be carried out, especially witnesses have to be heard, and you are one of those witnesses.

Under Dutch law, witnesses in a criminal case are usually heard by the Examining Judge and not by the judge during the hearing of the case in court. I am not involved in the trial of the defendant; I only conduct the inquiry. I am also allowed to hear witnesses in foreign countries, if the authorities of those countries grant their approval, such as here in Rwanda.

When interviewing witnesses, I lead the interview in my capacity as Examining Judge. I am going to ask you some questions, but the Public Prosecutor and also the Defence Counsel will get the opportunity to ask you questions. Everything that is being said, and this includes your statements, will be written down literally in an official record of witness interview by my clerk. Then at the end of the interview all that you stated will be read to you, i.e. all questions and all answers. You will be able to correct any mistakes in the answers. After the statement has been read to you and if you agree to its contents, I will ask you to sign the statement. I will also sign the official record and my clerk and the interpreter will too. Then I will take this official record with me and I will include it in the criminal file in the Netherlands. The judges in the Netherlands will read your testimony and for them it means that they can trust that everything that is on paper is a true representation of what has been said during the interview. This interview is taking place with the aid of an interpreter. I always ask a witness to render his or her statement in his or her mother tongue, the language he/she learned as a child from the parents. The language used in the official record is Dutch, since that is the language used by the law courts in the Netherlands. I also take the oath from the interpreter, which I will do right now.

If you do not understand the interpreter or you do not understand my question, please say so to me, and I will put the question to you once more. I have explained to you that you are a witness. As a witness, you must speak the truth. This applies to the legal system in the Netherlands, but to Rwanda as well. The truth are all the things that really happened. Everything you state, must have really taken place. I ask you to give evidence about what you have experienced personally: things you have seen for yourself, felt for yourself and heard for yourself. It may be the case that you know certain things because people have told you later. Those things may be important, but please tell me in such a case that you heard them from other people and from whom. Do you understand the difference between things you have experienced yourself and things other people have told you?

I will ask you to state about matters that happened more than 17 years ago. You will be asked about what you still remember and then you will also be asked about certain details: dates, times, places, names, etc. Maybe you still remember those things, but maybe you have forgotten. I would like to ask you to tell me honestly when you cannot remember certain things. You can say to me: "I don’t know" or "I can’t remember this". That is no problem at all. But I do not want you to state certain things to me that you actually do not remember at all. Did you understand my explanation and do you wish to say something about it or ask me something?”

25. Subsequently, the Judge placed each witness under oath. During one of the interviews a discussion arose about the meaning of the oath, since for lack of jurisdiction of the Dutch judicial authorities, it would not be possible to prosecute a witness for perjury. Therefore, the Examining Judge took the stand that the oath primarily had a symbolic and not a legal value and if the situation gave cause, he would urge the witness to speak the truth and he would refer to the oath.33

26. The Examining Judge interviewed the witnesses according to a fixed pattern. After the above mentioned introduction, he questioned the witness about him/her self and subsequently about the events in Rwanda. After that and in so far as the witness was able to testify about it, questions were put to the witness about the period between 1990 and 1994 in general, then about the events on 22 February 1994 and then about the period after 6 April 1994.

27. In case of taking evidence from a ‘victim-witness’ in Rwanda there was always the possibility of assistance or support from a psychologist/psychiatrist who would be of Rwandese origin. In case his support was called for, he would have a conversation with the witness prior to and after the interview. The Examining Judge would also speak with the psychologist/psychiatrist after the latter had spoken with the witness. This way, prior to the interview the Examining Judge would be informed about the psychological condition of the witness. As the occasions arose, after the interview the psychologist/ psychiatrist could refer the witnesses to local support agencies. The psychologist/ psychiatrist was paid by the Examining Judge.34

28. In the case of two witnesses35, the intended follow-up examination was not held because of the possible consequences thereof for the physical or mental condition of the witnesses. The Examining Judge had so decided after having talked to these witnesses in the absence of the parties and after having sought the advice of a psychiatrist/ psychologist.36

29. To each of the non-detained witnesses, the Examining Judge offered an expense allowance for each day the witness was not at home because of the interview. In Rwanda this allowance usually amounted to 5.000 Rwandese Francs (Rwf) per day, which equals approximately € 7,00. 37 In some cases a higher expense allowance was awarded for loss of income. In those cases the amount was Rwf. 15.000 per day, which amount is similar to the daily expense allowance paid by the United Nations to their local staff.38 Each time, the Examining Judge explained that the allowance did not originate from the Rwandese authorities, but from him. According to the Examining Judge, some witnesses felt not at ease about his offer and a number of witnesses refused the expense allowance.39

30. During the witness examinations, both the Public Prosecutor and the Counsel regularly raised objections with regard to each other’s questions. This concerned the type of questions as well as the way in which they were put to the witness. Every time, the Examining Judge made a note of the objection in his official report of findings. During the arguments about these objections, he always took the stand that he wanted to leave the parties as free as possible and that he would only intervene when he had the impression that the questions were too leading or misleading.40 He also advised the Defence on several occasions that the time reserved for the interview was limited.

31. During one of the interviews, the Defence objected to a question from the Public Prosecutor to a witness about the latter’s contact with the Defence prior to the interview. The Examining Judge decided that the question of the Public Prosecutor was allowed with the limitation that the question could only relate to the period after which the witness had been allowed by the Court.41 At the next occasion he added to this that he could not order the parties to do or not to do certain things, but that their conduct was limited by the provisions as laid down by the law and by jurisprudence with respect to the taking of evidence from witnesses and that he maintained the principle that the parties should not influence the witness prior to or after the interview or to coach him/her.42

32. During the pro forma hearing of 17 January 2012, the Defence requested the Court to instruct the Examining Judge to give an indication concerning the space allowed to the Defence to put questions to the witness. The Court believed, for fundamental and practical reasons, that it should not give general instructions to the Examining Judge concerning the way in which he should lead the witness examinations, even disregarding the fact that the Defence had not concretely indicated how such an instruction should be formulated.

33. In his closing speech, the Public Prosecutor made a remark about the sometimes unacceptably long duration of some of the witness interviews. He also thought that some of the witnesses were questioned too long about peripheral matters and that they had questions put to them which actually should have been put to an expert. In a number of cases, the intellectual capacity of the witnesses was overestimated.

34. The Court endorses the fact that whatever the case, the interviews were very hard on the witnesses. They were asked to return to the horrible events that had taken place about twenty years ago. The Court also shares the opinion that the interviews were very long and intensive for the witnesses. The Court recognises that this carries the risk of overburdening the witness. On the other hand, it is very important to the Defence to test the reliability of (the statements of) witnesses in a case in which the evidence almost exclusively comes from their testimonies. Given the nature of the charges, it was inevitable that the questions which were put to the witnesses did not primarily refer to the charges against the defendant, but more to their (political) context. Furthermore, in one case the Examining Judge decided not to continue the interview of a certain witness because of the possible adverse effects on the mental and physical health of the witness. Finally, as a result of the accurate documentation of the interviews, the Court was able to read whether an interview had been painful or difficult for the witness, which state of mind could have an effect on the assessment of the evidence.

35. During one of the interviews in Rwanda, after having had telephone contact with the defendant, the Defence submitted a request to challenge the Examining Judge. The Court dismissed this challenge.43 Two of the other interviews in Rwanda were interrupted at the Counsel’s request, because he wanted to deliberate on the option whether or not to submit a request for a challenge.44

Pro forma hearings

36. Pro forma hearings took place on 27 September 2010, 14 December 2010, 9 March 2011, 1 June 2011, 24 August 2011, 17 November 2011, 17 January 2012, 2 March 2012, 30 March 2012, 18 June 2012, 23 July 2012 and 13 September 2012.

37. During the session of 27 September 2010, the defendant was assisted by an interpreter in Kinyarwanda. At the request of the Defence, during the succeeding sessions the services of French interpreters were hired. As from the hearing on 24 August 2011, simultaneous translations were carried out from an interpreting booth.

38. At the hearing of 23 July 2012, the Defence submitted the request to hire the services of an interpreter both in the French and Kinyarwanda language during the trial, because this would allow the defendant to better answer the questions put to him by the Court. At the hearing of 13 September 2012, the Public Prosecution Service dismissed the request and during the same session, the Court rendered the following motivation for its decision:

With respect to the request concerning the interpreters, the Court puts first that in relation to treaties, law and legislation, a defendant is not entitled to be heard in his/her own language. Of course, it should be done in a language which he/she understands well. Up to this moment, the Defence has explicitly indicated not to use the services of an interpreter in the Kinyarwanda language, but a French interpreter, arguing that the defendant is most fluent in that language. The Court establishes that the Counsel for the Defence has omitted to indicate the grounds for continuing new insights which would justify a deviation from this line. Nevertheless, the Court will satisfy defendant’s request to be allowed to answer the questions put to her during the hearing in her mother tongue. This means that the questions will be put to the defendant through the intermediary of a French interpreter and that the defendant will be given the opportunity to answer in Kinyarwanda. However, should this situation encounter opposition, in view of the above mentioned considerations there should be no reason not to continue the hearing. In that case the Court will only use the services of the French interpreter.

39. During the hearing of 14 December 2010, the Defence asked for an investigation budget of € 15,000. During the hearing of 9 March 2011, the Court showed the Defence articles 591 and 591a of the Code of Criminal Procedure and article 16 of the Costs in Criminal Cases Act. On 24 May 2011, the clerk of the Court awarded an advance payment of €15,000 for the purpose of investigation expenses.

40. During the hearing of 17 January 2012, the Court made decisions concerning requests from the Defence for the examination of witnesses by the Examining Judge. Some requests were dismissed. On 28 February 2012 – just prior to the next hearing – the Court received a letter from the Defence saying that following the dismissals on 17 January 2012, the Defence had lost faith in the Court. According to the Defence Counsel, the Court had already made up its mind about the defendant’s guilt, had more or less declared the charges proved and had already established the penalty, i.e. imprisonment for life. However, according to the letter, the Defence would not submit a request to challenge the Court because this would never be successful. The letter also included the request to hear 41 witnesses.

41. During the hearing of 2 March 2010, the Court merely stated that it would do what it always does: carefully investigate, in a fair trial, whether the charges brought against a defendant can be proved legally and convincingly.

42. During the hearing of 30 March 2012, after having given the Prosecution the opportunity to react, the Court rendered a decision concerning the requests submitted in writing on 28 February 2012. Prior to its motivation, the Court made the following general remarks with respect to each request separately:

As has been demonstrated by his letter of 28 February 2012, the Counsel’s requests are dictated by his distrust of the Court. The Court puts first that distrust harboured against it is not a ground recognised by any law or legislation concerning a decision to be taken by the Court in this criminal case. In his fax of 29 March 2012, the Counsel writes that a possible repair of his trust in the Court (also) depends on the decisions the Court is going to take on his requests. It goes without saying that this will never be the Court’s guideline.

During the hearing of 17 November 2011, the Counsel announced that he would be requesting the examination of three witnesses. In the meantime, his misplaced distrust had lead him to request the examinations of a large number of witnesses. In his letter of 28 February 2012, the Counsel writes that he is aware of the fact that should his requests be honoured, this would have as a consequence that the actual trial could not commence earlier than September or October of that year. This judgement shows a total lack of sense of reality. As from 5 September 2010 up to the present, the Examining Judge has interviewed 53 witnesses; of these examinations 49 have been concluded. Honouring all Counsel’s requests would mean that it would not have been possible to start the actual trial before the autumn of 2013.

43. During the hearing of 17 January 2012, the Defence requested the examination of six witnesses in court, i.e. four witnesses for the Defence and two witnesses for the prosecution. In the above mentioned letter of 28 February 2012, the Defence requested to hear fifteen witnesses in court. During the hearing of 23 July 2012, the Defence amended her request once more. That request was to hear ten witnesses in court, five for the prosecution and five for the Defence. The Prosecution decided to dismiss these requests and motivated her decision as follows. During that hearing, the Court put first that Dutch Law of Criminal Procedure is applicable and that the request should be judged according to Dutch standards and the standards of the European Court of Human Rights. The Court observed that the examinations by the Examining Judge had been very comprehensive, that he had been very careful in his reports about the examinations and that practically no questions had been barred from being asked. On this basis the Court decided that it was of no interest to the Defence to hear the witnesses in court. There has been no proof of any official necessity to actually hear witnesses in court.

44. On many occasions the Defence requested that the pre-trial detention of the defendant be lifted or suspended and every time, the Prosecution resisted. On each occasion, the Court confirmed that there were serious objections to that request and solid grounds for the (continuation of) the pre-trial detention. On 18 June 2012 – two years after the arrest of the defendant – the Court suspended defendant’s pre-trial detention for reasons of her personal circumstances and in particular because of the long duration of the pre-trial detention.

The suspension was granted until 22 October 2012, which at the time was the estimated start of the actual trial. The usual conditions had been attached to the suspension, including the condition that the defendant would hand over her travel documents and that she would report to the local police every week.

The actual trial

45. The actual trial took place on 22, 23, 25, 26, 29 and 30 October 2012, 1, 2, 12, 15, 16, 26, 27 and 29 November 2012, 6, 7, 11, 14 and 20 December 2012. On 1 March 2013, the preliminary inquiry was formally concluded.

46. At the start of the trial, the Defence argued that the Prosecution should be barred because it had omitted to timely add a judgement of the Court of First Instance in Kigali on 8 August 2003 to the criminal file. By this omission, the Defence argued, the Prosecution had violated the principles of due process and the interests of the defendant irreparably.

47. The Court declared this argument to be unfounded. It came to the conclusion that in this case the Prosecution had not acted in violation of the fundamental principles of due process and that the interests of the defendant had not been violated irreparably.

48. On 23 October 2012, the Defence advised the Court of various investigative requests. This involved (partly) repeated requests at the address of the Examining Judge to hear the witness [witness 14], and to hear five witnesses –two for the prosecution and three for the defence- and the expert in Court. On 25 October 2012, the Court decided on this request.

49. The Court turned down the request to hear expert Guichaoua in court. The Court concluded that the Defence had had ample time, after the written question round, to put questions to the expert before the Examining Judge, and at that occasion had made the choice not to raise any question whatsoever regarding the subject about which the Defence intended to question the expert during the hearing.

50. With respect to hearing witnesses in court, the Court decided that [witness 6] would be heard during the hearing. The Court recognised the ‘extra value’, from the viewpoint of truth finding, of hearing this witness in court, who had made very incriminating statements with regard to the defendant at an earlier stage. As far as the witness was concerned [witness 1], –who had also rendered very incriminating statements about the defendant-, the Court considered his health to be a hindrance to being examined in court. However, a request was submitted to the Examining Judge again to determine, in consultation with the Swiss authorities, whether it would be possible to continue the examination of this witness which had been broken off in January 2012. The requests to take evidence from the other witnesses were rejected. On 15 and 16 November 2012, [witness 6] was heard in Court. On 23 November 2012, [witness 1] was heard by the Examining Judge by way of a video conference.

51. The Court rejected the request to have [witness 14] examined and motivated its decision. Subsequently, the Defence requested the Court to reconsider this decision. After the Court had explained once more (in more detail) why it persisted in its rejection, the Defence challenged the Court, whereupon the Challenge Section of the Court rejected this challenge.

52. On 23 October 2012, the defendant answered the Court’s questions. She did this in French. However, during the hearing on 26 October 2012, she advised the Court that from that moment onwards, she intended to invoke her right to remain silent. When the Court asked the defendant what had changed her course of action towards the proceedings, she answered that the judgement taken by the Court on 25 October 2012 had been the cause.

53. The Court extended the suspension of her pre-trial detention until 20 December 2012, which, at the time, was the intended date for the last word. It should be noted here that during the hearing of 1 November 2012, the Prosecution had demanded the termination of the suspension, because on 23 October 2012, the defendant had given an interview to NOS-television. The Court rejected this demand but added as an extra condition to the suspension that the defendant should refrain from making any statements to the media about her criminal case. On 20 December 2012, the Defence requested the continuation of the suspension of the pre-trial detention until the date of the judgement. The Court rejected this request since in the mean time, the date of the Court’s judgement had become known.

54. [ witness 6] joined these proceedings as an aggrieved party. She submitted a claim for immaterial damage as a consequence of the charges outlined under counts 2 and 6 in the indictment. The aggrieved party appeared in Court to clarify her claim and she was represented by her lawyer, mr. F.P. Holthuis. As a victim of the above mentioned facts, [witness 6] also used her right of speech.

5 RWANDA

Introduction

1. The charges against the defendant and the decisions by the Court cannot be understood without knowledge of the political situation in Rwanda during the period from 1 October 1990 until mid July 1994. Therefore, in this chapter, the Court will render a brief explanation about that situation. In this respect, the Court’s information is based on publicly accessible sources which, as documents, form part of this criminal file as well as on a report drawn up by the expert appointed in this case, Mr. Guichaoua45 and his answers to questions which were put to him about the subject.46 The Court will limit itself to what is considered to be indispensable for a proper assessment of the (context of) the charges against the defendant.

The period up to 1 October 1990

2. In its first judgement (in the Akayesu-case), the Trial Chamber of the Rwanda Tribunal rendered a detailed explanation of the history of Rwanda.47 Below, the Court will quote (parts of) paragraphs from this judgement about the colonial period and the process of decolonisation, focussing on the relation between the different population groups.

“80. Prior to and during colonial rule, first, under Germany, from about 1897, and then under Belgium which, after driving out Germany in 1917, was given a mandate by the League of Nations to administer it, Rwanda was a complex and an advanced monarchy. The monarch ruled the country through his official representatives drawn from the Tutsi nobility. Thus, there emerged a highly sophisticated political culture which enabled the king to communicate with the people.

81. Rwanda then, admittedly, had some eighteen clans defined primarily along lines of kinship. The terms Hutu and Tutsi were already in use but referred to individuals rather than to groups. In those days, the distinction between the Hutu and Tutsi was based on lineage rather than ethnicity. Indeed, the demarcation line was blurred: one could move from one status to another, as one became rich or poor, or even through marriage.

81. Both German and Belgian colonial authorities, if only at the outset as far as the latter are concerned, relied on an elite essentially composed of people who referred to themselves as Tutsis, a choice which, according to Dr. Alison Desforges, was born of racial or even racist considerations. In the minds of the colonizers, the Tutsi looked more like them, because of their height and colour, and were, therefore, more intelligent and better equipped to govern.

81. In the early 1930s, Belgian authorities introduced a permanent distinction by dividing the population into three groups which they called ethnic groups, with the Hutu representing about 84% of the population, while the Tutsi (about 15%) and Twa (about 1%) accounted for the rest. In line with this division, it became mandatory for every Rwandan to carry an identity card mentioning his or her ethnicity. The Chamber notes that the reference to ethnic background on identity cards was maintained, even after Rwanda's independence and was, at last, abolished only after the tragic events the country experienced in 1994.

81. From the late 1940s, at the dawn of the decolonization process, the Tutsi became aware of the benefits they could derive from the privileged status conferred on them by the Belgian colonizers and the Catholic church. They then attempted to free themselves somehow from Belgian political stewardship and to emancipate the Rwandan society from the grip of the Catholic church. The desire for independence shown by the Tutsi elite certainly caused both the Belgians and the church to shift their alliances from the Tutsi to the Hutu, a shift rendered more radical by the change in the church's philosophy after the second world war, with the arrival of young priests from a more democratic and egalitarian trend of Christianity, who sought to develop political awareness among the Tutsi-dominated Hutu majority.

81. In1956, in accordance with the directives of the United Nations Trusteeship Council, Belgium organized elections on the basis of universal suffrage in order to choose new members of local organs, such as the grassroots representative Councils. With the electorate voting on strictly ethnic lines, the Hutu of course obtained an overwhelming majority and thereby became aware of their political strength. The Tutsi, who were hoping to achieve independence while still holding the reins of power, came to the realization that universal suffrage meant the end of their supremacy; hence, confrontation with the Hutu became inevitable.

81. Around 1957, the first political parties were formed and, as could be expected, they were ethnically rather than ideologically based. (...)"

81. In November 1959 political tension ran high and the first eruption of ethnic violence was a fact. Hundreds of Tutsis died and many thousands of Tutsis fled to the surrounding countries. The disruptions resulted in the end of the Tutsi-monarchy and the proclamation of (First) Republic by Grégoire Kayibanda, leader of the Mouvement Démocratique Républicain Parmehutu (hereafter: MDR Parmehutu), by far the largest political party, who (literally) defined itself as a movement exclusively by and for Hutus. On 1 July 1962, Rwanda officially became independent and Kayibanda became president.

4. The first years of this FirstRepublic were also marked by ethnic violence, with the victims primarily being Tutsis. The MDR Parmehutu-regime considered domination by the Hutus, the “majority population” (rubanda nyamwinshi) which after all accounted for 85% of the population, equivalent to democracy and preached an aggressive and exclusive Hutu-solidarity.48 During those years, Tutsi-refugees regularly carried out small-scale guerrilla attacks in Rwanda. Every time this would lead to acts of retaliation against the Tutsi-population, most of the time encouraged by the authorities and/or executed by Rwandese army units. Once again, this violence drove thousands of Tutsis in exile. In this cycle of violence, flight and armed attacks, during the years between 1961 and 1967 approximately 20.000 Tutsis were killed and about 300.000 Tutsis fled to the neighbouring countries. The local usage among Hutus to call the Tutsi-invaders "inyenzi", cockroaches, stems from this period.49 Also at that time, Hutu-authorities started to accuse Tutsis living in Rwanda of being accomplices ("ibyitso") of these invaders.50 In 1972-1973, a new period of serious ethnic violence against Tutsis followed, resulting again in large numbers fleeing to the neighbouring countries.51

5. These developments in Rwanda –and those thereafter- cannot be seen separately from those in neighbouring country Burundi, in the words of the OAU-report: “Its partner on a deadly seesaw”.52 Burundi had also known a colonial administration; first Germany and then Belgium. In Burundi as well, the population consisted for about 85% of Hutus and for 15 % of Tutsis. And Burundi also became independent in 1962.53 However, different from Rwanda, in Burundi the Tutsi-minority remained in power. Repeatedly recurring eruptions of ethnic violence resulted in the death of thousands of victims. The OAU-report summarises the developments in Burundi as follows:

“Since 1962, Burundi's Tutsi minority has dominated successive governments, the army and other security forces, the judiciary, the educational system, the news media, and the business world. In Rwanda, such domination was seen to legitimize the country's own rigid quota system. In Burundi, it has led to a state of almost permanent conflict. The decades-long struggle for power between the elites of the two groups has led to the deaths of hundreds of thousands of Burundians, most of them civilians. Repeated Hutu challenges to Tutsi domination have been followed each time by vicious reprisals by the Tutsi army and police against Hutu civilians that were invariably disproportionate to the original provocation. In the years between independence and the genocide in Rwanda, no fewer than seven giant waves of killings occurred in Burundi: in 1965, 1969, 1972, 1988, 1991, 1992, and 1993.”54

And about the interaction between the developments in both countries, the report mentions:

“Victimization of the Tutsi in one country was first aggravated by, and then used to justify, persecution of the Hutu in the other country and vice versa. Each act of repression in the one state became the pretext for a renewed round of killing in the other. Such retaliation was fuelled by the constant refugee movements across the shared border, the inflammatory tales told by all who fled, and the eagerness felt by many of them to join in any attempts to wreak revenge from their new refuge. Perhaps refugees were also emboldened by yet another perverse, common characteristic of the two nations: in both countries, massacres by governments went largely unpunished, and a pervasive culture of impunity began to complement the growing culture of violence that was emerging.”55

6. Mainly regional differences within the Hutu elite, would lead to the downfall of the Kayabanda regime in Rwanda in 1973. General Juvénal Habyarimana, Chief of Staff of the Rwandese army, took power and proclaimed the SecondRepublic. In 1975, he founded the Mouvement Révolutionnaire National pour le Développement (MRND), a party to which every Rwandese belonged from birth.56 A number of years later, Rwanda also officially became a one-party state. The Habyarimana regime ended the ethnic violence, but not the policy of systematic discrimination against the Tutsis57 and it continued not to allow Tutsi-exiles to return to Rwanda. The OAU-report characterises the first twelve years of this regime as “a harsh military dictatorship based on open ethnic exclusion”58, which however enjoyed a excellent reputation in the world, at the World Bank, donor countries and also the NGOs.59 Many a foreigner praised Rwanda as ‘the Switzerland of Africa’: peaceful, stable, hardworking and reliable"60; a country which, especially because of high world market prices of the most important export products such as coffee, tea and tin, and considerable foreign support, booked enormous economic progress and demonstrated favourable social development.61 Nevertheless, even during those years, Rwanda remained a very poor and overpopulated country, one of the least developed countries in the world.62

7. From 1985, the economical and political situation deteriorated considerably. In an economic sense especially because of a combination of bad crops and a sudden, strong decrease of the world market price of coffee which accounted for more than 75% of the income from exports. Thus state income decreased dramatically, which lead to draconic cuts that badly hit the population.63 A particularly dire problem was the increasing shortage of agricultural land and an ever growing false distribution of it.64 Poverty and inequality were increasing. At the beginning of the nineteen nineties, half of the Rwandese population was extremely poor, i.e. not able to feed themselves properly, 40% were considered poor, nine percent as 'not-poor' and one percent as very rich.65 Discontent among the population was fed by the widespread corruption and shameless self-enrichment by the political elite. An example of this is the so-called GBK-project.66 The core of the political elite consisted of a small circle around the president and his wife Agathe Kanziga, most of the time referred to as "le Clan de Madame" or the akazu ('the small house'). This akazu exercised the actual power in the state and used this power for their own gain and for the benefit of a limited clientele of privileged people, mainly from the North of Rwanda (the prefectures Gisenyi, Ruhengeri and Byumba), people from the home region of the president and his wife who, in exchange, supported the president. Privileging the Hutus from the North (bakiga) met growing resistance from Hutus from the other regions. Thus, in deteriorating economic circumstances, Habyarimana’s regime was increasingly confronted with dissatisfaction under the population and opposition from dissident Hutus.67

8. In the meantime, the (descendants of) Rwandese exiles (mainly Tutsis) in Kenya and especially in Uganda, had founded the Rwandan Patriotic Front (hereafter: RPF) in December 1987. The objectives of the Front, a political organisation with a military wing, were to secure the rights of all Tutsi-exiles, a number that had grown to approximately 600,000 persons,68 so they could return to Rwanda, and the termination of the one-party regime of Habyarimana.69 On 1 October 1990, a few thousand RPF-soldiers invaded (the north eastern part of) Rwanda, from Uganda. The attack was successfully countered by the Rwandese government army (Forces Armées du Rwanda, hereafter FAR) and the RPF did not succeed (until 6 April 1994) in conquering a large part of Rwandese territory permanently. Nevertheless, it is beyond dispute, that this invasion should be regarded as, in the words of the OAU-report, ‘one of the key defining moments in Rwandan history’70 and ‘the single most important factor in escalating the political polarization in Rwanda’.71

The Period between 1 October 1990 and 6 April 1994

9. Together with the cynical anti-Tutsi propaganda spread by the government, the invasion by the RPF, which was accompanied by crimes against the civilian population, generated a large stream of refugees of mainly Hutus from the war areas in the north towards the centre of the country. Shortly after 1 October 1990, there were approximately 300,000 refugees.72 After a large scale attack by the RPF in February 1993, the number of domestic refugees increased to about 1 million. This meant that approximately one out of seven Rwandese had left his or her home (and country) because of the war. For the largest part, these refugees were sheltered in overcrowded, provisional refugee camps. The circumstances in those camps were utterly pitiful.73 Moreover, the war caused food shortage and, as a result, a strong increase of food prices.74 Another consequence of the war was the militarisation of society. Within a couple of years, the FAR grew from some thousands to 40,000 soldiers and the share of military expenses in budget increased to almost 70%.75

1. The OAU-report describes how the invasion lent credibility to the ethnic strategy of the regime which was based on the retention of power.76

“The invasion gave an ethnic strategy immediate credibility. The carefully inculcated fears about Tutsi conspiracies - fears about alleged plots to regain control of the republic and launch merciless attacks on all Hutu - that had been dormant for so many years were deliberately revived. The nation was reminded that the Tutsi were, from the first, the “other”; they were all alien invaders. Was is therefore not self-evident that all Tutsi were accomplices of the invaders? Any question of class or geographical division among Hutu had to be submerged in a common front against the devilish intruders. It was not difficult for the government to exploit its own failures in order to rally the majority behind them. In a country where so many had so little land, it took little ingenuity to convince Hutu peasants that the newcomers would reclaim lands they had left long before and on which Hutu farmers had immediately settled.”77

1. In June 1991, President Habyarimana, confronted with the war with the RPF, growing political dissatisfaction, further economic deterioration and heavy international pressure –from a military standpoint, Rwanda depended on France and from an economic standpoint Rwanda depended on various donor countries – was forced to allow the foundation of other political parties and to initiate peace negotiations with the RPF. The first parties that were officially registered, were the Mouvement Démocratique Républicain (MDR), the Parti Social Démocrate (PSD), the Parti Libéral (PL) and the Parti Démocrate Chrétien (PDC).78 Later, more parties were founded and officially registered, including, in February 1992, the Coalition pour la Défense de la République (CDR). The RPF was not registered as a political party. In April 1992, a government was put together consisting of the MRND (in the meantime named: Mouvement Révolutionnaire National pour la Démocratie et le Développement (MRNDD)), MDR, PSD, PL and PDC. With nine ministerial posts, the MRND(D) was the biggest party in this coalition, but formed a minority: the MDR got three ministerial posts, including premiership, the PSD and the PL each got three posts and the PDC one.79 From June 1992, this new government conducted negotiations with the RPF in Arusha (Tanzania) about a peace settlement and a new distribution of power in Rwanda. In July 1992, a cease fire was negotiated; in October 1992, a protocol was signed about the formation of a broad transitional government and a transitional parliament which would include the RPF. President Habyarimana forcibly accepted this settlement without having the intention to execute it. The political landscape was governed by (the relations between) three blocks: the group surrounding Habyarimana, the former opposition parties and the RPF.80

1. The ‘Habyarimana block’ was formed by the MRND(D), which was part of the government, and the CDR, which remained excluded from the government. Both parties collaborated in the Alliance pour le Renforcement de la Démocratie (ARD).81 In the OAU-report the CDR is type-cast as a radical anti-Tutsi-group, which included many members who were, even to Rwandese standards, extremists.82 Prof. Guichaoua regarded the CDR as a party which primarily was at the service of the defence of the achievements of the northern elite.83 He wrote: The CDR enforced the conservative wing of the MRND(D), for whom it served as a stimulus and internal coercive measure.84 As one of its priorities, he mentioned the capitalisation of the increasing hostilities of the population versus the RPF.85 One of the distinctive characteristics of the CDR was its ethnic activism.86 Soon after its foundation, the CDR turned into an extremist party that used coercion and violence.87 Expert Guichaoua also mentioned that it was only natural that the CDR acted as the spokesman for the extremist officers of the FAR.

1. In its judgement in the Media Trial, the Trial-Chamber of the Rwanda Tribunal elaborately described and analysed the organisation, the ideology, the viewpoints and practices of the CDR.88 The Chamber came to the following conclusions:

(i) The CDR was a party exclusively of and for Hutus. Its purpose was the promotion of unity and solidarity among Hutus and the representation of the political interests of this majority group;89

(ii) For the CDR, political interests and belonging to an ethnic Group were one and the same thing;90

(iii) The CDR viewed the RPF as the representatives of the political interests of the Tutsis;91

(iv) The CDR considered the RPF, i.e. the Tutsis, as the enemies of the Hutus ;92

(v) The CDR stimulated the use of violence against Tutsis. This was demonstrated in November 1993, when they called on the Hutu-population ‘to neutralise its enemies and accomplices’ (read: the Tutsis) ‘with all possible means’;93

(vi) During the CDR mass-gatherings, the party encouraged its followers to kill Tutsis, which was demonstrated by the singing of the 'Tubatsembesembe' song, which means 'Let us exterminate them'; after these meetings, participants regularly followed these advices and actually used violence against Tutsis.94

1. The newly formed political parties tried to acquire as many followers as possible among the population. Parties made propaganda and held meetings. Often, these gatherings were adorned by song and dance, comparable with the ‘animations’ which had taken place during meetings of the MRND prior to the introduction of the multiple-party system.95 Rwanda did not have a democratic culture, the political climate was strongly polarised and in a process that became known as kubohoza (‘helping to liberate’), parties proceeded to win followers by using rewards as well of threats and violence. Party-activists disrupted meetings held by rival parties and threatened or molested their followers. Violence became a ‘normal’ means to reach political goals. Most of the time, the authorities did not react (adequately), which resulted in politically motivated violence becoming widespread.96 In this, the parties’ youngsters - the Interahamwe (‘those who stand/attack together’) from the MRND, the Impuzamugambi (‘those who have the same/one goal’) from the CDR, the Inkuba (‘Thunder’) from the MDR and the Abakombozi (‘Liberators’) from the PSD – played an important role.97 Especially the Interahamwe and the Impuzamugambi were infamous.98 The members of these groups were mainly found among poor youngsters without land or jobs, without any prospects to build a proper existence.99 According to the OAU-report, they were the 'made-to-order recruits for possible violence' for those parties who would be able to draft them first.100

1. From 1992, the army, fully controlled by Hutu-extremists, gave military training to the Interahamwe and Impuzamugambi, and distributed weapons and ammunition among those groups. That way, the Interahamwe and Impuzamugambi became armed militia which could be deployed against political foes (moderate Hutus) and Tutsi-civilians.101

1. On 8 February 1993, the RPF violated the armistice agreed upon in July 1992 with a large scale attack on the entire northern front. It has already been mentioned (see paragraph 9) that the numbers of displaced persons increased to about 1 million. The attack gave fuel to the already existing distrust of many Hutus towards the RPF and the Tutsi-population group. The former opposition parties felt betrayed by the RPF and the support to the Arusha-peace process decreased.102

1. After the RPF had accepted a new cease-fire and had withdrawn its troops to the original positions, under heavy international pressure the peace negotiations in Arusha were resumed. On 4 August 1993, a final agreement was signed. It included agreements concerning important issues such as the repatriation of refugees, the partial demobilisation and integration of the armed forces of the FAR and the RPF, the formation of a broader transitional government of the MRND(D), the former opposition parties and the RPF, the stationing of an RPF-battalion in Kigali and the posting of a UN-peace keeping force (UNAMIR).103 These agreements, forced upon Habyarimana, met fierce resistance from the akazu – for whom the implementation of the agreements would mean loss of power – and the CDR.

1. On 23 October 1993, Hutu-president Melchior Ndandaye, who had just been democratically elected, was killed in Burundi by Tutsi soldiers in the Burundi army. In the ensuing massacres, an estimated 50,000 Burundians, Hutus as well as Tutsis, were killed and almost 1 million Hutus fled the country, many of them to Rwanda. Once again, these events confirmed and strengthened the fear among the Rwandese Hutus for the (domination by) Tutsis, which fear would be utilised entirely by the opponents of the distribution of power with the RPF as agreed upon in Arusha. In a joint statement, President Habyarimana's own MRND(D) and the CDR denounced the Arusha-agreements as ‘betrayal’.104

1. The attack on 8 February 1993, the Arusha-agreements and the murder of Ndandaye all contributed to the increasing political polarisation. The former opposition parties fell apart into moderate and Hutu Power-factions, with the latter ranking themselves to the side of the MRND(D) and the CDR. Once again, the ethnic contrast (Hutu versus Tutsi) became overpowering. 105

20. There is a great amount of evidence to prove that as from 1990 Hutu-extremists continuously and systematically instilled hatred against their Tutsi countrymen among the Hutu-population.106 Again the Court will quote from the OAU-report:

“A constant barrage of virulent anti-Tutsi hate propaganda began to fill the air. It was designed to be inescapable, and it succeeded. From political rallies, government speeches, newspapers, and a flashy, new radio station, poured vicious, pornographic, inflammatory rhetoric designed to demonize and dehumanize all Tutsi. With the active participation of well-known Hutu insiders, some of them at the university, new media were founded that dramatically escalated the level of anti-Tutsi demagoguery.”107

21. Publications in the Kangura newspaper were notorious. In December 1990, an article appeared titled “A Call on the Hutu Conscience”. The article opened with the theory that the Tutsi-extremists (i.e. the RPF) who had attacked Rwanda in October relied on the support of the “infiltrators in the country and the complicity of Tutsis in the country”. Subsequently, the Tutsis were depicted as bloodthirsty and power hungry and Hutus were called to be firm and vigilant against the Tutsi-enemy “who is amongst us and waiting for the right moment to decimate us”.108 The article closed with the “Ten Commandments for Hutus”, in which Hutus were called not to have mercy on Tutsis anymore. Also in later articles in the Kangura the (read: all) Tutsis were depicted as “inyenzi” (cockroaches), “inkotanyi” (members of the RPF), “ibyitso” (accomplices); enemies against whom every Hutu should defend himself without showing any mercy.109

22. From mid 1993, the same messages were propagated in broadcasts of the very popular radio station Radio-Télévision Libre des Milles Collines (RTLM). This radio station was set up by Hutu-extremists who, for the largest part, originated from the three northern prefectures in Rwanda. One of the prominent sponsors was Félicien Kabuga, whose daughter was married to one of the sons of President Habyarimana.110 In its judgement in the Media-trial, the Trial Chamber of the Rwanda Tribunal determined the following111 (486-488): “RTLM broadcasts engaged in ethnic stereotyping in a manner that promoted contempt and hatred for the Tutsi population. RTLM broadcast called on listeners to seek out and take up arms against the enemy. The enemy was identified as the RPF, the Inkontany, the Inyenzi, and their accomplices, all of whom were effectively equated with the Tutsi ethnic group by the broadcasts.”

23. The same message was propagated during party meetings of the CDR and the MRND(D), where music, dance and beer inflamed the audience.112 In one of the speeches held by the Vice-President of the MRND, Léon Mugesera, (kept on record) before party militants on 22 November 1992, one can hear him say the following:

“And what are we going to do about all these accomplices (ibyitso) who send their children here to the RPF? What are we waiting for? Why don’t we get rid of these families? (...) We have to take our responsibility and exterminate this scum ... The fatal mistake that we made back in 1959 was to let them (the Tutsis) get away ... They belong in Ethiopia and we know the short way back for them; let’s throw them in the Nyabarongo River ... I stress this point; we need to act ... Exterminate them all!”113

24. A remarkable element in the anti-Tutsi-propaganda was the ongoing warning to Hutu-men not to succumb to the temptations of Tutsi-women. Tutsi-women, as the warning said, were the secret sexual weapon deployed by the inkotanyi to recapture Rwanda. And according to the first of the “Ten Commandments” referred to above, every man who married a Tutsi-woman, made her his concubine or hired her as a secretary, was a traitor.114

25. In the Media-trial, the Trail Chamber of the Rwanda Tribunal established that from 1 October 1990 and within the scope of a campaign in which the Tutsi-population was depicted as RPF-accomplices, regular violent attacks took place on Tutsi-civilians RPF.115 Dr. Alison des Forges describes seventeen violent incidents organised by local authorities during the years 1990-1993, in which a total of more than 2000 Tutsis and dozens of Hutus died and she calls these “rehearsals for the catastrophe to come”. No authoritative figure or civilian has ever been convicted for one of those incidents.116 About these massacres, the OAU-report mentions the following:

“On virtually each occasion, they were carefully organized. On each occasion, scores of Tutsi were slaughtered by mobs and militiamen associated with different political parties, sometimes with the involvement of the police and army, incited by the media, directed by local government officials, and encouraged by some national politicians.”117

26. At the initiative of Rwandese human-rights organisations, and ‘International Fact-Finding Commission’ was formed which, in January 1993, conducted an investigation in Rwanda into the violations of human rights since 1 October 1990.118 In its report, the commission described the Tutsi massacres mentioned above (paragraph 25), the widespread terror by the militias, in particular the interahamwe, the paralysis of the judiciary and the violations of human rights by the FAR and the RPF. They concluded that the human rights violations by the RwandeseState were massive and systematic and that the President and the circle around him were responsible for the massacres among Tutsis. In a press release, written by Prof. Schabas, these massacres were called genocidal acts in the meaning of international law.119

27. On 11 August 1993, after a brief mission to Rwanda, the United Nations Special Reporter on summary, arbitrary and extrajudicial executions B.W. Ndiaye published a report about the violations of human rights. His findings included the following:

27. after detailed investigation, the contents of the report by the Fact-Finding Commission may be confirmed for the most part;

27. the MRND and CDR militias are often guilty of threatening and killing human rights activists and opponents of the regime, they stimulate ethnic violence against Tutsis and they cause massacres among the civilian population. While doing this, these militias, oftentimes well armed and trained by soldiers, did not encounter any obstacles whatsoever.

27. for the most part, the victims of these massacres were Tutsis who were attacked exclusively on the basis of their ethnicity; therefore, it could very well be that we are dealing here with (participation in) genocide and/or the incitement thereof.120

28. After repeated delay, the installation of the broad transitional government as agreed upon in Arusha, which would also include the RPF, was planned on 22 February 1994. The day before, Félicien Gatabazi, Chairman of the PSD and Minister of Public Works, was killed in Kigali, a murder which was attributed to (followers of) the CDR. The day after, in the Butare prefecture, the home region of Gatabazi, the Chairman of the CDR, Martin Bucyana, was killed, it is assumed by followers of the PSD. This heralded a new wave of unrest and (ethnic) violence, and yet again, the installation of the broad transitional government had to be postponed.121 In chapter 14, the Court will elaborate on the eruption of violence in Gikondo, the district in Kigali where, at the time, both Bucyana and the defendant lived.

6 April 1994 -mid July 1994

29. Early April 1994, the Arusha-agreements had still not been implemented and President Habyarimana – his country ravaged by political violence and economically on the verge of bankruptcy 122 – was under heavy international pressure to implement them as yet. On 6 April 1994, he travelled to Dar es Salaam (Tanzania) for a meeting about this issue with the heads of state of the surrounding countries. When that same night he returned home his plane that had just started the landing on the airport of Kigali was shot down by a rocket that had been fired from the ground. The plane crashed on the grounds of his presidential palace. All passengers, including President Ntaryamira of Burundi and a number of important staff members of President Habyarimana perished. Until the present day, it has not been discovered who was responsible for shooting down his airplane.123

29. This was the signal to start the mass murders of Tutsis and moderate Hutus, and a resumption of the fight between the RPF and the FAR. Both came to an end when, in mid July, the RPF definitively broke the resistance of the FAR, the interim government of radical Hutus fled the country and the RPF announced a cease-fire. The civil war, started on 1 October 1990, ended in a total victory for the RPF.

31. Between 6 April and mid July 1994, hundreds of thousands of Rwandese were killed in Rwanda. Estimates by experts of the number of victims vary; most of them arrive at between 600,000 and (most probably) 800,000 deaths 124, approximately 10% of the entire population. The vast majority of the victims belonged to the Tutsi-population group. It is estimated that during this period, 75% of the Rwandese Tutsis were killed. As established undisputedly in many (scientific) publications and pronounced by the Rwanda Tribunal in a large number of judgements, these mass murders were executed with the intent to exterminate the Tutsi-population as such. Therefore, there cannot be any doubt that during those months in 1994, a genocide took place in Rwanda. In the words of the Appeals Chamber of the Rwanda Tribunal125: “The fact of the Rwandan genocide is part of world history, a fact as certain as any other, a classic instance of a ‘fact of common knowledge’.”

6 THE DEFENDANT

1. The defendant was born in Kinoni on 8 February 1947, préfecture Ruhengeri, as the daughter of [name mother] and [name father]. The defendant was the youngest child in a family of six children, three boys and three girls. Two of her brothers and her father died when the defendant was still young. The family was well-to-do and Hutu.

2. The defendant went to elementary school in Kinoni and for her secondary education she went to boarding schools in Mubuga, Nyundo, Rwaza and Muramba. In 1966, she finished her training as a school teacher.

3. From 1966 until her marriage in 1968, she worked as a school teacher in Kinoni. Subsequently, she worked as a civil servant at the Ministry of Finance and Economic Affairs. From around 1982 up to and including 1994, she worked at the Ministry of Agriculture for the GBK dairy project.126 She was in charge of the sales point in Kigali.

4. On 10 February 1968, the defendant married [X, husband of defendant], also a Hutu and from a rich family. [X, husband of defendant] originated from Nkuli, préfecture Ruhengeri, went to university in Canada (among others) and from 1983 until 1994 he was a member of parliament for the MRND. The couple had seven children, one of whom died as a baby.127

5. From 1970, the defendant and her family lived in the Gikondo district in Kigali. In the nineteen eighties, the family moved into a large, new house, next to Martin Bucyana’s house. The Basebya family and the Bucyana family were close friends.

6. The defendant and her family enjoyed great respect in the district, as stated by the defendant herself during the hearing. She and her husband came from renowned families and both were highly educated. They were well-to-do. In her district, the defendant was commonly known as ‘madame deputé' and as someone with ‘autorité morale’. By former local residents –friend or foe- she has been described as a woman with a lot of energy and with a strong personality. As one of the witnesses remarked, she ‘would not pass by unnoticed’.

7. The defendant would faithfully go to church and she was a member of the choir at the PallottiChurch.

8. The family fled Kigali in mid April 1994. Until July 1994, they stayed in Gisenyi. After that, they moved to Goma and Uvira in former Zaire. At the end of 1994, the family travelled to Kenya via Tanzania.

9. In December 1997, [X, husband of defendant] left Kenya and applied for asylum in the Netherlands. On 25 March 1998, he was admitted as a refugee. On 6 October 1998, the defendant and two of their children arrived in the Netherlands to be joined with him. They lived in Reuver in the province of Limburg. At a later stage, two other children joined them in the Netherlands. On 7 December 2004, the defendant and her husband received the Dutch nationality.

1. In Reuver, the defendant worked as a volunteer in the parish and as a cleaner in the church. She also sang in the choir.

1. From wiretapped conversations and documents seized in the house of the defendant it appeared that until her arrest, she kept in touch with people who are known to be Hutu-extremists, including Léon Mugesera128, Agathe Kanziga, President Habyarimana’s widow129, [VVI]130, [VVJ]131 and [VVK]132.

7 THE LIVING ENVIRONMENT OF THE DEFENDANT

1. In the indicted period, the defendant lived in Gikondo. At the time, Gikondo was a secteur of the commune (municipality) Kicukiro in the préfecture Ville de Kigali. The sectors were then divided into cellules. In spite of extensive investigation, the Examining Judge has not been able to determine with absolute certainty which cellules belonged to the secteur Gikondo in 1994.133

2. The file contains a digital presentation of the Gikondo sector. Different locations and houses have been measured, recorded and visualised. Photographs, including air photos of the sector are available. The photos clearly show that the sector in which the defendant lived, was densely populated. In particular the houses on the opposite side of the street of the defendant’s house, are built closely together. The houses are tightly together with small annexes. The alleys in between are narrow, twisted, often rather steep and uneven. Everywhere in the sector there are big height differences. The defendant’s house was situated higher than the houses on the opposite side of the street. The alley on the opposite side of the houses in which witnesses [witness 5] and [witness 6] lived, went down steeply.

3. During the hearing, the defendant stated that the construction of her family house started in the nineteen eighties. It was a large, attractive house with many rooms. An annex had been built at the right side of the house for the domestic staff. In the meantime, the house has been demolished. The Court only has one video-recording of a reception at the house on the occasion of the daughter’s wedding [daughter 1], on 19 February 1994. In that video one can see that the house contained a veranda, a few steps higher than the yard in front of it. The compound had been separated from the street by a long wall, largely made from brick stones; then came a big entrance gate, then some more brick walls and then a so-called imiyenzi (a firm but flexible plant that is often used in Rwanda to serve as a separation wall).

4. The Bucyana family lived next to the defendant, also in a big house on a large compound. Between the two houses there was a bar/boutique, in the file mostly referred to as ‘Roger’s (Bucyana) bar’. On the other side of Bucyana’s house, in the direction of the current round-about, lived the Sefara family, also in a big house. Witnesses [witness 15] and his wife [witness 16], and [witness 17] and her god-child [witness 18] were living in houses located behind the defendant’s compound.

5. On the opposite side of the street there were the homes of [witness 1] and his wife [witness 2], [witness 5] and his wife [victim C], [witness 6] and her husband[victim F, husband of witness 6], [witness 7] and her husband [P], [witness 8] and [Q], [R] and [S].

6. At the end of the street where the defendant lived, diagonally opposite her house, there was the market. It was situated a bit lower than the street. At the other end of the street, shortly behind the current round-about, there was the PallottiChurch.

7. Expert Prof. Guichaoua has described Gikondo as a strategically favourable sector because of its situation and the commercial and industrial activities. Gikondo had a heterogeneous population. Hutus and Tutsis mixed with each other. In socio/economic regard, the sector was populated with some notables, salaried people (low/high educated), small shopkeepers, craftsmen, market vendors and, at the lowest step of the social ladder, the so-called abakarani. Abakarani is the Kinyarwanda word for porters and carriers. These were the disadvantaged youngsters who made a few francs with their porter’s jobs.

8. Prof. Guichaoua also described Gikondo as a sector which was interesting in political regard since many prominent members of the extremist pro-Hutu movement lived there. Besides Martin Bucyana, chairman of the CDR, those were [victim B], 2nd vice-chairman of the CDR, Gaspard Gahigi, RTLM’s editor in chief, Jean Sefara, an MRND negotiator, Séraphin Twahirwa, cousin of President Habyarimana and Jean Ntawutagiripfa a.k.a. Congolais.134 Others who lived in the sector were [T], a CDR-leader in the Sgeem cellule, [U], a local representative of the CDR and [V], a former soldier, 'responsable' of the Mburabuturo cellule.

9. From 1992, according to Prof. Guichaoua, the Interahamwe and Impuzamugambi laid their hands on the Gikondo sector. First, regular tension arose between both youth movements, but soon the ideological choices hardly compensated for the possibilities of crime and impunity offered to the unemployed youngsters.135 During the political radicalisation in the last months of 1993, Gikondo became the focus of the political activism of the MRND and CDR, especially because of the prevalence of their youth movements becoming increasingly stronger. Actually, the MRND and CDR had a monopoly in this sector of the capital.136

1. As an enclosure to his report, Prof. Guichaoua added a letter of 15 July 1992, from Chief Public Prosecutor François-Xavier Nsanzuwera, addressed to the Procurator-General at the Court in Kigali, in which Nsanzuwera reports about the riots in the Gikondo sector between 9 and 11 July 1992. This shows that large groups of youngsters from different political parties were involved in fights with each other, which resulted in victims among the normal civilian population. He had ended his letter by criticising the responsible civil authorities and the police who – briefly stated – had stood aloof from the riots or had even been in support of the Interahamwe.137

1. The file also contains a newspaper article (Umurava magazine no. 15, dated 10 February 1993) which mentions that the Gikondo riots had been caused by the Interahamwe and CDR, since they had started, on 31 December 1992, to block the roads, to steal, to plunder, to murder and to destruct.138

8 THE ASSESSMENT OF THE EVIDENCE

General remarks

1. The Court puts first that the person who is criminally prosecuted, will be considered not guilty by the prosecuting and judicial authorities until – beyond a reasonable doubt – his guilt has been established by law. In order to establish the individual criminal liability of the defendant with respect to the charges and the consequences of that liability, it shall have to be determined whether the defendant has committed the offences as charged, that the proven facts are punishable and, therefore, the defendant is liable to punishment.

2. As far as the evidence is concerned, this case is governed by Dutch law. This means, among other things, that only the means referred to in article 339 of the Code of Criminal Procedure (Wetboek van Strafvordering, hereafter: Sv) shall be regarded as legal evidence, and that the rules for minimal evidence in articles 341-344a Sv shall be applicable. Pursuant to article 342 paragraph 2 Sv – which refers to the total charges and not part of them – the judge cannot rule that the alleged acts were committed by the defendant on the basis of the statement from only one witness (the ‘unus testis nullus testis’-rule). This rule serves as a guarantee for the validity of the evidence decision, in the sense that it bars the Court from declaring the charges proved in case the facts and circumstances brought up by one witness are isolated and do not find any support in other evidence.139

3. Furthermore, one of the principles of Dutch law is that the Court is free in its selection and assessment of the (legal) evidence. The Court will always view these evidential facts together and in relation to each other.

4. The evidence for the actual commission of the facts as charged to the defendant mainly consists of statements from (eye)witnesses. The NCIS has interviewed 65 witnesses and the Examining Judge has heard 70. The Court has heard one witness in court.

5. Furthermore, the file contains testimonies from witnesses which have been rendered before:

6. the Rwanda Tribunal, in the form of a witness statement;

7. the national gendarmerie, Gikondo brigade;

8. - gacaca courts;

9. Danish authorities;

10. Canadian authorities;

11. The Parquet Général in Rwanda.

6. To the Court, the incriminating statements rendered by the witnesses either in court or before the Examining Judge are of primary importance. These statements have been rendered before a judge and were explicitly directed at the guilt or innocence of this defendant. Besides, during these witness examinations, both the Prosecution and the Defence had the opportunity to examine the witnesses in detail and to test the credibility of the witnesses and the reliability of their statements.140 It is also important that the court records of the testimonies before the Examining Judge contain a 100% literal rendition of the statements from the witnesses (see chapter 4 above, paragraph 23).

7. Less conclusive force is attributed to the statements rendered before the NCIS. Although the examinations by the NCIS were also directed at the defendant’s possible involvement in the facts as charged to her, the testing possibility of the statements, in particular by the Defence, was lacking and the records of the statements were not as detailed as the ones drawn up by the Examining Judge.

8. The Court will only take notice of the statements rendered before non-Dutch judicial authorities within the scope of the assessment of the reliability of the statements from the witnesses who testified in this criminal case.

9. The same shall apply to statements which have been rendered in the gacaca procedures. However, also in this respect these statements can only be used partially. In general, the persons who rendered statements before the gacacas were not questioned about the reasons for their knowledge, and in most cases the reports of these hearings are incomplete and not transparent.

Reliability of the witnesses statements

1. Witness statements are based of the memory of the witnesses. Although most memories of sincere witnesses are reliable141, memories are never a complete and accurate rendition of reality. Human perceptivity is limited, matters are forgotten and mistakes may be made when remembering things. The cause for such mistakes is often a form of confusion of sources, also called source amnesia. Internal processes as well as external factors may alter or add to the memory track of the original experience. In this respect, the problem may be that the source of these alterations or additions is not noticed or is forgotten. This source may consist of internal processes, such as selective observation and interpretation of the original event or of a reconstruction while remembering the event. The source may also consist of external factors, such as the integration of information obtained later in the memory track, or the acceptation of suggested events as real recollections.142

1. The assessment of the credibility of the witness and the reliability and acceptability of his statement in this case is a difficult task. The criminal case against the defendant involves facts which, if proved, concern offences which took place approximately twenty years ago. This time lapse in itself calls for great cautiousness. This cautiousness is all the more relevant since this case concerns events in a country that in political, cultural and socio-economic aspects showed and still shows little resemblance with Dutch society and, in addition, a country which was torn by deep political and ethnic differences and an armed conflict as a result of all this. That is why, in many respects, the Court cannot rely on facts and circumstances of ‘common knowledge’, while understanding political and social relations known to us, is considered to be of limited value.

1. Dutch legislation does not provide ‘hard criteria’ based on which a assessment can be made whether or not a witness is credible and his statement reliable. However, it is a commonly accepted principle that the Court needs to find out whether a testimony in relation to the persons who gives it, the circumstances under which it was given and the factual information it contains, is sufficiently reliable and acceptable to serve as evidence.

The assessment frame

  1. The Court shall judge the witness statements according to the following points of attention:

  2. the personality of the witness;

  3. the circumstances under which the statement was rendered;

  4. the consistency of the witness’s statements;

  5. the question whether the statement is confirmed by statements of other witnesses;

  6. the question whether the statement is confirmed by other (objective) evidence;

  7. the plausibility of the statement.

The personality of the witness

1. The Court will try to find out whether circumstances have arisen which could have a possible influence on the credibility of the witness. For this purpose, it will investigate whether the witness has any involvement in the criminal offences as charged, or whether the witness has an interest or a motive – personal, ethnical, financial or other – to render, incompatible with the truth, an incriminating statement concerning the defendant. It may be important to know whether the witness knows the defendant personally and if so, in what relation and context, and also whether the witness knows one or more of the other witnesses who render incriminating statements.

  1. The Court will also investigate whether the witnesses have been able to distinguish what they have seen personally from what they have heard from other people (hearsay). The Court will also notice disrupting effects as a consequence of cultural differences. Attention will be paid to such matters as the witness’s awareness of time, space and distances and/or the ability to orient himself with the aid of maps, photo and video material, and the way in which the witness reacts to questions and how he answers them.

  2. Many witnesses in this file are traumatised witnesses. It cannot be said that a traumatised witness is less reliable than a non-traumatised witness, although recollections of central details of a traumatising incident are often more accurate and complete than recollection of peripheral details of the same incident. Two possible reasons for this are: the attention is focussed on threatening, central details of an incident (the so-called “weapon focus effect”).143 and in addition tot his, the borders of the traumatic image will narrow (“boundary restriction”). This means that background details will be observed less, which will result in elements in the margin of an emotional image to be forgotten.144

1. In this file, three witnesses appear who where a child at the time of the incidents, being [L], who testified about the murder of her mother [victim C] (count 3) and [W] and [Z], who testified about the death of [victim A] (count 1). (Judicial) psychological examination has shown that the recollections of children are indeed accurate and that they are capable of telling accurately about events that took place years earlier. 145 Therefore, a priori there are no reasons to believe that statements rendered by children are not reliable because of the child’s age, even in cases where children tell about events that took place years ago.

The circumstances under which the statement was rendered

1. The Court will try to find out whether the circumstances under which the witness rendered his statement or the way the statement came about may have been of influence on the reliability of the contents of the statements. In this respect, the following issues are relevant: the manner in which the questions are asked, the type of questions, the contents of the questions, the order of the questions, the duration of the examination and the attitude or behaviour of the interviewer. It is also important whether there are indications of communication problems or misunderstandings between the interviewer and the witness or between the interpreter and the witness. Furthermore, it is important to establish whether prior to the testimony, the witness has been in contact with one or more other witnesses who incriminate the defendant and whether he has spoken to these other witnesses about the case.

1. In this respect, the Court would like to point out that the documentation submitted by the Examining Judge renders a faithful picture of how the testimonies were obtained.

The consistency of the witness’s statements

20. Consistency of consecutive statements by a witness is, in itself, no guarantee for the credibility of the that witness or his statements, nor does each inconsistency affect the credibility or reliability. However, with respect to matters that are material to the evidence, if a witness states significantly different before the NCIS (or a non-Dutch authority) than before the Examining Judge, it will have to be examined critically whether this will jeopardise the conclusive force of the evidence in his statement rendered before the Examining Judge, which statement, as considered above, is of primary importance to the Court. In national and international law it is generally recognised that inconstencies may arise as a result of the manner in which the interview is conducted, the passage of time, the chaotic nature of the events about which the witness is interviewed, the emotional memories these traumatic events may trigger in the witness, differences in culture, language problems and mistakes by the witness or other persons involved in the proceedings.

21. Below, the Court will quote paragraph 31 of the judgement of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Kupreškic case:

“The presence of inconsistencies in the evidence does not, per se, require a reasonable Trial Chamber to reject it as being unreliable. Similarly, factors such as the passage of time between the events and the testimony of the witness, the possible influence of third persons, discrepancies, or the existence of stressful conditions at the time the events took place do not automatically exclude the Trial Chamber from relying on the evidence. However, the Trial Chamber should consider such factors as it assesses and weighs the evidence."146

Reference may also be made to paragraph 113 of the judgement of the Trail Chamber of the ICTY in the Furundžija case147, in which the consideration is made that inconsistencies may actually be an indication of the fact that the witness has not been influenced and is speaking the truth.

22. The Court determines that in appropriate cases, the Examining Judge, each time, brought the inconsistencies to the attention of the witnesses and that he recorded the witnesses’ reaction to them.

23. Finally, it should be noted here that the inconsistency test cannot be performed on statements before the Examining Judge by witnesses who had not been interviewed earlier by the NCIS or a non-Dutch judicial authority. However, it has struck the Court that there are quite some statements rendered by witnesses for the Defence which, on essential points, deviated from the expectations that had been raised by the explanation given by the Defence in their request to hear these witnesses.

Testing the testimonies against other witnesses

24. Of course it is also important whether a testimony differs – significantly and on essential points – from other testimonies or whether it is in accordance with statements from other witnesses. First, it is important to determine whether witnesses give testimony about the same actual incident(s). If such is the case, it should be considered that different witnesses may have observed only part of such an incident. Furthermore, it should be noted that discrepancies may arise from the factors which are referred to above (paragraph 20) as possible explanations for inconsistencies.

25. An important point of attention in this case is the circumstance that as opposed to the witnesses who have rendered incriminating statements, there are many statements of witnesses who seem to exonerate the defendant in all respects. In Chapter 11, the Court will pay attention to this phenomenon in particular.

Assessing testimonies in relation to other (objective) evidence

26. The possibility to test statements from witnesses against (objective) information is very limited. The file contains documents (including books, reports, articles and quotations from the ICTR) which paint a picture of the developments in Rwanda and in some cases, more specifically in Gikondo during the charged period, as well as a DVD with images of a CDR-meeting in Butare on 5 December 1992.148 As far as the attack on the Pallotti Church on 9 April 1994, witness statements may be compared to the factual observations and ascertainment by the Rwanda Tribunal. In addition, there is video material about the living environment of the defendant as recorded and collected in the course of these proceedings. The file also contains a death certificate “certificat de décès” dated 22 February 1994 of [victim C]149, signed by Doctor M.F. Gillieaux.150 Finally, witness statements may be assessed in view of the results of the special investigative actions used (wiretapped telephone conversations and the recording of confidential communication (OVC)) and documents in the file concerning the defendant and her family.

The plausibility of the testimony

27. When judging the plausibility of the contents of the witness statements great reticence should be observed. Given the special and extreme circumstances in Rwanda during the charged period, something that cannot really be imagined from one’s own reference may be possible after all.

Conclusion

28. Assessing statements incriminating the defendant on the basis of the above mentioned points of attention may affect their conclusive force. This may result in the total dismissal of the statement in question, but it is also possible that only parts of the statements will not be used as evidence.

29. Finally, the Court would like to stress that, each time, it will consider (the credibility of) the witness statements in relation to and in connection with other statements and/or additional evidence. In respect to this, the Court agrees with the judgement of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Kupreškic case:

“[...] the Appeals Chamber emphasised the importance of assessing the credibility of a witness in light of the trial record as a whole. The Appeals Chamber has reiterated the importance of such a holistic approach to assessing credibility within its own jurisprudence: A tribunal of fact must never look at the evidence of each witness separately, as if it existed in a hermetically sealed compartment; it is the accumulation of all evidence in the case which must be considered. The evidence of one witness, when considered by itself, may appear at first to be of poor quality, but it may gain strength from other evidence in the case”.151

9 GENERAL MERITORIOUS DEFENCE

1. In its plea, the Defence, prior to a discussion concerning incriminating witnesses, made some general remarks about the rendition of incorrect, or even more specific: purposely incorrect statements. Within that scope, the Defence has made reference to the cautious findings of Professor Dr. Nancy Combs in her book “Fact-finding without facts”152 saying that in Rwandese society, lying is considered less of a problem than in western countries. As a specific reason for the rendition of false statements, the Defence mentioned the desire to contribute to the conviction of their client because she is obviously regarded as a génocidaire, a firm belief that cannot be based on anything more than the fact that she is a Hutu from the north who lives abroad. From that belief, witnesses may invent evidence in order to blame her for specific acts. Rwandese society is impregnated with the conviction that only Tutsis were victim of the genocide and Hutus the perpetrators. It may very well be that anger about the sufferings during the genocide and general feelings of revenge have played a role in the statements rendered against the defendant. In this respect the Defence has also indicated at the activities of Ibuka, a victim organisation which would not refrain from inciting witnesses to render false statements, often accompanied by promises of material compensation. According to the Defence, some of the false statements may have been triggered by some sort of ‘group truth’ created in the gacacas and repeated by others. In this respect, the Defence made reference to a Human Rights Watch-report about the legal proceedings in a gacaca-courts.153 It describes the circumstance that in the gacaca-courts many false statements are rendered which originate from ethnic animosity as well as personal conflicts and financial motives.

2. These considerations will not result in a general meritorious defence. After all, the Defence does not link the above mentioned considerations – justly so – with the conclusion that all incriminating witnesses in this criminal case have rendered false statements or, whether or not in good confidence, repeat lie after lie. The Court conceives the Defence’s argument as a stimulus to assess the incriminating testimonies with a critical eye. In the previous chapter, the Court already emphasised that great cautiousness should be exercised, and explicitly pointed at the possibility of witnesses having personal, ethnic, financial or other motives or interests to render, contrary to the truth, incriminating statements. The Court has also indicated that it is very important to ascertain whether witnesses are capable of making the distinction between what they have seen personally or what they have heard from others. The fact that the Examining Judge has been very alert to this may be shown by the manner in which he interviewed the witnesses and the way he recorded these interviews. In this respect, the Court especially refers to paragraph 24 of Chapter 4.

3. The Court understands that the Defence has put forward three more or less meritorious defences. These are:

4. i) the argument that we are dealing with a “conspiracy” of incriminating witnesses;

(ii) the argument that the incriminating testimonies must be false since defendant socialised with Tutsis and saved the life of a number of them;

(iii) the argument that the incriminating testimonies must be false since there are no less than 44 witnesses who exonerate the defendant from any involvement in the acts as charged to her.

4. In this Chapter, the Court will discuss the arguments under (i) and (ii). The argument under (iii) will be discussed in Chapter 11.

The alleged conspiracy

5. According to the Defence, there is a “group of profiteers”154, “cunning cheats”155, persons who are linked with each other by family and/or friendly ties and who have, at some point, agreed with each other to falsely accuse the defendant. The sources of these false accusations are witnesses [witness 6] and [witness 1]. The group also includes [witness 2](the wife of [witness 1]), [witness 5], [witness 8], [witness 19], [witness 7] and [witness 20]. According to the Defence, this group is after the real estate property owned by the Bucyana, Sefara and Basebya families who had fled Gikondo after the genocide, or they want to gain financial advantages as a result of the escape of these families. About eleven witnesses surround this group which they follow in their intent to give false testimonies with regard to the defendant.

6. In the first place the Defence substantiates its arguments by making a reference to the so-called “plundering file”156. In this respect, the Defence asked for special attention to the letters from [witness 8], [witness 5], [witness 19] and other to the executive secretary of the gacaca-tribunals at a national level, in which they complain about the behaviour of Jean-Bosco Kaboyi, a local official in Kigarama, and gacaca-judge Martin Rutajoga. The Defence also made reference to articles in the Rwandese newspaper Rugari, in which a journalist describes the - in the words of the Defence – “shady practices” of “[witness 19] and [witness 8] and their friends”. In this respect, the Defence has also pointed at the false statements (her words) rendered by [witness 6] and [witness 1] in March 1995 in an investigation into [witness 14], and the judgement of the court in Kigali dated 8 August 2003, in which [witness 14] was acquitted.157

7. The plundering file contains a number of gacaca-documents concerning the latest reconsideration of the plundering cases against Martin Bucyana and others, including the defendant. The Court has observed that during the most recent witness interviews of [witness 8], [F], [witness 19] and [witness 10], the Defence exclusively concentrated on the possible role of these witnesses in the plundering file. The image that is depicted in these interviews is that these witnesses are indignant about the behaviour of said Kaboyi and Rutajoga during the proceedings initiated by them and that they, together with others, have complained about this in letters to Service National des Juridictions Gacaca (SNJG) and other authorities. These complaints involve shortcomings in the gacaca-proceedings and the fact that gacaca-judgements in which damages were allocated, have never been executed.

8. The Court puts first that when plaintiffs act jointly in legal proceedings, even when their interest differ, contrary to the obvious assumption of the Defence, this does not have to raise suspicion. The same applies to jointly writing letters with complaints about the behaviour of public services or government officials, even when it is assumed that the complaints are unfounded which, in this case at least, does not have to be the case at all. In no way whatsoever it has been demonstrated that in this case, the joint action by the plaintiffs/complainants is the result of a conspiracy of liars. Neither the gacaca-documents, nor the letters and the witness statements offer any reference points in this respect.

9. The Court adds to this that as far as appears from the file, of all witness who have been blamed by the Defence for having their own motives, only [witness 5], [witness 20] and [witness 6] have, at some point, claimed damages from the defendant (and/or her husband) in gacaca-proceedings. Furthermore, it has been established that [witness 1] - according to the Defence one of the core members of the conspiracy – and his wife, do not have anything to do with these letters and, on the basis of her statement during the hearing, it may be assumed that [witness 6], the other core member, was not aware of this.

1. In this respect the Court wishes to note that among the witnesses branded by the Defence as a group of profiteers, there are persons who do not, or who hardly get to see each other. [Witness 6] stated that she has not seen [witness 20] since 1996 158 and also the Defence is convinced of the fact that [witness 1] (and [witness 2]) and [witness 6], initially good friends, have not seen each other, or have not wanted to see each other for many years.

1. Furthermore, it has struck the Court that the Defence has not reacted to the obvious question from the Prosecution in its closing speech what, actually, may be obtained from the defendant in the end. Now that the defendant has not answered questions put to her concerning her possible assets in Rwanda, a substantiation of the Defence’s position would not have been out of place.

1. The Defence did not answer the other obvious question from the Prosecution why – assuming that false statements have been rendered in view of the assets of the Basebya family – some witnesses who have testified incriminatingly about the defendant did not do so, or at least less so, about her husband. This is all the more remarkable given the fact that her husband was a member of parliament on behalf of the MRND, he was a shareholder of RTLM and for a considerable period had appeared on a wanted list drawn up by the Rwandese authorities.

1. The Court has taken note of the articles from the Rugari newspaper as referred to by the Defence.159 The Defence has omitted to inform the Court about the reputation of this newspaper – quality paper or tabloid or something in between -, also after the prosecution had scornfully called this paper the “Daily Mail” of Rwanda. The newspaper articles do not show how solid the paper’s investigation had been to come to the accusations in question and whether the basic principles of journalism such as hearing both sides of the argument had been applied. The fact that the Rugari published an article with the title “[witness 8] supposedly had her aunt killed for Frw. 6.000.000!”160 does not make it easier for the Court to take the Defence’s substantiation seriously.

1. The Court does not follow the Defence’s conclusion about the statements rendered by [witness 6] and [witness 1] in March 1995 before the Gendarmerie and the acquittal of [witness 14] in the judgement of 8 August 2003. Both statements do not show anything more than that [witness 1] and [witness 6] accused [witness 14] of the murder of [victim F] (the husband of [witness 6]) and also accused the defendant. All the judgement demonstrates is that the Court in Kigali acquitted [witness 14] because of – according to the Court – obviously insurmountable contradictions between (mostly hearsay) testimonies by the witnesses. The judgement does not contain any indication for an – as argued by the Defence – “embryonic” conspiracy, supposedly active since 1995 and already actively preparing future claims against the defendant.

1. On the basis of the above, the Court comes to the conclusion that the position of the Defence concerning the existence of a group of persons that made the agreement to render false statements about the defendant does not surpass the level of speculation and suggestion.

Defendant does not have anti-Tutsi sentiments

1. According to the Defence the accusations against the defendant must be false since she and her children had many Tutsi-friends, many Tutsis had come to her daughter’s [daughter 1] wedding and in April 1994 the defendant had even offered shelter to Tutsis and saved their lives.

1. This circumstance does not exclude the possibility of the defendant having committed the offences as charged. Although it may sound strange, many convicted genocidairs and other Hutu-extremists had Tutsi-women, had friendly ties with certain Tutsis and/or have saved lives of Tutsis. During the pro forma hearings, the prosecution pointed this out several times and in their reply, the prosecution mentioned names of persons - [G], [H], [I], Jean Bosco Barayagwiza, [J], [K], and Leon Mugesera – in whose cases this fact has been established in court. There is no obvious reason why this would not be the case with respect to the defendant.

1. This file also contains examples of Tutsis who found protection from fanatic Hutu-extremists. [witness 8] sought and found protection from Jean Sefara and his Tutsi-wife. [witness 7] looked for help from [BB, father of YY and witness 9], the father of the génocidaires [YY] and [witness 9] the uncle of [witness 13].

1. In this respect, the Court would like to note that according to wiretapped conversations (telephone and other) the defendant repeatedly spoke very condescendingly and hostile about Tutsis. She does not go to the wedding of ‘cockroaches’ 161; Tutsis are the cause for the suicide of her daughter’s friend 162; Tutsi women put Hutu-men under pressure to marry them after becoming pregnant first 163 and Tutsi children grow up with lies in their mouths.164 Most significant is that in a conversation with a friend, the defendant mentions that she had already warned her fellow-countrymen that Tutsi-women marry Hutu-men because they want to be ibiytso, but that no one believed her.165 This is a loud and clear echo from the ‘Ten Commandments for the Hutu’ in the newspaper the defendant read at the time, the Kangura.166 (see Chapter 5 paragraph 21).

20. The Court also dismisses this plea.

10 SOME INCRIMINATING WITNESSES

1. The witnesses who rendered incriminating statements about the defendant all were co-inhabitants of Gikondo at the time. The Examining Judge interviewed them all about possible CDR-activities by the defendant in the neighbourhood. In this Chapter, with regard to thirteen crucial witnesses, the Court will investigate whether there are reasons to assume that they are not credible and/or that their testimonies before the Examining Judge are not sufficiently reliable because of the witness’ personality, and/or the way in which his testimony came about and/or the lack of consistency in the statements rendered by the witness (points of attention 1, 2 and 3 of the assessment frame referred to in Chapter 8). If, on the basis of this assessment, the Court sees no reasons for the exclusion of these testimonies from the evidence, it will assess these testimonies in the next chapter against the following points of attention: support by statements from other witnesses; support by other (objective) evidence; plausibility (points of attention 4, 5 and 6 of the assessment frame).

2. These thirteen witnesses are: [witness 1] and his wife [witness 2], [witness 3], [witness 4], [witness 5], [witness 6], [witness 7], [witness 8], [witness 9], [witness 10], [witness 11], [witness 12] and [witness 13].

3. When asked during the hearing on 23 October 2012, the defendant stated that she knew the following witnesses as fellow-local residents: [witness 5], [witness 1] and his wife [witness 2], [witness 6], [witness 8]. She also stated that she maintained a more or less friendly contact with them. She had never had any conflict with any of them.167 During the hearing of 26 October 2012, the defendant was confronted with the name of witness [witness 13]. However, from 26 October 2012, the defendant has invoked her right to remain silent in all respects.168

4. Later during the hearing in Court, the defendant was asked whether she had any idea why this witness and other witnesses had falsely accused her, at least in her opinion.169 With respect to this question the defendant invoked her right to remain silent as well.

Witness [witness 1]

5. [ witness 1] was registered as a Hutu. He worked for Minitrape, the Ministry of Public Works. From 1984, he and his wife [witness 2] were the opposite neighbours of the defendant, with whom he had a good relationship, also according to the defendant, until her departure from Rwanda. To give examples: in 1989, the daughter of the defendant carried the crucifix at the funeral of the little daughter of the witness and on 19 February 1994, the witness was the master of ceremonies at the wedding of defendant’s daughter [daughter 1]. During one of his examinations by the NCIS, [witness 1] stated that he had great trouble giving testimony about persons he used to consider as good friends.170

6. [ witness 1] has never made it a secret that in April 1994, the defendant and her husband saved his life and that of his house-boy, hereafter to be referred to as [witness 3]. He had already stated this in his first statement in the file, i.e. his statement from 1995 before the Gendarmerie. In almost every statement since, he has repeated this incident.

7. Furthermore, [witness 1] has repeatedly stated that he has never seen anything bad with regard to [X, husband of defendant].

8. It is remarkable that in his statements, [witness 1] does not exaggerate the accusations with respect to the defendant. It would have been very easy for this witness to accuse the defendant of something like direct involvement in the murder of [victim F, husband of witness 6], his friend and colleague, but he does not do this. In Chapter 16 there is one example of him correcting the Examining Judge when the latter wrongly interprets the statement of the witness as being more seriously incriminating towards the defendant than the witness meant.

9. [ witness 1] has not claimed any damages from the defendant or her husband. About this, he stated: "Luckily enough, I did not have the right to claim damages."171

1. Based on the above, the Court has come to the conclusion that there is no cause whatsoever to assume that the witness had a motive or interest to falsely accuse the defendant.

1. The witness has rendered statements before the Gendarmerie, the parquet-général, Danish authorities and in the gacacas. In 2009 and 2010, he was heard by reporting officers of the NCIS for six days. The Examining Judge heard him for 5 days in January 2012. On 21 November 2012, the last interview took place via video-conference, due to bad health of the witness.

1. In all these statements, the witness is consistent in his reports about the defendant. He always stated his reasons for his knowledge. He is very good at making a distinction between matters he has personally experienced and things he has heard from other people. The fact that his memory deserts him every once in a while, is entirely understandable.

1. The Court has found no clues about an alleged agreement between this witness and other witnesses about the testimony to be given. The witness is married to the witness to be discussed hereafter [witness 2]. There are no signs of an agreement between them. There is only partial overlap between the observations of both witnesses, since they were not always in the district during the same periods or at the same times.

1. The Defence has concluded that this witness lies, but that it is not easy to determine his motive. According to the Defence, it is “presumably a combination of granting a friendly turn, prevention to become an accused himself which could lead to an action for damages against himself, and possibly financial gain.”172 The Defence has substantiated this argument by pointing out that the witness states different from the defendant, that he does not remember certain things, for instance that he had been heard in 1995 about [witness 14], or that he mentions that he is not aware of certain things such as the possible efforts having been undertaken to have him testify in court against [witness 14].

1. In this respect, it has struck the Court that the Defence puts first its conclusion and subsequently only speculates about a possible motive. As referred to above, the Court does not see the slightest reason to believe that this witness has any motive or interest to falsely accuse the defendant. The fact that he does not remember that he rendered a (short) statement about [witness 14] in 1995, does not have to arouse any suspicion. It has not been made plausible that he has to fear any accusations. [witness 1] has been interviewed about it and at the time, he stated that when he heard in 2006 that he was being accused, he travelled from Switzerland to Rwanda to tell his story and that, afterwards, he travelled back unhindered. To the question from the Defence whether, in connection to the accusations, the Rwandese authorities have ever promised anything if he would testify against the defendant, the witness has given a motivated negative answer.

1. With respect to this witness, the Court comes to the conclusion that the witness is credible and that there has been no proof of any facts or circumstances which would negatively affect the conclusive force of his statements.

Witness [witness 2]

1. This witness is the wife of [witness 1]. Prior to the genocide, she was registered as a Tutsi. Until October 1993, she lived in Gikondo. Then she moved to Switzerland. Mid February 1994, she was back in Gikondo for a few days. On 23 February 1994, she was evacuated from Gikondo to Switzerland.

1. After the genocide, she returned to Rwanda. During the phase of information gathering, she was involved in the gacaca. During the trial phase, she was not involved.

1. This witness was also a good friend of the family of the defendant. Before the NCIS, she called the husband of the defendant a quiet, friendly man and she said that the Basebya couple had "sweet children".173

20. This witness has not claimed any damages from the defendant or her husband. As far as the Court is concerned, there has been no proof of any motive or interest to falsely accuse the defendant.

21. In 2009, this witness was heard during two days by the NCIS and in 2012, three days by the Examining Judge. There are no substantial differences between these testimonies. She always stated her reasons for her knowledge. She is very good at making a distinction between matters she has personally experienced and things she has heard from other people. The fact that her memory deserts her every once in a while, is entirely understandable.

22. The Court has found no indications that there have been any agreements between this witness and other witnesses, or between this witness and her husband, about the statements to be rendered.

23. The Defence has called this witness an “extremist”. According to the Defence, she is “made from the same Ibuka wood” as witness [witness 6] (to be discussed hereafter). The allegation that this witness is an extremist is the result of the manner in which she speaks about Hutus. Her extremism may have originated from her experiences as a gacaca-judge. In this respect, the Defence also pointed at the remark of this witness during her examination by the NCIS, i.e. that [X, husband of defendant] and his wife Yvonne [defendant] were members of the MRND and the CDR, parties that together, are responsible for the genocide, from which ensues, according to her, that the Basebya couple is responsible for what has happened.

24. The allegation that this witness is an “extremist” is nothing more than an empty statement, based purely on speculation. The fact that this witness holds the political parties MRND and CDR responsible for the genocide can hardly be called an “extremist” point of view and the fact that this witness, who argues that the defendant and her husband had authoritative positions in these parties and therefore holds them morally responsible, cannot be called astonishing.

25. With respect to this witness, the Court arrives at the conclusion that the witness is credible and that there has been no proof of any facts or circumstances which would negatively affect the conclusive force of his statements.

Witness [witness 3]

26. Prior to the genocide, this witness was registered as a Tutsi and from 1989 until May 1994, he was the “boy” of the afore mentioned witnesses [witness 1] and [witness 2]. In May 1994, he left Gikondo. Currently he is working as a policeman.

27. This witness was heard by the NCIS on 19 January 2010, and on 25, 26, 27 and 28 May 2011, he was heard by the Examining Judge.

28. In his own words, this witness owes his life to the defendant and/or her husband. She, and/or her husband, saved him after 6 April 1994 from being taken to Congolais to be killed there.

28. witness 3] did not claim any damages from the defendant or her husband, neither did the Court conclude that there are any motives or interests to falsely accuse the defendant.

30. The Court has found no indications for the fact that this witness would not be capable of making the distinction between what he has seen personally or what he has heard from others.

31. The Court has not found any reasons to believe that any special arrangements between this witness and [witness 1] or [witness 2] and/or other witnesses were made about rendering false statements.

32. There is one point about which the witness’ statement before the NCIS differs from his statement before the Examining Judge. Before the NCIS he stated that he had seen the defendant outside on 22 or 23 February 1994. Before the Examining Judge he said he had his doubts. He could not very well remember what he had said a year and a half earlier to the NCIS. The Court considers that this inconsistency is very understandable for reasons of lapse of time and other circumstances as referred to in Chapter 8 paragraph 20. This inconsistency has no consequences for the usability of the statements from this witness in so far as they concern other events than those of 22 February 1994. Contrary to the Prosecution, with respect to the events on 22 February 1994, the Court will not rely on the statement that this witness rendered before the NCIS.

33. About this witness, the Defence has argued that his statement is unreliable because he is ”related” to [witness 1], according to the Defence one of the core members of the “conspiracy of profiteers”. The Court remarks that it suffices to refer to the remarks made in Chapter 9.

34. With respect to this witness, the Court arrives at the conclusion that the witness is credible and that there has been no proof of any facts or circumstances which would negatively affect the conclusive force of his statements, apart from his statements about 22 February 1994.

Witness [witness 4]

36. Prior to the genocide, this witness was registered as a Hutu. He lived on the compound of [witness 1], whom he considered as a father to him and for whom he would do odd jobs from time to time.

37. This witness did not claim any damages from the defendant or her husband, nor did the Court conclude that there are any motives or interests to falsely accuse the defendant.

38. The witness was heard by the NCIS on 2 December 2009 and 12 and 16 January 2010, and on 26 January, 2, 3 and 4 February 2011, by the Examining Judge. Prior to his interview by the Examining Judge, the witness spoke to a psychiatrist. In his report of findings, the Examining Judge mentioned that during the interview, the witness made a very tired impression on him.

39. The Court has found no indication to the fact that this witness would not be capable of making the distinction between what he has see personally or what he has heard from others.

40. The Court has not founds any reasons to believe that any special arrangements between this witness and [witness 1] or [witness 2] and/or other witnesses were made about rendering false statements.

41. It has struck the Court that this witness has trouble to interpret time and chronology. For example, he does not know when Martin Bucyana was murdered and he states hat the refugees hidden in the house of [witness 1] left there on 15 April 1994, while according to many other statements, this had happened around 10 April 1994.

42. With respect to the events on 22 February 1994, the witness’ statement before the NCIS differs from his statements before the Examining Judge. Before the NCIS he had stated that on that particular day, he had seen the defendant talking to a group of attackers on her premises, after which the group had walked towards [victim C] to kill her. However, before the Examining Judge he had stated that he had not seen the defendant talking to a group of attackers on that day on her premises. After the Examining Judge had pointed out these differences to him, the witness said that the police had recorded his statement wrongly. Upon this, the Examining Judge gave the instruction to listen to the statement of the witness before the NCIS once more and to translate it anew. It appeared that the statement of the witness before the NCIS was similar to the one recorded in the official report.

43. The Court considers that this inconsistency is very understandable because of the lapse of time, the witness’ trouble with time and chronology, his tiredness and other circumstances referred to in Chapter 8 paragraph 20. This inconsistency has no consequences for the usability of the statements from this witness in so far as they concern other events than those of 22 February 1994. There are no other substantial inconsistencies in the statements rendered by this witness.

44. About this witness, the Defence has argued that his statement is unreliable because he is “related” to [witness 1], according to the Defence one of the core members of the “conspiracy of profiteers”. The Court remarks that it suffices to refer to the remarks made in Chapter 9.

45. With respect to this witness, the Court comes to the conclusion that the witness is credible and that there has been no proof of any facts or circumstances which would negatively affect the conclusive force of his statements, apart from his statements about 22 February 1994.

Witness [witness 5]

46. Prior to the genocide, this witness was registered as a Tutsi. He is the husband of [victim C], who was murdered on 22 February 1994. He and his wife lived across from the defendant. At the time, he worked at the French Embassy.

47. This witness has claimed damages from the defendant (and/or her husband). The Court does not consider this a circumstance which would automatically imply that this witness falsely accused the defendant because of a financial motive. In Chapter 9 the Court has already explained that here are no indications for a “conspiracy” of profiteers. Therefore, the Court dismisses the Defence’s reservations regarding the witness in this respect. There have not been any other indications of any interest by the witness to falsely accuse the defendant.

48. This witness was interviewed by the NCIS on 18 and 20 November 2009 and on 9 and 14 July 2010. On 19 April 2012, the NCIS spoke to him briefly in connection to a statement by his daughter [L]. On 27, 28 and 29 January and on 17 March 2011, this witness was interviewed by the Examining Judge. The interview of this witness by the Examining Judge was accompanied by many incidents, as shown in the official reports of findings drawn up by the Examining Judge.174, which could only have had a negative effect on the witness’ concentration. To this, the Court adds that the witness has qualified the interviews by the Examining Judge as “serious cross examinations”.175

49. There are no substantial inconsistencies between these statements. The witness always stated his reasons for his knowledge. He is very good at making a distinction between matters he has personally experienced and things he has heard from other people. The fact that his memory deserts him every once in a while, is entirely understandable.

50. The Court has found no reason to believe that any special arrangements between this witness and other witnesses were made about rendering false statements.

51. With respect to this witness, the Court comes to the conclusion that the witness is credible and that there has been no proof of any facts or circumstances which would negatively affect the conclusive force of his statements.

Witness [witness 6]

52. Prior to the genocide, this witness was registered as a Tutsi. Her husband [victim F] was murdered during the genocide. She lived across from the defendant. At the time, she worked as an agricultural expert at the Ministry of Agriculture.

53. At one point in time, this witness has claimed damages from the defendant and her husband. The Court does not consider this a circumstance which would automatically imply that this witness falsely accused the defendant because of a financial motive. In Chapter 9 the Court has already explained that here are no indications for a “conspiracy” of profiteers. Therefore, the Court dismisses the Defence’s reservations regarding the witness in this respect. There have not been any other indications of any interest by the witness to falsely accuse the defendant.

54. This witness was interviewed by the NCIS on 1 March and 8 and 9 July 2010. She was heard by the Examining Judge on 11, 12, 13 January and 15 February 2011. On 15 and 16 November 2012, she rendered a statement in court as a witness. As a victim, she also used her right to speak and as an aggrieved party, she claimed damages for immaterial sufferings.

55. There are no substantial inconsistencies between these statements. The witness always stated her reasons for her knowledge. She is very good at making a distinction between matters she has personally experienced and things she has heard from other people. The fact that her memory deserts her every once in a while, is entirely understandable.

56. The Defence has called this witness an “extremist”.176 The witness is one of the founders of AVEGA, a victim association which is affiliated with Ibuka.

57. The fact that a survivor of the genocide is active in an association which looks after the interests of widows and orphans of the genocide, is no reason for the Court to consider such a person to be an extremist. The file contains no indication to assume that in this case against the defendant Avega and/or Ibuka have played a role, let alone the allegation that one of these organisations have incited people to render false statements.

58. The Court has also noticed that during the hearing, the witness stated that she had seen the defendant singing and dancing when the news came around that RPF-leader Rwigema had died and that for the CDR, his death was something to celebrate. Since Rwigema had died in October 1990, and the CDR had only been founded February 1992, this statement must be wrong. However, there is the possibility that the witness made a mistake with respect to the date on which she had seen the defendant celebrating the death of Rwigema. In its reply, the Prosecution showed images showing such ‘celebrations’ at a later stage.

59. This witness stated that on 22 February 1994, in the midst of a lot of noise and from a distance of approximately 50 metres, she had heard the voice of the defendant. As will be explained in Chapter 14, the Court does not exclude the possibility of the witness having made a mistake in this regard. However, this is no reason to put her statements aside all together.

60. With respect to this witness, the Court comes to the conclusion that the witness is credible and that there has been no proof of any facts or circumstances which would negatively affect the conclusive force of her statements, apart from her ‘voice recognition’ on 22 February 1994.

Witness [witness 7]

61. Prior to the genocide, this witness was registered as a Tutsi. Her husband was murdered during the genocide and she was left behind with 4 young children. She is a cousin of the witness [witness 2] and after 6 April 1994, she was in hiding for a while in the house of [witness 1]. She used to be a market vendor.

62. This witness did not claim any damages from the defendant or her husband, nor did the Court conclude that there are any motives or interests to falsely accuse the defendant.

63. She was interviewed by the NCIS on 21 and 24 November 2009 and on 7 July 2010. At the end of the first interview, she indicated that she was very tired and during the follow-up interview, she became very emotional when she stated about [victim E]. She was heard by the Examining Judge on 14 and 15 December 2011 and on 15 February 2012. At the end of the interview in December 2011, the witness indicated that she was not feeling well and that she preferred not to come back again. The interview was continued on 15 February 2012, but also at that time, the interview could not be finished. At the end of that day, the witness indicated that she did not want to come back again since, due to her work and her family, she was unable to testify anymore. In this respect the Court would like to note that the Defence Counsel had “grilled” the witness for hours in an unbecoming manner about details which, even at this moment, the Court has not understood the relevance. From 6 April 1994, the witness has not appeared before the Examining Judge anymore.

64. After meeting with the witness on 15 June 2012 and consulting a psychiatrist who thought that given her mental and physical health the witness was not capable of giving testimony, the Examining Judge decided not to continue the examination.177 During the hearing on 18 June 2012, the Defence expressed their doubts concerning the assessment of the Examining Judge and requested the Court to instruct the Examining Judge to continue the examination of this witness. The Court dismissed this request.178

65. The Court has noticed that this witness is the only person who rendered statements about certain incidents. For example, she alleges that on 22 February 1994, [witness 2] and her mother had been attacked and, after 6 April 1994, the defendant had allegedly said that she had not yet seen the body of [victim F], while other witnesses should have heard or seen this too. There are also remarkable inconsistencies between the statements of this witness before the NCIS and those before the Examining Judge; not only about the events on 22 February 1994, but also about the animations and the defendant’s role in them. Besides, it seems that this witness heard about many events from other people, probably during the gacaca-sessions, and that she is not always capable of making the distinction between her own observations and hearsay.

66. It is the Court’s opinion that with respect tot his traumatised witness the risk is too large that she mixes her original recollections with information that came to her at a later stage. For this reason, the Court sees no possibility to use her testimony as evidence.

Witness [witness 8]

67. Prior to the war, this witness was registered as a Tutsi. Her husband was murdered during the genocide. She knew the defendant because the defendant and her husband were friends of Jean Sefara, in whose family the witness’ husband had grown up. She also knew the defendant from the neighbourhood and via the church, which the defendant would visit from time to time. She lived at some distance from the defendant and used to be a market vendor.

68. This witness did not claim any damages from the defendant or her husband, nor did the Court conclude that there are any motives or interests to falsely accuse the defendant.

69. The witness was heard by the NCIS on 25 June 2009, 19 and 23 November 2010 and on 8 and 13 July 2010, and on 15 March and 9, 23, 24 and 27 August 2012, by the Examining Judge.

70. There are no substantial inconsistencies between these statements. The witness always stated her reasons for her knowledge. She is very good at making a distinction between matters she has personally experienced and things she has heard from other people. The fact that her memory deserts her every once in a while, is entirely understandable.

71. The Court has found no reason to believe that any special arrangements between this witness and other witnesses were made about rendering false statements.

72. The Defence argues that this witness cannot be trusted. Briefly stated, they say that this witness belongs to the “super-witnesses” type: always at the right place at the right time. She used to be a gacaca-judge and she may have shaped her own truth. By Rugari she is labelled a swindler and allegedly she belongs to the core group of incriminating witnesses and writers of the letters.179

73. The Court has already put forward that there are no indications of the existence of a “conspiracy of profiteers”. The fact that this witness used to be a gacaca-judge is not a circumstances which would affect her credibility. This witness was the only person who rendered a statement about an attack on her, her husband and her brother, on 22 February 1994. Her husband and her brother died during the genocide. Contrary to the Defence’s argument, the fact that this witness is the only person who testifies about this attack does not necessarily mean that she has invented this attack.

74. This witness has testified about a letter in the defendant’s handwriting which represents a “death list” drawn up by the latter. In Chapter 11 the Court will explain why it has serious doubts about the recognition of defendant’s handwriting by the witness. However, this does not mean that the other statements from this witness cannot be used as evidence.

75. With respect to this witness, the Court comes to the conclusion that the witness is credible and that there has been no proof of any facts or circumstances which would negatively affect the conclusive force of her statements, apart from her ‘handwriting recognition’.

Witness [witness 9]

76. Prior to the genocide, this witness was registered as a Tutsi. He knows the defendant from his neighbourhood. At the time, his work included the job of interpreter.

77. This witness did not claim any damages from the defendant or her husband, nor did the Court conclude that there are any motives or interests to falsely accuse the defendant.

78. The NCIS has made a report of a meeting the reporting officers had with the witness on 22 January 2011. On 17 and 18 December 2011, the witness was heard by the Examining Judge. This interview was marked by a number of incidents.180 Considerable time was lost by a challenge to the judge. In addition, the Counsel put many questions to the witness which were in no way related to the reason why the Defence had requested the examination of this witness.181

79. There are no substantial inconsistencies between these statements. The witness always stated his reasons for his knowledge. He is very good at making a distinction between matters he has personally experienced and things he has heard from other people. The fact that his memory deserts him every once in a while, is entirely understandable.

80. The Court has found no reason to believe that any special arrangements between this witness and other witnesses were made about rendering certain statements.

81. The Defence has argued that this witness circles around the core group of [witness 1]182 and that he is a fanatic who always uses “the classic genocide clichés” when he says that the defendant’s daughters were not allowed to associate with Tutsis.

82. The Court has already judged that there are no indications for the existence of a “conspiracy of profiteers”. Calling this witness a “fanatic” is nothing more then an empty assertion.

83. With respect to this witness, the Court comes to the conclusion that the witness is credible and that there has been no proof of any facts or circumstances which would negatively affect the conclusive force of his statements.

Witness [witness 10]

84. Prior to the genocide, this witness was registered as a Tutsi. He knows the defendant because he used to live across from her when he lived in Gikondo.

85. This witness did not claim any damages from the defendant or her husband, nor did the Court conclude that there are any motives or interests to falsely accuse the defendant.

86. On 15 January 2010, this witness was interviewed by the NCIS, which interview has been recorded in a report. On 11, 13, 15 June and 8 August 2012, the witness was heard by the Examining Judge. On 26 August 2012, he was, once again, heard by the Examining Judge. An official report of findings drawn up by the Examining Judge following the interview in June shows that the Examining Judge made efforts to convince the witness to talks with the available psychiatrist. The witness indicated that he did not feel the urge to do so, but upon being questioned about it, he stated that he still dreams about the genocide.183 An official report of findings drawn up by the Examining Judge following the interview on 26 August shows that the Examining Judge admonished the witness several times not to give his opinion about other witnesses or expert witnesses, when asked to do so by the Defence Counsel. The statement rendered by the witness on 26 August, has not been read to him.184

87. There are no substantial inconsistencies between these statements. The witness always stated his reasons for his knowledge. He is very good at making a distinction between matters he has personally experienced and things he has heard from other people. The fact that his memory deserts him every once in a while, is entirely understandable.

88. The Court has found no reason to believe that any special arrangements between this witness and other witnesses were made about rendering certain statements.

89. Also with respect to this witness the Defence has argued that he circles around the core group of [witness 1]185 and that he is a fanatic who always uses “the classic genocide clichés” when he says that the defendant’s daughters were not allowed to associate with Tutsis. Besides, this witness allegedly was lead by feelings of revenge and he is said to be a “survival activist”.186

90. In this respect the Court makes the same judgement as with respect to the witness mentioned above [witness 9].

91. With respect to this witness, the Court comes to the conclusion that the witness is credible and that there has been no proof of any facts or circumstances which would negatively affect the conclusive force of his statements.

Witness [witness 11]

92. Prior to the genocide, this witness was registered as a Hutu. He knew the defendant from his neighbourhood. He only followed 6 years’ elementary school.

93. This witness did not claim any damages from the defendant or her husband, nor did the Court conclude that there are any motives or interests to falsely accuse the defendant.

94. On 22 June 2009, this witness was heard by the NCIS and on 25 July 2011, by the Examining Judge. This interview was plagued by several incidents in relation to the way of questioning by the Defence Counsel.187

95. There are no substantial inconsistencies between these statements. The witness always stated his reasons for his knowledge. He is very good at making a distinction between matters he has personally experienced and things he has heard from other people. The fact that his memory deserts him every once in a while, is entirely understandable. Although the Court recognises that the witness has a limited understanding of time and place and distance, this does not necessarily affect the reliability of his statements.

96. The Court has found no reason to believe that any special arrangements between this witness and other witnesses were made about rendering certain statements.

97. With respect to this witness, the Court comes to the conclusion that the witness is credible and that there has been no proof of any facts or circumstances which would negatively affect the conclusive force of his statements.

Witness [witness 12]

98. Prior to the genocide, this witness was registered as a Tutsi. She is the second wife of the witness [R]. She is the aunt of [witness 2].

99. This witness did not claim any damages from the defendant or her husband, nor did the Court conclude that there are any motives or interests to falsely accuse the defendant.

100. On 13 January 2010, the witness was heard by the NCIS and on 13 and 15 November 2011, by the Examining Judge.

101. There are no substantial inconsistencies between these statements. The witness always stated his reasons for his knowledge. He is very good at making a distinction between matters he has personally experienced and things he has heard from other people. The fact that his memory deserts him every once in a while, is entirely understandable.

102. Also with respect to this witness the Defence has argued that he circles around the core group of [witness 1] and [witness 6], which would make her statements unreliable.

103. The Court deems it to be sufficient to refer to the remarks made above about this kind of argument.

104. The Court has found no reason to believe that any special arrangements between this witness and other witnesses were made about rendering certain statements.

105. With respect to this witness, the Court comes to the conclusion that the witness is credible and that there has been no proof of any facts or circumstances which would negatively affect the conclusive force of his statements.

Witness [witness 13]

106. This witness is of mixed origin. His birth certificate mentioned "Hutu", but since his father was a Tutsi, he was more regarded as a Tutsi, in his own words. In 1994, he was 26 years old. In 2008, he was convicted to imprisonment for life by a gacaca-court for his involvement in the genocide. He is serving his sentence in the PCK in Gikondo.

107. This witness rendered statements before the Canadian authorities and many times before the gacaca-courts and, in February 2006, he testified before the Parquet Général.

108. On 3, 4 and 5 March 2009 and on 1 and 3 December 2009 he was heard by the NCIS. On 13, 16, 19, 20 and 21 December 2011, on 16 February 2012, on 16, 17 and 18 April 2012 and on 10, 11, 14 and 15 May 2012, he was heard by the Examining Judge.

109. There are reasons to believe that [witness 13] would not shy away from rendering false statements if he has a motive. For example, [witness 13] has stated that he did not commit the offences for which he was convicted, but that, before the gacaca-court, he made a confession to get a remission of his sentence. During the interviews, [witness 13] made serious and very detailed accusations towards witnesses [witness 1] and [witness 21]. According to [witness 13] in Gikondo they were important “génocidaires”. These accusations are completely unfounded. A possible motive to falsely accuse these persons may be that the conviction of [witness 13] was (also) base don the statements from [witness 1] and [witness 21], in the words of [witness 13]: “at the gacaca [witness 21] and [witness 1] rendered incriminating statements, whereupon we were convicted to imprisonment for life”.188 This conclusion in itself asks for great caution with respect to the statements rendered by this witness.

110. [witness 13] rendered detailed statements about meetings organised by the defendant and “death lists” that were allegedly drawn up during those meetings. Upon being questioned about his own participation, he adopted a very reticent attitude and he hid behind his “secret”. The same applied to questions about the massacres among the Tutsis after 6 April 1994; he gave very detailed testimonies but repeatedly put himself in the role of spectator instead of perpetrator. In this respect the Court has noticed that during the interviews with the Examining Judge, it proved to be very difficult to find out how the accused regarded his own role in the events. In the letters he wrote to the gacacas he would use the word “we” when talking about who had committed certain crimes. However, when rendering statements before the Examining Judge, it appeared that “we” would not refer to him, but to his “équipe". The Court quotes the passage from the examination:

Counsel: I don’t speak Kinyarwanda, but in the Dutch text the word ‘we is used all the time: “We had a meeting”, “we went out plundering”.

Witness: ‘We’ means: my équipe, since I belonged to this équipe too. But on that day, I did not participate in the plundering. This équipe was charged and since I belonged to it, I was charged too and convicted.189

111. About the murder of [victim C] on 22 February 1994, this witness has given testimony in such detail that, in all reason, these statements only could have been rendered by an eye-witness. But, at the time, he also stated that everything he said he had heard later from members of his “équipe”. He is not consistent about the role of the defendant. Sometimes he states: “Yes, Yvonne was against the Tutsis; the persons who killed [victim C] had been sent by Yvonne.”190 and at other times he denies having said this: “No, I did not say this like that, I was not sure. I did say that Yvonne was not innocent, but I did not say that the group had received its instructions from Yvonne.”191

112. [witness 13] also stated with great certainty and in much detail that he had personally seen that the defendant had left Gikondo on 7 or 8 April 1994, together with the Bucyana family and [I].192 When the Examining Judge confronted him with the fact that the statements from the defendant and many other witnesses showed that the defendant and her family had only left Gikondo on 15 April 1994, and not in presence of the Bucyana family and [I], the witness’ reaction was that all the others had lied or had forgotten.193

113. [witness 13] has also stated about how he, with his car, around 7 or 8 April 1994, had helped Tutsis get away to Hotel Mille Collines and how, after her stay at [witness 1], he had taken [witness 7] to Hotel Rebero. None of the other witnesses have stated about this, including [witness 7]. It is true that [witness 7] was not interviewed by the Examining Judge anymore after 6 April 1994, but to the NCIS she has stated in detail about how she had barely survived the genocide. [witness 13] does not appear as her rescuer in these statements. At the end of her statement, she said: “Then I fled to [BB, father of YY and witness 9], who, later on, took me to [witness 1] again. After that, the RPF came to the house of [witness 1] and we were saved.”194

114. [witness 13] also stated about nocturnal secret meetings in which the wife of president Habyarimana, Agathe Kanziga, allegedly participated. He makes very detailed statements, for example about the times at which she usually would arrive and by whom she would be accompanied. However, according to expert Guichaoua it is highly implausible that the president’s wife would have attended such meetings.195

115. The Court believes that parts of the statement of [witness 13] are demonstrably incorrect and/or not plausible. When telling his fictive or exaggerated stories, the style [witness 13] uses does not really differ from the one he uses in his other statements. Time and again, his statement is explicit, detailed and emphatic. To the Court it is impossible to make the distinction between truth and fiction in the statements rendered by [witness 13]. Besides, the Court cannot be sure whether [witness 13] also falsely accuses the defendant because he is convinced that she is a bad person. In his own words: “I would like to confirm that I do not know anyone in the world who is as bad as Yvonne.”196

116. Therefore, the Court judges that using his statements for any evidence whatsoever cannot be justified.

11 THE CDR IN GIKONDO AND THE INVOLVEMENT OF THE DEFENDANT IN PARTY ACTIVITIES

Introduction

1. In chapter 5 the Court already explained that the CDR was an extremist party of and for Hutus and that during party gatherings members were often stirred up to kill Tutsis. That chapter also described how the Interahamwe and Impuzamugambi developed themselves into armed militia. Chapter 7 put forward that according to expert Guichaoua, Gikondo became a centre of political activism for the MRND and the CDR. The present chapter will show that many of the local residents who were interviewed in connection with these criminal proceedings also describe Gikondo as a neighbourhood where the CDR manifested itself strongly and where the Interahamwe and the Impuzamugambi were free to operate. Subsequently it will be discussed whether the defendant was a member of the CDR and if she was involved in activities of the CDR or the Impuzamugambi in Gikondo.

Manifestations of the CDR in Gikondo

2. Witness [S]197 stated that he used to visit Bucyana at his house before he founded his political party. After that he did not visit the Bucyana family anymore, because he was afraid of the CDR. He was afraid of the possibility to run into extremist people in their house.198 At that time the abakarani of the market caused turmoil in Gikondo. The abakarani who dominated, who were visible there, belonged to the CDR. They would say: “We, the CDR’s”. In the build-up to the genocide the abakarani of the CDR got involved with the abakarani of the Interahamwe. They held demonstrations in Gikondo, they went out in the streets to advocate violence. This meant that they started beating people up. Around that time they attacked a number of houses and killed a few people. The witness saw these groups in Gikondo countless times, from 1992 up to 1994.199

3. According to [witness 5] Gikondo was a special district, because that is where the militia were created. There had been problems in that district ever since 1993, when the CDR was active. In that year the members of the CDR, the Impuzamugambi, and the Interahamwe beat up very many people and went on the rampage in this area. Between September and December 1993 he saw many CDR-groups and Interahamwe in the Gikondo district. They actually formed one group, but by their uniforms he could tell who belonged to the Interahamwe and who belonged to the CDR. He personally witnessed a demonstration whereby a boutique was plundered.200 With reference to the animations that took place he stated the following: “The animations took place more often. We were used to them. The only thing one could do was tell another person about the date of the demonstration, so people could warn the others and take this or that direction.”201

4. [ witness 6] testified that she had had many problems with the Interahamwe in Gikondo since October 1990. The first time she watched actions by the CDR in her district was in 1993. In that period she did not dare walk in the streets by herself.202

5. [ witness 4] has seen many demonstrations in Gikondo. On those occasions the Interahamwe and Impuzamugambi would use violence. They would stop people in the streets, smash cars and some people were even beaten up. This was done by the Interahamwe and the CDR, the Impuzamugambi. He was able to recognise them by their uniforms. CDR and MRND would carry out their demonstrations separately, but if they intended to demolish a house then they would go together. When the Examining Judge asked him on which day of the week these demonstrations usually took place, he answered: “It was always a surprise. At a certain moment I would see people demonstrate in the streets or demolish a house.”203

6. According to [witness 10] people would try to escape at the other side at the times when the CDR was seen in the district. CDR-members, who could be identified by their clothing and caps, stopped him in the street and beat him up.

7. [ witness 22]205 testified that in the period from 1990-1994 CDR-supporters were at Bucyana’s, you could see them when you walked past the compound. They were armed. 206 [witness 22] describes the CDR as “hot”, their activities were very intense. The youngsters were very excited, heated-up.207 On the main road to Gikondo CDR-members once shouted at her because, without being aware of it, she was dressed in the MDR-colours (black/red). It came to such a point that she decided to go back home and change her clothes in stead of walking on to school.208

8. [ witness 16]209 stated that Gikondo had a reputation, it was a difficult district because many Interahamwe lived there. It was one of the hottest neighbourhoods of Kigali (l'un des quartiers les plus chauds).210 In January 1994 people said that there were FPR-infiltrations in that district and they started building road blocks.211

9. [ witness 12] testified that there would always be fighting after a meeting of the CDR in a stadium. They had no peace, they were always fighting.212 Especially after a demonstration had taken place the Impuzamugambi would start to act shamelessly and drink beer without paying. They would also start plundering, but nobody would be killed. The massacres only started after the death of Bucyana.213

1. These testimonies confirm that the CDR manifested itself actively in Gikondo since the party’s foundation in 1992 until in April 1994 and that the Impuzamugambi and the Interahamwe often acted violently in this district. The outburst of violence which took place in Gikondo on 22 February 1994, the day that Bucyana died, which caused fatal casualties, will be discussed in chapter 14. For now the Court will only observe that the attacks on local Tutsi-residents that day were committed by the Interahamwe and Impuzamugambi.

Party-membership of the defendant

1. During the investigation no documents were found which prove that the defendant

was a member of the CDR, nor did the investigation produce documents which could demonstrate that she had a special position, at national or local level, within that party.

1. However, in 2009 during the ongoing preliminary inquiry, in a wiretapped telephone conversation the defendant herself told a girlfriend of one of her daughters in so many words that she had been a member of the CDR:

Yvonne: Well, you were allowed to become a member of the MRND if you wanted, that was really not obligatory! Especially for intellectuals! But, Papa ([X, defendant’s husband]) was a member of the MRND! Do you think I was a member of the MRND?

[daughter’s girlfriend]: Uhhh ..

Yvonne: No ... I was a member of the CDR.

[daughter’s girlfriend]: I thought you were a member of the MDR.

Yvonne: No ... I was a member of the CDR, really! Others were also allowed to join a political party according to their own choice! [daughter 1] was a member of the MRND and [daughter 2] was a member of the PSD. You cannot force anyone to become a member of a political party of your choice!214

1. On 13 October 2011, the defendant was questioned on this issue by the Examining Judge. First she told the Judge that this had been a joke and that she could not leave the movement of her husband. A little later however she said that she had made this remark to protect her family, because they were regarded as Tutsis and people thought that she belonged to the RPF.215

The Court does not consider the fact that she could not leave her husband’s movement to be a reliable statement. The defendant herself explained in the telephone conversation quoted in the above that everyone could become a member of the political party of his/her choice and that her daughters [daughter 1] and [daughter 2] had joined two other parties, being the MRND and PSD, respectively. The fact that this was indeed possible for her is also corroborated by expert Guichaoua, who explained that it happened regularly that one of the spouses was a member of the MRND, while the other was a member of the CDR.216 The Court wishes to observe that during the numerous pro-forma hearings the Defence argued that the defendant could not have been a member of the CDR, because her husband was a MRND party member as well as a Member of Parliament for that party, but did not use this argument during the Counsel’s plea. As for the second reason the Court believes that the case file does not include any evidence that anyone ever assumed that the defendant would be (have been) a supporter of the RPF, on the contrary. The Court does not understand either how mentioning that you were a member of the CDR in the period 1992-1994 could have contributed to the protection of family members in 2009, let alone the fact that it has not become clear against whom or what the family needed to be protected.

1. In this respect we should also explain a letter from the asylum lawyer of the defendant’s husband to the Ministry of Justice dated 20 February 1998, in which he writes: “My client observes that his wife (if the FPR finds out where she is staying and who she is or if she would be deported from Kenya) is also in danger of being prosecuted by the FPR because of the activities of my client and because of her own political activities” (italics by the Court).217 The Court concludes from this quote that the defendant, contrary to what she stated before the Examining Judge, was indeed politically active in an anti-RPF minded movement.

1. Many witnesses have stated that it was common knowledge in the neighbourhood that the defendant was a member of the CDR. [witness 1] stated that everyone in Gikondo knew this 218, [witness 6] said that people in the neighbourhood, especially in bars, talked about it 219, and [witness 3] stated that all the local residents spoke about it.220 These are some of the witnesses who have stated that they had seen the defendant participate in CDR-activities in the Gikondo district. The fact that most of the witnesses are not able to define what exactly was her position within the party or do not make consistent statements about this issue and attribute different roles to her within the CDR, does not affect the Court’s opinion. Also [witness 22], who did not see any activities of the defendant herself, had heard that the defendant was a member of the CDR. Both before and after the genocide she got "commentaires" from people in Gikondo, like “This lady is a member of the CDR” and “How is it possible that you have contact with such people?”.221 And also the witnesses [S]222 and Helène Kayiganwa 223, who asserted that they did not see the defendant participate in any political activities either, had been told that she was a member of the CDR.

CDR-activities by the defendant in Gikondo

  1. Many witnesses have stated that different CDR-activities took place in or from Gikondo, in which the defendant was involved one way or the other. They mentioned:

  2. demonstrations that started and ended in the street in front of the premises of Bucyana and Basebya;224

  3. CDR-members who departed from that location and came back to that location after gatherings in stadiums;225

  4. quiet’ political meetings, at Bucyana’s and Basebya’s;226

  5. - animations at Bucyana’s 227, in Roger’s bar 228 and at the defendant’s house 229 (in the compound or in front of the entrance to her house).

1. In this respect the Court points out an Article dated 10 February 1993 published in Umurava magazine no. 15, with the heading "Uko Gikondo yifashe", where one can read that the most important meetings in Gikondo were held at the house of Martin Bucyana, chairman of the CDR, whose house was more like a bar.230

1. In 1992 [witness 1] saw the first animation of the CDR in Gikondo. From that moment on he often witnessed such animations, sometimes two times a week, on week days. Those animations took place within the fencing around the compound of Bucyana, in front of Roger’s bar (Bucyana’s son). He used to see them around the same time, towards the end of the afternoon when he came back from his work along the road to Ruhengeri. The animations would already be going on. Most participants were youngsters, porters from the local market. There would always be twenty people or even more. Apart from those young people, also some women would attend, whom the witness refers to as the defendant and her girlfriends. ([girlfriend 1] [phonetically] and Mrs [ZZ]). There would be singing and dancing.

They would also sing the song named “Tubatsembatsembe” which, according to the witness, means: “They must be exterminated.” He was able to see and hear all this as he passed by the bar to go to his house, because during these animations the gate to the bar would always be open. The noise of the animations could even be heard once he was inside, in his own house.231

1. witness 1] stated in relation to the defendant: “These animations would always take place under the leadership of Yvonne Basebya.”232, “When you are the leader of a group, you always stand opposite of them. Like a choir. The conductor always stands in front of the choir.”233 and “The one who is the leader will start singing, the others will sing along. The others will follow that person. This person will lead the rest”.234 According to the witness the defendant was always the person who was the leader of the animations and she also sang “Tubatsembetsembe”.235 At the moment when [witness 1] heard them sing the song Tubatsembetsembe during the animations, he started wondering : “What is this? It is starting to get complicated.”236

20. [ witness 6] stated that the first time she saw CDR-activities in Gikondo was in 1993.

During weekends demonstrations would take place in the street. The young men who demonstrated were the abakarani. There would be lots more than twenty. The abakarani wore uniforms, sang slogans and would call people all sorts of names. They would hold their machetes and clubs up high.237 They would stand in front of the houses of Bucyana and the defendant. They would start their demonstrations there and would also end them there. During those demonstrations the defendant would always stand in the entrance to her house, the group would be opposite of her. She would do the same things as the group did. Jump, sing, show and lift the weapons in the air. She was “a leader who animated the group”. Sometimes she would also join the group when they left, then she would walk ahead. On those occasions [witness 6] saw and heard the defendant sing Tubatsembatsembe several times. She would dance and sing the songs referring to Itsembasemba [extermination], about the Inyenzi [cockroaches] and n'ibyitso byazo [their accomplices]. She was the lead-singer. It was easy to recognise her because she was the only woman in the group of men and she would walk in front of the group.238

21. [ witness 6] also stated: “She was not hidden. It was their goal to frighten us and to threaten us, in order to send out a signal.”239 One time [witness 6] saw the defendant while she was standing in front of the group dressed in CDR-clothes in Gikondo, during a demonstration of the CDR. She would put her hands on her hips, which was a common pose for her, “like a commander”. The entire group, including the defendant, had clubs and shouted “hihihi”. She stood in front of them “as if she were the commander-in-chief” and would make stamping movements with her arms and feet, it looked like they were marching on the spot. It reminded the witness of a herd of bulls who are being whipped up before they are let loose.240

22. [ witness 8]241 stated that animations took place at both Bucyana’s and Basebya’s. The animations at Basebya’s started before October 1993 and went on until the genocide in 1994. The animations used to take place on weekdays, but also during weekends. After 1993, according to her, the people who attended were more motivated, because they were angry. [witness 8] has seen a number of times what happened during the animations at the defendant’s house, for instances at moments when she went to the market. Through the entrance she would see people on the compound. The defendant would stand in her CDR-uniform next to the young men 242, “like a boss”.243 The sons of [BB, father of YY and witness 9] ([YY] and [witness 9]), just as [WW], [UU] and her own house boy [TT] would participate in these animations. They would sing and clap their hands, also the defendant. They all sang together “Tubatsembatsemba umwanzi in nde? Ni umututsi.” [the second part was translated by the interpreter who was present during the interview as: “Who is the enemy? He is a Tutsi.”].244 Everybody could see those animations. She could hear the voices of the people who sang when she was in the vicinity of the house of Bucyana, but the sound of the drum could also be heard when she was at home. The Tutsis who lived in the district were scared and thought that they would be killed. People would discuss these fears.245 Her house boy [TT] went to these animations shortly before the genocide and later on stopped working for her. Regarding what was discussed during these animations he said to her: “Our program is killing the Tutsis. All Tutsis will be killed.” and “After your death we will stay here and live in your houses”.246

23. [ witness 2] indicated that at Roger Bucyana’s bar there was a spot where the CDR-animations took place. She would be able to see the animations from the street through (the fencing) of the gate.247 According to her the animations started in 1992 and used to take place on weekdays.248 She saw them before she left for Switzerland in October 1993.249 Approximately 50 people would attend the animation, including Congolais 250, [RR], [YY] and [PP]. The abakarani251 were there and they would dance and sing songs, Tubatsembatsembe. That they would destroy the Tutsis, exterminate them. There was a CDR-flag and the people who danced wore CDR-caps. [witness 2] saw that the defendant would sometimes stand in front of these people, as if she were the boss, who would be conducting the people that were singing and dancing. She would stand there as their leader.252 Apart from the defendant there were two other women ([QQ] [phonetically] and the wife of [ZZ]).253 The witness was able to hear what they sang in the street. Locals would stay outside at first, that was before 1993. Later on they started shouting and saying many nasty things, so the locals would get scared and go inside.254 She illustrated this as follows: “If you met someone, you told them that there was an animation and that it would be better not to pass by. They used abusive language. Words that said that we were going to die. It was most painful.”255

24. [ witness 3]256 saw three to four CDR-meetings, in the bar at Bucyana’s. According to him this was both before and after Bucyana’s death. He used to see abakarani go to those meetings, including [YY] and [BB, father of YY and witness 9].257 They would participate in the animations, sing and dance. He could see them sing while he was out in the street.258 The defendant would be the leader of these gatherings, sometimes Roger Bucyana would be there too. The defendant would wear a CDR-cap or a scarf (foulard).259 During those animations they used to sing “Yee yee Tubatsembatsembe”. That word is derived from the verb Gutsembatsemaba: to kill everything. It was a well-known song in that period. They would sing loudly.260 [witness 3] did not watch the defendant sing herself, he saw her sitting in front of the group. He saw her making gestures as someone who was a teacher. People listened to her with attention. He also saw her hand out a CDR-cap to a member.261

25. [ witness 12] stated that she saw the meeting in the bar at Bucyana’s for the first time in 1993. Later on these meetings would take place on a regular basis. There was a CDR-flag in that bar. Before the start of the meeting, they held an animation. When you walked by in the street, you could hear the songs that were sung during the animation. After they had finished singing they would start their meeting, but you would not be able to hear that. The Impuzamugambi who attended those gatherings wore uniforms and CDR-caps. During those animations they sang Tubatsembatsembe. This means: let us exterminate them, the Tutsis. [witness 12] became scared when she heard this, to her the singing of those words meant that they were crossing a line.262 She has seen the defendant on her way to these meetings, wearing a CDR-cap. She has seen her going inside at that place. The defendant also did the animation with a group of women. She sang songs with the text: “Amatay Umuhutu Umututsi Ntakayanywe”. What it boils down to is that when a Hutu has milk from his cows, the Tutsis are not allowed to drink that milk.263 Furthermore animations were organised in the neighbourhood in preparation of the big meetings that were held in a stadium. They used to go there by buss or by feet. On those occasions the Tubatsembatsembe-song was sung in the street. The defendant was an important person and she would go there by car, but she would be wearing her CDR-cap.264

26. The CDR-demonstrations described by [witness 4] started, according to him, on the day that Bucyana died. But even before that date the CDR had already organised meetings. If there was a demonstration, the uniformed demonstrators of the CDR would depart from Bucyana’s. During the demonstration they sang Tubatsembatsembe, “exterminate all of them.” The ones who needed to be exterminated were the Tutsis or other persons who were against them. The group went out to attack civilians and when they came back they were served drinks in Roger Bucyana’s bar.265 Their leaders would also come out there to have a drink. He could see all this when he was standing in the street in front of the compound of [witness 1]. They also sang in the bar. They sang out loud, with great volume, and they danced too. The civilians in the street could hear this. The leaders in the bar - [CC], [DD], Roger Bucyana and the defendant - would also be chanting and dancing. They helped the demonstrators to sing.266 When the Public Prosecutor asked him why he saw the defendant as one of the leaders of the CDR [witness 4] answered: “I saw a group of four or five persons. At a certain moment other people arrived, about one hundred, and they all gathered around them. That is how I concluded that they were the leaders.” 267

27. [ witness 5] stated that the defendant organised CDR-animations at her home. He saw this when he walked along the street past the compound of Basebya, because her house was situated a little bit higher than the street level. It was also possible to see this from [witness 1]’s place.268 He himself witnessed an animation at the defendant’s home approximately two times. Each time he saw a group of women in CDR-uniforms. He saw the first animation between September and December 1993 and the second one he can remember took place in January 1994. The defendant was standing on the veranda in front of a group of women 269, he was able to see her face but he could only see the other women from the back.

They sang Yeehe Tubatsembatsembe. They would sing out loud, everybody could hear it.270 He did not see the defendant sing this song. When the Public Prosecutor asked him about the defendant, the witness described her role as follows: “I saw her standing in front of the group of women as someone who gave the instructions and at that moment the women started to sing. (…) She gave them a message. After that message the women began to sing.”271 He also heard the defendant sing: “Impuzamugambi, muri Mwese, Impuzamugambi muri maso.”272 According to [witness 5] in his statement rendered to the National Criminal Investigation Service (NCIS) this means: “Are all of you Impuzamigambi? Are you all awake?”273

28. [ witness 9] stated that local residents had told him that approximately three meetings had taken place at the defendant’s house in the last months of 1993 and in January/February 1994. He talked about it to others, who had the same problems as he did.274 At one occasion he saw a meeting himself. When he was walking past Basebya’s house he saw between 20 and 30 youngsters leave her premises. Some were wearing caps of the Interahamwe, others of the CDR. Several young men were holding clubs.275 He ran away, just like all the others. Because if they could get their hands on you, they would beat you up with their clubs. He saw them running after people and threaten them. They shouted Tuzabatsembatsembe and they whistled in order to scare people.276 Later he heard that people had been beaten that day.277 One of the men who attended the meetings was [EE], an Interahamwe. [witness 9] stated that this man had told him that they spoke about how to kill the Inyenzi.278

29. [ witness 10]279 stated that he had also seen CDR-meetings at the defendant’s house when he still lived across from her. He moved in May 1992.280 Altogether he saw three or four meetings that took place at her compound.281 According to [witness 10] similar meetings were also held at Roger Bucyana’s bar.282 He had seen Roger Bucyana, [witness 13] and [FF] go to the meetings at the defendant’s house. Most people who went there were the abakarani. It would always start like a meeting, afterwards they would become “warm with the spirit of the military”. He saw people on her premises carrying weapons. They sang and danced. They said: “The enemy is a Tutsi.” That was some sort of a moral standing. They send out a message during their meeting. Afterwards they went outside “like people who are crazy”. They would go to attack houses or to create road blocks. One day [FF] attacked him. [FF] said to him: “I can do to you what I want" and “I was a PSD, but now I have joined the CDR”. Next [witness 10] gave him 200 Rwf to buy beer and then he was released.283 After his removal [witness 10] visited Gikondo from time to time to visit friends. One time he was close to the street where the Basebya family lived and he saw very many people who were demonstrating. This took place outside in the street close to the market, near the compound where Basebya’s house was located. People said to him: “Look, the meeting was held at Yvonne’s. Where are you going?” The street was closed off and there was a road block.284

30. On one occasion [witness 11]285 saw a demonstration in Gikondo, two or three weeks after Bucyana died.286 There were more than 30 men, abakarani 287, they were wearing CDR-caps. They carried sticks and clubs studded with nails and sang Tubatsembatsembe.288 The defendant was present as well, she was walking on the side of the group.289 She was singing together with the others and was waving here right arm from left to right. Looking at her gestures the witness concluded that she was a leader, because if someone moved her hands like that, that meant that that person was a leader. 290

Meritorious defence against these incriminating statements

31. The Defence argued that these witnesses have not rendered consistent statements about the animations and have not mentioned a precise period in which these animations allegedly took place, let alone mention a certain date on which they saw the defendant in her role of animator.

32. The Court concludes that the statements of these witnesses refer to a longer period of time and cover a multiple and diverse range of the CDR-activities whereby, according to them, the defendant played a leading role. The fact that the witnesses do not all state about the same sort of “gathering”, and indicate that they witnessed CDR-activities in the streets at different times and locations, does not mean that their statements are unreliable. Partly because of the lapse of time and also because of this multiple and diverse range of activities, one cannot expect the witnesses to remember exactly on which day or days these specific activities took place. In the street where the defendant lived there apparently was a lot of coming and going of CDR-members and different types of party activities that took place at different times. The fact that not every witness saw the same activities does not detract from the value of those testimonies as evidence. Moreover, the fact that they did not exactly render identical statements makes it less plausible that they are deliberately telling lies and/or have adjusted their statements in order to be in line with the others.

33. The Defence also argued that these incriminating statements cannot be true because a large number of other witnesses have made exculpatory statements regarding the defendant. Although most of them lived in the defendant’s neighbourhood, they did not see any political activities being performed by the defendant and did not observe an anti-Tutsi attitude in her. In the following paragraphs the Court will examine if, and if so in how far these “exculpatory” statements detract from the evidential value of the incriminating statements.

34. As for the three children of the defendant who were interviewed by the Examining Judge and did not invoke their right to decline to give evidence based on their relationship with the defendant 291, their motive not to incriminate her is evident. Making incriminating statements would most certainly lead to their mother’s conviction and long term imprisonment.

35. At that time [S] lived in Gikondo, near the market.292 As reflected in the above (paragraphs 2 and 15) he testified about CDR-violence in the Gikondo district and about the CDR-membership of the defendant. However, he explicitly stated that he did not know the defendant as an active member of the CDR, and that he had never heard her say anything that conveyed her extremist ideas.293 He does not know if any party activities took place at Bucyana’s (bar), in any case he stated not to have seen such activities at the defendant’s premises.294 The Court does not deem the statement of this witness to be reliable as to this matter. It really seems that he finds himself in a loyalty conflict regarding the Basebya family. His parents appeared to be friends of the Basebya family, and he personally had regular contact with the defendant’s daughters [daughter 1] and [daughter 2].295 However, it is more important to point out that together with, and with the help of, the Basebya family he managed to escape from Gikondo.296 De facto one could say that he owed his life to their actions. It is remarkable that in his testimony he indicated that for political reasons he hardly visited the Basebya family anymore after 1992 but, when asked for an explanation, his reactions are vague and evasive. He also stated that daughter [daughter 2] was not happy about the political activities of her parents (here: the plural form was added by the Court), but later he takes this back by stating that he did not specifically talk about her parents but that daughter [daughter 2] did not support the MRND and CDR, whereby the Court observes that these were the political parties that her parents had joined.297 Furthermore it seems that this witness not only does not want to incriminate the defendant, but is very reluctant in general to point an accusing finger at people from his former neighbourhood. According to his own words he never even heard about the fact that [GG], [CC] and [T], whom he knew well, were even involved in the genocide298, while a majority of the local residents who were interviewed describe them as being notorious for committing genocide. [GG] and [CC] were even convicted for this serious offence and are in detention at the moment.

36. Also [witness 15], son of the late Bishop Aaron Ruhumuriza (friend of the Basebya family) and his wife [witness 16], who were both registered as Hutu, fled from Gikondo together with the Basebya family. This implies that also in their case it can be said that there is a big chance that they would not have survived without Basebya’s help. Both of them have put this into words.299 The Court assumes that this couple is also confronted with a loyalty conflict. Stating that they do not remember any political meetings in their district, let alone on the defendant’s compound and in her presence 300, can be explained in the opinion of the Court as a possible consequence of their relationship with the defendant. Moreover, [witness 16]’s statement that she does not remember any political meeting is inconsistent with her comment that Gikondo was one of the hottest districts of Kigali.

37. [ witness 23] is Jean Sefara’s son. At the time, the Basebya and Sefara families were good friends. This witness is still on friendly terms with the defendant’s family. Until shortly before her arrest he maintained contact with the defendant. He sent her relevant documents in connection with this court case.301 In his testimonies to the NCIS and the Examining Judge he adopted a reticent attitude and stated that he knew very little about the defendant.

38. [ witness 17], registered as Hutu at the time, and her godchild [witness 18], who was registered as Tutsi at the time, are also considered to be exculpatory witnesses by the Defence. [witness 17] stated that she had never been aware of any political activities by whatever party in Gikondo and that she had never discussed this issue with anybody in all those years.302 However, it is an established fact that political gatherings took place frequently in the Gikondo district. The fact that she was not aware of these cannot be considered exculpatory for the defendant just like that. The same goes for [witness 18], who together with [witness 17] found refuge for a few days at the defendant’s home in April 1994 and does not have any recollections of any political activism in the district either.

39. [ witness 22] stated that in the period from 1990 to 1994 she was not interested in politics.303 She used to visit the Basebya family and the defendant’s kids were her friends.304 Those visits usually took place during the school holidays. The Court considers the statement of [witness 22] to be important in so far as she stated about the general atmosphere in Gikondo in that period and that already at that time she had heard that the defendant would have been a member of the CDR. In all other respects the Court does not deem her statement relevant to the case, as it appears that she can give little information about the daily activities of the defendant in that period.

40. Concerning [JJ] and [KK], both registered as Tutsi at the time, the following is relevant. Both are closely involved in the Basebya family. [JJ] is known to be a friend of the defendant and she is the godmother of daughter [daughter 1]. [KK] is a sister-in-law of the defendant. According to the Court that relationship is a possible motive for not wanting to give incriminating evidence regarding the defendant. The Court repeats here (see chapter 9, paragraph 16 ff.) that general hatred against the Tutsis was not an obstacle for keeping friendly relationships with individual Tutsis.

41. [ LL] and his sister [MM], both registered as Hutu at the time, are friendly with [daughter 2], one of the daughters of the defendant. As appears from [LL]’s statement before the Examining Judge, he can hardly state anything personal about the defendant, he used to see her in church at the time and occasionally during the weekends.305 His sister cannot give any particular information about the defendant either, “she was not close with her”.306 Both statements are neither incriminating nor exculpatory for the defendant and therefore they do not have any value for this case.

41. [ NN], registered as Hutu at the time, who became famous as the manager of hotel Mille Collines, whose story served as the basis for the film “Hotel Rwanda”, rendered a written testimony in favour of the defendant. In brief, the essence of that testimony is that it is unthinkable that she would have been involved in the genocide. This witness statement was concluded at the request of and with the cooperation of the defendant’s family. On giving evidence before the Examining Judge it appeared that the largest part of the information included in this testimony had been supplied by (close) family members of the defendant and by the defendant herself.307

43. This witness stated before the Examining Judge that he had been in Gikondo only once in the period between 1990 and 1994, and that he had heard nothing in particular about the district during this period.308 He only knows the defendant based on his position as manager of the hotels “Mille Collines” and “Diplomates” in Kigali. Those encounters had a professional nature and boiled down to a polite, official greeting of the Basebya couple prior to ceremonies which took place at those hotels.309 He could not tell anything about the private life of the defendant from his personal knowledge. His assertion that the defendant could not have been involved in genocide activities is based on the fact that he knew her as “a good human being” and that he had not heard anybody state the contrary before, during or after the genocide, until her indictment.

44. The Court does not attach any significance to this “exculpatory” statement. The witness only knew the defendant superficially, could not tell anything from his personal knowledge and could not mention anything in particular about Gikondo. He is a so-called character witness who cannot give any relevant information from his personal knowledge about the person whose character he describes.

45. Furthermore, the Defence pointed out the statement rendered by [witness 21], registered as Hutu at the time and an important member of the MDR. During his interview he stated that he had never visited the defendant’s home and had not spoken with her. He had never seen any activities at her home.310 He did not know if the defendant was a member of a political party and never heard anything about this.311

Therefore [witness 21] cannot (or does not want to) state anything about the defendant from his personal knowledge. Furthermore he stated that he never saw any CDR-political activities in Gikondo, no meetings, animations, demonstrations, or marches. He also stated that during the events prior to the genocide no violent incidents against Tutsis took place in the district, only against those who opposed the MRND.312 Taking into account the information which has been established from open sources, the Court deems this statement to be completely unreliable and for that reason no importance will be attached to this testimony.

46. [ OO], registered as Hutu at the time, was considered to be the first vice-chairman of the CDR. At present he is on the run while being accused of complicity in genocide by the Rwandan authorities. He and [VV], a brother of Jean Bosco Barayagwiza, have been presented by the Defence as “CDR-insiders”. [OO] testified that he did not live in Gikondo himself, but would go there from time to time to visit Bucyana on weekends.313 Bucyana never told him anything about the CDR in Gikondo, and so he did not know who was the leader of the CDR at local level.314 He cannot remember either where the local CDR held its meetings. He had never visited the defendant’s home.315 The only information he had about the defendant was that she was the wife of a Member of Parliament for the MRND and had worked together with him at the Ministry in the past. [VV], also registered as Hutu at the time, denied having been involved in the CDR.316 He never attended a meeting of the CDR and never talked about the party with his brother.317 He never visited Gikondo.318 He knows the defendant through her work, but said that he had never spoken to her at the Ministry.319 So both witnesses indicated that they had not visited Gikondo (frequently) in the relevant period and that they did no know the defendant very well. Moreover [VV] stated, for what it’s worth, that he had never been involved in the CDR at all and that he knew nothing about the local CDR. The latter also applies to [OO]. For that reason the Court will not give any significance to the statements of this witness.

47. Following the previous witnesses the Defence pointed out the testimony of [VVX], the wife of [VV]. At the time this witness was registered as Tutsi. She denied that her husband was a member of the CDR.320 She never visited the defendant’s home and only saw her twice since 1991. She did not know anything about her in that time. The only thing she knew was that she was a friend of her aunt and the wife of a Member of Parliament for the MRND.321 Therefore the Court does not deem this testimony in any way relevant for the case either.

48. The statement rendered by [AAB], who was registered as Hutu at the time, is not believed to be reliable by the Court. Several witnesses accused him of being involved in the violence against Tutsis in Gikondo in April 1994, which he denies. More specifically this concerns the accusation that he disclosed to the defendant that [victim A] had gone into hiding in his house, which betrayal caused the victim’s death (see: chapter 16). Whatever might be true of his involvement, in any case the Court considers this a possible motive for him to give evidence which is not in conformity with the truth.

49. Concerning the witnesses who are in detention in Rwanda, such as [ZZY], [GG], [ZZX], [ZZW] and [witness 9] the Court makes the following considerations. The Court had already decided that the testimony of [witness 13] who made incriminating statements about the defendant, cannot be used as evidence. Also regarding the detained witnesses who made exculpatory statements one needs to be very careful. It has not become clear what the actual situation of their criminal proceedings is at the moment and if a revision of their judgements is still possible (either in a positive or a negative sense for those witnesses). Therefore the Court will not take these testimonies into consideration.

50. As far as [EEF] is concerned, the Court is aware that he is no longer in detention, but he has testified that he does not know the defendant and her husband.322

51. Furthermore the Defence brought forward that (also) other witnesses in the case file stated to have no knowledge of the defendant and/or her activities for the CDR, mentioning in particular [EEG], [EEH], [L], [BBC], [EEI], [EEJ], [Z] and [W].

52. The case file shows that witnesses ([L], [BBC], [EEI], [EEJ], [Z] and [W]), some of whom were still very young at the time, did not know the defendant personally, or only knew her superficially. In that respect their statements are not considered exculpatory. The same applies to [EEH], the brother-in-law of [witness 6], who only stayed a short time in Gikondo as a visitor and who cannot recall the defendant anymore.

53. As follows from the statement of [EEG], he indicated to the Examining Judge that other civilians had told him that meetings were held Basebya’s place, but that he had not seen them personally because he did not live in that street. He cannot remember the defendant at all and – wrongly - proceeded on the assumption that her husband had died in an accident in an elevator before the outbreak of the genocide.323 For that reason the Court will not attach any incriminating nor exculpatory significance to this evidence.

Conclusion regarding the reliability of the incriminating statements

54. The Court has already established that the differences between the evidence represented in this chapter of the witnesses who made incriminating statements about the defendant do not detract from their reliability (see: above paragraph 32). This also applies to the exculpatory statements relied upon by the Defence (see paragraphs 34 up to and including 53). As explained before in chapter 8, these statements can only be tested against objective information in a limited way.

The Court concludes however that the statements made by the witnesses are consistent with the information which is generally known from open sources concerning the (violent) party activities carried out by the CDR, also in Gikondo, and that the wiretapped telephone conversation has firmly established that the defendant was a CDR-member. Moreover, within the Rwandan context in the years 1990-1994, the statements made by these witnesses are considered highly plausible.

55. At this point the Court repeats (see chapter 8 paragraph 29) that the evidence of the witnesses should be viewed together and in relation to each other (‘tribunal of fact must never look at the evidence of each witness separately....it is the accumulation of all evidence in the case which must be considered’). The Court finds that the incriminating statements rendered by eye-witnesses largely support each other. Their evidential value is even stronger since the first documented accusations about the defendant’s CDR-activities date from as early as March 1995.

Conclusion regarding the animations

56. Therefore the Court deems that it has been legally and convincingly proved that starting from the foundation of the CDR, over a longer period of time, the defendant acted many times as animator at CDR-meetings where they aggressively instilled hatred against the Tutsis and where they encouraged their members to kill Tutsis. The latter can be already concluded from the singing of the Tubatsembesembe song under the direction of the defendant.

57. The propaganda meetings led by the defendant were attended by abakarani, among others, some of whom have been mentioned by their names in the witness statements. Other animations took place which were attended by women.

Recruitment of the Impuzamugambi

58. Furthermore, the Court deems that it has been legally and convincingly proved that the defendant was actively involved in the recruitment of abakarani and others for the CDR-youth and that she provided them with money, uniforms and food. The Court derives this conclusive evidence from the statements of [witness 5], [witness 8], [witness 9], [witness 4] and [witness 10].

59. [ witness 5] stated that in 1993 he used to see the defendant talk more often to the young men at the market, the abakarani. [EEK], who was also among those young men, had already told [witness 5] earlier that year that she recruited people to transfer from the PSD to the CDR, the Impuzamugambi. Also [EEL], an Interahamwe, told him around that same time that the defendant came there to recruit the abakarani. Allegedly the defendant had told the young men that they could eat free meals in a restaurant and that the CDR would pay for those meals.324

60. [ witness 8] stated that her house boy [EEM] would attend those animations in the events prior to the genocide. He told her that the defendant recruited the boys. She gave them money, they put on the uniforms at her place and she was their “boss”.325

61. [ witness 9] was told by [EE], an Interahamwe, that they were served food during those meetings. According to [EE] they also received weapons “at Basebya’s”.326

62. On 7 April 1994 [witness 4] saw [EEL] with a gun. When he asked him where he had found the gun, he answered: “at Basebya’s”. [EEL] did not tell him who was the person who had handed him the gun.327

63. [ witness 10] stated that he did not see that the people who left the defendant’s house had received weapons, but that this was obvious to him because they said “We went to see her. We will get machetes, francs.” And he also stated that he had seen those people with weapons.328

64. The Court does realise that this is hearsay evidence. The witnesses gave evidence to the Examining Judge about what others had told them. Nevertheless the Court can rely on these statements because they are perfectly in line with what is said in chapter 5, paragraph 14, about the recruitment of prospectless young men by the different political parties and the comments expert Guichaoua made during his interview with the Examining Judge: “The young men would go where they got the best money offers. […] The main task of the parties was to finance the activists. Possibly you joined them based on personal convictions, but if there was no consideration, if they did not compensate you, then you would not join. Young people gave power to the politicians. The young people’s section of the parties needed support. The young people who go there where most money was offered.”329

65. However, the hearsay statements about the distribution of weapons do not incriminate the defendant in particular.

Lists of Tutsis mentioned by their names?

66. There is no doubt about the fact that local Tutsis would become victims of aggression committed by youngsters after the animations. Contrary to the assertions of the Prosecution, the Court cannot find enough reliable evidence in the case file that during the animations certain individual local Tutsi were mentioned by their names as persons who should be attacked. None of the above incriminating witnesses ever attended these propaganda meetings. More than that, they anxiously stayed at a distance. None of them has ever stated that youngsters who attended the meetings had told them that at those meetings they were incited to commit violence against individual Tutsis whose names had been mentioned. [witness 13] was one of the young people who attended the meetings. He also mentioned the word “secret”, in other words closed meetings at the defendant’s house. Based on the legal grounds about this witness in chapter 10, the Court will not pay attention to his statement that during these meetings individual Tutsis – like [witness 6], [witness 8] and [witness 5] – were designated as special targets (in the wording of [witness 13] “wanted”). There is no other evidence which corroborates this information.

67. The Court has no doubts either about the fact that such “death lists” circulated around that time, which mentioned the names of Tutsis who lived in Gikondo. The letter from the mayor of Kicukiro following the events on 22 February 1994 which will be discussed below, in which he writes that it looked as if the victims of the violent attacks on that day were registered on lists that had been drawn up previously, is considered to be strong evidence in this respect.330 Many witnesses have stated about these lists, but most of their information was based upon “hearsay” at the gacacas. [witness 5] stated that one of the abakarani had shown him such a list, which had his name on it.331 [witness 6] stated that her husband [victim F] had told her about a “death list” which [CC] had shown him.332 [witness 23] stated that he had seen the name of [witness 6] on a list.333

68. The only witness (apart from [witness 13], whose statement will not be used as evidence by the Court) who stated that the defendant had drawn up a “death list” is [witness 8].334 She stated that at a certain moment between 1990 and 1994 Jean Sefara’s wife had shown her a list with names of Tutsis who had to be killed which, according to her, had been written by the defendant. When later on she saw that list, she recognised the defendant’s handwriting because during the preparations for her wedding the defendant had written down all items that were needed for the party. The Court cannot rely on that statement. In any case one should be very careful in recognising other people’s handwriting. In this case this applies even more because the “recognition” took place after the wife of Sefara had told the witness that the defendant was the author of that list and moreover because the witness had only seen the defendant’s handwriting for the first and last time in 1978, when she got married.

69. Therefore the conclusion needs to be that no legal and convincing evidence has been found to prove that the defendant was involved in drawing up “death lists”.

Mother-general?

70. The Prosecution argued that the defendant should be seen as the “mother-general” of the CDR-youngsters in Gikondo. The Prosecution put forward that the defendant was a person of high standing in the community because of her prosperity, origin, marriage, network, education and personality. Furthermore the Prosecution also relied on the statement of [witness 13] that Martin Bucyana and later on the defendant were the leaders of the secret meetings. The standing of local Hutu-power leaders such as Jean Ntawutagiripfa alias Congolais and [T], [GG] and [EEO], according to the Prosecution, was much lower than that of the defendant and they received instructions from her.

71. As concluded by the Court in the above, the defendant acted as leader during the animations. It has also been established that she was a woman of high standing and an “autorité morale”. The Court does not take into account the statement of [witness 13]

about the alleged role that the defendant played at the secret meetings. Apart from his statement, the Court has not found any evidence in the case file proving that the defendant stood at the top of the chain of command, with her subordinates being the local militia leaders.

72. For that reason the Court does not share the Prosecution’s conclusion that the defendant could be considered to be the “mother-general” of the CDR-militia in Gikondo.

12 INCITEMENT TO GENOCIDE

1. Under count 5 the defendant is charged with having orally incited others in public in her immediate living environment to commit genocide, in the period from 1 October 1990 up to and including 14 April 1994. As it has been established in chapter 3, the Public Prosecutor was partially barred from prosecution regarding this charge. In this chapter the Court will assess whether the defendant committed the offences as charged within the period from 2 October 1991 up to and including 14 April 1994.

Position of the Prosecution

2. The Prosecution demanded the Court to declare the charges proved that the defendant committed this criminal offence.

Position of the Defence

3. Before the Examining Judge the defendant pleaded not guilty to this offence. During the trial she invoked her right to remain silent in connection with this accusation. The Defence pleaded that the defendant should be acquitted of this charge.

Legal framework

4. Incitement to genocide

Until 1 October 1993, incitement to genocide was punishable pursuant to article 131 of the Dutch Criminal Code (Sr.) in conjunction with article 1, first paragraph, of the Genocide Implementation Act. From 1 October 2003 this criminal offence is made punishable under section 3 of the WIM.

5. Article 131 Sr. reads as follows:

A person who in public, either orally or in writing or by image, incites another or others to commit any criminal offence or act of violence against the authorities will be liable to a term of imprisonment of not more than five years or a fine of the fourth category.

Article 1 Implementation Act reads:

1. A person who purposely aims to entirely or partly destroy a national or ethnic group, a group belonging to a certain race, religion or philosophy of life, and intentionally:

1°. kills members of the group;

2°. inflicts grievous bodily or mental harm;

3°. imposes living conditions on the group which are aimed at its entire or partial destruction;

4°. imposes measures intended to prevent births within the group;

5°. violently transfers children of the group to another group,

will be considered guilty of genocide and will be liable to life imprisonment, or a maximum prison term of twenty years, or a fine of the fifth category.

Section 3 of the WIM reads:

  1. Anyone who, with the intent to wholly or partly destroy any national, ethnic or religious group or a group belonging to a particular race, as such:

  2. a) kills members of the group;

  3. b) causes serious bodily or mental harm to members of the group;

  4. c) deliberately inflicts upon the group conditions of life calculated to bring about the physical destruction of the group, in whole or in part;

  5. d) imposes measures intended to prevent births within the group; or

  6. e) forcibly transfers children of the group to another group,

shall be guilty of genocide and liable to life imprisonment or a term of imprisonment not exceeding thirty years or a sixth category fine.

2. Conspiracy and incitement to commit genocide which occur in public, either orally or in writing or by means of images, shall carry the same penalties as prescribed for attempted genocide.

6. Article 1, second paragraph of the Criminal Code provides that where a change has been made in the law subsequent to the time the offence was committed, the provisions of the law most favourable to the defendant shall be applicable. Following the ruling of the Supreme Court HR 12 July 2011 (LJN BP6878, NJ 2012, 78), in case of a change regarding the description of the criminal offence this provision is only applicable if this change results from a difference in the legislator’s perception regarding the degree of punishability of the criminal offences committed before the modification of the law, while in case of a change in a sanction law regulation (including the maximum penalty) the new provision concerned needs to be applied without being tested against this criterion, if and in so far as this provision is favourable for the defendant.

7. The Court concludes that by implementing the WIM the legislator introduced a systematic modification of the law. The contents of the description of the criminal offence has not been changed and there is no difference in the legislator’s perception regarding the degree of punishability of the criminal conduct. The question whether the defendant has indeed committed the offences as charged under count 5, and, if the Court declares these charges proved beyond any reasonable doubt, which criminal offence results from the conduct which constitutes the offence, will be addressed by the Court by applying article 131 Sr. in conjunction with article 1, first paragraph of the Implementation Act.

8. In chapter 11 the Court established that as from the foundation of the CDR on 22 February 1992, over a longer period of time, the defendant acted many times as animator at CDR-meetings where they aggressively instilled hatred against the Tutsis and where they encouraged their members to kill Tutsis and that the latter could be already concluded from the singing of the Tubatsembesembe song under the direction of the defendant. If these encouragements to kill Tutsis can be qualified as incitement to genocide depends on the answers to the following questions:

i. i) by doing so did the defendant have the intention to entirely or partially exterminate the Tutsi-population group as such;

ii) is the Tutsi-population group a protected group in the sense of the Implementation Act;

iii) did it concern a “direct” call for genocide;

iv) has the requirement been satisfied that the incitement took place in public.

9. The distinctive element of genocide is the aim to entirely or partly destroy a protected group as such. For the qualification of incitement to genocide it is required that the inciter himself/herself had the aim of creating a genocide.335 The inciter must have had the intention that the persons who were incited indeed went on to commit genocide.

1. This count of the indictment accuses the defendant of also having been involved in singing other “extremist anti-Tutsi songs” – apart from being the leader while they sang the “Tubatsembesembe” song – and expressing “extremist anti-Tutsi ideas”. Without a further description it cannot be established whether these expressions had a genocidal meaning. “Tubatsembesembe” literally means: “let’s exterminate them all”, or: “we are going to exterminate them all”. The Trial Chamber of the Rwanda Tribunal has ruled that this song had a genocidal meaning.336

1. Without direct evidence, like a meaning, which is lacking in this case, it must be concluded from the circumstances whether the defendant had this particular aim when she was the leader while they sang this song. In this respect the Court points out its judgement in the Van Anraat case 337, where paragraph 7.2 listed a number of circumstances which might be taken into account :

  • -

    the general framework in which the criminal offence took place;

  • -

    the circumstance that the protected group systematically became the victim of other unlawful acts;

  • -

    the extent in which the crimes were committed;

  • -

    hitting systematically on victims because of belonging to a certain group;

  • -

    the repetition of destructive and discriminative acts;

  • -

    the number of victims;

  • -

    the way in which the crimes were committed;

  • -

    the area where the perpetrator was active;

  • -

    the evident aim of the perpetrator to take the life of the victims;

  • -

    the seriousness of the genocidal acts which were committed;

  • -

    the frequency of the genocidal acts in a certain area;

  • -

    the general political framework in which the crimes were committed;

  • -

    expressions made by the perpetrator regarding the position and/or fate of the protected group.

1. The Defence argued that such a ruling on the evidence with underlying grounds should be handled cautiously. Indirect evidence cannot lead to a rapid conclusion of genocidal intent, according to the Defence. The Court agrees with this point of view. From the above mentioned circumstances it will have to be firmly established that no other explanation is possible than that in this case acting as a leader while singing the Tubatsembesembe song was done with a genocidal intent.338

1. As has already been established in chapter 5, from 1 October 1990 Rwandan society was torn apart by ethnic hatred and Tutsis increasingly fell victim to ethnic violence. There was widespread terror caused by the militia. Already in those days authoritative observers like Professor Schabas and UN reporter Ndiaye considered the mass killings of Tutsi civilians to be acts of genocide. As established in chapters 7 and 11, the living environment of the defendant was the centre of anti-Tutsi extremism and ethnic violence.

1. The animations where the defendant allegedly acted as the lead singer of Tubatsembeseme, fitted well in this poisonous political climate. Since the foundation of the CDR on 22 February 1992, the defendant propagated the extremist anti-Tutsi ideology of her party.

1. Being the lead singer of the Tubatsembesembe song during the animations was not an isolated act. The animations as a whole would be anti-Tutsi. The defendant would express herself in that context in an inflaming manner. They would stamp, whistle, jump and dance, while the defendant stood in front of the group like a choirmaster and sang Tubatsembeseme. It reminded the witness [witness 6] of a herd of bulls who are being whipped up before they are let loose.339 If armed youngsters were present, they would hold their machetes and clubs up in the air. The defendant would whip these young men up by leading the singing of Tubatsembesembe and other anti-Tutsi songs.

1. After these meetings it would become dangerous for Tutsis in the streets. Tutsis who lived in the neighbourhood did not dare show themselves outside. They were afraid of being killed and talked about this fear among themselves. Especially the singing of the Tubatsembesembe song would arouse fear in the local residents. This appears among other things from the statement of [witness 12], who stated about the feeling that the Tubatsembatseme song would cause in her: “Tubatsembatsembe means: let’s exterminate them. [...] That is overstepping the boundary. We were simply afraid of hearing those words.”340

1. The defendant made her extremist remarks during a longer period of time.

1. The defendant was aware, as results from her own statement, that she had high standing - autorité morale - in the neighbourhood. It also appears from numerous witness statements that people used to look up to her.

1. The Defence argued that the defendant did not have the intent to destroy all Tutsis, but that she only had the RPF-supporters in mind and that therefore her remarks

should be seen in the context of the military conflict. However, because of the circumstances described in the above, the Court believes that the defendant’s remarks were aimed at all Tutsis in her district and not only the alleged supporters of the RPF.

20. In view of these findings concerning:

20. the general as well as political framework in which the defendant’s remark were made;

20. the circumstance that the Tutsis at that time systematically became the victim of violence merely based on their ethnicity;

20. the manner in which and the specific context in which the defendant made her remarks;

20. the fact that the defendant made her remarks repeatedly;

20. the defendant’s social position as CDR-member and prominent local resident, as well as her authority over the public,

the Court deems that no other conclusion is possible than that the defendant, by being the lead singer of Tubatsembesembe during the animations, had the aim to destroy the Tutsi-population group as such.

21. By their consistent administration of justice, the Rwanda Tribunal has established that the Tutsi-population group can be regarded as an ethnic group within the meaning of the Genocide Convention.341 The Court concurs with this assessment.

22. The Defence argued that the use of language that the defendant is charged with was not direct and that therefore the requirement that incitement must not only be expressed “in public” but also “directly” has not been met.

23. According to the Genocide Convention, only direct incitement is liable to punishment. Therefore this requirement forms a component part of the description of the criminal offence in the Convention. Although ‘directly’ is not mentioned as part of the provision in article 131 of the Criminal Code, Dutch criminal law also requires that there must be a distinct relation between the inciting words and the criminal offence.

24. The Court deems that it is beyond doubt that the singing of “Tubatsembesembe” was a direct call for genocide. In view of the nature of the meetings and the public that attended them, this form of expression could not be explained in any other way than that it was an explicit call for the extermination of the local Tutsi-population. Without the intermediary of other circumstances or persons, this call could lead directly to genocide.

25. The Defence put forward that the defendant’s expressions did not have the aim to kill all Tutsis. The defendant could not have foreseen that 800.000 Tutsis would eventually be killed, according to the Defence. The Court concurs with the Defence in so far as there is no evidence that the defendant intended to kill all Tutsis in the country or in the region. However, in order to prove the intention of genocide it is sufficient to establish that the defendant wanted to destroy a part of the Tutsi-population, providing that this regarded a significant number of persons.342 In the opinion of the Court the defendant had the intention to destroy the part of the Tutsi-population that lived in Gikondo. The defendant had the aim to destroy the Tutsi-population as such in so far as this was possible within her reach. This concerned a significant number of persons.

26. Based on the Genocide Convention, incitement to genocide is only punishable if it was committed ‘publicly’. Article 131 also requires this public nature. In order to declare the charges proved, Dutch criminal law only requires that the defendant must have exposed herself deliberately to the plausible risk that her expressions could be heard by the public.343

27. The Defence argued that ‘publicly’ as defined in the Genocide Convention requires more than the Dutch provision ‘in public’, i.e. that the expressions must form part of ‘mass communication’. According to the Defence, the expressions should indeed have reached a sizable public and the defendant should have had the intention to mass communication. In this respect the Defence invoked the Rwanda Tribunal Trial Chamber’s judgement in the Kalimanzira case.

28. The Court does not read this requirement in the judgement referred to by the Defence, in which the Trial Chamber merely asserts that in case there is no question of mass communication, necessary evidence must be furnished to prove that the defendant had the intention that his expressions would reach the general public. Since that evidence had not been submitted in the Kalimanzira, he was acquitted of the charges.344 Contrary to the assertions of the Defence, the Rwanda Tribunal did pronounce judgements for public incitement in cases where there was no question of mass communication.345 According to the judgement of the Court, the notion ‘publicly’ in international criminal law does not differ from the Dutch component part ‘in public’.

29. The defendant was actively involved in numerous animations. Many people saw these meetings and many have testified that they heard the Tubatsembesembe song being sung under her leadership. Witness [witness 1] could even hear the noise of the animations when he was inside his own home. Therefore these animations did not have a closed character. And that is exactly what the local residents have stated as well. As worded by witness [witness 6]: “She was not hidden. It was their goal to frighten us and to threaten us, in order to send out a signal.”346 The Court believes that it is an established fact that the defendant expressed her ideas in public.

30. The defendant left Gikondo on 15 April 1994, but none of the witnesses has seen the defendant after the 6th of April. Therefore the Court will declare the charges proved and believes that the defendant is guilty of incitement to commit genocide in Gikondo up to 6 April 1994.

31. The investigation has not shown whether other persons besides the defendant provoked the participants during these meetings. For that reason the Court will not declare the charges proved that the defendant committed this offence jointly and in conjunction with others.

32. The Court deems it has been legally and convincingly proved that the defendant is guilty of incitement to commit genocide, committed several times, as described more in detail below.

33. That she, at several moments in time in the period from 22 February 1992 up to 6 April 1994, in the direct vicinity of her house (in the Gikondo district and in the municipality of Kicukiro) in the Kigali Prefecture (Rwanda), in public, being: in the street in the direct vicinity of her house and in the compound of her house and at the bar next to her house and in the compound of the house of Bucyana, which could be heard and seen from the public road, each time orally incited to commit a criminal offence, being genocide. For then and there, on multiple occasions, she was the lead singer of the Tubatsembesembe song in the presence of a group of persons (including youngsters and porters of the local market and women).

13 CO-PERPETRATION, INCITEMENT AND COMPLICITY

1. The Prosecution considers the defendant to be the ‘intellectual perpetrator’ of the offences that she was charged with under counts 1, 2 and 3 (genocide, attempted genocide and murder). Although the defendant did not carry out any overt acts towards the commission of these offences, in the opinion of the Prosecution she has full liability under criminal law, primarily as co-perpetrator, alternatively as inciter, more alternatively as accessory. With regard to criminal law the Prosecution speaks of ‘piercing the veil’. In this chapter the Court will state briefly what the terms co-perpetration, incitement and complicity shall be taken to mean.

Co-perpetration

2. Co-perpetration refers to a situation when two or more persons together jointly commit a criminal offence. Co-perpetration is based on the assumption that there is an intentional and close collaboration between two or more persons. This means that the co-perpetrators collaborate knowingly, thus intentionally, to commit the criminal act. The intention should not only be aimed at their mutual collaboration but also at the commission of the criminal offence. It is not required that all co-perpetrators carry out overt acts or that they are personally present when the criminal offences are committed. Their collaboration needs to be intensive and aimed at the unlawful act, whereas the participation of the co-perpetrator who does not carry out the overt acts should be substantial. In this manner it is possible that the co-perpetrator who does not carry out the overt acts is involved in the planning and/or organisation the criminal offence. Their close collaboration may appear among other matters from - explicit or tacit - agreements and assignment of responsibilities.

Incitement

3. Incitement is defined as a situation whereby a person, by using one or more means of incitement provided in Article 47 Sr. (gifts, promises, abuse of authority, violence, threat or deception, or by providing the opportunity, means or information) has intentionally solicited another person to commit a criminal offence because of which the person who was solicited can personally be held liable to punishment. Those actions must have been solicited intentionally and the intention of the inciter must have been aimed at both soliciting the other to commit the crime and at the component parts of the crime which the other person was solicited to commit.

4. The inciter must put the idea into the other person’s head to commit the criminal offence, “awaken the other person’s will” to commit a certain crime. A charge of incitement cannot be brought if the other person already had the idea to commit the crime before the inciter started his actions. However, a person can be held liable for incitement if the intention to commit a certain offence already existed in the mind of the incited person, but only materialised after the inciter’s actions. “The psychological change must have been caused by the inciter and the means that person used to incite the other to commit the criminal offence.”347

5. A charge of completed incitement can only be brought if the crime has been committed or if a punishable attempt was made to commit that crime.

Complicity

6. Persons are liable as accessories if they intentionally assist during the commission of a crime (simultaneous complicity) and those who intentionally provide the opportunity, means or information necessary to commit the crime (consecutive complicity). The intention of the accessory should not only be aimed at providing assistance or the opportunity, means or information to the perpetrator, but also at the crime itself. The actions of the accessory some how must have promoted or facilitated the commission of the crime. Different from the situation of being a co-perpetrator, the charge of being an accessory does not require the condition of close and intentional collaboration.

7. A charge of being an accessory can only be brought if the crime that was promoted or facilitated has indeed been committed or if a punishable attempt was made to commit that crime.

14 ATTACKS COMMITTED ON 22 FEBRUARY 1994

1. This chapter will discuss the allegations that the defendant, as intellectual perpetrator, was involved in the violent attacks on local Tutsis on 22 February 1994. This refers to the killing of [victim C], [victim B] and [victim D], the rape of [victim E], and unsuccessful attacks on [witness 6], [witness 2] and her mother [mother of witness 2], and [witness 8].

Position of the Prosecution

2. The Prosecution demanded the Court to declare the charges proved that the defendant was the co-author of the murder of [victim C], the rape of [victim E] and the attack on [witness 6]. Regarding the other charges the Prosecutor demanded acquittal in his closing speech.

Position of the Defence

3. Before the Examining Judge the defendant pleaded not guilty to these offences. During the trial she invoked her right to remain silent in connection with this accusation. The Defence pleaded that the defendant should be acquitted of this charge.

Assessment of the charges

Introduction

4. In the (late) evening of 21 February 1994, Félicien Gatabazi, former Minister of Public Works and chairman of the PSD, was shot and killed on his way home. Very soon the rumour spread that supporters of the CDR were responsible for his death.

5. The following day, 22 February 1994, (violent) demonstrations took place all over the country, also in Butare, the home region of Gatabazi. Around 13:00 hours it was announced that the chairman of the CDR, Martin Bucyana, had been killed in Butare on his way back from Cyangugu to Kigali. This news also spread like wildfire through the country, partially because of the information broadcasted through the media including radio Rwanda348. There were speculations that Martin Bucyana had been lynched by a mob of angry PSD-supporters in revenge for the death of Gatabazi.

6. After the announcement of Bucyana’s death, an ever increasing group of persons, including party members and members of the Impuzamugambi and Interahamwe, gathered in front of his house in Gikondo. In a letter to the prefect of Kigali dated 7 March 1994, the mayor of Kickero reported about 600 people who gathered there on that day.349

7. Information from public sources in the file shows furthermore that members of these youth movements, including the abakarani from the market, subsequently invaded the neighbourhood, attacked houses and killed all Tutsis as well as moderate Hutus that they could find in those houses. The number of casualties attributed to those attacks varies from 10 up to 40 persons.350 According to the report that was drawn up by the mayor of Kicukiro “Report on the violence in the municipality of Kicukiro from 22 until 23/02/1994” the fatal casualties of that day included in any case [victim C] and [victim B]. This report also informs that on this date an attack was carried out on the house of [victim D], whereby [victim D] received blows all over his body. As a result of this violence inflicted on him, [victim D] is said to have spent a week in hospital.351

8. The fact that [victim C] and [victim B] became victims of the violence in Gikondo on 22 February 1994 has not been contested. Nor has it been contested that [victim D] was wounded as a result of the attack on his house and that [victim E] was raped when she tried to run away from a group of young men. In view of the documents related to these circumstances as well as witness statements in the file, the Court proceeds on the assumption that these incidents as such did take place.

9. The question that needs to be answered by the Court is whether under criminal law the defendant can be held liable in any way for the violence that took place on 22 February 1994 in Gikondo, which was actually committed by other persons than the defendant.

1. Before addressing that question, the Court will first outline the events that took place according to witnesses prior to the violence in the neighbourhood (paragraphs 11 up to and including 14), especially in front of and on the compound of Bucyana. Subsequently, the Court will discuss what witness have stated in relation to these attacks (paragraphs 15 up to and including 37), and more in particular which perpetrators they recognised. After that the Court will answer the question about criminal liability of the defendant.

Events prior to the violence

1. witness 1] testified that on 22 February 1994 around two thirty the telephone rang in the living room of his house. At the same time he started to hear people whistling. He answered the telephone and it was [JJ] who phoned him, the girl that worked at the public telephone of Bucyana. She said: “It is important to be careful. Be careful. Close everything because Bucyana has just been killed.” [JJ] told him that she saw members of the CDR who had arrived at Bucyana’s house who said they needed to take revenge.352 [witness 1] walked to the door, slightly opened it and then he saw that members of the CDR and MRND, the youngsters, were arriving from every side and gathered at Bucyana’s place. Before he closed his door, he saw that the defendant was at Bucynana’s as well.353 She was on the premises and stood in between all the others who had arrived at his house, among the people who were whistling. The defendant was standing still and talking, but [witness 1] was not able to hear what she said.354

1. The wife of [witness 1], [witness 2], also testified that [JJ] had telephoned to their house that day to tell them that Bucyana was dead. After a few minutes she and her husband heard people whistling and shouting. Her husband went outside to shut the main gate. Then he walked down through the small gate to [witness 5]. [witness 1] went there to warn [witness 5], because he did not have a telephone.355 At a certain moment [witness 2] looked outside through the holes in the gate, without opening the gate itself. She saw that many people had gathered at Bucyana’s. The defendant was also there, she could be seen sticking out above the fence around Bucyana’s house. She was standing very close to the fence. Other people were arriving from the market - [witness 2] refers to them as Interahamwe - and they entered the compound of Bucyana’s house. The defendant walked up very close to the Interahamwe. After that the witness saw the Interahamwe go outside to start their attack.356

1. F] testified that he had gone out to shop at the market in Gikondo. When he arrived there he saw young men running away from the market in the direction of Bucyana’s house. Some of them he recognised as abakarani of the market, young men like [PP], [EEP] and [EEQ]. [EEP] and [PP] both carried machetes. Some of the youngsters were wearing civilian clothing, others wore the Interahamwe uniform. When he left the market around 15:00 hours, he saw a lot of people in the street at Bucyana’s. He saw a few youngsters leaving through the gate of Bucyana’s. They carried clubs, sticks and machetes. One of those young men was [EEQ]. [F] asked him what was going on. Next [EEQ] said to him: “I’ve just attended a meeting, because our leader has died”. When [F] asked about which leader he was talking, [EEQ] responded: “Bucyana”. [EEQ] advised [F] to go home as quickly as possible. Furthermore he said to him: “We have received the instructions.” and “The situation has changed.”357

1. The case file contains more witness statements who have stated that many people were out in the street where Bucyana lived that day and that there was a lot of noise.

[witness 20] testified that she heard people shout and whistle. A group of people came to the gate of her house. They pounded on the gate, but the gate was closed. They did not enter, she shouted. Then they moved on to the neighbours. 358 [S] testified that he saw a group of 20 to 30 people who walked from the market towards the roundabout.

They were singing Interahamwe and CDR-songs. Most of the people in the group were carrying clubs and sticks.359 [EER] has indicated that many Interahamwe were shouting, whistling, running back and forth through the neighbourhood.360

The murder of [victim C]

1. None of the witnesses has seen by whom and in what way [victim C], the wife of [witness 5], was fatally injured. Some witnesses did make statements about the events immediately before, during and after the attack, the way in which [victim C] was found – at that time she was still alive – the transport of the seriously wounded [victim C] to the hospital, where it was established that she had deceased. The most important witness statements will be represented below.

1. witness 5] testified that he had taken a nap after lunch and woke up when the attackers had arrived at his house. At that moment his children and his housekeeper entered the house. The attackers had broken the glass in the windows of his house, but it was not possible for them to enter, because there were bars on the windows. When [witness 5] asked his housekeeper where his wife was, he told him that his wife was outside. When he walked outside there was only one person left on the premises, whom [witness 5] described as a member of the Interahamwe. He was standing at the back of the premises, where his wife’s body was lying on the ground. He did not wear a uniform. His wife was on the ground. [witness 5] could not see any injuries on her, only that blood was running from her nose and mouth. He called the neighbours to help him take his wife to the hospital. At the CHKHospital (Clinique Hospitalier de Kigali) he spoke to a white doctor who told him that his wife had died. The doctor told him that her “crâne” (skull) had been smashed.361 This doctor had also handed him a “certificat de décès” (death certificate), which later on he submitted to the Dutch police. 362 According to this death certificate [victim C] had died that day in the hospital in Kigali as a consequence of “coupes et blessures, trauma crâne" (cuts and wounds, skull trauma).363 Finally [witness 5] also testified that he had seen the defendant when he was waiting in the street for a taxi to take his wife to the hospital. She was standing at the entrance of her house, in the street, approximately two meters from the gate to her house. Apart from her he did not see anybody in the street. 364

1. L], a daughter of [witness 5] and [victim C], was nine years old at the time of these events. She testified that [witness 1] had come to their house and told her mother that the president of the CDR had died, that the situation had now become difficult and that he advised them to stay inside. When they were still sitting outside in that house [the Court understands: the annex where the kitchen was located], they heard the attackers nearby and at that moment her mother told her to go inside. Her mother told her to close the door. When [L] was inside the attackers arrived at their house and started to smash the glass windows of the house. Her father woke up because of the noise and asked her and her brothers where her mother was. At that moment [L] heard someone screaming. That person continued to scream, but [L] only realised afterwards that this must have been her mother screaming. After the attackers had left, her father opened the door and she saw her mother lying on the ground.365 When rendering a statement to the Examining Judge, in relation to the possible identity of the attackers, [L] told the Judge that years later she had pointed out a person during an identification as one of persons who attacked their premises. According to her this person was [EES], an abakarani from the market, and this [EES] had carried a club studded with nails and according to her testimony he had been involved in breaking the glass windows of their house.366

1. witness 1] testified that he immediately went over to the house of [witness 5] after he had seen that the youngsters of the CDR and MRND were gathering at Bucyana’s. There he met [victim C] and he warned her to stay inside. When she opened the kitchen window in the annex, he saw CDR-members were removing wooden sticks (imiyenzi) from the fence of the house of his neighbour [R].367 He got the impression that it was their intention to use these sticks for hitting. [witness 1] went home immediately. After that he heard that they started hitting and breaking the doors and windows at the house of [witness 5]. After about ten minutes a boy named [EEK] came to him to tell him that [witness 5] needed his help to lift up his wife and to take her to the hospital. Then [witness 1] helped him to carry [victim C] up to the junction in the road where nowadays there is a roundabout. [witness 5] phoned him later that day and told him that his wife had died, even before they had reached the hospital.368

1. witness 2] testified that she, just like her husband, heard people shouting and walking very close to their house towards [witness 5]’s. She heard that the attackers were breaking the windows at [witness 5]’s house. Then [witness 5] screamed: “[witness 1], [witness 1], come and help me”. There was another man who lived close to [witness 5], who had joined them at once and he shouted: “[witness 1], come, they have already killed [victim C].” Her husband immediately went down to help. After a few minutes [witness 1] came back into the house and said to her: “It is over, [victim C] is dead.”369 [witness 2] then walked over to the street and put a loincloth over [victim C], who was lying in the arms of [witness 5] and [EEU], because the victim’s legs were uncovered.370

20. [ witness 6] also gave evidence about the attack on the compound of [witness 5] and[victim C]. She testified that - after the subsequent attack on her own house - she went to the house of [witness 5] together with her husband [victim F]. The fence and the gate around [witness 5]’s house had been forced open. The windows had been broken. Blood was running from the compound from the other side of the house of [witness 5], along the porch of [witness 5], on the path in front of the house. Only later that day she saw the dead body of [victim C], which had been laid down on the bed in the visitor’s room.371

The attack on [witness 6]

21. After the attack on the house of [witness 5] and [victim C], they attacked the premises of [victim F] and his wife [witness 6] which was situated in the same alley.

22. Regarding this attack [witness 5] testified that, as he was leaving his house, he heard the group – which he calls Interahamwe - going down towards the house of [victim F] and that they were shouting and whistling as they went by.372

23. [ witness 6] testified that she and her husband had been woken up in the afternoon of 22 February 1994 by people who were shouting and whistling. She heard them pounding on the gates.373 She also heard many voices that said “She is [victim C]” and “Here we are at [witness 5]’s”. Next [witness 6] went to the court yard of their property together with her husband. Her husband opened the gate, but came back in shock without saying a word and trembling all over. Then her husband called his brother [EEH] and the housekeeper, who were also present in the house, and told them to grab some object to defend themselves. He also said: “We are all going to die”. At that moment [witness 6] heard people knocking on the gate. They wanted to force the gate to get inside. Her husband [victim F] pushed against the gate from the inside. [EEH] and the housekeeper were standing behind him, and again behind them [witness 6] and her sister. The attackers were stronger than [victim F] and kept pushing against the gate until it fell on the ground. Subsequently, some of the attackers entered the compound. The carried machetes, covered with blood, and they had smeared blood on their faces. They also wore leaves around their heads. They were swaying their machetes and said to her husband that they were only looking for her, not him. She heard people shouting “[witness 6], [witness 6].” Others were shouting “Agronome, agronome.”374 Her husband was able to stop the attackers. When they left, the attackers said that she would not be able not flee anywhere, and that they would come back to find her.375 [witness 6] could not tell who entered her property, she did not recognise anyone during the attack because of the blood on their faces and the banana leaves around their heads.376

24. [ witness 7], the sister of [witness 6], also gave evidence about this incident. She testified that on that day the house of [witness 5] and [victim C] had been attacked first. That attack did not take very long. When the attackers left, she heard them walking towards the higher area. A little later the attackers came towards them. She heard that the attackers were whistling, shouting and beating on jerrycans.377

She saw that the attackers were pushing against the gate to get in. The husband of [witness 6] was also pushing against the gate, to stop the attackers. The entrance gate to their compound was closed. Some of the attackers were trying to climb over the fence. When the attackers saw [witness 6] they told her that they were looking for her. They said: We want this Imbwakazi [translation: “female dog”.] 378 During this attack [victim F]’s hand was injured.379 [witness 7] stated that during this attack she had recognised the voices of [YY] and [witness 9]. Later on when the attackers walked back towards the street, she had also seen them.

The murder of [victim B]

25. None of the witnesses in this file has seen that [victim B] was attacked. None of them was able to testify who were the perpetrators.

The murder of [victim D]

26. [ victim D] could not be traced. [witness 8]380 and [witness 4]381 testified that he died before the start of the criminal inquiry.

27. When giving evidence to the NCIS, [GG] told them that he had seen the attack on the house of [victim D]. He saw a group, including [RR], [EEV], [WW], [EEW], [UU], [EE], [EEX] and [EEY], enter his neighbour’s house. Some time after that the group had left the house again. Then he had walked over to the house and once inside he saw his seriously wounded neighbour. Subsequently he had taken him to the hospital.382

28. When giving evidence to the NCIS, [witness 8] told them that she had visited [victim D] later on. He told her that he had been beaten up by people who according to him had been trained by the defendant.383

29. The evidence shows that [victim D] did not die from the consequences of this bodily harm. Just like the Prosecution, the Court moves that the defendant should be acquitted of this charge.

The rape of [victim E]

30. Before the start of the criminal inquiry [victim E] died from the consequences of AIDS.

31. [ witness 5] testified that, after [witness 4] had told him about the rape on 22 February 1994, he went to [victim E] as soon as possible. She told him that she had run to [FFA]’s house to escape from the Interahamwe. However, they had managed to catch up with her behind his house and then they raped her. She also told him that they had stabbed her with a knife. During the rape the Interahamwe had told her that they were happy that they were able to rape a Tutsi woman and told her how “good” she felt. Furthermore [victim E] told him that there had been very many attackers. One of them was called [YY].

32. [ FFB] testified that he was told in the evening of 22 February 1994 that [victim E], the wife of [FFC], had been raped that day during the attack on the house of [FFA]. He visited them the next day. [victim E], [FFC] and the wife of [FFA] named [WW], [FFD] and the sons of [BB, father of YY and witness 9] as (co)perpetrators of the rape.384

33. At some point in time [witness 8] spoke with [victim E] about the rape. [victim E] told her that the sons of [BB, father of YY and witness 9], [YY] and another man, were the ones who committed the rape.385

The attack on [witness 8]

34. [ witness 8] testified about an attack, whereby she, her husband [Q] and her brother [witness 4] were the victims. [Q] and [witness 4] were killed during the genocide. There are no other persons who witnessed this attack.

35. Consequently, the incriminating statement made by [witness 8] is not corroborated by any other evidence. In accordance with article 342 paragraph 2 Sv. acquittal should follow in default of proof.

The attack on [witness 2] and her mother [mother witness 2]

36. The only person who gave evidence about an attack on [witness 2] and her mother is [witness 7]. For that reason the Court will not take her statements into account, as explained in chapter 10.

37. Therefore the Court is not able to establish if, and if so how, this attack took place. This means that the defendant should be acquitted of this charge.

Complicity in the attacks on [victim C], [witness 6], [victim B] and [victim E]

Co-perpetration

38. There is not enough certainty to determine who were the attackers of [victim C], [witness 6], [victim B] and [victim E]. None of the above mentioned witnesses saw the attack on [victim C] or heard who were the attackers.386 As concerns [witness 6], the only available evidence is the statement rendered by her sister [witness 7], who claims to have recognised the voices of [YY] and [witness 9] and to have seen them from behind after the attack. There is simply too much uncertainty in this statement to be able to consider it as evidence. As to [victim B] there are no eye-witnesses and not even hearsay-witness statements, and regarding [victim E] there are only hearsay-statements.

39. However, it has been established that these acts of violence were committed by the Interahamwe and or Impuzamugambi. It is plausible that among them there were youngsters who in the period prior to the attacks, be it on a regular basis or not, had attended the animations which were held under the leadership of the defendant.

40. According to the Prosecution, the defendant is the co-perpetrator of the attacks, first of all because of her role in the period prior to them. These attacks did not come out of the blue, according to the Prosecution. In his closing speech, the Public Prosecutor construed the co-perpetration as follows: “The decision for the collective attack on the local residents had been taken and considered before. They had talked and sung about it extensively during the meetings. Only the moment was still to be selected, the occasion still needed to present itself. That occasion was the death of Bucyana.”387 and “Actually those youngsters were the instrument with which the defendant herself committed these attacks. This can be concluded first of all from her dominant role in the preparations of these attacks as we described before. She recruited the militia, she set out the mission, she let them do her job. If only because of that role, the defendant is liable under criminal law.”388

41. The Court will not conform to the conclusion of the Prosecution in relation to this matter. As explained in chapter 11, the Court deems the charges proved that during the animations the defendant incited young persons to kill Tutsis. However, there is no legal and convincing evidence to prove that during the animations they actually made preparations for the attacks on local Tutsis. Nor is there any conclusive evidence to prove that secret meetings took place whereby such preparations would have been made.

The mere fact that the defendant provoked the youngsters to kill Tutsis during the animations is not sufficient to consider her as co-perpetrator of the (partially fatal) attacks carried out on 22 February 1994 in her neighbourhood. Incitement to commit a crime does not equal being a co-perpetrator of a crime committed afterwards, even if this was the same crime as the one that was incited. The Court repeats its opinion that it does not consider the defendant as the “mother-general” of the Impuzamugambi. Therefore she cannot be held liable under criminal law because of “command responsibility” for the actions carried out by the CDR-youngsters and/or abakarani on 22 February 1994.

42. Subsequently, the question that needs to be addressed by the Court is whether the case file contains any evidence from which it may be concluded that there was a close and intentional collaboration in an other way between the defendant and the persons who actually carried out the attacks.

43. In her own statements the defendant kept saying that she did not notice anything at all about the events that had taken place in her neighbourhood on 22 February 1994, because she had spent the entire day in the bedroom of [GGA], Bucyana’s daughter, to mourn the death of Bucyana together with her and other women. In view of the above letter (see paragraph 6) from the mayor of Kicukiro and the many witness testimonies, the Court deems that statement to be totally unreliable. Furthermore, the defendant was seen by several witnesses while she was standing between shouting and whistling members of the Interahamwe/Impuzamugambi on Bucyana’s property. Because it is not known what she discussed with one or more of them, it cannot be concluded from this mere fact that she gave instructions to those young men, made agreements with them, or even had previous knowledge of the attacks that were committed later that day.

44. The Court has examined whether the degree of complicity required for co-perpetration can be concluded from the evidence in the file in any other way, more in particular from the actual personal observations of witnesses.

45. In this respect [witness 6] testified that she heard the defendant’s voice at the moment that the attackers were coming towards her. Her voice came from the direction of the street, at a distance of some 50 metres. The witness did not see her. According to the witness the defendant had spoken the following words: “Twikoze mu nda” [“We work in our bellies”]. The interpreter who was present during the witness examination said that this expression was used among others when you accidently kill somebody, instead of others. Furthermore the defendant had allegedly said: “Si we ni wa mugore w'igikara, ufite sallon ya coîffure iri hariya ku mu handa”. [“She is not her. Is another black woman who has a barbershop (salon de coiffure) located in the street. It is located there in the street.”] 389 From those words, which the witness attributes to the defendant, she concluded subsequently that the defendant was responsible for the attack on her and for the accidental killing of [victim C].

46. The Court does not exclude, however, that [witness 6] might be mistaken about her personal observation. In view of the distance described by her, in combination with the fact that she heard a lot of shouting, whistling and a helicopter all at the same time – at some point she described the noise in the neighbourhood at that moment as similar to “hurricane Katrina” – 390, it is seriously doubted if under those circumstances she was able to distinguish the voice of the defendant from other voices. The observation of the witness is not supported by her sister [witness 7] either, who testified that she did hear someone shout “Twikoze mu nda”, but places these words in the mouths of the attackers and who stated that she had not heard a woman’s voice at any time.391

47. The observation of [witness 6] is not supported by the testimony of [witness 20] either. Although [witness 20] testified that she had seen the defendant in the company of Roger Bucyana out in the street waiting for a group of persons carrying clubs who came walking down the street from the direction of [victim C]’s house, she does not have any concrete memory about any contact that would have taken place between that group and the defendant. Nor can she remember having heard the voice of the defendant.392

48. Even if the different circumstances are viewed in relation to each other, this means that the Court believes there is not sufficient evidence to consider the charges proved that the defendant was co-perpetrator of the attacks on 22 February 1994.

Incitement

49. It has been established that the defendant has provoked others to kill Tutsis. However, this does not imply that she was therefore guilty of incitement to carry out the attacks on 22 February 1994. Although incitement and provocation are related to each other, a case of incitement (other than provocation) assumes some form of participation in the criminal offence that was committed. This requires that the inciter, by using the means of incitement set out by law, persuades another person to commit that criminal offence. There is no evidence to prove this charge. In chapter 11 it was established that the defendant abused her authority to recruit young persons for the CDR-youth and that she provided the youngsters with money, food and clothing for that purpose. However, there is no evidence of any relationship between these “means of incitement” and the attacks on 22 February 1994.

50. Consequently, the Court believes that the defendant should be acquitted of this form of participation as well.

Complicity

51. The above shows that there is no evidence that prior to the attacks the defendant provided the opportunity, means or information to the perpetrators to commit their crimes, nor that she aided and abetted them in any way in the execution of those crimes. Therefore she should also be acquitted of this charge.

15 MASSACRE IN THE PALLOTTICHURCH

Introduction

1. In the evening of 6 April 1994, the airplane in which President Habyarimana returned from meetings in Dar es Salaam was shot down above Kigali. This was the starting signal for the massacres on Tutsis and moderate Hutus. One of the first mass killings took place in Gikondo. On 9 April approximately 150 Tutsis, who had been herded to the PallottiChurch or who had sought refuge in that church, were killed in an abhorrent massacre by military and local militiamen.

2. This attack has been elaborately documented in public sources as in the book “Leave none to tell the story” by Allison des Forges and a report of November 1994 published by the US Committee for Refugees and Immigrants (USCRI), written by David Hawk (hereafter also: Hawk-report).393

3. The massacre in the Pallotti Church was also described in the judgement of the Trial Chamber of the Rwanda Tribunal in the case Military I (Bagosora c.s.). The Court will now quote some paragraphs from this judgement:

“Major Beardsley, the personal staff officer to General Dallaire in UNAMIR, testified that around 12.00 hours on 9 April 1994, two Polish officers received a faint radio message at UNAMIR headquarters from two Polish military observers living at Gikondo Parish in Kigali. The message said: “Come fast; they're killing here.” With Dallaire's authorisation, Beardsley and the two Polish officers travelled to the parish in an armoured personal carrier, operated by Bangladeshi peacekeepers. The journey took around 30 minutes, requiring them to cross the frontline between the RPF and the Rwandan army and then several checkpoints manned respectively by members of the Para Commando Battalion, other Rwandan soldiers, the gendarmerie and militiamen.

When they arrived at Gikondo Parish, a large number of dead bodies were strewn in the streets. Two of the peacekeepers went to the priests’ residence to look for the Polish military observers, while Beardsley and other peacekeepers walked towards the church. The corpses of children, hacked with machetes, filled the alleyway alongside the building. Inside the church, Beardsley found around 150 dead bodies in civilian attire. A priest was trying to assist the 15 survivors, who were badly injured. After surveying the scene, Beardsley spoke with the two Polish military observers who were at the priests’ residence. They explained to Beardsley, through one of the Polish officers who acted as an interpreter, what had just happened there.

According to the military observers, the Rwandan army blocked off access to the area that morning, and then gendarmes, carrying lists, moved methodically through it escorting or herding Tutsis to the church. Other Tutsis also fled to the church. The priests and military observers, who were at the residence, heard screams from the church and walked over to investigate. The gendarmes seized them and held them against the wall with gun barrels pressed to their throats. The gendarmes compared identity cards of the Tutsi refugees to the lists that they were carrying. The identity cards were then burned as the Interahamwe entered the church and began killing the refugees over the course of the next several hours.”394

Position of the Prosecution

4. The Prosecution demanded the Court to declare the charges proved that the defendant is guilty as intellectual perpetrator of this mass killing.

Position of the Defence

5. Before the Examining Judge the defendant pleaded not guilty to this offence.395 During the examination of the facts in court she invoked her right to remain silent. In her last word she denied having been involved in this criminal offence. The Defence pleaded acquittal for this charge.

Assessment of the charges

6. In connection with this investigation, the NCIS interviewed two Polish UNAMIR-observers, three survivors and a perpetrator of the massacre. The Examining Judge also questioned these three survivors and the perpetrator. The interrogation of the perpetrator were focussed on the question who were the (other) perpetrators.

7. [ GGB], one of the survivors, testified before the Examining Judge that among the attackers he had recognised [GGC], [GGD], [GGE], [ZZW], [U] and his son. In the aforesaid Hawk-report it was stated that [GGB] had also mentioned Jean Ntawutagiripfa (Congolais) as leader of the attack, but he did not confirm this before the Examining Judge.396

8. [ GGF] also survived the attack. He recognised the attackers [GGE] and [UU].397

9. [ FFB] is another survivor. When rendering his testimony before the Examining Judge he said that he had recognised the attackers [U], [WW] and [T].398

1. EEF] was one of the attackers. When questioned by the Examining Judge he stated that Congolais had come to their neighbourhood in the morning and told them that there were many inyenzi at the priests’ residence. Furthermore he mentioned some of his co-perpetrators including [UU], [GGG], [GGH], [GGI] and [GGJ].399

1. No evidence has been produced that the defendant was in the vicinity of the PallottiChurch on 9 April 1994. Nor is there any evidence that she held any consultations with one of the leaders or with some of the attackers who participated in the mass killing. Furthermore there is no evidence that she was involved in sending or escorting local Tutsis to the PallottiChurch.

1. In accordance with the legal grounds in chapter 14, the Court concludes that incitement cannot be considered equivalent to being a co-perpetrator of the crime committed afterwards, even if this is the same crime as the one that was incited. The Court repeats its opinion that it does not see the defendant as the “mother-general” who may be held liable under criminal law because of “command responsibility” for the actions carried out by the CDR-youngsters and/or abakarani.

1. For that reason the Court concludes again that there is no legal and convincing evidence that proves that the defendant can be found guilty of incitement to commit this crime or that she was an accessory to this criminal offence.

16 THE SEARCH FOR TUTSIS IN HIDING

1. As from 7 April 1994 some Tutsis and one Hutu had gone into hiding in the ceiling of the house of [witness 1]. The following days armed militiamen searched the house of [witness 1] several times in vain because they suspected that Tutsis had gone into hiding there. The defendant is charged with having been involved in these searches.

Position of the Prosecution

2. The Prosecution demanded the Court to declare the charges proved that the defendant is guilty as co-perpetrator of this offence.

Position of the Defence

3. Before the Examining Judge the defendant pleaded not guilty to this offence. During the trial she invoked her right to remain silent in connection with this accusation. The Defence pleaded acquittal for this charge.

Assessment of the charges

4. [ witness 1] testified that he had received a phone call on 9 April 1994 from [witness 23] 400, who told him that there had just been a meeting between the CDR and the Interahamwe at Nyenyeri’s bar and said that they were about to attack him. Thereupon he phoned Basebya and told him that someone had informed him that they would come to attack him. Subsequently, Basebya went outside and advised [witness 1] to stay outside in the street and to leave the gate to his house open, because otherwise people might think that inyenzi were hidden in his house.401

5. [ witness 23] confirmed that he had phoned [witness 1] to warn him.402 [witness 5] also confirmed that he had heard this from [witness 1].403

6. [ witness 1] stated furthermore that he had been standing in front of his property on Sunday 10 April in the morning around 09.00 hours and that many people came walking from the direction of the market. Among those people were [GG], [CC], [witness 14], [ZZX] and [GGH], who stopped and talked to the defendant who at that moment was standing in front of the gate to her house. [GG] sent them over to his house, but did not come with them. The men stopped at his house, behind his fence. When they arrived at his neighbour’s, they asked for a man from Minitrape, who had a wife who belonged to the Inkotanyi [RPF supporters]. When the men came to him after that and asked for his wife [witness 1] answered: “But you know that she has been evacuated. Some of you saw this when she left. You have seen her leave. So I don’t understand when you are saying that she is with the Inkotanyi, unless the Swiss are Inkotanyi.” Then the men said to him: “But still you are hiding Inyenzi in your home” and they searched his house. They said to [witness 1] that if they would find inyenzi, they would also kill him. During the house search the men did not find the Tutsis in hiding. The men said that they surely had not searched properly and that they should start looking again.

7. They actually did. The second time they did not find anyone either. Then they left and came back again after an hour and a half. Again they searched the house, this time they also checked the garden and searched under a heap of grass that had just been mown.

8. [ witness 1] testified that on that same day around 16:00 hours the leaders of the Interahamwe, [GG], [CC], [ZZX] and [witness 14] had come to him together with the gendarmes who were at Bucyana’s and said that they needed to search again. However, they did not start at his house but somewhere else in the neighbourhood.

9. The persons who had gone into hiding in the ceiling of his house came down during the night from Sunday onto Monday. All persons in hiding sat down in his living room and told [witness 1] that they would no longer hide themselves in his house because there was no place for them to hide. He did not know where those persons had gone afterwards.

1. The following morning (Monday) the men came back and searched his house again. Then they asked him if there was a possibility to go inside the ceiling. They said to him that he had to go inside the ceiling and that he should tell the inyenzi [cockroaches] that they had to come down. Then the witness told them: “If I would go into the ceiling and if I had hidden inyenzi there, do you think that I would tell them to come down? One of you should come up with me inside the ceiling. I already told you there are no inyenzi in my house.” Among other names, the witness mentioned [CC], [ZZX], [witness 14] and [GGK], as well as gendarmes from Bucyana and from Ciyagugu. The men did not tell him if anyone had given them the instructions to come to his house.404

1. witness 3], the house servant of [witness 1], testified that the leaders of the search were [GG] and [CC]. There were more than ten men, including [GGL] and [CC]. They said they were looking for inyenzi who had gone into hiding.405 The witness believes that the men came back three times to search.406 [CC] had a gun, the others carried traditional weapons and clubs.407

1. witness 5] testified that from 7 April he had been hiding inside the ceiling of [witness 1]’s house. Every day people would come to search for them. He stayed there until the early morning of 10 April (the Court understands: 11 April).408 When he was still hidden in the ceiling of [witness 1], he had recognised the voices of [GG] and [witness 14] two times.409 He had heard them say to [witness 1] that they knew that some inyenzi were hiding in the house and that they had not yet seen the bodies of [witness 5] and [victim F].

  1. GGM] testified that every day they would come searching [witness 1]’s house. He had seen [GG], who was one of the leaders, [witness 14] and [CC]. According to the witness, it is possible that the refugees left the house during the night from 10 to 11 April.410

  2. GG] testified that he had been to the house of [witness 1] on 10 or 11 April.411 According to him [witness 1] had asked him to “bring him a cup of sugar for the refugees”; a surprising statement from the mouth of a génocidair.

1. CC] testified that he had joined in the search for inyenzi and that he had been to the house of [witness 1].412

1. In relation to the defendant [witness 1] stated the following. After the men had searched his property for the third time, the defendant had called him to come over to her around 14:00 or 14:30 hours. She explained to [witness 1] why they had come to his house to search. That people had told her that he was hiding inkotanyi and that fort hat reason his house had to be searched. So she had told them: “Go and search his house. If you find any inkotanyi, then you will have to kill him together with them.” She also said to [witness 1] that if his wife had not been evacuated, that she and [witness 1] and their house would no longer be there.413

1. According to [witness 1], this conversation took place in the living room of the defendant. The defendant had called him over to explain why people had been sent to him to search his house. When the Examining Judge asked him: “Are you sure that she told you in so many words that she sent them?” the witness corrected the Examining Judge by saying that the defendant did not say that she had sent those people to him. The defendant told him that those people had come to her because they, the Basebyas, were the persons who protected him, [witness 1], and told her that nevertheless the witness was hiding inyenzi in his house and that they wanted her permission to search his house. The defendant then explained to the witness what she had told them: “He is a Hutu like you, so you have to leave him alone. But if you go to him and find Tutsis in his house, you will have to kill them and him as well.”414

1. When giving evidence to the NCIS 415 and during the gacaca hearings 416, this witness made similar statements about his conversation with the defendant.

1. When interrogated by the Examining Judge, the defendant stated that her husband had received a phone call from [witness 23] about an attack on the house of [witness 1]. She confirmed that [witness 1] had been to her house after 7 April 1994, but said she could not recall what they had spoken about.417 During the court hearing, the defendant also invoked her right to remain silent regarding this issue.

20. The afore mentioned witness [GGM] also testified that he had heard [witness 1] say that he came “from his chief”, clearly referring to the defendant, and that the defendant had asked [witness 1] about the Tutsis who were hidden in his house.418

21. There is no doubt that the searches for Tutsis who had hidden themselves at the house of [witness 1] took place and that they did not have any result, at first because they could not find the Tutsis and later because they had left his house. The statement of [witness 1] about the events prior to the search (the telephone call from [witness 23], the advice given by Basebya), how the search was carried out and who were actually involved in the search itself ([GG], [CC], [witness 14], [ZZX], [GGH] and others) is more than satisfactorily corroborated by the above witness statements.

22. In chapter 10 it has already been put forward that the Court deems the testimonies rendered by [witness 1] to be very reliable. This also applies to the part of his statement about the alleged role of the defendant in connection with these searches, i.e. that she gave them permission to search his house and in case they found any Tutsis, everyone should be killed. To the gacaca, NCIS and Examining Judge the witness made consistent statements about what the defendant had told him. If [witness 1] had wanted to falsely accuse the defendant of playing a part in the search, he could have embroidered his statement just by saying that she had sent a search team to his house. He never did this, on the contrary, he corrected the Examining Judge who believed he could conclude this from the witness’s words.

23. The statement of [witness 1] about the defendant’s permission, however, is the only one in this file that mentions the direct involvement of the defendant in those searches. Therefore the Court needs to verify if there is any other circumstantial evidence in support of this statement, to prove that it is not a separate statement, but that it is actually embedded in a specific context which is confirmed by another source.419

24. The statement of the defendant confirming that she spoke with [witness 1] cannot be considered as such, because the defendant did not say anything about the contents of that conversation.

25. The statement of [witness 4] that he heard [witness 1] say that he had come “from his chief” does not provide any support for this evidence either. It should be about “an independent source in support of the evidence of this one witness” and in this case [witness 1] is still the source of the hearsay evidence of [witness 4].

26. The statement of [witness 4] that he saw the defendant talk to [GG], Congolais and [CC] after 6 April 1994 in the street does not provide any supporting evidence either.420 After all, he does not know anything about the contents of that conversation.

27. [ witness 1] also testified about a visit to the defendant that had taken place on 11 April 1994, on which occasion the defendant went through a list together with Congolais to check which local Tutsis had already been killed and which ones they still needed to find in order to kill them.421 When giving evidence to the gacacas, the NCIS and the Examining Judge this witness each time made consistent statements. Therefore the Court does not doubt the reliability of the evidence rendered by [witness 1] in connection with this matter. This offers corroboration for the statement of [witness 1] regarding the defendant’s involvement in the searches of his own house. However, this cannot be considered as supporting evidence because in this case [witness 1] is the source as well.

28. In accordance with its grounds in chapter 14, the Court concludes that incitement cannot be considered equivalent to being a co-perpetrator of the crime committed afterwards, even if this is the same crime as the one that was incited. The Court repeats its opinion that it does not see the defendant as the “mother-general” who may be held liable under criminal law because of “command responsibility” for the actions carried out by the CDR-youngsters and/or abakarani.

29. Therefore there is no other evidence which might support the statement of [witness 1] regarding the defendant’s involvement in the searches of his house.

30. In view of the provisions of article 342, second paragraph, of the Code of Criminal Procedure, the separate statement of [witness 1], however reliable it may be, is not sufficient to declare the charges proved that the defendant can be held liable under criminal law (neither as co-perpetrator, nor as inciter, nor as accessory) for these searches.

17 MURDER OF [VICTIM A]

1. Around 11 April 1994 [victim A] was murdered. The defendant is accused of having been involved in this murder.

Position of the Prosecution

4. The Prosecution demanded the Court to declare the charges proved that the defendant is guilty as co-perpetrator of this criminal offence.

Position of the Defence

5. The Examining Judge did not interrogate the defendant regarding this offence. During the court hearing she invoked her right to remain silent. The Defence pleaded acquittal for this charge.

Assessment of the charges

4. [ victim A] was a Tutsi who used to live in the same neighbourhood as the defendant. He lived in one of the six dwellings on the property of [R], diagonally across from the compound of the defendant. After the violence on 22 February 1994, he left for Nyamirambo, because he no longer felt safe in Gikondo. In the evening of 6 April 1994, it was too unsafe to return to Nyamirambo after work, and so he decided to stay temporarily in his old house. At that time [R] himself was staying abroad. Apart from the other people who were living on [R]’s property (about 15 persons), nobody knew that he was staying there.

5. [ GGN] was registered as Tutsi at the time and was living together with her brothers [GGB] and [GGO] in a house on the property of their uncle [R]. When giving evidence to the Examining Judge, she stated that in the morning of 11 April there was an attack on their property. The attackers ordered them to show their identity cards and to put their hands up. The attackers told them that they had heard that inyenzi were hiding in the house and that everyone had to go outside. Then they caught [victim A]. He never came back. Some time afterwards the asked [EER], the housekeeper of [R], where [victim A] was and he said that [victim A] had already been murdered. [GGN] testified furthermore that [AAB], [R]’s son who also lived on that property, came to them. He said to them: “Please come with me. We are going to pray for our brother who died.” Then [GGN] asked him: “We have been here for a couple of days and nobody knew that we were here. How do these people know that we are here? Weren’t you the ones who betrayed us?” The [AAB] said: “Yes, I had a problem because of you, and then I went to Basebya’s wife, Yvonne. I told her that I had a problem because I had Tutsi children staying with me and I didn’t know where to hide them.”422

6. [ GGQ] calls [R] her grandfather. In April 1994 she stayed at his house. About the attack she testified that the attackers asked [victim A] if he was a Tutsi. He did not answer the question. They asked him again: “Are you a Tutsi?” He answered: “Yes, I am a Tutsi.” And then he said to them: “I know that you will have no mercy on me, but I want to ask you to kill me with a bullet.” Then they attacked him, they hacked at him with machetes. He was not completely dead and then they took him to the entrance, to the door. There close to the street they hit him on the head with a large stone. [EEL] was the one who did that. And subsequently [victim A] died. The witness heard them call names like [RR] who carries a fire weapon and did not want to shoot him and [EEL] who smashed his skull with a stone.423 [GGQ] also testified that later she saw the corpse of [victim A] in the street 424 and that after [victim A] had died, [AAB] came back and said that they all had to pray together, because one of them had died. Before they started praying he said that they (the Court understands: [AAB] and others) had all been standing at the road blocks when they were requested to go to the meeting at Yvonne’s. During the meeting they told them that they had to search the houses and if they would find Tutsis who were hidden then they had to kill them and also the person who had hidden the Tutsi. According to the witness [AAB] would have said there that he had a Tutsi child, a pupil at his house and that he did not know where he had to hide him. Then he said to [GGQ]: “You have seen the result.”425

7. [ EER], [R]’s housekeeper, testified that they were attacked on 10 or 11 April and that many attackers entered the house. They were ordered to identify themselves. This took place around 06:00 o’clock. They showed their identity papers, the attackers looked at their documents and then handed them back. They immediately took [victim A] away.426 The person who carried a gun was [RR]. The attackers who picked up [victim A] were [RR] and [EEW]. The others were abakarani from the local market. He knew these men from the market by their faces. He had heard the names of [RR] and [EEW] being mentioned at the gacaca-court.427 This witness also testified that he had seen [AAB] on the day before the attack in the evening, when the witness went to the tap to get water. He saw [AAB] from Basebya’s. “He came through the main entrance and walked inside.” 428 In February 2012, the witness was interviewed again by the Examining Judge. On that occasion he answered a question put to him by the Defence Counsel: “Before the death of [victim A], on the fifth, [AAB] went to Basebya’s house again, in the evening. I did not see him when he arrived, but I did see him when he came back. He came from the housing compound near the tap.” 429

8. [ witness 1] testified that he did not see how [victim A] was killed. [victim A] was killed on the day that they had just searched [witness 1]’s house. [witness 1] stated that he did not know whether the defendant was the one who had sent them to kill him, but that it was the [R]’s son, [AAB], who had gone to the defendant to tell her that they had an inyenzi in their house. When the Examining Judge asked him how he knew that [AAB] had gone to the defendant, the witness stated that he had a conversation with [X, husband of the defendant] on Saturday 9 April 1994, that [AAB] had joined them and said that there was a Tutsi in his house, whereupon Basebya had left them. He testified furthermore that he stayed behind with [AAB] and asked him why he had done that. [AAB] said that they could kill him because he had an inyenzi hidden in his home and that he would be seen as ibyitso. [witness 1] stated that he had said to [AAB] that he did not understand why [AAB] had betrayed him. If they would come and search the house he could tell them that that person was a tenant, even though he was a Tutsi.430

9. In view of the above, the Court has no doubt that [victim A] was murdered around 11 April 1994 by a group of abakarani from the market, possibly including [RR] and [EEL].

Co-perpetration

1. The Prosecution’s conclusion that the defendant had complicity in this murder as a co-perpetrator is largely based on the argument that [AAB], [R]’s son, betrayed [victim A] to the defendant, or mentioned his name to her, after which the defendant sent a group of abakarani, including [RR] and [EEL], to go and get him.

1. From the testimony of [EER], quoted in the above, one can only conclude that he saw [AAB] coming from the direction of Basebya’s house in the evening before the attack. However, one cannot read in this testimony that the witness saw that [AAB] opened the gate to Basebya’s house, let alone that [AAB] was actually in that house. [EER] pointed out on a photograph which gate he saw [AAB] open. That was the gate to the property of [R].431

1. From the testimony of [witness 1] it is possible to conclude that [AAB] had a conversation with [X, defendant’s husband] on 9 April, but [witness 1] did not state that [AAB] had told the defendant that he had an inyenzi in his house. Therefore [witness 1] stated that he did not know if the defendant was the person who had sent the attackers to his house.

1. The testimony rendered by [GGQ] before the Examining Judge differs on essential points from the evidence given by her during the gacaca-hearing and to the NCIS. At the gacaca-court she only stated that [AAB] had told her that he had attended a meeting at Basebya’s. In her testimony to the NCIS she stated additionally that [AAB] had told her that the meeting would have taken place at Basebya’s [daughter 1] and that he had told her there that he had a Tutsi child in his house. When the Examining Judge insisted and asked if [GGQ] still remembered the words that had been used by [AAB] to tell her where the meeting had taken place, [GGQ] answered: “At Basebya’s”432 and when the Examining Judge put it to [GGQ] that she had stated earlier that [AAB] had told her that the meeting had been held at Yvonne’s, she answered: “But Yvonne lives at Basebya’s house”. I said: “Near the house of Deputy Basebya”.433 When the Examining Judge asked her why she had used the name of Yvonne, while the witness had also stated earlier that she did not know her, the witness answered: “I did not know her, neither did I know the Deputy. I did not know them until now. I only hear names. Because she was the chairwoman of the meeting about the killings in that area. Because at the gacaca they spoke about Yvonne and they did not talk about her husband.” When the Examining Judge asked her again if [AAB] had not mentioned Yvonne’s name, she answered: “No. The meeting took place at the house of Basebya, but Yvonne was the chairwoman of the meeting. That is what I heard at the gacaca.” 434

1. Taking into account the impression that the murder of [victim A] made on [GGQ], the Court deems it unlikely that at the gacaca she should have forgotten to testify that it had been [AAB] who had betrayed [victim A]. In view of the above, the Court cannot exclude that the information about the defendant which was disclosed to [GGQ] at the gacaca has mingled with her original recollections, which detracts from the reliability of her statements rendered to the Examining Judge. Therefore the Court will not use them as evidence in any way.

1. The statement of [GGN] about the “confession” of [AAB] while praying is not supported by any other evidence. [BBC] and [EEI], who were both present at the property during the attack, do remember that together with [AAB] they said prayers for [victim A], but not that [AAB] would have confessed that evening that he was the one who had betrayed [victim A]. [EEJ], [W] and [Z], who had also been in the house that evening, do not have any recollection of his so-called confession either.

1. When giving evidence to the Examining Judge, [AAB] denied that he had betrayed [victim A] to the defendant and stated that he believed those statements to be nonsense, used by persons who wished to get a possible compensation from him or his father.

1. All of this means that the only evidence about the so-called “betrayal by [AAB]” comes from the statements of [GGN] and [GGB].

1. For that reason the Court concludes that there is no conclusive evidence to prove that the defendant is liable for complicity in this criminal offence. It decides that the defendant be acquitted on all counts of the charges regarding this offence.

18 CONSPIRACY TO GENOCIDE

1. The defendant is charged with conspiracy to genocide under count 4.

Position of the Prosecution

2. The Prosecution demanded the Court to declare the charges proved that the defendant committed this offence jointly and in conjunction with others.

Position of the Defence

3. Before the Examining Judge the defendant pleaded not guilty to this offence. During the trial she invoked her right to remain silent in connection with this accusation. The Defence pleaded that the defendant should be acquitted of this charge.

Assessment of the charges

4. During the indicted period, conspiracy to genocide constituted an offence in accordance with article 1, paragraph 2 of the Genocide Implementation Act. Since 1 October 2003, this crime is liable to punishment pursuant to article 3, paragraph 2 of the WIM. The contents of the description of the crime was not changed and there is no difference in the legislator’s perception regarding the punishability of the criminal conduct.

5. Article 1, paragraph 3 of the Implementation Act stipulated that conspiracy had the same meaning as the one referred to in the Criminal Code. According to article 80 Sr.: “From the moment two or more persons agree to commit a serious offence, this constitutes conspiracy.” The agreement is not bound by a certain form and does not necessarily mean that the crime should be committed by all conspirators. It is sufficient that one of them undertakes to commit the crime himself.435 However, the agreement should include an explicit intention, i.e. it should be aimed at a specific crime.

6. In chapter 11 the Court concluded that there was no conclusive evidence to prove that the defendant, alone or together with others, had drawn up or discussed “death lists”. Although the defendant stirred others to kill Tutsis, there is no evidence that she made any agreement or commitment together with others, in public or in private, to commit specific crimes against Tutsis.

7. In conclusion, the Court believes that the defendant must be acquitted of this charge.

19 WAR CRIMES

1. In this chapter the Court will examine whether the defendant, by committing the alleged acts as established in chapter 11, can be held responsible for war crimes as charged under count 6 of the indictment.

Legal framework and sources of international humanitarian law

2. At the time when the offences as charged in the indictment were committed, these offences constituted war crimes, among others, under article 8 (old) of the Criminal Law in Wartime Act (hereafter: WOS). At the time article 8 (old), first paragraph, WOS, read as follows:

1. Anyone who commits a violation of the laws and customs of war shall be liable to a term of imprisonment not exceeding ten years or a fifth category fine.

3. With effect from 1 October 2003, the legislator replaced this penalization by articles 5, 6 and 7 of the International Crimes Act (hereafter: WIM).

4. In the WIM the legislator clearly opted for a re-codification of the penalization of war crimes. Therefore the change in the definition of the crime did not result from a difference in the legislator’s perception regarding the degree of punishability of the culpable acts.

5. The concept ‘laws and customs of war’ as outlined by article 8 WOS, inter alia, refers to the four Geneva Conventions 436 and the Additional Protocols I and II which were concluded afterwards (hereafter: API and APII) dated 8 June 1977. 437

6. API and APII bridge a few gaps in the Geneva Conventions. API does so for international armed conflicts, APII for non-international armed conflicts. The purpose of APII is the (further) improvement of the protection of civilians and other individuals who do not (any longer) participate in the armed conflict.

7. The Geneva Conventions are in their entirety applicable to international armed conflicts and partially to non-international armed conflicts. These conventions include an article 3 which is identical in all four conventions. This article is called the Common Article 3 (hereafter: CA 3). CA 3 describes the minimum behavioural standards which must be observed by the combating parties in case of a non-international armed conflict. 438

Requirements for war crimes

8. Based on the CA 3 and the APII, as well as the interpretation given to them by the (international) administration of justice, in a non-international armed conflict an alleged act can only constitute a war crime if the following requirements have been satisfied:

9. i) There is a non-international armed conflict on the territory of one of the parties to the convention.

(ii) There must to be a close relation – referred to as ‘nexus’ in (international) literature and case law – between the culpable acts committed by an accused and the armed conflict.

(iii) The victims must belong to one of the categories of protected persons within the meaning of CA 3; i.e. persons who are not directly participating in the hostilities.

Re (i) Existence and nature of the armed conflict

9. As described in the above (chapter 5, paragraph 8), on 1 October 1990 combatants of the Rwandan Patriotic Front (RPF) invaded Rwanda. This was the beginning of an armed conflict between the RPF and the FAR, the Armed Forces of Rwanda. The RPF was a structured and disciplined army under the supervision of a responsible commander, which partially dominated Rwandan territory, that was capable of executing military operations in a coordinated manner 439 and satisfying the requirements of the humanitarian laws of war. 440 Rwanda was a contracting party to the four Geneva Conventions of 1949 and the APII. Thus, in other words, as from 1 October 1990, a non-international armed conflict as defined in the CA 3 and the APII was taking place in Rwanda. The cease-fires agreed upon afterwards – which were frequently violated – did not end the hostilities. The armed conflict was not ended until 17 July 1994, by the victory of the RPF.

Re (ii) Nexus

1. In its judgement dated 23 March 2009, in the case against the accused Joseph M. (LJN BI2444), the Court explained how it understands the applicable law regarding the nexus requirement and examined accordingly if this requirement had been fulfilled. The Court concluded that the requirement of a close relationship between the culpable acts of the accused which had been considered proved and the armed conflict between FAR and RPF did not exist, and therefore the Court acquitted the accused of the alleged war crimes in that case.441

1. The Prosecution lodged an appeal against this judgement. In the appeal proceedings the Prosecution submitted a Legal Opinion about the nexus requirement written by Professor Antonio Cassese. In his report, Prof. Cassese first outlined the purpose and nature of this requirement, then provided a case law analysis, including legal precedents of the ICTY and the ICTR on this subject, and concluded that a correct review of this requirement in the M.-case should have led to the conclusion that a nexus did exist in this case.

1. Subsequently, in its ruling dated 7 July 2011 (LJN BR0686), partially based on this Legal Opinion, the Appeals Court in The Hague concluded that a nexus between the culpable acts committed by M. and the conflict did exist and therefore M. was guilty of war crimes.442

1. Subsequently, the first instance judgement and the ruling in the appeal proceedings in the M.-case were commented upon by several (Dutch) international criminal law scholars.443 These comments have in common that they recommend a strict nexus-approach. During the hearing both the Defence and the Prosecution stated their opinions on these publications; the Defence expressed its agreement, the Prosecution was critical.

  1. The Prosecution adopted the position that in the matter at hand the nexus requirement has been satisfied. In brief, the Prosecution contended that:

  2. i) the Appeals Chamber of the ICTY, in its sentencing judgement in the Kunarac case (to be discussed below: see paragraph 22), presented an acceptable and useful legal framework for determining whether the required nexus did indeed exist;

(ii) the application of this criterion on the situation in Rwanda means that from 1 October 1990 there is a nexus if crimes were committed by individuals who were associated with the Rwandese Armed Forces (FAR) and if those crimes were aimed against civilians who were associated with the RPF, being the adverse party to the conflict, while the armed conflict provided them with the protection and justification for those crimes 444 and

(iii) it has been established beyond reasonable doubt that this was applicable to the alleged crimes set out in the indictment.

  1. As proof of the latter, the Prosecution made the following contention:

  2. From October 1990 onwards, Tutsis were depicted as accessories of the RPF and were threatened and attacked as such;

  3. The CDR presented itself as the “natural ally” of the FAR in the armed conflict with the RPF;

  4. The CDR depicted the Tutsis as accomplices of the RPF;

  5. Members and supporters of the CDR, especially the militiamen, were extensively involved in threatening and attacking Tutsis and collaborated with the FAR-soldiers;

  6. Also in Gikondo Tutsis were frequently depicted as accomplices of the RPF and in that capacity they were threatened and attacked:

  7. In Gikondo the FAR-soldiers were also involved in threats and attacks on Tutsis.

  1. Briefly stated, the Defence argued that:

  2. i) subject to the facts, the nexus standard can either be applied strictly or flexibly and that a strict application a) does more justice to what happened in Rwanda, b) gives a clearer definition of war crimes in comparison to both crimes under common law and other international crimes and c) does more justice to the requirement of legality and the principle that in case of doubt, the decision should be in favour of the defendant (in dubio pro reo);

(ii) even if the nexus standard is applied flexibly, the alleged crimes against Tutsis, considered proved by the Prosecution, and that were committed before 6 April 1994, in any case are too distantly connected to the armed conflict; and

(iii) facts and circumstances related personally to the defendant which might contribute to the assumption of a nexus are lacking.

1. In its assessment whether the nexus requirement has been satisfied, the Court puts forward the importance of the penalization of war crimes, being the protection of non-combatants who during an (internal) war are in danger of becoming victims of crimes which are committed in a close relationship to that war. In this respect war crimes clearly distinguish themselves not only from crimes under common law, but also from other international crimes like genocide and crimes against humanity which, of course, shall not affect the possibility to qualify a specific act both as a war crime and as genocide.445

1. Furthermore, in establishing its own judgement regarding the interpretation of the nexus concept, the Court attributes a leading role to the case law of the International Criminal Court for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Court (ICC) and the Special Court for Sierra Leone (SCSL). These (international) law courts are in charge of trying individuals who allegedly committed international crimes such as war crimes, crimes against humanity or genocide. Moreover, the ICTR is particularly responsible for bringing to justice individuals (who would be) guilty of committing international crimes in the period from 1 January up to and including 31 December 1994 in Rwanda. And finally, the Court refers to the legal history of the WIM which encourages the national courts to attach great importance to the case law of the international law courts in order to establish the legal framework. 446

1. For the international administration of justice and in literature, the judgements of both tribunals in the cases Tadic, Akayesu, Kunarac and Rutaganda are considered to be especially leading for the development of law regarding the nexus requirement. In paragraphs 20 – 23 stated below, the Court will represent the most substantial legal grounds adduced for these judgements.

20. In the Tadic case (1995), in its interlocutory decision the Appeals Chamber submitted the following ground regarding jurisdiction:

"70 It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict."447

In its final judgement (1997) in this case, the Trial Chamber of the ICTY referred to this decision and stated furthermore:

"573 For an offence to be a violation of international humanitarian law, therefore, this Trial Chamber needs to be satisfied that each of the alleged acts was in fact closely related to the hostilities. It would be sufficient to prove that the crime was committed in the course of or as part of the hostilities in, or occupation of, an area controlled by one of the parties.

It is not, however, necessary to show that armed conflict was occurring at the exact time and place of the proscribed acts alleged to have occurred, as the Appeals Chamber has indicated, nor is it necessary that the crime alleged takes place during combat, that it be part of a policy or of a practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of war or in the actual interest of a party to the conflict; the obligations of individuals under international humanitarian law are independent and apply without prejudice to any questions of the responsibility of States under international law.

The only question, to be determined in the circumstances of each individual case, is whether the offences were closely related to the armed conflict as a whole."448

21. In the Akayesu case (2001), after a judgement to the contrary pronounced by the Trial Chamber of the ICTR, the Appeals Chamber ruled that in order to establish a violation of common Article 3 it is not required that the accused has a special relationship with one of the parties to the conflict.

"443. The Appeals Chamber is of the view that the minimum protection provided for victims under common Article 3 implies necessarily effective punishment on persons who violate it. Now, such punishment must be applicable to everyone without discrimination, as required by the principles governing individual criminal responsibility as laid down by the Nuremberg Tribunal in particular. The Appeals Chamber is therefore of the opinion that international humanitarian law would be lessened and called into question if it were to be admitted that certain persons be exonerated from individual criminal responsibility for a violation of common Article 3 under the pretext that they did not belong to a specific category.

444. In paragraph 630 of the Judgement, the Trial Chamber found that the four Conventions “were adopted primarily to protect the victims as well as potential victims of armed conflicts”. It went on to hold that “[t]he category of persons to be held accountable in this respect then, would in most cases be limited to commanders, combatants and other members of the armed forces”. Such a finding is prima facie not without reason. In actuality authors of violations of common Article 3 will likely fall into one of these categories. This stems from the fact that common Article 3 requires a close nexus between violations and the armed conflict. This nexus between violations and the armed conflict implies that, in most cases, the perpetrator of the crime will probably have a special relationship with one party to the conflict. However, such a special relationship is not a condition precedent to the application of common Article 3 and, hence of Article 4 of the Statute. In the opinion of the Appeals Chamber, the Trial Chamber erred in requiring that a special relationship should be a separate condition for triggering criminal responsibility for a violation of Article 4 of the Statute."449

22. In the Kunarac et al. case (2002), the Appeals Chamber took the following grounds:

“57. There is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war. The laws of war apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there, and continue to apply until a general conclusion of peace or, in the case of internal armed conflicts, until a peaceful settlement is achieved. (...) A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place. As indicated by the Trial Chamber, the requirement that the acts of the accused must be closely related to the armed conflict would not be negated if the crimes were temporally and geographically remote from the actual fighting. (...)

It would be sufficient, for instance, for the purpose of this requirement, that the alleged crimes were closely related to hostilities occurring in other parts of the territories controlled by the parties to the conflict. (...)

58. What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment - the armed conflict - in which it is committed. It need not have been planned or supported by some form of policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict. The Trial Chamber's finding on that point is unimpeachable.

59. In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia, the following factors: the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator's official duties.”450

23. The Rutaganda case (2003) was the first case in which the ICTR found an accused guilty of war crimes. The Trial Chamber had acquitted the accused of that charge. The Appeals Chamber found the accused guilty of war crimes and made the following observations regarding the nexus requirement.

“570. This Chamber agrees with the criteria highlighted and with the explanation of the nexus requirement given by the Rwanda-tribunal Appeals Chamber in the Kunarac Appeal Judgement. It is only necessary to explain two matters. First, the expression “under the guise of the armed conflict” does not mean simply “at the same time as an armed conflict” and/or “in any circumstances created in part by the armed conflict”. For example, if a non-combatant takes advantage of the lessened effectiveness of the police in conditions of disorder created by an armed conflict to murder a neighbour he has hated for years, that would not, without more, constitute a war crime under Article 4 of the Statute. By contrast, the accused in Kunarac, for example, were combatants who took advantage of their positions of military authority to rape individuals whose displacement was an express goal of the military campaign in which they took part. Second, as paragraph 59 of the Kunarac Appeal Judgement indicates, the determination of a close relationship between particular offences and an armed conflict will usually require consideration of several factors, not just one. Particular care is needed when the accused is a non-combatant.”451

24. In its judgement pronounced in the M. case, the Court made the following comments about the significance of the above statements: 452

(1) It is remarkable that in these judgements the tribunals mostly explain that certain circumstances, which (may) constitute a (strong) indication for the existence of a nexus, are not considered to be necessary nexus requirements. Thus in the Tadic case judgement, the Trial Chamber clearly distances itself from the requirements that the crime alleged takes place during combat, that it be part of a policy or of a practice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of war or in the actual interest of a party to the conflict. And in the Akayesu case judgement, the Appeals Chamber adopted the position that it is not required that the accused is a military or has a special relationship with one of the parties to the conflict. These grounds do not present a positive wording about which requirements should be fulfilled for assuming the existence of a nexus. Therefore they provide little guidance for establish a nexus in a specific case.

(2) In order to establish the difference between a war crime and a purely domestic offence (‘what ultimately distinguishes’), the decisive element mentioned in the statement of legal grounds (l.g.) for the Kunarac judgement (l.g. 58) is that a war crime must have been constituted by or was dependent on its environment – the armed conflict – in which it was committed, a criterion which hardly offers any guidance. Subsequently, after having established first of all that it is not required that a crime be caused by the armed conflict, indications are given for the application of this criterion. According to this ground, the existence of an armed conflict must, at a minimum, (i) have played an important part in the decision taken by the perpetrator to commit the crime, (ii) his opportunity to do so, (iii) the way in which the crime was committed or (iv) the purpose for which it was committed. Although this wording provides more guidance, it appears that these do not present ‘hard’ criteria (‘must, at a minimum, have played a substantial part’). Moreover, in the opinion of the Court these wordings ('hence, if it can be established, as in the present case, (...) it would be sufficient') are not compelling enough to conclude that the alleged act is indeed a war crime, if one of these four conditions has been satisfied. The Court does find, however, important reference points in this formulation for answering the question if a nexus exists in the matter at hand. Furthermore, the Kunarac judgement (paragraph 59) mentions several examples of facts and circumstances that might be of importance for establishing a nexus.

(3) The Court finds confirmation for this in the Appeals Chamber’s Rutaganda judgement (l.g. 570). Here the Appeals Chamber expresses its consent to the Kunarac-criteria and explains what the words in the statement “under the guise of the armed conflict” do not mean; again an explanation of what it should not be taken to mean, no description of what it does mean. Next the Appeals Chamber, as an example, outlines a fictitious case which does not constitute a war crime, although without any doubt one of the Kunarac-criteria has clearly been satisfied, because in the case used as an example, the armed conflict provided the civilian put on the scene with the opportunity to murder his neighbour, according to the Appeals Chamber.

(4) Subsequently, the Appeals Chamber sets this example off against the Kunarac case, where the alleged offence did constitute a war crime. In said case the accused were a) combatants, who b) abused their position of military power against c) individuals who had been relocated for a military purpose in d) a military operation in which the accused had participated. From setting this example against the other, the Court can only conclude that the Chamber advocates an approach whereby for each case all relevant facts and circumstances, such as the capacity of the accused (civilian or military) and the (military) context of the alleged crimes, should be taken into account in order to answer the question about the existence of a nexus.

(5) The Rutaganda judgement puts forward that in general different factors (not just one) should be taken into account to establish in concrete terms whether the nexus requirement has been met. This ground of the judgement ends with the admonition to be cautious in cases where the accused is a non-combatant. Consequently – alongside with the relevant statements made by the Chamber about the example of the citizen who killed his neighbour, set against the example of the military who stood trial in the Kunarac case – the Court understands this as a caution that in cases regarding non-combatants, one should not assume too quickly, at least less quickly than in the case of military, that there has been a close relationship between the crimes committed by them during an armed conflict and that conflict. This admonition appears to be in conformity with the legal ground (l.g. 444) adduced by the Appeals Chamber in the Akayesu judgement, that it is fair to assume that most of all military and persons who have a special relationship with one of the parties to the conflict will be found guilty as perpetrators of war crimes. Except for some special cases, non-combatants will not participate in the hostilities between combating armed forces nor will they have any influence on those hostilities. Moreover, this admonition illustrates that the Kunarac-criteria are not as hard and compelling as contended by the Prosecution.

25. Based on the analysis of that judgement 453, the Court came to the conclusion that:

25. i) this (and other) judgements pronounced by both tribunals do not provide a framework for making a simple assessment in the present case to establish whether the nexus requirement has been satisfied and that they do not offer a clear, abstract bottom line for this assessment;

(ii) the tribunals opt for a case-type approach whereby the answer to the question whether the nexus requirement has been satisfied depends on the assessment of all relevant facts and circumstances;

(iii) the four Kunarac-criteria (did the armed conflict play an important part in (i) the decision taken by the perpetrator to commit the crime, (ii) his opportunity to do so, (iii) the way in which the crime was committed or (iv) the purpose for which it was committed?) are points of reference for finding the correct answer to this question.

26. The Court has found confirmation for this conclusion in scientific literature about the nexus. Quotes from Michael Cottier:

‘The issue of the necessary link has not yet received much attention by academia and judicial institutions, possibly also since the nexus was rather evident in traditional inter-state conflicts predominant up to the beginning of the 20th century with relatively clear cut front lines and parties to the conflict. In contemporary non-international or mixed armed conflicts, with often a wider array of different actors and less clear-cut front lines, the existence of a nexus frequently is less obvious.'

and Guénaël Mettraux:

‘Instead of drawing a strict (and probably unworkable) dividing line between the two categories [war crime versus domestic crime], international and national tribunals have considered a number of factors which they may take into account to determine the nature of the relationship between the acts of the accused and the armed conflict so as to determine that the linkage between the two be sufficient, for instance: (i) the status of the perpetrator (as soldier or combatant); (ii) the status of the victim or victims (as combatants or civilians); (iii) the circumstances in which the crimes were committed; (iv) the fact that the crimes are committed in the context of an ongoing campaign to achieve particular military goals; (v) the fact that his crime coincided with the ultimate purpose of the military campaign; (vi) the fact that the crimes were committed with the assistance or connivance of the parties of the conflict; (vii) the fact that the crime is committed as part of, or in the context of, the perpetrator's official duties; (viii) the fact that the victim is a member of the forces of the opposing party. None of the above when taken individually may be conclusive. Courts must therefore take into account all relevant indications that the acts of the accused are, or are not, sufficiently connected to the conflict before concluding that the conduct in question may be regarded as a war crime.’

27. The Court persists in its opinion, as summarized in the above paragraph 25, about the manner in which in the case at hand – and therefore also in the present case – the answer to the question whether there is a nexus needs to be found. There is/are no criterion/criteria – provided that it/they has/have been satisfied or not – based on which it can be established with absolute certainty that a nexus does, or does not, exist. The decisive factor for this is whether the crimes committed by the defendant are closely related to the armed conflict (“closely related to the armed conflict as a whole”). At all times, on the basis of the specific facts of the case, the Court shall need to determine whether legal and conclusive evidence is available for this conclusion (“to be determined in the circumstances of each individual case”). The Court distances itself from the other opinion of Prof. Cassese, where he assumes the existence of a nexus in the Rwandan context in his Legal Opinion 454 and argues that in each individual case the court would have to assess whether an exception should be made:

“...in evidentiary terms the nexus standard is not a positive one, nor should it be. Rather than looking for specific facts that point to a relationship between the crime and the armed conflict, the court must first determine whether the crime would have been committed in the absence of the armed conflict. This determination must be made at the preliminary and general stage. In the cases brought before the ICTR, since the genocide and armed conflict were somehow connected, as a rule the determination would lead to the conclusion that the underlying offences were linked to the armed conflict. Once this determination was made, what the court had to do in practice was to assess whether individual crimes should nevertheless have been regarded as un-linked to the conflict, on other grounds.”

28. The Court points out that on the one hand the Prosecution seems to proceed from a completely clear and binding framework for assessment, established by the Kunarac judgement (see for instance on page 15 of the additional reply: “The nexus standard is much more evident than many parts of the Dutch Criminal Code.” and on page 393 of the Public Prosecutor’s closing speech: “If it can be determined that the perpetrator acted ‘in furtherance of or under the guise of the armed conflict’, then the nexus requirement has been satisfied”, but on the other hand the Prosecution acknowledges that in principle and in most situations, respectively, it is sufficient if one of the Kunarac-criteria has been satisfied.455

29. The Court underlines that for the assumption of a nexus it is not required that:

29. the defendant is a military or has a special relationship with one of the parties to the conflict;

29. the crime takes place at the same time and/or in the immediate vicinity of the hostilities between the parties to the conflict;

29. the crime is part of a policy or of a practice officially endorsed or tolerated by one of the parties to the conflict;

29. the crime is in furtherance of the conduct of war or in the actual interest of a party to the conflict;

29. the crime is caused by the armed conflict.

It is obvious that these facts and circumstances – either individually or viewed together – may constitute a strong indication of the existence of a nexus.

30. The Prosecution’s contention that there is a nexus in this case (see paragraph 15) is mainly based on the established facts regarding the general developments in Rwanda and Gikondo, respectively, in the period mentioned in the indictment. However, it is not possible to establish a nexus merely based on those facts. It is not about how the CDR presented itself, or what the militiamen have done, it is about the alleged acts of the defendant. The evidence shall have to prove that a close relationship did indeed exist between the culpable acts committed by the defendant (and her co-perpetrators) on the one hand, as she has been charged with and for which she was found guilty beyond reasonable doubt, and the armed conflict on the other. However, the outlined context is important for a correct assessment of the defendant’s culpable acts which have been declared proved.

31. In this judgement the Court has established up to now that the defendant promoted the anti-Tutsi ideology at CDR-party meetings in her immediate living environment, that she called for violence against and murder of Tutsis, and/or inyenzi and/or icyitso/ibyitso and that her supporters frequently showed machetes and wooden striking weapons in a threatening manner. There is no evidence to prove that the defendant, as she was accused of in count 6 of the charges, incited her followers to track down Tutsis and/or ibyitso.

32. At these party gatherings the defendant acted as a promoter of her party. The party meetings were not intended for the benefit of military operations, nor did they have any influence on the course of the hostilities between the FAR and the RPF. There is no evidence for any collaboration between the defendant and the military during these meetings. The file does not contain any evidence to prove that the defendant explicitly associated herself with the FAR at any time during the animations.

33. The defendant did not hold a military function and was not the “mother-general” of the militia, whether collaborating with the FAR or not.

34. The fact that the defendant’s supporters frequently showed weapons in a threatening manner during those gatherings, in itself is not an indication of a connection with the conflict between the FAR and the RPF. It has not appeared that there was a relationship between the persons who showed the weapons, or the weapons, and one of the parties to the conflict; in those days the gangs/militia of the different political parties were also fighting against each other on a regular basis.

35. It is true that in public the CDR distinguished itself strongly as the ideological ally of the FAR, but it cannot be seen as its “political branch”. So, from the mere fact that the defendant was an active member of the CDR, it cannot be concluded that therefore she can be associated with one of the combating parties of the armed conflict.

36. The fact that the defendant propagated the anti-Tutsi ideology of her party in itself is not a circumstance from which a close relationship with the armed conflict may be concluded either. Long before the start of the civil war, Rwandan society was torn apart by ethnic contrasts and many Hutus were instilled with a deep hatred towards Tutsis.

It is beyond doubt that the invasion of the RPF on 1 October 1990 and the following civil war provided nourishment for these feelings of hatred and that the CDR took advantage of the armed conflict to stir up these feelings even more. In fitted in with this context to describe the Tutsis as ibyitso, which means accomplices of the RPF. The Court points out that this negative description was already used long before 1 October 1990. For that reason it is not possible to deduce a specific relationship with the armed conflict between the FAR and the RPF from the use of this term. Ibyitso was simply one of the many terms of abuse for Tutsis. But even by assuming that the defendant did mention the term ibyitso during the meetings to equate them with the RPF, this only represents one single circumstance which can be related to the armed conflict between the RAF and the RPF.

In view of the statement of the Trial Chamber in the Rutaganda case – ‘the determination of a close relationship between particular offences and an armed conflict will usually require consideration of several factors, not just one. Particular care is needed when the accused is a non-combatant’ – the Court does not consider this sufficient to establish a close relationship between the criminal conduct of the defendant which has been declared proved and the armed conflict between the FAR and the RPF.

37. Thus, the conclusion should be that the nexus requirement has not been satisfied. Therefore the Court acquits the defendant of the war crimes imputed to her.

20 PUNISHABILITY AND LEGAL REGULATIONS

1. The Court has not found any facts or circumstances which exclude the punishability of the imputed charges. This constitutes the charges as referred to in the decision.

2. The defendant is liable to punishment, since there are no circumstances which exclude her punishability.

3. The punishment to be imposed is founded on articles 57 and 131 of the Dutch Criminal Code and article 1, first paragraph of the Genocide Implementation Act, as they were valid at the time of the proved charges.

21 THE CLAIMS OF THE INJURED PARTY

1. With the assistance of her Counsel mr. F.P. Holthuis, [witness 6] has joined these proceedings as an injured party and she has submitted a claim for immaterial damages caused by the accusations referred to under 2. and 6., in the amount of € 2.500,-.

2. The Prosecution has allowed the claim.

3. The Defence has adopted the position that the injured party has no cause of action.

4. The Court shall declare the injured party not admissible since the defendant will be acquitted on the charges which form the basis of this claim.

5. This implies that the injured party shall have to be sentenced to payment of the expenses the defendant has incurred for his defence up to the moment of this sentence, which expenses the Court has estimated so far at nil.

22 LEGAL GROUNDS FOR THE SENTENCE

1. The Public Prosecution Service has demanded imprisonment for life on the basis of a conviction for (almost) all accusations: multiple complicity in genocide, multiple complicity in attempted genocide, complicity in manslaughter, conspiracy to commit genocide, incitement to commit genocide and war crimes.

2. The Court has only deemed legally and convincingly proved that the defendant is guilty of incitement to commit genocide. Therefore, the sentence the Prosecution demands cannot serve as an indication for the punishment to be imposed on the defendant.

3. When imposing a punishment on the defendant, the Court will consider the following points: the seriousness of the proved offence; the circumstances under which the offence was committed; the purpose of the punishment and the personal circumstances of the defendant.

4. From April until July 1994, hundreds of thousands of Tutsis and moderate Hutus were massacred in abhorrent manner in Rwanda. Approximately 75 percent of all Tutsis in Rwanda were killed. This genocide has shocked humanity, in particular because of its scale, the short period and the manner in which these massacres took place. The genocide did not come unannounced. During the years prior to the genocide, preparations took place and Hutus were systematically incited to hate Tutsis and to commit violence against them. The defendant has embraced and propagated this extreme racist ideology in so far as possible within her sphere of influence, she has contributed to this violent climate. The incitement to commit genocide formed an important – or actually indispensable – link in the sequence of events that, ultimately, would lead to the.

5. The defendant has been found guilty of repeatedly inciting others to commit genocide during a long period of time. At public meetings she incited (mostly) disadvantaged youngsters to kill Tutsis. She did this with the intent to exterminate her Tutsi-neighbours, as was demonstrated through the meaning of the song she would sing in public: “Tubatsembesembe”, which means "we will exterminate them all". As a consequence, for years her neighbours lived in mortal fear. From all Tutsis in her neighbourhood only a few have survived the genocide.

6. Incitement to commit genocide is an international crime that belongs to the most serious crimes in Dutch and international legal order. The Court has established that because of a poor choice from the legislator (from a legal standpoint), incitement to commit genocide had been made punishable pursuant to a legal provision (art. 131 Criminal Code) that provided a maximum term of imprisonment of not more than five years. In the meantime, in the International Crimes Act, the maximum term of imprisonment for this offence has been set at 30 years. However, the Court is bound by the maximum term valid at the time of the commission of the facts declared proved.

7. Since the defendant has committed the incitement to genocide multiple times, pursuant to article 57 of the Dutch Criminal Code, a maximum term of imprisonment of not more than six years and eight months may be imposed on her.

8. In this criminal case, punishment primarily serves as reprisal for the extreme seriousness of the offence. In view of the universal nature of the offences, punishment also serves as settlement for the damage the defendant has inflicted on international legal order, and as a marking of the importance of the humanitarian standards and values in question. In addition, punishment in this particular case serves as a loud and clear and international signal of deterrence to every person who has the intention to commit such serious crimes.

9. It is implausible that in the future, there will be the danger that the defendant will commit similar offences – surrounded by special circumstances - once again. However, in this respect the Court sees no reason to moderate the sentence.

1. The Court does not see any reason whatsoever to lower the sentence with regard to the personality of the defendant and/or her personal circumstances. The proven facts may be attributed to her entirely. At the time of the proven facts, the defendant was a educated woman. She had been raised in a rich and prominent family and had received a university education. She was not, like so many of her countrymen, illiterate and/or economically dependent. The defendant could have, and should have, known better and could have made different choices, like other Hutus did. The circumstance that in the Netherlands she has not been in conflict with the law, carries no weight whatsoever. The circumstances that currently the defendant is 66 years old and the proven facts took place about 20 years ago, do not play a role in the determination of the sentence either.

1. Just before she was arrested, the defendant spoke in negative terms about Tutsis and she was still in contact with Hutu-extremists. The only interpretation here could be that she still embraces the anti-Tutsi ideology. During the hearings, there has been no trace whatsoever of insight, repent or regret. The Court blames the defendant for not taking any responsibility for the offences committed by her and the suffering she caused. During the trial, the defendant turned to the witness [witness 6], who barely survived the genocide and whose husband was killed, and made the remark: “but you are not dead, are you?”. This cold and heartless reaction illustrates that the defendant has no empathy for the survivors of the genocide, for which genocide she also carries responsibility.

1. Although the Court realises that this punishment does not do sufficient justice to the exceptional seriousness of the proven facts, the Court sentences the defendant to a term of imprisonment of six years and eight months.

23 THE DECISION

The Court,

declares not legally and convincingly proved that the defendant has committed the offences as referred to under 1,2,3 and 4 in the indictment and therefore acquits the defendant of these charges.

bars the Public Prosecution Service from prosecution concerning the offences referred to under 5 for the period between 1 October 1990 and 1 October 1991;

declares legally and convincingly proved that the defendant has committed the offence as referred to under 5 (in the period between 22 February 1992 and 6 April 1994), which offence includes the following:

with respect to 5:

Incitement in public to an offence (being genocide), committed multiple times;

declares the facts proved and therefore, the defendant is liable to punishment;

declares all other charges, not being the ones of which she was found guilty in the above, not proved and acquits the defendant of those charges;

sentences the defendant to:

a TERM OF IMPRISONMENT OF 6 (SIX) YEARS and 8 (EIGHT) MONTHS;

orders the time spent by the defendant in police-custody and in pre-trial detention before the execution of this judgement to be entirely deducted from the sentence imposed on her;

dismisses the claim for damages by the injured party [witness 6];

sentences the injured party to pay the expenses incurred by the defendant for his defence against the claim, currently estimated at nil.

This judgement was delivered by:

Messrs. Elkerbout Chairman,

Meessen and Renckens Judges,

in presence of Messrs. Haijer and Bouda

Court Registrars,

and pronounced during a public hearing on 1 March 2013.

FOOTNOTES

  1. All causal facts and circumstances in the argumentation have been included directly in this judgement, whereby the site of the legal evidence has been mentioned in a footnote (also called a promissory-judgement). Every time reference is made to a report, this represents an official report (OR) when drawn up in legal form by an authorised investigating officer, or a court record when drawn up in legal form by one or more Examining Judges (EJ).

  2. Copy of a Dutch passport in the name of the defendant, OR of personal file page 5 and OR page 43, which shows that on 7 December 2004, the defendant obtained Dutch nationality.

  3. As from 1 February 2006, increased to thirty years.

  4. In this respect, reference is made to R.A. Kok, Statutory Limitations in International Criminal Law, The Hague: TMC Asser press 2007.

  5. See the judgement of the Supreme Court of 23 October 2001, NJ 2002, 77.

  6. OR 1849.

  7. OR account 7- 8.

  8. OR 1881-1882.

  9. OR 1895-1900.

  10. This political party has been explained in Chapter 5.

  11. The International Tribunal for the Prosecution of Persons Responsible for Genocide and other Serious Violations of International Humanitarian Law, Committed on the Territory of Rwanda or Neighbouring Countries of Rwanda Between 1 January 1994 and 31 December 1994 (hereafter: Rwanda Tribunal).

  12. OR account 8-10.

  13. OR account 10-11.

  14. InRwanda, ‘Gacaca‘ (literally: lawn or grass) was a traditional form of dispute settlement. Starting 2000, gacaca-courts were set up for the trial of genocide suspects.

  15. OR account 11-13.

  16. OR account 13.

  17. OR account 13-15.

  18. OR account 15-16.

  19. OR account 16-17.

  20. CR findings 20.

  21. EJ findings 1-4.

  22. EJ findings 5-10.

  23. EJ findings 21.

  24. At the request of the Defence, the defendant was heard through the intermediary of a French interpreter.

  25. EJ findings 107.

  26. EJ findings 622.

  27. EJ findings 673.

  28. For an example, see EJ findings 45;

  29. Appendix to EJ findings 676-678.

  30. EJ findings 56.

  31. EJ findings 11-12.

  32. In limited cases, the official reports were drawn up by a foreign (Belgian, French or US) judicial authority or the Examining Judge formally drew up an official report of findings (this concerns the interviews in Switzerland).

  33. EJ findings 61.

  34. EJ findings 55-56.

  35. The witnesses [WWW] and [witness 7].

  36. EJ findings 130-133 and 229-230;

  37. EJ findings 13;

  38. EJ findings 64-65;

  39. EJ findings 13;

  40. See example in EJ findings 73-74;

  41. EJ findings 74-75;

  42. EJ findings 109-111;

  43. EJ findings 40-41.

  44. EJ findings 214-217 and EJ findings 249-250.

  45. General expert report drawn up at the request of mr. M.R. Witteveen, Examining Judge, by André Guichaoua, Professor at the University of Paris I Panthéon-Sorbonne (France), November 2011.

  46. Answer to written questions dated 15 May 2012 and interview by the Examining Judge on 13 October 2012.

  47. The Prosecutor v. J.-P. Akayesu, Case No. ICTR-96-4-T, "Judgement", 2 September 1998; in a number of later judgements, it has been repeated in extenso, for instance in the case The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and Sentence", 3 December 2003, Chapter 2, paragraphs 105-109.

  48. Rwanda: the preventable genocide: the report of international panel of eminent personalities to investigate the 1994 genocide in Rwanda and the surrounding events, Organization of African Unity, 2000, paragraphs 3.14 and 3.15. This report (hereafter: OAU-report) is Available via:

http://www.africa-union.org/Official_documents/reports/Report_rowanda_genocide.pdf

49. OAU-report, paragraph 3.13.

50. OAU-report, paragraph 3.14.

51. OAU-report, paragraph 3.19.

52. OAU-report, paragraph 3.21.

53. OAU-report, paragraph 3.22.

54. OAU-report, paragraph 3.25.

55. OAU-report, paragraph 3.26.

56. The Prosecutor v. J.-P. Akayesu, Case No. ICTR-96-4-T, "Judgement", 2 September 1998, paragraph 92.

57. The Prosecutor v. J.-P. Akayesu, Case No. ICTR-96-4-T, "Judgement", 2 September 1998, paragraph 93.

58. OAU-report, paragraph 4.6.

59. OAU-report, paragraph 4.1 and report Guichaoua p. 15.

60. OAU-report, paragraph 4.6.

61. OAU-report, paragraph 4.18.

62. OAU-report, paragraph 5.9.

63. OAU-report, paragraph 5.5.

64. A. Des Forges, 'Leave none to tell the story: genocide in Rwanda' , Human Rights Watch, United States of America, 1999 (hereafter: Des Forges 1999), p.40 ; OAU-report, paragraph 5.10; G. Prunier, The Rwanda crisis: history of a genocide, C. Hurst & Co. (Publishers) Ltd, London, 2008 (hereafter: Prunier 2008), p.87-88.

65. OAU-report, paragraph 5.7.

66. The expert Guichaoua has extensively described how the revenues of this project

67. financed with development funds – whereby forest was turned into pastureland, benefitted a small number of privileged persons to whom this pastureland was allocated for free.

68. OAU-report, paragraph 5.17.

69. Des Forges 1999, p. 42.

70. Des Forges 1999 p. 42.

71. OAU-report, paragraph 6.2.

72. OAU-report, paragraph 6.1.

73. OAU-report, paragraph 6.20.

74. Report by mr. B.W. Ndiaye. Special Reporteur, on his mission to Rwanda from 8 to 17 April 1993, E/CN.4/1994/7/Add.1 (hereafter: Ndiaye-report), paragraphs 23-24, (see file 27 p. 414).

75. OAU-report, paragraphs 6.20 and 6.21.

76. OAU-report, paragraph 7.27.

77. OAU-report, paragraphs 6.21 and 6.22.

78. OAU-report, paragraph 6.22.

79. Guichaoua p. 40 and further

80. Des Forges 1999 p. 44.

81. The Prosecutor v. J.-P. Akayesu, Case No. ICTR-96-4-T, "Judgement", 2 September 1998, paragraph 96.

82. Report Guichaoua p. 41.

83. OAU-report, paragraph 5.23.

84. Report Guichaoua Chapter 5.2.

85. Report Guichaoua p. 46.

86. Report Guichaoua p. 46.

87. Report Guichaoua p. 46.

88. Interview Guichaoua CR 3210.

89. The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and Sentence", 3 December 2003, paragraphs 258-341.

90. The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and Sentence", 3 December 2003, paragraphs 301, 335 en 339.

91. The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and Sentence", 3 December 2003, paragraph 301.

92. The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and Sentence", 3 December 2003, paragraph 301.

93. The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and Sentence", 3 December 2003, paragraph 301.

94. The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and Sentence", 3 December 2003, paragraph 301.

95. The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and Sentence", 3 December 2003, paragraphs 336 en 340.

96. Des Forges 1999 p. 45.

97. Des Forges 1999 p. 46-48.

98. Des Forges 1999 p. 46-47.

99. OAU-report, paragraph 7.29.

100. OAU-report, paragraphs 5.11-5.12.

100 OAU-report, paragraph 5.12.

101 The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and Sentence", 3 December 2003, paragraph 113; also see Guichaoua report p. 89-90.

102 Prosecutor v. J.-P. Akayesu, Case No. ICTR-96-4-T, "Judgement", 2 September 1998, paragraph 97.

103 Prosecutor v. J.-P. Akayesu, Case No. ICTR-96-4-T, "Judgement", 2 September 1998, paragraph 102.

104 The Prosecutor v. J.-P. Akayesu, Case No. ICTR-96-4-T, "Judgement", 2 September 1998, paragraph 101.

105 OAU-report, paragraph 8.16.

106 OAU-report, paragraphs 7.19 ff.; Des Forges 1999 pp. 65-95; The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-A, "Judgement", 28 November 2007, paragraph 159.

107 OAU-report, paragraph 7.20.

108 The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and sentence", 3 December 2003, paragraph 138.

109 The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and Sentence", 3 December 2003, paragraph 138, 139, 152 and further.

110 Des Forges 1999 p. 59.

111 The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and Sentence", 3 December 2003, paragraphs 486-488.

112 Des Forges 1999 p. 68.

113 Prunier 2008 p. 171-172; idem OAU-report, paragraph 9.9.

114 OAU-report, paragraphs 16.2 and 16.3.

115 The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-T, "Judgement and Sentence", 3 December 2003, paragraphs 118 en 120.

116 Des Forges 1999 p. 70 t/m 73.

117 OAU-report, paragraph 7.15.

118 Dr. A. des Forges en professor W.A. Schabas were part of this commission.

119 G.H. Stanton, ‘The Rwandan Genocide: Why early warning failed’, Journal of African Conflicts and Peace Studies, Vol. 1(2), September 2009, Appendix 9 of the articles accompanying the plea, p. 1-2.

120 Ndiaye-report, paragraphs 9, 29, 40 en 78-80.

121 R.Dallaire, "Shake hands with the devil: the failure of humanity in Rwanda", p. 188; idem Prunier p. 206.

122 The Prosecutor v. J.-P. Akayesu, Case No. ICTR-96-4-T, "Judgement", 2 September 1998, paragraph 106.

123 OAU-report, paragraphs 14.1 and 14.3.

124 OAU-report, paragraph 14.2.

125 The Prosecutor v. E. Karemera et al., Case No. ICTR-98-44-AR73 (C), "Decision on prosecutor's interlocutory Appeal of decision on judicial notice", 16 June 2006.

126 See Chapter 5, paragraph 7 and the added note.

127 EJ p. 824.

128 OR p. 2525-2527

129 BOB file p. 1263.

130 BOB file p. 938.

131 BOB-file including p. 955.

132 OR p. 2230.

133 EJ p. 141-147.

134 Report p. 96.

135 Report p. 98.

136 Report p. 103.

137 Appendix 5 to the report p. 46-49.

138 OR 212-213.

139 Supreme Court, 13 July 2010, LJN: BM2452.

140 Although the Examining Judge has not been able to complete the interview of two witnesses.

141 See: note 50 in Ruling of the Appeals Court

142 See: note 195 in judgement, p. 413.

143 I. Candel, H. Merckelbach and I. Wessel, Traumatic Memories, in P.J. van Koppen, D.J. Hessing, H.L.G.J. Merckelbach and H.F.M. Crombag (ed.), The Inside of Justice, Psychology of Justice (2002), p. 420.

144 Id., p. 421 and 422.

145 E. Rassin and P.J. van Koppen, Interviewing Children in Vice Cases, in P.J. van Koppen, D.J. Hessing, H.L.G.J. Merckelbach and H.F.M. Crombag (ed.), The Inside of Justice, Psychology of Justice (2002), p. 509.

146 Prosecutor v. Z. Kupreškic et al., Case No. IT-95-16-A, "Appeal Judgement", 23 October 2001, paragraph 31.

147 Prosecutor v. A. Furundžija, Case No. IT-95-17/1-T, "Judgement", 10 December 1998, paragraph 113.

148 OR 2952 and 2954-2963.

149 Document 2589.

150 OR 2585.

151 Kupreškic Appeal Judgement, § 334.

152 N.A. Combs, 'Fact-Finding Without Facts'; The Uncertain Evidentiary Foundations of International Criminal Convictions, Cambridge University Press (New York), 1st edition, 2010.

153 Human Rights Watch, Justice Compromised: 'The Legacy of Rwanda's Community-Based Gacaca Courts', 2011.

154 Plea, 3.98.

155 Plea, 3.94.

156 OR p. 2984-2986 and document on plundering file p. 2987-3173.

157 Court case with number RP197/CSK of 8 August 2003 (file 197).

158 Witness during court hearings 15 and 16 November 2012.

159 Document, EJ documents, appendix 18.

160 Document, file provided documents, 126.

161 Supplement BOB file p.. 1024.

162 Supplement BOB file p.. 966.

163 Supplement BOB file p. 992.

164 Supplement BOB file p. 979.

165 Supplement BOB file p. 1003.

166 EJ p. 1444.

167 Court hearing 23 October 2012.

168 Court hearing 26 October 2012.

169 Court hearing 29 October 2012.

170 G52 p. 63.

171 EJ 3485.

172 Plea, 3.150.

173 G83 P. 42.

174 OR findings Rogatory Commission 6 and OR findings Rogatory Commission 6 supplement.

175 Appendix to OR findings [L].

176 Plea, 3.121.

177 OR findings Rogatory Commission 23, p. 574-575.

178 Court hearing 18 June 2012, p. 7.

179 Plea, 3.88., 3.89., 3.94., 3.105. 3.153.

180 OR findings Rogatory Commission 18, p. 214-217.

181 Court hearing 18 June 2012.

182 Plea, 3.106.

183 OR findings Rogatory Commission 25, p. 603.

184 OR findings Rogatory Commission 29, p. 656-657.

185 Plea, 3.106.

186 Plea, 3.29., 3.30., 3.176.

187 OR findings Rogatory Commission 12, p. 116 and 117.

188 EJ 1838.

189 EJ 2367.

190 EJ 1832.

191 EJ 2372.

192 [I] was the owner of a large compound in Gikondo. The Rwanda Tribunal convicted him to 25 years imprisonment for genocide in Kibuye.

193 EJ 2476.

194 G72 p. 23.

195 Written replies by the expert, p. 14 sub 44.

196 EJ 1829.

197 Registered as a Hutu at the time. He escaped Gikondo in April 1994, together and with the assistance of the Basebya family. Presently, he is a Professor at Ohio Northern University.

198 EJ witness statement, p. 1647.

199 EJ witness statement, p. 1641-1642, p. 1644.

200 EJ witness statement, p. 446-449.

201 EJ witness statement, p. 463.

202 EJ witness statement, p. 540.

203 EJ witness statement, p. 381-382.

204 EJ witness statement, p. 2764.

205 Registered as a Hutu at the time. She was a good friend of defendant’s eldest daughter. Presently, she is the ambassador for Rwanda in Canada.

206 EJ witness statement, p. 2148.

207 EJ witness statement, p. 2151.

208 EJ witness statement, p. 2146.

209 Registered as a Hutu at the time. She escaped Gikondo in April 1994, together and with the assistance of the Basebya family.

210 EJ witness statement, p. 633.

211 EJ witness statement p. 648.

212 EJ witness statement, p. 233.

213 EJ witness statement, p. 242.

214 Bob-file, p. 947.

215 EJ statement defendant, p. 1434-1436.

216 Guichaoua, p. 104.

217 OR IND-file A. Basebya, p. 393.

218 EJ witness statement, p. 3097.

219 NCIS witness statement G 106 dated 01-03-2010, p. 0012.

220 EJ witness statement, p. 1139-1140.

221 EJ witness statement, p. 2148.

222 EJ witness statement, p. 1653.

223 RC 765.

224 EJ witness statement [witness 4], p. 395, EJ witness statement [witness 6], p. 539-544, EJ witness statement [witness 11], p. 1178-1184.

225 EJ witness statement [witness 2], p. 2050-2051, EJ witness statement [witness 12], p. 245-246.

226 EJ witness statement [witness 2], p. 2051.

227 EJ witness statement [witness 8], p. 2933, 2950-2951.

228 EJ witness statement [witness 10], p. 2770, EJ witness statement [witness 1], p. 3089-3090, EJ witness statement [witness 2], p. 2054, EJ witness statement [witness 3], p. 1128, EJ witness statement [witness 4], p. 382-385, EJ witness statement [witness 8], p. 2950-2951, EJ witness statement [witness 12], p. 234-237.

229 EJ witness statement [witness 5], p. 448-452, EJ witness statement [witness 9], p. 1176, EJ witness statement [witness 10], p. 2771 en p. 2773.

230 File 27, p. 212.

231 OR findings video conference witness, p. 3497, EJ witness statement, p. 3089-3090.

232 EJ witness statement, p. 3089.

233 EJ witness statement p. 3090.

234 EJ witness statement p. 3090.

235 EJ witness statement p. 3090.

236 EJ witness statement, p. 3089.

237 EJ witness statement, p. 539-544.

238 EJ witness statement, p. 547, p. 572.

239 EJ witness statement, p. 547.

240 Testimony of witness during the court hearing of 16 November 2012.

241 At the time, registered as a Tutsi.

242 EJ witness statement, p. 2936.

243 EJ witness statement, p. 2956.

244 EJ witness statement p. 2933, 2950-2951 and p. 2955.

245 EJ witness statement, p. 2933.

246 EJ witness statement, p. 2984.

247 EJ witness statement, p. 2054.

248 EJ witness statement, p. 2052.

249 EJ witness statement, p. 2082.

250 EJ witness statement, p. 2054.

251 EJ witness statement, p. 2058.

252 EJ witness statement, p. 2067-2068.

253 EJ witness statement, p. 2054.

254 EJ witness statement, p. 2053.

255 EJ witness statement, p. 2055-2056.

256 At the time, registered as a Tutsi.

257 EJ witness statement, p. 1128. The Court notes here that the witness most probably means [witness 9][witness 9], the brother of [YY]. [YY] and [witness 9] are both sons of [BB, father of YY and witness 9].

258 EJ witness statement, p. 1126-1127.

259 EJ witness statement, p. 1126-1127.

260 EJ witness statement, p. 1129-1130.

261 EJ witness statement, p. 1131-1132.

262 EJ witness statement, p. 234-236.

263 EJ witness statement, p. 243.

264 EJ witness statement, p. 245-246.

265 EJ witness statement, p. 395.

266 EJ witness statement, p. 382-385.

267 EJ witness statement, p. 392.

268 EJ witness statement, p. 450.

269 EJ witness statement, p. 455.

270 EJ witness statement, p. 448-452.

271 EJ witness statement, p. 457.

272 EJ witness statement, p. 457.

273 OR G 89, p. 15.

274 EJ witness statement, p. 1174.

275 EJ witness statement, p. 1176.

276 EJ witness statement, p. 1172-1173.

277 EJ witness statement, p. 1174.

278 EJ witness statement, p. 1777-1778.

279 At the time, registered as a Tutsi.

280 EJ witness statement, p. 2755.

281 EJ witness statement, p. 2768.

282 EJ witness statement, p. 2770.

283 EJ witness statement, p. 2771, p. 2773.

284 EJ witness statement, p. 2767.

285 At the time, registered as a Hutu.

286 EJ witness statement, p. 1184.

287 EJ witness statement, p. 1182.

288 EJ witness statement, p. 1178.

289 EJ witness statement, p. 1180.

290 EJ witness statement, p. 1179 and 1183.

291 The husband of the defendant was also heard by the Examining Judge. With respect to all the questions, he invoked his right to remain silent.

292 EJ witness statement, p. 1633.

293 EJ witness statement, p. 1652-1655.

294 EJ witness statement, p. 1639, 1648, 1651.

295 EJ witness statement, p. 1638.

296 EJ witness statement, p. 1666-1667.

297 EJ witness statement, p. 1647-1650 and 1656-1657.

298 EJ witness statement [S], p. 1658.

299 EJ witness statement [witness 16] p. 643, EJ witness statement [witness 15]. p. 1384.

300 EJ witness statement, p. 1634-1635.

301 G112 p. 50.

302 EJ witness statement, p. 3386, 3404.

303 EJ witness statement, p. 2145.

304 EJ witness statement, p. 2146.

305 EJ witness statement, p. 982.

306 EJ witness statement, p.1049.

307 EJ witness statement, p. 1905-1908, 1913-1914.

308 EJ witness statement, p. 1903.

309 EJ witness statement, p. 1904, p. 1912.

310 EJ witness statement, p. 1515.

311 EJ witness statement, p. 1516.

312 EJ witness statement, p. 1508.

313 EJ witness statement, p. 3031, 3034.

314 EJ witness statement, p. 3035.

315 EJ witness statement, p. 3041.

316 EJ witness statement, p. 2553.

317 EJ witness statement, p. 2554, 2559.

318 EJ witness statement, p. 2549.

319 EJ witness statement, p. 2548.

320 EJ witness statement, p. 2505.

321 EJ witness statement, p. 2504-2505.

322 EJ witness statement, p. 2399.

323 EJ witness statement, p. 1306-1307.

324 EJ witness statement, p. 452-453, p. 472.

325 EJ witness statement, p. 2936, 2948.

326 EJ witness statement, p. 1777-1778.

327 EJ witness statement, p. 427.

328 EJ witness statement p. 2773.

329 EJ witness statement p. 3199.

330 File 7, p. 2480.

331 EJ 447.

332 EJ 586.

333 EJ 1610.

334 EJ 2934-2935.

335 The Prosecutor v. J.-P. Akayesu, Case No. ICTR-96-4-T, "Judgement", 2 September 1998, paragraph 560.

336 The Prosecutor v. F. Nahimana et al. ('Media Trial'), Case No. ICTR-99-52-A, "Judgement and Sentence", 28 November 2007, paragraph 539.

337 District Court in The Hague, 23 December 2005, LJN: AV6353. The Court also refers to the judgements of the International Criminal Tribunal for the Former Yugoslavia and the Rwanda Tribunal enumerated in this paragraph.

338 The prosecutor v. Z. Tolimir, Case No. IT-05-88/2-T, "Judgement", 12 December 2012, paragraph 745.

339 Witness statement during court hearing of 16 November 2012.

340 Official Report of witness interview [witness 12] before the Examining Judge, p.235.

341 Also see: The Prosecutor v. C. Kayishema, Case No. ICTR-95-1-T, "Judgement", 21 May 1999, paragraphs 522-526.

342 Also see The Prosecutor v. I. Bagilishema, Case No. ICTR-95-1A-T, paragraph 64; and The Prosecutor v. L. Semanza, Case No. ICTR-97-20-T, "Judgement", 15 May 2003, paragraph 316.

343 HR 29 May 2001, NJ 2001, 694.

344 The Prosecutor v. C. Kalimanzira, Case No. ICTR-5-88-A, "Judgement", 20 October 2012, paragraph 164.

345 The Prosecutor v. A. Ngirabatware, Case No. ICTR-99-54-T, "Judgement", 20 December 2012.

346 Official Report of witness interview [witness 12] before the Examining Judge [witness 6], p.547.

347 Mr. J. de Hullu, Material Law, 2012.

348 Transcription Radio Rwanda dated 22 February 1994, File 27, p. 230-232.

349 Letter Evariste Gasagamera dated 7 March 1994, file 7, p. 2817 and 2819.

350 Linda Melvern, Conspiracy to murder, the Rwandan Genocide, file 3 p. 926; Romeo Dallaire, Shake hands with the devil, map 2, p. 622-626; François-Xavier Nsanzuwera, La criminalité des Interahamwe entre 1992 et avril 1994, p. 12-13, Unamir, file 7, p. 2490 and 2496; letter Evariste Gasamagera dated 16 March 1994, file 7, p. 2839.

351 Letter Evariste Gasagamera dated 7 March 1994, file 7, p. 2817 and 2819.

352 Official Report of witness interview [witness 1] before the Examining Judge, p. 3119, 3122.

353 Official Report of witness interview [witness 1] before the Examining Judge, p. 3119.

354 Official Report of witness interview [witness 1] before the Examining Judge, p. 3123-3124.

355 Official Report of witness interview [witness 2] before the Examining Judge, p. 2087.

356 Official Report of witness interview [witness 2] before the Examining Judge, p. 2090, 2094 and 2095.

357 Official Report of witness interview [witness F] before the Examining Judge, p. 2638.

358 Official Report of witness interview [witness 20] before the Examining Judge, p. 1863.

359 Official Report of witness interview [witness WWX] before the Examining Judge, p. 1660.

360 Official Report of witness interview [EER] before the Examining Judge, p. 1281.

361 Official Report of witness interview [witness 5] before the Examining Judge, p. 465. p. 470.

362 Official Report of witness interview [witness 5] before the Examining Judge, p. 478.

363 OR findings death certificate, File 7 p. 2850-2851 and witness statement G118 M.F. Gillieaux, with enclosures, Supplement end file.

364 Official Report of witness interview [witness 5] before the Examining Judge, p. 471.

365 Official Report of witness interview [L] before the Examining Judge, p. 2706.

366 Official Report of witness interview [L] before the Examining Judge, p. 2710 , 2716, 2719 and 2722.

367 Official Report of witness interview [witness 1] before the Examining Judge, p. 3123-3125.

368 Official Report of witness interview [witness 1] before the Examining Judge, p. 3120-3121.

369 Official Report of witness interview [witness 2] before the Examining Judge, p. 2087.

370 Official Report of witness interview [witness 2] before the Examining Judge, p. 2087 and 2092.

371 Official Report of witness interview [witness 6] before the Examining Judge, p. 560 and witness statement [witness 6] before the NCIS dated 08-07-10 [G106], p. 33.

372 Official Report of witness interview [witness 5] before the Examining Judge, p. 470.

373 Official Report of witness interview [witness 6] before the Examining Judge, p. 565.

374 [witness 6] was an agricultural expert.

375 Official Report of witness interview [witness 6] before the Examining Judge, p. 560.

376 Official Report of witness interview [witness 6] before the Examining Judge, p. 568.

377 Official Report of witness interview [witness 7] before the Examining Judge, p. 1244-1245.

378 Official Report of witness interview [witness 7] before the NCIS dated 4 July 2011, p. 10.

379 Official Report of witness interview [witness 7] before the Examining Judge, p. 1254-1255.

380 Official Report of witness interview [witness 8] [G 71] before the NCIS on 23 November 2009, p. 36.

381 Official Report of witness interview [witness 4] before the Examining Judge, p. 414.

382 Official Report of witness interview [GG] before the NCIS on 18 June 2009, p. 24.

383 Official Report of witness interview [witness 8] [G 71] before the NCIS on 23 November 2009, p. 36.

384 Official Report of witness interview [FFB] before the Examining Judge, p. 1686-1687.

385 Official Report of witness interview [witness 8] before the Examining Judge, p. 2937.

386 Before the Examining Judge [witness 6] stated that on this particular afternoon, she had seen a large group of people, mostly abakarani, coming from the house of [witness 5]. She had recognised [RR], [UU], [YY] and [witness 13].

Before the Examining Judge, [witness 13] stated that [victim C] was killed by members of his "équipe", including [UU], [RR], [WWY], [WWZ], [YY] and [WW]. As considered in Chapter 10, the Court deems this witness statement unusable for the evidence.

387 Closing speech p. 301.

388 Closing speech p. 332.

389 Official Report of witness interview [witness 6] before the Examining Judge, p. 567, 570 and testimony rendered by the witness during the court hearing.

390 Testimony of the witness [witness 6] in court.

391 Official Report of witness interview [witness 7] before the Examining Judge, p. 1244 and 1248.

392 Official Report of witness interview [witness 20] before the Examining Judge, p.1863, 1867.

393 File 7 p. 2868-2870.

394 Bagosora case et al., ICTR-98-41-T, 18 December 2008, l.g. 974-976.

395 EJ interrogation of the defendant, remand in custody.

396 EJ 1714.

397 EJ 1698-1701.

398 EJ 1682.

399 EJ 2401-2402, 2409, 2410.

400 In his witness statement before the NCIS he stated that this had taken place on 8 April 1994.

401 EJ [witness 1], 1353.

402 EJ [witness 23], 5.

403 EJ [witness 5] 925 and 928.

404 EJ [witness 1], 3159, 3160 and 3164.

405 EJ 1160.

406 EJ 1161.

407 EJ 1165.

408 EJ 925.

409 Before the NCIS [witness 5] stated that in addition to the voices of [witness 14] and [GG], he had also recognised the voice of [CC].

410 EJ 423.

411 EJ 426.

412 EJ 148.

413 EJ 3159.

414 EJ 3163.

415 OR G52/49.

416 OR G52/13.

417 EJ 868, 869.

418 EJ 424.

419 CAG 4.10. before the Supreme Court, 11 December 2012, LJN: BY4834.

420 EJ 426.

421 EJ 3167.

422 EJ 2244.

423 EJ 1983.

424 EJ 1977.

425 EJ 1980.

426 EJ 1288.

427 EJ1289-1290.

428 EJ 1286 and 1288.

429 EJ 1942-1943.

430 EJ 3168.

431 EJ 1287 and appendix I of the interview.

432 EJ 1987.

433 EJ 1988.

434 EJ 1988.

435 HR 22 June 1976, NJ 1976, 563.

436 The Geneva Conventions for the improvement of the fate of sick and wounded of armies in the field of 12 August 1949, BoT. (Bulletin of Treaties) 1951,72; The Geneva Conventions for the improvement of the fate of sick and wounded and castaways of armies at sea of 12 August 1949, BoT. 1951, 73; Geneva Conventions concerning the treatment of prisoners or war of 12 August 1949, BoT. 1951, 74; Geneva Conventions concerning the protection of civilians in wartime of 12 August 1949, BoT. 1951, 75.

437 Additional Protocol to the Geneva Conventions of 12 August 1949 concerning the protection of victims of international armed conflicts (API), BoT. 1978, 41; Additional Protocol to the Geneva Conventions of 12 August 1949, concerning the protection of victims of non-international armed conflicts (APII), BoT. 1978, 42.

438 Parliamentary Documents II, 2001-2002, 28 337, no. 3, p. 10.

439 Karemera et al., Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice, ICTR-98-44-AR73(C), AC, l.g. 26-32.

440 Akayesu, ICTR-96-4-T, 2 September 1998, l.g. 627.

441 In that particular case, the defendant was convicted to a term of imprisonment of twenty years for torture; these concerned the same proven factual actions which had primarily been charged as crimes of war.

442 This concerned facts for which the Court had convicted the defendant for torture as well as a complex of facts for which the Court had acquitted the defendant for lack of evidence of his involvement.

443 L. van den Herik, "A Quest for Jurisdiction and Appropriate Crime Definition; The Case against M. before Ducth Courts", Journal of International Criminal Justice, 7-5 (2009), pp. 1117-1132 (this article was published prior to the judgement of the Court of Appeal); H.G. van der Wilt, "War Crimes and the Requirement of a Nexus with an Armed Conflict", Journal of International Criminal Justice, 5 (2012), pp. 1-16; E. van Sliedrecht, "Fair Labelling", Ars Aequi, December 2011, pp. 884-889.

444 The Public Prosecution Service has borrowed this formulation from the Legal Opinion of Prof. Cassese, as adopted by the Court of Appeal in the M. case.

445 The Court has considered similarly in the M. judgement, Chapter 15 paragraph 52.

446 TK 2002-2003, 28337, MvT, p. 6; EK 2002-2003, 28337, nr. 108a, p. 1; EK 2002-2003, 28337, nr. 108b, p. 1.

447 Tadic case, Decision of the Defence motion for interlocutory appeal on jurisdiction, 2 October 1995, l.g. 70.

448 Trial Chamber in the Tadic case, IT-94-1, 7 May 1997.

449 See Appeals Chamber in the Akayesu case, ICTR-96-4-A, 1 June 2001, l.g. 443-444. Akayesu was acquitted from the charges of war crimes, because the Trail Chamber had not established the nexus requirement in the armed conflict either.

450 Kunarac case et al., ICTY, IT-96-23& IT-96-23&23/1-A, 12 June 2002.

451 Rutaganda case, ICTR-96-3-A, 26 May 2003. Also see note 1066 in which the Appeals Chamber explains how the nexus requirement is interpreted in the judgements in the ICTR and the ICTY until that moment. 'Trial Chambers of this Tribunal have four times considered charges under Article 4 of the Statute in their judgements. The definitions of the nexus requirement used in the four cases were similar but not identical to each other. In the Akayesu case, the Trial Judgement stated that the nexus requirement means that the acts of the accused have to be committed "in conjunction with the armed conflict." (Akayesu Trial Judgement, paragraph 643) In Kayishema-Ruzindana, the Trial Chamber used four different formulations to characterize the nexus requirement, apparently considering them synonymous. It sometimes stated that there must be "a direct link" or "a direct connection" between the offences and the armed conflict. (Kayishema-Ruzindana Trial Judgement, paragraphs 185, 602, 603, 623 ["direct link"]; 188, 623 ["direct connection"]. It also stated that the offences have to be committed "in direct conjunction with" the armed conflict. (Idem, paragraph 623). Finally, it stated that the offences had to be committed "as a result of" the armed conflict". (Idem). In the Musema case, the Trial Chamber took the view that the offences must be "closely related" to the armed conflict. (Musema Trial Judgement, paragraph 260). In the Ntakirutimana Case (currently on appeal), the Trial Chamber acquitted one of the accused of the count under Article 4(a) of the Statue based, inter alia, on the Prosecution's failure to establish a nexus between the offence and the armed conflict, but it offered no definition of the nexus requirement. (Elizaphan and Gérard Ntakirutimana Trial Judgement, paragraph 861).

452 Chapter 15, paragraph 45.

453 Chapter 15, paragraphs 45, 47 and 53.

454 Page 22 of this Opinion.

455 Supplementary reply p. 18.

1 Sr = Wetboek van Strafrecht – Code of Criminal Procedure

2 WIM = Wet Internationale Misdrijven – International Crimes Act

3 WOS = Wet Oorlogsstrafrecht – Criminal Law in Wartime Act

4 HR = Hoge Raad = Supreme Court