Final Trial Argument For The Defence of General Ndindiliyimana Before the ICTR

August 5, 2015

This document is the final argument made by the defence in the trial of General Augustin Ndindiliyimana in 2009 in the Military II trial before the International Criminal Tribunal For Rwanda. I decided to present it to the public since so many misconceptions exist about these trials, the prisoners who found themselves the victims of them, the nature of the tribunals, the political and fabricated nature of the charges made against those prisoners and the real history of the war in Rwanda. I hope it can be useful to those interested and has some literary merit.

Introduction. 3

(1) General Ndindiliyimana was not involved in the creation or distribution of the “Definition of the Enemy” document and that document had a legitimate military purpose. 12

(2) General Ndindiliyimana did not participate in any incitement to hatred and he acted within legal constraints to try to silence ethnically inflammatory speech and punish ethnically motivated crimes. 13

(3) General Ndindiliyimana did not participate in any way in the training of or distribution or weapons to Interahamwe militiamen. 16

(4) There is no evidence to support the allegation that senior military officers created lists of Tutsi to be eliminated. 16

(5) General Ndindiliyimana supported the power sharing agreement. 17

(6) General Ndindiliyimana did the best he could with the resources available to him to restore peace after the massacres began. 17

(1) Kansi Church and Massacres Committed in Nyaruhengeri 109

(2) The Secteur Office Explosion. 121

(3) Saint-Andre College in Kigali 125

(4) CELA and the Road Leading to the CND.. 136

III. Crimes Against Humanity: Murder 142

B…………………………………………………………………………………………………………………….. The Law.. 181

Material Allegations Outside of the Amended Indictment 184

(1) Nyanza Stadium.. 184

(2) Prosecution Witness ANH.. 191

(3) Prosecution Witness ANF. 195

(4) Prosecution Witness AMW… 198

(5) Prosecution Witness ANG.. 204

(6) Prosecution Witness ANJ/KTB.. 208

(7) Prosecution Witness ANC.. 211

(8) Prosecution Witness UB.. 216

(9) Prosecution Witness DBE. 217

(10) Prosecution Witness GFV.. 217

(11) Prosecution Witness GLJ. 219

(12) Prosecution Witness LMC.. 219

(13) Prosecution Witness DBB.. 220

(14) Prosecution Witness DEA.. 221

(15) Prosecution Witness ON.. 224

(16) Prosecution Witness KF. 226

VII. Sentencing. 237

VIII. Issues Relating to Intent 241

Conclusion. 249

Introduction

The indictment and arrest of General Augustin Ndindiliyimana in 2000 is, to paraphrase Clausewitz, politics by other means. The trial of General Ndindiliyimana has shown that the responsibility for the disastrous events that unfolded in Rwanda in 1994, the culmination of four years of war, rests with the person who told General Dallaire on 2 April 1994 that a disaster, something cataclysmic is coming to Rwanda and, that once it started, no one would be able to control it.[1] That man is named Paul Kagame. Yet, the Prosecutor, who received a heavy and grave responsibility from the Security Council to investigate all crimes committed by all parties in Rwanda in 1994, has surrendered his responsibility and accepted, in its place, to be the pawn of the Rwanda Patriotic Front and its allies in the west, who have attempted to manipulate this Tribunal by presenting scapegoats for trial and demonization and to use these trials as a type of propaganda in the continuing war against the democratic forces inside and outside of Rwanda that fight for truth and justice for all Rwandans.

However, neither the Prosecutor nor those who apply pressure and influence on him counted on the refusal by General Ndindiliyimana to accept the false allegations made against him, nor the tenacity, courage and determination with which he presented his defence.

In the opening statement made by counsel for General Ndindiliyimana a history of his arrest and treatment was presented to the Trial Chamber. We will not burden you with repeating everything that was said there. We invite you to revisit that opening statement.[2] However, it is a certainty, in our respectful submission, when one considers the circumstances of his arrest, the history of the troubled indictments, and the several offers made to him by the Prosecutor to release him and drop the charges against him if he would only testify against Colonel Bagosora, coupled with the threat of a severe sentence if he refused to cooperate, that his indictment and arrest were motivated by political reasons and that not even the Prosecutor takes the charges seriously.

Nevertheless, the allegations made against him in the indictment have serious consequences for General Ndindiliyimana and must be carefully considered and objectively analyzed. We submit that once you have carefully considered the facts, the testimony of all the witnesses and the law that applies to those facts, you will be drawn to only one conclusion and that is, on the basis of the totality of the evidence, to find General Ndindiliyimana not guilty on all counts.

I. Conspiracy to Commit Genocide

A. Introduction

The first count in the indictment against General Ndindiliyimana is the count of Conspiracy to Commit Genocide. The count itself is problematic from the outset as it is not stated precisely with whom he is alleged to have conspired. Conspiracy is an agreement between two or more individuals to commit genocide. The mens rea is twofold; the accused must intend the underlying offense and must intend to agree. Conspiracy to commit genocide requires proof beyond a reasonable doubt of special intent. A conviction can only occur if the Prosecution proves beyond reasonable doubt that the accused, in common with his or her co-conspirators, possessed the requisite specific intent of the crime of genocide. That intent may be proven by what the perpetrator said, or, as with any crime, by drawing inferences from conduct which may show intent. The offence is complete upon the agreement itself; the criminal object of the agreement need not be achieved. The existence of the agreement may be demonstrated by circumstantial evidence, as, for example, coordinated action in pursuit of the unlawful act.[3]

For conspiracy to commit genocide, the prosecution must plead in the indictment (1) an agreement between individuals to commit genocide and (2) that those agreeing have the specific intent required for genocide.[4] Mere mention of the alleged co-conspirators is not sufficient to enter a conviction. Evidence must be given that the accused made an agreement with others for the commission of the crime. Conspiracy cannot be committed by omission.[5]

The underlying agreement need not be express. The Appeals Chamber in Nahimana et al held that “concerted or coordinated action of a group of individuals can constitute evidence of an agreement. The concerted action, not similar conduct, must be proven beyond a reasonable doubt. However, the existence of a conspiracy would, however, have to be the only reasonable inference to be drawn from the evidence.[6]

Paragraph 22 of the indictment sets out the persons alleged to have been involved in a conspiracy. They include President Habyarimana and General Deogratias Nsabimana who were murdered on the evening of April 6, 1994 when the plane in which they were travelling was shot down by the RPF.[7] The absurdity of the Prosecutor’s theory is exposed by the fact that they allege that those two men conspired to commit genocide when the Prosecutor also has the theory that the shoot down of the plane was a planned catalyst of genocide against the Tutsi ethnic group. No sane person could reasonably imagine that the President of Rwanda and the army chief of staff could agree to their own deaths in order to exterminate Tutsi.

It is not set out in the indictment exactly with whom General Ndindiliyimana was supposed to have made an agreement with. The crime of conspiracy requires proof of an agreement to commit a crime between the alleged conspirators. That agreement can be written or oral but an agreement must exist and it must be proved that the parties to the agreement agreed to every element of the agreement. But in this case the Prosecutor has not even tried to establish that there was such an agreement by the named parties in paragraph 22, or that General Ndindiliyimana was a party to such an agreement.

The Prosecutor failed to call any evidence, offer any proof, linking General Ndindiliyimana to any of the named parties in an agreement to kill Tutsi. Instead, evidently recognizing that he has no direct proof of the existence of such an agreement, the Prosecutor attempts to use alleged facts and circumstances as evidence of an agreement. The law is that circumstantial evidence can support a finding of guilt if, and only if, that is the only reasonable interpretation possible. Where circumstantial evidence is also consistent with the innocence of the accused the Trial Chamber must give the accused the benefit and find the accused not guilty.

B. The Prosecutor failed to provide evidence of the development of a plan to exterminate Tutsi by MRND and military leaders in 1990 as alleged in para. 23 of the Amended Indictment.

The first allegation concerning an alleged conspiracy is a general one contained in paragraph 23 and alleges that in late 1990 an unnamed group of MRND members and unnamed members of the armed forces “conceived the idea that the neutralization, indeed, even the extermination of the Tutsi population of Rwanda would be the best approach in order to defeat the invaders, and by the same stroke prevent the sharing of power, which seemed increasingly inevitable, given the configuration of forces at the time.”[8]

The complete lack of specificity in this allegation is fatal to the charge. No accused can understand what he is charged with when he is grouped with unknown persons. No evidence was presented of any such idea originating or any such agreement being made in late 1990. To the contrary, several witnesses, General Ndindiliyimana, Christiaan DeBeule, Alain DeBrouwer, Dr. Bernard Lugan, Dr. Strizek, Ambassador Johan Swinnen, Colonel Luc Marchal, for the defence and Dr. Alison Des Forges,[9]for the prosecution, provided a detailed history of the politics of Rwanda in the 1990-1994. During this period, Rwanda went from a single party state to a multi-party democracy. By 1992 a coalition government was formed in which several pro-RPF parties had representation in the government of Rwanda and held certain key ministries including the position of Prime Minister. These witnesses all agreed, both prosecution and defence, that the government of Rwanda in that period was a coalition government in which the former MRND party had relinquished key ministries and powers to parties of the opposition. For example, Alain DeBrouwer testified that, “In June 1992, the new coalition government which brought the opposition to occupy the key posts of Prime Minister and so on and so forth, the opposition had more posts than the MRND, so the MRND had become a minority.”[10] All these parties, including the MRND, agreed to and signed the Arusha Accords that provided for the formation of a broad-based transitional government culminating in general elections. On 5 January 1994, the swearing-in ceremony of the broad based government was due to be held. President Habyarimana was sworn in as president of the republic, but under the new constitution, he was reduced to a figurehead.[11] The swearing-in of the new members of parliament from the agreed lists for each party did not take place. But it is now clear from the evidence that was the fault of the Prime Minister, Agathe Uwilingiymana, who, by a letter addressed to all parties, cancelled the afternoon swearing-in ceremonies. She offered no alternative date or any reasons provided as to why the ceremony for the deputies was cancelled.[12] It is clear that it was the RPF that boycotted the installation of the transition government as Ambassador Swinnen testified in his comments on the letter of the Tanzanian facilitator, Joseph Rwegasira, when he stated, regarding the obstructionist tactics of the RPF, “when those parties reached a compromise, it was very discouraging to see another party question the achievements which hampered the progress to the overall compromise. This was the frustration expressed by the Tanzanian minister of foreign affairs…”[13]He agreed with the position set out in Mr. Booh-Booh’s letter of March 25, 1994 to Kofi Anan in which Booh-Booh stated that:

The ambassadors left the clear impression that they considered the RPF’s attitude as obstructionist and also deplored the absence, in Kigali, of most of the members of the RPF’s leadership; the situation which, in their view, often delayed the talking of-the taking of decisions on important matters.[14]

It is also clear, on the evidence, that if general elections had been held the RPF would have been in a weaker position than the MRND, and, therefore, it was not the MRND that had to fear elections but rather the RPF. But for that letter of cancellation from Agathe Uwilingiyimana the entire broad-based transitional government would have been sworn in and the date for elections fixed. No member of the MRND or any member of the Rwandan armed forces had anything to do with that letter or cancellation. The fault lies with the Prime Minister whose ties to the RPF are clear on the evidence. Further, the Prosecutor offered no proof that General Ndindiliyimana was a member of the MRND and in his testimony he denied it as members of the armed forces were forbidden to be members of any political party. On the contrary, General Ndindiliyimana stated that insofar as he had any political sympathies, they lay with the Social Democratic Party known as the PSD.[15] Further, defence witness Pascal Ndegejeho, a former minister of the opposition, testified that the accused was chosen to be chief of staff of the Gendarmerie because he had no links with the MRND.[16]

The Prosecutor is mistaken when he states there was a plan to prevent the sharing of power by exterminating the Tutsi. By 1992 and through to 1994, power was already shared and once the broad-based transitional government was in place and elections held it was expected that the pro-RPF parties would be defeated at the polls by the majority Hutu population which, in the main, were still loyal to the MRND or other parties not aligned with the RPF. Colonel Vincent testified, in response to a question as to whether the RPF supported the Arusha Accords, that, “[n]o, as far as I know… [t]he RPF was fully aware that what had been extended to it within the context of the agreement would be lost.”[17] He also testified, in response to a question from Judge DaSilva that “[i]t is clear that Hutus would vote for Hutus, and, therefore, the RPF would have lost whatever gains it had made at the political level.”[18] And,

However, as time passed, and with the thinking process-and, given the argument which I mentioned this morning, which, in my opinion, made me reach a clear conclusion, the-because there were communal, legislative and presidential elections 22 months later, therefore it became totally clear that what the RPF had acquired with the Arusha negotiations would be taken away from it. So, there were real elections, democratic elections.[19]

Pointedly, he stated “[t]o my knowledge, the Rwandan Army was not opposed to the implementation of the Arusha Accords.”[20] Further, even among the parties allied to the RPF, splits had occurred after ceasefire violations by the RPF, in particular the major attack against Ruhengeri in February 1993 that weakened the position of the RPF in the opposition parties. In the result, the MRND had every reason to support the continuation of the peace process and the implementation of the Arusha Accords. Alain DeBrouwer testified, regarding the attitude of Mathieu Ngurimpatse to the Arusha Accords, that, “[a]s chairman of the MRND he was completely in agreement with the Arusha Accords.”[21] And, Colonel Marchal stated, “There was a willingness on the part of the president to really accomplish the peace process at least the first phase of the peace process by establishing the transitional institution.”[22] The RPF had every reason to try to block those accords and, as they ultimately did, to reduce them to ashes in aftermath of the assassination of the president on April 6, 1994.[23]

General Ndindiliyimana testified that,

In my conviction, I saw that we had reached an agreement. However imperfect the accords were, those accords could, in any event, have led us to a situation, which, in my opinion, was not going to end in catastrophe. So the Arusha Accords and their implementation were the only opportunity for us to avoid a situation as that which actually occurred in our country.[24]

And,

Our position was that the Arusha Accords had to be implemented at all cost. …I therefore requested to meet the president of the Republic…..So, on that occasion, we told him, ‘Mr. President, we believe that we are headed for a collapse. We are those in charge of security, and from our observations there are problems looming that we may not be able to control. We do not believe that if the war were to resume we would be able to win’….So, we told him, ‘Mr. President, you need to implement the Arusha Peace Accords.’ He was silent for a few seconds. Then he looked at me and said, ‘Ndindiliyimana, give me the solution here and now and I will implement it promptly. Give me the solution as to how these accords can be implemented.’ I had no solution.[25]

General Ndindiliyimana’s testimony is corroborated by Colonel Vincent who stated, “I am persuaded that general-the general was in favour of implementing the Arusha Accords.”[26] And, “[t]he gendarmerie cooperated fully with UNAMIR in the implementation of the accord, fully, indeed. Whatever assistance UNAMIR sought from the army was granted-from the gendarmerie, rather, was granted.”[27] Further, he stated that “[a]t no time did we have any perception of General Ndindiliyimana being in any way implicated or involved in any of the massacres.”[28] Defence witness Claudien Ndagijimana, who was a lieutenant in the Gendarmerie confirmed this stating that his unit received orders to prepare the troops in the spirit of the Accords and that order came from the chief of staff.[29]

C. General Ndindiliyimana did not prevent the success of the swearing ceremony of 5 January 1994 as implied by para. 35 of the Amended Indictment.

Paragraph 35 of the indictment sets out more precisely the general allegation contained in paragraph 22 by alleging that the swearing-in ceremony of 5 January was disrupted by a demonstration by the Interahamwe and Presidential Guard and in particular Major Mpiranya of the Presidential Guard. However, the prosecution failed to offer any proof of this. Colonel Claeys, for the Prosecutor, stated that the only problem at the ceremony was the attempt by unaccredited persons to force their way into the ceremony which persons were stopped by his security people as they had instructions to let in only those with proper cards. He states he was positioned outside the CND and does not mention any demonstration occurring or anything causing a disruption of the ceremony. He said only that he was informed that after the president was sworn in it was not necessary to return to the CND for the rest of the swearing-in to take place. He did not know the reason why the rest of the ceremony did not take place. He was not aware that the Prime Minister, Agathe Uwilingiyimana, had cancelled it.[30] He also agreed that on 8 January 1994, the Prime Minister, together with the Prime Minister designate, the RPF and its allied parties, tried to organize the swearing in of the deputies of those parties in the absence of the President. Claeys further agreed that one could interpret that as an attempted coup d’etat. [31] General Dallaire, in his testimony of 20 November 2006, stated that there was some attempt by the civilian population to disrupt the proceedings, amongst who were some Presidential Guard members. But he also said that the problem seemed to be a problem with allowing unaccredited people into the CND building. However, General Dallaire was not present at the CND building on that day and repeated second-hand information. Colonel Claeys who was present at the CND and stationed outside the entrance makes no mention of any attempt by the population to disrupt the ceremony. Neither of them mentions involvement by theInterahamwe. Colonel Luc Marchal, for the defence, testified that the first violent demonstration was on the 8^th of January, not the 5^th and that on the 8^th he received the cooperation of General Ndindiliyimana to control that demonstration.[32] The Prosecutor failed to offer any proof that Major Mpiranya was involved in the 5 January ceremony as alleged in paragraph 35. In any event, the Prosecutor failed to establish that as an element of the conspiracy that he claims existed, nor did he, at any time, link General Ndindiliyimana with that element. In fact, Colonel Luc Marchal described the cooperation he obtained from General Ndindiliyimana in controlling the demonstration on 8 January, and how they consulted together regularly until the demonstration ended. He also described how General Ndindiliyimana used negotiation to control and dissipate that demonstration.

D. There was no strategy for perpetrating the events of April 1994 as the prosecution alleges in para. 25 of the Amended Indictment.

Paragraph 25 of the indictment sets out a series of factors that are alleged to be evidence of a “strategy for perpetrating genocide.” These include the definition of the enemy, incitement to hatred, training of and distribution of weapons to theInterahamwe by the Rwandan Armed Forces, the establishment of lists of persons to be eliminated, obstructions to the Arusha Accord peace process, and the failure to restore order.

(1) General Ndindiliyimana was not involved in the creation or distribution of the “Definition of the Enemy” document and that document had a legitimate military purpose.

The first allegation in this list, that of defining the enemy, was a normal undertaking by any sovereign state engaged in a war. The definition of the enemy document produced by the Prosecutor is very clear in defining the enemy and it is not the Tutsi population as claimed by the Prosecutor. No amount of distortion can get around the clear language of that document. The document, read in its entirety, clearly focuses on the RPF and its internal allies as the enemy of Rwanda. In any case no link has been made between that document and General Ndindiliyimana. The Prosecutor offered no proof that he helped to draft that document, or had any influence on its contents or was in any other way linked to that document or the process of defining the enemy. Nor did the Prosecutor offer any proof whatsoever that this document or any part of it were read to the personnel of the gendarmerie or that it was circulated amongst the gendarmerie. Nor did the Prosecutor provide any evidence that any reading of it against its plain sense was intended; that is, the “Definition of the Enemy” document clearly provides a restricted meaning to those defined as the enemy. The only evidence they produced to establish it had a different meaning from its plain sense was Dr. Des Forges who boldly claimed that the document meant the opposite of what it says and who just as boldly refused to provide any basis for her opinion.[33]

(2) General Ndindiliyimana did not participate in any incitement to hatred and he acted within legal constraints to try to silence ethnically inflammatory speech and punish ethnically motivated crimes

The second in the list is “incitement to hatred.” Firstly, the charge is fatally flawed as it is not stated hatred of whom by whom. It just hangs in the air. Is it incitement to hatred between personalities, between the sexes, between whom exactly? It must be assumed we are talking about incitement to hatred of Tutsi, as that was the position at trial of the Prosecutor. But that does not absolve the complete lack of precision in the indictment. One is left guessing. The Prosecutor also shows his bias in this charge as he completely ignores the broadcasts of Radio Muhabura, the RPF propaganda radio station. Ambassador Swinnen stated that,

I had several opportunities of expressing our concerns vis-à-vis the RPF, because on the site of the RPF radio as well, which we could not listen to-even though we knew of the existence of a radio station that was used to broadcast, and which also used language that did not contribute to the pacification of people’s-of people.[34]

He also ignored other actions of the RPF, such as: the political assassinations of politicians such as Felicien Gatabazi, Martin Bucyana; the murder of several local elected officials in the north in November 1993; and the placing of landmines and booby traps by the RPF that killed Tutsi and Hutu alike, raising ethnic tensions to a high degree. CBP82 testified that “when we tried to identify the authors of those who held the mines, this pointed to the direction of the RPF.”[35] Further,

From the analysis of the motives of the –those who laid the bombs, I noticed personally, that in March 1992 in Bugesera, that the authors of the attacks against the Tutsi minority claimed that they were the ones making the attacks and they were justifying their need to defend themselves. So the purpose of the attacks was to sow interethnic conflict.[36]

Thus, we see, again, that the Prosecutor knows who created the ethnic tensions in Rwanda: the RPF and its campaign of terror, disinformation, ethnic cleansing of northern Rwanda, targeted assassinations, and the undermining of the peoples’ respect for government and its institutions. But, again, the Prosecutor has chosen to target a man who worked constantly and under difficult conditions for ethnic tolerance.

If we assume it is incitement to hatred of Tutsi and Hutu “moderates,” then the Prosecutor has not succeeded in presenting any substantial evidence of this in the trial. Prosecution counsel attempted to present speeches of certain personalities such as Mr. Mugenzi, Mr. Sindikubwabwo and broadcasts on RTLM, but none of them has withstood even a cursory examination. Each time they presented a speech and claimed it was incitement, analysis of it revealed that it was a speech condemning violence and calling for calm. We refer in particular to the speeches of President Sindikubwabwo on 18 and 19 April that the Prosecutor claimed incited people but that in truth did the exact opposite. We could set out passages of the speech in this argument to demonstrate that but the exhibit is there for all to read and we do not have the space to examine those speeches in this argument. These speeches respond to the circumstances of the times. Indeed, President Sindikubwabo called upon certain authorities, which were sitting by with their arms crossed, either from fear or calculated assistance to the RPF, to do something to calm the population and protect civilians. The case of Major Cyriaque Habyarabatuma is illustrative. Instead of doing his job he spent his time trying to find a way to join the RPF. But again, the Prosecutor has not offered any credible proof that General Ndindiliyimana incited hatred, or that his officers or men did so to his knowledge, or that he in anyway tolerated any form of incitement to hatred between the main ethnic groups in Rwanda. Indeed, prosecution witnesses such as the Tutsi gendarme codenamed KF, described General Ndindiliyimana as one who earned respect and was kind to all.[37]

The preponderance of the evidence, even of the prosecution witnesses, was that General Ndindiliyimana consistently tried to restore calm and tolerance between the ethnic groups and, rather than inciting hatred between groups, sought always to bring them together. Rather than tolerate hate broadcasts, General Ndindiliyimana tried to stop them. Dr. Des Forges, for the prosecution, was asked the following question:

Q. In April, General Ndindiliyimana and Colonel Gatsinzi and Rusatira summoned Gahigi of RTLM, and Jean Francois Nsengiyumva of Radio Rwanda to the military school in Kigali. The officers supposedly told them that the radios must stop calling for violence against Tutsi and discrediting military officers opposed to genocide …another RTLM announcer incited militia to attack Ndindiliyimana reporting that he was transporting RPF soldiers in his vehicle, for which the license number was given, when he was trying to help Tutsi escape.” You wrote those words, did you not?

I did.[38]

Rather than link General Ndindiliyimana to any form of incitement to hatred, the Prosecutor instead offered proof, through his own witness, that not only was General Ndindiliyimana opposed to and acted against incitement to hatred, but that he was himself subject to it. General Ndindiliyimana had no legal authority or jurisdiction to shut down RTLM or arrest its staff without a warrant from the Prosecutor.[39] We will deal with this issue in our submissions on the allegation contained in paragraph 37 of the indictment. But it is clear that having no legal powers to act to control the radio stations; he did try with Colonels Gatsinzi and Rusatira to do so using personal persuasion.

(3) General Ndindiliyimana did not participate in any way in the training of or distribution or weapons to Interahamwe militiamen.

The third charge contained in paragraph 25 is the accusation that there was training of Interahamwe militia by senior military officers and distribution of weapons to them. The Prosecutor failed to offer any proof that General Ndindiliyimana or gendarmes were in any manner involved with training of Interahamwe. Allegations in that regard were made only against the army. We will not comment further, except to say that the weight of the evidence is against such training occurring at any military facility. General Ndindiliyimana testified that “I wasn’t informed of such a happening and I did not observe it, either.”[40] There is a separate allegation of gendarmes providing weapons to civilians or Interahamwe in another section of the indictment and we will address that issue there.

(4) There is no evidence to support the allegation that senior military officers created lists of Tutsi to be eliminated.

The next charge is that senior military officers established lists of people to be eliminated. The Prosecutor offered no proof of such a claim. No lists were ever produced in evidence. The only mention of lists was by Dr. Des Forges. She claimed that lists were compiled by various officials at different levels of government in order to determine who were accomplices of the RPF.[41] However, this would be a legitimate exercise in any country at war and wishing to protect itself. But Dr. Des Forges goes further and stated that she heard of lists being used when people were killed.[42] Unfortunately for the prosecution, neither she nor the Prosecutor nor any other witness could produce even one such list to corroborate these second-hand stories. The evidence is that, instead of lists made to kill Tutsi, the RPF had lists of its young combatants who went to RPF zones to receive training and who then came back into society to take part in the terror campaign of the RPF. Witness FAV bragged about this and talked about Kalinijabo publicly talking about his connection with the RPF.[43] That could only have raised ethnic tensions among the population.

(5) General Ndindiliyimana supported the power sharing agreement.

The next charge is one made before in paragraph 23 that is, that these conspirators, whoever they may be, put up obstructions to power sharing. However we have dealt with this straw man in previous paragraphs of this argument.

(6) General Ndindiliyimana did the best he could with the resources available to him to restore peace after the massacres began.

The last charge in paragraph 25 is the failure to quell the upheaval and seek out perpetrators. This is set out again in more precise words in paragraph 53 and will be dealt with there.

E. The Definition of the Enemy document had a legitimate military purpose; further, General Ndindiliyimana is not linked with that document.

Paragraph 26 repeats the charge contained in paragraph 25 regarding the defining of the enemy. In addition to our remarks in this issue made above, it is submitted that the charge must fail because the wording of the charge in paragraph 26 admits the defence position, that is, that the enemy was not defined as all Tutsi. To the contrary, the enemy was defined as “Tutsi…who are extremists and nostalgic for power, who do not recognize the realities of the Social Revolution of 1959, and are seeking to regain power by any means, including taking up arms.”[44] The Prosecutor is partly correct, but he forgot to add the succeeding sub-paragraph that specifically states that those trying to change the government by democratic means are not the enemy. The rest of the document goes on to refer to the structure, strength, leadership and strategy of the RFP that itself claimed to be a multiethnic organization. In other words, the charge is fatally flawed as it does not set out a crime. It would have been a crime under international law to define all Tutsi as the enemy of Rwanda but as the words of the charge read in the indictment, only a subsection of Tutsi with a clear political aim and the willingness to use force of arms against the state is defined as the enemy. In the result, there is no charge that the enemy was defined as the Tutsi people as a group. The definition of the enemy is not based on ethnicity but on illegitimate political aims of the defined group, that is, the aims of overthrowing the government by force of arms. Legitimate aspirations by Tutsi or others to change the government by democratic means are explicitly excluded from the definition as enemies of the state. Therefore this paragraph does not come within the jurisdiction of the Tribunal as set out in the Statute and its articles.

The Chamber in Military I also had to consider the matter of the definition of the enemy document and came to the conclusion that it was a legitimate document and that it did not define the enemy on the basis of ethnicity. The judgement states:

The Definition of the Enemy clause qualifies the term “Tutsi” as the “extremist” Tutsi, who are not acknowledging the realities of the 1959 revolution and who wish to “regain power…by all possible means, including the use of weapons.” The Identification of the Enemy provision describes the enemy, in particular, by certain enumerated acts, which in themselves have a connection to war…Read in this context, the Chamber does not agree with the Prosecution that the definition implies that all Tutsi are extremists, wanting to regain power. The Chamber has also noted the exception for political opponents who seek power within the political system through peaceful means, both in the Definition clause and the Identification clause…[45]

F. There was no meeting between General Ndindiliyimana and MRND members on 7 January 1994.

Paragraph 32 of the indictment is the first paragraph to lay a concrete charge against General Ndindiliyimana himself. The Prosecutor there claims that General Ndindiliyimana took part in a specific meeting, with “other MRND members” on 7 January 1994 at MRND headquarters to oppose the disarmament program of the Arusha Accords. The Prosecutor offered no proof nor called any evidence whatsoever to substantiate this allegation. Not only was no proof offered, a look at the evidence reveals a different reality. General Ndindiliyimana did everything he could to support the disarmament program.

Colonel Vincent’s testimony that General Ndindiliyimana cooperated fully with UNAMIR has already been cited in this regard above. Colonel Marchal also testified in the same vein. He stated, regarding General Ndindiliyimana’s role in the development of the Kigali Weapons Secure Area (KWSA) agreement that, “Yes, indeed. At the level of the negotiations, he played a role which I may refer to as an important role, given the specific nature of the gendarmerie in respect of the discharge of the specific mission of the United Nations.”[46] Colonel Marchal went on to describe the nature of the joint operations conducted by UNAMIR in conjunction with the gendarmerie and stated that neither could function without the other. He further stated that the gendarmerie could not have undertaken single-handedly to conduct weapons searches.[47] He also confirmed that as of the 4^th of April, there were still operations by the gendarmerie and UNAMIR to seize arms that they were attempting to control.[48]

Contrary to the claim of the Prosecutor that General Ndindiliyimana impeded the implementation of arms control Colonel Marchal testified,

I would say that the Rwandan government forces and the gendarmerie did not give me major problems. There were problems, but quite understandable, and that can be explained in the context of the time. However, on the RPF side, it was a permanent struggle to have them comply with the requirements of the agreement, the protocol. And when I say constant struggle, I say it because-with a great deal of conviction, because at that time I kept a private journal and would often send reports on my activities to my general staff in Brussels. And it is true when I reread through that period, I see that sometimes I had serious problems with the military component of the RPF quartered at the CND-billeted at the CND.[49]

He goes on to describe flagrant violations by the RPF of the KWSA with their soldiers leaving the CND, fully armed and roaming around Kigali in complete disregard and violation of the KWSA.

In regard to the gendarmerie Colonel Marchal testified that he did not have any problems with them and he had noted at the time very clear orders from General Ndindiliyimana to all gendarme units to comply with the agreement.[50] Further, Colonel Marchal assigned observers to see if the General had kept his word, or was “playing a double game” and stated,

So I can tell you that if there was any need on the part of General Ndindiliyimana to play a double game, so to speak, we would have been able to see through it, given the circumstances, particularly in view of what we experienced. It is through these observations that I became more trusting, and I found the chief of staff of the gendarmerie to be a more credible person.[51]

Colonel Marchal also testified that General Ndindiliyimana restrained his men from using deadly force during demonstrations and sought to keep violence to a minimum and in that regard went to Belgium and France to try to obtain anti-riot gear. He asked Colonel Marchal to intervene on his behalf in that regard and Marchal did.

Colonel Marchal again testified at length as to the vital role played by the gendarmerie in Operation Clean Corridor, in which the RPF battalion was escorted from Mulindi to the CND in Kigali. He stated, “I appreciated the behaviour of the gendarmerie detachments that were posted throughout the itinerary.”[52] In that regard Colonel Marchal read into the record the letter of commendation he sent to General Ndindiliyimana dated December 31^st, 1993.[53] General Dallaire confirms this in his testimony as he stated,

That was the most-the highest risk operation that we could have taken with the limited resources, and if we hadn’t had the gendarmerie to help us, we would never have been able to pull it off…[54]

Colonel Marchal also rejected the prosecution witness Lemaire who alleged that the gendarmerie was “not reliable” and “did not do its work properly and stopped us from doing our work.”[55] Colonel Marchal testified that,

I do not share this…conclusion….I shall give you an example in concrete terms here. Whereas, the gendarmerie had adopted a very good working principle over the time where it had worked, it had a good working relationship with the men from the previous battalion, so the control points on the roads and the roadblocks, well the gendarmes were the ones to search the vehicles and the people. When I first monitored a mission of this type with the second battalion, I had come to the conclusion that the Blue Berets had put the gendarmes to one side of the road and those gendarmes were considered insignificant. Whereas, they had a capital role to play in the situation…So I believe it’s easy to pass criticism, but one has to also integrate it within the context of the occurrence.

So I am not surprised if gendarmes did have negative reactions, because, yes, their blue beret colleagues were standing in their way. However, these are direct consequences, unfortunately, of the lack of preparation that the Blue Berets were up against….I cannot be in agreement with this type of comment.[56]

Colonel Marchal also refuted the allegation by Lemaire that he had suspicions about the gendarmes and so did not tell them in advance of patrol routes. Colonel Marchal explained that reaction by Lemaire as a matter of lack of preparation and understanding of the complexity of the situation and summed it up by stating,

Once again, relying on my extended experience, which covered a period reasonably longer than that of those who expressed that opinion, I, therefore, say that I do not share that opinion because had this situation been what is described as “varying”, and, as I have said before, if there had been any desire of dishonesty or double play, in view of the circumstances and all the contact that I had with various gendarmes at all levels, I definitely would have been in a position to share that very opinion, but I do not at all.[57]

Defence witness CBP46 confirmed this and testified that,

I believe this is a false claim because the freedom of operation was that of UNAMIR which itself established what the control points were, and then they would come and ask us for personnel to accompany them. And we did not know where they were going to go and operate. We, ourselves, were up against difficulties in putting men out in the field in view of the fact that we did not have any transmission methods as I said earlier. So this seems to me to be a false claim, because they would always come in the morning to say, “Please, give us men,” and then we would be able to operate. …[58]

Colonel Marchal also refuted the statement by Lemaire that gendarmes had not conducted an investigation into unrest on the 23^rd of January 1994 by relying on information from a priest named Peters. Colonel Marchal stated that measures were taken but that even UNAMIR did not succeed in its investigations into murders in the north of the country in November and further that the priest was more than a simple priest but an activist against the government.[59]

Colonel Marchal also refuted the claim by Lemaire that Lemaire was informed by Tutsi refugees there was a secret meeting of gendarmes discussing the killing of Tutsi. He testified that he held daily briefings with his officers, including Lemaire, as well as receiving daily written reports from[60] them and no such information was ever provided to Colonel Marchal.

Colonel Marchal also explained that Colonel Claeys might not have been aware of the trip by General Ndindiliyimana to Belgium to seek anti-riot gear as he may not have been informed and that information was kept at the level of Colonel Marchal and General Dallaire.
This testimony is supported by the testimony of Claudien Ndagijimana, an officer of the gendarmerie. He testified that when UNAMIR came they were hoping for peace at the Gendarmerie because if UNAMIR had come to apply the accords, it would put an end to the war, and the Gendarmerie would be relieved.[61] CBP63 testified that,

Ndindiliyimana had given orders for the handover, because the various offices in the gendarmerie were to be taken by other people, some from the RGF, some from the RPF, according to the Arusha Accords. That was point one. And point two, because not everyone would be part of the national police-I think that’s how it was going to be termed-there were selection tests to see which gendarmes could serve in the new force. And then General Ndindiliyimana, he would have no-would hold no office in the army or the gendarmerie. And so he was telling us always that he was waiting to hear who would be-that the-Rutayisire…the deputy commander-he would say he was waiting for Colonel Rutaysire to come so that I would hand over to him the general staff and that I go back to the street.[62]

G. General Ndindiliyimana facilitated UNAMIR search operations and did not compromise their effectiveness.

Paragraph 33 of the indictment contains the allegation that General Ndindiliyimana compromised search operations by UNAMIR and the gendarmerie by providing advance notice to Mathieu Ngurimpatse who then informed the Interahamwe. The first problem the Prosecutor has with this allegation is that the only witness to make such an allegation, OO6 or AOG, is a protected witness in a western country who has received large sums of money for his cooperation as well as support for his family and the benefits of a witness protection programme. Therefore, he has every incentive to provide his handlers with stories that would make it appear the cost was worth it. He stated he was the treasurer of the Interahamwe. Yet, he has faced no charges for his role in the Interahamwe and their actions in 1994. The motive to keep him from facing very serious charges is very high and one way he can do this is to act as an informer. It is submitted that for the Tribunal to place too much reliance on such an informer is very dangerous. The second problem the Prosecutor has with this allegation is that it just does not fit the evidence from other prosecution witnesses such as Dr. Des Forges or General Dallaire or the other UNAMIR officers referred to above who all praise the cooperation of General Ndindiliyimana. It also is impossible for General Ndindiliyimana to have informed anyone in advance of UNAMIR searches when the gendarmerie was not informed themselves until the very day of the search according to Lemaire.[63]

Colonel Marchal was asked about this allegation against General Ndindiliyimana and he testified as follows:

I would say that such an assertion –well, it’s an assertion, but it’s quite impossible. It can’t be true, can’t be materially correct, because there was no searching by the gendarmerie. And if there had been, we would have known about it. Inasmuch as Kigali town was divided into sectors, they were constantly being observed by UNAMIR. Any observers who moved around, and such an operation which could require the mobilization of several actors, could not go unobserved and certainly not in neighbourhoods such as Remera and Gikondo. So no, no such operation ever took place.[64]

General Ndindiliyimana stated in his testimony that “We spared no effort to convince UNAMIR and to demonstrate our good faith in the search for a solution for proper accomplishment of the mission of UNAMIR.”[65] The Prosecutor, in his cross-examination of General Ndindiliyimana appears to have abandoned this allegation as no questions were put to the General on this matter. CBP7 testified that,

Yes, we worked closely, very closely with UNAMIR when it came to joint patrols. And of course, there were units which worked more with UNAMIR than other units, particularly the Kigali Group which occupied the most sensitive points in the capital city. And then there was the road safety company which secured a corridor when the RPF battalion had to come to Kigali towards the end of 1993. And, then, as I said, there was the VIP security company. They worked hand in hand. So, what I mean there was cooperation in patrols or in the search for weapons caches, in escorts and so on and so forth. I think that is my answer.[66]

General Dallaire confirmed, in his testimony, his statement to Belgian authorities the following:

The chief of staff was known to the force commander as an intelligent and cooperative officer who seemed genuinely loyal to the peace process. The force commander received information which possibly linked the chief of staff with a weapons cache; however, his involvement with the affair was never confirmed. After receipt of that information, the force commander treated the chief of staff with a certain element of suspicion. During the war, he saved a number of the Rwandans and was always as responsible as possible to the force commander. The chief of staff fled in late June as extremists were eliminating suspected moderates and he was being targeted.[67]

And, “in the case of the gendarmerie, I have absolutely no reports of any manoeuvring outside of the KWSA rules.”[68] Regarding the events of the night of April 6/7, he states, “I won’t negate that…he was cooperative in doing that [trying to maintain order] within the limited resources. And he could still do it with his resources.”[69]

It is also clear that General Ndindiliyimana cannot be held responsible for not being able to seize arms caches at locations known only by UNAMIR or for sabotaging search operations that UNAMIR never conducted. In this regard it is important to remember that on February 2, 1994 there was a meeting of Rwandan military and civil authorities with UNAMIR authorities to demand that UNAMIR take action and search for illegal arms and ammunition and to control the illegal actions by RPF soldiers.[70]

Ambassador Swinnen, for the defence testified about General Ndindiliyimana’s cooperation by stating:

But I knew him when he assumed his responsibilities and when he went to the national gendarmerie. I also have to say that with regard to his politics and his commitment, he showed a determination to work and cooperate with Belgium and with Belgians and I had a very favourable view of the-of Ndindiliyimana. And this, in spite of the fact there was tension between Belgium and Rwanda, because we had placed an arms embargo on Rwanda, so we did not deliver weapons which had been ordered by Rwanda. But he and I were able, in a way, to transcend this tension. Particularly, since I saw someone who really wanted to work, who really demonstrated his will to make pro-processes … work. He wanted to have a proper relationship between Belgium and Rwanda.[71]

And,

There were other events. He did not for example, there was the case-he did tell me this directly, but during the joint commission meeting, which I referred to earlier, I remember that he had called for a strengthening of the UNAMIR mandate at the beginning of the year, and that was the position which was also supported by Belgium.[72]

And,

I remember that at one point in time he told Admiral Verhurst that –that (he) was rather in favour of a stronger exercise of the mandate of the United Nations. I did not get this directly from him. I do not think he said this to me personally, but he said that to Admiral Verhurst. And I was giving that as one of the examples of what we believed to be a sincere commitment to peace as a determination to see instruments which could support that process. And Belgium, in line with the general’s wish, thought that we should work. And we were also in favour of a more-a stronger exercise of the –mandate (sic) of the United Nations.[73]

And,

[T]hirdly, I do not have precise recollection of any complaint, or of any report on the negative conduct of the gendarmerie as part of the –the behaviour or attitudes towards Belgians. I believe General Ndindiliyimana has always pleaded, to, in short, that the gendarmerie should play its positive role of maintaining law and order.[74]

In summary, the evidence is overwhelming that General Ndindiliyimana not only cooperated with UNAMIR search operations, but he went further and asked for the UNAMIR mandate to be strengthened. He would not have done this if he had wanted to compromise or block the mission of UNAMIR in implementing the KWSA agreement. General Dallaire was asked by defence counsel, “Oh, so you regarded him as the most cooperative (officer) on either side (RGF and RPF)” and his answer was “Absolutely.”[75]

It is also important to note that there is no corroboration of the allegation that General Ndindiliyimana informed Mathieu Ngurimpatse of search operations. Mr. Ngurimpatse was not called to testify, no statement of his was put to General Ndindiliyimana in cross-examination that contained anything about that, and no other witness was called to substantiate this allegation which in the context of the testimony of the witnesses referred to above is without any foundation whatsoever.

It is equally important to note that the Prosecutor never called any evidence as to a motive for General Ndindiliyimana acting against UNAMIR’s mission. In fact, from the witnesses above and from his own testimony, it is clear that he was highly motivated to cooperate with and ensure the success of the UNAMIR mission. His entire record speaks to that. For him to act against UNAMIR makes no sense. The witness who made this allegation also could not provide any motive for the general engaging in such behaviour and without a motivation, the allegation, we submit, is preposterous and must be rejected.

H. General Ndindiliyimana had no jurisdiction to investigate or order a judicial probe of journalists as alleged in para. 37 of the Amended Indictment.

The next allegation made against General Ndindiliyimana, set out in paragraph 37 of the indictment, is that he failed to investigate or order a judicial probe of the journalists who were committing criminal offences, that is, inciting racial hatred. We have already shown above that General Ndindiliyimana did try, with Colonels Gatsinzi and Rusatira, to use personal persuasion so that both RTLM and Radio Rwanda would tone down their broadcasts. General Ndindiliyimana also testified that he along with members of his general staff went to see the Minister of Defence to ask the government to do something in order to bring more moderation to RTLM broadcasts. However, it was not the responsibility of the gendarmerie chief of staff to investigate or order a judicial probe of journalists. The problem for the Prosecutor is that, once again, he offered no proof of this nor called any evidence whatsoever to substantiate this allegation. The Prosecutor through his agents in court, several times made the assertion that General Ndindiliyimana had some sort of jurisdiction over Radio RTLM. But they did not call even one witness to say so. They failed to call anyone from RTLM to say this. They did not call any legal expert to say this. They did not call any former judicial officer to say it and finally, they did not call the chief Prosecutor for Kigali, Mr. Nsanzuwera who works every day at the seat of the Tribunal and who could easily have been called to testify. But he was not called even though he was only a few feet from the courtroom on a daily basis. In the common law, if a Prosecutor fails to call a witness who has material testimony to give on a matter there is an adverse inference drawn that the testimony would not have substantiated the claim made. He is an important witness as it has been shown that during these tragic events he evaded his responsibilities despite the appeals made to him by Genera Ndindiliyimana for his assistance. He refused to accept delicate files that the chief of the criminal research and documentation centre presented to him.[76] They could also have easily called a legal officer or judicial officer from Rwanda to testify in support of their claim but again, no such witness appeared before you. It must be concluded that their testimony would not support the allegation. Therefore we did not need to present any evidence on this matter. However, we decided that even unsubstantiated allegations should not linger in the air.

Stanislas Harilimana, who occupied the position of Prosecutor of the appeals court in Kigali in 1994, testified that his office also functioned as public Prosecutor for the state security court as well as the court martial. His position was below that of the Attorney-General of Rwanda, Mr. Nkubito. He described in detail the jurisdiction and functioning of the Prosecutor’s office, judicial police officers, the role and powers of judicial police officers, and that all officer’s of the public Prosecutor’s office are under the authority of the Minister of Justice. He stated,

With regard to state security, any public action would be instituted by the Prosecutor general at the court of appeal of Kigali, upon the request of the Minister of Justice. When a public Prosecutor is informed of any crime against the security of the state, he informs the minister of justice, immediately, and declines responsibility. Now that is what happens when there’s a crime against the security of the state. It was the minister of justice who would institute public proceedings. He would be the one who would order the Prosecutor general at the court of appeal at Kigali to institute proceedings. …This means, as I have said previously, that judicial police officers did not have any right to prosecute crimes relating to state security….[77]

It is submitted that incitement to racial hatred would be a crime against state security as the witness and Mr. Jegede for the prosecution agreed in their exchange. Therefore, only the Minister of Justice, acting through the public Prosecutor, had jurisdiction to act against hate broadcasts from RTLM. The Chief of Staff of the Gendarmerie, as a judicial police officer, had no jurisdiction and no authority to act in that situation.
He also testified that, except a person caught red-handed, no judicial police officer could arrest any person without a warrant of arrest that had to be issued by the public Prosecutor. He also stated,

Section 24 specifies that the public prosecutor’s office can request the assistance of the gendarmerie or the other forces of law and order in the exercise of their duties. So this means that whenever the public Prosecutor’s office deemed it necessary to seek the assistance of the gendarmerie, to arrest certain persons, they would request the gendarmerie to assist them in apprehending certain individuals.[78]

And,

Yes, there was a public prosecutor at the Kigali department of public prosecutions. This was the person who was in daily contact with the gendarmerie as I have previously said. This was the person to whom reports were directly submitted. He was the one who had to issue arrest warrants.[79]

And, “it was a certain Nsanzuwera, Francois. He was the public Prosecutor in Kigali right up to April, 1994.”[80]

This is confirmed by CPB63 who testified that all work by gendarmes on judicial matters came under the authority of the Ministry of Justice and that the gendarmes acted on the instruction of that Ministry.[81]

Here then it is clear that General Ndindiliyimana is being used as a scapegoat for the omissions, the failure to act of a member of the Prosecutor’s office, Mr. Nsanzuwera. It is clear it was he who should have acted against RTLM, not General Ndindiliyimana. If he is not to be charged with this failure, why should General Ndindiliyimana be charged? Where is the fairness in a trial when the person really responsible works with those who draft the indictments and who has every interest on fixing the blame elsewhere. This baroque charade is unworthy of an international tribunal, so baroque that they refused to call the one witness who could substantiate the allegation and had no plans to do so when they drafted the allegation in the indictment. This is an indication of the attitude of the Prosecutor throughout this case, of using innuendo instead of substantiated charges to attempt to influence the minds of the judges and the public against a man being blamed for the failures of another.

Harilimana also testified that the public Prosecutor could issue a summons. He gave the example of the Kangura and Kanguka newspapers and the arrest of Hassan Ngeze and Vincent Rwabukwisi where the public Prosecutor did act in cases of publications inciting racial hatred. They were tried by state security and convicted. But they did not serve their sentences as human rights organisations complained about freedom of the press and put political pressure on the government forcing their release: groups such as Amnesty International, Human Rights Watch and Reporters without Borders. Asked what the result of that was on the prosecution service he stated,

The reports from the human rights organisations had an impact on the prosecution services, or departments, in that they no longer prosecuted journalists because this was very delicate. The minister of justice himself was embarrassed by the criticisms from outside…

So after these incidents, when it came to cases of journalists who had published articles likely to provoke problems or interethnic confrontations, it was difficult to institute proceedings, given that we had this experience relating to the international community, specifically Amnesty International, which had strongly criticized the Rwandan government, alleging that journalists were being persecuted.

So we were careful not to prosecute journalists thereafter. This was the consequence of the reports by Amnesty International and the other human rights organizations.[82]

And, in response to a question about Human Rights Watch he said,

In fact, I am surprised that that organisation itself criticized the departments responsible for prosecution, that they did not do anything to prosecute RTLM journalists. It was those same organizations that preached freedom of expression. So in the end we really do not know which side we should be on, because, whatever we did, there were criticisms.

I am not familiar with the testimony of Dr. Des Forges, but what I can say is that I am surprised that she would have said we did not do anything. We did not do anything at that time because we were afraid of the same criticisms. They had criticized us of preventing people from freely expressing themselves. So we were paralyzed. We could not do anything following the experiences that we had gone through.[83]

Witness CBP40 was a journalist in Rwanda in 1994 and testified that,

Even if journalists were arrested, we all acted jointly to obtain their release. This is what happened during the war, so no one was in a position to guard the press. The newspapers were very important, they could even carry a cartoon of the president of the republic, as I have said.[84]

And,

We had an association of journalists known as AJR, Association of Rwanda Journalist. It was headed by a trained journalist. And whenever a journalist was arrested, we would write, we would make phone calls, we will carry out demonstrations. We would visit the journalist. And we were all mobilized as journalists.[85]

And,

[T]he minister of information was overwhelmed, really overwhelmed by the events of the time. The government had asked the minister to arrest journalists, but our association mobilized its members to impress on the minister that he did not have to act in that manner. So whenever a newspaper was suspended, a new one surfaced, a newspaper surfaced bearing the same editorial line.[86]

General Dallaire made an interesting comment confirming the above testimony. He stated that:

On several occasions the subject of RTLM was raised by myself…and raised in the sense of why the government has not stopped this radio station that was inciting people to kill…On all these occasions I agreed with the Minister of Defence, be it with Ndindiliyimana, be it with Bizimungu, be it with Bagosora, the same story came back, in fact, be it with the Prime Minister at the time of the interim government, the answer kept coming back that it was a private radio station that they had their own right to express and that yes, they will attempt to influence it to stop saying such things.[87]

Once again, it is clear that it was a government matter not a police matter and just as Dr. Des Forges cites, General Ndindiliyimana did what he could with Colonels Gatsinzi and Rusatira to try to use their personal influence to tone down the language in the broadcasts.

General Ndindiliyimana, in his testimony, stated that he was attacked by RTLM himself as is confirmed by the testimony of Dr. Des Forges above in this argument. He had every reason to act against them if he had authority to do so but he did not. He testified,

From what is stated in the law, and from my own experience, the chief of staff does not have to perform that kind of duty. It does not fall within his jurisdiction or authority.

And,

I am not aware of any provision in that regard that allows me that power to compel the Prosecutor or the legal department to prosecute and even if you are a judicial police officer and you have that capacity of being the chief of staff, I still don’t have that power, that authority.[88]

The Prosecutor did not challenge this testimony in his cross-examination of General Ndindiliyimana, and, therefore, it must be assumed that the Prosecutor accepted that testimony as correct.

Pascal Ndengejeho testified that he was the Rwandan Minister of Information when Radio RTLM was founded and commenced operation. He testified that it was he who issued the licence to operate and that it was then the Minister of Communication who assigned the frequency to the station. He stated that it was the Minister of Information who had the jurisdiction to cancel the licence of a radio station and that the minister would then inform the minister of communication. He stated that he was replaced by Faustin Rucugoza, a member of an MDR faction which eventually split from the MDR. In essence, it is submitted, based on this testimony one can conclude that an RPF ally, Rucugoza, was the one who could have suspended the operation of RTLM or acted against it but chose not to. One can only speculate why a pro-RPF minister would not act against RTLM. Though it appears that the broadcasts of RTLM had the effect of draining support from the interim government at a crucial time when it needed western support and one can conclude that it was allowed to continue to operate as it fit the RPF strategy of raising ethnic tensions in Rwanda.

He further testified that the Gendarmerie could not act against a private company and could do so only at the request of the public Prosecutor and even that had to be in conjunction with the Minister of Information.[89] He stated,

When I was in government what I know is that the Gendarmerie could not have said, ‘Look, let us go and arrest people at RTLM.’ Without an arrest warrant, without a written report or instruction from the public Prosecutor’s office, without the authorization of the relevant departments in government. So I can’t see Ndindiliyimana….but I can’t see Ndindiliyimana sending someone to go to arrest someone at the RTLM.

The public Prosecutor had the right to do that because he was allowed by the law and the constitution to take preventive measures….it was up to the government to first close down-to close down RTLM and then use the Gendarmerie or army to arrest criminals.[90]

But we will leave this issue with the words of Colonel Vincent who said on this subject, “There was no relationship between the general and radio Mille Collines.”[91] The following exchange then occurred:

Q. “Do you know, could the chief of the general staff of the Gendarmerie have opposed broadcasts over radio RTLM.”

A. “Not at all. It would have been entirely or totally impossible. How could the chief of general staff in any of our democratic states, for example, in our home, how could they have shut down a radio station or any other station? That is entirely inconceivable.”[92]

It must be reiterated that the Prosecutor failed to call any evidence on this matter either in its case in chief or in rebuttal. There is no case to meet on this allegation. However, in any case, it has been established beyond doubt that General Ndindiliyimana did not have any responsibility in this matter and this allegation cannot be used as an element in an attempt to construct a conspiracy to which the general was a party.

No link has been established between General Ndindiliyimana and the factual allegations appearing in paragraphs 38, 39, 41, 42, 43, and 44 of the Amended Indictment.

The indictment makes a series of allegations in paragraphs 38, 39 and 41 against the Reconnaissance Battalion; in paragraph 40 against the Presidential Guard and RTLM; and in paragraphs 42 and 43 against the President Sindikubwabo and the Prime Minister Jean Kambanda. No link has been established between these allegations and General Ndindiliyimana, though the Prosecutor added to the indictment the deliberately mysterious paragraph 44 that General Ndindiliyimana was “not uninvolved in all this” without stating more and without ever trying to specify in what way, or for what motivation, or by what means. The charge is almost a parody of the never knowable charges faced by K in Franz Kafka’s book, The Trial. The RTLM matter has been addressed above. The only connection that General Ndindiliyimana had in the matter raised in paragraph 38, the murder of the Prime Minister, is that his gendarmes tried to help her escape her pursuers the night of April 6, 1994. This will be discussed in relation to paragraphs 48 and 49 of the indictment. The matter of the Belgian soldiers will be addressed in reference to paragraph 47 of the indictment.

J. General Ndindiliyimana did not support the institution of an interim Government composed solely of Hutu extremists.

Paragraph 45 of the indictment states that on April 7^th, General Ndindiliyimana, the “highest ranking officer in active service in the Rwandan Army” was appointed to chair the Military Crisis Committee that was to fill the power vacuum, pending the establishment of new institutions. This is partially correct but also very wrong. First of all, General Ndindiliyimana was not the highest-ranking officer in the Rwandan Army. He was the highest-ranking officer in the Rwandan Gendarmerie. It is true that upon the assassination of the President by the RPF there was a vacuum in the office of the presidency. Upon the assassination of the Army Chief of Staff by the RPF there was also a vacuum in the position of Chief of Staff of the Army. At the meeting of the military officers of the Rwandan Armed Forces, that is the army and gendarmerie, and with senior officers of UNAMIR present in the persons of General Dallaire and Colonel Marchal, on the morning of April 7^th, the agenda consisted of perfectly legitimate issues in the context of the situation. Several witnesses have described that meeting. Dr. Des Forges for the Prosecutor testified that:

Q. “You said the following: at the bottom of the page you say ‘With Gatsinzi at least normally (nominally, sic) in command of the armed forces, he, Rusatira and Ndindiliyimana sought to wrest control from Bagosora. When the crisis committee met on the evening [sic-morning] of April 7^th, they refused to allow him to run the meeting. He insulted others, particularly Rusatira, and boycotted the rest of the meeting. The others made some plans for bringing the Presidential Guard under control and setting up the government based on the Arusha Accords.’ You wrote those words?”

“That sounds familiar….” …. “Okay, that is fine.”[93]

This testimony by Dr. Des Forges must also be applied to the ridiculous allegation in paragraph 46 of the indictment that General Ndindiliyimana and Bagosora, “in full agreement,” supported the institution of an interim government composed solely of Hutu extremists. That the Prosecutor put that allegation in the indictment at all is very troubling when they had Dr. Des Forges’ book and evidence stating the very opposite of that allegation. In cross-examination by counsel for General Ndindiliyimana she testified that, “In the early days of April, it appears that General Ndindiliyimana made efforts to organize some sort of opposition, in meetings was in opposition to Bagosora and in addition made efforts to save lives.”[94]

She was also shown her statement in her report in Bagosora at page 42, the following which she acknowledged:

Q. “ ‘The senior officers opposed to Bagosora either could not bring themselves to join forces with the longstanding enemy or did not believe that they could lead a substantial number of soldiers into such an arrangement. They looked instead to the international community for support. Dallaire would have liked what he saw as a “new army”, but he was blocked by the narrow interpretation of the mandate, as well as by a shortage of troops and equipment. Ndindiliyimana explored the possibility of foreign support with the Belgian Ambassador, Johan Swinnen on the evening of April 7^th, and Rusatira had contact with Swinnen, with representatives of the US and with the French general in Paris. The diplomats in Kigali, as well as theirs ministries back home, were all focusing on evacuating the citizens of their own countries. No one had resources to offers dissenters who hoped to oust Bagosora, and to stop the slaughter of Rwandans.’ You wrote that, did you not?”

A. “I believe I wrote that…”[95]

General Dallaire, who was at the meeting of the crisis committee, was asked the following:

Q. “It’s page 12 of that transcript, January 26, 2004. Question, ‘General, thank you. Now I understand. I was nursing some worry about that. Let me to go on to another question. You talked a lot of moderate officers and other officers, I would not quite say extremists, within the Rwandan army, and I believe you classified somebody like Ndindiliyimana and somebody like Rusatira among those you consider as moderates.’

“The answer which you gave was, ‘Yes, and this was as a result of meetings with them and the time I spent with each of them about the war. And whether you’re referring to Ndindiliyimana or Rusatira or Gatsinzi, it was then the war started and particularly within that period and the reputation that I got from dealing with them and his conduct – I think Ndindiliyimana – his conduct when it came to talking about the co-chairmanship of the crisis committee.’

“You were asked that question and you gave that answer, sir, as best you can remember?”

A. “That makes sense, yes.”[96]

Colonel Marchal who was also present at the meeting of the night of April 6/7^thtestified,

Another aspect of this part of the meeting, which seems essential to me, is that everyone was of the decision of the-of the opinion round the table, and all the officers expressed the desire-not only a desire but a wish-to put in place as soon as possible the transitional institutions and to help manage the crisis and to hand over as rapidly as possible to the politicians. So this was quite a clear point of view which was expressed. And the soldiers present and those who were present did not raise any objection to this. The soldiers said, ‘It’s not our role to manage. We help. It is the politicians who need to manage the crisis. So we are available to the politicians who need to manage the crisis. So we are available to the politicians, and of course we need to maintain law and order.’ This was a great concern.

So the words that were uttered, I remember-well, this wasn’t an exaltation, as such. It was General Ndindiliyimana who was really requesting or calling upon General Dallaire to be the spokesman for the Rwandese, but also UNAMIR, to the international community and express that the events which were taking place were not the result of a coup d’état and that the officers there present were loyalists and that they only wished for one thing, that is, for the country to remain in peace and for the situation to be managed by the politicians as it should be.

So the context, or framework, of this meeting was clear to all. It was also very full of goodwill as concerns the Arusha Accords. And it was summarized by General Ndindiliyimana on behalf of all those officers in attendance. And once this summary had been provided, nobody raised any objection whatsoever with reference to the various issues raised.[97]

The Prosecutor in his cross-examination of Colonel Marchal did not challenge his testimony in that regard. Lt. Colonel Nzapfakumunzi, who was present at the ESM meeting on the 7^th, also testified that it was General Ndindiliyimana who defended the idea of continuing to support the Arusha Peace Accords and that he was the first to take that position which was the position finally adopted at the meeting, whereas Bagosora had suggested the military take control initially.

General Ndindiliyimana testified, in response to a question by defence counsel, why he proposed nominating Colonel Rusatira as the new chief of staff of the army at the meeting of the night of 6/7^th April that,

I did not argue to defend his candidacy, but I knew what he had been doing. I knew him because our-and I knew that he was in contact with Kanyarengwe, in other words, with the RPF. I knew that Rusatira was also in contact with the Americans. But in view of the fact he was in contact with the Inkotanyi, some people did not want that-did not want him for that reason. But, for me, he was the person who could have facilitated matters pertaining to problems which I anticipated. And he, however, was being challenged because of the manner in which he was identified.

And,

After our discussion, and, as you know, in discussion we discuss one point after another. We talked about-and this was Bagosora’s idea. We talked about forming a crisis committee. This was Bagosora’s idea. He said that we were going to attack matters-or, we are going to take control of the situation. No one made any comment.

As far as I was concerned, I thought, yes, we are in a crisis, so to take control of the situation was normal. I didn’t ask questions. We talked about the security of the population. And, for me, it was normal for the units of the army and the gendarmerie to be informed of the situation and to be called upon to take measures at the prefectoral levels and as well as operational sector levels. And I’ve deemed that all of that was normal.

We completed discussing that point. We had just completed discussing that point when General Dallaire arrived. So we moved. The small room was packed…..So we went there –to conduct discussions with General Dallaire in that big meeting room.

As a matter of fact, there were no discussions. Bagosora explained to him what we had just discussed. He found it normal for the chief of staff to be replaced. Therefore, he did not make any comment on that. But when Bagosora said we were going to form a crisis committee and take control of the situation, Dallaire, said, ‘What exactly do you mean by this? What do you mean by taking control of the situation, specifically?’

I realized that I had not understood specifically the …of matters by that committee. My attention was drawn to that by the comments made by General Dallaire. And things had to be clear-were to be clear, what did we have to do; did we have to take power, or should we have pursued the implementation of the Arusha Peace Accords.

I remember that we did not argue about that choice. I just thought, and this is something I said, and this is something I said, that there are four partners. ‘We are four partners now.’

As I have said there is the RPF. There are the Rwandan armed forces, and you had UNAMIR. Those are three partners. And when I talk about the Rwandan armed forces I am referring to the army and the gendarmerie. That makes it four partners dealing with security matters. Therefore, we could not have acted in a hazardous manner, in view of the situation, without consulting our partners. I, therefore, suggested that we had to go and see Booh-Booh, who could contact the RPF so that we could know how could manage the situation as four partners.

Bagosora, Colonel Rwabalinda, that is the directeur de cabinet, the officer in charge of the liaison between UNAMIR and the army’s general staff left with Dallaire in order to go and see Booh-Booh.[98]

General Ndindiliyimana then testified that, in accordance with information he had he went to the US Ambassador’s residence the early morning of April 7^th with Bagosora and another officer but no one else turned up so they left and went to the officers’ meeting at the ESM. In regard to the crisis committee he named the officers who made up part of that committee and the names included Colonels Rusatira and Gatsinzi, the new army chief of staff. In that regard General Ndindiliyimana testified as follows:

That’s not correct. What I concede is that I was active within the committee, and that I worked so that the problems that were there are resolved. But I was not appointed president-or, chairman, sorry, of that committee.[99]

He clarified that later in his testimony in response to Mr. Van for the Prosecutor that he did chair one meeting of the committee but that should not be understood to mean he was the permanent chair of the committee.[100] And in answer to a question as to the purpose of the committee he stated,

The purpose of the committee is taken up in the communiqué which was issued or broadcast, put together immediately after the meeting. And it was signed by the directeur de cabinet. In the communiqué it is clearly stated that that group had to monitor closely problems connected with security. It had to assist and to respond to requests related to security matters that would be raised by politicians, raised with security forces. Mainly, though, that was the purpose. In other words, manage the security situation in conjunction with UNAMIR, and also be ready or be prepared to guarantee security for politicians who had to find solutions to the political problems.”[101]

He denied that the purpose of the crisis committee was to take power:

Mr. Prosecutor, the crisis committee supported issues relating to security….At that meeting of the 7^th of April, which started at 10:30 a.m., the purpose was to provide assistance in respect of security.

“And nothing else, no political assistance?”

A. “At the political level, I have already told you that when I met politicians in the afternoon of the 8^th, they told me that they had found a solution that tallied with the Arusha Peace Accords. Then, in the evening a government was set up by the politicians and they came to the ESM, and we provided them with further information particularly in respect of contacts with General Dallaire, who was expected to attempt to meet the RPF and then to report to us the situation, so that we can be able to provide information from the military point of view. So we were ready to assist them the next day, in the morning, in respect of security at the swearing-in ceremony. So we were not involved in any political activities with politicians, be it the 7^th or the 8^th.”[102]

Colonel Nzapfakumunzi confirmed this in his testimony and stated that it was decided that the Crisis Committee should establish contact with the political parties with the objective of continuing the Arusha Accords. CBP7, who was also at the meeting of the 7^th testified,

The crisis committee was set up, I do not recall its entire membership, but you can find that in some documents. But its mission, on behalf of the army, was to assist those who were in charge of politics, I am not going to say politicians because I want this to have a positive tone. Their duty, therefore, was to encourage them to replace the head of state who just disappeared. And I may recall this was a provision of the Arusha Accords, which provided for the president to take the oath of office, which was on the 5^th of January, 1994, I believe.

The other mission …was also to monitor the security situation, because it was only through proper security in place that the politicians would be able to work and pursue their objectives. Those, inboard terms, were the missions assigned to the crisis committee.[103]

He then testified that after the new government was sworn in there were no further meetings of the crisis committee. He stated:

There were no meetings of the crisis committee as such. The crisis committee stopped this-the crisis committee could only assist the government-so on- at a security level for the government to accomplish it duties. However, there remained an informal discussion group-discussion group on major problems. So the mission of the crisis committee was over and now whenever there were significant problems, there were, in any case five people from that committee who continued working together. There was general-the chief of staff, Gatsinzi, there was Colonel Rusatira, myself, and Balthazar, as well as the G1 officer, which had been acting officer. But they would keep us abreast of emerging problems, initiatives which could be taken, it was often said that there was an ex-crisis committee but it was that group which continued to try to see how they could save the country.[104]

In response to a question by the Prosecutor, General Ndindiliyimana stated “Right, I was not the chairman of the committee-of the committee because that committee, on the night of the 6^th to the 7^th was not a recognized committee. It was just an idea. Actually it was just a suggestion.”[105] And in response to the suggestion that during the meeting of the morning of April 7^th he became chairman he stated, “No Prosecutor. The committee was formed during the meeting of the 7^th of April which included all invited persons, including General Dallaire.”[106] There was no further challenge of his testimony by the Prosecutor on this issue. It is submitted that when General Ndindiliyimana states he was not chair of the committee although he did chair one meeting, it is in the sense that he was not appointed the permanent chair of head of that committee and that must be so because only one meeting was actually held by the committee as such and because no other permanent officers of the committee were appointed as it never really got established before it was dissolved. He stated:

Firstly, I would like to say that the crisis committee we are talking about here is the committee which was formed at the meeting of all the officers of the army and the gendarmerie present at the ESM on the 7^th at 10:30. On that occasion, Ndindiliyimana was not chairman of the newly formed committee.

I would like to say that on the following day during a meeting, the person considered to be the chairman of the committee, that is Colonel Bagosora, had problems, and then I had to take responsibility. And I have to say that subsequently, there were never, ever, any meetings of that crisis committee held….[107]

If a permanent chair had been appointed one would expect a co-chair to take over in his absence would also have been appointed. This was never done.

In answer to a question concerning the allegation in paragraph 46 of the indictment that he conspired with Colonel Bagosora to set up an extremist government, General Ndindiliyimana stated, “I did not have any influence at all in the choice of ministers. And I have to add that, apart from what I knew, the- I did not know the new members of the government.”[108] The Prosecutor called no evidence on this allegation and the evidence adduced above from the prosecution witnesses Des Forges and Dallaire indicates that General Ndindiliyimana did not and could not have supported a government of “extremists.” What is clear is that the interim government was a legal government and considered so by the United Nations and the Organization of African Unity and Colonel Gatsinzi, as acting chief of staff of the army, declared his support for the legally constituted government, as did General Ndindiliyimana.

K. General Ndindiliyimana was not informed of the gravity of the situation prevailing at Camp Kigali.

Paragraph 47 of the indictment, which is connected to paragraph 50, states that General Ndindiliyimana was informed, during the ESM meeting of April 7^th, that Rwandan soldiers were killing Belgian soldiers and took no action. Once again, the Prosecutor offered no proof, called no evidence on this allegation whatsoever.

General Ndindiliyimana testified that,

Yes, at about 10:45a.m., close to 11:00 a.m., there was gunfire lasting a couple of seconds. And everyone stood up to see what was happening. And prior to that gunfire which we heard, I would say a couple of minutes-say ten to 15 minutes, there was the commanding officer of the Kigali Camp who was present, and I’m referring to Colonel Nubaha. There was some discussion between him and Bagosora, and after that discussion he left. And we heard gunfire. We all stood up, and I saw certain things-not certain things really, I saw an African peacemaker, a blue helmet, running in the direction of the ESM. Those in charge of security at this place went to see, to observe what was happening. We went back to the hall since there was no longer any gunfire and within-with that much time, expecting someone to come to tell us to be careful, that we were going to be attacked. So there was no such submission by anybody and we continued with our meeting. And noticing that there was no danger the meeting continued.

And,

Counsel, I think that I have just given an answer as to how these events occurred and what I was not specific about maybe was what Nubaha said. He spoke to Bagosora. We were on the higher table, on the rostrum, as it were. So when he came, he stood to the right of Bagosora. So, he stood facing those present at the meeting. Now Nubaha came at about 10:45, as I stated. He came in through a door within the inner courtyard of ESM, and it opens up on to that rostrum. And then he spoke to Bagosora. I indeed heard what he said. He said, ‘Colonel, this situation is tense at the camp.’ I also heard the answer. He said, ‘Go and calm the situation. Immediately the meeting is over I will come and see.’ Then he left, as I told you, we heard gunfire. We (sic) did not last long, a staccato as it were. And members of the security contingent went to see. They did not come to tell us whether it was serious. We continued the meeting. And this time round, let me add, some five minutes later, General Dallaire came in. He sat next to Bagosora. Bagosora was between the two of us.[109]

When the meeting ended General Ndindiliyimana had no knowledge that Belgian blue helmets were in danger or had been harmed. He then testified as to how he and General Dallaire went to Kigali Hospital and found the 11 bodies of Belgian soldiers and how shocked they were. General Ndindiliyimana gave General Dallaire his personal escort for security in light of the death of the Belgian UN soldiers, and General Ndindiliyimana asked the hospital staff to clean and cover the bodies.
Far from being in favour of the death of the Belgians and deliberately sitting by while they were killed, General Ndindiliyimana testified that he told Colonel Murasampongo who was with him and General Dallaire at the hospital, that “[e]verything is over. Everything is over. At least everything is over with the Belgians. I can’t see how we can get out of the situation. I can’t see a way out.”[110] So, far from being involved in the death of the Belgian soldiers he was dismayed because of it and that it would have a negative impact on the country’s relations with Belgium. This is confirmed by both the testimony of Dr. Des Forges and Ambassador Johan Swinnen that General Ndindiliyimana telephoned the Belgian Ambassador, John Swinnen, the night of the 7^th to plead with the Belgian government not to abandon the country and to keep its forces there. Mr. Swinnen testified,

I had a long telephone conversation with the general on the night of the 7^th to the 8^th. It must have been 2 or 3 o’clock in the morning and the general called me. And regarding the contents of the telephone conversation, he told me, “Please, do not leave. Don’t evacuate your countrymen. Let them remain here, because if you leave, it will be a disaster and catastrophe for the peace process. We are trying to save the Arusha Peace Accords. We are trying to salvage the pacification process. So if the Belgians leave, then-‘well, maybe he said the same thing to my American and French colleagues, but what he told me is that “If you Belgians leave, then we will be abandoned, and that would be dangerous for the peace process, because we need your presence, we need your encouragement, as you have demonstrated towards us up to now in this difficult process.

That was a very emotional conversation and I think that at that time I could not have thought that he was just pretending or acting. I think that he was acting lucidly and seriously. Unfortunately, I had to tell him: “We have not yet taken a decision.” That was on the 7^th to the 8^th. There were Belgians who had been massacred. There was a radio station which continued aiding programmes against Belgians. ‘Therefore, I’m not sure whether your request will be granted.’ And I had the feeling that I was talking to someone who was very disappointed and still wanted to make an effort to see to it that the Belgians do not-are not compelled to take a decision to leave.[111]

If the Prosecutor wanted the Trial Chamber to know the truth regarding the death of the Belgian soldiers why did he not call Colonel Murasampongo to testify who must have been aware of what was happening before he arrived at the meeting at the ESM but kept his knowledge to himself? General Ndindiliyimana testified that an enquiry was commenced in which it was concluded that the rumour that the Belgians were involved in the murder of the president of the Republic originated with an intercepted radio message of the RPF implicating the Belgians. It is the defence theory that the Belgian soldiers had all been killed even before the meeting at the ESM began and that General Dallaire was aware of that when he arrived and that the shots heard during the meeting were unrelated to the death of the Belgian soldiers.

Des Forges stated, at the end of a long answer to defence counsel regarding that conversation with Ambassador Swinnen that,

That could be one interpretation that could also be the interpretation that he was simply seriously concerned and frightened by the people who have taken power and who appeared to be completely in a dominant position. You have to recall that on April 3^rd or 4^th, there was a report on radio RTLM about a supposed corps [sic] meetings of officers from the south, supposedly linked to the Prime Minister and to the extent that Ndindiliyimana was identified as an officer of the south, although he was not present at this meeting. I think he had been put into a very difficult position and, of course, the people had shown, the people who were taking power had shown themselves to be completely ruthless by the way they were eliminating anyone opposed to them. So one can understand that purely from an operational point of view, he would be anxious for the introduction (international-sic) community to remain in the country in order to minimize the killing of people like himself, as well as people of a different ethnic group. So I think it does reveal probably-no, I think it does reveal certainly a sincere desire for the international forces to remain there. …[112]

And,

Mr. Ndindiliyimana was informed of the killing of the ten Belgian peacekeepers on 7^thApril 1994 (2100) hours at the-at the army headquarters in the presence of the force commander. They both left for the Kigali hospital morgue where they discovered the scene of the dead Belgian soldiers piled outside the building. Upon the assistance of the force commander he ordered the bodies to be cleaned up and laid out indignity, and stated that those who had committed this terrible act would be found.[113]

The general’s statement that the gunfire was heard for only a short time is substantiated by the findings of the crime scene expert Dr. Kubic who testified who was asked by defence counsel:

Q. “Would you agree that that wall-the indications of-the damage to the structure indicate a rapid exchange of fire for a short time? That is, suppressing fire was fired at the building in order to allow somebody to approach-suppress the people inside on to the floor, and then one or two men approached the windows and threw grenades in? Would that be consistent with that, what you are telling me?”

A. “That is a scenario that’s possible. There’s no way of knowing the length of time it took-at least from my investigation, over ten years later, the length of time it took for them to –for someone to that number of rounds into the building. But it is, indeed possible. Your scenario is a reasonable suggestion.”[114]

However, no tests were done to see if shots fired near the building where the Belgians were killed could be heard inside the ESM meeting hall and it is the defence theory, as suggested above that the shots heard during the meeting at the ESM were not related to that incident.

This is confirmed by Colonel Nzapfamukunzi who testified that he was present at the meeting at the ESM and who also testified that the gunfire was heard for just a short time. He also confirmed that no one at the meeting was aware that Belgian soldiers were being attacked at that time. Therefore, as the only evidence the prosecution called on this matter was in General Ndindiliyimana’s favour. This is another allegation that cannot be considered as an element of a conspiracy.

L. General Ndindiliyimana was not involved in the political killings of 7-11 April 1994; He took the necessary and reasonable steps to protect in light of UNAMIR’s undertaking to protect said political figures; He did not fill a political power vacuum.

Paragraphs 48, and 49, which also are connected with the general allegation in paragraph 50 of the indictment that the murder of certain politicians created an institutional vacuum “perniciously” filled by General Ndindiliyimana and Bagosora, allege that General Ndindiliyimana took no adequate steps to protect politicians. Once again, the Prosecutor offered no proof of this and called no evidence to show that General Ndindiliyimana could have or should have done more than he did or done things differently with the resources available to him. No military or police expert was called to demonstrate how he could have used his resources better or more effectively, or that he even failed to use his resources effectively. Several defence witnesses described the effects of the RPF attacks on gendarme camps and detachments throughout Kigali on the 7^th of April and after, including General Ndindiliyimana, CBP7, CBP46 and CBP63 amongst others. Colonel Nzapfakumunsi testified that immediately after the meeting at the ESM all military and gendarme units put into effect the defence plan for the city which had become an operational sector. These witnesses testified that the result of the attacks was an almost complete paralysis of the gendarmerie in its ability to function to maintain law and order. Those testimonies bear careful reading in their entirety to fully understand the situation face by the Gendarmerie and General Ndindiliyimana. Further, the politicians who were killed were guarded by UNAMIR forces and their unfortunate deaths cannot be held to be the responsibility of the chief of staff of the gendarmerie who acted under the assumption that UNAMIR had things well in hand.

The night of the 6^th/7^th April General Ndindiliyimana asked General Dallaire and Colonel Marchal of UNAMIR to come to the meeting of officers in order to have their assistance in managing the crisis. They and the other officers present agreed on measures to be taken to ensure security. In particular, General Ndindiliyimana agreed with General Dallaire and Colonel Marchal to conduct joint gendarme-UNAMIR patrols. The defence of sensitive points and the camps was also agreed to. That night, a telegram was sent to all camps of the gendarmerie and the army informing them of a communiqué to be addressed to the population in which the Minister of Defence asked the FAR to ensure the security of the population. In Kigali, Colonel Marchal gave instructions to his men who were in charge of the keys to the various arms magazines. A part of the Kigali group of the gendarmerie was deployed in each urban commune of the city and another part was placed on stand-by pursuant to the already existing standing orders for defence of the city in case of resumption of hostilities. In the face of the given situation that night, the only tactical solution that could assure the immediate security of the population was to conduct the joint patrols to criss-cross the city. General Dallaire recognised the efficacy of this plan and approved it but later in the night decided, unilaterally, to cancel those patrols.

Des Forges agreed that in her report for Bagosora she wrote that,

In the early days of April, it appears that General Ndindiliyimana made efforts to organize some form of opposition, in meetings was in opposition to Bagosora and in addition made efforts to save lives.[115]

And,

Q. “Gatsinzi headed a battalion but it was located in Butare. Ndindiliyimana commanded thousands of national police, but with the resumption of the war, some of the force was integrated into regular army command. In addition his troops lacked both the battle experience and heavy weaponry of combat soldiers.’ You wrote that in your report also, did you not?”

A. “I believe that it correct.”[116]

Des Forges also confirmed that the gendarmes assisted the Prime Minister in her escape: “[s]he went over the wall with the assistance of the gendarmes.” General Ndindiliyimana testified that the gendarme unit at the Prime Ministers’ residence had been reduced to accommodate the addition of UN soldiers there and that on investigation after her death he learned that the gendarmes at her house had opened a way through the fence that was separating her residence from the UNDP residence and she left. He was informed by Colonel Bavagumenshi that the latter had had tried to send reinforcements to her house as well but that they had been blocked.[117]

General Ndindiliyimana testified how he reformed the Gendarmerie when he was appointed chief of staff. He testified that the first thing he did on taking command was to take some of the gendarmes from the front so that they could be better trained.[118] He also described how he reinforced the Kigali group in charge of security in Kigali town. Pursuant to the KWSA agreement UNAMIR determined the numbers of personnel that could operate in Kigali. The Kigali Group had approximately 800 men distributed in several territorial companies. Each commune had a company of approximately 40-60 men. Each territorial company had a judicial unit. Following the disturbances of February 1994 a structure was agreed to with UNAMIR called base de patrouille. It consisted of gendarme posts comprising 10-15 gendarmes placed in sectors of each commune so that the bourgmestres andconseillers did not have to requisition men. This plan also solved the transportation problem. The population was aware of this organisation as CBP21 testified to. General Ndindiliyimana referred to this when he explained the situation at Kimihurura where the base de patrouille was supplanted by a UNAMIR contingent.

It must also be noted that at Camp Kacyiru, there was only one company in reserve available to intervene if a territorial company needed assistance and to guard the camp itself as agreed under the KWSA. The other units at the camp were administrative and logistical units such as the headquarters and service company, administrative personnel, gendarmes undergoing training, and so on, as indicated by CBP63.

On the 7^th of April, the gendarme units in operational sectors, of which Kigali was one, came under army command and the only force available to General Ndindiliyimana at that date in Rwanda was approximately100 or less in Kigali and a total of 200 men or less in the country as a whole. He testified at length as to how he tried to adjust to this situation and use the force remaining to him to protect civilians including setting up the security or VIP company.[119] This was done in reaction to the murder of Felicien Gatabazi and his gendarme escort. The rest of the gendarmes were either engaged on the frontlines in combat or protecting the borders and vital installations from enemy attack and others under requisition by the preféts.[120] No evidence to the contrary was produced by the Prosecutor.

General Dallaire also confirmed that at the meeting of the 6^th to 7^th April, General Ndindiliyimana said he wanted to place gendarme guards at Radio Rwanda, the telephone exchange, the utilities and fuel complexes. Dallaire agreed with this and General Ndindiliyimana also agreed to conduct joint UNAMIR-gendarme patrols that night, as stated above. All of the logistical details were worked out and it was General Dallaire who cancelled those patrols due to fears about provoking the situation by having Belgian soldiers on the streets. He stated that General Ndindiliyimana was cooperative in doing this with his limited resources. The defence submits that, upon the evidence, if those patrols had been allowed to operate the situation could have been changed dramatically and calm maintained before things got out of hand, as the gendarme units were located at strategic points in the capital city. All that needed to be done was for the UN forces to arrive at each unit location, go out on the streets in force in each locality and show the presence of the authorities and the United Nations. This would have reassured the population. But the cancellation of these patrols resulted in the complete absence of any authority on the streets to reassure the population of the city, which then reacted to defend themselves from RPF infiltrators and unknown persons.

General Ndindiliyimana explained in his testimony how he set up what he called a republican guard or VIP company that provided protection for both RPF and Rwandan government VIPs. It had platoon strength and was commanded by Colonel Bavagumenshi. This company acted in conjunction with UNAMIR, which also had responsibility to protect certain VIPs and sensitive points.[121] He also explained how, due to a misunderstanding between UNAMIR soldiers and gendarmes guarding the ministers’ neighbourhood that the gendarmes were replaced by a UNAMIR detachment based at a house in Kimihurura.[122] He also explained that after the meeting at the ESM he learned that those gendarmes who had been protecting certain ministers had been driven away or chased off by the Presidential Guard. General Ndindiliyimana tried to reach the commander of the VIP company to see what was happening but he also was running around trying to find out what was happening. In reaction he went to see Bagosora who was acting in the absence of the Minister of Defence and who had control over the Presidential Guard. He met Bagosora in the company of General Dallaire and told him the situation and Bagosora stated he would do something about it and left the office.

Colonel Marchal confirmed that he also received orders around 2:30 am on the 7^thfrom General Dallaire to reinforce the security for the Prime Minister and escort her to Radio Rwanda station to make a speech. But he also stated that they were up against a situation that exceeded the capacities of both UNAMIR and the Gendarmerie.[123] He also testified that Lt. Colonel Bavagumenshi, who was the commander of the security company of the Gendarmerie, came to his headquarters at about 7:00am to ask for help. Bavagumenshi explained that the Presidential Guard was assassinating politicians in Kimihurura and he did not have the means at his disposal to stop it and asked that UNAMIR intervene. Colonel Marchal was not able to provide the assistance requested because:

I had men who were standing guard at several politician’s houses, residences…And then I asked the Belgian contingent commander to send troops to help the other troops already there and try to avoid that other assassinations should take place. Unfortunately, the only unit that was able to intervene was the unit of which the chief of the Prime Minister escort was a part. So, that is to say, practically, the totality of that was at the Prime Minister’s residence, and so the others intervened. The other Blue Berets of the mortar battalion…The other Blue Berets arrived. I won’t say militarily because the intervention was quite ill-adapted, but they came to try to negotiate and save the public figure being targeted. Unfortunately, none could be saved, but some families did escape being totally killed. And it is clear that to face up to such a situation, one feels helpless. It must be realized that those assassinations were not improvised, that every residence where the Presidential Guard came to kill, they came in strength, at least 20 soldiers. So the standing sentries-guards at the-UNAMIR guards at those public residences were four blue Berets. So, you must understand that in such a situation you can use your weapons but don’t be surprised of the result. So, we were confronted with the situation where, indeed, the troops present did not make it possible to use their weapons to protect the public figures who we were protecting…[124]

Claudien Ndagijimana, who was a gendarme officer in the VIP security company, related at length how he met with Colonel Bavagumenshi and other officers in the early morning of the 7^th of April. There, he learned that the Prime Minister was being besieged, that Lt. Mporendore was ordered to take find some men to go to help her, but that they later returned to the camp because they had been prevented from getting to the Prime Minister’s residence. He stated that Colonel Bavagumenshi told him he had information that some ministers, VIPs, had been attacked and ordered him to make a patrol in order to check on the situation with these ministers. He related how he went to the residence of Anastase Gasana and Kavaruganda but found no one there at the time he arrived there. He then went to the residence of Nzabonimana, Felicien Ngango, and the residence of Faustin Twagarimungu where he found gendarmes still there. He went to Rucogoza’s where he also found two gendarmes but the minister had been killed and that he tried to get to Landouald’s residence but could not enter the area. He stated that he learned that the gendarmes who could not be found were only a few and had only their personal weapons and that they had been simply disarmed and taken prisoner to the Presidential Guard camp.[125] Witness LMC testified about Presidential Guard soldiers coming to her residence and taking her husband away, and that the UN security detail present did not oppose them.[126] Her husband telephoned UNAMIR and they promised to intervene but they did not come. She agreed that he did not ask for gendarme assistance. It is also worth noting here, with respect to Colonel Bavagumenshi, the words of prosecution counsel Mr. Tambadou who stated,

My Lord, the response has been solicited. We have no doubt in our minds that Colonel Bavagumenshi did indeed heroic things, other than his personal conviction. I mean we will bring evidence to show that he was transferred from one place to another and he did help people.[127]

Indeed witness LBC stated:

Then before the Interahamwe were able to enter the camp (Nyarushishi), we saw buses with gendarmes arrive under the command of one Bavagumenshi. These gendarmes surrounded the camp and they sent soldiers to each-they sent gendarmes to each tent in the camp, and then we saw the Interahamwe step back, and left. Later on, we saw helicopters with soldiers aboard-with French soldiers aboard.

Do I understand your statement to mean that these gendarmes fended off theInterahamwe?”

“Yes, it was the gendarmes who sent away the Interahamwe.”

And they provided you with security until you saw the helicopters come?”

“Yes”

“How did you know that they were commanded by this Colonel Bavagumenshi, these gendarmes?”

“We got to know this subsequently. It was later on that we got to know that it was Colonel Bavagumenshi who brought those gendarmes to the Nyarushishi camp.”[128]

Defence witness CBP 56 also confirmed the role of the security company set up by General Ndindiliyimana, which had the mission of protecting the Prime Minister’s offices and the escort and protection of members of the government.[129] Defence witness CBP46 testified that General Ndindiliyimana also set up the Jali Intervention company and put together a team of experts, including French gendarme officers, to deal with the planting of mines by the enemy that were injuring and killing civilians. He also established a unit in Kibuye that, until then, did not have a gendarme detachment present. General Ndindiliyimana even formed a music unit to boost morale.[130] His driver, CBL104 testified as to how General Ndindiliyimana saved a Tutsi major from being killed by civilians at a roadblock.[131]

It is clear that what applied to UNAMIR also applied to the Gendarmerie. General Ndindiliyimana, in conjunction with UNAMIR, set up a security company to protect politicians. That plan was approved by UNAMIR. UNAMIR also had the task of protecting politicians. Neither UNAMIR nor the Gendarmerie could have done more in the face of the concerted attacks by what appear to be Presidential Guard troops. Lt. Colonel Bavagumenshi took the initiative to ask for help from UNAMIR to protect those politicians being guarded by gendarmes but no help was available. However, the gendarmes at the Prime Minister’s residence did try to save her. Further Ambassador Swinnen testified that Mr. Nkubito came to his residence with a gendarme escort early in the night of the 6^th/7^th[132] The Prosecutor did not identify, in his allegation, which politicians named in the allegation were being protected by gendarmes and which by UNAMIR. In the case of the Prime Minister, dual protection was provided and still nothing could be done in the face of a massed attack. Having failed to specify which politician was guarded by which force, the allegation must be rejected on specificity grounds alone. In any case, in the absence of any evidence to the contrary from the Prosecutor that the protection provided by the Gendarmerie was not adequate nor how they could have protected politicians when UNAMIR could not succeed in providing protection, the allegation in paragraph 49 must be rejected as an element of a conspiracy.

Defence witness Francois Nzabahimana, a former government minister, testified that he witnessed a conversation between General Ndindiliyimana and the new president Sindikubwabo on the 9^th of April;

So General Ndindiliyimana came to – came to the president’s place, and when visitors came to see the president I did not take part in the discussions. But, I would speak but-and Ndindiliyimana spoke spontaneously to the president, and I was there. And he told the president, ‘Mr. President, political personalities including the Prime Minister have just been killed. And I therefore think that we should try to put an end to these killings.’

And General Ndindiliyimana, in the course of discussions said that he deemed it important and essential that the president should address the nation in order to put an end to the massacres which were occurring at that time, and in order for them to organize national funerals for people who had just been assassinated, including President Habyarimana, on the 6th and Agathe, on the 7^th.

So for General Ndindiliyimana, this political expression was aimed at people not to take killings and death as something routine. People had to respect human lives. …So Ndindiliyimana thought that if the president addressed the nation in this regard it would have a significant impact, because people would see that killings was not something ordinary. So, this was essentially what he told the president. You could see that he had compassion for the victims who had been killed. And he was concerned that if there was no serious solemn public action, things-the bad state of affairs would continue.[133]

General Ndindiliyimana had no concerns regarding the protection of the politicians as UNAMIR had taken things in hand and provided security for them. It is unfortunate that some politicians were killed while guarded by UNAMIR units but the responsibility for the failure to protect them adequately cannot be imputed to General Ndindiliyimana when everyone had reason to believe that those security measures were sufficient. No one could have foreseen that the UNAMIR units and the gendarmes guarding others would be faced with a threat by the Presidential Guard.

It is also clear that the Gendarmes located at Remera were attacked on the 7^th of April and decimated by the RPF who then occupied that zone where they murdered gendarme officers and their families. Nor should it be forgotten that the RPF took up position around the Hôtel Meridien so that the gendarmes who had taken up position at the village of Urugwo could not move and that gendarmes not under immediate threat tried to carry out their normal duties. It must also be noted that General Dallaire stopped a counter-attack against the RPF on the 8^th of April because he said he wanted to try to negotiate them back into the CND. It is also clear that the day of the 7^th was generally quiet in Kigali and that civilian attacks against other civilians did not develop for several days, that is, not until after the 13^th of April. Up to that time the population of both ethnicities manned the roadblocks together. Only after the Tutsi in the population withdrew from those roadblocks did trouble become generalised, and by that time Camp Kacyiru had been under bombardment and ground attack for several days.

General Ndindiliyimana approved the transfer of Maj. Jabo for a legitimate military purpose to help defend Camp Kigali. No evidence was presented by the Prosecutor as to Maj. Habyarimana.

Paragraph 51 of the indictment alleges that General Ndindiliyimana transferred Majors Cyriaque Habyarimana and Jabo to the front line because they refused to be involved in massacres in Butare and Kibuye. No evidence was offered regarding an alleged transfer of an officer named Cyriaque Habyarimana.

Prosecution witness KJ was the only witness to testify with respect to the allegation presented in paragraph 51. He stated he was working in the gendarme camp at Kibuye. He testified that Major Jabo ordered the gendarmes to protect civilians but that some of the gendarmes in the camp plotted to kill Major Jabo. If this story is true, then it must be concluded that Major Jabo gave the order to protect civilians because he himself had been ordered to do so by the high command. KJ relates in his testimony that Major Jabo did send six gendarmes to guard refugees at Gatwaro stadium but they were ordered to leave the stadium by the prefét Kayishema, and that at one point he overheard Kayishema berating Major Jabo for refusing to kill Tutsi. The witness then described a situation of mutiny in the Kibuye unit, with some gendarmes disobeying orders and attacking refugees. The witness stated that Major Jabo “was helpless, he couldn’t do anything. As I have told you, there was a gendarme looking for him in order to kill him as well as his wife because he was called an accomplice.”[134] KJ then testified that Major Jabo received orders to go to the front in Kigali with a number of gendarmes. This is, indeed, correct. Major Jabo did go to the front with a number of men from the Kibuye unit in order to reinforce Camp Kacyiru which was under enemy attack. This is confirmed by Lt. Colonel Nzapfakumunzi who testified that Camp Kacyiru was first assisted by the Huye battalion against the RPF attack, but since the Huye battalion was needed elsewhere, reinforcements had to be called in from the Kibuye and Butare detachments of the gendarmerie to support the gendarmes under continued pressure from the RPF. He testified that Major Jabo with one company of gendarmes was sent for this mission and Major Habyarabatuma was sent from Butare with one company for this purpose and that if these two companies had not been sent the Camp would not have withstood the RPF attacks.[135]

This is confirmed by General Ndindiliyimana who related that Major Jabo was requested to send a company to reinforce the units at Camp Kacyiru and that he chose to accompany his men to the front and that later, as General Ndindiliyimana heard of some supervision problems at the camp from the prefét, he was sent back to take up command once again.[136] General Ndindiliyimana testified that he could not transfer a unit commander to the front, as that was the prerogative of the Minister of Defence.[137] Defence witness CBP67 also confirms that Major Jabo took a reinforced company from Kibuye to Kigali to reinforce Kigali[138] as does defence witness CBP7.[139]

No evidence was led by the prosecution at all regarding the transfer of the other officer named in the indictment, Cyriaque Habyarimana. No other evidence, whatsoever, was led by the Prosecutor regarding the transfer of any other officer. However, General Ndindiliyimana did testify that an officer from Butare, Major Habyarabatuma did volunteer to go to the front to join his men but later went out of action because of dysentery, confirmed by defence witness CBP7.[140]

The testimony of the prosecution witness KJ is not reliable in many respects, which will be set out in respect to another matter where his testimony arises, that is, paragraph 52 of the indictment. However there is no need to bother the Trial Chamber with that at this point with respect to the transfer of Major Jabo because at no time in his testimony did this witness state that Major Jabo was sent to the front because he refused to kill Tutsi. The Prosecutor asked KJ the following question:

Q. “And what was the reason for his departure from Kibuye?”

A. “He left Kibuye because on a certain morning, we received a letter from the gendarmerie chief of staff, in which it was mentioned that Major Jean Baptiste Jabo had to go to the front in Kigali, to a place which was called Gisozi. He had to go with gendarmes, but the exact number of gendarmes was not mentioned…”[141]

And,

Q. Now you say you saw a telegram sometime around mid-April stating that Jabo was to be sent to the front with 50, 60 men, correct; to assist in fighting against the RPF?”

A. “Yes.”[142]

At no time was KJ questioned as to whether this transfer had anything to do with Major Jabo’s efforts to try to protect refugees, and at no time did this witness make any connection with Major Jabo’s refusal to kill Tutsi and his mission on the frontlines. The Prosecutor completely failed to establish a connection and only succeeded in proving the defence position that he went to the frontlines, not to get him out of the way in Kibuye or as punishment, but because he wanted to be with his men on the front facing the enemy. Therefore, this is another allegation that has not been substantiated and cannot be used as an element in the construction of a conspiracy. Prosecution witness DCJ, a soldier in the 64^th Battalion in Kigali in April 1994, clearly said that the accusation that the transfer of the commanders of Kibuye and Butare was to sanction them because they were not participating in the massacres is absurd. In defending the circumstances of his own transfer, DCJ stated:

You say this transfer was prompted by disciplinary reasons. I do not see it that way. If you transfer somebody for disciplinary reasons and you send someone to the front, I see that is normal. If that had been the case, you should actually put that person aside because if this person is indisciplined, you should not send him to the front because he may discourage the other soldiers. So I feel that this transfer was not for disciplinary reasons. We were sent. We had to reinforce the soldiers at the front and in my opinion it was not for disciplinary reasons.[143]

But let’s leave the last words to the Prosecutor:

I think this discussion is going on and for no reason. A soldier is called to serve in any unit. He has no specific rights to serve in the music company or any other. Show me where it says in the military regulations that a soldier should be assigned to a certain place for life for reasons or exigencies of service, someone may be assigned somewhere else or he could be punished. It’s normal.[144]

Can we imagine that a commander in chief would put in front of the enemy someone who he considers an accomplice? It makes no sense. Moreover, we know that Major Jabo returned to Kibuye because the general asked him to do so.

N. General Ndindiliyimana did not issue “many laissez-passer” to Interahamwe.

KJ is also the only witness called to try to substantiate the allegation in paragraph 52 that General Ndindiliyimana issued “many laissez-passer to Interahamwe leaders…” No other witness was called on this issue. KJ claims that he saw two telegrams arrive at the camp the first containing an order for all units to cooperate with the army and civilians in fighting the enemy, the second was a request to the army chief of staff to help civilians and provide them with material they needed. There are several problems for the Prosecutor with this tale.

First, it is highly doubtful that an ordinary gendarme without any senior rank could see telegrams to the unit commander containing orders. Nor could the witness give a plausible story as to how he learned this. He said says they were posted on the bulletin board but that is not a serious claim. To do so would be a serious breach of security.

Secondly, the first telegram is innocuous as it has a completely neutral meaning. There was an enemy to fight, the RPF, and the army and civilians were engaged in fighting that enemy. The second telegram is an impossibility. The Chamber has heard an abundance of evidence on the structure of the Rwandan Armed Forces and even the Prosecutor admits that the army and gendarmerie had completely separate general staffs, command chain and separate functions in normal times. The chief of staff of the gendarmerie could not make demands directly to the army chief of staff. He could only do so through the agency of the ministry of defence. Further, the witness stated that the request was to the army chief of staff concerning his camps; he does not talk about a similar request to the gendarme camps. The story just does not make any sense.

KJ’s story about Interahamwe coming to the camp with laisser-passer is completely implausible. First, even if such documents had existed, they would have been signed by the G4 officer in charge of logistics, Major Nsanzumfura, who is in the employ of the Prosecutor’s office. He could easily have been called to corroborate this story. But the Prosecutor chose not to call him, and, therefore, an adverse inference can be drawn that he would not confirm KJ’s testimony. General Ndindiliyimana rejected this story completely:

It is an unfair and baseless accusation which, of course, I do dismiss. …I never supported anybody who went to kill members of the population, whom I was supposed to protect , population or members of the population, who included members of my own family, members of the population who, to my mind, did not deserve the fate that befell them. Well the Prosecutor should look for the true guilty person and not me-or, not I.[145]

This was confirmed by Defence witness CBP7 who, when asked if the chief of staff could issue orders to camp commanders to allow civilians to enter and get supplies, stated:

I think that would have been impossible. How can a responsible chief of staff venture into such a thing? Can he just walk in and meander aimlessly? I think that was impossible.

As far as I am concerned, that was impossible because, in any case, when you talk about weapons-well, weapons are not just on the streets. They are stored somewhere. So the process of getting the weapons concerns more than one person. What-weapons and ammunition were studied (sic –stored) at the general staff. So a chief of staff cannot distribute weapons, and particularly not to people who are not with the forces under him. And, in this case, we are talking about the gendarmerie. He cannot do such a thing without passing through the decisional procedure as known by the general staff, as I explained earlier on. That—what you have said appears, to me, to be something impossible.

And,

Counsel, I will have to state, energetically, that we had nothing at all to do with theInterahamwe, that is, MRND youth wing, or any youth wing of any-of any party, for the simple reason that the national gendarmerie had nothing to do with those people. How could we give them weapons, whereas we did not have enough weapons ourselves? I mean, that wouldn’t be logical. I cannot say such a thing. We never had those kind of weapons regarding the weapons outside the forces, be it with Interahamwes or anyone else. I am categoric when it comes to that.[146]

KJ also gave a convoluted story about a trip to Kigali with Major Jabo to get supplies and stated that when they went to see General Ndindiliyimana, he told them he no longer had authority to give authorization and now they had to come from the ministry of defence, so they went there to get one for their supplies. Therefore, if the witness was telling the truth, it was impossible for the chief of staff to have signed authorizations for Interahamwe leaders to get supplies from the camps when he could not even give such an authorization to his own men. The witness also makes a mistake about seeing the Interahamwe leader Kajuga at the camp, as the testimony of OO6 was that Kajuga was ill at that time and not mobile. Further, it is highly implausible that he would have seen Kajuga come to the camp for supplies to kill Tutsi when the evidence is that Kajuga was also a Tutsi.

There are many problems with the credibility of KJ that would take several pages to set out properly. We refer the judges to the transcripts and the very implausibility of the stories about the events in that camp. His status as another Hutu prisoner who was held without charges from 1995 until 2002 casts severe doubt on his credibility: he is willing to say anything to save his own neck. Further, he told a journalist in a magazine interview that he was a nurse, whereas he told the court he was a farmer. He denies that he knew Brigitte Reynaud was a judge when he was introduced to the French investigating magistrate. This is, we submit, impossible. The judge would surely have identified herself, and the purpose of her interview, as she was required to do. He also tried to deny that he knew that he was interviewed by a journalist working for a magazine, though he was quite willing to sit for a photograph which appeared in that magazine. He gave contradictory stories about how many times he had been arrested, how many prisons he had been in, who exactly his wife was, and the number of children he has. He told this court that he had been arrested as a suspected spy. He told the Military I chamber that he was arrested as a murderer. He claims to have been aware of a plot to kill Jabo, yet cannot explain why he did not warn him. He claims to have gone with Jabo to see General Ndindiliyimana at Kimihurura on a date when the general staff headquarters was no longer there as prosecution witness KF and the G1 officer confirm.[147] It is also doubtful that he could have gotten through to Camp Kacyiru on the 15th of April, as at that date the camp was surrounded by the RPF and under attack. There are many contradictions, inconsistencies and implausibility’s in KJ’s testimony; so many that it would be dangerous to rely on this uncorroborated testimony, especially in light of the fact that the prosecution could so easily have corroborated it by calling the G4 officer in their office to take the stand for an hour to confirm it. But they chose not to. General Ndindiliyimana has the right to the benefit of the adverse inference in this matter.

Defence witness CBP67, who was a gendarme posted to Kibuye in 1994, described in detail the number of personnel at the camp, the sub-detachments in various localities, camp routine, patrol routine, and the means and lack of communications equipment. The witness testified that he was the chief of post the night of April 6th/7th and the next few days until the 9^th April, not KJ, and saw everyone coming into the camp, as it was his job to control entry and exit to and from the camp. He testified that the witness KJ was not in the camp at that period but was in part of a platoon at Gishyita. He also stated that the only civilian to come to the camp on April 7^th was the prefét. He stated that no other civilians entered the camp between the 7^thand the 9^th of April. He testified that no civilians or Interahamwe entered the camp nor were any supplies given to such people and that it would have been impossible for civilians to have entered a military camp like that; further, they did not have enough supplies to give to such people.[148] The witness also said that it was impossible for telegrammed orders to be posted on the camp bulletin board, as it would have been a breach of security; orders are not handled in that manner. And, in any case he never saw the telegrams KJ referred to. In complete contradiction to KJ, he testified that the remaining gendarmes in the camp tried to protect refugees as best they could after Jabo and reinforced company left to fight in Kigali. These gendarmes tried to protect refugees as best they could. The witness named several sites where they did so, such as Home St. Jean and the stadium, and that they began patrols in the city as they heard that people were out looking for revenge for the death of the president. He described at length what he heard from other gendarmes describing attacks by large numbers of civilians in mobs who attacked refugees and overwhelmed the few gendarmes trying to protect them. He even mentioned that some gendarmes were killed in trying to fulfill their mission. The witness denied completely the stories about gendarmes being involved in any killings and stated: “Have I not given you examples of gendarmes who have actually lost their lives during these events? And why do you think they lost their lives? Well, because they were devoted to doing their duty and ensuring security….”[149] It is submitted that this witness was not shaken on cross-examination and gave his evidence in a sober and calm manner. CBP7 also testified that gendarmes were killed at Kibuye while trying to fulfil their mission of protecting civilians.

Allegations of a telegram authorizing civilians do not make sense if we know that even the prefect could not get them when he went to ask them. Witness Ndagijimana, referring to Prefect Kayishema, testified,

I remember that at one time he came, he entered the office and when he came out, I could see that his demeanour was particular. And after his departure the major came out and said, “Ndagijimana, really, things are not going well. He asked for weapons, grenades to go and attack in Bisesero. He told me, do you have those weapons? He said what weapons, what troops since you are alone here?”[150]

When the prefect could not get weapons and supplies, he sent a telegram to the minister of interior requiring the same supplies and formal order to the gendarmerie commander. The said telegram[151] reads:

“Following on my telegram of 9/6/94 addressed to minister of MININTER, copied to you for security in Bisesero secteur, Gishyita commune, the population is determined to scourge in the context of civil defence. I have the honour to ask you to give a formal order to the commander of Kibuye unit to ensure support for that operation. The duration of the operation is four days from 15/6/94 to 18/6/94. To undertaking this operation, we need ammunition: Grenades, at least 30″ ‑‑ “rifle grenades, at least 30; hand grenades, at least 50; magazines for R4 and for machine gun magazines.”[152]

If an authorisation to that effect had already been issued why was it necessary for thepréfet to send such a telegram? Further since the préfet contacted the Minister of the Interior to request a formal order to the local gendarmerie commander to cooperate it is clear that the local gendarme commander did not want to do so and the préfettried to bypass him. The Trial Chamber will also note that the prefet did not address the chief of staff of the gendarmerie on this matter. Instead he bypassed General Ndindiliyimana because he knew he would not get the cooperation he was seeking. This shows clearly that the provincial governors exerted more influence and power than did General Ndindiliyimana.
Defence witness Claudien Ndagijimana, referred to above, was a gendarme lieutenant posted to the Kibuye camp in early May. He confirmed that Major Jabo did return to the camp and that gendarmes never took part in killings against civilians. He testified in a consistent, sober, and cooperative manner and the prosecution counsel conducted a token cross-examination of this witness and he was not shaken in any respect.[153] Additionally, General Ndindiliyimana visited Kibuye in May and did not hear anything related to gendarmes killing civilians, but rather problems with the prefét and not distributing the gendarmes properly. He tried to resolve that problem.[154] General Ndindiliyimana said, “I never displaced Jabo for killings to be perpetrated, and I never supported any of the killings, never.”[155] It is submitted, therefore, that the Prosecutor has failed to substantiate this allegation and it cannot be used as an element of a conspiracy.

General Ndindiliyimana had notice of massacres and took all necessary and reasonable measures to uphold public order despite his limited resources.

Paragraph 53 of the indictment alleges, in part, that General Ndindiliyimana received daily situation reports from his troops, notably during meetings held at the Gendarmerie headquarters at Kacyiru camp. Once again, the Prosecutor failed to offer any proof whatsoever of this assertion. The Prosecutor seems to be under the impression that to make an accusation is enough and that evidence to support an accusation is not required. It also shows that when the Prosecutor drafted the indictment, he had no evidence at all to support the unfounded accusations he has made, and that, therefore, the indictment was not drawn up against General Ndindiliyimana because of juridical reasons but for political reasons.

Paragraph 53 also shows that the Prosecutor did not even bother to check the facts before drafting the indictment, conducted no investigation, and instead, invented things out of whole cloth. Let us start with the assertion that General Ndindiliyimana received daily situation reports. The Prosecutor failed to produce one written situation report in the entire trial. He failed to produce one witness to state that General Ndindiliyimana received them. He failed to produce evidence as to what the contents of any such reports were. The Prosecutor also blundered when he asserted that such reports were provided to the General at meetings held at Camp Kacyiru because the headquarters of the Gendarmerie was not there, but at Kimihurura until that headquarters suffered damage from RPF shelling at other locations. The only witness that the Prosecutor produced to state that the General was ever in Kacyiru camp was witness KF who testified that she only came there once for a short visit and could not state what she was told by the officers she spoke to on that visit.

The Prosecutor also failed to produce a single witness who could state that reports of massacres were received at daily briefings. This is an incomprehensible failure inasmuch as the Prosecutor had available to him the G4 officer of the gendarmerie in that epoch who would have attended such briefings and could relate the contents of those briefings to the court; that officer is Major Nsanzumfura, who works in the office of the Prosecutor. He could easily have been called to substantiate this allegation. But he was not called to take the stand. Once again, the adverse inference must be drawn that he would not substantiate these allegations and that is the reason the Prosecutor failed to call him. No other conclusion is possible.

Let us examine what little evidence they did produce, that of KF. She stated that she did not see General Ndindiliyimana at the camp except on one occasion, the 20^th of April, and that he came for a meeting. But she has no idea what was discussed in the meeting or why he was there. She stated that “[o]n the 20^th of April he came to chair a meeting at Kacyiru camp and I was at the camp, but I did not attend that meeting. I saw him go by in the company of other officers.”[156] However, this was in contradiction to her first statement to the Prosecutor when she said that “I last saw him in April-in the month of April before the war. But during the war, he came to Camp Kacyiru to chair a meeting, but I didn’t see him because I wasn’t invited to that meeting.”[157]

This witness could not possibly know the reason for such a meeting or whether the general chaired it or not. She was a low ranking gendarme and could not have been informed and she offered no explanation for her assertion.

Colonel Nzapfakumunzi did confirm that General Ndindiliyimana paid a visit to the camp very briefly to boost the morale of the men, but that there was no meeting, as such, because the camp was under constant bombardment at that time, (20^th April) and it was impossible to hold a meeting there. He also confirmed that the Gendarmerie general staff headquarters had moved from Kimihurura to the Public Works Department and that he went to a couple of meetings there with the general in attendance or, in his absence, the G3 officer, Rwarakabije.

General Ndindiliyimana testified that he did receive information and described it as follows:

Yes, we had some information. Our resource-resources-communication resources, particularly telephone communications had diminished, but we still had communication with groups and the general staff. We encountered some difficulties before setting up our equipment at new areas because the general staff had moved. Later we were able to re-establish communication.

In the first days, the main concern or the main focus was on the events in which we were living through in the city of all-in the country, there were problems of which we were unaware. However, our action –our attention was initially focused on what we were seeing. However, we did not neglect the information we received from elsewhere. The only problem is that sometimes we received contradictory information. Sometimes we could hear something on the radio which soldiers could hear, and then they would have messages from group commands sent to us, and even commanders of the group sometimes, today, could send you a message saying that they were at such and such a place, and things were ok, and that they went with the prefét and things were ok. But later, the same person contacts you and tells you things are not fine. All the situations could be different in that today you could be told things are not good, but then later they can tell you things are good. In other words, the situation has improved. So we received information which was not always reliable. Let’s say we were not always sure about what was happening, but we did receive information.[158]

General Ndindiliyimana also testified, contrary to the assertion by the Prosecutor that he did react to that information. He explained,

Well, at that time, it was not up to the chief of staff to work in Kigali and to ensure the liaison, the link between the high command and the government. What we were to know first, is what was happening on the ground. So what we did was we organized a small team which moved around units. By doing so, we thought that the-that by doing so, before-in order to achieve joint patrols with RPF,[with respect to FAR request for a ceasefire in which proposed joint patrols with the RPF] we need first investigations into the massacres, into the killings, and to all acts of violence, criminal acts and so forth. The general staff had to know what was happening first because-so that one day people guilty of those misdeeds could be prosecuted. So we set up a group which moved about, visiting units to see what was happening and then report to the general staff and that, therefore, this time we had people who visited field units, and the chief of staff would also visit troops on the ground and make his own assessment.[159]

CBP7 stated that they never received any complaints from any civil authority, of gendarmes under their control committing crimes against civilians;[160] that the general staff did not receive any reports of crimes committed by gendarmes from gendarme commanders in the field; and that the general staff did not receive negative reports from army commanders, except one case in which a gendarme shot at a civilian in Kigali and was placed under arrest, sent to prison in Gitarama, and had a case file opened.[161] There was also a situation where a complaint from thesous- prefét of Butare regarding a junior officer who had incited youth to mistreat the civilian population, but there was no mention of killings. Major Cyiza was dispatched to look into that situation, an investigation began, and in the meantime the officer was transferred to Camp Kacyiru from Butare. That is about the only case the witness could remember of a complaint from an administrative authority. He said, “I don’t have any other case in mind.”[162]

General Ndindiliyimana, for example, stated that on the 15^th April he met with Habyarabatuma, the unit commander in Butare, who informed the general that the gendarmes were trying to intervene, but that it was difficult as they did not have enough resources.[163] General Ndindiliyimana maintained contact with General Dallaire and asked for his assistance to defend the Hôtel Mille Collines from attack and he stated, “[s]till under relations with UNAMIR and General Dallaire I can say we had a number of meetings to try to find a solution to the issue of the members of the population who were dying like flies because we desired to find a way to peace….”[164] He went on to describe how he found several Tutsi friends, government ministers, who were at the hotel and that he even intervened to stop a search by other officers who believed that certain people in the hotel were guiding the fire of the RPF by Motorola radio sets.[165]

It must also not be forgotten what General Ndindiliyimana did on the night of the 6^th/7^th April set out above: he agreed to conduct joint patrols with UNAMIR to maintain security; begged Ambassador Swinnen to leave his forces in Rwanda; and tried to adjust to the fact that the greater part of his gendarmes were taken under army command so that in Kigali he had left only a rump force of one hundred men or less and in the country as a whole 200 men or less.[166] Further, all the gendarme camps in Kigali were under attack: first the Remera detachment was overrun and destroyed, then the Kacyiru camp, Jali camp, and the headquarters were all under attack. Even though under army command, the RPF attacks forced those units into a situation whereby they immediately had to defend their positions and could not take part in offensive operations. General Ndindiliyimana stated:

Contrary to what has often been said before this Trial Chamber, namely that was fighting, all sorts of incidents on the 7^th and 8^th, and even as far back as the night of the 6^th, references were made to fighting and what have you. Well, on the 7^th, let me say that the gendarmes were still able to carry out patrols in communes where there was no fighting yet going on. During these patrols, reports were provided as to groups attempting to bother other groups and the gendarmes were still able to intervene and even arrest some people. But as I have already told you, these people were held in detention for awhile and then subsequently released from the brigades.

Up to the 13^th, Hutus and Tutsi and persons within various neighbourhoods had set up roadblocks with a view to providing protection for their neighbourhoods. So up to the 12^th-or, up to the 12^th, we still felt that we had the situation somewhat under control. The gendarmes were working; in some areas they were insulted….So up to the 12^th the gendarmes who were available were still doing something, trying to identify those who were killed, and trying to see what could be done. So, the gendarmes continued to work from the 8^th and the 9^th to the 10^th, when things were still more or less reasonably well. But from the 10^th on, things became somewhat complicated. What I am saying is that the gendarmes did what they could at the time.[167]

The consequences of the RPF attack on the refugee camp at Nyaconga must also be recognised. One million refugees were in that camp. The effect of the RPF bombardment of that camp was to drive the refugees to flee down the road to Gitarama while others flooded into the city. Given the intensive RPF bombardment of the city, the infiltration of RPF elements from all directions, the intensity of the combat in the city, it was no longer a matter of maintaining order but rather operations to try to save people and to try to group threatened people in the most secure places available. CBP62 explained this at length and the court heard testimony given in Military I by the two white priests who were helped by gendarmes. It must also be remembered that the gendarmerie suffered heavy losses when Jali group was attacked by the RPF between the 8^th and 10^th of April as testified to by prosecution witness DCJ. Both General Bizimungu and General Ndindiliyimana described the deployment of gendarme units at the front and at the frontier posts and the attacks that they suffered those early days of April.

General Ndindiliyimana also sought the help of General Dallaire with respect to controlling roadblocks in the context of the new UNAMIR force which was expected to be 5,500 men, a fact confirmed by General Dallaire in his testimony.[168] He described his support for the communiqué of April 12^th by certain senior army officers to the RPF offering complete surrender so that the killings could be stopped. But inexplicably the RPF refused that offer of surrender even though it was unconditional. Both General Dallaire and Dr. Des Forges for the Prosecutor confirmed that the general was a party to that initiative. General Ndindiliyimana hoped to conduct joint operations with the RPF to apprehend criminals along with UNAMIR.[169] Finally he stated, in response to a question by counsel as to whether law and order could have been restored without the implementation of the things set out above:

Not at all. We needed means and this time around we were going to have not only the resources of the Rwandan armed forces, but also of UNAMIR and the RPF. So, together, with all those assets and resources, I thought we could have succeeded. Maybe even if not perfectly, but we would have succeeded in saving lives.[170]

General Ndindiliyimana took other initiatives with the resources left to him. One of these was to address the nation in a radio interview calling for peace and calm and for people to stop killing each other.[171] On the 22^nd of April, he went to see the Prime Minister and the Minister of Defence about the deteriorating situation.

General Ndindiliyimana also provided gendarmes to protect refugees at several sites including André, CELA, St. Paul and other locations in Kigali as confirmed by defence witness CBP7. After naming many sites where gendarmes tried to protect people, he stated,

If we could have done better we would have. But we had to sprinkle, so to speak, the men over different locations. – I believe this is the most appropriate term- and this is because we did not have enough men available. Do you imagine if you were to protect 15,000 people with only a section or even less men, it would be done just in order to show one’s presence and to get intelligence but it would not be possible to truly protect these people. So there was a blatant shortage of staff. But I believe whatever was done was still useful.[172]

General Ndindiliyimana also protected Tutsi at his own home, including Tutsi women, clergy and 20-30 orphans.[173] Further, in Nyarushishi in Cyangugu, gendarmes protected 10,000 Tutsi who were saved.[174] The Trial Chamber also heard about gendarmes being assigned to guard refugees at several other centres and hotels as testified to by CBP105.[175] Antoine Nyetera testified that he saw approximately 20,000 Tutsis in the stadium at Nyamirambo after the fall of Kigali.

General Ndindiliyimana also referred to the crippling of the communication systems through the fall of the communication centre at Mt. Jali, destroyed by the RPF, the breakdown of the telephone system, and stated that they only had handheld radios used by soldiers so that communications with units in the field were disrupted. He also testified that the small numbers of gendarmes available to protect refugees were often overwhelmed by the numbers of attackers as well as by the wave of refugees flooding into the city from the Nyaconga refugee camps that were being attacked by the RPF.[176] Defence witness CINS testified that one day he came across General Ndindiliyimana trying to assist others in helping these refugees through a bottleneck.

General Ndindiliyimana’s testimony is corroborated by the testimony of Colonel Marchal who testified

I’d say that what was true as far as we were concerned was true as far as the gendarmerie was concerned. The gendarmerie was not numerous enough to face a normal situation, which was the situation before the crash. The gendarmerie was in the same situation as we were. You must realize that after the crash, very quickly part of the gendarmeries means were frozen-well, frozen-I’d say nailed to their camps because of the RPF action which prevented the gendarmes from exiting their barracks and billets and camps, and obliged them to defend those places which also mad it difficult to se them for any other purpose. And so in answer to your question, yes, I feel that the gendarmerie also knew the same lack of means and of troops as UNAMIR.[177]

And,

In the context of the moment in time of open hostilities and resumption of the war, the Rwandans, with the exception of very few gendarme units, most gendarmerie units went under military command for reasons of coordination and optimal use of the means available. So, in concrete terms, that means that the chief of general staff of the gendarmerie was in a fraction of a moment-in the blink of an eye, was stripped of his means of command. And because of operational procedures, all his commanding officers passed under the orders of a different structure and, therefore, did react de facto. He has no further orders to give his men who are now under another command. That was the situation at the time of the resumption of hostilities.[178]

It is also corroborated by Colonel Vincent who stated, “So any gendarmerie unit within that sector falls under the operational command of the operational commander of that sector.”[179] General Dallaire, for the prosecution, testified:

Q. “I’ve heard it said from a couple of informants, witnesses, that he had, -he had said, around the 8^th and the 9^th, to certain people, perhaps you yourself, that he, in fact, felt he had no real command. Did he ever say that to you?”

A. Yes, I recall him explaining to me-and we had a couple of meetings during that time frame, so I don’t remember exactly which he-that because the country was now reverting to a war footing again, that the command of the gendarmerie was reverting to the command of the army, …That’s how he explained the less-than-available presence of gendarmes…”[180]

And,

Well, by then anyway-yeah, he essentially didn’t have a command left, a the way I saw it at the time, and the way he had explained it to me, and certainly the Minister of Defence never negated that, is the fact that he was sort of like a floater. He did the crisis committee and then he bounced around and he was present and things like that…[181]

This was also confirmed by Defence witness CBP63 who testified about the loss of most units to army command and loss of personnel as well to enemy action.[182]

General Dallaire also confirms that General Ndindiliyimana supported the communiqué of the 12^th and that the reason he did not sign it was due to his presence in Butare saving Tutsi.[183] Des Forges also confirmed that the general was part of a group of officers who, on April 12^th , made a statement proposing a truce to pursue talks with the RPF to promptly restore order to the country and install the BBTG in order to avoid continued spilling of innocent blood—and that Bagosora condemned these officers as traitors;[184] that the general did explore the possibility of foreign support with Ambassador Swinnen;[185] that though he commanded thousands of national police, with the resumption of war some of that force was integrated into the regular army command;[186] that he went with Colonel Rusatira to see Kambanda and the Minister of Defence to try to convince officials of the interim government that the genocide was destroying the morale of the troops and discredited Rwanda and that the slaughter was a prelude to defeat;[187] that where gendarmes had been requisitioned by preféts or bourgmestres they came under the civilian command authority;[188] and that, though there were allegations of gendarmes committing crimes, it is also known that gendarmes protected people in other places;[189] and finally that “General Ndindiliyimana saved the lives of a number of people… I am sure that he did, in fact, save lives.”[190]

This statement is corroborated and amplified by defence witness CBL104, the general’s driver, who testified in answer to a question as to whether the general saved other Tutsi aside from a Tutsi major, that,

Yes, many of them. Many people had been saved under Ndindiliyimana’s orders. I think I told you of the story of the people who had been saved and sought refuge at Mille Collines. It was the gendarmerie who was protecting them. There were other people who would call him by telephone and he’d sent us to fetch them and take them to the Hotel Mille Collines. There were clergymen that I took to Kabgayi. There are others that I took to Bimana, and others whom I took to Kansi and Save were there, and whether priests or nuns, I would take them to their religious community. People who called upon him to be helped, would be taken to Mille Collines. Others even decided to go into the RPF zone and it was General Ndindiliyimana who handed them over to Dallaire to be taken to the RPF zone. So we saved many people and it is very difficult for me to specify the number, and it was under Ndindiliyimana’s orders. So it wasn’t only the major in question that we saved. He wasn’t the only one to be saved by Ndindiliyimana. Every time he saw people and the threat and danger, he asked us to save them. There was no plan on his part to exterminate people.[191]

The Prosecutor not only has failed to establish the factual circumstances necessary to establish a conspiracy, he has completely failed to establish that the actions of General Ndindiliyimana were part of a coordinated or concerted effort to commit genocide. All of his actions are consistent with only one scenario, that is, that he was doing all he could with the means at hand to maintain law and order. No specific intent has been established that he intended to take part in a concerted action to kill Tutsi. In fact the Prosecutor failed to lead any evidence at all on most of the alleged circumstances by which he claimed to build the elements of a conspiracy. More than that, the only real evidence he presented established the complete contrary. The effect of the combined testimony of the two principal prosecution witnesses, Dr. Des Forges and General Dallaire, not only raises a reasonable doubt on the conspiracy count but more, establishes the general’s complete innocence, that he could not be and was not part of any conspiracy to commit genocide. Both witnesses for the prosecution testified to actions taken by General Ndindiliyimana that can only be interpreted as the actions of a person who opposed any such conspiracy to kill Tutsi. For instance, Dr. Des Forges stated that in the early days of April General Ndindiliyimana made efforts to organize some form of opposition to Bagosora and in addition made efforts to save lives.[192] She was asked the following question regarding these efforts:

Q. “So the actions of Ndindiliyimana bespeak a man who was opposed-if you are right that the civil defence plan was used to kill Tutsi…if that was correct,…were consistent with a man who opposed such a plan.”

“For those days that appears to be correct, yes.”[193]

Counsel referred her to this quote from her book, Leave None to Tell the Story:

“With Gatsinzi at least normally [sic-nominally] in command of the armed forces, he, Rusatira and Ndindiliyimana sought to wrest control from Bagosora. When the crisis committee met on the evening of April 7^th, they refused to allow him to run the meeting. He insulted others, particularly Rusatira, and boycotted the rest of the meeting. The others made some plans for bringing the Presidential Guard under control and setting up the government based on Arusha Accords. You wrote those words?”

“That sounds familiar…”[194]

And with respect to the fact that he and Rusatira called the radio staff to tell them to tone things down as set out above, she was asked,

Q. “Well, I’m going to press you. Aren’t those actions consistent with someone who opposes any killings of Tutsi civilians and any plan to do so? Aren’t they consistent with a man who opposed that, those action in themselves?”

“Those actions in and of themselves do appear to be consistent with that yes.”

She also confirmed that Ndindiliyimana’s support of the April 12 communiqué offering an unconditional surrender were further evidence that General Ndindiliyimana’s position was consistent with a man who was opposed to what is termed the genocide. When asked whether the general’s actions were consistent with trying to stop the killing of Tutsi and did all he could to stop the killings, Des Forges responded that “[t]hese actions we have been discussing are actions that would certainly be interpreted in that sense.”[195]

Regarding Gatsinzi’s letter stating that Ndindiliyimana was in favour of the April 12^th telegram and was saving people in the south she stated, “If you recall yesterday I said that the actions which I knew about concerning General Ndindiliyimana for the very brief period when I knew of his actions which was mostly in early April…seem to me a period when he was not in favour of genocide.”[196]

And, finally, in discussing the letter from Karemera to the general regarding the fact he had an escort composed of Tutsi and that his personal secretary was a Tutsi, she stated, “I would regard that letter as a threat, a very threatening letter to General Ndindiliyimana saying, ‘You need to get on board with the programme…’”[197]CBL104 also confirmed the threats against the general. He testified,

And now in answering your question, since the enemy was shooting from all sides and in view of the people whom we had prevented from killing local people, they began taking us for enemy collaborators, and they wanted to get us. So we were threatened in various ways. On the one hand there was the enemy shooting from all sides, and, on the other side, those who took us for accomplices of the enemy and wanted to kill us.[198]

Therefore, it is clear that the Prosecutor himself raised more than a reasonable doubt on the conspiracy charge through his witnesses Dr. Des Forges and General Dallaire, whose testimony is that not only were all his actions inconsistent with a conspiracy to commit genocide, they were consistent with a man who completely opposed any such plan. Further, the totality of the evidence from all the witnesses heard in the trial, in particular the testimonies of Colonel Marchal, Colonel Vincent, Ambassador Swinnen, as well as gendarme officers and personnel who testified, all confirm that General Ndindiliyimana was opposed to such a plan and did all he could with the means available to save lives. We also draw your attention to the efforts he made to reorganize the Gendarmerie when he took command and, in particular, his complete cooperation with UNAMIR and his efforts to improve the training and equipment of the Gendarmerie. Inspector-General of the Tanzanian National Police, Harun Mahundi, and a former vice-president of Interpol, stated,

We discussed a number of issues, but mostly, to me, he had shown interest to see how we train our police forces. He was more interested in the unit which deals with crowd control, or riot control. How do we approach a riot control or crowd control generally? And in the country we have a specialized unit to deal with crowd control or riot, and the unit is called the field force unit. It is a paramilitary in terms of that training, nature of training. But they hadn’t trained how to deal with crowd or riot without-and dispersing the crowd without causing serious harm to those who participated, either in the crowd or in rioting.[199]

He went on to describe the facilities and training General Ndindiliyimana observed in Tanzania in 1993 and he stated that General Ndindiliyimana told him that,

[T]here was a discussion going on in Arusha between the former regime of Rwanda and those who are now in power…And these negotiations which was going on, during our discussion he was saying the nature of the situation going on, most likely the political leaders, if-are likely to come into agreement and maybe they will-in the compromise, they would like to integrate our forces, their current forces and those who are-in the forces which are occupying the northern part…..So we would like-maybe it is better if we can get training in your country so that if it comes that our forces are integrated, we shall be able to integrate very easily and understand each other. …[200]

And,

But he thought it was ideal to have-to prepare, maybe in the near future there may be groups coming up, causing a riot, or trying to support this way or the other way. In order to separate them peacefully, that was more concern, he was more concerned with the crime and tranquillity generally….[201]

And,

[A]ctually, his point of view, he was expecting the two sides, political leaders of the two sides, having agreed to come to a table and to negotiate their conflict and finding a solution into their conflict. He was very much hopeful that that negotiation there would definitely is likely to end up successfully. …[202]

It is therefore submitted that on all the evidence the Prosecutor has failed completely to establish beyond a reasonable doubt that General Ndindiliyimana was part of a conspiracy as alleged in the indictment to kill Tutsi. It is also submitted that it must be a cause of concern to the judges in this case and to any observer of this trial that General Ndindiliyimana was even charged when the Prosecutor had in his hands, long before the indictment was drawn up, all the facts necessary to make a determination that he was not part of any such conspiracy, and, therefore, the prosecution against General Ndindiliyimana was malicious.

I. Genocide

A. Introduction

The Prosecutor in paragraph 61 alleges that General Ndindiliyimana was responsible for the killing of or causing serious bodily or mental harm to members of the Tutsi population with intent to destroy that racial group as such.

It is clear from the submissions made with respect to Count 1 that no such intent existed on the part of General Ndindiliyimana. However, the Prosecutor refers to specific factual allegations set out in paragraphs 71 through 77 to advance his case. We will address these specific allegations seriatim. However, we must first address the general allegation in the first part of paragraph 61 that General Ndindiliyimana was responsible for killings and assaults by gendarmes under Article 6(3) of the Statute. To establish this, the Prosecutor must first establish superior or command responsibility.

The law with respect to command responsibility is clear. The formal title of an accused is insufficient to establish control absent actual and effective authority. It is not dispute that General Ndindiliyimana was the Chief of Staff of the Gendarmerie in 1994. However, the Prosecutor failed to establish that he had effective command and control of the gendarmerie after the 6^th of April, 1994. Not one expert witness was called to establish that he had such control.[203]

It is submitted that General Ndindiliyimana, upon the resumption of hostilities the night of the 6^th/7^th of April, was deprived of almost the entirety of his command in Rwanda. The Prosecutor himself established this with his witness General Dallaire as set out above in our submission on the Conspiracy count. It was also confirmed by prosecution witness UB who testified that

Renzaho had the means to prevent or stop the massacres of the Tutsi in Kigali because he had a 200 strong armed prefectural police force and had the gendarmerie commander and the gendarmes under his orders…he had real decision making power. However, he did not intervene. [204]

The prosecution asserted several times during the trial that General Ndindiliyimana did not do enough or could have done more or done things differently. However, the Prosecutor did not call one expert witness to tell the Trial Chamber exactly what else he could have done with the resources he had available to him, or how he could have used those resources more effectively. But more importantly it is clear under international law that mistakes or bad judgement do not result in criminal liability. The prosecution must prove that not only could he have done things differently, but further that his decisions and choices were motivated by a specific intent to harm civilians. The Prosecutor did not call one witness to establish this. Instead, reversing the presumption of innocence, the Prosecutor appears to be under the impression, once again, that to make an accusation without proof is sufficient. Thus, we see that the state of international criminal law has sunk to a low not known before in history. From the days of Hammurabi the accuser has had to prove the accusation. The Prosecutor wants to establish a system of un-law, a system in which people are incarcerated based on simple assertions. The defence submits that this refusal by the Prosecutor to offer proof of the accusations he has made, demonstrate conclusively that there is no such proof. The question must then be asked, since there is no proof of these allegations, and since the Prosecutor knew that when he drafted the indictment, why was General Ndindiliyimana indicted and arrested and kept in prison for 9 years? As the Trial Chamber is aware, General Ndindiliyimana, along with other prisoners at the UNDF, has declared their status as political prisoners. General Ndindiliyimana is certain that the Trial Chamber has seen through the veil of fabrications and false assertions made by the Prosecutor and understands why it was necessary for him to claim his status as a political prisoner. We will now present a timeline of General Ndindiliyimana’s actions and movements from April 6 on until June 5, 1994, highlighting what he knew at what point in time, and how he reacted to the information he received. The Trial Chamber, we submit, will see that, contrary to the assertion of the Prosecutor, he acted appropriately in the circumstances and instead of being condemned he should be saluted.

B. Timeline of General Ndindiliyimana’s Actions and Reactions

Upon learning that the presidential plane had been shot down, the general invited UNAMIR to attend the officers’ meeting the night of the 6^th in the persons of General Dallaire and Colonel Marchal.[205] This reaction is characteristic of General Ndindiliyimana’s behaviour throughout the events. This is demonstrative of the general’s first significant character trait: he knew that it was important that all decisions taken should be transparent and with the assistance of the international community. He knew, upon learning of the death of the president, that only the presence of the international community in Rwanda could avoid war.[206]

At that meeting, he suggested that Colonel Rusatira be appointed chief of staff of the army because that officer was in contact with the RPF and the United States, which the general hoped would facilitate peace negotiations.[207] He did not know at that time that, in fact, Colonel Rusatira was playing a double game, and, according to Ambassador Swinnen, had gone to see the Ambassador that night to tell him that his life was in danger and he should not move around. This effectively prevented the Ambassador from going to the American ambassador’s residence the next morning for the planned meeting of ambassadors, government officials, officers and UNAMIR in order to try to find a peaceful resolution. It is clear that Colonel Rusatira took this action in the service of those who wanted to create chaos after the death of the president. He effectively blocked the last chance to involve the international community to re-establish peace. It is necessary to also remember that Mr. Booh-Booh complained that General Dallaire acted in the same line by refusing to provide Mr. Booh-Booh with an escort so that he could attend the meeting at the US ambassador’s residence. The general was unaware of Rusatira’s double game, as he introduces Rusatira because he knew

[T]hat he was in contact with Kanyarengwe, in other words, with the RPF. I knew that Rusatira was also in contact with…Americans. But in view of the fact that he was in contact with the Inkotanyi, some people…did not want him for that reason.[208]

The second major value underpinning the actions of General Ndindiliyimana was his belief in communication with the RPF. The general’s behaviour is consistent with his conviction that without negotiating with the RPF, there could be no solution. At this moment, it is Rusatira who appears to the General to be a man who, because of his relationship with the RPF, can facilitate such negotiations. The general, in recommending Rusatira, risked severing his relationships with certain officers to reach his goal of opening communication with the RPF.

At the officers’ meeting the night of the 6^th, the general supported the formation of a crisis committee in order to bring together the army, gendarmerie, UNAMIR, and the RPF to control the security situation.[209] It was General Ndindiliyimana who was promoting a legal solution using the rules provided for in the Arusha Accords and fought against every temptation of taking power for himself. He said:

And things had to be clear—were to be clear, what did we have to do; did we have to take power; or should we have pursued the implementation of the Arusha Peace Accords.

I remember that we did not argue about the choice. I just thought, and this is something I said, that there are four partners. “We are four partners now.”[210]

It was at that moment that the possibility of a coup d’état was taken off the table, and that it was necessary to compose a delegation to go to the legal representative of the United Nations, Mr. Booh-Booh. This marks the third important character trait of the General that guided his behaviour throughout the events: in every aspect and situation, the law and legal procedures must be used to obtain a solution.

At this meeting General Ndindiliyimana urged that joint patrols of the Gendarmerie and UNAMIR be commenced immediately and General Dallaire agreed that it was a good idea and instructed Colonel Marchal to work with General Ndindiliyimana to work out the details, which they did. General Ndindiliyimana also met with his general staff around midnight in order to implement those patrols.[211] Gendarmes brought Mr. Nkubito to Ambassador Swinnen’s residence for his safety.[212] The defence plan, agreed to by UNAMIR before the events took place, was put into effect; that is, defence of the camps and joint patrols actually started. The duty officer at the Gendarme headquarters was Lt. Colonel Rwarakabije. Later that night, after some patrols had commenced, General Dallaire cancels them unilaterally.

April 7, 1994

General Ndindiliyimana, Colonel Bagosora and Colonel Rwabalinda attend at the American ambassador’s residence for the planned meeting at 9:00am. Inexplicably, no one else shows up including General Dallaire who has never explained his failure to attend.

Then General Ndindiliyimana attends the meeting of officers of the FAR at the ESM which is also attended by General Dallaire, who arrives late, offers no reasons for his absence at the American ambassador’s residence, or why he was late for the meeting at the ESM. His movements and actions during those early hours of the 7^th remain unclear. At the meeting General Ndindiliyimana spoke to

[R]emind the commanding officers of groups that they had to cooperate with the administrative authorities so as to ensure the management of the security situation, each commanding officer in his area of competence. I emphasized issues of discipline. I said so in a general manner because those who were in attendance, whether they be soldiers or gendarmes, all of them had to conduct themselves in accordance with the disciplinary rules.[213]

At this meeting, a “crisis committee” was set up to deal with the security emergency. No permanent chairman was appointed at this time, as it was accepted by those at the meeting that the chairman of the ESM meeting, Colonel Bagosora, would chair the committee.[214] The crisis committee was never a political body and it never assumed any political power. It was set up to ensure security for the political system to be able to function properly.[215]

On his return journey the general staff headquarters, he heard sustained gunfire coming from the direction of Kimihurura where the Gendarmerie HQ was located. He changed direction and went to his residence in Kigali to make a phone call to his HQ to find out what was happening. He was told that the firing was near the HQ and the Presidential Guard camp and in the Kimihurura district. He tried to contact the commander of the VIP security company to find out what the situation was. He received only vague information.[216]

I, therefore, tried to contact all those to whom the gendarmes were assigned in various neighbourhoods of the city. And it was the commander of the criminal investigation centre whom I was able to contact. And he was rather quite frightened, and he said that people had been killed all over, and that people from the south were being chased here and there. He was rather alarmed and that information was bothersome, but in my mind it was not specific enough.[217]

At the time, the only conclusion he came to was that the Presidential Guard was responsible for the unrest.[218]

Based on his conclusion, he sought out General Dallaire and Colonel Bagosora because he thought they could help control the situation. He sought out the assistance of Bagosora, as he thought that, as deputy to the Minister of Defence, he was the “person who could intervene,” and further, he might have more influence because he was from the north.[219] During the meeting at the Ministry of Defence, and discussions with General Dallaire and Colonel Bagosora, the phone rang with news that the RPF had attacked. He heard Bagosora order the PG battalion to return to barracks. Bagosora then engaged the Reconnaissance battalion.[220]

At about 5:00pm, Ndindiliyimana went to the army general staff HQ to ask for assistance regarding the RPF attack. There, for the first time, he learned that the RPF had attacked and destroyed the Gendarme base at Remera. He assumed that Camp Kacyiru would be the next camp to be attacked, as it was the main logistical base for the entire gendarmerie, and its capture would be the prelude to the fall of the city. In fact the prosecution witness KF stated that the camp was the prime objective of the RPF.

At 6:00 pm, he again met with General Dallaire at the ESM. He asked Dallaire to assist so that the hostilities would not escalate. Dallaire agreed to contact the RPF and urge them to withdraw to the CND. [221] At the end of the meeting, Dallaire asked about the men he was missing. He called Colonel Murasampongo who informed him that the UN soldiers were Belgians, but did not tell him what had happened. Dallaire, Ndindiliyimana and other officers went to the mortuary at Kigali Central Hospital where they found the bodies of eleven men. General Ndindiliyimana arranged for the care of the bodies and gave General Dallaire his escort so that he could return to his base safely. In fact, during that return trip, General Dallaire stated he was fired at by unknown persons. The gendarmes escorting him, fired back in the dark, in the direction from which the shots had come. General Ndindiliyimana returned to l’Hôtel Diplomat where he spent the night. He told Col. Murasampongo, “‘[e]verything is over. Everything is over…with the Belgians. I can’t see how we can get out of the situation. I can’t see the way out.’”[222]

With respect to the protection of the Prime Minister, politicians and dignitaries, General Ndindiliyimana was never alerted that they were in danger, as he presumed UNAMIR units protected them. He testified,

Already on the night of the 6^th to the 7^th the deployment of forces, reconnaissance patrols, and intelligence patrols, were put into effect. Those dignitaries were being protected. I have to tell you that. I never honestly thought that the Prime Minister and all those dignitaries who were being guarded by the United Nations forces would be bothered or have problems. ..As far as I am concerned, those people were very, that person [referring to Agathe] was very well protected. I trusted UNAMIR because they were experienced people and they had the necessary resources.[223]

Gendarmes continued to carry out patrols in communes where there was no fighting. Reports came in “as to groups attempting to bother other groups and the gendarmes were still able to intervene and arrest some people.”[224] These measures were taken after contacting the Prosecutor in Kigali and consulting with Mr. Nsanzuwera. However, the Prosecutor did not cooperate; no charges were laid by him, and detainees had to be released.[225]

General Ndindiliyimana was so concerned about the death of the Belgian soldiers and the possible negative reaction by Belgium, that he telephoned Ambassador Swinnen to plead with him not evacuate their forces and people. “I told him about the suffering of the Rwandan people and the even greater suffering to come, saying to him that if they were to leave the Rwandan people in such a catastrophe, they will indeed be isolating them and abandoning them.”[226] Ambassador Swinnen confirmed this testimony and gave his account of the telephone call at length.[227]He said that it “was a very emotional conversation and I think that at that time I could not have thought that he was just pretending or acting. I think that he was acting lucidly and seriously.”[228] The lucidity and willingness of the General in trying everything possible to keep the international community present in Rwanda was remarkable.

April 8, 1994

The morning of April 8, General Ndindiliyimana attended a meeting of the crisis committee to evaluate the security situation. The meeting was marred by a conflict between Colonels Bagosora and Rusatira over who should preside over the meeting, so General Ndindiliyimana stepped in and chaired the meeting. It was agreed that the military would support the Arusha Accords and support the political process. The general presided over the meeting of the crisis committee, not to take power as the Prosecutor alleges, but, on the contrary, to keep going in the direction of the Arusha Accords. Dr. Des Forges is clear about the behaviour of General Ndindiliyimana during the first days of April, after the death of President Habyarimana: “he was not in favour of the genocide.”[229]

General Ndindiliyimana held a meeting at his HQ at which he asked his staff to check on the situation of those who had been killed. He told his aids to find coffins, identify bodies and try to investigate the circumstances of their deaths and who was responsible.[230]

He met again with General Dallaire that morning at 11am. Dallaire reported that the RPF refused to receive UN representatives.

General Ndindiliyimana then went to Gendarmerie HQ because it had been shelled. There he had to deal with the commander of the security company, Colonel Bavagumenshi, because he had refused to carry out an order to find out what the situation was with VIPs protected by his unit. He had refused on the ground that a grenade had been thrown at him and the mission was too dangerous. General assigned the mission to Rwarakabije instead. He was also ordered to check out reports of shelling on Camp Kacyiru. The general then went to the Ministry of Defence between 1 and 2pm.[231]

At the Ministry of Defence he saw MRND members who were in the process of finding a political solution on the advice of Mr. Booh-Booh to have the Speaker of the National Assembly become President of Rwanda. General Ndindiliyimana did not challenge this decision, as it appeared valid on its face, it was not his place to do so, and he had no other solution to offer. His only involvement was to help to organise the security for the swearing-in ceremony.

April 9, 1994

The Gendarmerie HQ at Kimihurura was evacuated due to intensive shelling. General Ndindiliyimana met with President Sindikubwabo to arrange a statement by the government regarding the situation and to arrange dignified burials for those VIPs who had been killed. The details of this conversation were already set out in the section on Conspiracy as testified to by Francois Nzabihimana. The General knew that a country that does not bury its dead cannot bury violence. Once more, the General dared to risk his relationships with some in order to convince the President. The President agreed with General Ndindiliyimana, but did not follow through in his actions.

April 10-11, 1994

General Ndindiliyimana continued to coordinate patrols as best he could with the personnel left to him. However, roadblocks that were initially set up by the population for civil defence became a source of danger and uncontrollable. The general placed gendarmes at Nyaruteja bridge to try to control the flow of arms of the city.[232]

Acting on reports of trouble on the Gitarama-Butare road, he assigned gendarmes to try to control the situation.[233]

About April 10^th he again met with General Dallaire to facilitate evacuations of foreign nationals and the Belgian contingent. Gendarmes were also involved in the evacuation of Italian nationals including the Italian consul, Mr. DaCosta.[234]

On April 11, General Ndindiliyimana sent an aid to attend a meeting of preféts who had come to Kigali. Some of the preféts reported that the security situation in their areas was fine, even though the general had received reports that the situation was not good at all.[235]

He also learned that the one million refugees at Nyaconga had been shelled by the RPF, a war crime under the Geneva Conventions. This attack on innocent civilians provoked a tidal wave of refugees pouring into Kigali as a consequence of which all semblance of order was lost and the few gendarmes still available to him lost all control of the situation. Many of these people had no identity cards and it was rumoured that the RPF took advantage of this vast movement of people to infiltrate the city. This resulted in many of the refugees being attacked by the local population as suspected RPF fighters. General Ndindiliyimana tried personally to assist some of these refugees to pass through one roadblock. Here again, the general takes the risk of being considered as someone who is “pro-Tutsi,” which is exactly what many people considered him to be. People did not understand the behaviour of the general because people did not understand why he was not controlling the Inkotanyi. This is a sign of the loss of power of the authorities.

Mount Jali was attacked by the RPF and the gendarme unit there was dispersed and suffered heavy casualties.

General Ndindiliyimana contacted General Dallaire about the possibility of a new UN force to arrive in May. Dallaire showed the general the plan that would create a demilitarised zone and a plan to replace the civilian roadblocks with gendarme roadblocks. “We had several discussions with General Dallaire.”[236] Dallaire wrote in his book, and confirmed in his testimony, that,

“Ndindiliyimana had one last piece of advice for me. He said that the roadblocks would disappear if I used the threat of force. The local bullies would abandon the barriers when they realised that the risks of being attacked by a reinforced and bolder UNAMIR 2 were high.”[237]

This is yet another sign of the inaction of the international community Gendarmes assigned to protect certain strategic sites before hostilities recommenced continued to try to protect them, such as the fuel depots, water treatment plants, electric supply stations and the like.

April 12, 1994

The general continued to organize patrols in the city of Kigali. “During those patrols, reports were provided as to groups attempting to bother other groups and the gendarmes were still able to intervene and even arrest some people. But as I have already told you, these people were held in detention for a while and then subsequently released from the brigades.”[238]

Early in the morning, the general was summoned to the Ministry of Defence where he met with Colonel Mubaruka, amongst others. He was briefed on the security situation and learned that the RPF had captured the road to Bugasera, which made it possible for the RPF to encircle the city. The RPF had taken Byumba, occupied Mt. Jali, its telecommunication installations were destroyed, and, from the slopes of Mt. Jali, the RPF controlled the road towards Gitarama. “And the situation was that at any time the RPF would be in a position to surround the city, because once that road was captured there would be no other way out of the city”[239] The army and the gendarmerie had withdrawn from Mt. Jali making it “increasingly difficult to counter attack.”[240] The government decided to evacuate the city and move to Gitarama.

General Ndindiliyimana was ordered to organise an escort to ensure the safety of the government evacuation. At about 11am he informed gendarmes of the VIP unit and government ministers staying at various hotels in the city of the move. General Ndindiliyimana personally took part in the evacuation of the government that was accompanied by civilians seeking the safety of the escort of armoured cars. When there were problems at roadblocks he personally intervened to negotiate a way through.

Once in Gitarama, he helped the government arrange accommodation and offices. He was ordered by the President to visit the bishop of Kabgayi, Monsignor Thaddee. The general felt the effects of the war in trying to set up security in Gitarama because he had only a few gendarmes available and food supply was a serious problem. Gendarmes had not eaten because there was not enough food, a problem he had to solve.

The general learned from the Minister of Defence that Colonel Gatsinzi had requested that Kigali be evacuated because the RPF was going to capture it. Later that evening he learned of the initiative by senior army officers calling for an unconditional ceasefire. “Then I called Colonel Gatsinzi and told him that from information from the previous day, and in view of the information conveyed to government through the Minister of Defence, there was no other solution, and that I, myself, supported that initiative.”[241] He could not sign that document as he was still in Gitarama when it was released. General Dallaire confirmed this in front of the Tribunal.[242] This communiqué is extremely important; it defines the boundary between those in favour of peace, risking defeat, but saving hundreds of lives, and those who reject it. General Ndindiliyimana explained this very well:

English Transcripts:

This is a release which is the only thing left—which was the only thing left to offer because it doesn’t even say that we are able to mount any further resistance. So I agree even with those who agreed that we should—that we should give up or surrender. Because some didn’t—well, we did all we could and we actually decided to surrender, but the RPF did not accept our offer to surrender.[243]

French Transcripts:

Ce communiqué, c’était un communiqué où on n’a plus rien d’autre à offrir. On ne dit même pas qu’on est capable de résister. Et je partage même l’idée de ceux qui ont trouvé la reddition. Donc, le FPR n’a même pas voulu accepter que nous nous rendions. Nous lui avons offert tout. Nous avons accepté de déposer les armes. Le FPR n’a pas accepté.[244]

What more can be asked of the chief of staff of the gendarmerie? What could more could he do to stop the massacres than this? He tried to stop the hostilities. What would have happened if the RPF had said yes? The expert of the Prosecutor, Allison Des Forges, said: “the RPF did not give priority to ending civilian killings but, rather, to achieving their military objective.”[245] From that day, General Ndindiliyimana, who refused to leave Rwanda and who refused to abandon the civilian population who were massacred by both sides, could not count on those opposed to peace to find a solution. It is once again the Prosecutor’s own witness, Allison Des Forges who described General Ndindiliyimana as a target because he promoted peace: “it is completely justified to say he was being targeted because he was seen as an opponent to the people in power.”[246] That night, General Ndindiliyimana spent that night at the Hôtel de Tourisme in Gitarama and did the best he could to protect the Tutsi manager and several Tutsi families hiding there.

He described the security situation up to the 12^th of April as follows: “We had some information. Our…communication resources, particularly telephone communications had diminished, but we still had communication with groups and the general staff. We encountered some difficulties before setting up our equipment at new areas because the general staff had moved. Later we were able to re-establish communication. In the first days, the main concern or the main focus was on the events in which we are living through in the city of all-in the country, there were problems of which we were aware. However, our action-our attention was initially focused on what we were seeing. However, we did not neglect the information we received from elsewhere. The only problem is that sometimes we received contradictory information. Sometimes we could hear something on the radio which soldiers could hear, and then they would have messages from group commands sent to us, and even commanders of the group sometimes, today, could send you a message saying that they were at such and such a place, and things were okay, and that they went with the prefét and things were okay. But later, the same person contacts you and tells you things are not fine. All the situations could be different that today you could be told things are not that good, but later they can tell you that things are good.”[247]

In response to the contradictory information, General Ndindiliyimana explained that “it was not up to the chief of staff to work in Kigali and to ensure the liaison between the high command and the government. What we were to know, first, is what was happening on the ground. So what we did was we organised a small team which moved around units. By doing so, we thought that…by doing so… in order to achieve joint patrols with RPF, we needed first investigations into the massacres, into the killings, and to all acts of violence, criminal acts and so forth. The general staff had to know what was happening first…so that one day people guilty of those misdeeds could be prosecuted. So we set up a group which moved about, visiting units to see what was happening, and then report to the general staff and that, therefore, this time we had people who visited the field units, and the chief of staff would also visit troops on the ground and make his own assessment.”[248]

April 13, 1994

On the morning of April 13^th, General Ndindiliyimana went to the government to persuade them to support the ceasefire proposal of the previous evening as he had promised to Colonel Gatsinzi. The general’s understanding of the outcome of that meeting was that “they did not object to that initiative of the armed forces.”[249]

The RPF refused the ceasefire initiative and instead declared to the international community that it had already taken Kigali.[250] It was clear that the RPF did not want to negotiate, as that would mean sharing power with the Rwandan government and by announcing that they had captured the city, they tried to reduce the sitting government to the status of a non-entity, so that, it in the eyes of the international community, there was no one to negotiate with. They followed up this tactic by refusing to address messages to the sitting government. Instead, the RPF addressed their messages and demands to the army, as if the government had vanished when in fact it was still functioning. The psychological effect of this on the population cannot be underestimated. Believing that they had been abandoned by the government authorities, many took things into their own hands with tragic results.

General Ndindiliyimana returned to Kigali. The RPF, through General Dallaire, presented a list of demands as preconditions for a meeting for the 14^th. The note signed by Seth Sendashonga, later assassinated by an RPF death squad in Nairobi, demanded that the massacres be stopped (ignoring their own responsibility in creating them and engaging in them), that the RTLM must stop insulting the RPF (but there was no counter assurance that Radio Muhabura would stop its hate propaganda), and that the PG should be punished (but their forces which had engaged in the wholesale slaughter of the people in the city and the massacre of thousands at Nyaconga were not mentioned). It was clear that this note was for propaganda effect only as it was distributed to the international community as if its assertions were true and it had no responsibility for anything, but even so the reaction of General Ndindiliyimana and the RGF was to accept these conditions, and “with regard to punishing the Presidential Guard the high command of the armed forced, as well as the gendarmerie, instituted investigations in order to try to punish the people who were guilty.”[251] The RPF conducted no such investigations into atrocities committed by their forces, nor offered any. After the acceptance by the RGF, the RPF moved the bar further and presented a new set of conditions.

April 15, 1994

On April 15^th, General Ndindiliyimana went to visit his family in Nyaruhengeri because he had not seen them since the 5^th of April though he had some contact by telephone with his wife who was able to use the phone at Colonel Gatsinzi’s home. On this day he tried to organise evacuations of people seeking refuge at his home and to move them further south.

He stopped in Butare and visited the gendarmerie group located there. He met with the group commander, Habyarabatuma, who told him that the group was trying to intervene to help protect people but that it did not adequate resources. General Ndindiliyimana instructed him to the best he could with what he had. The general had the impression that the situation was under control in his prefecture.[252]

April 16, 1994

The general returned to Kigali and attends a meeting to prepare for a meeting with the RPF.[253] He stated that he

[C]ontinued to maintain contact with Genera Dallaire. He gave me two liaison officers…who were accommodated at Hotel Mille Collines. And whenever there was any message to convey to General Dallaire, I went through them and vice versa. So that was the contact of what remained of the UNAMIR high command and the general staff of the gendarmerie. Regarding operations, not much was happening. However, General Dallaire was understanding enough when I requested that he provide me with a means of dissuasion when the Hotel Mille Collines came under attack. That is how he provided an armoured vehicle and some UNAMIR soldiers for that purpose. Still under relations with UNAMIR and General Dallaire, I can say we had a number of meetings to try to find a solution to the issue of the members of the population who were dying like flies because we desired to find a way to peace. You see, what we did was that in spite of the …situation, we continued to maintain relations and to work on a number of files, including the new UNAMIR 5,500 troops that were expected. We continued to work on that file with Dallaire and to collaborate until I informed him that I had to leave for a while. And he expressed the wish that I return as soon as possible.[254]

General Ndindiliyimana took some refugees to the Hotel Mille Collines, including Minister Francois Habiyikare and Minister Ambroise Mulindagabo. He asked his escort to collect food from a shop and distribute it to the refugees. He also intervened when two gendarmes were ordered to do a search of the hotel for RPF infiltrators and ordered them back to their posts.[255]

During negotiations between the RPF led by Gatsinzi, General Ndindiliyimana along with others met Mr. Khan, Mr. Booh-Booh’s assistant,[256] while the Staff of the Army dealt with major operations to resist the RPF offensive.

A letter was sent to the special representative of the UN secretary general. The letter was jointly prepared but signed only by Gatsinzi. An annex to the letter contained RGF proposals to the RPF. The letter proposed joint RGF-RPF operations against criminals.

Paragraph 3, for me, is a paramount point, because we are talking about joint patrols between the Rwandan armed forces, RPF and UNAMIR. But we know that there were people who died, and that could not have gone unnoticed. We could not have just swept things under the carpet. Be it on our side or the RPF side, we needed judicial and administrative investigations in the cases of all people killed…Therefore, investigations had to be pursued in respect of massacres and-as well as all other events arising from the massacres. Of course, there was the RTLM. There was Radio Muhabura. So both of us-both sides could have put the situation under control and then proceed to disarming all the people who were just moving about with weapons in the country. These were concrete actions and these were actions which cannot be categorised as just empty words or lies. And the government did not object to these comments….[257]

We needed means and this time around we were going to have not only the resources of the Rwandan armed forces but also of UNAMIR and the RPF. So, together with all those assets and resources, I thought we could have succeeded. Maybe even if not perfectly, but we would have succeeded in saving many lives.[258]

April 18, 1994

General Ndindiliyimana and Colonel Gatsinzi meet with foreign journalists at the Hotel Mille Collines.[259] At a time when he was not chief of staff of the army any more, Gatsinzi held a press conference with General Ndindiliyimana on 18 April 1994. This means that on this date, there was an agreement between the accused and Gatsinzi, who is currently the minister of defence in Rwanda.

On April 18, 1994, the assistant of Mr. Booh-Booh, Mr. Khan, came to see General Ndindiliyimana. On this day, “[t]here is a document signed by the RPF and dated 18^th [of April] which…puts [an] end to any steps taken to pursue negotiations and that document was sent to the representative of the UN secretary general… [I]t stated its inability to continue with negotiations.”[260]

April 21 to End of April, 1994

April 21 the RPF Radio Muhabura reported that General Ndindiliyimana had been killed by people of the north. Prior to that, the same radio station had broadcast an open message to him to join the RPF forces.

That situation would trigger suspicion in the minds of some people that would trickle down to my subordinates. In fact, some of them would wonder why the RPF is concerned or bothered about this man; why do they take his side. Is that not why he surrendered the Jali wireless transmission centre? All the [misfortunes] of the gendarmerie emanated from this man; this was said.[261]

And as for RTLM, General Ndindiliyimana stated: “[s]o this was the kind of message that the RTLM broadcasts to the people of Rwanda, namely that I was transporting theInkotanyi.”[262]

April 22 disturbances expand outside Kigali. The small think-tank committee that engaged in military strategy sessions after the disbandment of the crisis committee decided to send Colonel Rusatira and General Ndindiliyimana to Gitarama to ask the government to do more to pacify the country. On arriving in Murambi, General Ndindiliyimana gave a radio address calling for peace and stating that he was still alive.[263]

I spoke to the Rwandan people, telling them that I was still alive, and I called for peace, and I asked people to stop killing each other.

I insisted on the fact that if people were to go down the same road, it would be impossible even to undertake any actions against the aggressor. It is in that vain that we called on the members of the population to stop killing themselves.[264]

Also on the 22^nd the general visited the Kamonyi parish on the way to Gitarama. There, he sees clergy and nuns trying to cope with the problem of refugees from Nyaconga and Runda who were looting. He had no gendarmes with him so he went to the prefét of Gitarama to ask if he can intervene and assist.[265] He is later informed that the prefét, who had a small detachment of gendarmes at his command, would activate them to assist at Kamonyi.

The general and Rusatira met with the government in order to call upon the government to increase its efforts on pacification: “I referred to the problem ofInterahamwe who had now left the capital and were operating in various displaced-persons’ camps, and to move from those camps into the community at large to steal and commit other kinds of crimes.”[266] Colonel Rusatira highlighted the situation at the front.

General Ndindiliyimana then went to the ESO at Butare to gather more information as to the situation in Butare. He was told by Colonel Nshizirungu that his home was on fire. He went to the bishop’s residence. Next he visits the bourgmestreKanyabashi who told him that violence was increasing and that the situation was very serious. The general could see tracer rounds in the air near Butare airport. He called Colonel Muvunyi from Kanyabashi’s home and was told that there was also violence in the Ngoma area. He tells Muvunyi “to take every step necessary to put an end to those events…”[267]

The general then went to the second in command at the Tuma gendarme camp, Captain Segyawere (phonetic) and told him to manage the situation and to ensure that the bishop was guarded.[268]

He then went to see bourgmestre Charles Kabeza at his home and spoke with his wife. She told him that people were being killed. When Kabeza arrived, just as the general was about to leave, he said that the RPF were attacking, that people were engaging in reprisals and that he was overtaken by events.[269]

He went to his home in Nyaruhengeri to see his family and to tell them that they need to flee.[270]

That night he went to Gitarama again to see the Prime Minister and the Minister of Defence. The last haven of peace was now in turmoil. The Minister of Defence stated that he was worried because there were not enough troops and the violence had expanded to his native area. Further, the RPF (or the Burundian army in support of the RPF) had attacked from Burundi. The meeting lasted until 1am. General Ndindiliyimana described the 22^nd April as “the longest day ever, a painful day, a day of great worry.”[271]

The morning of the 23^rd April, General Ndindiliyimana attended a meeting of the government that he described as “stormy”. Members of the government who were of the MRND party took offence to General Ndindiliyimana making accusations against the Interahamwe when in fact not all the roadblocks were manned by people from that organisation.

We were coming as accusers….Rather than address the situation, we began to speak at cross purposes, and we were, therefore, perceived to have provoked the situation…the words spoken were rather bitter words.[272]

The authorities were so suspicious of General Ndindiliyimana that they wanted to call back Rwagafilita, who did not share the same peace-seeking convictions.

I do recall that during that period that I was in Gitarama, or had been to Gitarma, and my predecessor, who was in Gitarama, without me knowing what his business was, my predecessor was always there, or present, at meetings that I had with the minister of defence, with the president, and with the Prime Minister. And subsequently he was appointed advisor to the Minister of Defence.[273]

Mistrust of General Ndindiliyimana materialized in the form of a letter received by the General on April 26 coming from the ministry of the interior. Allison Des Forge, expert for the Prosecutor, stated:

I would read this clearly as a threat, as a very threatening letter, to General Ndindiliyimana saying, “You need to get on board with the programme. You need to stop the representations you’ve been making to us. You need to more publicly demonstrate your support for what’s going on, and you need to do something about these people who were supposed to be Tutsi who are part of your personal staff.”[274]

Despite all of these difficulties, the General continued to make decisions to achieve security and to use his available resources to protect refugees. He dispatched a company of gendarmes from Butare and a company from Kibuye to reinforce positions that had been held by the Huye Battalion. Because the army had to counter-attack at Mt. Rebero and because Gatsinzi had cancelled the call-up of army reserve officers, the army, through the Minister of Defence, requested those additional units and General Ndindiliyimana sent them to the operational sector in Kigali. This left one company of gendarmes in Kibuye and three in Butare. He did not order the transfer of the commanding officers of those units as it was outside his authority, being an issue for the Ministry of Defence.

The commander could have remained within his detachment and simply sent the unit that had been assigned to the battle front. The chief of general staff cannot transfer a unit commander. That is the prerogative of the minister…[275]

He described the situation in Kigali on the 23^rd of April,

Refugees in Kigali were found at a number of locations. But the most known locations were in and around the St. Famille parish, the St. Paul school, Mille Collines, the lycee, the St. Michel church…But there were other locations, including hotels, at the criminal investigations department, in that area, areas such as places where gendarmes were assigned to defend sensitive areas. So people came to those areas. They agglomerated in those areas, seeking protection. Most of the refugees in Kigali, therefore, were at those locations. But some still were found in areas where they could have been received…and protected by the gendarmes.[276]

But there were also the operations conducted in Kigali by the RPF,

[G]endarmes protected people, and they even allowed the RPF to conduct its operations because they wanted to save people. When you want to save people, irrespective of the nature of the operation, I supported life. I supported the idea that people should remain alive.[277]

Between April 24 and the end of the month, the attitude towards the gendarmerie of the population was negative. The number of men was reduced. Moral was low. General Ndindiliyimana made trips to prefectures to resolve problems when he could. The field trips were necessary partly due to the breakdown in communications. He sent staff officers on similar reconnaissance trips to try to learn first hand what was happening.[278]

In addition to the circumstances described above, reality of the situation of gendarmes was worse. Gendarmes were generally sent in groups of 3 to 4 with one rifle each and one magazine per rifle. There was not much they could do when

[S]ome of the attackers [have] machetes, others, traditional weapons, and some…even had firearms. So four gendarmes could not do anything. And when they were required to intervene, well, they would want to do something. But where were the means? And sometimes they would have to go to somewhere 20 kilometers away, or even less than 20 kilometres, but they don’t have the means. They might have to run to that place. And when you got there it would be too late.[279]

Further, the small groups on the ground did not have a means of communication between them and the command post.[280] To compensate for the lack of information, the general decided to go to the prefectures.

May 1994

In May, General Ndindiliyimana, having confusing and uncertain information, went to Butare, Gitarama and Kibuye. His officers went to Gikongoro, Nyanza, Gisenyi and Cyangugu. During the trip to Kibuye on or about the 2^nd to the 3^rd May, he met with the prefét, the local commander, and his men. The problem in Kibuye, he learned, was that the prefét Kayishema was not cooperating. The prefét felt unable to defend the city and requested Jabo. Major Jabo received orders to return to Kibuye and did so.

And there I had seen that the people who could use the services of the gendarmerie used those services badly or did not know how to use the services of the gendarmerie. Of course, we did not have many men there, but the way in which the gendarmerie services were used seemed to me was not appropriate if we wanted to achieve maximum …protection of the people.[281]

On the third of May, the general went to Nyaruhengeri to see his family. A nun there named Simone him told what had happened at Kansi. The next day he went to Kansi to see for himself. He met a woman there and asked her,

Why did you kill Isaie and his family.’ I was expecting her to say, ‘I didn’t do it, because I’m a woman. I cannot kill.’ But she answered me, ‘They wanted to kill us.’ I said, ‘How come? Isaie could not have killed you. She said, ‘No, no, no. They gathered in Kansi and they wanted to come here to kill us.’

The general left the scene to find Colonel Muvunyi to arrange a meeting the next day.[282]

In Butare, he called a meeting of the Gikongoro gendarmerie commander, the Nyanza territorial commander, the commander of the Butare group, the army commander from Ngoma camp and the ESO acting commander, Colonel Muvunyi. Each relayed the situation in their communes and all stated that they did not have enough resources to cope with security and the general did not have any additional resources to offer them.[283] The object of the meeting was to deal with deserters, criminals and to try to create a reserve.

On May 4^th, the general returned to Kigali. The public Prosecutor’s office had ceased to function as of April 6^th. The main prison had been evacuated due to RPF shelling. He stated that it was there that,

They found people who had weapons within the context of private groups, protection, customs police, people who had received weapons through conseillers and other groups which had weapons, without us knowing where they got them from. That is how we found out that there were people who even had bullet proof vests. So they identified two groups. One group was called Zulus, and then there was another group called…les sagese, the group of wisdom. Both those groups had weapons and we did not know where they got those weapons from.[284]

But because of the war the investigations he started into this question were not fruitful.

On May 7 there was a meeting of the general staff of the gendarmerie and the Minister of Defence. The general had called for the meeting for a long time because of the grave problems his service was facing. When he met the minister he was with journalists from RTLM. Bizimana “told them that they should stop attacking the gendarmerie, the gendarmerie leader; we have to practice moderation, in short.” Bizimana promised to help, but blamed the RPF and Radio Muhabura for the general’s troubles. The general left with the impression that they had agreed to be more moderate and not provoke further tension.[285]

On May 8 or 9 he attended a meeting with army staff and the Prime Minister who suggested that people be encouraged to go back to the areas that the RPF had seized. The general thought the idea hard to accept; sending people back to the RPF violence they had fled in the first place.

May 14 he visited Cyangugu with the Minister of Defence. He asked the minister to accompany him on this trip to help find a solution to the problems in the area. The meeting was organised by the prefét of Cyangugu. There was a problem with the civilians and Colonel Bavagumenshi and a lack of cooperation. The lack of collaboration was due to a lack of trust because of a letter that said that Ndindiliyimana had ordered gendarmes to protect the opposition in Gitarama and so the gendarmerie as a whole could not be trusted.[286] The general urged the civilians including important businessmen, bourgmestres, and conseillers to trust the Colonel and that he could help the population. The general raised the problem of movements of people across prefectural borders.[287]

He then went to Kibuye and held a meeting with prefectural authorities and urged that the prefét work with the gendarmes. There appeared to be a recurring theme in all these meetings which was that the gendarmerie was perceived as pro-Inkotanyiand the general had to use persuasion to convince them to cooperate with the gendarmes to try to maintain order.[288]

On May 15 he met with the Prime Minister because he felt the issue of trust of the gendarmerie was a serious problem. The general clearly stated to the Prime Minister:

[“]What you see, what you hear about the gendarmerie and about myself, what do you intend to do about it? What are we? What are we doing?” And, there, the Prime Minister—I believe he was sincere, he told me, “I’ve heard people who felt that the gendarmerie should be abolished. I know that you’re facing problems.” And even my own services at the Prime Minister’s office are telling me that it is rather delicate, that you had to be careful. And I said, “Well, what are you doing about it?[”]…He told me, “Well, I’m going to find a solution to that situation.”[289]

This lack of trust was felt within the gendarmerie as well and some of his subordinates questioned his authority, including Major Cyiza and the commander of the Rwamagana camp. The writing was on the wall. His days as chief of staff were numbered.

On May 16, the general, in anticipation of the arrival of UNAMIR II, started the process of trying to find new recruits for the gendarmerie to work with the UN forces.

On or about May 20 General Ndindiliyimana had a private meeting with General Dallaire in which as General Dallaire recounted:

He warned me that the prefect of Kigali was not to be trusted, that the Minister of Defence was despondent…. That the moderate faction of the RGF, including Gatsinzi and Rusatira, was growing in strength, yet he could give me no specifics except that most of its members had left Kigali and were now in the south….He confided that he had become the protector of a large number of persons in danger in and around Butare. He said that many people were hiding in the ceilings, the walls and even the latrines of their houses and were now dying of starvation, thirst and worse because we could not get to them. He stressed that it was essential to create a force or a movement that was neither ethnic nor military based to govern the country. He gave me the names of prominent Tutsi in the Mille Collines who had to be saved from certain death…..Ndindiliyimana had one last piece of advice for me. He said that the roadblocks would disappear if I used the threat of force: the local bullies would abandon the barricades when they realised that the risks of being attacked by a reinforced and bolder UNAMIR 2 were high…..[290]

On May 21, again, in the anticipation of the arrival of UNAMIR 2, the general went to Nyanza to try to select recruits for the gendarmerie to work with UNAMIR 2. However, he could not complete this process as most of the recruits were needed for combat operations.[291]

Near the end of the month, Bernard Kouchner, then with Medicines Sans Frontieres, came to Kigali and met with General Ndindiliyimana, General Bizimungu among others. General Ndindiliyimana asked him to help achieve a ceasefire with the RPF and provide humanitarian assistance.[292] When he learned that Iqbar Riza, legal adviser to Boutros-Ghali, was in Kigali he prepared to meet him to ask for assistance, to discuss the terms of the cooperation with the UNAMIR 2 force, and to tell him that “we were ready” for a ceasefire. But he was unable to meet Riza as he was visiting refugee camps in Gitarama. As soon as any international personality was in Kigali, the General tried to convince him to help obtain a cease-fire and continue the only possible road to peace, namely, the implementation of the Arusha Accords.

June to July 1994

On June 5^th, General Ndindiliyimana was relieved of his command and named ambassador to Germany. Colonel Muberuka was appointed chief of staff of the gendarmerie. The decision taken had not been communicated to the general before. Conscious of the insecure situation that he was in, General Ndindiliyimana tried to leave the country via Burundi but was turned back. He finally found a way to Belgium through Kinshasa. On the 2^nd of July, 1994, the general arrived in Belgium, where he was recognized as a political refugee.

The defence submits that the timeline set out above clearly establishes that General Ndindiliyimana acted appropriately, correctly, and with a concern for the population of Rwanda that is remarkable in those dark days of his country’s history. He was not passive in the face of problems and dangers. He was proactive, and at all times took active and reasonable steps to protect as many people as possible with the limited resources he had and beyond that, time and again, went to the UN and others to seek their assistance, to give his advice or to guarantee his cooperation. Not only does the timeline show that he could not have been part of any conspiracy as alleged and not only does it show that as commander of the gendarmerie he never planned, took part in, aided or abetted, or in any other way took part in the killings of the Tutsi ethnic group with the intention of exterminating that group but rather, it shows that he was one of those accused of protecting Tutsi and risked his life to continue to do so even when RTLM broadcast that he was an Inkotanyi and thereby threatened his life. He did not ignore the situation in the country. He tried to find out what the situation was. And when he found out, he did something about it. He never received notice that gendarmes were about to commit crimes nor had committed them after the fact. The mens rea for command or superior responsibility is not proven in these circumstances.

The question as to whether an accused took measures, which were necessary and reasonable, is a question of fact that is determined by the totality of the circumstances.

It is primarily the accused’s degree of effective control—that is, his material ability to prevent and/or punish the crimes or underlying offences of is subordinates-that guides the Chamber in determining whether he took measures that were necessary and reasonable.[293]

The Trial Chamber in the recent Militunovic judgement at the ICTY elaborated by stating that “necessary” measures are those appropriate for the superior to discharge his obligation, evincing a genuine effort to prevent or punish, and “reasonable” measures are those reasonably falling within the material powers of the superior. Although a superior is not obliged to perform the impossible, the Appeals Chamber has held that he is obliged to take all measures that are within his material possibility.[294]

It is submitted that General Ndindiliyimana did take measures that were both necessary and reasonable in the circumstances and within his material possibility. The prosecution has singularly failed to demonstrate what other necessary and reasonable measures he could have taken within the limits of his material possibilities. We repeat, that the Prosecutor failed to call even one expert witness to tell the Trial Chamber what he else he should have done or could have done. Nor did they call even one factual witness to tell the Trial Chamber that other measures were possible but not taken. For instance, Major Nsanzumfura, the G4 officer of the gendarmerie could easily have been called as a witness for the prosecution. Since he was in charge of logistics, he would have a perfect knowledge of the material possibilities available to General Ndindiliyimana and what measures could have been taken but were not. Yet he was not called. We submit that the adverse inference must be drawn, that is, that he was not called, even though he is part of the prosecution team, because he would have to affirm that the measures taken by General Ndindiliyimana were, in fact, the necessary and reasonable ones considering the material possibilities open to him.

In the Mpambara decision the Trial Chamber held that the prosecution failed to show that the bourgmestre’s failure to have criminals arrested demonstrated criminal intent. Failure to arrest did not necessarily lead to the conclusion that the accused wished to assist in the perpetration of crimes. The evidence left open the reasonable possibility that the accused was overwhelmed by the situation, did not know with any degree of certainty as to who was leading the attacks, was incapable of restoring order with the law enforcement resources at his disposal.[295]

General Ndindiliyimana, stripped of operational control over most of his gendarmes and left with only secondary disciplinary powers (that is, he could inflict punishment only after the operational unit commander had first taken primary measures against a gendarme who committed an infraction and then reported the matter to his higher command in the army or civil authority, which higher command then reported the matter to General Ndindiliyimana for further measures to be taken if necessary) used all necessary and reasonable measures to try to stop the violence and to protect the population. In the few instances where he heard about problems of discipline among gendarmes still under his command he took action and sent officers to investigate and take action. The closure of the prisons and the paralysis of the prosecution service prevented any Prosecutorial actions from being taken.

C. Factual Allegations

The first two charges under the Genocide count, contained in paragraphs 71 and 72 were dismissed under the 98bis ruling and there is no need to discuss them. However, the defence, once again, draws the attention of the Trial Chamber to the scandalous behaviour of the Prosecutor in setting out in the indictment charges that he never intended to prove. One cannot enter the mind of the Prosecutor however, it must be noted that the effect of the reading of the charges by any judge or reasonable person would be to inflame the passions of that person and to prejudice the accused before the trial even starts. This tactic of laying spurious charges in an indictment whose only effect can be to inflame the passions of the judges and the public against the accused must be condemned in no uncertain terms.

(1) Kansi Church and Massacres Committed in Nyaruhengeri

Paragraph 73 of the indictment alleges that “[o]n or about 20, 21 and 22 April 1994, many massacres were committed in Nyaruhengeri commune while Augustin Ndindiliyimana was present there. Those massacres, which were orchestrated and supervised by gendarmes assigned to guard Augustin Ndindiliyimana’s family; they provided weapons and fuel to the killers who caused the death of over a thousand people in Nyaruhengeri and its vicinity, particularly in Kansi Church where more than 10,000 Tutsi had sought refuge.”

With regard to the distribution of arms the prosecutor called witness GFS. She placed the distribution of arms after the arrival of the so-called reinforcements.

Those gendarmes were protecting Ndindiliyimana’s family’s house. His wife and children were in the house. Later on, more gendarmes came … Later on, after those reinforcements arrived, those gendarmes began distributing weapons to the young people. Those weapons were the ones that were used during the massacres.

The witness never clarified the date of the arrival of these alleged reinforcement. The only reinforcements which she mentions are the gendarmes who arrived on the 21^stof April. But she states that they “returned” and more, that the weapons were not distributed until after the 21^st and 22^nd of April therefore, if one were to believe her story the weapons were distributed to the alleged Interahamwe after those dates.

To a question from the President:

“Now, witness, did you not see the weapons being over to anybody at Ndindiliyimana’s house?”

“No, I was not an eyewitness of such an event. I learnt it from someone who came from that house who was an eyewitness of the distribution of weapons, but I saw the persons who received the weapons with those weapons.”

She later tried to clarify that it was not the person that allegedly received the weapons [GFR] who told her about this but someone else so even if one believed her story it is double-hearsay. What credit can one give to such a witness? The prosecutor tried to corroborate her story by calling GFT and GFR.

GFT spoke about a single grenade that was given by gendarmes at the house to Kajugu. The witness claimed that while she was at the general’s house she saw Kajugu handed something that looked like an avocado by a gendarme there. GFR tried to explain tried to corroborate the story by stating that after the gendarmes killed Gashugi they beat him and took two of his grenades and beat him and then gave one back to him at the house. This makes no sense. It gets worse when he stated that the gendarmes gave him back the grenade between the 28 and 30 of April days after the alleged attack on the sector office and the incident at Kansi. Further, he denied seeing any woman present when he received that grenade. In his statement to the ICTR investigators he made no mention of a “confiscated” grenade. The question that remains is why the prosecutor tried to involve the general in these events with such weak evidence. If he had been involved there would have been much more direct proof than this.

Witness FAV, a neighbour of the general claimed that gendarmes distributed fuel to civilians to burn down houses belonging to Tutsi between the 15^th and 18^th of April 1994. “The Interahamwe would collect fuel from Ndindiliyimana’s house and would use it to burn down the houses. There’s an Interahamwe team that would go, collect fuel from Ndindiliyimana’s and use it to burn down the houses.”[296] However, witness GFS residing in Nyaruhengeri does not make any reference to this claimed distribution of fuel. These accusations do not feature in her testimony or her previous written statements. This silence is significant since she is a direct neighbour of the general. She stated that she always left her residence to observe events at the residence. If that was true, and such a distribution had taken place, she would have seen it and testified about it.

Another contradiction between the prosecutor’s witnesses is that witness FAV testified that between the 15^th and 18^th houses were burned close to the general’s house. However, GFS stated that before April 21 “The disturbances had not as yet started….”[297] GFT testified that “In the course of the first week, there were no incidents of violence. All I know is that all the men were participating in night patrols so as to ensure our security.”[298] Also, GFR claimed that gendarmes gave him fuel from a vehicle while FAV says they distributed fuel at the house.

First, no evidence was led of “many” massacres. There was only evidence called of a massacre at the Kansi Church. There was evidence led by one witness in passing of killings at the sector office but it was not confirmed by any other prosecution witness. When the massacre at Kansi took place General Ndindiliyimana was not in Nyaruhengeri. The evidence called by the Prosecutor concerning the allegation that gendarmes from his house in Nyaruhengeri supervised or orchestrated that massacre is contradicted by the prosecution’s own witness.

Witness GFM testified that gendarmes took part in the attack on April 21. GFM is the only witness to testify that she observed gendarmes at Kansi Church. However, that witness was not able to identify the gendarmes she claims to have seen as being the gendarmes from the house of the general. Her story also does not conform to the testimony of the other prosecution witnesses. She stated that there were 6 gendarmes that came on the 20^th and that it was these same ones who came back on the 21^st. The defence evidence is that there were only three gendarmes at the house. GFR added little to the prosecution case adding only, “I heard that gendarmes were active there.”[299]

Witness FAV gives a very different version of the events at Kansi. He testified that he saw vehicles come to the Ndindiliyimana residence with many Presidential Guard soldiers and about 20 gendarmes who then went in the direction of Kansi. If this were true why didn’t GFM see 20 gendarmes and many Presidential Guard soldiers attacking Kansi? He testified,

I was in Giyambo cellule and then I moved on to the road near Ndindiliyimana’s residence. At about 4.pm as I just mentioned, we saw Interahamwe arriving in the company of Presidential Guard, and I was with other persons. These Interahamwe and members of the Presidential Guard went to Ndindiliyimana’s. We followed them to see what was happening and we then saw gendarmes come out with these Interahamwe and members of the Presidential Guard. They took some weapons and the wife of Ndindiliyimana was with them, and they went towards Kansi. At about 20 minutes thereafter we heard some gunshots from Kansi and that is what I can testify about.[300]

Prosecution witness GFS gives a third version of the story. She also claimed to have seen events at Ndindiliyimana’s house and stated,

No, I wasn’t there during the Kansi massacre. It took place on the 21^st of April in the afternoon. As I said, some vehicles arrived, they were speeding. They were bringing more gendarmes to Ndindiliyimana’s house. They were with Interahamwe. They stopped for a while at Ndindiliyimana’s house. I don’t know where they were coming from. Perhaps they were coming from Butare. So they stopped for a short while, and we saw gendarmes at Ndindiliyimana’s house. They got into vehicles, and they all left towards Kansi. In the following moments, we heard some gunshots, and some grenades that had exploded. Later on, we saw someone who was able to flee or escape those massacres and they came to our house, that person came to our house. That person had told us what had just happened at Kansi. So that is what happened at Kansi.[301]

The house of cards on which this allegation rests collapses. The three versions are irreconcilable. Since it is clear that all these witnesses are lying the rest of their testimony regarding allegations of gendarmes in Nyaruhengeri collapses as well.

The Prosecutor has boxed himself into a logical cul de sac with these witnesses. If GMF is correct, then the others are not because the rest speak of large numbers of gendarmes and/or Presidential Guard soldiers and/or Interahamwe. If the version of FAV were to be accepted, then it is clear that the army was in charge, as they go to the house and leave with the small group of gendarmes there. Therefore, no command responsibility can be imputed to General Ndindiliyimana. If the version of GFS were to be accepted, then it is clear that the gendarmes who allegedly took part are not the gendarmes at the house but a separate group from Butare. Which theory is the Prosecutor advancing? What is the case the defence is supposes to answer? Even at the end of the trial, the defence does not know what the case against General Ndindiliyimana is.

The defence will discuss the credibility issues of all Nyaruhengeri witnesses with respect to the allegation contained in paragraph 93 concerning the murders of two men named Célestin and Ignace. The issue of credibility is discussed further as their testimony on that issue is longer and more complex and needs close examination. We import all our submissions with respect to their lack of credibility into the defence submissions on paragraph 73. However, we remind the Trial Chamber that the President of the Chamber ordered an investigation to be conducted into apparent witness tampering that became evident when FAV and GFT were recalled to testify in February and clearly knew in advance what they were to be questioned on and how they were to respond. But we note that FAV who claimed to be afraid for his life because he was a Tutsi, stood calmly by the road when, according to him, Presidential Guard soldiers came with Interahamwe to kill Tutsis. He is a Tutsi. No one can believe this type of tale. He also stated that he was told all about the massacre at Kansi but at the same was in hiding because he was being hunted. He stated “I was hiding because I was a member of the Tutsi ethnic group. I was amongst the press who were to die.” The Prosecutor continued: “Were people looking for you personally?” He answered, “Yes, they were looking for me.” Moreover, FAV claimed that Ignace Habimana, the best friend whose house had been burned, also stood on the road and welcomed the Presidential Guard and he is the one who tells the Guard “You’ve gone beyond the house of Ndindiliyimana” and “I believe these people have come to protect us.”[302]

The question that arises is why this group of witnesses lied. All of them except GFR who was another Hutu prisoner at the time he testified, are members of an association exploiting the property of General Ndindiliyimana. Defence witness CBP15 testified regarding the use of that property.

Alexis Urayeneza bought some tiles and tiled the house or created a new roof. And the house was given to widows who had lost their husbands, and those widows lived in that house.

This man, Urayeneza is currently in charge of survivors of the genocide in our secteur, so he was the person in charge of well being. He wanted to help those widows.[303]

It is submitted that the illegal occupation and use of the accused’s property gives these witnesses a strong motive to lie to keep the general in prison. If General Ndindiliyimana is released and can return to Rwanda to reclaim his property, the IBUKA organisation will lose the property. The defence witness continued, “This witness also said that in 2004 the Ndindiliyimana family was once more in charge of the estate, but stated that Urayeneza was in charge of an association called AMIZERO which was in fact, managing the land.”[304] It appears that though the right by the Ndindiliyimana family has been recognised by the government, Urayeneza’s organisation is still actually occupying and managing that land and profiting from it.

At the time GFM testified, she was the president of IBUKA. IBUKA is notorious for fabricating testimony. Defence witness CBP92 testified that IBUKA had links with the military and government administrative organisations. He testified that one of its principal functions of IBUKA is to propagandise in order to convince people to condemn the “authors” of the genocide. He also testified that the Prosecutor’s office in Kigali looked with a sceptical eye on witnesses presented to them by IBUKA as it was clear they wanted to sidetrack their investigations.[305] He testified further that Uraneyza himself was not considered a reliable witness and his testimony was disregarded.[306]

GFR has the motive of freedom to give false evidence. He is another Hutu prisoner witness held for many years in harsh conditions. He confessed to murders calling for life imprisonment, but yet, strangely, he sits in prison waiting to find out what his fate will be. He evidently did not testify well enough, as he has now escaped from prison, no doubt because he did not get the reward he was expecting and decided not to wait around any longer. Or was his escape from prison part of the arrangement? Was the escape arranged by his warders? We cannot know. But any reasonably intelligent person must see that there is something rotten in the state of Denmark.

Defence witness CBP78, in describing the way in which Rwandan authorities went about arranging prisoners to testify against Ndindiliyimana in Butare prison said of GFR,

And he [another prisoner] told me that people were being sought against General Ndindiliyimana and that he had been approached, that he had nothing to hold against Ndindiliyimana and Isaia said the same thing, that he had nothing against this man. However, Theobald said to me that another colleague of his, a former policeman, had indeed accepted to come and testify against General Ndindiliyimana. So Theobald said that he asked him what he was accusing him of, in view of the fact that all the others who had been approached for the same purpose had refused to do so. Theobald told me that Kajuga had received promises from a committee that if he said the weapons he received came from Ndindiliyimana well, so Kajuga was to come to testify against Ndindiliyimana. And when I left prison, Kajuga had not yet come to testify against General Ndindiliyimana.

And, “I left him behind in prison, and I received information subsequently saying that Kajuga allegedly escaped. That is the recent information I have obtained.”[307] This information was confirmed by the registry when he was contacted as a recall witness. He was in Burundi and declined to come, no doubt fearing a perjury charge.

Defence witness CBP77 testified that he was at Kansi when the massacre took place. He testified,

On the next day, that was on the 22^nd, Friday, that is, it was a very heavy day in consequences. People had left on Thursday without taking the Tutsi’ possessions and this news circulated, and on the next day other people joined the group and the left en masse. And they thought that they had to at all costs take the Tutsi’ cows. There were schools. There were lots of possessions. And people came in great numbers. And I joined that group. And when we arrived we were very numerous in comparison to the day before. People had whistles, and they were also shouting. And both sides exchanged or hurled stones at each other for a few moments because of this noise and because of the whistling. We saw people arriving carrying grenades and rifles. And I noted amongst these people that there was Nzbambarirwa.[308]

He continued,

Nzabambarirwa was a former soldier from Habyarimana’s army. He was no longer a soldier. And he came in the company of others. And those people with him were Burundian refugees. They were young and they had come from the Burundian refugee camps. They were carrying rifles. And Nzabambarirwa, had grenades. But we were under the impression that he was the leader, that he was the leader of this group of refugees. I remember a certain Mununzi amongst that group of refugees. These were Burundians that I knew.….. I believe there were six of them.

He described their weapons, “I am not an expert in field armoury. However, I do know that these were rifles, and I noted that every rifle had three charges. These were not rifles that would shoot a bullet at a time. I noted that they were automatic rifles.” He continued, stating that the Burundians told the gathered crowd,

Radio Muhabura has said that the Inkotanyi have taken control of Kigembe and Nyaruhengeri communes’ and that subsequently it was these Tutsi present here who said on their radio that they had taken control of those communes since they have erected or built their camp here. So they allowed us to pass. And they said, ‘We are going to face them.’

He then states that a grenade was thrown and the Burundians fired at the crowd of Tutsi and the incident lasted for four hours. He also stated,

No, I didn’t see any gendarmes. These were Burundians, the refugees who were armed, and they were Burundians whom I knew. And there was Nzabambiriwa, who was armed, but the others were not. I didn’t see any gendarmes.[309]

CBP77 gave a clear and coherent description of what he observed. He testified that Nzabambarirwa incited the mob by telling them that RPF was boasting it would take Nyaruhengeri and that the RPF had taken nearby villages and killed everyone. He also stated that he met one of these men later in Burundi and he was a major in the CNDD fighting against the Tutsi junta that had overthrown the democratically elected Hutu majority government in 1995. It is clear that the massacre had more to do with the revenge of Burundian Hutus who had seen their president murdered by Tutsi officers just a few months before and who had been victims of the slaughter those Tutsi officers and their army conducted against the Hutu population. Many of these Hutus fled to Rwanda. This was another match ready to be lit. This factor is too often ignored in attempting to understand the reaction of many Hutus to the murder of their president and the ugly four years of war imposed on them by the RPF. Rather than hatred for Tutsi the people feared for their lives and were angry at what they perceived as massacres of their people by the forces of the RPF that was perceived to be dominated by Tutsi.

His testimony is corroborated by the fact that prosecution witness GFM recognised that CBP77 was at Kansi Church that day.

And after three or four months, one Rudili accused me of having been seen in Kansi. He said he saw me in Kansi and that I killed people in Kansi. From that point on, they drew up a file, and I was transferred to the Butare central prison.[310]

Defence witness CBP24, a former diplomat under both governments testified that,

Yes, I found out that there had been killings. And most of them were attributed to the Burundians who were in a camp at Kigembe. It was being said that people had come from Gishavu commune and killed. But, again, obviously there were also some individuals who were natives of that commune. And as everybody knows, the purpose was not killing for killings sake, but rather to loot others peoples’ property, cattle and farms and what have you. However, most of the killings in Nyaruhengeri, I found out, were carried out by Burundians who were at Kigembe camp as well as, by natives of Gishavu commune.[311]

About the possible implication of Ndindiliyimana, he testified,

I am speaking here under oath, to tell the truth and nothing but the truth. I do not believe that I heard any such thing. Nobody ever involved General Ndindiliyimana in these events. I have already told you that he never heard (hurt) anybody; rather, he helped people, even the poorest. He did not just maintain contact with intellectuals and rich people. He was a man who related to all and sundry, even the poor. How is that an individual of such a stature could kill those whom he loved? It is not possible. So nobody ever said that Ndindiliyimana was involved in any manner whatsoever in those events.[312]

CBP78 testified that he never heard of gendarmes at the house of the accused being involved in these events,

I never heard that. And every time that I saw those gendarmes, they were sitting in front of the gate which they were guarding. On one occasion I saw one of the gendarmes accompanying Ndindiliyimana’s wife. I believed they were going to the market or elsewhere,, I don’t know. But I Never heard anyone say that one or the other of those gendarmes allegedly took part in massacres. Had those gendarmes gone to kill Ignace, his wife would have told me. This is somebody who talked to me all the hiding places her husband used until he was killed. And if those gendarmes had gone into her house or if the had come in the company of the murderer of her husband, she would have told me that. Nobody ever talked about the implication of gendarmes in the massacres. And even during the gacaca proceedings where testimony was made in public, nobody said such a thing. Nobody said they had-the gendarmes has been in assistance or had been present whilst others were killing people.[313]

Defence witness CBP15, a close neighbour of the Ndindiliyimana’s testified:

“There was another witness who states that not only did gendarmes enterInterahamwe into the Ndindiliyimana compound in large numbers at one point, but they also came with Presidential Guard soldiers. Did you ever see Presidential Guard soldiers in the area or ever hear of them being in the area at any time in April, May or June?”

A. “I never heard that. I understood Interahamwe—I heard it said that theInterahamwe were killing people in Kigali. As to the Presidential Guard, it was said that there were GP’s in other words, Presidential Guard members who were guarding President Habyarimana. So they never came to our place.”[314]

And why would they? The Presidential Guard was locked in combat with the RPF in Kigali since the night of the 6^th/7^th Can one seriously imagine that they could afford to send a contingent of their soldiers to a small village far from Kigali to kill refugees at a church who were no threat to anyone?

Defence witness CBP48 testified that at the gacaca hearings no one accused gendarmes of anything.

“All right, Now there are witnesses who say that sometime around April 21^st or so, that two vehicles travelling at high speed containing many gendarmes-one witness even says Presidential Guard soldiers and Interahamwe, all mixed together, came rushing to Ndindilimana’s gate and engaged in activities there. Did you ever see that or ever hear if such an event?”

A. “That never happened. If such had happened, everybody would have talked about it back home, especially in the course of the gacaca I think that must be a lie because nobody mentioned it.”[315]

And,

“So when people discussed the Kansi events, there was never any mention of gendarmes being at Kansi when the killings took place then?”

“You’re right, the gendarmes did not go to that location, and there was no mention of gendarmes at the gacaca hearings.”[316]

Defence witness CBP44 was a member of the civil authority in the area. He was at Kansi on April 21 and saw that the situation was very tense. He rushed to the communal office to see whether they could provide protection. The bourgmestre was not there but he briefed the brigadier of the communal police. He following day he was down there at around 10am.

I went back down at about 10 in the morning, and I reached Kansi and not far from a trader known as Nybyenda, who had a shop in which he sold oil and foodstuffs.

I met a large number of local inhabitants. I approached him and I asked him why there were so many people around him, whereas there were bomb explosions here and there. I could hear gunshots left and right. He said, ‘The situation is very dangerous. The refugees have been attacked and they have been cut up and they are being shot at.’ I understood that the situation was extremely explosive. I remained there for some time without being able to understand what I needed to do. I was wondering whether I should go back or whether I should wait and see whether the communal authorities were going to send assistance.

So I remained there, and on every minute that passed the situation got worse and worse. I spent the night in Kansi, the night of the 22^nd. During the evening, I heard people say that the refugees had been decimated. It was said that the residents of Kigembe and other places were joining attackers to decimate the refugees. In the morning of the 23^rd I woke up very early, and I went to go and see what was happening. I realised that there was an enormous number of dead bodies…So I left the location, I went back home. I went to bed. I was very devastated and I said, ‘This is the end of the world. We are all going to be killed.’ The youths that I was telling you about started to smoke weed, and these are people who were from Kansi, they were-these people were youths from Kansi and one of them was Gishamvu. He passed me as he was leading an attack, and as he passed me he was very happy with himself and he was saying, ‘I’m ready to participate in this war. I want to fight.’ And this group of attackers began to hunt down the Tutsi in the neighbourhood, in Kansi secteur.[317]

CBP44, who witnessed the massacre, said, “The attack of Kansi occurred on the 22. Around 10am the killers were enraged, and I do not remember hearing anybody say that there were any gendarmes involved, and I did not see any myself”[318]

As a matter of fact, the prosecution has failed to establish beyond a reasonable doubt that gendarmes were involved in the incident at Kansi. The Prosecutor has also failed to establish superior or command responsibility. Marie Nakure testified that the gendarmes were posted there from the Butare detachment on her request to the civil authority Mr. Kabeza. Therefore, they were not under the command of the gendarmerie chief of staff. There was no proof offered that the accused had any prior notice that any gendarmes were going to be involved in killings at Kansi. No proof was offered that he gave orders. There was no proof that the accused was ever notified that any of the gendarmes under his command had been involved so that he could take measures to investigate the matter. Therefore this charge must be dismissed.

(2) The Secteur Office Explosion

Paragraphs 74 and 75 are really one charge but badly split into two paragraphs. Paragraph 74 states that “On or about 21 April 1994, gendarmes on duty at Augustin Ndindiliyimana’s residence opposite Nyaruhengeri gave two grenades to anInterahamwe militiaman known as Kajuga Pierre and told him to use them to exterminate the Tutsi. The grenades were handed over quite openly, during the day, at Augustin Ndindiliyimana’s residence, where his wife and children were living.” Paragraph 75 continues on to say “On or about 22 April 1994, Pierre Kajuga threw a grenade into the Nyaruhengeri secteur office where many Tutsi had sought refuge, blowing off both legs of Adolphe Karakesi and wounding many other refugees.”

The problem with this charge starts with the fact that it does not charge that anyone was killed and therefore must fail under the Complicity Count 3.

The second problem is that the prime witness for the Prosecutor, denies receiving two grenades at the house of Ndindiliyimana. There was also no evidence led that he was a member of the Interahamwe militia of the MRND. There was no evidence called to establish that one named Karakesi lost both legs due to the use of one of these grenades. Another problem is that the indictment talks about a man named Kajuga whereas all the witnesses speak of a man named Kajugu as does the man himself. This adds unnecessary confusion. Strictly speaking the charge must fail on that one point as they have named the wrong man and must amend the indictment to conform to the evidence.

The evidence of Kajugu, GFR, is that on or about the 22^nd of April he was given two grenades by gendarmes while he was at his home. Why they came to his house, the house of a known deserter, is not related. He testified that he then went to thesecteur office and threw one grenade and then ran away. He did not testify as to whether there were any casualties or not.

Wintess GFT testified that gendarmes came to Ndindiliyimana’s residence in Nyaruhengeri around Easter in 1994. She stated that she was friends with the family and went there to take care of one of the children. She states that on one of her visits she saw Kajugu come and have a chat with a gendarme who gave him something like an avocado. She only claimed to know this was a grenade later. At the time when this object was handed over, the general’s wife and children were inside and did not see that action take place. The credibility problems of GFT, FAV, GFR and GFS are elucidated more fully in discussing paragraph 99 of the indictment below. But at the time he testified GFR was another Hutu prisoner witness and has numerous credibility problems set out below as do all this group of witnesses. But it is enough here to state that prosecution witness GFT states that GFR received a grenade at the Ndindiliyimana residence while GFR states that he received two grenades from a gendarme at his home. The stories are so divergent that neither of them can be true. GFR tried to reconcile the two versions by stating that the gendarmes beat him at some point and took away a grenade but later gave it back to him at Ndindiliyimana’s residence. This is complete nonsense as it is implausible that a man beaten by the police would go back to them let alone be given a grenade by them.

GFR also does not state that he saw GFT at the house when he claims he received the single grenade. This is not possible if GFT is to be believed as the transaction of the giving of the grenade took place right in front of her according to her. Something even stranger is that GFT states she saw GFR receive the grenade before the sector office attack. But GFR states that the received that single grenade after the sector office attack. This glaring contradiction cannot be reconciled. GFR also contradicts GFT because he stated that after he threw a grenade he ran away. GFT states that after he threw the grenade he chased the victims of his grenade attack. Finally GFR stated that he never saw a woman at Ndindiliyimana’s residence when he received the grenade.

GFR is another Hutu prisoner held in detention for many years in harsh conditions. He was a deserter from the army and hardly likely to want to approach gendarmes. He made several prior statements that contain numerous contradictions. These are set out more fully below with respect to paragraph 99.

GFS testified that she heard about this event but did not witness it. It is highly likely that since this group are friends they were coached or collaborated on concocting this story together. FAV also testified that she heard about this event from GFR. FAV also contradicts GFR. FAV stated that GFR told him that the grenade he threw at the sector office came from the Ndindiliyimana residence. Yet GFR stated the grenade he got at the house was not the one used at the sector office. Because of the glaring disparities between these stories as well as FAV’s reputation as a member of IBUKA, his prior inconsistent statement, inconsistent trial testimony set out more fully with respect to paragraph 99 of the indictment their testimony should be rejected entirely.

GFT and GFS know each other. GFT accompanied GFS when she testified. GFR and GFT shared beer and cigarettes following the murder of GFT’s husband by GFR. GFS knows FAV. She said, “I have my testimony, he did the same. I don’t know what he said. I only [know] what I had said.”[319] “Even if I spoke with him, we spoke about other things. We did not speak about our testimony. He doesn’t know what I have said. I don’t know what he said.” But FAV added, “I am not the only witness who is going to speak about this incident. I think that other witnesses are going to come to speak to you about this incident.[320] This group of witnesses has clearly had inappropriate contact with other persons regarding their testimony. In addition FAV has a material interest in keeping the general in jail as he has use of his land, is a well-known member of IBUKA and as CBP62 testified was notorious among Kigali Prosecutors and his testimony was ignored by the rogatory commission of the Belgian investigating judge Vandermeersch.

Marie Nakure, the general’s wife stated that she was not witness to such an action by the gendarmes and stated that they did not take part in criminal activity.[321]Further her testimony is bolstered by the fact that at the time of this alleged incident she was harbouring Tutsi children and other refugees at her home and other friends would come and stay at the house yet not a single prosecution witness seems to have been aware of these facts.

Marie Nakure also testified that there were only three gendarmes at the house and that they were placed there by Charles Kabeza after she asked him for assistance and she went with him to speak to Major Habyarabatuma, the Butare gendarme commander.

CBP44 an assistant bourgmestre in Nyaruhengeri in 1994 and a member of the PSD party testified that he was informed of the events in the area and stated regarding the gendarmes,

There were not many in number. And if one claimed that they were able to distribute weapons or fuel, such a claim would be untrue. I never saw them do so; I saw them on the road around the general’s residence which they were guarding. But I never saw them commit any such acts, and I never heard anyone mention that they did such a thing.[322]

In any event, no criminal responsibility can be imputed to General Ndindiliyimana. The gendarmes were placed at the house by the civil authority Kabeza and they were under his command. Further, the Prosecutor provided no motive for these gendarmes to abandon the mission they were assigned to, guarding the residence of their chief of staff in order to give grenades to lowlifes like Kajugu who could just as easily decide to attack and loot the general’s house as he was known to favour Tutsi.

Further, the Prosecutor called no evidence whatsoever to indicate that General Ndindiliyimana had any prior notice that these gendarmes were going to commit any such alleged crime. There is no evidence he ordered it. There is no evidence of anyone making a report to him about it after the fact so that he could take measures against them. Even if one assumed they were under his command. The fact is they were under the command of Charles Kabeza. And with respect to the activities of Pierre Kajugu and paragraph 75 of the indictment there was no evidence led at all that there was any link with General Ndindiliyimana. Nor is there any allegation that Tutsi were wounded at the sector office. The only evidence with respect to Karakesi is that one of his legs was injured. The defence therefore submits that both these charges must be dismissed.

(3) Saint-Andre College in Kigali

Paragraph 76 of the indictment alleges that “On or about 13 April 1994, gendarmes from the Nyamirambo unit, accompanied by militiamen attacked André College in Kigali, where hundreds of people, mainly Tutsi had sought refuge between 7 and 8 April. After checking their identity, the attackers selected all the Tutsi men and killed them outside the College. The said gendarmes were under Augustin Ndindiliyimana’s command.”

The Prosecutor called two witnesses WG and GCB to testify on this matter. WG who was a priest at André stated that he was present on the 13^th of April and that day gendarmes came and took away male refugees and then killed them on the road outside about one hour after a UNAMIR unit had picked up a refugee named Kabagabo. He claimed that the Interahamwe attacked the college with gendarmes. He claimed that he telephoned Colonel Gatsinzi, then acting chief of staff of the Rwandan Army to inform him of the event.

WG confirmed that the college was in the same compound as the St. Charles Langwa church and that the church authorities were two white fathers, Father Blanchard and Father Otto Meyer.[323] He stated that on the 7^th people began to come to the Church for safety, “What I noticed and I saw people, Father Otto Meyer and Father Blanchard let them in because they were being threatened. …” and that the refugees were from all ethnic groups.

I think it was clear, if there was sustained gunfire from all directions, and if already, according to some sources, it was being said that not only were the politicians in the opposition being selectively eliminated and that Tutsi, following the death of Katumba (counsel’s note: a Hutu politicians murdered some days earlier), were also under threat, logically this would make these people flee. But it was not just the Tutsi. At least on the 7^th, the people who were running to the church were not exclusively from this ethnic group.[324]

He states that on the 8^th of April Interahamwe entered the church and fired shots so people fled into the college area and entered the college chapel. On the 9^th there was an attempt by militia to attack the chapel so the refugees were moved into the nursing sciences building. He then stated that from the 9^th up to the 13^th there was no further problem but at 1530 hours on the 13^th he received a call from Otto Meyer stating that there was a UNAMIR convoy there looking for one Philip Kabagabo and UNAMIR took that man and his family away. It was not explained why UNAMIR did this. He confirmed this was the 13^th of April.[325]

He continued to describe what happened on the 13^th of April.

And then the UNAMIR convoy arrived, took the person, including Kabagabo, Philip’s family, and left. An hour later, that is around 1630 hours, 1655 hours, I was in my room and a group of Interahamwe and gendarmes burst in and were all over the place and encircled the whole place. I don’t know which enemy they were looking for, but I heard gunshots. Ten minutes later two gendarmes banged at my door.

He claims that he recognised them as being from the Nyamirambo brigade. He testified initially that these alleged gendarmes forced open his door and took him to where they had assembled the refugees. These men then checked people’s identity cards of the men and took men to “the top of the college where Interahamwemassacred them.” He says these men took several dozen men out and some were killed while others fled. He said that the men were attacked inside the college, “I told you they did not go out of the college.”[326] He also stated that the gendarmerie brigade for that area was “1000 metres, that is about 1 kilometre away.”[327] But then his story begins to fall apart. He forgets what he has been taught to say and in response to a question from the prosecution counsel states,

Q. “So the killings, exactly where did the killings take place?”

A. “This was between André college, the gate of St. André college, the entrance that goes to St Charles parish and the tarred road”[328]

So, now he places the killings outside the college on the road.

He continued and testified that on the morning of the 14^th they were occupied with:

[M]anaging the health of the survivors and the problem of the dead. I had just phoned the International Red Cross to tell them there were wounded persons. He also telephoned the deputy chief of the army “to ask him to call for assistance. Later on, the assistance was granted, but through the gendarme who came the previous day….[329]

Now the Prosecutor has a real problem with their case because it is evident that he is referring to Colonel Marcel Gatsinzi, the acting chief of staff of the army at that time, and that he orders gendarmes to go to provide the assistance WG requested. Therefore, it is evident that those gendarmes, if indeed they were gendarmes, were under the command of Colonel Gatsinzi. But if one were to accept what WG says at this point then there is no command responsibility that can be fixed on General Ndindiliyimana.

He claims that he spent the nigh of the 13^th in the college and the night of the 14^th as well. He states that on the 14^th the RPF came and took people away. He then stayed at the Carmelite convent until late May.

On cross-examination his story fell apart. He testified that he was now living in Rome and that he left Rwanda in 2003. He was asked if the Rwandan authorities had a file open on him and denied it. “The Rwandan judicial system has no case file concerning me. My record is blank.”[330] But the prosecution disclosed a pro justitia statement by witness GLJ dated February 14^th, 2000, in which GLJ stated he was asked by Rwandan judicial authorities whether he remembered a group of attackers, including WG coming to ask him to show WG and others where the house of Francois Hatigakimana, so that he could kill Gasakera’s children.[331] In other words, a criminal file is open on WG for murder or attempted murder of Gasakegera’s children. WG denied he was aware of that. He was asked if he was given a promise by the Rwandan authorities that a criminal case would be dropped against him if he testified before the tribunal and he denied it. But the question must be asked, why did the Rwandan Prosecutor ask GLJ about WG being involved in a murder? Why did WG leave the country? Was it to study as he claims or to avoid prosecution for murder? It is evident a criminal file does exist on this witness and therefore the Rwandan authorities have the ability to use that file as to pressure the witness to give false testimony at the tribunal.

WG pretended not to be aware of a meeting held at the St. Charles Church on the 6^thof April attended by gendarmerie officers, UNAMIR offices, and local officials to try to arrange the return home of people who had fled to the church after the murder of Katumba a few days before a meeting referred to by the two white fathers, Meyer and Blanchard in their testimony in the Military I trial a week before the testimony of WG. DH90 testified that on the night of the 6^th of April, there was a meeting with UNAMIR officers, a Belgian among them, and administrative authorities but still WG denies knowing about it or the fact that there were already 120 refugees in the complex before April 6^th. This is impossible. He must have known but is lying about it. Or he was never there at all. He also denied knowing that youths in the Nyamirambo area were going to join the RPF and then coming back to the area. The following testimony of witness DH90 was put to him (the French priest):

Q. “Between 92 and 93, did you see any other changes having to do with people disappearing?”

A. Yes, there were disappearances of individuals and there were also youths. We had-we heard about that. And it was said that these youths were going to join what was known as the rebellion.” And “…Obviously they were members of the RPF, and its armed wing, Rwandan Patriotic Army.”[332]

He was then asked if went to see the two white priests the morning of the 14^th. He tried to evade the question but finally said, “So, it’s very probable that I must have gone there.”[333] Then this exchange between defence counsel and WG takes place:

“All right, because the German priest, DH91, said that you did come on the morning of the 14^th. Now you say-and you told him a certain story. You are saying that on the 13^th the gendarmes came in and ..and shot up the place and then took men away. That’s what you are saying to us?”

A. “On the 14^th, I did not say that I saw gendarmes take people away. I did not say that about the 14^th, and I will not say it.”

“Perhaps my question was not clear. You told us, in chief, on the 13^th you saw gendarmes come in and shoot up the college or the church, I’m not sure which, the college and take away a certain number of men. That’s what you told us correct? The gendarmes did that with Interahamwes.”

A. “yes”

“Well, that’s not what you told the German priest. Do you remember what you told the German priest?”

A. “I have no recollection of that, but in any event, I did not say the opposite to what I’ve said.”

“Well, I wish to contradict you and I’ll give you the opportunity to comment on this.

Q. This is the German priest. ‘Now father, I know that the survival of the refugees, food, water, was something that was going on each day, and I don’t mean to diminish the struggle that you went through daily, but I want to skip to some events in order to save some time. I want to direct your attention now to April 13, 1994 and particularly to events at André. Now, can you describe what it was that happened on the 13^th regarding St Charles Rwangwa and St. André that might be significant events that were occurring then?’

A. ‘At night there were shouts around the house. People were shouting. There were grenades exploding. There were gunshots. And I did not move. We actually stayed back at home. And on the following morning, in the wee hours, when I wanted to provide supplies to the people in our parish, I realised that there were just a few people.. later on, our colleagues from College André arrived.’ “You, he named you (WG)” ‘and Boniface Pikino…who said the refugees had all left and that they had been taken away by the rebels that raided that place. In the hall, people were saying the same thing, that the rebels had come in the dead of night, and had taken the others that we were hiding in the ceilings and that we were not able to go with them.’

Q. ‘Father, when you said the rebels had taken the refugees we didn’t get a very good foundation of events because I’m trying to save time. I hope the Court will forgive me. We’re clear.’

A. ‘They came from rebel. They were RPF’

The exchange continues but finishes with these words,

Q. ‘Thank you for waiting, Mr. Witness, because the translation takes a little time. Now, I want to take us up to the 13^th. Now, I understand that these 120 refugees stayed with you from the end of March through the 13^th. Am I correct about that?’

A. ‘You are.’

‘I think it was on the morning of the 14^th that you learned that they were gone from the priest (WG) that you mentioned, those two priests. And how did you come to see them on the 14^th and what did they tell you?’

A. ‘They came very weather beaten.’

Q. “He refers to you he says ‘this man told me I spent the night in the bus and they had left. And I myself, when I went to the hall, as was often the case every morning, I realised there were just a few people there.’ “And you (WG) said”, ‘This man said the rebels had taken them away, RPF elements.’

Q. ‘Now had you any warning that these refugees might be taken away? Was this a complete surprise to you?’

A. ‘To me it was very surprising.’

Q. “That’s what you told the German priest on the morning of the 14^th, sir.”[334]

WG tried to deny this and state the priests had it wrong but his attempt to deny the testimony of the German and French priest is not convincing.

There was then an exchange between counsel and WG about gendarmes protecting people at various locations, which WG was at first reluctant to admit but once again he was confronted with the testimony of the French priest, DH90, who was asked,

Q. ‘And it’s my understanding what transpired from you-and I’m getting this from your testimony and other documents-is that you, you tried your hardest to get people that were entrusted to you evacuated, is that correct?’

A. ‘Yes, I negotiated on several occasions to try to get them evacuated, to bring them into town because I knew from a Rwandan colleague who told me that in town the gendarmes were protecting people at St. Paul and at the Famille and the gendarmes who were located near Hotel Mille Collines.’

Q. “I put it to you that you were the Rwandan colleague that told the French priest that?”

WG then gives a non-responsive answer when the question is put again:

Q. “But you were the priest or the Rwandan colleague that told the French priest those facts. Because I suspect it was you, because they referred to you n that sense before, but I may be wrong. I put it to you that you were the Rwandan colleague who told them that, that the gendarmes were protecting people at St. Paul, Famille and Hotel Mille Collines.”

A. “That I suggested that to the French priest?”

Q. “You told them that, therefore, you knew about it.”

A. “That gendarmes were protecting people?”

Q. “Correct.”

A. “There was such a message, but that was the mission of the gendarmerie…The gendarmes were on a mission to protect people, and I repeat it.[335]

It is submitted that no one was killed at André college on the 13^th of April. Instead the RPF made a foray into the college and took away their people. Neither of the two white priests describe deaths or casualties. They simply state that when they woke on the morning of the 14^th and went to see what had happened almost everyone had gone. There were no bodies at all.

The defence submits that witness WG has a motive to lie and that is to use his testimony in return for a favour with respect to the murder charge the evidence indicates awaits him in Rwanda. The two white fathers had no reason to lie about what they saw and what they were told by WG. It is therefore submitted that no crime took place at André college. This is supported by the incredible testimony of prosecution witness GCB. He gives a very different account of the allegation. He claims to be a survivor of the attack yet if he suffered the gunshot wounds he claims he would have died on the spot. He claims that he was forced onto the ground and a gendarme fired five shots into his hand which was covering his head. Yet, not one of those high velocity bullets entered his head or blew off his hand. He lost only a finger. There are no bullet wounds observable on his hand.[336] He stated that raid by the RPF was the day before the 13^th, that is the 12^th whereas WG tried to put it on the 14^th.

But later in his testimony he states that his family was taken away by the RPF the day before the 14^th, which makes it the 13^th. He admits he was told, by the Red Cross that his family was taken away by the RPF on the 13th.[337] Yet he still tried to maintain that gendarmes attacked on the same day. This is clearly impossible. He cannot keep his story straight and at one point becomes so lost in his script that he states that he begins to mix up things. He claims that gendarmes fired a rifle grenade at people lying on the ground in the courtyard. This is a physical impossibility, as the gendarme would have been blown up along with everyone else. Rifle grenades cannot be used at close quarters and can only be fired at targets at some distance and far enough away that the person firing is not injured by his own weapon. Secondly, defence witness CBP46 testified that the Gendarmerie did not have the weapon he described, STRIM, in its weapons inventory and it will not be found in the inventory of weapons listed in Dallaire’s reconnaissance report. He testified that only the RPF had that weapon,[338] which is a British design. When this is pointed out to him he gets completely muddled and states that the STRIM is a type of club![339]

He also claimed that an Interahamwe tried to cut his throat but the only scar he has in the neck area is on the back of his head not his neck. He defence submits that this man was a soldier with the RPF and sustained those wounds later in combat, not atAndré. WG stated that he found this witness outside the complex on the road, a survivor, but this witness claims that he collapsed and was found by WG in front of WG’s office.[340] There are many other inconsistencies in the testimony of GCB that would take pages to discuss. The defence submits that the Trial Chamber should pay attention to pages 73-79 of the transcripts where these are set out.

The testimony of the witness GCB is in contradiction with WG. The Prosecutor cannot leave the judges the task of deciding which version could be true without providing any objective criteria.

(1) The first contradiction concerns the activity of witness WG from 6 to 13 April 1994. He said that during that time he stayed in the school and did not leave. On the contrary, witness GCB said that WG left the school many times and that he was informing the people staying at the school that bodies littered the streets of Kigali. “[WG] gave us that information on the 9^th, the 10^th, and the 12^th…We were not seeing him every day, but each time we met him, he would give us the same information.”[341]

(2) The second major contradiction concerns the hour at which UNAMIR peacekeepers arrived. Witness WG said that UNAMIR soldiers came to pick up the Kabagabo family around 3:30pm. Moreover, he explained that the attack happened one hour later as a reaction to UNAMIR’s intervention. Witness GCB clearly contests this point: “At the time you just mentioned, we had barricaded ourselves. We were hiding because the cooks had told us Presidential Guard elements were going to attack us. It was at about 4 p.m. that we left our hiding places.”[342] What’s more, GCB said that he saw UNAMIR soldiers before noon. The two testimonies are clearly contradictory.

(3) Witness GCB claimed that he saw a gendarme with a STRIM weapon inside the school’s compound. He tried to insist on the participation of gendarmes during the massacre. This very important assertion was not claimed by WG. WG claimed that gendarmes never killed anyone at the school but allowed Interhamwe to kill at the front door of the college.

(4) This version is completely different than the version of GCB who pretended that outside the college gendarmes killed refugees with sub machine guns. Where is the truth?

(5) In order to find the truth, Judge Park asked the witness:

Judge Park: “Mr. Witness, can you explain exactly the strim, the length, the shape?

GCB: “I cannot explain it to you, because I only saw it when it was attached to a gun. I am unable to describe it. I had never seen it detached, I only saw it when it was attached to a gun. And out of curiousity, I sought to know what it was. And I was told that it was a strim.”[343]

(6) Both Prosecution witnesses agree on the fact that they saw each other after the massacre but they do not remember where. For witness WG, they saw each other outside the college. For GCB, it was inside the college.

(7) Finally, witness GCB is not certain that gendarmes were involved at all. He lived in the neighbourhood but did not recognize the gendarmes and said that they wore over-alls:

As far as I could see, there were no shoulder patches. It was not obvious to the eye. I could even say that perhaps they were not gendarmes, but in my opinion, given they wore the red berets, I reached the conclusion that they were gendarmes.[344]

This admission raises reasonable doubt on this charge.

The prosecution, it is submitted has failed to lead any credible evidence that there was an attack on refugees at André college on April 13 or any other day by gendarmes. It is clear, from the testimonies of DH90 and DH91 the two white priests who were on the scene, that no one was killed there. Rather, the RPF came and took away their people safely. Even if one were to believe the claim of WG it is clear that Colonel Gatsinzi, on the Prosecutor’s own evidence was in command of the gendarmes allegedly on site. The testimony of GCB, it is submitted, is invented out of whole cloth and if he was ever there he was one of the men the RPF took away and who was later wounded in combat fighting with the RPF.

In any event, the prosecution failed to lead any evidence at all that the alleged gendarmes were under the command of General Ndindiliyimana. They failed to lead any evidence that he had prior notice that his gendarmes might attack refugees atAndré. There was no evidence led that he gave any orders to do so and there was no evidence led that he received any report of any event like this so that he could have taken measures to investigate. On the prosecution’s own case, the only report that was made was to Colonel Gatsinzi the acting chief of staff of the army. It must be assumed that if WG did, in fact make that phone call he would have told Colonel Gatsinzi about the attackers and who they were. If Colonel Gatsinzi did not take action or even file a report to the gendarmerie then responsibility lays with him not General Ndindiliyimana. But likely the phone call was never made as there was no attack. Can anyone believe that WG told Gatsinzi that gendarmes attacked him and then Gatsinzi sends those very same gendarmes back but WG doesn’t make a second phone call and complain? Not in the world of reality.

(4) CELA and the Road Leading to the CND

Paragraph 77 of the indictment alleges that “on or about 22 April, a group of Tutsi was selected at CELA, where they had sought refuge, and led to the Muhima Gendarmerie unit purportedly for questioning. In fact, the gendarmes instead of questioning them handed them over to Interahamwe militiamen who killed them on the road leading to the CND. Not more than five people survived that massacre. Those gendarmes were under Augustin Ndindiliyimana’s command.”

The charge itself is so badly worded that it is difficult to know what the charge is. It does not specify who selected these refugees. It does not state whether these Tutsi were RPF militants or civilians. It does not state the basis on which the accused is assumed to have been in command.

The evidence is that the prefét Renzaho went to CELA to prevent Interahamwe from attacking the refugees inside. Witness ATW stated that he told Renzaho that theInterahamwe claimed that Inyenzi were inside. He claimed that he gave a list of the people inside to Renzaho and that Renzaho responded by stating that these people would be arrested and face a military tribunal and that they should be arrested and taken to the Muhima brigade. Renzaho had soldiers with him.

He stated that on the 20^th of April the militia attacked CELA in the morning. He said there 600 of them accompanied by 10 soldiers. There was resistance by the refugees.Prefét Renzaho arrived and ordered the militiamen to move back. At first they refused. He then claims that Renzaho ordered 40 men to be taken and the witness was in the group selected. They were led to the Muhima gendarmerie station for a few minutes but then were handed back to the Interahamwe who took them in the direction of the CND and on the way they killed 10 people. He stated they were taken in a vehicle driven by soldiers. He states that when they got to the brigade they were put into the cells and after about 3 minutes they were taken outside again and put back inside the vehicle. They were driven away and about 50 metres from Rugege sector office they encountered a roadblock manned by Interahamwe with guns. TheInterahamwe with the prisoners told the others at the roadblock that they were taking them to the CND. The witness’ bizarre claim that they were going to RPF headquarters reveals the whole story to be a piece of fiction and a very clumsy piece of fiction at that. But the witness tried to explain that away when he realised what he was saying was not possible by claiming he was referring to another location known as the CND but could not tell where that was or why it was called that. In any event he claims that en route, several people were forced off the vehicle and shot. Somehow the witness miraculously escapes.

He testified initially that a soldier was driving the vehicle but later that turned into a gendarme. This witness and others have made several prior statements but none of them include a stop at the Muhima gendarme brigade.

“Now, none of the others in this book, that I can detect, talk about when the attack takes place based on the 22^nd, mention anything about going to Muhima, except you. There is one reference by you to that effect, square-going to a police detention centre in Muhima. But none of the others mention that. They all mention that people taken from CELA were taken straight away to what they call the slaughterhouse direct. They mention nothing-no stopping on the way.”

The witness tried to explain this by stating that none of the other witnesses went with him to Muhima. But that would mean that there were two groups not one and the story falls apart.

The story about being stopped at a roadblock also does not make sense if both groups were Interahamwe. He has other credibility problems. In his prior statements of April 1997 and March 1998 he stated that Renzaho went to the brigade also. But in his statement of 1 September 1999 he stated that he did not. He stated that he was in Butare just before the commune came under RPF control. It is submitted there is reason to believe this witness is not an impartial witness and is an RPF agent. He stated that he went to construct toilet for schools in that zone and was accompanied by UNAMIR for his security. It is totally implausible that UNAMIR would use its limited resources to provide a security escort for a man who wanted to build school toilets, especially in an RPF zone. He denied that zone was in RPF hands but the fact is that it was in RPF hands. Reference is made to the UN situation report dated March 29, 1994 in which it is stated that 200 men conducted military training on the football field there, in reality training by the RPF.

ATW’s story about discovering weapons in the office of a priest is also not convincing. His story became incoherent under cross-examination and it did not match what he stated in statements to the ICTR. Even the presiding judge was puzzled and asked him “I am puzzled as to what time you threw your pistol which was in your custody, because, was there any time for that to happen? … At what point did you get rid of the pistol?”[345] And, “How do you reconcile the two statements then? You said you threw it and then again you said you had returned it to where you had taken it. How do you reconcile those two statements?” He answered with a flip response, “This is plausible. I threw it in the room from which I had taken it.”[346]

Another indication that he was fighter with the RPF is that he obtained medical treatment from them after suffering a gunshot wound.and that he recognized his friend at CELA as a soldier.

He also stated he did not know that Renzaho was the prefét. “I was unaware of that fact.”[347] This is not likely if he was in Kigali in that period. He also did not know the name of the bourgmestre of the commune. He stated that Father Wenceslas was a bad man yet could not explain why a priest he admired, Father Hakizimana, had praised the actions of Father Wenceslas and the gendarmes as did Florida Mukeshimana, who lost her husband, the Minister of Foreign Affairs.[348]

Witness CBP62, was a gendarme officer in charge of gendarmes stationed at that location and was based at Muhima. He refuted ATW’s story and testified he never heard of such an event ever taking place. He testified that the gendarmes tried to protect people in that area and had compiled a list of criminal gangs operating in the area.[349] Defence witness CBP46 also confirmed this. Defence witness CBP7 a general staff officer in charge of discipline in the gendarmerie also denied that such an event had ever taken place and he had the opportunity to know as the general staff HQ had moved from Kimihurura to a place not far from the Muhima brigade.

Witness CBP62 stated further,

I did not experience such an event….Let me say that upon my arrival at Muhima camp, with the mission to take care of the displaced persons, I gave clear and specific instructions to the gendarmes to make sure that anyone who was identified as being dangerous, attempting to enter the camp, should be shot at. And those instructions were given and from that time one, we did not have any cases of militia or criminal gangs attempting to access those locations.[350]

The allegation made by this witness is an outright fabrication. The story he tells is incoherent, including his miraculous escape, and his testimony is full of contradictions and impossibilities and implausibilities. Whereas it is clear from the gendarme witnesses that testified that gendarmes tried to protect people at CELA and other locations in that area. CBP62 was particularly effective in describing the steps taken to protect refugees and he was not shaken on cross-examination at all.

However, that is not the end of the matter. Even if one were to accept this bizarre story the Prosecutor has not established any command or superior responsibility. There is no evidence at all that General Ndindiliyimana had any prior indication that gendarmes at that location would reject the intake of prisoners there or if they did that it was for a criminal purpose, there is no evidence that he gave any order to do so and there is no evidence of any report being made to him about this event requiring him to investigate the circumstances. The story of ATW is also strange in that the Interahamwe had no love for the gendarmerie as they were perceived to be in league with the Inkotanyi so why would any group of Interahamwe turn overInkotanyi prisoners to the one service that would protect those prisoners? It does not make any sense. And why would they take them to the station only for a few minutes and waste their time and then take them back out again so they could kill them later. It would be more likely that the Interahamwe would have killed such prisoners on the spot, immediately, instead of wasting time and petrol on ferrying such prisoners around. And why would they head in the direction of the hornet’s nest of the RPF at the CND to kill Inkotanyi prisoners when they risked being killed by the RPF at any time? Well, of course they wouldn’t, and that is why this tale is just another pack of lies constructed to try to involve gendarmes in crimes.

The second problem with command responsibility is that it is clear that the prefétRenzaho was responsible for what happened if one believes ATW’s story. He is the one that arrives with soldiers. He is the one that orders the militiamen to stop the attack. He is the one who accepts the list from the witness of suspected Inkotanyiinfiltrators and he is the one that orders those men to be taken out. It is also clear that this was done not to kill Tutsi but to take out RPF irregulars using the civilian population as a cover. This is not a crime and would be a normal thing to do in a war zone. It is Renzaho who orders them sent to the Muhima brigade. The events as the witness describes it at the brigade are strange. There was no evidence presented by him as to why the gendarmes did not keep those prisoners. Was that their decision or Renzaho’s? Did they not keep those prisoners because they did not know why they were brought there? Or did the Interahamwe realise they had made a mistake and the gendarmes wanted to protect them and the Interahamwe wanted to kill them. How many gendarmes were there? What did they say? Why did they react they way he describes? Were the prisoners suspected of being RPF and therefore the gendarmes did not want to risk having them at their station as they were 40 and the gendarmes were few? Since none of these important details were provided it must be because the story is a fabrication. In any event, a stop of a few minutes at that brigade, unannounced, cannot bring responsibility on the gendarmes there. Further, it is clear from the description of that zone by CBP62 that the Muhima area was a combat zone and therefore the gendarmes there were under army operational command. It is also clear that Renzaho, the prefét, by his actions assumed command responsibility for CELA.

In the result, this charge, we submit, on the totality of evidence must be rejected as a fabrication. Even if accepted, no command or superior responsibility can be imputed to General Ndindiliyimana and, therefore, the prosecution has not proven its case beyond a reasonable doubt.

III. Crimes Against Humanity: Murder

A. Introduction

The prosecution must prove beyond a reasonable doubt, that each act of murder specifically pleaded in the indictment was part of an attack directed against the civilian population, that the attack was part of a widespread or systematic attack, that the accused acted knowing that his acts or omissions were part of a broader context of the widespread or systematic attack.[351]

Where murder is alleged as the constituent act, the prosecution must prove, beyond a reasonable doubt that (1) the victim is dead; (2) the accused caused the death of the victim by his acts or omissions; (3) the accused or his subordinates intended to kill or inflict grievous bodily injury.[352] Further, the prosecution must prove that the murder is (1) premeditated and (2) that there is an identifiable link between the accused and the victim.[353]

The prosecution maintains that paragraphs 93, 96, 99, 100, 101 and 102 of the Amended Indictment support a conviction for murder as a crime against humanity. The defence maintains that on the totality of the evidence the Prosecutor has failed to prove its case on each of the individual crimes alleged and therefore the accused must be acquitted on Count 4.

B. The Deaths of Célestin Munyanshagore and Ignace Habimana

Paragraph 93 of the indictment states “On May 5^th 1994, in Nyaruhengeri, a group ofInterahamwe including Pierre Kajuga went to the residence of Ignace Habimana and killed the latter, as well as Célestin Munyanshagore, following orders the murderers claimed to have received from Augustin Ndindiliyimana.”

The problem for the prosecution starts with the wording of the charge. There is no charge that Augustin Ndindiliyimana ordered the murders. The only charge set out is that a named killer “claimed” to have received orders. There is no crime set out in this charge. The Prosecutor is not charging the accused before the Trial Chamber with ordering anything. It is really a charge against Pierre Kajuga only who presented as a justification for his murders that he was ordered to do so by the accused. There is no charge against the accused that he did, in fact, give such an order. The charge dies right there. It is fatally flawed. No crime by the accused is alleged. There is no charge to answer.

However, the defence will analyse the evidence presented by the various witnesses in order to refute even the smell of the involvement of General Ndindiliyimana in this matter.

The Prosecutor alleges that Pierre Kajuga went to the home of Ignace Habimana and killed him and Célestin Munyanshagore. The apparent theory of the Prosecutor is that the accused ordered the killings though he has not charged him with that. He has only charged that the killers “claimed” this to be the case. Even the Prosecutor seems to have serious doubts about the veracity of these claims. If the Prosecutor had no reasonable doubts, he would have charged the accused with ordering the killings. But he dared not go so far and states only that the killers claim this to be so. How can one take such charges seriously at an international tribunal? It makes any jurist shake their head in wonder.

The defence does not dispute the fact that the two named persons were killed. It is disputed that General Ndindiliyimana gave any orders to that effect or could have given such orders on the following grounds: the prosecution witnesses are not credible; the claim made is pure hearsay; no direct link was ever established between General Ndindiliyimana and Pierre Kajuga; no evidence was presented as to how a gendarme officer could have the authority to tell a civilian to do such a thing; and no motive was suggested whatsoever as to why General Ndindiliyimana would order such murders.

Prosecution witness GFT was married to Ignace Habimana. She is a friend of GFS and travelled with her to Arusha when she testified. In 1994, GFT was a member of the PSD party, the same party for which General Ndindiliyimana had sympathies for. She has known the general since childhood and they were neighbours. She has nursing skills and treated the general’s son in April and had a relationship with the general’s aunt. These facts reduce the likelihood of the general having any motive to kill this lady’s husband.

She stated that visited the general’s house several times and that one day Kajugu came and was given a hand grenade by a gendarme there. This testimony conflicts with that of FAV who testified that it was Hakizayesu who was given the grenade at his home and threw it near the sector office. Once again, the prosecution’s own witnesses undermine each other and it is difficult for the defence or the Trial Chamber to know exactly what the theory of the prosecution is. Both of these versions cannot be true. But the Prosecutor has never told the court or the defence on which version it relies. This event is also contradicted by Kajugu himself who testified that he got the grenade outside the general’s house at another location entirely.

GFT stated that after the attack on the sector office she hid at Joseph Kagenza’s house while Ignace and Célestin went to hide at Augustin Hakizayesu’s house. She says she returned to her house on May 3. She said that at approximately 2pm on May 5, Hakizayesu came to her home and asked her to call Ignace and Célestin. She says that Hakizayesu met the men in an alleyway between the two houses, that she was with them and that Hakizayesu said that they should find another place to hide as Ndindiliyimana had ordered him and others to kill them. Hakizayesu claimed this was order was given to him on May 4 at Kibilizi.

There are several problems with this part of the story. First the Trial Chamber will note that General Ndindiliyimana was in Butare that day at a meeting of the territorial commanders of Gikongoro, Nyanza, the army commander from the Ngoma group and the ESO acting commander and thereafter he returned to Kigali.[354] The Prosecutor failed to call any evidence suggesting that General Ndindiliyimana was at Kibilizi on that day. Secondly, the conversation GFT relates does not sound real or authentic. If Hakizayesu had said that to them the normal reaction for her and her husband would have been to ask him “What do you mean, he is our friend, why would he want to do that?” and Hakizayesu would have provided an answer. But the fact that she does not describe the rational and natural conversation that would have taken place if this were true indicates that this conversation never took place. Thirdly, her story as to how she overheard this alleged conversation is totally implausible.

She testified that after this alleged conversation her husband hid in the ceiling of her home and Célestin hid in an unfinished house and she went to a neighbour named Ntangorane. She claims that Kajugu found her at that place, that he was armed and he beat her and then took her through some sorghum fields to her home and then beat her until her husband came out of hiding. Kajugu and others, about 15 people, killed him but miraculously she was able to escape this large group of killers and flee to Kabeza’s house. But, later, shockingly, she shared beer and cigarettes with her husband’s killer. Kajugu also testified that she purchased cigarettes from him. She could not explain this behaviour in cross-examination.

She testified that she then went to seek refuge at General Ndindiliyimana’s house with his wife and children and the gendarmes there. She admitted that the general’s wife helped her and that she drove her to Rubona. This could never have happened if she had really heard that the general was involved in the death of her husband. Her actions after her husband’s death completely undermine the story she presented that the she had heard the general was involved.[355]

An important factor in considering her story is that she testified that she was never convinced that General Ndindiliyimana had ordered the death of her husband.[356]Thus the prosecution’s own witness cast reasonable doubt on the allegation made by the Prosecutor.

She admitted also that she never told the wife of the accused, Marie, that she had heard such an allegation when she went to seek refuge at the general’s home. She stated, “At the time I was not aware that he had played any role in these events.”[357]

She admitted making several prior statements but the prosecution disclosed only one of them. Therefore it must be concluded that those missing statements do not confirm her version of events that she gave at trial.

Prosecution witness GFR is another Hutu prisoner witness held in prison in Butare for genocide. At first he lied, stating he killed three persons but on changing that to 15 persons he was put in slightly better conditions. His problems with credibility are many.

He admitted that he deserted from the Rwandan army in 1993 but he lied about the circumstances of his desertion.[358] In his viva voce testimony he stated that he deserted from Camp Kigali but in his statement of March 6, 2003, he stated that he deserted from the front due to heavy casualties.[359] In his statement of June 2000 he stated he was dismissed from the army “because I was not fighting.”[360]

He stated that he burned houses with Hakizayesu and at first stated he may have been a gendarme. But FAV stated Hakizayesu was a member of the RPF. In his statement of June 2000, he stated that Hakizayesu was no longer a gendarme at the time of the events.[361]

He completely contradicts FAV who said Kajugu was given the grenade he threw at the sector office by a gendarme at the general’s home. To the contrary, he testified that on April 22, 1994 gendarmes came to his house and gave him two grenades one of which he threw at the sector office. One of these two witnesses is lying and probably both. Again, which version does the Prosecutor want the Trial Chamber to accept? In order to try to explain this contradiction between himself and GFT he claimed he grenades two times but his entire story is absurd as he claims gendarmes beat him, took away one of his grenades but when he went to the accused’s house the gendarmes gave it back to him. This is plainly absurd. No sensible person would go near gendarmes again after they beat him and it is also absurd to think that gendarmes would accept to speak to let alone give a grenade to a known deserter from the army.

He also claimed that gendarmes shot a man named Gashugi and stole his motorcycle and that the accused’s uncle told him the accused had ordered the killing of Ignace and Célestin. However, he made several prior statements in prison. He made a statement to RPF activist Yolanda Mukagasana, which appears to be two statements pasted together as the questions she put to him do not connect to the answers.[362]In his viva voce testimony he stated that he returned from exile to Rwanda “to confess.” To Mukagasana it was because Kabila’s forces put him on a plane to Rwanda by force. In his 1997 statement to Rwandan authorities, dated August 26, 1997, he confessed to killing three persons including Ignace.[363] But strangely, there is no mention of the murder of Célestin. More importantly, in that statement he stated that it was the communal authorities that arranged the murders and he made no mention of the accused or gendarmes at all.

In his statement to Mukagasana he stated that he killed Célestin but viva voce he stated it was a man named Kabandana.[364] In his statement of September 14^th, 1999 he makes no mention of killing either Ignace or Célestin. Nor does he mention any crimes committed by gendarmes. He could not give an adequate and coherent explanation for these blatant contradictions and inconsistencies in his various statements.

In his viva voce testimony he injected a statement that an army captain was present when Célestin and Ignace were killed but GFT made no mention of an army officer being present nor was that ever mentioned in any of his prior statements.[365] One can readily conclude that he added this new element at the suggestion of someone in order to implicate General Bizimungu and it was a deliberate fabrication. The problem for the Prosecutor with this added element is that it makes it look like those murders were ordered by the army. The Prosecutor, again, does not know what his case is.

GFR’s version of the murders of Célestin and Ignace is completely different from that of GFT who was present at the murders or claimed to be. GFR testified that both men were killed at the same spot. But GFT says that Ignace was killed in the house while Célestin was killed elsewhere before that.[366] He stated in viva vocetestimony that he killed Ignace in late April or early May but in his statement of March 6, 2003 he states the killing took place in June.[367] He does repeat that he shared a beer and cigarettes with GFT after the murder of her husband which, it is submitted, casts doubt on both their testimonies. Finally, with respect to his allegation regarding the death of Gashugi, he stated that happened on April 24 in hisviva voce testimony but in his statement of September 1999 he stated it was the first day of the war, that is April 7th.[368]

His version of events is different too. It changes from several gendarmes to one. He is yet another of those Hutu-prisoner witnesses held without trial for many years in harsh conditions who claims to know nothing of his status in prison or what is happening in his case. He has a motive to lie-to gain his freedom. Apparently he did not testify well enough ands he was not released. Instead we have learned that he managed to escape from prison.

Witness GFS was the wife of Célestin Munyanshagore. She is also a friend of GFT. She also testified that she and her husband had good relations with the Ndindiliyimana family prior to her husband’s death. She testified that the wife of Kabeza told her about the death of her husband and that it was on the orders of the accused. The problem with that is that it is uncorroborated hearsay. The defence planned to call Kabeza’s wife as a witness as we had in our hands a letter from her to General Ndindiliyimana sent to him while he was detained at the UNDF speaking to him in positive terms. But when we cross-examined this witness about that the prosecution counsel jumped up and claimed that the Kabeza’s wife was one of their witnesses and she had a codename and they had a statement. When the defence asked the Prosecutor to produce both he could not. The Trial Chamber, based on the prosecution argument held that she was their witness and that we could not therefore contact her. The prosecution bragged that they were going to call her to confirm the testimony of GFS but they did not call her. By means of this legerdemain, this sleight-of-hand, the defence was effectively deprived of that witness and the Trial Chamber lost the opportunity to hear that witness confirm or refute GFS. Since the prosecution took custody of that witness and then refused too call her an adverse interest must be drawn that she would have refuted the testimony of GFS and that in fact, she never told GFS that Ndindiliyimana was involved in her husband’s death.

GFS testified that she was told that General Ndindiliyimana had arrived at Kabeza’s house looking for Célestin to kill him. Why he was looking for him to kill him is never explained, nor why he supposedly thought he would find that man at Kabeza’s house. That is even more puzzling when one considers that two families were friends so Ndindiliyimana knew where Célestin’s house was and could have gone there to find him more easily. She has a different version of the murder from the other prosecution witnesses. She said she heard that Célestin and Ignace were taken from Hakizayesu’s house to be killed at an empty house. She also testified that GFT told her about the circumstances of her husband’s death and that both were killed in front of GFT which is completely at odds with the version given by GFT.

The circumstances of the conversation between the wife of Kabeza and GFS are also implausible. She states she went to Kabeza’s to register for work but that would normally be done at the commune office not the private home of an official. Conveniently, the only person home was Kabeza’s wife. Then she changed her story under questioning and stated she learned it from someone in Gisagara. She could not give any details of that conversation, not what people were wearing, the type of furniture in the house, the room, if they were alone in the house or not, or whether Mrs. Kabeza served refreshments or not. If someone just learned that her husband had been killed we submit that every sensation and everything around here would still be vivid in her mind. She stated in a prior statement that she had returned home in early May but in her viva voce testimony that changed to late May. She also stated in her initial testimony that she did not hear the speech of President Sindikubwabo and only heard of it from others. Later she turned around and stated that she did hear it from the radio.[369] In her statement to the ICTR she stated “I did not hear the speech made by the interim president.” Her attempt to reconcile the two versions only discredits her further.

Her statement that she saw gendarmes come the accused’s house is contradicted by her statement of June 2000 in which she never mentions any such event. In fact, in that statement she goes much further and affirms that nothing unusual happened between the 6^th and 22^nd of April and that the only gendarmes in the region were those few at the general’s house. Nor did she say anything in that statement about gendarmes handing weapons at the house though she lived very close by and had the opportunity to observe.

She also seriously contradicts herself in her testimony when she describes her flight from Gisagara. She talks at length about that experience but never mentions that she carried a child on her back the entire way. When confronted with this contradiction she attempts to reconcile the two versions but only makes herself look even more incredible. In her statement of June 2000, she stated that she was accompanied by her brother-in-law. In her viva voce testimony that changed to become her cousin, then later, her child and cousin.

The credibility of this witness are also undermined by the fact that she and FAV are friends and from the same village and she admits that she talked to him. There was an opportunity for collusion between the two. On her recall in February 2009 it was clear that the no contact order with respect to this witness was violated and that someone had gotten to her to forewarn her as to what she was going to be questioned on. This not only shows the dishonesty of those that violated that order it shows the inherent dishonesty of the witness because an honest witness would have informed the court that someone had tried to influence the witness. But she did not do that and it was left for defence counsel to expose the criminal game being played by someone between the witness box and her home in Rwanda. She was also very flippant in her attitude in her recall testimony and revealed her bias when she would not accept the quite rational and natural suggestion that the information she says she was given was simply incorrect. Instead of saying, as an honest person would that, “I don’t know. I wasn’t there. Yes, perhaps I was misinformed.” But, instead of saying that, she became more and more emphatic and aggressive. Like FAV her recall testimony removed any doubt and confirmed that both of these witnesses are professional liars.

Witness FAV told a similar story regarding this allegation. He stated he did not witness the killings but heard, in a rather curious manner, the Interahamwe talking openly in the road about an order from Ndindiliyimana to kill Ignace and Célestin. Conveniently, though he was terrified of these people, he stayed down close to them claiming he could not be observed as he was hiding in a sorghum field, or was it a bean field? It was difficult to pin him down on that. He imputes responsibility for their deaths to Kabeza. Further he talks of Ignace and Célestin hiding in his maternal grandmother’s house in April while, according to GFS and GFT they stayed with Hakizayesu. FAV also adds the element of Kalinijabo not mentioned by any other witness.

Another problem undermining his credibility is that he stated that General Ndindiliyimana was a member of the MRND party but immediately contradicted himself by stating that the accused was not involved in politics.[370] He alleges that he attended a mass meeting of 3,000 people at which the accused spoke to encourage people to join the MRND but in a statement he made on October 9, 1995 he states it was not a meeting of the general public but a meeting of MRND members only. Clearly, the accused would not be encouraging members of the MRND to join the MRND.[371] The Trial Chamber will recall that General Ndindiliyimana stated he was not a member of the MRND and favoured the PSD party. In cross-examination he contradicted himself further by stating that the accused was “politically active but secretly.” He then cannot explain how he knew the accused was politically active if he was active secretly. The defence submits that whoever arranged these witnesses must think that we are all incredibly stupid to think such bad witnesses had any value whatsoever. But let’s continue. He also cannot reconcile his MRND meeting story with his statement that the MRND had no members in the area.[372] Nor can he reconcile that in his prior statement he said the accused convened the MRND meeting while in court he said that was not true.[373]

He made the strange claim that the accused, while Minister of Transport, gave a mission to the son of a man named Sebecogozi to spy on the RPF in Uganda with a man named Kamanzi. Then he gave Hakizayesu and Kalinijabo another such mission in 1989-90. This is so implausible as to be ridiculous. The minister of transport could do order such a mission and would have no interest in doing so. That would be for the various intelligence services. He went further and claimed that these men even met Paul Kagame. How a couple of local peasants managed to make their way into the Ugandan army intelligence headquarters and speak with one of the most feared men in Ugandan intelligence without these two rustic “spies” being detected is not revealed in this fanciful tale. Of course, he stated that Kalinijabo is now dead so no one can corroborate this story.

He also claims that the accused’s wife and gendarmes gave a hand grenade to Hakizayesu who he states was the main killer in Nyaruhengeri and the man who threw the grenade at the sector office. But this is totally contradicted by GFT who states that it was GFR who threw the grenade. Both versions cannot be true and it is submitted that neither are true. In any event the prosecution has completely undermined its case on this point as their witnesses contradict each other. Further it is implausible that Marie and the gendarmes would give a hand grenade to such a man. He also claimed that he saw Presidential Guard soldiers arrive withInterahamwe in his viva voce testimony but in his prior statement he stated the soldiers came alone.

He has an underlying motive to lie as he joined the RPF forces when they entered his region and travelled with them until October 1994. He specified he was with the 157^th Though he denies serving with them as a fighter one can reasonable conclude that is what he was doing and that therefore he is aligned with the RPF and has a bias against the accused. His story of how he joined the RPF forces in the first place is also implausible—how he crossed their lines as a Tutsi with a Hutu identity card—going to the Hotel Ibis in Butare, which he claims was crawling with Interahamweyet is not attacked is surreal. On his recall in February it was crystal clear that he had been contacted in advance and prepped for the defence counsels’ questions in violation of the Chamber’s order. He knew exactly what he was going to be questioned about and even raised it before counsel had a chance to. The man is as dishonest as GFS.

There is not a single piece of hard evidence that General Ndindiliyimana gave such an order. Further, on the days in question it is established that he was elsewhere doing much more important things trying to save people. Without a motive for wanting these two particular men dead the entire story must be rejected as the very sloppy fabrication it is. It is also established that all of these witnesses knew each other. They all come form the same area. GFS and FAV told similar stories to try to knock out the statement of the gardener.

These stories by GFR, GFS, GFT and FAV must be seen in another light. Defence witness CBP92 is a jurist from Rwanda who was employed by the Rwandan Prosecutor’s office in Kigali. He was assigned to work with the Belgian rogatory commission Judge Damien Vandermeersch. In conducting his investigations into the deaths of Belgians in Rwanda he had cause to investigate General Ndindiliyimana. He travelled to Nyaruhengeri and spoke to several witnesses including FAV. FAV was a famous member of IBUKA the survivor’s organisation that is notorious for fabricating evidence. He stated,

We were able to observe a significant number of fabricated testimonies. We were fully aware, as officers of the Prosecutor’s office, that IBUKA was destructing (sic) the Prosecutor’s office from its quest to find the truth, and, therefore, we needed to be very careful in order not to be misguided by members of IBUKA.[374]

The witness also stated that though it was officially registered as an association of genocide survivors, unofficially, it was an organisation pursuing the objective of fabricating evidence against a person they considered undesirable, or for the settling of accounts. In relation to FAV he testified that

A judicial police inspector can assess an interview or the testimony of a witness, but it is not for him to ascribe any value or weight to the testimony, because that lies with the judges. However what I learnt was that Alex’s testimony, in our context, was simply not taken into account. Because if he had been…General Ndindiliyimana would have been prosecuted in Belgium….[375]

Defence witness CBP44 knew Ignace and his wife, GFT. The witness was an assistant to the bourgmestre working under Kabeza. He never heard that the general was involved in any killings in the commune. He stated,

Most of the attackers who were involved in the killings did so for personal gain or material interest. They wanted to enrich themselves by looting the property of others. So that was the intention of most of the killers. So no one ever accused Ndindiliyimana of being responsible for those massacres.[376]

He stated that an informant came to his communal office and told him that Ignace was killed by GFR who was known as a bandit and was guilty of several murders in the local area. He heard that he also killed Célestin. Significantly he never heard anyone say that General Ndindiliyimana was involved in any way.[377]

Defence witness CBP78 testified as to prison conditions motivating GFR to lie. This witness was arrested in 1997 for genocide. Since that time he has not appeared before a single judge. He described the jailhouse conditions as subhuman and stated people starved due to lack of food, there was no hygiene and overcrowding. There was no medical attention and inadequate shelter. He stated there is a wing in the Butare prison called the “Arusha wing” as the prisoners lodged there had made confessions and were willing to be witnesses before the ICTR. These prisoners obtained the benefit of better conditions and food. Later, when he was in the Rwandex prison he “heard people say that they were seeking people who could level accusations against Ndindiliyimana.”[378] The witness spoke with a man named Rudasingwa who told him

[T]hat people were being sought to testify against General Ndindiliyimana and that he had been approached, that he had nothing against the man. However, Theobalde said to me that another colleague of his, a former policeman, had indeed accepted to come and testify against General Ndindiliyimana. So Theobalde said that he asked him what he was accusing him of, in view of the fact that all the others who had been approached for the same purpose had refused to do so. Theobalde told me that Kajuga had received promises from a committee that if he said the weapons he received came from Ndindiliyimana…[379]

The witness lived with GFR in the same prison and he knew Kajuga even before the war. He also knew both Célestin and Ignace. In early April he met with Célestin who was going to be at his wedding. Ignace was to be the driver at the wedding. He was good friends with Ignace, a friend also of his father. He also knew Ignace’s wife. He has every motive too want justice for his friend and to see to it that the real killer is brought to justice. So, if he had heard that General Ndindiliyimana was involved he had every motive and opportunity to say so yet he denies it. More, he stated “Ignace was killed at his home. According to the information I got from his wife, he was killed with a knife.”[380] He also said that he was told that GFR was the killer. The witness even went to Ignace’s funeral on the same day that he died. He investigated the murder as he was a close friend and checked that the information he was told was correct.[381]He stated that Célestin was also a good friend of his father and he learned that “Munyanshagore was hunted down and flushed out of the same hiding points as Ignace. The assailants pursued him, arrested him in the banana plantation, where they killed him.” And, “according to the information I received on the occasion of the gacaca proceedings, he was killed by Nkabara.”[382] He refuted the stories of GFS and GFT and stated that he also had never heard anyone ascribe responsibility to Ndindiliyimana. More, he fled with Ignace’s wife and lived and worked with her in a refugee camp in Burundi and for Medicines Sans Frontieres and said that he never saw any gendarmes commit crimes in Nyaruhengeri or take part in any killings or distribute weapons or fuel to anyone and even questioned how they could have done so.[383]

Defence witness Marie Nakure is the general’s wife and has a clear bias towards the accused. However, that cannot be held against her and it is submitted that she testified in a dignified, quiet, calm and serious manner and answered all questions put to her clearly without contradictions. Her testimony is also consistent with that of the witness GFT on certain matters. Madame Nakure confirmed that Ignace and Célestin were killed and she confirmed that GFT did, indeed flee to her house for safety after the murder of her husband. Marie stated that GFT told her about the circumstances of the death but at no time did she tell Marie that she had heard that the general had ordered their deaths. Her telling of the facts is more consistent with real behaviour. If GFT really had heard that the general ordered her husband’s death would she flee to the general’s house where he might be for all she knows? It is absurd on the face of things.

Marie also confirmed that she did drive GFT to Rubona to assist her. Marie also denied strongly that any gendarmes at her house were involved in any criminal activity whatsoever and confirmed that she and the family and the gendarmes protected two young Tutsi children at the house for some time until delivered to an order of nuns.

The Prosecutor alleges, through his witnesses, though not through his indictment which, as we stated above, does not set out a charge at all, that General Ndindiliyimana is somehow responsible for the deaths of Ignace and Célestin on the basis of direct responsibility under Article 6(1) in that the accused allegedly ordered the killings. However he is not actually charged with ordering the killings. That is the intellectual problem one has with this charge. It is only charged that Pierre Kajuga “claims” that to be so. In the result, it is the defence submission that unless the Prosecutor seeks to amend the indictment to conform to the evidence that there is no charge made out in the indictment and therefore no charge to answer.

However, as a factual matter it is also submitted that on the totality of the evidence the prosecution has not only failed to prove that General Ndindiliyimana ordered those deaths he has failed to even prove that Kajuga “claimed” that he did.

One would have thought that the better charge was to bring one for perjury against Kajuga for making a false claim as he has clearly done. One important consideration is the complete lack of any evidence as to exactly what Ndindiliyimana is supposed to have said to whomever he is supposed to have said it. One would think that the man who claimed to hear that order at Kibilizi’s would remember the exact words. But they were not told to the Trial Chamber. They were not related because they were never spoken. What earthly motive would General Ndindiliyimana have to pick on two individuals, go out of his way in a busy agenda of saving Tutsi all over Butare as General Dallaire stated, and order their deaths? For what benefit? The prosecution has shown none. The prosecution has shown no motive at all. Without motive there is no crime.

Paragraph 96 of the indictment charges that “In the month of April 1994, militiamen erected a roadblock near Kacyiru Camp, the headquarters of the Gendarmerie. At the roadblock, which was supervised by two NCO gendarmes, the militiamen killed several Tutsi as well as some Hutu who had come to seek refuge at the camp and whom the gendarmes had handed over to them.” No other charge is made out with respect to Camp Kacyiru. The prosecution called only one witness having anything to say about Camp Kacyiru and that witness, KF, and she never testified that she saw any violence at the roadblock she claimed was near the Camp. The crux of the charge is the killing of Tutsi and Hutu civilians at that roadblock. But she stated she never saw any. She completely failed to support the charge, the material fact, in the indictment. The only evidence that even speaks about the alleged roadblock is her testimony that she was stopped, while travelling on a bus, at a roadblock about 200 metres from the Camp. (Note: Several defence witnesses put the nearest civilians roadblock at Kanimba about 2 to 3 kilometres away from the Camp while another put it at about 1 kilometre see discussion below in the section on Allegations Not Pleaded in the Indictment) The roadblock was manned by armed men in various mix of dress some in civilian clothes, some parts of uniforms, but no one in full military gear.[384]In other words she never saw gendarmes there. She mentions no violent incident at that roadblock. To the contrary she stated that “no, I did not see people pass by that roadblock. Members of the population did not move about in that neighbourhood. However, the roadblock was lower(ed) to allow the bus to pass. Only gendarmes and soldiers could move about in that neighbourhood.. Members of the civilian population did not move about in that neighbourhood.”[385] The prosecution was mistaken as the Camp was not gendarme headquarters. KF never placed gendarmes at that roadblock. She never saw anyone killed at that roadblock. She stated that an NCO in the camp said she might have problems. Mr. Jegede, trying to cross-examine his own witness to get her to say what she did not want to say suggested in a question that “And you said…you could be killed…” Defence counsel objected that she had said she was advised that “she might have problems” and had said nothing about being killed. Of course the witness then took the answer thrown to her by the prosecution counsel and stated that a “person could be killed”. But this answer was provided by counsel blatantly. It must be disregarded. In any event an opinion of another NCO as to what might happen is an entirely different thing from establishing that things did happen. The Prosecutor has completely failed to establish the elements of the charge vis a vis the accused. Firstly, no gendarmes are place at the site. Secondly no violence is observed. Thirdly, this was an army operational sector and therefore the accused had no command responsibility over the gendarmes at the Camp. Fourthly, even if he had, there is no evidence that he had any prior notice that gendarmes might act criminally at such a roadblock, there is no evidence he ordered any such action, and there is no evidence led that he received a report or any information so that he should have known that this action was going to take place or had taken place. Therefore the charge has not been substantiated at all let alone beyond a reasonable doubt. In fact it is submitted no evidence has been led to support that charge at all and it must be dismissed. And in any event, the Prosecutor has not established the elements of command responsibility necessary. Witness KF went on at length about things that are not charged in the indictment in particular with respect to allegations of events inside the Camp. These will be discussed below in the section on Allegations Not Pleaded in the Indictment, below.

C. The Death of Gashugi

Paragraph 99 of the Indictment charges that “In the last few days of April, 1994, Antoine Bisonimbwa, Augustin Ndindiliyimana’s uncle, was informed that the people of Nyaruhengeri refused to kill Gahoki, a Tutsi tradesman. He went to the residence of Augustin Ndindiliyimana, to collect three gendarmes who went to kill the tradesman. After killing him, the gendarmes seized the motorcycle belonging to the deceased and took it to the residence of Augustin Ndindiliyimana to be used in their daily movements. On the face of it there is no charge against General Ndindiliyimana. There is no allegation that General Ndindiliyimana ordered this alleged action or that he had command responsibility for those gendarmes. Secondly, the Prosecutor failed to prove that a man named Gahoki was killed. There was no mention of such a person in the entire trial. Instead the Prosecutor called witnesses who spoke about an entirely different person named Gashugi. It is anticipated that the Prosecutor will argue that they are one and the same person and that the use of the name Gahoki in the indictment is a mistake. However, the Prosecutor has not brought a motion to amend the indictment to correct that “mistake” and incorporate the name Gashugi and it therefore must be assumed that the Prosecutor still insists that a man named Gahoki was the victim, not one Gashugi. Therefore the charge fails and it must be dismissed.

Strictly speaking the allegations made by prosecution witnesses that gendarmes were involved in the death of a person named Gashugi lie outside the indictment and therefore, since the allegations would support a separate charge in the indictment and should have been pleaded as such, there is no charge to answer whatsoever. We could therefore place our submissions regarding these allegations in the section below on Allegations Not Pleaded in the Indictment where they properly belong. However, since we anticipate that the will argue the change of names is a simple error we will make our submissions on the facts alleged here. But we stress that our submissions that apply to the allegations not pleaded in the indictment apply to this paragraph of the indictment as well.

The only evidence that the prosecution called on this matter is hearsay and speculation. The two principal witnesses for the prosecution contradict themselves in major ways. On the totality of the evidence it is submitted that gendarmes had nothing to do with the death of anyone named Gashugi and no link has been made to General Ndindiliyimana.

Witness GFT, whose testimony has been analysed above, claimed that she hid at Joseph Kagenza’s house. She stated “there was information that Mr. Gashugi was killed.”[386] She says that she heard that gendarmes took part in that incident. It is uncorroborated hearsay and she never informed the court of the source of her information. She simply asserted:

During the days that I was at Kagenza’a house, the violence was at its strongest level and someone came to inform us about this and to inform the conseiller, and there was information that Gashugi was killed.[387]

Now, this testimony is crucial to the defence. She states that someone informed theconseiller that Gashugi was killed. Therefore, at that point, Gashugi is dead and theconseiller, Bisomimbwa, was simply informed of the death. End of story. Gashugi is already dead.

So, the principal witness for the prosecution fails to make any connection between the death of that man and gendarmes. In fact she confirms that by continuing with her story. She then states that the man who informed them of this was named Kimonyi. He also informed the conseiller that members of the Mudoboli population had refused to kill Gashugi. It is clear he is explaining to the conseiller that people from another area where responsible for the death of Gashugi. The reaction of theconseiller is perfectly logical and normal. He went to Ndindiliyimana’s house on his bicycle, obtained the assistance of the three gendarmes there and went off in the direction of Gashugi’s home to investigate what had happened to Gashugi. She says she later hears shots from that direction.[388] It is likely that the gendarmes with the conseiller were firing at the killers of Gashugi to drive them away and to prevent them from looting the home. She then states that she later saw gendarmes with a red motorcycle that she assumed belonged to Gashugi. In fact, this is drawn out by the prosecution counsel, Mr. Ba who kept trying to suggest to her the answers wanted.

The problem for her credibility and the prosecution case is that she then totally contradicts herself by stating:

On the day I learned he had been killed, that he was arrested by a gendarme who took him to the secteur office where there was a pit in which they threw peoples’ bodies. So he was killed there but I don’t know by who exactly.

So first she states that he was killed at his house and the gendarmes and conseiller go there to see what is happening and she hears shots. But then she changes it to say he was arrested by a gendarme and killed near the secteur office by unknown persons. Both versions cannot be correct. It is submitted that she only added the element of a gendarme taking him to the secteur office on the prodding of prosecution counsel to which vehement objections were made by defence counsel. So she forgot what she testified to before that and came up with a different scenario. Her dishonesty is clear.

Witness GFR, also analysed above, simply claimed that gendarmes killed Gashugi. He gives an entirely different version involving a different place and different people. He stated that he was talking to Gashugi and trying to get a bribe from him to help him hide and he sees a gendarme approach with the son of Bisomimbwa and Kagenza. Then a gendarme simply shoots Gashugi. Now, Kagenza, according to GFT, was the man she was hiding with, at his home when they found out that Gashugi had been killed. Remember that GFT said that someone came to inform “us” referring to herself and Kagenza. But GFR puts Kagenza at the site of the killing. Further the site of the killing has now gone from Gashugi’s house (the first version of GFT), to the secteur office (the second version by GFT and GFR ). These two versions are impossible to reconcile. It is a certainty that if Kagenza had been involved GFT would have stated so.

The main problem with the credibility of GFR aside what has been said with respect to this man above is that he has given two different versions of how when and how the man was killed. In his 1999 statement he stated he did not know how or who butviva voce he claims it was a gendarme with a rifle.[389] He also stated in his prior statement that Gashugi was killed the first day of the war, which would make it April 7^th. The Trial Chamber should also note that prosecution witness FAV who claims to know almost everything that happened in Nyaruhengeri remained strangely silent on this matter. He does not corroborate the versions by GFR or GFT.

Defence witness CBP44 stated that Gashugi died under similar circumstances as Ignace and Célestin.

He was attacked by the same group of murderers who had killed Ignace and Munyanshagore. What I learned was that those murderers wanted to get his motorcycle so they went to fetch him at his home and killed him. That information was provided to me by someone whom I met at Kibilizi.[390]

As to the motorcycle he testified that his “…informant on the Gashugi murder told me that it was one Theobald who had killed Gashugi and taken his motorcycle away. Later on, I, myself, saw Theobald riding that motorcycle”[391] and, “After killing Gashugi, Theobald and his friends-according to the informant who met me in Kibilizi, Theobald took possession of the motorcycle and started riding it, and even taking pride in his misdeed.”[392] Further, we remind the Trial Chamber that Marie Nakure denied that the gendarmes at the house were involved in any incidents.

The problem for the Prosecutor does not end with the total lack of credibility of his witnesses. The Prosecutor has also not established any link with General Ndindiliyimana. The Trial Chamber heard that the gendarmes had been placed there after Marie Nakure requested protection from the local civil authority and it is that authority that had command over those gendarmes. The Prosecutor, once again, has completely failed to supply any evidence at all that General Ndindiliyimana had any prior indication that gendarmes located there were going to take part in any criminal activity nor any evidence that he should have known and failed to prevent it. Nor has the Prosecutor presented any evidence that he gave direct orders to kill Gashugi. Nor did the Prosecutor present any evidence that he was later informed of such an incident and failed to take measures against the men allegedly involved. Another problem is that GFR’s description of the death of Gashugi makes it a clear case of robbery. It was not ethnically motivated at all. If you were to believe GFR then you must believe that the gendarmes beat up GFR to take his money and belt and then tried to rob Gashugi and when he resisted shot him.[393] Such a crime does not come within the jurisdiction of the tribunal. It is therefore submitted that the Prosecutor has failed to prove any responsibility of General Ndindiliyimana beyond a reasonable doubt and this charge (if the Chamber decides to deal with this allegations as falling within the indictment) must also be dismissed.

D. The Death of Aloys Niyoyita

Paragraph 100 of the indictment states: “In Kigali, in early May 1994, gendarmes under the command of Augustin Ndindiliyimana killed Aloys Niyoyita, a Tutsi civilian, member of the Liberal Party.” However the Prosecutor spectacularly failed to establish any superior or command responsibility element with respect to this allegation.

The only witness to speak of this allegation was GLJ who testified that gendarmes killed the alleged victim in the last week of April or the first week of May. He stated

Two gendarmes killed him. They went past the rear courtyard. They found him at his house and killed him. The members of Karerangabo’s family who saw those people told us, came to ask us for help, and we rushed to help. I arrived, I saw the body, and that body was later removed by a Red Cross vehicle. Then we helped his wife to leave the site…

The witness did not elaborate on how or why the children of the Karerangabo family identified the culprits as gendarmes. No description of their uniforms was elicited from the witness and it is impossible to ascertain whether the children identified the culprits correctly or not. There is very little to go on. Further in the Nyamirambo area at the end of April and early May the RPF we have heard evidence of RPF raids into the area to take out there people and that an RPF machine gun nest was located in the minaret of the local mosque. In other words, RPF patrols were in the area. This is important when one places that information in the context of the testimony of KF who stated: “When the Inkotanyi arrived some of them were wearing the gendarmerie attire, others were wearing the uniforms of soldiers at Kanombe camp. …”[394]

The Prosecutor has several problems. First, he has failed to exclude the possibility that the men the children said they saw were not, in fact, gendarmes. It is quite possible that they were RPF soldiers in gendarme uniform as we know from KF that some RPF were moving around in gendarme uniforms. It is also possible that they were simple bandits in stolen uniforms or in pieces of uniforms that resembled gendarmes—several witnesses attested to seeing Interahamwe in various pieces of military uniforms. Second, even if the Prosecutor had established that they were real gendarmes (which is denied) then he has failed to establish whether they were gendarmes under army operational command or those few gendarmes under General Ndindiliyimana’s command. It is known that Kigali was an operational sector and, aside from the road safety company, and some headquarters elements, the rest of the gendarmes there were under the army operational sector command. Thus, it is not enough for the Prosecutor to lead evidence that gendarmes did something without identifying which unit that they were with so that their responsible superiors could be identified. This, the Prosecutor failed to do.

Even if the Prosecutor could get around that hurdle, he has a third problem, as there was no evidence led that General Ndindiliyimana had any prior notice that gendarmes under his command were going to murder this man, there was no evidence presented that he gave orders to kill this man, and there was no evidence presented that received a report after the fact that particular gendarmes had killed this so that he could conduct an investigation into it. There is nothing linking General Ndindiliyimana to this incident, absolutely nothing.

This witness GLJ also has the same credibility problems as the other Hutu prisoner witnesses. He has been held in harsh conditions for years without due process and has a high motivation to testify in order to gain his freedom and receive better living conditions in prison. In the one statement that the defence had from the Prosecutor regarding this man, he never mentions gendarmes being at the three meetings he talks about in his testimony, or that gendarmes were involved in killings. Lastly the story about gendarmes or men appearing to be gendarmes is the uncorroborated hearsay of young children who were not called by the Prosecutor even though they were direct witnesses nor was any one from the Red Cross called to corroborate this story when they easily could have been. If the Prosecutor was too indifferent to prosecute this charge properly then no responsibility can be ascribed to the accused who was totally unaware that such an incident had ever happened. Therefore the charge must be dismissed.

E. The Death of Phocus Kananeri

Paragraph 101 states, “In Kigali, in early May 1994, gendarmes under the command of Augustin Ndindiliyimana killed Phocus Kananeri, a Tutsi civilian inside his house.” GLJ testified as to this incident as well. Again, as with the death of Niyoyita there was no evidence led that supports this uncorroborated hearsay. There was no evidence led that this gendarme was under the command of General Ndindiliyimana. The only identifying factor we have is that he was part of Karamera’s security detail. No evidence has been lead that, in fact, Karamera, who was just a member of the MRND, had a security detail. There was no evidence led to establish the necessary elements of superior or command responsibility in this matter. No evidence was called to establish that the gendarme was under General Ndindiliyimana’s command as opposed to the army operational sector command of Kigali. No evidence was led to establish that he belonged to the VIP unit. No evidence was led to establish any prior knowledge of the general that this gendarme was going to commit this murder. No evidence was led that General Ndindiliyimana ordered this gendarme to commit this murder. No evidence was led to establish that the general was informed of this after the fact and failed to take appropriate measures against this gendarme. In fact the only clue we have as to the command responsibility comes from GLJ who testified,

I went to tell those people living uphill from that house to intercept the gendarme. I moved on 20 metres and the gendarme met Colonel Murera. And Colonel (phonetic –Muigiri) asked him to lie flat on the ground and he shot him.[395]

Therefore, it appears that the army took command responsibility for the action of this gendarme as a senior army officer and summarily executed him. This testimony should also be considered in light of the testimony of prosecution witness DBJ who testified that Colonel Munyakazi helped this witness and others cross the Kigina roadblock and that another gendarme officer, Sekamana, rescued him and took him to Michel cathedral. Clearly, these gendarmes, whoever commanded them, had orders to and did try to save people in that Nyamirambo area, not to kill them. Therefore no command responsibility can be imputed to General Ndindiliyimana and the charge must be dismissed.

F. Nyamirambo Roadblock

Paragraph 102 states “In Kigali in April 1994 at Nyamirambo, gendarmes under the command of Augustin Ndindiliyimana occupied one of the many roadblocks erected in that secteur. They would check the ethnic origin of the passers-by at the roadblock by examining their identity cards. Anyone who was of Tutsi origin or was suspected of belonging to that ethnic group was summarily executed. The executioners would then invariably accuse their victims of being “Inkotanyi”

The Prosecutor called witness GLJ to try to establish this allegation, but witness GLJ failed to testify about any roadblock where gendarmes committed crimes. The Prosecutor did not lead any other evidence of a roadblock manned by gendarmes where summary executions took place. There is no charge to answer. He only mentioned a gendarme roadblock near the Belgian school where he was stopped and searched his vehicle and then he proceeded on his journey.[396] He then recounts going around the city collecting dead bodies on the instructions of the prefétRenzaho and then organising the setting up of civilian self-defence roadblocks at various places and that if a suspected Inkotanyi that is RPF, infiltrator was detained he was to be taken to the local gendarme station for investigation. No evidenced at all was called to support the specific allegation in paragraph 102. However, the Prosecutor did lead evidence through General Dallaire with respect to roadblocks. General Dallaire stated:

Q. “All right. So, you said that at one point in your movements around Kigali those first few days that certain barricades-you said there were regular tactically necessary barricades raised by the-both the RPF and the RGF. You also said that you saw some-at a certain barricade, you said you saw some gendarmes with militia. I take it that those were not gendarmes, in your opinion, under the command of General Ndindiliyimana; they would have been what you call rogue elements or deserters or civilians in gendarme uniform?”

A. “Well, that’s what I was being told by Ndindiliyimana, and I had, truly, no way of discerning that; although, quite often they were drugged up or drunked up and quite wild, and some of them were only in half uniforms, as I indicated before. Yeah, that’s it.”

And ,

Q. “Right, in any event, neither in your book nor in any situation report that I can find did you ever reproach General Ndindiliyimana for seeing certain gendarmes or people appearing to be gendarmes at certain barricades, you never reproached him for that. And I take it because you never really thought that he was responsible for that; is that correct?”

A. “Well, it had been made clear early on that, in fact, those troops were-no more really under his command except some elements in general security around the country, so my complaint on that was far more directed towards the army, the chief of staff-correction, the chief of staff, yes, of the army, Bizimungu, and the Minister of Defence.”[397]

The Trial Chamber will note that General Dallaire did not testify that he saw or heard about gendarmes killing anyone at roadblocks. Therefore the prosecution did not present any evidence to prove the specific charge in paragraph 102 and it therefore must be dismissed.

IV. Crimes Against Humanity: Extermination

Paragraph 109 of the indictment states: “The Prosecutor of the International Criminal Tribunal for Rwanda charges …Augustin Ndindiliyimana with Extermination as a Crime Against Humanity. An offence punishable under Article (3)(b) of the Statute, in that in 1994, in Rwanda …Augustin Ndindiliyimana were responsible for murders committed on a large scale against the Rwandan civilian population, as part of widespread or systematic attacks, on ethnic, racial or political grounds:

Pursuant to Article 6(3) of the Statute: in that the accused …Augustin Ndindiliyimana knew or had reason to know that soldiers under their command or militiamen obeying their orders had committed or were about to commit the crimes referred to in the paragraphs 82, 84, 89, 90, 73 and 102 above and did not take reasonable and necessary measures to prevent such crimes or to punish the perpetrators thereof.”

General Ndindiliyimana is charged with the specific allegations in paragraph 73 regarding the events at Kansi and paragraph 102 regarding the allegation of killings by gendarmes at a roadblock in Nyamirambo. We have made our submissions on the evidence with respect to these two charges above under the Genocide count 3 for paragraph 73 and Crimes Against Humanity (Murder) count 4 with respect to paragraph 102. We have submitted that the Prosecutor has failed to prove the allegations of gendarme involvement and we have submitted that, even if the Trial Chamber were to accept these allegations as correct, (which is denied), the Prosecutor has failed to prove the elements necessary for superior or command responsibility with respect to those allegations.

It follows that the Prosecutor has not substantiated the charge in paragraph 109 and therefore this count must be dismissed. However, we submit that other considerations must also be taken into account for the Prosecutor to succeed on this count.

The three elements necessary to support the charge of extermination as a crime against humanity is the finding of a “widespread or systematic attack”, against a civilian population, for ethnic, racial or political grounds.

The Prosecutor did not call any evidence to suggest that the Gendarmerie of Rwanda was engaged in widespread or systematic attacks. Rather the evidence led by the Prosecutor suggested random attacks by gendarmes in random locations while in other locations they were saving people or trying to protect the civilian population. It is submitted that the widespread and systematic attacks must refer to such attacks by the organisation of which the alleged culprits are members, in this case of the Gendarmerie. It cannot refer to generalised widespread attacks committed spontaneously by members of the population for various reasons, nor can it refer to systematic attacks committed by other organisations over which they have no control or no connection. Therefore the Prosecutor must prove beyond a reasonable doubt that the Gendarmerie engaged in widespread or systematic attacks of which the incidents alleged in paragraphs 73 as 102 were a part. Failing this the charge must be dismissed.

We submit that the Prosecutor has completely failed in this regard. We will not repeat all the factual submissions made by the defence with respect to the Conspiracy count, the Complicity count, the Genocide count or the Crimes Against Humanity (murder) count. But we do incorporate them here with respect to our submission on this count of extermination. It is established on the totality of the evidence that the Prosecutor has failed to prove any widespread attacks by the Gendarmerie of Rwanda. Rather, the witnesses called by the Prosecutor, if you believed them, present a picture of random attacks at random places while the greater part of the Gendarmerie tried to protect the population of both major ethnicities in Rwanda. For example we have the allegation of an attack at Kansi, of one or two in Kigali, at Murambi and so on by small groups of gendarmes who appear to be disobeying orders. For instance in Kibuye we have the witness describing a mutinous group in the camp defying and threatening their own officer, in Kigali, a lone gendarme shoots a man named Kanereri, in Murambi some gendarmes attack the refugees while others try to protect them. Other prosecution witnesses such as General Dallaire and Dr. Des Forges stated that gendarmes, including General Ndindiliyimana saved people, and that he attempted to save people in a systematic way by setting up places in Kigali where the few gendarmes under his command could protect people. You have gendarmes acting under army command. You have gendarmes acting under the command of the civil authority. But even on the prosecution case witnesses have testified as to gendarmes saving them, for example ON at Nyundo Hill, ANC regarding the Tutsi orphans at the general’s Kigali house, the protection of Tutsi children at the general’s house in Nyaruhengeri, the protection of people at Hôtel Mille Collines and other places in Kigali and other places in Rwanda. You have the testimony of gendarmes that they died trying to protect civilians. In conclusion, the Prosecutor, even on his own case, did not establish that there were either widespread attacks by the Gendarmerie on the civilian population nor did he establish that there were systematic attacks by the Gendarmerie on the civilian population. In essence, the accused cannot be fixed with responsibility for generalised widespread attacks that may or may not have been committed by other organisations of which he was not a part and over which he had no command and control. He can only be fixed with responsibility if he and his organisation engaged in widespread or systematic attacks. This vital element the Prosecutor has failed to prove.

The defence also submits that if the accused were to be found guilty on a set of facts under one count then he cannot be convicted on another count on the same set of facts. It is either Conspiracy, or Genocide or Crimes Against Humanity. No one can be punished twice for the same offence. We also submit that if the allegations under the Conspiracy and Genocide counts are dismissed then the extermination count must also be dismissed as a matter of logic.

V. Violations of Common Article 3 To The Geneva Conventions And Additional Protocol II: Murder

The Prosecutor alleges in Count 7 that the accused is responsible for murder as a violation of Common Article 3 for soldiers under his command or civilians over which he had authority, “many murders” of civilians during a non-international armed conflict.

The Akayesu judgement held that where both violations of Common Article 3 and Additional Protocol II are alleged, the Prosecutor must prove the applicability of both, as Additional Protocol II requires a finding that the conflict is non-international. The material facts alleged in paragraph 118 are insufficient to establish criminal liability. General Ndindiliyimana is alleged to have had superior responsibility over those committing the crimes alleged in paragraphs 76, 77, and 102 (all concerning Kigali) during the course of a non-international armed conflict.[398]

As the Trial Chamber will recall the conditions required to fulfil the material requirements of applicability of Additional Protocol II at the time of the events alleged in the indictment are that: (1) an armed conflict took place in Rwanda, between its armed forces and dissident armed forces or other organised groups, (2) the dissident armed forces or other organised armed groups were under responsible command, (3) the dissident forces or other organised armed groups were able to exercise such control over a part of their territory as to enable them to carry out sustained and concerted military operations, and (4) the dissident armed forces or other organised armed groups were able to implement Additional Protocol II.[399]

The Prosecutor has not presented any evidence of two of these essential elements. The first element he has failed to prove is that the RPF is a dissident armed force or armed group. We could examine the testimony of many witnesses in this respect for the defence, but even for the prosecution, it is clear that the RPF was a wing of the Ugandan Army that was composed almost entirely of officers and men of the Ugandan Army and had access to the weapons, ammunition, transportation, communications and bases of the Ugandan Army. It must be remembered that the after the defeat of the RPF in October 1990 the RPF retreated back to its original bases in Uganda which were Ugandan Army bases. The RPF was not an organic armed dissident group such as the FARC (Revolutionary Armed Forces of Columbia) which grew out of the local population, had its support within the country of Columbia only and which always operated within the territory of Columbia. Nor was it an organic dissident group the President will be too familiar with, the Tamil Tigers, in the north of Sri Lanka, or as defence counsel is more familiar with, the IRA in Britain, or the Mohawk warriors or FLQ in Canada, all of which meet the definition under the Additional Protocol II.

The Rwanda Patriotic Front is an entirely different animal. Most of its soldiers were born in Uganda and had Ugandan citizenship, carried Ugandan Army identification cards and were part of Museveni’s army. Uganda actively supported those elements of its armed forces that had aspirations to rule Rwanda for reasons of its own internal politics and agreed to the use of the Ugandan Army to invade Rwanda for the benefit of the Tutsi population of Uganda in the army and for the benefit of the government of Uganda and its allies as well.

The RPF never developed the capacity to sustain itself solely on the resources under its control in Rwanda so as to enable them to carry out sustained and concerted military operations. They never exercised control of enough territory to do that and in fact they had no support from the local population where they controlled territory as they had ethnically cleansed those areas. They pushed out or killed the local population and forced a million of them to flee south to the capital as refugees, whereas in the examples cited above of legitimate “dissident armed forces” they all have strong support in the local population and control enough territory to carry out sustained and concerted military operations.

The prosecution did not call any expert to establish that the RPF met the requirements of Additional Protocol II. The burden of proof is on them. In an addition to the RPF, there is evidence of not only invasion by Uganda (to which the Rwandan ambassador to the UN made a protest to the Security Council) but also of an invasion by either RPF forces or Burundian army forces from Burundi in the south though this is less direct than is the case with Uganda. Further there is evidence that the United States of America assisted the RPF by dropping troops to the RPF after the 6^th of April using US C130 Hercules aircraft observed in the Kibungo area as testified to by General Ndindiliyimana. If this information is correct then these were acts of war by both Burundi and the United States against Rwanda. Therefore, the conflict in Rwanda was an international armed conflict. Another reason supporting this argument is that the RPF crossed the international border between Rwanda and Zaire and continued the war against the remnants of the Rwandan Armed Forces and the Rwandan population that had fled before the advance of the RPF.

The Prosecutor appears confused as he often tries to argue that the RPF was some sort of local group due to the fact that the RPF succeeded in bullying its way into an agreement with the government of Rwanda giving it a right to take part in the internal politics of the country. However, it must be remembered that many of the concessions it obtained at the point of a gun were granted by its acolytes that it managed to place in the Rwandan government. It must also be remembered that it only obtained these concessions at the point of a gun and in international law these are not taken to be legitimate. The RPF was, and acted no differently, than any other invading and occupying power, forcing its way into the country, holding it hostage and forcing its will on the sovereign government of Rwanda. The Prosecutor also relies on the fact that the invasion created an inner turmoil in the country as some indication that it was a local issue. But this can no more be said than that the placement of the entire Japanese population of the United States into detention camps after Japan and the United States went to war made that war an internal war inside the United States. Or he claims, against all history and evidence, that the RPF were some sort of benign refugee group trying to come back instead of the armed fist of western interests in central Africa.

The defence could, as stated above, cite a bounty of evidence with respect to the submission made above but we have neither the time nor the space. We refer to the expert testimony of Dr. Lugan and Dr. Strizek in this regard and to the several UNAMIR sitreps that speak of the Ugandan army build up with the RPF for the final offensive in 1994.

Essentially the burden is on the Prosecutor to prove beyond a reasonable doubt each element of every charge. It has sometimes been said that at this tribunal the presumption of innocence has been reversed to a presumption of guilt. But it is the attitude and methods of the Prosecutor that have caused this impression among many observers. We are certain that this Trial Chamber knows very well that the presumption of innocence means something and that the Prosecutor bears the burden of proof, not the defence. The Prosecutor failed to even try to prove the essential element for Count 7 and the defence has more than raised reasonable doubt as to whether the RPF fall within Additional Protocol II.

The Prosecutor also failed to establish the required nexus between the offences charged and the armed conflict. The Kayishema and Ruzindana judgement states that “if there is not a direct link between the offences and the armed conflict there is no ground for the conclusion that Common Article 3 and Protocol II are violated.”[400]

The nexus required is a “direct connection between the alleged crimes referred to in the indictment, and the armed conflict should be established factually…It is incumbent upon the prosecution to present those facts and to prove beyond a reasonable doubt that such a nexus exists.[401]

In the Kayishema decision the Trial Chamber found that:

It is true that hostilities had broken out between the RPF and the FAR in this period of time. However, evidence was not produced that the military operations occurred n Kibuye Prefecture when the alleged crimes were committed. Furthermore, it was not shown that there was a direct link between crimes committed against these victims and the hostilities mentioned by the Prosecutor. It was also not proved that the victims were accomplices of the RPF and/or were responsible for the death of the President. The Prosecutor herself recognised that the Tutsi were being sought out on the pretext that they were accomplices etc. These allegations show only that the armed conflict had been used as a pretext to unleash an official policy of genocide. Therefore, such allegations cannot be considered as evidence of a direct link between the alleged crimes and the armed conflict.[402]

The Prosecutor in this case has failed to show such a direct link. Military operations were occurring throughout Kigali when the alleged crimes were allegedly committed. But, there is no evidence of a direct link between the crimes alleged at André , CELA and Nyamirambo and the hostilities between the FAR and the RPF. There has been no evidence of concerted military operations in those specific locations.

The Appeals Chamber in Kunarac et al, held that the following factors must be considered in determining whether the existence of a direct connection exists: (1) whether the alleged perpetrator is a combatant, (2) whether the alleged victim is a non-combatant, (3) whether the victim is a member of an opposing party, (4) whether the act serves the ultimate goal of the military campaign, (5) whether the crime is committed as part of or in the context of officials duties.[403]

The Prosecutor alleges only superior responsibility in relation to war crimes. He does not allege that the accused actually committed or ordered the charged crimes, as prescribed by the Statute. In relation to the events said to constitute the material facts of the charge, the Prosecutor also failed to produce evidence suggesting who had operational control over the gendarmes in question. Kigali was an operational sector and the Prosecutor has failed to adduce evidence of superior responsibility. The Prosecutor has failed to present evidence that the alleged crimes served the ultimate goal of the military campaign. In fact the Prosecutor claims that these alleged crimes did not serve the ultimate goal of the military campaign, that is, victory over the RPF. Rather they allege that the alleged crimes were outside of the aims of the ultimate goal of the military campaign and were part of another separate policy and campaign that being the extermination of the Tutsi and that the military campaign was just a pretext for this objective. Therefore the Prosecutor has failed to meet the requirements of Common Article 3 and Protocol II and the charge must be dismissed.

VI. Allegations Not Pleaded In The Indictment

A. Historical Background of the Indictment and the Extraneous Allegations

The first indictment against General Ndindiliyimana was dated the 20^th of January 2000 but was only confirmed on the 28^th of January, 2000. The warrant of arrest was issued the same day as the indictment was confirmed and the accused was arrested the same day in Belgium.

The first indictment was filed on the 29^th of January in redacted form. It was so vague that it did not disclose any charges at all. Amendments were obviously expected.

General Ndindiliyimana was not served a copy of the indictment on his arrest as required nor was he informed of the nature of the charges against him. He received a copy of the indictment only on the 4^th of February 2000.

General Ndindiliyimana was only brought before Judge Dolenc to enter a plea on the 27^th of April, 3 months after his arrest, also in violation of the Statute. On that date, he was represented by duty counsel. Mr. Eboe-Osuji, for the Prosecutor at that time, requested an amendment to the indictment in what was then paragraph 4.8. Judge Dolenc asked the Prosecutor if there were any other amendments to make and was told “That will be all, your honour.”[404]

The indictment was then read to General Ndindiliyimana. We invite the judges to re-read that initial indictment. It is very instructive, in that none of the charges he now faces regarding allegations of his personal involvement in killings were contained in that indictment. The only charges he faced were of a general command responsibility nature. Nothing was mentioned about the allegations now contained the Conspiracy count or the Genocide counts.

Further the indictment was so littered with blacked out names and phrases that the duty counsel protested that it was not possible for the accused to know what he was really pleading to.

On October 5^th, 2000, present defence counsel appeared before the Tribunal concerning a motion regarding defects in the indictment, notably, that it was impossible to know the charges against him or even who his co-accused were when the indictment was itself redacted. In that hearing it was pointed out to the bench that not only was it difficult to understand the charges, but that the indictment even provided a complete defence to the charges. But, in any event, the judges in this trial must be concerned that when he was arrested, General Ndindiliyimana did not face the charges now contained in the amended indictment. Therefore, it is clear that the Prosecutor did not have a case against him on his arrest. The Prosecutor only developed a case against him after his arrest. The fundamental unfairness, the fundamental injustice of this is clear and need not be developed further. It is, therefore, a logical conclusion that the indictment was used as a means of pressuring him to cooperate with the tribunal. Only later, when negotiations between the general and Prosecutor came to an end did an amended indictment appear, more than four years after his initial appearance and just a few weeks before the start of his trial. The grave prejudice to the defence due to this manoeuvre by the Prosecutor is also evident. For four years the defence was hampered by not knowing what the real charges were and so wasted four years trying to guess what the charges would be. This gravely impaired our ability to conduct investigations and to make full answer and defence.

However, it must be assumed, that after four years of consideration and preparation, the Prosecutor knew exactly what his case was when he presented the final amended indictment and finally the accused knew, for the first time exactly what charges he faced. It was then necessary for us to reinvestigate these new allegations during the trial stage and try to make full answer and defence as the trial proceeded.

Yet, the Prosecutor, during the trial, continued the illegal tactic of bringing witnesses to present evidence of further allegations that were not in the amended indictment. Not only does this reveal that the Prosecutor was making up his case as he went along, he himself had no idea what the case was and neither did General Ndindiliyimana even as late as the final day of trial. Despite the length of the trial and the numerous opportunities the Prosecutor had to request further amendments of the indictment to make it conform to the evidence led at trial he did not do so. This is his conscious decision. He knew the consequences of failing to ask for such an amendment. He, therefore, must not benefit from this failure, nor can the accused suffer any disadvantage because of it.

The defence in this case was disclosed many pages of disclosure that had nothing to do with the indictment as it existed prior to the final amendment. The tribunal was informed that the defence took the position that these documents were irrelevant to the charges faced by the general and did not act on them.

A series of disclosures of this nature were made by the Prosecutor and it is important to note that almost without exception, they were statements made by Hutu prisoners in Rwanda and all made after the arrest of General Ndindiliyimana. This again indicates that the general was falsely arrested and the case against him created after his detention.

The Prosecutor made several attempts to have General Ndindiliyimana cooperate with the Prosecutor and testify against other accused in return for the dropping of the charges against him and his liberation from custody. General Ndindiliyimana made it quite clear that he was willing to cooperate with the Prosecutor but he did not appreciate being incarcerated to pressure him to do so. He maintained consistently that he was prepared to provide information but only if he was treated with respect and it was done on the record instead of engaging in back door negotiations as the Prosecutor tried to do. This series of offers by the Prosecutor commenced from counsel’s very first day at the tribunal when Lt. Colonel Patricia Wildermuth (US Air Force, JAG), of the Prosecutor’s office, made the first offer. The final offer was made by Sylvana Arbia on behalf of Carla Del Ponte at the commencement of the Military I General Ndindiliyimana was offered complete freedom and the dropping of all charges if he testified against Colonel Bagosora. The general responded by saying, again, that he was willing to cooperate but did not appreciate his freedom being used as a bargaining chip in order to ensure his cooperation and that if they were willing to treat him seriously and with respect and without preconditions he would talk to the Prosecutor. This they failed to do.[405]

The Prosecutor filed his amended indictment on the 23^rd of August 2004. Oddly, though he led evidence against the general that had been referred to in the pre-trial brief, dated March 16, 2004, none of those allegations were contained in the Amended Indictment. Therefore, it must be concluded that the Prosecutor made a conscious decision not to charge the general with those allegations and it was understood as such by the defence.

However, in complete disregard of the charges he chose to put in the indictment in the trial, and in complete disregard of the right of an accused to know what charges he faces and in what jeopardy he is, the Prosecutor lead evidence on allegations that he consciously chose not to put in the indictment. It is clear that this was done in order to take the defence by surprise and to prevent the defence from making full answer and defence. This again, shows the inherent dishonesty of the Prosecutor and the unfairness of the trial.

B. The Law

The indictment is the primary accusatory instrument and missing details must be supplied by amending the indictment, not by bill of particulars.[406]

The Trial Chamber’s approach is as follows: When a material fact cannot be reasonably related to the indictment, it will be excluded. Where the material fact is related to only a vague or general allegation in the indictment, then the Chamber will consider whether notice of the material fact was given in the pre-trial brief or the opening statement, so as to cure the vagueness of the indictment. Material facts that involve acts of the accused personally are scrutinized more closely than general allegations of criminal conduct. Other forms of disclosure such as witness statements or potential exhibits are generally insufficient to put the accused on reasonable notice, except where provided in advance in a motion to add a witness or where a lengthy adjournment was granted to allow the accused to prepare.[407]

Few indictments with material defects are likely to be cured by information given to the Defence outside the indictment, in view of the factual and legal complexity of the crimes heard by the ad hoc It is a possibility in a few cases that the Prosecution might cure the defect by giving timely, clear, and consistent information concerning the factual basis of the charge in relatively uncomplicated cases.[408]

The Appeal Chamber expressed its concern regarding the prosecution’s approach. It is only in exceptional cases that a defective indictment may be cured. Even if the prosecution had succeeded in arguing that the defects in the indictment had been cured, the Appeals Chamber would still have to consider whether the overall effect of the numerous defects would not have rendered the trial unfair in itself.[409]

Curing is an exceptional measure, regardless of whether the prosecution knew of the material facts at the time the indictment was filed and simply failed to plead them or whether the prosecution subsequently discovered the information during the course of the case. The risk of prejudice to the accused is the same.[410]

Only material facts, which can be reasonably related to existing charges, can cure a defective indictment by being communicated in the pre-trial brief or opening statement.[411]
Wholly omitted charges are impossible to cure without an amendment of the indictment.[412]

If new material facts are such that they could, on their own, support separate charges, the prosecution should seek leave to amend the indictment.[413]

The Appeals Chamber has held that criminal acts that were physically committed by the accused must be set forth in the indictment specifically, including where feasible the identity of the victim, the time and place of the events and the means by which the acts were committed. An indictment lacking this precision is defective; however, the defect may be cured if the Prosecutor provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges.[414]

In the trial judgement regarding Protais Zigiranyirazo, the Trial Chamber held that charges must be in the indictment and the Prosecutor cannot mould the case against the accused in the course of the trial depending on how the evidence unfolds.[415]This Chamber also agrees that this is the law as the President of the Chamber stated, during the testimony of prosecution witness LMC:

[T]here is no charge with regard to you on what transpired there at her place…I’m not going to convict in the air, there must be a charge. If there are no charges, I am not going to pick charges from the air and convict.[416]

It is submitted that every one of the allegations made by witnesses of the prosecution that are outside the indictment are such that individually they could support a separate charge and therefore must be specifically pleaded failing which they cannot be considered by the Trial Chamber.

C. Material Allegations Outside of the Amended Indictment

(1) Nyanza Stadium

The first material allegation made against General Ndindiliyimana that is not contained in the indictment is the allegation made by prosecution witness ANA about an alleged meeting at Nyanza stadium on May 22, 1994. The first time that General Ndindiliyimana was aware of such an allegation was March 16, 2004. However, since this allegation was not in the indictment and not contained in the amended indictment of August 23, 2004 the defence did not investigate that matter or prepare to make full answer and defence against it. The Prosecutor, by his deliberate and considered choice to not plead that allegation, put the accused in a false sense of security regarding that allegation, that is, that the Prosecutor was not going to proceed on that allegation. The Prosecutor is, therefore, estopped from relying on it now in seeking a conviction against General Ndindiliyimana on that allegation. The Prosecutor cannot be permitted to create a situation so that the accused believes the case against him is set out in the indictment, then lie back in the weeds and conduct a trial by ambush. The defence was caught by surprise when the Prosecutor referred to it in his opening statement and when he even changed the date of the alleged meeting from the 22^nd of May to the 24 of May 1994.[417]

General Ndindiliyimana had no time to investigate this allegation or prepare a defence against it as the trial had already commenced. Further the only notice that he had concerning this was about a meeting at the Nyanza stadium but the witness embellished this with allegations of gendarmes killing people about which no prior notice had been provided whatsoever. Defence counsel raised the issue of lack of notice and the fact these allegations were not in the indictment and the prejudiced caused by hearing this evidence during the testimony of the witness.[418] Therefore, since the Prosecutor has chosen not to amend the indictment in order to cure this defect the testimony of this witness cannot be considered in determining the guilt or innocence of General Ndindiliyimana on any of the charges now contained in the indictment. However, it is submitted that were the Trial Chamber to consider these allegations that they must be rejected for the following reasons:

The witness claimed that he attended a meeting of 500-1000 people at Nyanza stadium at which General Ndindiliyimana is supposed to have made a speech. He claims another gendarme officer named Captain Birikunzira and a warrant officer named Biguma were also there on May 22, 1994 and that General Ndindiliyimana had brought weapons though he stated he never actually saw any. There are several problems with this story.

Firstly, this same witness testified in Simba that the same number of people attended a meeting at Ntyazo commune the same day approximately 15 kilometres away. It is unlikely that the same number of people had attended two separate events like that on the same day. It is clear that he has learned one story and changes the place and person involved on demand. Further, ANA has other sever credibility problems. He made several prior statements and has testified against three other accused before the ICTR. In none of those statements was a single allegation made against General Ndindiliyimana. In the Butare trial he makes no mention of going to Nyanza stadium though he was asked about his movements on the 22^nd of May.[419]His explanation of the contradiction is absurd. Though he says he was an observer of the speech that he claims lasted 30 minutes he cannot recall anything else that was said there. This is implausible.

He lied about his reasons for going to Nyanza in the first place. In this trial, he stated that he went to get fuel for his vehicle to go to his swearing-in ceremony but he stated before that he did not know there was going to be such a ceremony until after he got to Nyanza. It does not make sense that he would search for fuel before he knew that he needed it.[420]

In his viva voce testimony he added that he received a weapon from a gendarme officer at the speech but never said that in any prior testimony or statement. He also surprised the defence by alleging that gendarmes killed a certain Muzima. This is another specific charge that must be pleaded specifically in the indictment. In any event, the defence witnesses, in particular the gendarmes who served in that area denied this allegation and stated that gendarmes did their best to try to protect people in Nyanza.

He made a series of prior statements to Rwandan authorities and in none of them did he mention General Ndindiliyimana making a speech at Nyanza. He made statements to ICTR investigators on February 24, 2000, October 22, 2000, January 28, 2001 and October 12, 2001. He admitted that he had never mentioned the general in those statements.[421] He also could not satisfactorily explain this.

He admitted he had made statements to Human Rights Watch and Yolanda Mukagasana from Belgium, but told them that the speech he said was made by the general at Nyanza stadium was made by Simba at another location.[422]

The witness stated that he voluntarily returned to Rwanda to confess. This is implausible for someone who claimed he had been on the run from the RPF for years. Further, when he testified he was a prisoner held in harsh conditions, never charged with any offence and was being held in Butare prison at the time of his testimony. He had been in prison for eight years without trial.[423] He stated that “I’m waiting for the judicial authorities to take a decision in my case.”[424] It is submitted that this witness has a great personal stake in providing testimony useful to the RPF regime in Rwanda that wants to condemn the accused and that it is dangerous to rely on his testimony at all. An indication that his testimony is tainted is his admission that “I coordinated activities with relation to sensitization of detainees on the events of the genocide.…”[425] Further he claimed he was not aware of a document from the Rwandan Prosecutor indicating that he would get a 7 year sentence for genocide because he had confessed. This is implausible. He must have known of this.[426]

He was appointed president of the prison gacaca system by the Deputy Prosecutor in Butare and in that capacity he forwarded reports to Rwandan authorities on the discussions among prisoners.[427] The reasonable conclusion is that is he an agent of the Rwandan authorities, and, therefore, not an impartial witness.

It is submitted that in evaluating viva voce testimony, the Trial Chamber must assess witness demeanour in court, the plausibility and clarity of their testimony, the existence of contradictions or inconsistencies with their testimony or between their testimony and their prior statements, as well as the individual circumstances of the witness, their role in the events, relation to the accused and whether the witness would have an underlying motive to give a certain version of events.[428] This assessment must be done for all witnesses. In this instance, ANA has an underlying motive, he has made several prior inconsistent statements, his version of events is implausible as several defence witnesses stated Nyanza town was practically deserted by the civilian population on that date due to the RPF advance and fighting just outside the town and his testimony was given in a convoluted and confusing manner and several times in court he laughed openly and was evasive and flippant with counsel. It is submitted that all the indicia exist to conclude that the testimony of this witness is a fabrication.

The second problem for the Prosecutor, aside from the inherent lack of credibility of witness ANA, is that the words he allegedly heard the general speak contain nothing criminal and fail to reveal any criminal intent. The witness stated that he heard General Ndindiliyimana sensitizing (it is submitted that every time the Trial Chamber comes across this word by a prosecution witness it indicates that their testimony is scripted as that word is a word used by the RPF in its re-education camps, several witnesses speak about sensitization or sensitizing etc.) the crowd “to fight the enemy, namely the Inkotanyi, as well as internal accomplices within the country.”[429] There is nothing in these alleged words inciting the population to attack any ethnic group and it is clear that Inkotanyi equals the RPF, and it is equally clear that they had collaborators engaged in armed conflict against the government inside Rwanda. Standing on their own, these words could not support a criminal charge against the accused. It appears that the Trial Chamber shares this point of view as Judge DaSilva stated, “Yes, so you must use this statement to your advantage.”[430]

General Ndindiliyimana testified that he was in Nyanza but on a different day, the 21^st of May and he stated:

It is true that I was in Nyanza on the 21^st of May. And since I knew that army recruits who were at Bugesera training camp had left that area, and the said recruits were at Nyanza, and there were recruits of the ESM, the military academy where there also, I felt that I had the opportunity to have gendarmes very easily to work with the UN mission that had to come-in other words, the 5, 500 men that were expected. I had gone to Nyanza to carry out some recognitions (sic reconnaissance-bad translation) the evening of the 21^st and then proceeded with the selection process the next day.[431]

Defence witness CBP80, who was in Nyanza until May 30^th when the town fell to the RPF, described at length what happened and stated that he never heard of any such mass meeting or any meeting that General Ndindiliyimana chaired. [432]

Prosecution witness ANH, who was in the same prison as ANA and who knows ANA, also testified on events at Nyanza but mentions nothing about a meeting at the stadium and he would have know about it and been present as he was a local authority in Nyanza. He testified that that there were two meetings at that time, one in Butare and another one at the Nyabisindu communal office chaired by Bilikunzira. In the result, the prosecution has contradicted ANA by leading the evidence of his witness ANH.

Defence witness CBP69, a native of Nyanza and present in the relevant period described what happened in the town but could not remember there ever being a meeting as ANA described. He testified that such a meeting was never held in Nyanza:

If there had been such a rally, we would have been aware of it. And by the way, announcements covering the rally would have been made. And by the way, at the time there were not up to 500 or 1,000 persons who could meet in a rally at the time. So that was an entire fabrication.[433]

He also testified that no one was killed at roadblocks and that,

I saw gendarmes in Nyanza protecting one Aloys Bhore. I saw three gendarmes at his gate. I saw some at the post office, which is opposite the Electrogaz office. I also heard that all the gendarmes had been sent to the battle front while others were guarding the communal office. So, very briefly, I can say that I did not witness any poor or improper conduct on the part of gendarmes in Nyanza.[434]

This was corroborated by defence witness CBP80, a teacher at a local school, who described the situation in Nyanza and stated, among other things, that as there was a very low presence of MRND members in Nyanza, there was no local Interahamwegroup and that the dominant parties were the PSD and PL.[435] He also described at length the system of authorized night patrols organized on a cellule basis to detect the presence of strangers who might be a risk to security. He stated this regarding allegations of gendarmes at roadblocks:

No, that could not have been possible, because in 1994 the gendarmes were not even available. Following the crash of President Habyarimana’s plane, it was noticed that many soldiers had been deployed to the front, and it was even possible to notice that in our city only civilians were manning the roadblocks, and we often wondered where the gendarmes had gone off to. And the answer we got was that the gendarmes were at the war front. And so we did not have enough gendarmes for deployment at all the roadblocks within our town. That would not have been possible.[436]

He described in detail the beginning of combat around Nyanza near the end of May, and how killings among civilians developed. He also stated that there was no meeting at Nyanza stadium as claimed by the prosecution on May 22. He stated,

No, I have already told you that I lived very close to the stadium and it was not possible for a meeting to take place at the stadium without my being aware of it during that period. You see, during the war, the population was very alert. And if any meetings were called, they would respond, probably hoping to hear something about pacification. Now to claim that a government official held a meeting at a location not far away from my home and that I would not have been aware of it would have been impossible. Such a meeting never took place.[437]

CBP90 also testified that the gendarmes remaining there still tried to maintain order and even arrested people who were causing trouble, even though the numbers of gendarmes had been reduced.

Defence witness CBP90, a gendarme at the Nyanza gendarme camp, testified that General Ndindiliyimana arrived in Nyanza but that he never went to the stadium to make a speech to anyone. Defence witness CBP85 a gendarme officer with a law background arrived in Nyanza on or about May 10th to the 15th, 1994, in order to train recruits. He states that General Ndindiliyimana only came there to select recruits.[438]

Defence witness CBP68 was the aide de camp of the ESM commander. He testified that he learned from his superior that General Ndindiliyimana was there to try to recruit more gendarmes, but he did not meet civilians. CBL104 also testified that he was the driver for the general and that when they went to Nyanza he never made a speech at Nyanza stadium.[439] CBP25 testified that he was at Nyanza from the end of April and that Nyanza was not safe. Fighting was advancing toward the town and it was not possible to hold a meeting in Nyanza on the 21 or 22^nd of May because people were fleeing the town and the town was practically empty and that he never heard of such a meeting.

It is submitted that all of the defence witnesses testified clearly, openly, without hesitation, calmly, candidly and the cross-examinations by the prosecution did not reveal any material inconsistencies or contradictions in their testimony, and, therefore, their evidence should be accepted and that of ANA rejected. Whereas it is clear that the prosecution witnesses engaged in fabricating testimony. CBP80 described the manner in which ANA and ANH went about fabricating evidence. It must be noted that Yolanda Mukagasana came to see ANA with the express purpose of trying to elicit testimony against General Ndindiliyimana.

Therefore, even if the Trial Chamber were to consider these allegations, they must be rejected on that totality of the evidence.

However, even if the Trial Chamber were to accept these allegations, the Prosecutor failed to establish command responsibility with respect to them. There was no evidence led that General Ndindiliyimana had any indication in advance that it was likely, probable or even possible that the gendarmes in Nyanza were going to commit crimes against his orders. It was not foreseeable. Neither did the Prosecutor establish that these actions were under his orders and all the evidence, even from the prosecution witnesses such as Dr. Des Forges, is that he gave orders very clearly to protect civilians to all his units still under his command. Nor did the Prosecutor establish that he received any report or information about these allegations and in fact defence witness CBP7, above in paragraph 103, stated that the general staff of the gendarmerie only received one complaint from the sous– prefét regarding a junior officer that did not involve any killings and as a result there was an investigation, Major Cyiza was sent to investigate the matter and, as a result, that man was sent to the front at Camp Kacyiru. Therefore, no command responsibility has been established with respect to General Ndindiliyimana.

(2) Prosecution Witness ANH

The second set of allegations made outside the indictment were those made by prosecution witness ANH. This prosecution witness repeated the claim by ANA that gendarmes under the command of Captain Bilikunzira committed a series of crimes in the Nyanza area killing civilians, two bourgmestres and taking part in an alleged massacre on Nyabubare hill and that Capt. Bilikunzira incited people to kill Tutsi.

These allegations also would support a separate charge, and, therefore, cannot be considered by the Trial Chamber as being outside the indictment for all the reasons stated regarding ANA. However, if the Trial Chamber was to consider these allegations, the witness has fatal problems regarding his credibility.

First of all, he is another Hutu prisoner witness held in harsh conditions for many years without charge or trial. Even though he confessed to mass murder, he had not been sentenced at the time of his testimony.[440] He, therefore, has a strong motive for providing false testimony in return for an advantage in his sentence.

He made several prior statements to the Rwandan authorities but in those statements he gives different names of alleged victims than he did in his viva voce[441] In his statement of May 11, 2001 to Rwandan authorities, he gives the names of people he says were killed, but none of them are the same names as in hisviva voce testimony.[442] In his statement to the ICTR of November 2000 he does mention the names but he cannot satisfactorily explain the contradiction.[443] Many names that appear in the Rwandan statement do not appear in the ICTR statement.[444] Nor does he mention arranging false identity cards for Hutus in his statement of May 23, 2001, but he does in his statement of November, 2000.[445]

He gives two completely different versions of the death of a woman named Hoseyana[446] and he admitted that he gives different versions of stories depending on who is asking the questions.[447] In his first three meetings with the ICTR before the arrest of General Ndindiliyimana, he only talks about allegations against a priest. He does not mention gendarmes at all. But when the investigators return for another visit just after the general’s arrest, he suddenly has stories about gendarmes.[448]This fact must raise serious questions about the methodology of the investigators or the Rwandan authorities that arrange the witnesses for the ICTR.

In his statement he states that he was interviewed by the ICTR investigators at Nyanza prison but viva voce stated it was at the public Prosecutor’s office.[449] His version of the killing of one Sekimonyo changes substantially depending on whom he tells it to and he cannot explain the contradictions.[450] The entire story is incoherent and absurd. He finally tried to explain all the problems with the story by stating “I was working for Satan.”[451]

He claimed that the bourgmestre Gisagara was killed by gendarmes but he could not explain the contradiction with a telegram sent by the sous– prefét to the Minister of the Interior, document K0026777, regarding the death of that bourgmestre and another. In the document it is stated that Gisagara ran off with the communal money and was being looked for by gendarmes for theft, and the second was killed by the population while trying to flee to Burundi and that gendarmes were not involved at all.[452] Viva voce he stated that a gendarme used a STRIM grenade launcher, but in a prior statement he stated it was an RPG (rocket propelled grenade), which is a completely different type of weapon. In any event there was no STRIM in the gendarme weapon inventory.[453] And his story of the snake coiled around the calabash attributed to Bilikunzira[454] was attributed to Muvunyi in his case.[455]

He claimed that the authorities incited people to kill Tutsi in a mixed crowd of Hutus and Tutsi but neither the crowd nor gendarmes killed the Tutsi in the crowd and he cannot explain numerous other inconsistencies in his narrative.[456]

He admitted that the ICTR investigators never double checked to see if there was actually a massacre at the hill as he claimed and admitted that he had never told them of this alleged massacre in prior statements.[457]

The Trial Chamber is referred again to the defence witnesses referred to with respect to prosecution witness ANA above all of who refute the clams made by these two witnesses regarding events at Nyanza. The defence reiterates the submissions made above at paragraph 47 regarding the lack of command responsibility being established by the Prosecutor with respect to the claims made by these two witnesses.

He is also contradicted by the several statements of Hutus made to Rwanda authorities regarding his personal involvement in many killings in which they give detailed accounts of the killings he was involved with and gendarmes do not figure in these accounts at all.[458]

He has three completely different versions of what he was doing in 1997.[459] He claimed he returned to Rwanda from Burundi due to a crisis of conscience and wanted to turn himself in and confess, but then he states that when he did return to Rwanda he went into hiding from late March to May 10, 1997.[460]

Finally, he was a member of the same gacaca committee in the prison as witness ANA, so there is a high probability of collusion between them to fabricate evidence for the benefit of a reduced sentence and indeed, he stated that as a result of his confession he can get a reduced sentence.[461] In conclusion, it is submitted that this witness has no credibility. He has a clear motive for fabricating evidence and the fact that he makes statements to the ICTR about gendarmes only after the arrest of General Ndindiliyimana is highly suspicious and a reasonable conclusion to draw is that he made allegations against gendarmes when it became clear to him that he could benefit from doing so.

(3) Prosecution Witness ANF

Prosecution witness ANF also made allegations in his viva voce testimony that are not in the indictment and which were opposed strongly by the defence.[462]

The witness claims that he heard from one Mark Kabera that gendarmes killed a Tutsi on April 18, 1994 outside the town. The allegation itself is pure hearsay uncorroborated by any other witness. The witness confirmed in his testimony that Kabera is an inmate of Nyanza prison where the witness is also held without charge, and that Kabera had been interviewed by the ICTR. Yet, though he is allegedly a direct witness of this alleged murder and could corroborate ANF, the prosecution deliberately chose not to call the direct witness who could be cross-examined and instead chose to present hearsay on the matter. Once again, this illegal tactic of choosing not to call a direct witness to an alleged crime when he is available to testify an choosing instead to present hearsay is highly suspicious and must draw the adverse inference that if Kabera had been called to testify he would not corroborate the clams made by ANF.[463]

The versions of events provided by ANF are in themselves implausible. He claimed that there was a meeting on April 22 during which Biguma came and summoned thebourgmestre to report early to his office. After the meeting, he alleged that thebourgmestre, gendarmes and the witness went to arrest attackers at Kibilizi and that they arrested three men at about 6:30pm as suspected attackers. The next morning, the 23^rd, the witness alleged that Biguma had the bourgmestre release those prisoners and then incited people to kill Tutsi. The witness continues to describe how the bourgmestre was hunted down by gendarmes and arrested. ANF claims to have received information on all this from members of the public.

The story is a complete fabrication, as that bourgmestre was killed on April 22 by the population while trying to flee to Burundi as the contemporaneous telegram from the sous– prefét to the Ministry of Interior indicates. The witness also testified that Mathieu Ndahimana, bourgmestre in that area was also held in Nyanza prison and was available to give direct evidence on the events in Nyanza but, once again, the Prosecutor, more interested in obscuring matters than throwing light on them, chose not to call him as a direct witness and once again the adverse inference must be drawn.

With respect to ANF’s claims of a massacre at Karama hill, the same adverse inference must be drawn, as he claims that the bourgmestre Ndahimana requisitioned gendarmes at the communal office. Even if one were to accept this story it is clear that the gendarmes were under the command of the civilian authority, the bourgmestre, Ndahimana, who is already in prison. Once again, instead of bringing Ndahimana to confirm this story the Prosecutor chose not to. The adverse inference must be drawn that he would not corroborate this version of events and that is why he was not called to testify. In any event, all the gendarmes who testified from the Nyanza group denied any killings by gendarmes of civilians and none of them were shaken on cross-examination. Further, the prosecution completely failed to make the necessary command link with General Ndindiliyimana. No evidence was led that he had received some advance notice that such crimes would be committed, the gendarmes were under the direct command of the civil authority and no evidence was led whatsoever that any report of such crimes were ever reported to General Ndindiliyimana. Therefore this allegation must be rejected.

ANF also made a series of other claims, that Biguma on May 25 delivered a message to a Sergeant Elisee and subsequently gendarmes killed one Rwabuhihi and his brother. This is another allegation not in the indictment but which would support a separate charge on its own. This is a defect that can only be cured by an amendment of the indictment. The story is also impossible to accept as Biguma was no longer in Nyanza on that date as he had been transferred to Kigali.

ANF has many problems with credibility. He is another Hutu prisoner witness held without charge in harsh conditions since 1997 and has a strong motive to provide false evidence in order to gain an advantage with the Rwandan authorities. At the date of his testimony, even though he had confessed he was awaiting sentence. Once can conclude that his sentence depends on his performance at the ICTR.

There are several contradictions between his various statements to the ICTR investigators and the Rwandan authorities and his viva voce For instance, in his confessional statement of 2005, he makes no mention whatsoever of being involved in a massacre at Karama hill. Nor does he do so in his other statements to Rwandan authorities.[464] In his statement to ICTR investigators he does not mention the killing of one Callixte Kabera, but he does in statements to the Rwandan authorities.[465] Further, his claim of hearing gendarmes at their office plotting to kill Tutsi is not possible if his story about taking iron sheeting to his house that day is true.[466]

Once again, the defence refers the Trial Chamber to the defence witness referred to above that the only complaint received at the general staff headquarters concerned nothing about killings of civilians and that Major Cyiza went to the area to investigate that complaint. Major Cyiza did not report any instances of killings of civilians by gendarmes to his higher command. The subject of the investigation was the gendarme Biguma who was transferred to Camp Kacyiru.[467] General Ndindiliyimana and others confirmed this, and see CBP63 and CBP46 generally.

(4) Prosecution Witness AMW

Prosecution witness AMW also testified about allegations not in the indictment. The first notice was given in the opening statement on September 20, 2004. The defence was caught by surprise, and since the witness was called in February, had no time to investigate these allegations, the witness or to prepare and make full answer and defence. It also came to light that the Prosecutor had the statement of this witness as early as July 2003 but withheld it from the defence. Further, the allegations made by this witness would support separate charges in the indictment. The Prosecutor deliberately chose not to add these charges to his amended indictment and cannot now be afforded the advantage of lying in the weeds and ambushing the defence. Nor can the defence be prejudiced by this illegal tactic. The practice of the Prosecutor at this tribunal of ignoring the indictment and adding new allegations as the trials proceed must draw the condemnation of jurists of the world.

AMW claimed that General Ndindiliyimana gave a pistol to one Egide and offered to pay the bar bill of one Shitani if they would kill Tutsi at roadblocks in Gitarama area. He stated that the pistol event was on the 13^th of April and the event with Shitani a few days after that. However, in his testimony in the Casimir Bizimungu case he stated he did not get to the barricade he claimed he was at until several weeks after the death of President Habyarimana, and, therefore, he could not have been in the area to witness what he claimed on the 13^th of April or the 16^th of April as he claims.[468] He admitted that, “I gave two different versions of the facts.”[469]

Witness AMW discredits himself in several ways:

(1) The testimony is weak because the witness was in prison for more than seven years, and at the time of his testimony, waiting for his judgement. He described the conditions of his imprisonment at the bureau communal: 120 people were held in a 5 metre by 7 metre cell, with a bucket instead of a toilet. We can understand that the witness does not want to displease or offend the authorities—he wants their approval, he wants a judgement, he wants better living conditions.

(2) The witness clearly stated that his confession was motivated by a commitment by the authorities to reduce the gravity of his sentence: “I confessed because I knew the sentence that would be meted out to me. As a matter of fact, it is minimal sentence compared to what would normally be given to someone who did not confess.”[470]

(3) In his confession, though, he names other accomplices to the murders he committed but he never mentioned General Ndindiliyimana. Further, it took him six years to deliver his confession to the Prosecutor. The Prosecutor himself will underline the contradictions of the witness:

Mr. Van: “And this item on the co-perpetrators, the name of General Ndindiliyimana does not appear.”

Q: “Do you recall not having mentioned the name of General Ndindiliyimana under this topic?”

A: “Yes, I do remember.”[471]

The witness stated that General Ndindiliyimana was not a member of his group.

(4) It is also curious that the witness admitted to not having mentioned the name “Ndindiliyimana” in his first statement to ICTR investigators. He mentions several names in his statement and still forgot the name of the person, following his testimony, is responsible for the massacres at the roadblocks

(5) We can highlight many other contradictions of the witness. First, in his first statement, he said that he only knew General Bizimungu. Prosecutor Van stated: “The original version in French says the following…‘I only know General Bizimungu. I only know General Bizimungu who was housed at the Tourism hotel with Minister Callixte Nzabonimana.’”[472] Second, when the witness spoke about General Bizimungu, in fact, he wanted to speak about Casimir Bizimungu.[473] Third, in the second statement that he makes in front of investigators, he explained that he did not want to talk about Augustin Bizimungu or Casimir Bizimungu, but about Augustin Ndindiliyimana:

I must say that amongst the high-ranking officers of the ex-FAR, I only knew General Ndindiliyimana, Augustin. If there is a different name in my prior statement which was read to me in Kinyarwanda, in which I signed, that must be a mistake on the part of the investigators who questioned me.[474]

Fourth, it was not a mistake by him or the investigators, it was an omission: “At the time of the first statement, as I explained, I did not speak of General Augustin Ndindiliyimana because I had knowingly omitted speaking of him.”[475] The witness has left the judges without the truth leaving the judges to choose.

(6) The witness also claimed that the escort of General Ndindiliyimana was composed of members of the PG dressed as gendarmes. “I say that it was members of the Presidential Guard because I knew that those who ensured the security of the president were members of the Presidential Guard but wore gendarmes’ uniforms.”[476]

He is yet another Hutu prisoner witness charged with genocide, held indefinitely in harsh conditions, and, therefore, has a strong motivation to give false evidence in return for an advantage in his sentence or conditions of incarceration. He admitted that one could be released from prison if one confessed. He had, indeed, confessed, yet was awaiting word on his fate at the time he testified. Further, his account of his meeting with ICTR investigators is inconsistent: he claims the investigators had a list of pre-set questions to ask him regarding General Ndindiliyimana when he also states that he had never mentioned to anyone at anytime that he had information regarding General Ndindiliyimana. How could the investigators know to interview him? It can only lead to the conclusion that either he was presented with a script to memorize by those investigators or he is lying. In any event, there are so many fundamental contradictions and implausible statements in his testimony that it would be dangerous to rely on it, which in any event, is completely refuted by all the defence witnesses and not corroborated by any other prosecution witness.

Other problems with this man’s credibility include the fact that he claimed to be an MRND member but could not remember when he joined or the names of any important leaders of the party or the national leader of the Interahamwe, he agreed that he tried to lie at first when he was contacted to testify, and only told the truth later.[477]

He claimed that General Bizimungu stayed at the Hôtel Tourisme which Antoine Nemeyabahizi, the owner, strongly denies.[478] He mixes up his stories about who was at the alleged roadblocks and, despite the fact that it is clear from the evidence before this trial, that Generals Bizimungu and Ndindiliyimana never travelled together as he stated he often saw them do.[479] And finally, the witness stated that,

You will understand that I am a human being and I cannot just open up and tell the truth to the first person who comes by. But it is when I became aware that there was a need for me to tell the truth that I started making revelations.[480]

The reality of General Ndindiliyimana’s actions in the Gitarama area is of an entirely different order. Instead of inciting people to kill Tutsi, General Ndindiliyimana secured the safety and protection of several Tutsi families at the Hôtel Tourismemanaged by defence witness CPB41, the Tutsi hotelier, Antoine Nemyebahizi. His hotel is located on the Kigali-Butare-Bujumbura road, three kilometres from Gitarama town. He testified that the day the government came to Gitarama, (the 12^thof April) General Ndindiliyimana came to seek lodging at his hotel. The witness told the general that he had been threatened the day before by Interahamwe and in reaction, General Ndindiliyimana replied “I am also threatened, Antoine….Because I support Tutsi and the southerners.”[481]

The witness then testified that the general ordered a part of his escort to remain at the hotel to protect the hotelkeeper who was a Tutsi and several Tutsi families that had sought refuge there. He testified that gendarme unit protected them until June 9^th when they were forced to leave the area due to the advance of the RPF and shelling. He stated that the Interahamwe came several times to threaten them, but each time he and gendarmes managed to persuade them to leave without incident and without discovering the Tutsi families hiding there.[482] Defence witness CBP56 confirmed that.[483] Defence witness CBL104, his driver also corroborates the fact that General Ndindiliyimana protected Tutsi at this hotel,[484] and that there were no civilian roadblocks in that area, that he never gave weapons to anyone, and that he did not even have a pistol to give to anyone.[485]

This witness also stated did not know of anyone named Shitani but he did know Egide.[486] He also stated that it was impossible for the general to have given Egide a pistol to kill Tutsi. This is what he said:

…But as to the pistol, I will tell you one thing. I will tell you one thing, and everyone will be convinced because the Prosecutor will see in my explanation; How can you expect a general-from the chief of staff to indulge in little things with an imbecile like Egide? An eagle cannot eat flies. These are the gendarmes. Whoever said that is a liar. You grill him and you’ll tell him that he made a mistake; that he was not speaking the truth. It was false testimony.

I, myself, he saved me. That is true. And he is here before me. But he didn’t give me a gun. Why would he give a gun to someone who wanted to kill me? That’s impossible. That’s impossible. You have to analyze-analyze his testimony and you will see that it’s quite false. A general would never deal with an Interahamwe. A general, how? How could he? That’s not possible. That is false testimony.

I officially state here he could never have conversed with a general. That’s impossible. And everybody knows that. Everybody knows back home where I’m living, everybody back home. Anyone who would say the opposite, well, let’s make our bets and go there and ask people. A general-with small things like that-an eagle does not eat a fly.”[487]

The witness stated further that it was Egide and his men who came to threaten him at the hotel, and at no time did he see him with a pistol.

It is also important to note here that the witness testified that he had been interviewed by an investigator from the ICTY in 2003 and had given them the same information. Yet, the statement this witness made to the ICTR was not provided to the defence until the day before his testimony even though it is entirely exculpatory.[488] He also described the method by which he was interviewed and that he did not initially speak about General Ndindiliyimana because the time had not come or because the right questions had not been asked. He also described the method used by the Rwandan Prosecutor to induce the prisoners in the prison to ascribe responsibility to the government and military authorities of the Rwandan government. This testimony leads to only one conclusion: that the testimony of these prisoners is fabricated as the witness from the Directorate of Military Intelligence (DMI) in Rwanda, witness SABS stated was in fact the case.

Witness CBP76, a resident of that location, testified that on April the 13^th to the 15^thhe travelled from Gitarama to Kigali and back and saw no roadblocks in the location stated by the prosecution witness and testified that civilian roadblocks began to appear in that area only at the end of April, beginning of May.[489] He also testified that Egide was a well known killer who committed crimes in Ruli and Nyabisindu, but he never saw him at a roadblock at Cyakabili.[490]

Witness CBP56 stated that he was posted in Gitarama from the 12^th of April on through May and travelled down the road where the witness alleged there was a civilian roadblock, but he stated that the only roadblock he saw on that road was a military roadblock on the road leading to Rutongwe.[491] He stated, regarding the allegation of civilian roadblocks being where the prosecution witness put them,

I never saw a civilian roadblock. I already told you that I was the first person to enter that location on our way from Kigali. When we arrived the situation was calm, and members of the population were farming as they usually did. Traffic was flowing normally, and, indeed, the traffic was quite dense because there were vehicles coming from Kigali and those leaving the city. And it was necessary to use the gendarmerie to control traffic. I do not see how, under those circumstances, a roadblock could have been erected at that location.

And, I have already told you that, almost on a daily basis I used that road. There was a road of yours-a roadblock on the road from Kigali. There was also another roadblock manned by soldiers at the Gitarama military camp. Apart from those two roadblocks, there were no other roadblocks from the time I arrived….[492]

(5) Prosecution Witness ANG

Prosecution witness ANG claimed that gendarmes took part in an attack against civilians at the Murambi school complex on the 17th of April and that a gendarme officer named Sebuhura of the Gikongoro brigade was involved. In this instance, the defence had no disclosure of anything concerning events at Murambi. The witness stated that he had made 10 prior statements, none of which were disclosed to the defence. In protest, the defence did not cross-examine him as the attempt to do so without the proper disclosure material was useless.[493] It is clear that the prosecution refused to hand over those statements because they did not corroborate the claims made by the witness in his viva voce

The claim of gendarmes taking part in this attack is illogical and implausible as he conceded in his testimony that gendarmes had been assigned to protect the refugees at that location prior to the alleged attack and were present when the attack took place.[494] One does not have to be a genius to see that a gendarme officer would not at one and the same time protect and attack the same refugees and also put his men at risk of being killed. His claim of seeing gendarmes present in a mob of thousands at night time is also implausible. He would not have been able to see and identify who anyone was in an area that had no lighting.

Defence witness CBP55 who was a gendarme at the Gikongoro unit, testified in detail as to how the situation developed in the area through the war and how the gendarmes there tried to cope with the situation. He stated that 10 to 12 gendarmes were assigned to protect the refugees at Murambi and they were assigned there on or about the 10^th to the 12^th of April. He stated that there were four attacks made against the refugees by civilians and the gendarmes tried to fend off these attacks. On the 21^st of April, a large scale attack was mounted at about 4am and the gendarmes fired into the air to try to disperse the mob, but they ran out of ammunition and the gendarmes fled along with the refugees. He stated that the gendarmes put the number of attackers at approximately 8,000 people from several communes. Some refugees fled to Cyanika and Captain Sebuhura ordered gendarmes to go there to try protect them there and the gendarmes there engaged in an hour long battle with the attackers until they ran out of ammunition and once again, with the refugees were forced to flee. He also stated that Sebuhura was not the unit commander as ANG claimed. He was the deputy commander. The unit commander was Major Christophe Bizimungu. He also stated that no more gendarmes were available to protect the refugees as the unit had only 160 people to cover the entire Gikongoro prefecture which is very hilly terrain and the units assigned to Murambi did not have radios to communicate with the base and ask for reinforcements. He described interventions by the gendarmes there that were successful such as Kibeho at the college.[495] He also testified that there were both Tutsi and Hutus in the unit. This witness testified in a straightforward, composed manner, gave a coherent picture of the chain of events in Gikongoro and was never really challenged in cross-examination, nor were there any inconsistencies or contradictions in his testimony.

General Ndindiliyimana stated that he received no reports of gendarmes ordered to attack refugees in Gikongoro:

There were problems in Gikongoro within the unit. And perhaps the events were linked to those problems. I sent-the commander of the unit reported on such problems, and I sent my G2 for investigations. And he reported to me, and he indeed observed that there were one or two gendarmes involved. And these gendarmes, as the rest of the attackers, attacked a site that was guarded by gendarmes and they were armed and it was at night. Some gendarmes were injured. Others certainly fled. And we investigated the situation. The public Prosecutor’s officer was still operating. And as far as we are concerned, the appropriate measures were taken. I also said that I sent my G4 over there, Major Nsanzimfura. I also went to that prefecture subsequently, where I held a meeting with theprefét and the commander of the unit. And apart from those events in which the gendarmes were involved, there were no other gendarmes who were accused of having done anything.[496]

It is clear that the actions of those gendarmes were against orders and attacked the gendarmerie as well as civilians. It is not clear which event this refers to but in any case the gendarmes involved were clearly acting against orders and steps were taken against them.

Prosecution witness ANI/KEI also testified about Murambi. This witness was found not to be credible by the Trial Chamber in the Simba[497] His claims that he observed a meeting with the bourgmestre, Captain Sebuhura and Colonel Simba planning an attack against civilians is implausible, as he was just a cook and he would not have been asked to such a meeting. He claims Bikindi was there when it is clear that Bikindi and his dance troupe were in Europe at that time.[498] He stated he worked at the gendarme camp yet could not name any officers there. He was wrong about who the camp commander was, stating it was Sebuhura when in fact it was Bizimungu. He contradicted his testimony in the Simba trial in which he stated that Colonel Simba did not speak at a CIPEP meeting, but in this trial he said Simba did speak. His claim to have been at gendarme roadblocks is totally implausible as his job as a cook would never have him placed at such a location. He contradicted himself with a bizarre story about machetes and garden tools being sharpened in the camp when he later states that the refugees were killed with bullets. He states that the killers were rewarded with the cattle of the refugees, but no one ever placed cattle at Murambi. He also claimed that the number of dead at Murambi was 10,000 which happens to be the same number FAV claimed were killed at Kansi indicating that they were both scripted and prepared by the same person or persons.

He claimed to be a member of the MDR but cannot even tell the court what the acronym stands for. Then he stated he left the MDR for the PSD, but yet again, he does not know the meaning of the acronym. In any case, this contradicted his testimony in the Simba trial that he had never been a member of any political party.[499] More, in his statements to Rwandan authorities he never mentions gendarmes being involved in killings at all. And he cannot explain the implausible story that aprefét, a bourgmestre and a gendarme officer invited a mere cook to go with them to distribute weapons.

The witness said that a meeting was convened on April, 13 at the CIPEP at which attacks on Murambi and Cyanika were discussed. He claimed that prefétBucyibaruta, Captain Sebuhura, bourgmestre Semakwavu and Colonel Simba attended.[500] First of all an allegation of a meeting to launch attack is a charge that should have been included in the indictment. However this is an imaginary meeting and no reasonable trier can ever believe in the story for many reasons: His presence and the possibility of monitoring such meeting are questionable. His job as cook could not allow him to be in such a meeting. His description of the meeting is absurd as he claims that Bikindi was there to entertain participants with songs; this was a period of mourning and it is not possible that there could be such an entertainment. Bikindi himself and his troupe were in Europe[501] and could not attend such events in Rwanda.

The witness testified as to the death of a gendarme named Ndagijimana. The witness made contradictory statements on this event:

Q. “I put it to you that on the 3rd of December 2001, you did not give that version in relation to these facts, Witness. Let me read the passage in that statement which is on page 4, paragraph 2, and the French version. Let me start from the beginning. ‘They went to meet Captain Sebuhura. I was not present when they met and could not hear them. But after this meeting, in mine and their presence, a Tutsi gendarme was killed in the compound of the gendarmerie camp. I saw that other gendarmes killed this Tutsi gendarme with a hammer. I heard Bikindi saying to Sebuhura that this Tutsi gendarme had to be killed as an example.’ “And you end by saying”, ‘I’m sure that this Tutsi gendarme was killed on the direct order of Sebuhura and just because he was a Tutsi.’ “Do you remember making that statement on the 3rd of December 2001?”

A. “…I agree that he was killed and I explained the circumstances of his killing.”[502]

This is the most flagrant indication that this man is liar because we know that Bikindi was in Europe with his dance troupe and it this allegation is absurd. It is also absurd because a director of a dance troupe could never give an order to any soldier or gendarme

He is another Hutu prisoner witness held indefinitely in harsh conditions in a Rwandan jail. He confessed to mass murder in 1998 and 1999, yet he was temporarily released! He stated, in reply to a suggestion that he would get a benefit for testifying against the accused, “The interest or benefit for me is my freedom.” Thus, he has a strong interest to give false evidence in return for his freedom. His demeanour was evasive, cavalier and he was non-responsive to counsel.

(6) Prosecution Witness ANJ/KTB

Witness ANJ/KTB made similar allegations concerning Cyanika as the others. Once again these are allegations that in and of themselves would support a separate charge, and, therefore, the deliberate choice of the Prosecutor to not include them in the indictment means that he is again, hoist on his own petard. He cannot be allowed, as stated above, but which bears repeating, to lie in the weeds, cause the defence to prepare for one case and then proceed to present an entirely different one. If these trials are allowed to descend into this type of chaos, then there is no point in having an indictment and in fact there is no point in conducting these trials.

The credibility of this witness is also non-existent. In his prior statements to the Rwandan authorities, he never once mentions an attack on Murambi or the involvement of gendarmes.[503] In his statement to ICTR investigators he makes no mention of Sebuhura being involved.[504] His ability to observe events is problematic as he places himself inside a health centre at the time of the attack and he cannot keep his story straight and contradicts himself time after time.[505] In any event, it is impossible to understand how he could have seen a few gendarmes mixed with a mob of thousands and attacking from all directions. The witness is contradicted by Madeleine Raffin of the Catholic relief organization, Caritas, who was there all through the April-July period and who states there was no massacre at Cyanika as the witness described. The witness admitted knowing that she was in charge of Caritas at that location.[506] Further his description of what he claims were gendarmes is bizarre and fits the image of a group bandits rather than gendarmes,

Yes. They were wearing their uniforms. They also had long vests on top of their clothes, that is overalls, on top of their clothes. They were also wearing big belts. Some of them were wearing uniforms without vests, but then they were wearing camouflage shirts with a firearm on their shoulder…

This is not the description of gendarmes. Also, the report of the bourgmestre Ngezahayo, read into the record, states that there was a confrontation between Hutus and Tutsi at Cyanika, but no one was killed and gendarmes were not involved.[507]

The final inconsistency that should be mentioned is that this witness testified at Bishop Misago trial, but he never said anything about Cynika parish anywhere when the bishopric is nearby:

Q. In your statement to the prosecutors in Gikongoro or Kigali you never discussed the events you’ve described to us today, which you say took place at Cyanika?

A. With regard to my interview at Gikongoro, I said it related to the Bishop Misago and the same in Kigali. Now, with regard to the evidence given on the Cyanika events, this evidence is separate. You must distinguish between the evidence given on Bishop Misago and the account of the events at Cyanika.[508]

Q. Well, sir, I take it that when you were called into the prosecutor’s office, that, if they were questioning you about Bishop Misago’s role in that area, that they would issue you a follow‑up question: “Can you tell us of anything else of significance in that area that you can tell us about?” and you said, “No.” Right? Nothing else?

A. No, no other questions were put to me. I was asked about the bishop. They did not try to find out what else I knew. They asked me questions about the bishop only.

Q. You didn’t think it was important enough to tell them about the massacre you allege took place on the 21st? You didn’t think that was important to advise them about, since they didn’t know? You didn’t say, “You know what, aside from the bishop, I can tell you something more important than that.” But you said nothing, right?

A. No, I wasn’t going to extrapolate by answering questions that were not put to me. When you are not asked questions, you don’t give answers. I believe that if the officers of the public prosecution office did not put questions to me, they had their reasons. They just put questions to me about the bishop.

Q. And you didn’t tell them anything else in addition to what happened with the bishop because nothing else happened, sir. Because if it had happened, you would have been sure to tell them, because you say you are a Hutu, and you would like to do a favour to the new regime and you could have given them important information about a massacre, you say, about 3,000 Tutsis at Cyanika. You never mentioned it because it never happened, sir. Isn’t that right?

If such a large massacre truly occurred at the parish where Misago preached, the witness surely would have mentioned it, but he did not do so.

The defence submits that this witness is not credible and his testimony cannot be accepted. Gendarme witnesses have testified as to the events at Cyanika as above and presented the reality. His assertions are not observations of fact but speculation as he only heard shots and did not see people killed. Since everyone fled to Nyanza including the gendarmes trying to protect people how could they continue to protect the refugees in these circumstances? But once again, the Prosecutor has failed to establish any command responsibility even if this story was believed as there is no evidence that the general has any advance indication that gendarmes would commit crimes, or that he received a report that they had committed crimes at that location.

(7) Prosecution Witness ANC

Prosecution witness ANC made a series of allegations against General Ndindiliyimana that are not in the indictment. Defence counsel protested the hearing of this evidence as not being in the indictment.[509] The Prosecutor tried to justify this by stating these allegations come under paragraph 53 of the Conspiracy Count, but they clearly do not fit into paragraph 53 that alludes to inaction in the face of information, not direct action. In any event, since the Prosecutor could not show how these allegations fit into conspiracy and since they do not come under any other rubric the Trial Chamber must completely disregard these allegations.

The defence was seriously prejudiced by the calling of this witness and objected to it. The Trial Chamber granted the motion but on condition that the Prosecutor call him near the end of the trial so that the defence would have an opportunity to investigate his allegations and prepare. Despite this order the Prosecutor called him early. The defence complained:

I want to reiterate our objection to the witness appearing at all, because of your order saying he should be called last and we expected him to be called sometime in September, October, or November, because we haven’t had sufficient time to investigate everything he is saying, because his statement was only produced in June of last year.[510]

The circumstances of his appearance as a witness are highly suspicious. He was introduced late in the case, magically placing himself at many places targeted by the prosecution and it is evident that someone coached him using the general’s diary that was seized by the Prosecutor when the general was arrested.

The witness claims he was a member of the general’s personal escort through June of 1994 but cannot describe the general correctly or identify him in the courtroom. He described him as “tall, slender, quite a pale complexion.” Clearly he does not know the general.[511] He made stupid mistakes such as denying there were no Tutsi in the general’s escort whereas Dr. Des Forges and Karemera’s letter discussed above under the Conspiracy section prove the opposite as well as several gendarme witnesses and the general himself in his testimony. He cannot locate the general’s house though he claims to have been there many times.[512] He claims he was not aware that the general gave General Dallaire his escort the night of the 7^th of April which would be impossible if was really a member of that unit.[513] His claim that the general went to MRND headquarters on the 15^th of April is denied by both the general and his driver. The claim that the general went from there to Gitarama where he stayed until the 18^th is contradicted by the letter of General Gatsinzi that speaks of the meeting between Ndindiliyimana and Gatsinzi on the 17^th in Kigali to talk about a cease-fire proposal with the RPF and that on the 18^th the general along with General Dallaire and others gave an interview to the BBC and other services in Kigali. Further on the 15^th of April it is established that General Ndindiliyimana was busy with the evacuation of refugees to Butare that day.[514] The witness was also not aware of several high level meetings the general had with General Dallaire, Gatsinzi and the UN dignitary Mr. Khan.[515] He cannot remember the name of the escort team leader[516] and he does not know where the general slept when he was in Gitarama![517]It is doubtful that anyone could forget the colourful figure of Antoine, the hotel director. He stated that the general slept at his house in Kigali when the truth is that he slept at the Hôtel des Diplomates as confirmed by witness CBP63. He could not describe the house at Nyaruhengeri correctly. He could not place the residence of General Ndindiliyimana correctly in Kigali. He could not name the VIP unit commander (Colonel Bavagumenshi) and only stated the person had the rank of major. He claimed that he travelled with the general in an armoured vehicle in late May or early June when the evidence is even from Dr. Des Forges that his armoured car was withdrawn from his use on April 20. He claimed that the general left him in Nyanza camp and collected him in June, “And once we got to the camp, the soldier who was in charge of designating members of his escort told us that we had to stay put, and that the General was going too come back and take us, and those were the circumstances under which we remained at the Nyanza camp,” an impossibility as Nyanza had fallen to the RPF at the end of May. [518]

He could not place his position as escort in the vehicle carrying the general correctly and put the general in the back of the vehicle instead of the front where senior offices normally sit. He had no explanation as to why he stated he went to Goma with the general on a particular date when the general’s passport shows that he was still in Rwanda. He did not know the name of the general’s personal secretary when that man accompanied the general. He stated that it the driver designated the members of the escort, which was refuted by the driver in his testimony. In fact, it was Colonel Bavagumenshi who designated them. The driver also testified that the vehicle used was a Land Cruiser jeep not a Pajero as the witness claimed. He does not know CPL101, another member of the general’s escort, as confirmed by Antoine thehotelier and the general’s driver. He claimed that Prime Minister Kambanda rebuked the general when it is clear that the Prime Minister appreciated the general.

I further certify that I was apprised by my services that General Ndindiliyimana ran lots of risks in serving; that he took many risks of his life. He put his life at risk on account of his peaceful attitude, and in trying to restore peace. That is why I decided to appoint him ambassador to the Federal Republic of Germany, in order to protect him from the threats.[519]

ANC was not aware of the Radio Muhabura broadcast that the general had been killed, simply untenable for a supposed member of a close protection unit. Judge Park asked him how many men there were in the escort team and he could not answer. Judge Park also asked the following question:

Q. “Witness, the question was, when your team escorted the General, who was the leader of your team? This is his question.”

The witness answered:

A. “It was a soldier whose name I do not recall nor do I recall his rank….”[520]

One could perhaps accept that he might not remember the name but one cannot accept that he cannot remember the rank of that person. If his memory is so unreliable on these points then it cannot be relied on with respect to the rest of his testimony.

Finally he stated that he went to see Martin Ngoga in Kigali to offer himself as a witness. An analysis of the series of meetings between Ngoga, himself and ICTR investigators indicates he offered himself to say anything they wanted him to say and he admitted he never told Ngoga that he had information on General Ndindiliyimana. These circumstances alone must raise alarm bells with the Trial Chamber as to the reliability of this witness and how exactly he came to be a witness. Judge Hikmet also had concerns about his about how he came to be a witness. She asked the following question:

“Witness, I want to know: Did you go to the ICTR investigators and you say to them, ‘I want to testify against Ndindiliyimana’, or they came and asked you to testify?”[521]

He claimed he went of his own volition but this is implausible.

His story of a trek through the countryside during which the general stops and incites people to kill Tutsi at Gitarama, Ruhongo, Nyanza, Kansi, is so ridiculous that no serious person could even consider them. Importantly, he does not mention a visit to the residence of Charles Kabeza. He even put their itinerary on a road that could not be taken, that is, his claim that they drove from Nyaruhengeri to Butare and then Nyanza to Kibuye by passing through Kaduha which would take them off the main road for no apparent purpose. His driver CBL104 denied all of these allegations. The general himself denied them. It does not fit the prosecution evidence that the general was trying to save Tutsi lives or the rest of the evidence in this trial. It bears repeating what Antoine said about a similarly ridiculous allegation, “an eagle does not eat flies.” His bias was revealed with this statement in court that “I had come to testify against him, and not to talk about him in a positive light.”[522]Finally, defence witness CBP56, a member of the VIP unit, testified that ANC was left at Camp Kacyiru when they went to Gitarama establishing that ANC was never part of the general’s escort. There are many other inconsistencies in the transcripts we could bring out but that what take too much of the space the defence has been allowed. The defence refers the Trial Chamber to those transcripts again and relies on the Trial Chamber to analyse the entire transcript. We submit that an objective consideration of this man’s testimony will lead to only one conclusion, that this man’s testimony is a fabrication from start to finish.

(8) Prosecution Witness UB

Prosecution witness UB made an allegation that he saw dead bodies around the Nyamirambo area in front of the JOC hostel across from the local gendarme brigade and claims he made a report to the gendarmes but nothing was done. Defence counsel protested this allegation as it is not in the indictment and there had been no notice.[523] But even here the witness supports the defence case by quoting the local gendarme commander as saying to him, “he did not have the power to stand up to the soldiers and Interahamwe who had attacked the JOC.” [524]This reflects the testimony of Colonel Marchal who also gave the fact of being overwhelmed as the reason for not being able to protect VIPs under the protection of UNAMIR forces.

In any case the credibility of this witness is negligible if any. There are several contradictions between his viva voce evidence and his three prior statements. He stated on cross-examination that he left his house on the 7^th of April and saw the bodies of 20 dead Tutsi but in his statements to Rwandan authorities he stated he never left his house at all on the 7^th. He cannot explain the contradiction. He lied about understanding French.[525] He is another Hutu prisoner witness charged with genocide and therefore motivated to testify in return for a benefit in reduction of his sentence. He was sentenced to death in 1997 and was convicted of three massacres by Rwandan authorities all occurring on the same day, the 7^th of April at different locations in Kigali when he claims to have been doing other things in this trial. He offered himself as a witness to the Rwandan authorities he claims but it clear that he was approached to give false testimony and agreed to do so. He has no credibility at all.[526] The Trial Chamber should also not the testimony of defence witness CBP99, a former bourgmestre who explained the process by which false testimony was created in the Rwandan prisons particularly in the prison at Ruhengeri.

In any case there is no evidence that even if his claim of bodies around the JOC is true that gendarmes under the command of General Ndindiliyimana were involved. Further, from his account of the meeting with the gendarme officer it apparently was not a matter of not wanting to do something, but rather the lack of the means to oppose an overwhelming attack by other forces.

(9) Prosecution Witness DBE

Witness DBE in her narrative of events at Kabgayi made an allegation that she was beaten by a female gendarme but that another female gendarme intervened. It is not clear that a crime is made out here under the jurisdiction of the tribunal but in any event defence counsel protested the leading of this evidence as it is not in the indictment, there was no disclosure and no notice. President DaSilva advised that we are not charged with that and not to worry[527] and that no conviction is sought on that.

(10) Prosecution Witness GFV

Witness GFV claimed that he was part of a mob that attacked the Court of Appeal building in Ruhengeri. Most of his testimony concerns General Bizimungu however, in his narrative, he claimed that when the mob attacked the refugees there, the three gendarmes guarding them fired shots into the air and then took off their uniforms under which they were wearing civilian clothes and joined the attack. The story is absurd. He cannot explain why gendarmes would be wearing civilian clothes under their uniforms or how they could physically do this or why. That is he admits the plan to attack the refugees was made that same day and no one had notified the gendarmes in advance.

In contradiction he states that other gendarmes arrested people suspected of being involved in the attack who he says were later released on the orders of Nzirorera’s brother.[528]

Even if his story were to be believed, it is against the prosecution theory because it is clear that those gendarmes had orders to protect those refugees and their joining in the attack was against orders and therefore they tried to disguise their participation. Therefore, there can be no command responsibility imputed to General Ndindiliyimana as there is no evidence of prior notice, or of a report being to him afterwards that gendarmes were involved. The witness accepts that this is the case.[529]

The second problem for the Prosecutor on this matter is that in his statement of May 12, 2001 at page K0285215 he stated that the gendarmes were placed at the Court of Appeal by Colonel Bivugabogabo of the Army who was the OPS Sector Commander. Therefore those gendarmes were acting under his orders, not General Ndindiliyimana. The witness agreed with this too as he stated, “We knew there were gendarmes there but it was on the orders of the soldiers.”[530]

In any event there are so many contradictions in his testimony that we do not have space to develop them all. For example, in his statement of May 17, 2001 he states that Uwihoreye was there but viva voce states it was a Major Bihembera.[531] In hisviva voce testimony he said he was a member of the MRND youth wing but in his statement of May 7, 1999 to the ICTR he denied being a member of the MRND.[532]He blames ICTR investigators for the mistake. He admits lying to authorities before.[533] He gave three different versions as to who gave the order to kill. In this trial it was General Bizimungu. In the Nzirorera trial he said it was Nzirorera and in his statement of May 7, 1999 to ICTR he stated it was Kajelijeli.[534] He is another Hutu prisoner witness held in prison for many years. He initially denied all the charges against him that goes against his credibility. At the time of his testimony he was on provisional release even though he had confessed to genocide, and waiting for his final sentence when he returned to Rwanda. It is clear that he expected some reward in reduction of sentence or freedom for providing his testimony and therefore it would very dangerous to rely on it. His attitude was cavalier and contemptuous when he testified.

(11) Prosecution Witness GLJ

Witness GLJ in their testimony reported that a bourgmestre had told him gendarmes had killed people and that a gendarme had shot a man named Dusabe. Defence counsel protested this allegation as it is not in the indictment was never disclosed and there was no notice. President DaSilva stated that he admitted the testimony for context only and not for the truth of its contents and therefore we will not address this matter further.[535] Judge DaSilva held that “If it is not in the indictment you wouldn’t be held responsible for that,”[536] and that “The question regarding Dusabe ad the answer given by the witness must be struck.”[537]

(12) Prosecution Witness LMC

Witness LMC alleged that gendarmes were at her house the morning of the 7^th with Presidential Guards. However, Mr. Sefon for the prosecution stated that “We are not insisting that gendarmes provided her husband’s security…”[538] President DaSilva stated:

[T]here is no charge with regard to you on what transpired at her place…I’m not going to convict…in the air, there must be a charge. If there are no charges, I am not going to pick charges from the air and convict.[539]

In any event she later contradicted herself and said,

I told you yesterday that my husband was taken from my home around 7:30 in the morning, normally by that time the gendarmes would be at our home but that morning there was no single gendarme came…[540]

She also stated that it was UNAMIR that protected her husband. In any event, we will not comment on this matter further.

(13) Prosecution Witness DBB

Witness DBB claimed in her testimony that Gendarmes travelling in a vehicle shot civilians at Kanyungu bridge. Defence counsel objected to the leading of this testimony as it is not in the indictment and would constitute a separate charge if it was. It was also not in any disclosure.[541] In any event in all her prior statements she said that only soldiers were involved there not gendarmes. Further, her story is contradicted by prosecution witness EZ regarding the same events and who does not mention gendarmes being involved at all. She also knows witness DBH who also stated that gendarmes were not involved.[542] She was caught in multiple inconsistencies under cross-examination by Mr. MacDonald and her demeanour was very bad, openly laughing,[543] and at one point Judge Park had to admonish her about getting angry.[544]

She stated she was a member of IBUKA and the defence recommends a further review of pages 62-67 of the transcripts of January 30^th to be able to comprehend the number of contradictions and inconsistencies in her testimony.

In any event, even if her story were to be believed, the defence submits that the Prosecutor failed to establish that the gendarmes were under the command and control of General Ndindiliyimana as opposed to the army or a civil authority. Further they led no evidence whatsoever indicating that he had notice in advance of this or should have expected it, nor that any report was made to him regarding this incident. In fact the witness stated that she never told anyone in Rwanda about this.[545] Therefore, as no command responsibility can be imputed to General Ndindiliyimana with regard to this alleged incident, we have no further comment to make.

It is alleged in paragraph 96 of the indictment that militia, supervised by two gendarme NCO’s, erected a roadblock near Camp Kacyiru, stated to be the headquarters of the Gendarmerie, and killed Tutsi there. These specific allegations have been dealt with above in respect of the Crimes Against Humanity, Count 4 of the indictment. However, the prosecution witness KF made a series of allegations that are not contained in the indictment such as the entry of Interahamwe into the camp where they were supported and the killing of certain Tutsi in the camp. This entire version of events has been dealt with above with respect to paragraph 96. Nevertheless, it is necessary to establish that once again the defence was taken by surprise by these allegations and since they would support a separate charge in the indictment they cannot be considered under any count set out in the indictment.

(14) Prosecution Witness DEA

Another set of allegations presented by a prosecution witness against gendarmes but not set out in the indictment is the set of allegations made by prosecution witness DEA with respect to events in Cyangugu. There is no allegation made against General Ndindiliyimana or gendarmes with respect to Cyangugu in the indictment. The only allegations concerning that area are contained in paragraphs 68 and 91 against the Army and Interahamwe.

Witness DEA claims that on the 9^th of April there were disturbances in the area, Tutsi houses were burnt and that a gendarme fired at him. He fled to a school and then was advised by the prefét Bagambiki it was safer to seek refuge in the stadium. He claims he went to the stadium on the17th of April and that gendarmes were guarding the entrance. He claimed that Bagambiki came to the stadium with an escort of soldiers and gendarmes who took out approximately 30 men. There is no evidence as to their fate. Defence counsel protested the leading of this evidence as it is not in the indictment but also because this witness had the code name LN in the Bagambiki case and in the trial judgement was found by the Trial Chamber to have no credibility. Yet, the Prosecutor insisted on calling him as witness in this case even though the Prosecutor was aware he already been determined by the tribunal to have no credibility. Again, questions must be raised as to the ethics of doing so. It was also brought to the attention of the Trial Chamber that this witness had been contradicted by another witness, LAV, in the Cyangugu case. That witness stated that there were no gendarmes with Bagambiki when people were taken from the stadium.[546] President DaSilva agreed with counsel that the finding of the Trial Chamber in the Bagambiki case must be considered when considering this witness’ credibility. His honour Judge DaSilva stated, “I will read that judgement when we consider this…”[547]

He also makes allegations that for reasons never made clear he was taken out of the stadium in the direction of the Gataranda river and bridge and en route beaten by gendarmes. Then he is ordered by them to go back to the stadium. Interahamwebegin killing people at the bridge. Gendarmes looted peoples’ possessions. He claims he miraculously escaped and jumped into the river and hid underwater for several hours and then, at night, inexplicably decided to go back to the stadium! This whole scenario is implausible.[548] He then states that he climbed a 4 metre wall, also implausible, to get back into the stadium and then escapes from the stadium and after a week of hiding in various places goes back once again to the stadium all of which is implausible. Why would someone go back to the place from which they had fled? Finally he states he was taken by bus to Nyarushishi where refugees were protected by gendarmes until French soldiers arrived as part of the UN Operation Turquoise.

There are many contradictions in his testimony. For instance he states that there was an open telephone line at the stadium but says a soldier cut it but cannot explain how he saw this happen from his position in the stadium. In his testimony in the Cyangugu case he never mentions gendarmes at all. He refers only to soldiers of the army.[549] He cannot explain these contradictions. In other words he recounts exactly the same events in both trials but in this case, for the first, time he adds gendarmes to the mix. He states he arrived at the stadium on the 17^th of April but in the Bagambiki case the trial judges found that the Interahamwe attacked the stadium on the 16^th and again on the 17^th and that both times, gendarmes repelled the attackers.[550] Despite this finding of fact, he claims not to have been aware of those attacks and the actions of the gendarmes. This is not plausible if he had really been there. Further he has a bias against the accused as he admitted he has several friends in the RPF and in both trials he left out any mention of French soldiers coming to the rescue of refugees at Nyarushishi though stated so in his prior written statement. This indicates that he is echoing and following the RPF party line that the French never did anything good in Rwanda and that therefore he came to testify with an agenda.

The Prosecutor has another problem with this witness version of events as it contradicted by prosecution witness LBC who also gave evidence about the events at the stadium in Cyangugu and who stated that, “yes, it was the gendarmes who sent away the ”[551] (at Nyarushishi). LBC stated that Bagambiki came to the stadium accompanied by soldiers, not gendarmes. She stated, “…in respect of those elements accompanying Bagambiki and Imanishimwe, those were not gendarmes.”[552]And,

Q. “Tell the court, the stadium was guarded by gendarmes and they protected you, is that not true?”

“Yes.”[553]

In other words the Prosecutor more than raised a reasonable doubt as to the claims made by DEA with their own witness LBC. Their own witness completely undermined the case they attempted to make with DEA.

In any event, the Prosecutor failed to establish any command responsibility with respect to General Ndindiliyimana even if DEA were to be believed as those gendarmes were alleged to be under the command of the prefét Bagambiki and there was no evidence led of any reports of crimes committed by gendarmes at Cyangugu being received by General Ndindiliyimana. Indeed, Mr. Tambadou for the Prosecutor stated:

My Lord, if I may add-to comment. I mean, Bagambiki was the prefét. He had the power to ask for reinforcements from those gendarmerie or those in command of the security forces in that area. It makes sense that Bagambiki is the person who should be spoken to on those occasions.[554]

But we reiterate and emphasize that the evidence from prosecution witness LBC is that gendarmes protected people at the stadium in Cyangugu and at Nyarushishi and therefore the attempt by DEA to state otherwise must be rejected for the pack of lies it is.

(15) Prosecution Witness ON

Prosecution witness ON testified as to the events Nyundo which are not included in the indictment. He stated that on the night of April 7^th he and his family took refuge at the local seminary that was attacked that night by Interahamwe. Gendarmes came in reaction to that attack, gathered the survivors in the chapel and then left, it would seem most likely to go back to the Cathedral nearby that they were also trying to guard. The attackers returned and so the gendarmes took him to the Cathedral for better protection. He stated, “Gendarmes did not kill.”[555] He claimed that gendarmes accompanying an army officer came there and asked for money. Defence counsel objected this as it is not in the indictment.[556] Asking for a bribe is not a crime under the Statute but it was an attempt by the witness to damage their reputation. It is also clear that those gendarmes were under the command of an army officer so no command responsibility can be imputed to the accused for this incident.

The witness claimed that one unit of gendarmes was left to protect them at the cathedral but then claimed that another group of gendarmes came under the command of an army lieutenant and some Interahamwe and gendarmes again tried to get some money by saying they could give it to the Interahamwe as an inducement to leave. This again is not a crime under the statute and once again these men are under the command of an army officer, Lt. Eugene. The witness, though clearly protected by gendarmes, who appear to be under army command, still tries to make them look bad or as if they did not do enough. But in response to a question from Judge Park he admitted that he did not ask the gendarmes for protection for himself or the other refugees.[557] Further he testified that there was big attack made by the local population on the cathedral, a lot of them, numbering in the thousands[558] and that gendarmes came to help them in the form of gendarme officer named Biginaro and gendarme reinforcements.[559] A gendarme then took him by vehicle to Gisenyi where he stayed at the Palm Beach Hotel with Bishop Kalibashi and that they were protected by two gendarmes brought by Colonel Nsengiyumva.[560]

He finally admitted that there were only 4 gendarmes available at Nyundo Hill on the 7^th and 8^th and that they were the only ones available to protect both the seminary and the cathedral at the same time.[561]

The testimony of this prosecution witness is general favourable to the defence and once again demonstrates the difficulties faced by the gendarmerie when faced with large attacks by civilians against refugees and that gendarmes did try to protect people and did save people. However, the witness did try to twist things in an unfair way. It is submitted that he had a motive to do so. The Court of Appeal in Rwanda found him not to be a truthful witness in the case against the priest Nturiyesee and that he was motivated to lie for money.[562] He had also been accused of defamation by a Rwandan university apparently in revenge for the expulsion of his niece for cheating on examinations. He has close connections to the current regime in Rwanda and was Rwandan ambassador to Uganda in 1995 and was a former member of Landouald’s faction of the Liberal Party in 1994. He also has an axe to grind with the gendarmerie even though they saved his life as he stated that gendarmes searched his house in 1990 on suspicion that he was an RPF collaborator, but he was never arrested.[563]

The defence submits that this witness did not testify to any criminal action on the part of the gendarmerie and therefore this incident cannot be used to support any of the counts contained in the indictment. The defence submits, instead that it is further evidence in favour of the defence. However, if the Trial Chamber were to consider some of the claimed actions of gendarmes as going to intent or general conduct, which we deny, then those actions were taken under army command and no command responsibility can be imputed to General Ndindiliyimana. However, we submit strongly that it is clear that the gendarmerie at Nyundo Hill did their best with the limited resources to protect the refuges there. It must not be forgotten that these events took place the night of the 7^th and 8^th of April, and it would have been impossible for the gendarme general staff to have sent reinforcement there as even in Kigali, massacres by civilians had not yet started and it could not have been foreseen, nor was their time to react quickly. It is noted that reinforcements finally did come and there was no evidence led by the Prosecutor that it could have been sent earlier.

(16) Prosecution Witness KF

Prosecution witness KF went outside the charge set out in paragraph 96 and made allegations, which, if true, would support the pleading of separate charges in the indictment. Since the Prosecutor chose not to plead them he is no barred from arguing these allegations in support of paragraph 96 or any charge or count in the indictment. They cannot be considered by the Trial Chamber as the defence had no opportunity to investigate these matters and to prepare to make full answer and defence.

KF claimed that Interahamwe were allowed into the camp and provided with medical facilities and arms. She claimed that Interahamwe militia were housed in a conference hall, near the officers’ building after April 6 and stayed there for the duration of the war. She even claimed to have heard that Lt. Colonel Nzapfakumunsi was on board a pickup while the driver gave weapons to the Interahamwe. She also related the story of a man named Kalimba and his family who, according to what another gendarme told her, was killed at an Interahamwe She did not relate how the gendarme supposedly knew this. In any event this story is uncorroborated hearsay as is the first story about weapons distribution. She also claimed that a woman named Marie who was supposedly killed in unclear circumstances at a place never specified. This also was uncorroborated hearsay. She claimed that two NCO’s facilitated the activities of the Interahamwe in the camp. Her knowledge of this is expressed through examples of cooperation that she claimed to have seen. Although she claimed that a Sgt. Major named Nteziryayo and Sgt Simpunga did this she never related any activity where they were actually involved. She did not link in any way the activities at the Camp she claimed occurred with the roadblock some distance from the Camp. She did say something positive about General Ndindiliyimana, stating that “He was a kind man…calm. He was a man who earned his respect and who was kind.”[564] She also stated it was the first camp to be attacked.[565]

KF has severe problems with credibility. She claims she was a member of the general staff headquarters but it was not base at Camp Kacyiru, rather at Kimihurura. She initially stated that she did not see General Ndindiliyimana after April 6 but then changed that to state she saw him come to the camp once on April 20. She only heard he was in the camp. She did not physically see him. She confirms that the camp was attacked immediately after the president’s plane was shot down. “In the hours following the crash there was gunfire all around the camp.”[566] It was insecure and dangerous. But despite the fact the camp was being attacked and she was needed she failed to report for duty April 6, 7, 8, 9, 10 and 11. She pretended to have malaria.[567] Instead she was either malingering or she was outside the base working with the RPF.

When she testified she was a warrant officer of the current national police in Rwanda, the RPF force that took the place of the Gendarmerie. So she has a bias against the prisoners at the ICTR and is no doubt under pressure from her superiors to try to condemn them. She also admits that when the Camp was evacuated the beginning of July, she deserted her unit and stayed behind to join the RPF forces that took the camp.[568] When she was questioned about her interviews with the ICTR and how they occurred she stated that in 1998 at the CID office “I had no telephone and our phones were not working properly.”[569] This is impossible for a big national police force in Kigali and the CID office as well. No police force cold function like that. She clearly did not want to tell the truth about how she was recruited as a witness.

In her prior statements to the ICTR of 1998 and 2001, she never mentioned anything about Ndindiliyimana.[570] In a weak attempt to try to explain this she gave the usual prosecution witness scripted answer that “They were not really concerned about General Ndindiliyimana.”[571]

She admitted that she was suspected by the Gendarmerie of being a forger, that is, of forging documents about death squads for Afrika Janvier on her office computer and that because of that investigation she was transferred out of the CRDC section. This admission that she was transferred because she was suspected of forging documents destroys her credibility. She admitted she was suspected of being an RPF collaborator.[572] However, in chief she lied about the reason she was transferred, stating that she was transferred due to a promotion. Only on cross-examination did she admit the truth.[573]

She admits she lied to her superiors about her reason for failing to report for duty after April 6.[574] Her explanation for failing to help defend the camp is self-serving, incoherent and totally implausible.

In her statement to the ICTR she said that Major Munyakazi had turned people over to the Interahamwe to be killed but she admits he was made a brigadier-general by the RPF so those stories cannot be true.[575] She also admits that she never told the Rwandan authorities about her allegations concerning Munyakazi and for a policewoman this is failure to perform her duty and it casts grave doubt on her credibility.[576] She admits that she was considered to be an RPF soldier until November of 1994. She acknowledged that she was accused of attacking the house of man named Semanza on the 9^th of April 1994. “All those who came said that Semanza’s relatives said that I led the RPF attack…”[577] She acknowledged that she was accused of leading an attack on refugees on the 12^th of April, 1994 at Niyambu according to the statement of the local bourgmestre Rumgamgarana of Bicumbi commune.[578] She also admits she was wrong when she stated the road safety company was in the camp. All these issues reduce her credibility to zero and it is likely that since she admitted she was AWOL for the several days in April she was likely on the killing spree that she was accused of by several independent parties and only escaped justice because of her role in the police and likely in return for her testimony at this trial. In fact, it is highly unlikely that, once she deserted her post that she ever returned to the camp and was no doubt serving with the RPF forces roaming around Kigali killing people. It is unlikely that she could have observed anything that she says happened at the camp and has just been fed this story.

Colonel Nzapfakumunsi (JVN) testified for the defence. He was the commander of the airport company on April 6 1994 and on April 7^th took up his duties as S3 officer at Camp Kacyiru. He stated that as of the recommencement of hostilities the 7^th of April he and the other gendarmes at the camp came under the operational command of the army pursuant to the defence plan for the city.[579] The Trial Chamber will recall that his statement was one of those the prosecution failed to disclose to the defence.

Colonel Nzapfakumunsi emphatically denied the allegations made by KF and stated that no Interahamwe ever entered the camp for any purpose. He explained that families of gendarmes who sought safety in the camp were at first put in the auditorium and that he never saw any Interahamwe there.[580] He explained that he could not tolerate the presence of any Interahamwe in the camp as he himself had been threatened by them due to his actions taken against them before April 6. He said, “If I had seen any, they would have drawn my attention because I personally sought out the Interahamwe, hunted them down because I was afraid of them.”[581]He illustrated the layout of the camp, including the location of the auditorium and that because it was near the command post, was shelled by the RPF and destroyed. Therefore it was impossible for the Interahamwe to have used that auditorium as a base as KF described. “Bombs fell within that area around the command post and they also torched the auditorium…that was the beginning.”[582]The command post was moved to another location in the camp. This occurred about the 11^th or 12^th of April.

And if I remember correctly, when we moved, nobody was left in there. We had already evacuated [persons in the auditorium] by the buses that the gendarmerie had given us. We sent them to Kibuye, Nyanza, and other areas, but we had removed them.[583]

He was not aware of any deaths of civilians at the hands of gendarmes as related by KF. He also stated that there was never any arms distribution in the camp. He stated that this was an impossibility.

I personally was targeted and it was because there were lots of reports. It was a critical situation. If I had seen Interahamwes coming into the camp, for me, that was a big question mark. It would have been extremely serious. Would they be coming to kill me? Would they be coning to kill anyone else? So it was such a crucial situation that I could not see those Interahamwe and allow them to operate within a camp I was working as S3 and which came under my responsibility. Protecting my camp against anyone, some, whosoever, so I could never have allowed Interahamwe to come in. I mean these were my enemies, sworn enemies.[584]

He stated KF’s claim of weapons distribution in the camp was false.

Once more, I tell you this is false, for reasons that I’ve already given, that I’ll give again. First, at that date, I was commander of the Kanombe airport company and also S3 for the Kacyiru neighbourhood operational sector. So, at the Kanombe airport command in the magazine dump there were no weapons, so I could not distribute firearms that I did not have in my store. That is the first point.

Now, knowing that with individual weapons it is the unit commander that is responsible for the badge—or that the weapons that are given to him by the general in command. Now, knowing that I did not have these weapons in my weapons store, I could not get into the office of the unit commander and distribute weapons that were given to him by the general staff. That is impossible. It is never done. That is the second point.

Third point, I have described my situation with the Interahamwe to you. Now, can you imagine that I could give firearms to the Interahamwe, knowing that these arms would be used against me? Is that imaginable?[585]

The prosecution themselves has established the origin of the weapons used by theInterahamwe at road blocks. Prefect Renzaho instructed conseiller to collect weapons and distribute them on roadblocks. Witness GLJ testified:

It is the préfet who opened the floor at the meeting and asked all conseiller to present reports on security in their respective secteur. Then the préfet instructed us, as per the decisions of the Security Council of the préfecture.

To begin, he told us, first of all, to set up roadblocks in the neighbourhoods.

Secondly, he told us or requested us to go and collect guns from the Ministry of Defence in order to distribute them at the roadblocks.[586]

At the end of the meeting I went there and five rifles were given to me. I went a second time and they gave me, once again, five rifles. So I received ten rifles in total.

Q. When did you go the first time?

A. At the date that I mentioned, that is between the 10th and the 20th, that is when I went for the first time and received five rifles.

Q. And when did you go the second time?

A. The second time I went there was the following day.

Q. You know how many guns you received from the Ministry of Defence?

A. Ten rifles.

Q. Do you recall the type of guns you received?

A. I received five Lee Enfield ‑‑ five Lee Enfields and a second time I received five rifles including G3 and R4s.[587]

The threat against Lt. Colonel Nzapfakumunsi is corroborated by the report made by Lt. Nees of KIBAT to the KIBAT commander dated March 2, 1994. Paragraph 2 of that report states:

“Last Friday evening, Colonel Nzapfakumunsi, GD, accompanied by his wife, was stopped on the Kimisagara road by an armed gang. His wife was threatened while the others instructed him to tell his troops that they should not act with so much force in the event of clashes, otherwise they would know where to find him.”[588]

He testified also that the NCO KF referred by the name of Nteziryayo deserted and joined the Interahamwe operating a roadblock behind the camp. He deserted with another NCO named Ngerero. He had no knowledge of a man named Simpunga.[589] Ngerero had deserted prior to April 6 and there was a file open on him for disciplinary action opened by General Ndindiliyimana. The investigation was paralyzed after April because “everything was at a standstill.[590]”

The offices had been emptied, all what is done in office unit-a minimum was stationary to be able to conduct investigations. So from the 7^th everything was evacuated… There were no machines, nothing at Kacyiru. The whole place was closed down and there was no way the investigation could be continued, even the unit commander of the gendarme in question was unavailable, as he was in the trenches where he was commanding the defence of his position. So, materially speaking, it was impossible.[591]

He stated that the nearest civilian roadblock was at Kimicanga about 800 metres to one kilometre from the Camp.

Defence witness CBL105 confirms JVN’s testimony. He worked at the CRDC centre but lived at the camp. He testified that the camp came under attack at the break of day on the 7^th of April.

I believe at the break of day on the 7^th of April, that is to say, between the 7^th and the 8^thof April, Kacyiru camp where we were to be found came under attack. Very early in the morning, we were shelled, and we came under mortar attack from all directions. We faced up to this attack, and this is how fighting commenced.[592]

CBP88 was a member of the VIP unit based at the camp. He testified that he remembers the RPF attacking on the 8^th approximately referring to a ground attack but stated that shelling began before that. He stated that buildings were destroyed, “many buildings.”[593] He stayed in the camp until July 3^rd or 4^th. He was asked if he ever saw armed civilians in the camp. He answered,

No, I did not. And it wouldn’t have been possible that a military installation they could-no one could allow themselves-it could not be allowed to enter a military installation. Many were at the front but still it couldn’t happen. The Interahamwe never came to our camp and they would not date do to so. So I did not see any Interahamwe. But I do remember a small number of people who were afraid came to the camp. I think it was on the 7^th or the 8^th some civilians came to the camp, women, children. They came to seek refuge at the camp because they were afraid. But one could easily see that it was people who were afraid and who’d come to seek protection.[594]

He then went on to describe that after a week or so these civilians were evacuated.

CBP56 was an NCO in the VIP unit at Camp Kacyiru. He stated that they received information that hostilities had begun the night of the 6^th of April so they took up defensive positions around the camp at dawn. He also testified that he saw civilians come into the camp for protection but he never saw any armed civilians come into the camp which he left on the 12^th to go to protect the Hôtel des Diplomates. “No, it was not possible. How could an Interahamwe have entered the camp? I did not see any Interahamwe entering the camp, be it on the 7^th or in days subsequent.”[595]He remembers passing through a civilian roadblock on the way to the hotel at a place called Kanimba about 2 to 3 kilometres from the camp going by road.

Witness CBP99 was a former bourgmestre who lived in the Kacyiru area and on the 8^th, because of RPF shelling and incursions into his area and the targeted killings of certain FAR officers he went with his family to seek protection at the Camp.[596] He described the shelling of the camp by the RPF which forced the evacuation of the civilians there on the following Sunday. He stated:

Thank you, counsel, Mr. President, Your Honours, during that period of time, I didn’t see any civilian armed myself because the three days or so that we spent there were a nightmare. Because-imagine civilians in a camp. Can you imagine that there would be armed civilians in a gendarmerie camp? I don’t think that is possible. But I cannot imagine any such things. Because even the soldiers, or gendarmes, who were at the camp were forced to go into the field to protect themselves form the RPF attacks on the camp. That is what we saw. The gendarmes had been mobilised to guard the camp. Unfortunately, the means that I saw the gendarmes having were insufficient, because they had to cal for reinforcements. There were no armoured vehicles in Kacyiru, there were no combat vehicles at Kacyiru. And the gendarmes in Kacyiru had to call on the national army reinforcement. So I cannot see anybody imagining the presence of civilian-or, armed civilians in the Kacyiru gendarmerie camp.[597]

This witness also placed the first roadblock at Kanimba bridge about 2 to 3 kilometres from the camp.[598] He also related how he witnessed Major Cyiza, a gendarme officer who was evacuating American embassy personnel by road from Kigali had to protect a black woman who was among those people and force their way through a civilian roadblock.[599]

CBP7, a senior officer of the gendarmerie, also confirmed the above testimony and testified that it would have been impossible for weapons to have been distributed without the knowledge of the G4, the logistics officer we have referred to several times. Procedures had to be followed and the manner in which KF described the situation was not possible. He also stated emphatically that the Gendarmerie could never collaborate with the Interahamwe and further, the gendarmerie did not have the weapons to give. “How could have given weapons when we did not have enough ourselves?”[600] He also stated that there was not enough fuel to distribute toInterahamwe nor was there enough ammunition.[601]

In the result, it is submitted that the allegations of KF must be dismissed as wholesale fabrication. Her credibility is nil for the reasons stated above while the defence witnesses were hardly touched on cross-examination and testified clearly, calmly, and openly. It is also to be noted, again that the Prosecutor failed to call the one witness who could corroborate KF, that is the G4 officer, Major Nsanzunfura who works in their office. He would surely have been aware of what weapons and resources were given to the Interahamwe if they were. But they chose not to call that officer and the adverse inference must be drawn that he would not corroborate KF but, instead, would corroborate the defence position. Therefore, this allegation which lies outside the indictment must also be rejected as an element under any of the counts for which General Ndindiliyimana is indicted.

VII. Sentencing

A. Mitigating Circumstances

In the event that the Trial Chamber convicts General Ndindiliyimana, the defense respectfully urges that the following factors be taken into account as mitigating circumstances pursuant to Rule 101(B), Article 23(2) of the Statute, and relevant case law.

(1) Voluntary surrender

(2) Practical difficulty in exercising authority to prevent or punish

The Trial Chamber in Rugambarara found that the practical difficulty to prevent and punish to stop killings is a mitigating factor because of the prevailing chaos during the genocide.[602] While some Trial Chambers have found that a position of authority is an aggravating circumstance, there is a recognition that it is really the abuse of his position that is the aggravating circumstance.[603]

In the circumstances of this case, the Defence urges leniency on the part of the Chamber if it chooses to convict. General Ndindiliyimana tried to exert his personal and professional influence to stop killings. He intervened at roadblocks, he gave orders not to kill, he gave orders to save, he worked to try to save the Arusha Accords, he tried to deal with the problems the Interahamwe were causing by speaking with members of the Interim Government, amongst other things. He did this at great risk to himself, especially considering the famous Karemera letter that Dr. Des Forges interpreted as a veiled threat.

(3) No prior criminal record and evidence of good character

The Trial Chamber has the discretion to account for the good character and accomplishments of an accused as a mitigating factor in sentencing.[604] The fact that an accused had no prior criminal record can be mitigating factor as well.[605]

In this case, Ambassador Swinnen, Col. Daillare, Luc Marchal, and various other of General Ndindiliyimana’s colleagues testified as to General Ndindiliyimana’s positive actions. He is described as “moderate,” “trustworthy,” “competent,” “professional,” “cooperative.” Prosecution witnesses General Dallaire and Dr. Desforges also attested to his cooperation and his efforts to oppose those who they consider to be extremists. The Belgian minister of foreign affairs, through his telegram sent to the Belgian ambassador in Kinshasa expressed his appreciation of the General Ndindiliyimana as a friend of Belgium and for his actions in saving the lives of many Rwandans. Inspector-General Mahundi of the Tanzanian police and former head of INTERPOL for Africa spoke of his desire to see the success of the Arusha Accords. The American government, through its embassy in Kigali, produced several documents that were filed as exhibits that speak to his integrity, cooperation, moderation and commitment to peace in Rwanda.

Further, evidence of social factors, such as professional and family background, can be considered as mitigating circumstances because they indicate a likelihood of rehabilitation.[606] Additionally, the fact that an accused worked for most of his life for the good of Rwanda and that the accused did not discriminate against anyone on the basis of ethnicity was held to be a mitigating circumstance.[607]

General Ndindiliyimana was related to Tutsis. He worked with Tutsis. Members of his personal escort were Tutsi. His personal secretary throughout the events was Tutsi. Further, members of the gendarmerie testified that there was no distinction between the way that Tutsis and Hutus were treated.

(4) Saving Tutsis during the events is considered a mitigating factor[608]

The record is replete with evidence of General Ndindiliyimana helping to save Tutsis. He assisted the owner of Hotel du Tourism in Gitarama, harbored Tutsis in his residence in Kigali, especially children, and assisted in numerous evacuations. While saving Tutsis has been considered an aggravating circumstance if they are considered friends of the accused because it may show further abuse of position, in this case, General Ndindiliyimana assisted children, particularly orphans. He did not have a prior connection with them and exerted kindness, compassion, and assistance. He also helped to save opposition ministers at Hotel Mille Collines and arranged for Tutsis, in cooperation with General Dallaire, to be delivered to RPF lines.

(5) Conduct of the accused during trial and detention

(6) Personal circumstances

The fact that an accused is married and has children can be considered as mitigating factor.[609] General Ndindiliyimana is married and has two daughters. His family has established itself in Belgium. He suffered the loss of his young son to leukemia while held in detention and was not permitted to attend either his bedside or his funeral. This was a severe blow to him and something he should not have suffered. While in detention he has earned the respect of the UNDF staff and other prisoners and was elected as president of the prisoners’ committee dealing with prison conditions.

B. Cumulative Convictions

In the event that multiple convictions are entered, the Trial Chamber may impose concurrent sentences, consecutive sentences or a single sentence.[610] The defence acknowledges that the Prosecution has alleged the same events in multiple counts. It is the defence position that the accused cannot be convicted and sentenced multiple times on the basis of the same factual allegation.

C. Conclusions on Sentencing

General Ndindiliyimana is a man of integrity. He is well respected by those he worked in cooperation with throughout the events in 1994. He served his country with honour and dignity. If the Trial Chamber convicts, it should, in light of General Ndindiliymana’s positive reputation and good character, lighten its sentence and consider time served.

VIII. Issues Relating to Intent

We rest our case with several statements that bear reading again as they go to the crucial issue of intent. The crimes of conspiracy to commit genocide, genocide and crimes against humanity require that the Prosecutor establish specific intent on the part of the accused to commit the crimes alleged. We submit that the Prosecutor has completely failed to establish specific intent on the part of General Ndindiliyimana. One important element of intent is motive. Every crime has a motive. The defence submits that the Prosecutor has failed utterly to indicate what the motive was for General Ndindiliyimana to engage in the acts he is accused of or the more general allegation of not doing enough. All the evidence, even from prosecution witnesses, is that General Ndindiliyimana was always for peace and harmony and struggled against heavy odds to keep it and once lost, to try to re-establish it. Not one iota of evidence was called as to why General Ndindiliyimana would act against his own interests, against his own ethics and morality, against common sense and humanity.

The defence submits that there is another factor that must be taken into account in determining whether General Ndindiliyimana made all the efforts he could have made to try to maintain peace in Rwanda and to protect civilians during the events of April through June 1994. The defence asked the rhetorical question several times why General Ndindiliyimana was accused when the RPF government in Rwanda absorbed the Rwanda Gendarmerie into its own security structure when they took power and when many of his subordinates with whom and through whom he exercised his remaining command now hold high ranks in the RPF security and armed forces.

During the trial the following persons were mentioned:

Lt. Colonel Rwarakabije was the G3 officer in charge of operations and was deputy chief of staff. It was this officer who assumed the actual command when General Ndindiliyimana was relieved of his command in June 1994. He joined the RPF and was promoted to the rank of General.

Major Nsanzimfura the G4 officer in charge of logistics now works in the office of the Prosecutor.

Major Gakara is a professor in Belgium.

Major Kinyoni is deceased.

Captain Theoneste Hatagekimana, a Tutis officer, aide de camp of General Ndindiliyimana joined the RPF forces.

Major Nzabonimpa, the gendarme liaison officer with UNAMIR and who assisted the UN forces in Operation Turquoise joined the RPF forces.

Major Jerome Ngendahimana, commander of the headquarters and service company joined the RPF security forces and was promoted to the rank of general.

The following gendarme officers were assigned to the Ministry of Defence during the events in Rwanda:

Major Cyiza left the Ministry to rejoin the headquarters staff took steps after the retreat of the FAR forces into Zaire to regroup the gendarmes who stayed in the country and negotiated with the RPF for their integration into the RPF security forces. He later became President of the Court of Appeal in Rwanda.

Major Kanamugirem, a Tutsi officer, and S1 at Camp Kacyiru joined the RPF forces and now occupies a position in the Rwandan ministry of defence.

Unit commanders in Prefectures:

Major Calixte Kanimba, commander of the Kigali group joined the RPF forces.

Major Cyriaque Habyarbatuma, commander of the Butare unit joined the RPF with his deputy commander, Captain Mugabo.

Lt. Colonel Bavagumenshi, the commander of the Cyangugu unit is now G1, chief of personnel at the staff headquarters of the RPF.

Major Bizimana, commander of the Gisenyi unit joined the RPF.

Major Bizimungu, commander of the Gikongoro unit later was the liasison officer between between the FAR and the command of Operation Turquoise.

Major Munyakazi commander of the Kigali mobile group joined the RPF and was promoted to the rank of general who assured the security of St. Famille, St. Paul and CELA was decorated by the RPF.

These lists of officers indicates that the RPF does not consider these officers to have been engaged in any criminal activity nor the gendarmerie as a whole.

We submit that the following testimony should be considered in determining this issue:

(1) Judge Hikmet asked Alain De Brouwer the following question:

Q. “I want you to answer the last question. Do you judge on any person, personality or manner conduct, before the events, during the events, or after the event, in your point of view?”

A. “Well, before the events, I briefly reminded you of the very well-known role occupied by Ndindiliyimana-General Ndindiliyimana in that in Kinihira, in 1993, he saved the Arusha Accords by giving a solution to the military aspect, and as by addressing the issues of the displaced persons within the buffer zone, that is within the militarised zone and, unfortunately, this was not allowed by the RPF ad what is more this was the first example of a violation of the Arusha Accords by the RPF. So this was a well-known fact for us.

Now, during the vents and afterwards from this very clear telex stemming from the Belgian minister of foreign affairs, we knew that the person of General Ndindiliyimana we had somebody who would bring a great deal of collaboration in the search for the truth as to the events which occurred in Rwanda. We discovered his written contribution to the commission of inquiry of the Belgium Senate. I believe that this was a written document of 39 pages comprising a number of annexes. So it was quite a lengthy document. And, quite honestly-well, he gave a press conference in the European-against the European backdrop. He was in the au cercle populaire European in June 1997. I believed that it is interesting for the Trial Chamber and for yourselves to acquaint yourselves not only with my modest translation of this document but also with an official translation of Willy Claes’ message. Because then you will understand why people welcomed with open arms General Ndindiliyimana to Belgium in 1994. Is that sufficient for you, madam?[611]

(2) The Belgian ambassador read the telex sent by Willy Claes, then the foreign minister of Belgium, later to become Secretary-General of NATO:

And it’s an instruction by our Minister Claes to our ambassador in Kinshasa, in order for the ambassador to grant a visa to General Augustin Ndindiliyimana. So, I’ll start with the first line. It says, ‘From the office of the minister to the ambassador. Copy to the consular or visa section.’ So this is an instruction sent by Minister Claes to the ambassador with a copy of this instruction sent to the visa section of the Belgian embassy in Kinshasa.

It says, ‘Urgent. Subject column; visa application by General Augustine Ndindiliyimana, chief of staff of the Rwanda Gendarmerie.’ And then you have the reference,’your telex 2768 of 28^th June 1994. ‘Point number 1:In consultation with the Ministry of Interior, or Ministry of Home Affairs, I would like to inform you that you can react positively to the visa application of the person mentioned above.’ IN other words, General Ndindiliyimana.

Point number 2, ‘The person concerned has always proven-has always proven to be of service, and of proper conduct towards Belgium. Similarly, during the recent period of violence in Rwanda, the person concerned showed that he was a friend of Belgium. Furthermore, he helped many Rwandans. He helped many Rwandans to find safe shelters or to find safety, and helped may Rwandans to escape a certain death, an obvious death.

‘Point 3: I request you to inform the concerned person that the Belgian military Prosecutor’s office incharge of carrying out an investigation on the death of 10 Belgian peacekeepers would like to have an interview with them (sic) given the fact that-given the fact that, undoubtedly, within his duties, he has important information which could be used in respect of this investigation of this issue.

‘Therefore, I would be very grateful to you if you could let me know where in Belgium, and when, the person in question could be contacted in relation to the Belgian military prosecurtor’s desire. The only information that we have up to now is the telephone number of his host in Belgium, that is, the person who invited him to Belgium. …signed Willy Claes,’ Thank you, Mr. President.”[612]

The Ambassador continued,

I want to say a lot of things, because we are dealing with a case which, to my book, deserves very special attention. I consider General Ndindiliyimana as a positive person. I do not have all the details about his movement during the genocide, not even about the period preceding the genocide, But, I have given you the basis on which I have always, and I still, take General Nndindiliyimana seriously.

I have not had any signals or got any statements from him which make it possible for me to create any doubt about his commitment to renciliation. I know that he hails from Butare, a region of Rwanda which we have always considered as a regione where Hut and Tutsi were living in harmony. They were moderate and tolerant, which was not the cae, as the sociologists say, in the north of the country. So, somebody who in his acts and what he has said did not male me create any doubt about hic commitment to peace and enforcement of law and order as in his capacity as general military chief of staff. I have had pleasan personal relations, but I would most of all want to underscore the point to which I attach importance to, the efforts to the quest for peace, and the quest for

for justice, and international justice.

Mr. President, I would not like to be pompous, but the role which this Tribunal will play is a pioneer role, and the seriousness of the work of the Tribunal will contribute to the emergence of a credible international justice. I believed I came to testify with a lot of motivation, because I wanted to make my modest contribution to the emergence and progress of this international justice which you are writing and which you are making.

Why do I add this Mr. President, to my testimony? And I said this on my previous occasion, so did I on other occasions, and I cannot stop myself from saying them once again. Should we not have the moral, political, and intellectual honesty to admit that we still have manhy unanswered questions?

Mr. President, I dare not claim that we already have many answers to these many questions. There are still many unanswered questions as to what was actually happening between 1990 and 1994. If we canhave this honest ambition to go right to the bottom of things, to spare no effort to find the truth of the matter, the Tribunal would have accomplished a credible job, and even a pioneer job.

One instance, Mr President, I cannot stop myself from showing how indignated (sic) I am about one of the fundamental issues which caused the attack on the plane where two presidents lost their lives; the president of Rwanda and the president of Burundi. If we had an answer to that question, I do not know if we would not-or, if we would have a key to allanswers and solutions. But, it appears to me to be a question of priority.

And why do I express myself with indignation, Mr. President? And as we move further away from the history of Rwanda-from the history of Rwanda in the years-in the 90’s, I become even angrier. Why up to this point in time have we not had an international investigation, authorised, on the attack against the presidential plane?

And thirdly, Mr. President, I talked a lot about radicalisation, about extremism about polarisation. Those of us who believed so much in it, the international community, and especially the people of Rwanda; I’m talking about Hutu, Tutsi, Twas, the efforts of moderate people, people who showed commitment to the reform and modernisation of Rwanda There are so many nice words that could be used, aggionamento the modernisation of Rwanda, the reformation of power sharing, for respect and the hopes to see gthe emergence of this class of moderate people who showed commitment, but who also showed vision.

I met a number of them on a daily basis, Mr. President, from all parts, from all parties. I am concluding, Mr. President. I am concluding. These hopes were dashed because in my previous testimony I was talking about the radicalisation trap. Who set that trap? Who wanted many people to fall into this trap of extremism, of radicalisation? There, again, Mr. President that is a question which haunst me and which international justice should be able to answer. Mr. President, I thank you.[613]

The words of Colonel Luc Marchal the Kigali battalion UNAMIR commander:

Well, it’s a bit bizarre. I don’t wish to undertake any advertising. Those who read my book-well, of course, now-since it’s out of print, it would be too late, unless you have already read it. Well, in the last few lines, see the reasons for which I am here, and I suspect it’s not a secret to anyone. It’s the second time I have come here, and it is probably also the last. I have imposed a moral obligation on myself to come to testify on behalf of those with whom I worked for the proper achievment of the peace process, for those in whom I have complete confidence, because it is clear that if I had the slightest suspicion in respect of General Ndindiliyimana in the present instance, I would have quite simply abstained from testifying, because I don’t think that were the case, I would have had the necessary conviction to express myself.

I know that in light of my experience with him, I know that apart from the fact that he really devoted much effort to achieving the peace process, I have said-I think not only would it-he comply to the letter with the weapons, with the KWSA agreement, but also with the spirit. And I know that General Ndindiliyimana was convinced that all Rwandans as they were at the time-had to participate I the sate of the country to have any hope at all in the future….”

Finally Colonel Marchal’s words to General Ndindiliyimana written in the dedication of his book:

“To Augustin Ndindiliyimana,’ Well, listen, I don’t know whether I can read. ‘The course of history has led us to cooperate at a work which might have brought peace, serenity and prosperity to your country. However, that was not the case. I greatly appreciated you are committed to the cause of peace process, and I bear witness to that in this book. We have learnt both to understand what it means to say ‘descend into hell’ that the brotherhood in adversity give you the force necessary to face up to it with sincere friendship, resist and bite into it, Luc Marchal.”

General Ndindiliyimana is a man who is more than just his function. The Prosecutor’s strategy appears to be too charge those who occupied the highest functions of the state in Rwanda: ministers, prefets, chiefs of staff, and intellectuals who appear to have been arrested not because of what they did but because of their position.

The trial was a nightmare for the prosecutor because the behind the veil of his function was the reality of the man; with his weaknesses perhaps but also a man with strengths and commitment. A man that no witness, either for the defence or the prosecution ever accused of being an extremist in his politics or with respect to ethnicity. On the contrary, he was portrayed as a man who was tolerant, good, respectful of and respected by all no matter what their social rank.

A man who could have remained, like so many others, a spectator, fleeing the violence, rather than a man who tried to fulfil his responsibilities. A man who could have been among those who pretend to judge instead of a man being judged.

But to have been among those who fled their responsibilities he would have had to surrender his humanity and the lives of all those he saved.

A man whose heart made him steadfast in his commitment to the people of Rwanda. Perhaps that is why he was really accused, because he did not abandon the people he is proud to be a part of and that is not a crime.

IX. Conclusion

The defence has been limited to 250 pages to make its closing argument on behalf of General Ndindiliyimana. The defence accepted to abide by this limit. In order to do so it was necessary to choose the most compelling evidence to present the theory of the defence in a precise, concise and coherent manner. This trial lasted more than 4 years and in that period of time many hundreds of exhibits were filed and scores of witnesses for the defence and prosecution gave evidence. The defence files this closing argument with the caveat that all the witnesses called by the defence had valuable evidence to present. We trust that the Trial Chamber will take all the evidence into account and all the exhibits even if they are not referred to in the closing argument or if only portions of the evidence are referred to. We rest our case on the whole of the evidence not just a part of it.

The defence therefore submits, that based upon the totality of the evidence the Prosecutor has failed to prove guilt beyond a reasonable doubt on any of the paragraphs of the indictment in any of the counts of the indictment and therefore submits that General Augustin Ndidniliyimana must be acquitted on all counts.

ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 31^st DAY OF MARCH, 2009, AT ARUSHA, TANZANIA

Christopher C. Black, Barrister, Lead Counsel

Vincent Lurquin, Avocat, Co-Counsel

Lauren Tipton, Legal Assistant

Leopold Nsengiyumva, Legal Assistant

[1] Transcript, General Bizimungu, Dec. 11, 2007, p. 63, lines 29-35. It was after the communique signed by Mr. Booh-Booh admitting the CDR party to the transition government that Paul Kagame declared that there will be a war against the Hutus. The CIA predicted 500,000 dead in such a war without stating who the victims would be.

[2] See, Transcript, January 16, 2008.

[3] Prosecutor v. Ndindiliyimana et al, Decision on Defence Motions for Judgement for Acquittal (20 March, 2007), at para 14.

[4] Nahimana et al Appeals Judgement, para 344.

[5] Prosecutor v Bizimungu et al, ICTR-99-50-T, Decision on Defence Motions Pursuant to Rule 98bis (22 November, 2005) at para 23, viz Ndindilyimana, (20 March 2007) at para 14.

[6] Nahimana Appeas Judgement, para. 907.

[7] Transcripts, Des Forges, October 12, 2006, p. 44, lines 33-35 (regarding those responsible for the shoot down of the presidential plane. “…I am more inclined to the theory of the RPF”).

[8] Amended Indictment, para. 23.

[9] Transcripts, Sept 19, 2007, Des Forges in chief, p. 4, lines 13-32.

[10] Transcripts, DeBrouwer, Feb. 19, 2008, p. 71, lines 25-27.

[11] Transcripts, Des Forges, Sept. 20, 2007, p. 14, lines 34-35.

[12] Exh. D. 92 (letter of Agathe Uwilingiyimana to President of Constitutional Court, January 5^th, 1994).

[13] Transcripts, Swinnen, October 22, 2008, pp 24, 25, 26.

[14] Transcripts, Swinnen, October 22, 2008, p. 26, lines 21-23.

[15] Transcripts, Ndindiliyimana, June 16, 2008 p. 31 lines 29-33.

[16] Transcripts, Ndegejeho, October 29, 2008.

[17] Transcripts, Colonel Vincent, June 10, 2008, p. 19, lines 24-29.

[18] Transcripts, Colonel Vincent, June 10, 2008, p. 20, lines 11-14.

[19] Transcripts, Colonel Vincent, June 10, 2008, p. 54, lines 5-9.

[20] Transcripts, Colonel Vincent, June 10, 2008, p. 57, line 2.

[21] Transcripts, DeBrouwer, February 19, 2008, p. 36, lines 17-18.

[22] Transcripts, Colonel Marchal, January 16, 2008, p. 40, lines 1-2.

[23] Transcripts, Des Forges, see note 3 supra.

[24] Transcripts, General Ndindiliyimana, June 16, 2008, p. 32, lines 10-13.

[25] Transcripts, General Ndindiliymana, June 16, 2008, p. 61, lines, 35-36; p. 62, lines 14-22.

[26] Transcripts, Colonel Vincent, June10, 2006, p.19, line 18.

[27] Transcripts, Colonel Vincent, June 10, 2006, p. 20, lines 19-21.

[28] Transcripts, Colonel Vincent, June 10, 2006, p. 26, lines 1-2.

[29] Transcripts, Ndagijimana, June 5, 2008, p. 7, lines 1-4.

[30] Transcripts, Colonel Claeys, October 17, 2005, p. 17-22.

[31] Transcripts, Colonel Claeys, October 17, 2005, p. 22, line 23.

[32] Transcripts, Colonel Marchal, January 16, 2008, p. 12, 13.

[33] Transcripts, Des Forges, Sept. 27, 2008, p14, lines 31-39; p15, lines 1-18. See also, discussion with counsel St. Laurent at p.30 and after.

[34] Transcripts, Swinnen, October 22, 2008, p.36, lines 6-9.

[35] Transcripts, CBP82, October 20, 2008, p.34, lines 22-23.

[36] Transcripts, CBP82, October 20, 2008, p. 34, lines 29-32.

[37] Transcripts, KF, January 17, 2006, p. 20, lines 20-22.

[38] Transcripts, Des Forges, October 11, 2006, p. 60, lines 4-12.

[39] Transcripts, Harelimana, January 30, 2008, p. 38-39.

[40] Transcripts, Ndindiliyimana, June 19, 2008, p.26, lines 27-32.

[41] Transcripts, Des Forges, October 21, 2006, pp 5-6.

[42] Transcripts, Des Forges, October 20, 2006, pp 37-38.

[43] Transcripts, FAV, September 21, 2004, p. 23-24.

[44] Amended Indictment, para. 44.

[45] Bagosora et al, Judgement, at para. 203.

[46] Transcripts, Colonel Marchal, January 16, 2008, p. 43, lines 22-24.

[47] Transcripts, Colonel Marchal, January 16, 2008, p. 47, lines33-35.

[48] Transcripts, Colonel Marchal, January 16, 2008, p. 54, lines 13-16.

[49] Transcripts, Colonel Marchal, January 16, 2008, p. 58, lines 18-25.

[50] Transcripts, Colonel Marchal, January 16, 2008, p. 61, lines 27-33.

[51] Transcripts, Colonel Marchal, January 16, 2008, p. 63, lines 18-22.

[52] Transcripts, Colonel Marchal, January 16, 2008, p.66, lines 14-17.

[53] Exhibit D333, Letter of Colonel Marchal to Colonel Ndindiliyimana, Dec. 31, 1993.

[54] Transcripts, General Dallaire, December 6, 2006, p.46, lines 23-25.

[55] Transcripts, Lemaire, October 24, 2005, p. 58, lines 16-17.

[56] Transcripts, Colonel Marchal, January 17, 2008, p. 26, lines 11, 30-36; p. 27, line 21.

[57] Transcripts, Colonel Marchal, January 17, 2008, p.28, lines 12-17.

[58] Transcripts, CBP46, January 28, 2008, p.15, lines 30-37.

[59] Transcripts, Colonel Marchal, January 17, 2008, discssion p. 30.

[60] Transcripts, Colonel Marchal, January 17, 2008, p. 30, lines 36-37; p. 31 lines 1-27.

[61] Transcripts, Ndagijimana, June 5, 2008, p. 9, lines 1-6.

[62] Transcripts, CBP63, January 23, 2008, p. 38, lines 25-34.

[63] Transcripts, Lemaire, October 24, 2005, p. 61, lines 25-33.

[64] Transcripts, Marchal, January 16, 2008, p. 53, lines 11-16.

[65] Transcripts, Ndindiliyimana, June 16, 2008, p. 60, lines 34-36.

[66] Transcripts, CBP7, July 7, 2008, p.42, lines 21-27.

[67] Transcripts, Dallaire, December 6, 2006, p. 43, lines 22-29.

[68]Transcripts, Dallaire, December 6, 2006, p. 53, lines 7-8.

[69] Transcripts, Dallaire, December 6, 2006, p. 56, lines 26-27.

[70] ID. 58, Outgoing code cable from Dallaire to Baril dated February 3, 1994 L00011767.

[71] Transcripts, Ambassador Swinnen, October 22, 2008, p. 8, lines 22-30.

[72] Transcripts, Ambassador Swinnen, October 22, 2008, p. 11, lines 11-14.

[73] Transcripts, Ambasssdor Swinnen, October 22, 2008, p. 12, lines 15-21.

[74] Transcrpts, Ambassador Swinnen, October 22, 2008, p.14, lines 10-13.

[75] Transcripts, Dallaire, December 6, 2006, p. 48, lines 3-4.

[76] See, Defence Motion for the Transfer of the Applicant’s Trial to a National Jurisdiction, 20 September, 2004.

[77] Transcripts, S. Harilimana, January 30, 2008, p.6, lines 21-30.

[78] Transcripts, S. Harilimana, January, 30, 2008, p. 9, lines 10-13.

[79] Transcripts, S. Harilimana, January, 30, 2008, p. 9, lines 17-19.

[80] Transcripts, S. Harilimana, January, 30, 2008, p. 9, lines 22-23.

[81] Transcripts, CBP63, January 23, 2008, pp.27 (closed session).

[82] Transcripts, S. Harilimana, January, 30, 2008, p. 24, lines 13-15, 23-29 (see generally the discussion appearing on pages 20-25 of the transcript for context).

[83] Transcripts, S. Harilimana, January 30, 2008, p. 24, lines 36-37 and p. 25, lines 1-8 (see generally the discussion appearing on pp. 20-25).

[84] Transcripts, CBP40, March 4, 2008, p. 26, lines 12-14.

[85] Transcripts, CBP40, March 4, 2008, p. 26, lines 18-21.

[86] Transcripts, CBP40, March 4, 2008, p. 27, lines 2-6.

[87] Transcripts, Dallaire, November 21, 2006, p. 26, lines 11-18.

[88] Transcripts, Ndindiliyimana, June16, 2008, p. 52, lines 5-7, 18-20.

[89] Transcripts, Ndengejeho, October 29, 2008, pp. 58-63.

[90] Transcripts, Ndengejeho, October 29, 2008, p. 63, lines 10-21.

[91] Transcripts, Colonel Vincent, June 10, 2008, p. 18, line 34.

[92] Transcripts, Colonel Vincent, June 10, p.19, lines 1-5.

[93] Transcripts, Des Forges, October 11, 2006, p. 58, lines 28-34.

[94] Transcripts, Des Forges, October 11, 2006, p. 55, line 31-32.

[95] Transcripts, Des Forges, October 11, 2006, p. 54, lines 35-37; p.55, lines 1-7.

[96] Transcripts, Dallaire, December 6, 2006, p. 41, lines 21-34.

[97] Transcripts, Marchal, January 17, 2008, p. 48, lines 25-37; p. 49, lines 1-8.

[98] Transcripts, Ndindiliyimana, June 17, 2008, p.21, lines 11-37; p.22, lines 1-32.

[99] Transcripts, Ndindiliyimana, June 17, 2008, p. 34, lines 30-32.

[100] Transcripts, Ndindiliyimana, June 20, 2008, p. 65, line 37; p.66, lines 1-5.

[101] Transcripts, Ndindiliyimana, June 17, 2008, p. 34, lines 30-37; p.35, lines 1-3.

[102] Transcripts, Ndindiliyimana, June 23, 2008, p. 1, lines 22-34.

[103] Transcripts, CBP7, July 7, 2008, p.27, lines 33-37; p. 28, lines 1-7.

[104] Transcripts, Ndindiliyimana, June 17, 2008, p. 47, lines 24-32.

[105] Transcripts, Ndindiliyimana, June 20, 2008, p. 61, lines 35-37.

[106] Transcripts, Ndindiliyimana, June 20, 2008, p. 62, lines 1-4.

[107] Transcripts, Ndindiliyimana, June 20, 2008, p. 70, lines 23-30.

[108] Transcripts, Ndindiliyimana, June 17, 2008, p. 47, lines 20-21.

[109] Transcripts, Ndindiliyimana, June 17, 2008, p.35, lines 31-37,p.36, lines 1-4,11-22

[110] Transcripts, Ndindiliyimana, June 17, 2008, p.43, lines 9-11

[111] Transcripts, Swinnen, October 22, 2008, p.10, lines 30-37, p.11, lines1-9

[112] Transcripts, Des Forges, October 12, 2006, p. 19, lines 13-24.

[113] Transcripts, Dallaire, December 6, 2006, p. 43, lines 33-37; p.44, lines 1-15.

[114] Transcripts, Dr. Kubic, June 24, 2008, p. 37, lines 18-27.

[115] Transcripts, Des Forges, October 11, 2006, pp. 55-56.

[116] Transcripts, Des Forges, October 11, 2006, p. 56, lines 10-18.

[117] Transcripts, Ndindiliyimana, June 20, 2008, p. 80, lines 16-24.

[118] Transcripts, Ndindiliyimana, June 20, 2008, p. 38, lines 1-10.

[119] Transcripts, Ndindiliyimana, June 16, 2008, p. 56, lines 35-37; p.57, lines 1-15.

[120] Transcripts, Ndindiliyimana, June 23, 2008, pp. 10-13; see also, T. June 17, 2008, pp. 6-7.

[121] Transcripts, Ndindiliyimana, June 17, 2008, p. 6, lines 30-34.

[122] Transcripts, Ndindiliyimana, June 17, 2008, pp. 8-9.

[123] Transcripts, Marchal, January 17, pp. 49-50, 51, lines 1-10.

[124] Transcripts, Marchal, January 17, 2008, p. 54, lines 22-37; p.55, lines 1-11.

[125] Transcripts, Ndagijimana, June 5, 2008, pp. 9-12.

[126] Transcripts, LMC, March 24, 2008, p. 24, lines 18-27.

[127] Transcripts, LBC, October 10, 2005, p.19, lines 17-19.

[128] Trancripts, LBC, October 10, 2005, p. 18, lines 23-37.

[129] Transcripts, CBP56, February 1, 2008, p.11, lines 17-20.

[130] Transcripts, CBP46, January 28, 2008, p. 10, lines, 18-37.

[131] Transcripts, CBL104, June 4, 2008, p. 10-11.

[132] Transcripts, Swinnen, October 22, 2008, p.10, lines 19-25.

[133] Transcripts, Nzabahimana, June 3, 2008, pp 29-30.

[134] Transcripts, KJ, March 21, 2006, p. 23, lines 27-30.

[135] Transcripts, Nzapfakumunzi, Feb. 18, 2009, p. 18-19.

[136] Transcripts, Ndindiliyimana, June 18, 2008, pp. 23-25.

[137] Transcripts, Ndindiliyimana, June 18, 2008, p. 28, lines 2-7.

[138] Transcripts, CBP67, February 6, 2008, p. 41, lines 10-21.

[139] Transcripts, CBP7, July 7, 2008, p. 48, lines 31-35.

[140] Transcripts, CBP7, July 7, 2008, p. 48, lines 34-35.

[141] Transcripts, KJ, March 21, 2006, p. 24, lines 35-37.

[142] Transcripts, KJ, March 27, 2006, p. 16, lines 12-14.

[143] Transcripts, DCJ, May 3, 2006, p. 45.

[144] Transcripts, DCJ, May 3, 2006, p. 45.

[145] Transcripts, Ndindiliyimana, June 18, 2008, p. 22, lines 17-21.

[146] Transcripts, CBP7, July 7, 2008, p. 38, lines 23-37; p. 39, lines 1-6.

[147] Transcripts, KJ, March 27, 2006, p. 27, lines 13-23.

[148] Transcripts, CBP67, February 6, 2008, pp. 37, 38, 39.

[149] Transcripts, CBP67, February 6, 2008, p. 47, lines 7-17.

[150] Transcripts, Ndagijimana, June 5, 2008, p. 20-21.

[151] Exhibit D. 488.

[152] Transcripts, Ndagijimana, June 5, 2008, p. 21, lines 32-37.

[153] Transcripts, Ndagijimana, June 6, 2008, cross by Sefon.

[154] Transcripts, Ndindiliyimana, June 18, 2008, p. 50, lines 13-37; p.59, lines 14-35.

[155] Transcripts, Ndindiliyimana, June 23, 2008, p.30, line 5.

[156] Transcripts, KF, January 17, 2006, p.19, lines 5-6

[157] Transcripts, KF, January 17, 2006, p.18, lines 20-21

[158] Transcripts, Ndindiliyimana, June 17, 2008, p. 65, lines 20-37.

[159] Transcripts, Ndindiliyimana, June 17, 2008, p. 66, lines 4-13.

[160] Transcripts, CBP7, July 7, 2008, p. 53, lines 22-28.

[161] Transcripts, CBP7, July 7, 2008, p. 47, lines.

[162] Transcripts, CBP7, July 7, 2008, p. 53, lines 22-28.

[163] Transcripts, Ndindiliyimana, June 17, 2008, p. 66, lines 26-30.

[164] Transcripts, Ndindiliyimana, June 17, 2008, p. 69, lines 28-30.

[165] Transcripts, Ndindiliyimana, June 17, 2008, p. 69, lines 33-37.

[166] Transcripts, Ndindiliyimana, June 23, 2008, p. 11, lines 30-37.

[167] Transcripts, Ndindiliyimana, June 17, 2008, p. 48, lines 28-37, p.49, lines 1-9.

[168] Transcripts, Dallaire, December 6, 2008, pp. 60-61.

[169] Transcripts, Ndindiliyimana, June 17, 2008, pp. 63-64.

[170] Transcripts, Ndindiliyimana, June 17, 2008, p. 64, lines 8-11.

[171] Transcripts, Ndindiliyimana, June 18, 2008, p. 15, 16.

[172] Transcripts, CBP7, July 7, 2008, p. 51, lines 28-33.

[173] Transcripts, Ndindiliyimana, June 18, 2008, pps43, 44; Transcripts, CBP63, January 23, 2008, pp. 44-45 (closed session).

[174] Transcripts, CBP63, January 23, 2008, pp 45-46.

[175] Transcripts, CBP105, January, 29, 2008.

[176] Transcripts, Ndindiliyimana, June 18, 2008, pp. 48, 49.

[177] Transcripts, Marchal, January 17, 2008, p. 51, lines 1-10.

[178] Transcripts, Marchal, January, 17, 2008, p. 54, lines 11-18.

[179] Transcripts, Vincent, June 10, 2008, p. 28, lines 6-7.

[180] Transcripts, Dallaire, December 6, 2008, p. 50, lines 25-32.

[181] Transcripts, Dallaire, December 6, 2008, p. 59, lines 3-6.

[182] Transcripts, CBP63, January 23, 2008, pp. 46-47.

[183] Transcripts, Dallaire, December 6, 2008, p. 57, lines 27-37.

[184] Transcripts, Des Forges, October 11, 2006, p. 61.

[185] Transcripts,Des Forges, October 11, 2006, p. 55, lines 1-8.

[186] Transcripts, Des Forges, October 11, 2006, p. 56, lines 10-12.

[187] Transcripts, Des Forges, October 11, 2006, p. 58.

[188] Transcripts, Des Forges, October 12, 2006, p. 29, lines 1-16.

[189] Transcripts, Des Forges, October 12, 2006, p. 33, lines 12-15.

[190] Transcripts, Des Forges, October 12, 2006, p. 17 lines 33-36.

[191] Transcripts, CBL104, June 4, 2008, p. 19, lines 15-26.

[192] Transcripts, Des Forges, October 11, 2006, pp. 54, 55.

[193] Transcripts, Des Forges, October 11, 2006, p. 59, lines 6-10.

[194] Transcripts, Des Forges, October 11, 2006, p. 57, lines 29-34.

[195] Transcripts, Des Forges, October 11, 2006, p. 62, lines 23-30.

[196] Transcripts, Des Forges, October 12, 2006 p. 11.

[197] Transcripts, Des Forges, October 13, 2006, pp. 16-17. See also, Exhibit D. 319.

[198] Transcripts, CBL104, June 4, 2008, p. 20, lines 8-12.

[199] Transcripts, Mahundi, March 5, 2008, p. 4, lines 18-24.

[200] Transcripts, Mahundi, March 5, 2008, p. 5, lines 9-25.

[201] Transcripts, Mahundi, March 5, 2008, p. 7, lines 20-24.

[202] Transcripts, Mahundi, March 5, 2008, p. 8, lines 16-21.

[203] Prosecutor v. Delalic et al, Case No. IT-96-21-A, Judgement (Feb. 20, 2001) (Appeals Chamber quoted the Trial Chamber’s holding that “While the Trial Chamber must at all times be alive to the realities of any given situation and be prepared to pierce such veils that may shield those individuals carrying the greatest responsibility for heinous acts, great care must be taken lest an injustice be committed in holding individuals responsible for the acts of others in situations where the link of control is absent or too remote…it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of those offences…”).

[204] Transcripts, Prosecution witness UB, February 8, 2005, p. 72, lines 14-22.

[205] Transcripts, Ndindiliyimana, June 17, 2008, p. 20.

[206] Transcripts, Ndindiliyimana, June 17, 2008, p. 21 (F. lines 1-3).

[207] Transcripts, Ndindiliyimana, June 17, 2008, p.21.

[208] Transcripts, Ndindiliyimana, June 17 2008, p. 21, lines 12-15.

[209] Transcripts, Ndindiliyimana, June 17, 2008, p. 21.

[210] Transcripts, Ndindiliyimana, June 17, 2008, p. 22, lines 17-22.

[211] Transcripts, Ndindiliyimana, June 17, 2008, p. 24.

[212] Transcripts, Swinnen, October 22, 2008, p. 10.

[213] Transcripts, Ndindiliyimana, June 17, 2008, p. 32-33.

[214] Transcripts, Ndindiliymana, June 17, 2008, p. 34.

[215] Transcripts, Ndindiliyimana, June 17, 2008, p. 35.

[216] Transcripts, Ndindiliyimana, June 17, 2008, p. 38.

[217] Transcripts, Ndindiliyimana, June 17, 2008, p. 38.

[218] Transcpts,Ndindiliyimana, June 17, 2008, p. 38.

[219] Transcripts, Ndindiliyimana, June 17, 2008, p. 37-38.

[220] Transcripts, Ndindiliyimana, June 17, 2008, p. 41.

[221] Transcripts, Ndindiliyimana, June 17, 2008, p. 41.

[222] Transcripts, Ndindiliyimana, June 17, 2008, p. 43. It is important to note a translation discrepancy between the French and English versions of the transcripts. The English version was quoted above, with a phrase taken out in order to better reflect the French transcript, which reads: “« C’est fini. C’est fini… Les Belges… C’est fini avec les Belges. Je ne vois pas comment on va s’en sortir avec cette situation. Je ne vois pas. » p. 45.

[223] Transcripts, Ndindiliyimana, June 17, 2008, p. 43.

[224] Transcripts, Ndindiliyimana, June 17, 2008, p. 48.

[225] Transcripts, Ndindiliyimana, June 17, 2008, p. 48.

[226] Transcripts, Ndindiliyimana, June 17, 2008, p.54

[227] Transcripts, Swinnen, October 22, 2008, p.10-11

[228] Transcripts, Swinne, October 22, 2008, p. 13, lines 3-4.

[229] Transcripts, Des Forges, October 10, 2006, p. 11, line 24.

[230] Transcripts, Ndindiliyimana, June 17, p.45-46

[231] Transcripts, Ndindiliyimana, June 17, 2008, p. 46.

[232] Transcripts, Ndindiliyimana, June 17, 2008, p. 53.

[233] Transcripts, Ndindiliyimana, June 17, 2008, p. 53.

[234] Transcripts, Ndindiliyimana, June 17, 2008, p. 54.

[235] Transcripts, Ndindiliyimana, June 17, 2008, p. 55.

[236] Transcripts, Ndindiliyimana, June 17, 2008, p. 53.

[237] Transcripts, Dallaire, December 6, 2006, p. 60, lines 28-31 (excerpt of Dallaire’s book, Shake Hands with the Devil, read into the record); p. 61, line 6 (Dallaire affirms what he wrote in his book).

[238] Transcripts, Ndindiliyimana, June 17, 2008, p. 48, lines 31-34.

[239] Transcripts, Ndindiliyimana, June 17, 2008, p. 57.

[240] Transcripts, Ndidiliymana, June 17, 2008, p. 57.

[241] Transcripts, Ndindiliyimana, June 17, 2008 at p. 58-59.

[242] Transcripts, Dallaire, December 6, 2006 at p. 57, lines 30-34 (Dallaire affirms the following passage from his book: “ ‘I wondered why Ndindiliyimana’s signature was not on the communiqué, but I found out from him the next day that he’d been stuck in Butare helping some Tutsi escape from the country and hadn’t been able to get back in time to sign.’”)

[243] Transcripts, Ndindiliyimana, June 17, 2008 at p. 62 (English translation).

[244] Transcripts, Ndindiliyimana, June 17, 2008 at p. 62 (French translation).

[245] Transcripts, Des Forges, October 11, 2006 at p. 24, lines 1-2.

[246] Transcripts, Des Forges, October 12, 2006, p. 7, lines 6-7.

[247] Transcripts, Ndindiliyimana, June 17, 2008, p. 65.

[248] Transcripts, Ndindiliyimana, June 17, 2008, p. 66.

[249] Transcripts, Ndindiliyimana, June 17, 2008, p. 61.

[250] Transcripts, Ndindiliyimana, June 17, 2008, p. 61.

[251] Transcripts, Ndindiliyimana, June 17, 2008, p.62.

[252] Transcripts, Ndindiliyimana, June 17, 2008, p. 66.

[253] Transcripts, Ndindiliyimana, June 17, 2008, p. 67.

[254] Transcripts, Ndindiliyimana, June 17, 2008, p. 69.

[255] Transcripts, Ndindiliyimana, June 17, 2008, pp. 70-71.

[256] Transcripts, June 18, 2008, pp. 11, 12.

[257] Transcripts, June 17, 2008, pp 63-64; see also, Ex. D230, 230A, 210.

[258] Transcripts, June 17, 2008, p. 64.

[259] Transcripts, June 18, 2008, p. 10.

[260] Transcripts, Ndindiliyimana, June 18, p. 12, lines 24-26.

[261] Transcripts, Ndindiliyimana, June 18, 2008, p. 13, lines 27-31.

[262] Transcripts, Ndindiliyimana, June 18, 2008, p. 23, lines 4-5.

[263] Transcripts, Ndindiliyimana, June 18, 2008, p. 14; Ex D504 (summary of the radio address on Radio Rwanda-read into the record at p.15, June 18, 2008).

[264] Transcripts, Ndindiliyimana, June 18, 2008, p. 14, lines 14-19.

[265] Transcripts, June 18, 2008, p.17

[266] Transcripts, June 18, 2008, p. 18, lines 8-10.

[267] Transcripts, June 18, 2008, pp. 19-20.

[268] Transcripts, June 18, 2008, p. 20.

[269] Transcripts, June 18, 2008, p. 21.

[270] Transcripts, June 18, 2008, p. 21.

[271] Transcripts, June 18, 2008, p. 21.

[272] Transcripts, June 18, 2008, p. 22.

[273] Transcripts, Ndindiliyimana, June 18, 2008, p. 30-31.

[274] Transcripts, Des Forges, Oct. 13, 2006, p. 17.

[275] Transcripts, Ndindiliyimana, June 18, 2008, pp. 24-25.

[276] Transcripts, Ndindiliyimana, June 18, 2008, p. 34.

[277] Transcripts,Ndindiliyimana, June 18, 2008, p. 38.

[278] Transcripts, Ndindiliyimana, June 18, 2008, p. 47.

[279] Transcripts, Ndindiliyimana, June 18, 2008, p. 36.

[280] Transcripts, Ndindiliyimana, June 18, 2008, p. 47.

[281] Transcripts, Ndindiliyimana, June 18, 2008, p. 50.

[282] Transcripts, Ndindiliyimana, June 18, 2008, p. 51-52.

[283] Transcripts, Ndindiliyimana, June 18, 2008, p. 52.

[284] Transcripts, Ndindiliyimana, June 18, 2008, p. 53.

[285] Transcripts, Ndindiliyimana, June 18, 2008, p. 54.

[286] Transcripts, Ndindiliyimana, June 18, 2008, p. 58.

[287] Transcripts, Ndindiliyimana, June 18, 2008, pp. 57-58.

[288] Transcripts, Ndindiliyimana, June 18, 2008, p. 59.

[289] Transcripts, Ndindiliyimana, June 18, 2008, p. 60.

[290] Transcripts, Dallaire, December 6, 2006, pp. 60-61.

[291] Transcripts, Ndindiliyimana, June 18, 2008, pp. 64, 65.

[292] Transcripts, Ndindiliyimana, June 18, 2008, pp 66-67.

[293] Militunovic et al, para 122.

[294] Prosecutor v. Blagojevic & Jokic, Case No. IT-02-60-T, Judgement (17 January 2005) at para 793.

[295] Prosecutor v. Mpambara, No. ICTR-01-65-T, Judgement (12 September, 2006) at paras 75, 93.

[296] Transcripts, FAV, September 21, 2004, p. 28, lines 3-5.

[297] Transcripts, GFS, September 21, 2004, pp. 21-22.

[298] Transcripts, GFT, January 10, 2005, p.17, lines 30-31.

[299] Transcripts, GFR, March 29, 2005, p. 5.

[300] Transcripts, FAV, September 21, 2004, p. 29.

[301] Transcripts, GFS, September 27, 2004, p. 23.

[302] Transcripts, FAV, September 21, 2004, p. 31.

[303] Transcripts, CBP15, February 5, 2008, p. 21-22.

[304] Transcripts, CBP15, February 5, 2008, p. 22-23.

[305] Transcripts, CBP92, May 29, 2008, p. 14-15 (Fr).

[306] Transcripts, CBP92, May 29, 2008, p. 15.

[307] Transcripts, CBP78, February 18, 2008, p. 24.

[308] Transcripts, CBP77, February 14, 2008, p. 5.

[309] Transcripts, CBP77, February 14, 2008, p. 6 all quotes.

[310] Transcripts, CBP77, February 14, 2008, p. 10.

[311] Transcripts, CBP24, February 13, 2008, p. 21.

[312] Transcripts, CBP24, February 13, 2008, p. 21.

[313] Transcripts, CBP78, February 18, 2008, p. 32.

[314] Transcripts, CBP15, February 5, 2008, p. 19.

[315] Transcripts, CBP48, February 5, 2008, p. 41.

[316] Transcripts, CBP48, February 5, 2008, p. 46.

[317] Transcripts, CBP44, February 14, 2008, p. 63-64.

[318] Transcripts, CBP44, February 14, 2008, p. 65.

[319] Transcripts, GFS, September 28, 2004, p. 47.

[320] Transcripts, FAV, September 23, 2004, p. 8.

[321] Transcripts, Marie Nakure, February 2, 2008, p. 14.

[322] Transcripts, CBP44, February 14, pp. 67-68.

[323] Transcripts, WG, June 6, 2005, p. 32, lines 22-25.

[324] Transcripts, WG, June 6, 2005, p.33, lines 33-37.

[325] Transcripts, WG, June 6, 2005 p.36, line 6.

[326] Transcripts, WG, June 6, 2005, p. 38, line 14.

[327] Transcripts, WG, June 6, 2005, p. 38, lines 16-17.

[328] Transcripts, WG. June 6, 2005, p. 39, lines 19-20.

[329] Transcripts, WG, June 6, 2005, p. 40, lines 15-19.

[330] Transcripts, WG, June 7, 2008, p. 3, line 25.

[331] Transcripts, WG, June 7, 2008, p. 3, lines 26-37

[332] WG, T. June 7, 2005, p.11, lines 27-37

[333] WG, T. June 7, 2005, p.15, line 32

[334] Transcripts, WG, June 7, 2005, p. 15-17.

[335] Transcripts, WG, June 7, 2005, p. 24-25.

[336] Transcripts, GCB, September 14, 2005, pp. 59-62 (see discussion when he was asked to display the bullet wounds but could not).

[337] Transcripts, GCB. September 14, 2005, p. 25, line 26.

[338] Transcripts, CBP46, January 28, 2008, p. 28, lines 1-4,; Transcripts, GBC, September 14, 2005, p.50, 65, 53, 54.

[339] Transcripts, GCB, September 14, 2005, p. 55, line 3.

[340] Transcripts, GCB, September 14, 2005, p. 71, lines 29-37; p. 72.

[341] Transcripts, GCB, September 15, 2005 p. 33 (Closed Session).

[342] Transcripts, GCB, Sept. 15, 2005, p. 39.

[343] Transcripts, GCB, Sept. 15, 2005 at p. 55.

[344] Transcripts, GCB, Sept. 19, 2005 at p. 2 [emphasis added].

[345] Transcripts, ATW, June 13, 2006, p. 25.

[346] Transcripts, ATW, June 13, 2006, p. 17.

[347] Transcripts, ATW, June 13, 2006, p. 22.

[348] Transcripts, ATW, June 13, 2006, p. 66, p. 69.

[349] Transcripts, CBP62, May 27, 2008, p. 48.

[350] Transcripts, CBP62, May 27, 2008, p. 42, lines 10-18.

[351] Prosecutor v. Ntagerura et al, No. ICTR-99-46-T, Judgement (25 February, 2004) at para 698.

[352] Prosecutor v. Akayesu, No. ICTR-96-4-T, Judgement (2 September 1998) at para 589.

[353] Prosecutor v. Ntagerura et al supra, at para. 700; Prosecutor v Muhimana,No.ICTR-95-1B-T Judgement (28 April, 2005) at para 569; Prosecutor v. Bizimungu et alNo.ICTR-99-50-T, Decision on Defence Motions pursuant to Rule 98bis (22 November, 2005) at para 68, 77; Prosecutor v. Rukundo, No.ICTR-2001-70-T, Decision on Defence Motion for Judgement of Acquittal Pursuant to Rule 98bis (22 March, 2007) at para 16.

[354] Transcripts, Ndindiliyimana, June 18, 2008, p. 52.

[355] Transcripts, GFT, January 10, 2005, pp. 30-31.

[356] Transcripts, GFT, Janaury 10, 2005, p. 34.

[357] Transcripts, GFT, January 10, 2005, p. 37, line 24.

[358] Transcripts, GFR, March 29,, 2005, p. 70, lines 29-30.

[359] Transcripts, GFR, March 29, 2005, p. 70, line 32, p.71, lines 1-4.

[360] Transcripts, GFR, March 30, 2005, p. 4, lines 32-33.

[361] Transcripts, GFR, March 30, 2005, p. 6, lines 9-12.

[362] Transcripts, GFR, March 30, p. 20, lines 31-34, p.22, lines 21-34.

[363] Transcripts, GFR, March 30, p. 41, lines 27-33.

[364] Transcripts, GFR, March 30, p. 47, lines 22-31.

[365] Transcripts, GFR, March 30, 2005, p. 10, p. 11, lines 20-25.

[366] Transcripts, GFR, March 30, 2005, p. 16, lines 17-37, p.17, lines 1-2.

[367] Transcripts, GFR, March 30, 2005, p. 19, lines 24-26,lines 27-37, p.20, lines 1-21.

[368] Transcripts, GFR, March 30, 2005, p. 23, lines 10-13.

[369] Transcripts, GFS, September 27, 2004, p. 32, 33, 36, lines 1-14.

[370] Transcripts, FAV, September 22, 2004, p. 18.

[371] Transcripts, FAV, September 22, 2004 p. 26.

[372] Transcripts, FAV, September 22, 2004, p. 14, line 12.

[373] Transcripts, FAV, September 22, 2004, p. 28, line 9.

[374] Transcripts, CBP92, May 29, 2008, p. 11.

[375] Transcripts, CBP92, May 29, p. 11.

[376] Transcripts, CBP44, February 14, 2008, p. 65.

[377] Transcripts, CBP44, February 14, 2008, p. 66.

[378] Transcripts, CBP78, February 18, 2008, p. 24.

[379] Transcripts, CBP78, February 18, 2008, p. 24.

[380] Transcripts, CBP78, February 18, 2008, p. 29.

[381] Transcripts, CBP78, February 18, 2008, p. 29.

[382] Transcripts, CBP78, February 18, 2008, p. 29.

[383] Transcripts, CBP78, February 18, 2008, p. 30-32.

[384] Transcripts, KF, January, 17, 2006, p. 22.

[385] Transcripts, KF, January, 17, 2006, p. 22.

[386] Transcripts, GFT, January 10, 2005, p. 22.

[387] Transcripts, GFT, January 10, 2005, p. 22, lines 28-30.

[388] Transcripts, GFT, January 10, 2005 p. 24.

[389] Transcripts, GFR, March 30, 2005, see discussion pp. 22-23.

[390] Transcripts, CBP44, February 14, 2008, p. 66, lines 27-32.

[391] Transcripts, CBP44, February 14, 2008, p. 66, lines 34-35.

[392] Transcripts, CBP44, February 14, 2008, p. 67, lines 32-33.

[393] Transcripts, GFR, March 29, 2005, p. 11-12.

[394] Transcripts, KF, January 17, 2006, p. 72, lines 14-16.

[395] Transcripts, GLJ, June 15, 2005, p. 40, lines 36-37, p. 41, lines 1-2.

[396] Transcripts, GLJ, June 15, 2005, p. 6.

[397] Transcripts, Dallaire, December 6, 2006, p. 51.

[398] Prosecutor v. Akayesu, No.ICTR-96-4-T, Judgement (2 September 1998) at para 618.

[399] Akayesu supra, at para 623.

[400] Prosecutor v Kayishema and Ruzindana, No.ICTR-95-1-T, Judgement (21 May 1999) at para. 185.

[401] Id. at para. 188.

[402] Kayishema et al supra, at para 603.

[403] Kunarac et al, Case No. IT-96-23-A & IT-96-23/1-A, Judgement (June 12, 2002), para 59.

[404] Transcripts, Initial appearance, 27 April, 2000, pp. 9-10.

[405] Transcripts, January 16, 2008, p. 11-12.

[406] Prosecution v. Bikindi, No. ICTR -2001-72-PT-Decision on Amended Indictment and the Taking of a Plea on the said Indictment, (11 May, 2005) at para 7.

[407] Prosecutorv Bagosora et al, No, ICTR-98-41-T, Decision on Ntabakuze Motion for Exclusion (29 June 2006) at para 10 and viz, Decision on Nsengiyumva Motion for Exclsion of Evidence Outside Scope of Indictment (15 September, 2006) at para 9.

[408] Prosecutor v. Muhimana, No. ICTR-95-1B-T (28 April, 2005) at para 452.

[409] Prosecutor v. Ntagerura et al, No. ICTR-99-46-A (7 July, 2006) at para 114.

[410] Prosecutor v.Bagosora et al No. ICTR-98-41-T, Decision on Bagosora Motion for Exclusion of Evidence Outside the Scope of the Indictment (11 May 2007) at para. 6.

[411] Prosecutor v. Karamera, et al No. ICTR-98-44-T, Decision On Joseph Nzirorera’s Motion To Exclude Evidence of Material Facts Not Charged in the Indictment, (18 March, 2008) at para. 5.

[412] Prosecutor v Karamera supra, para. 5.

[413] viz supra.

[414] Muvunyi Appeals Judgement (29 August 2008) at para 120.

[415] Prosecutor v. Protais Zigiranyirazo, Trial Judgement, at para 17.

[416] Transcripts, LMC, November 14, 2006, p. 59, lines 34-37.

[417] Transcripts, 20 September 1994 at para 292.

[418] Transcripts, ANA, March 22, 2005, pp. 37-38.

[419] Transcripts, ANA, March 22, 2005, p. 37, lines 33-37.

[420] Transcripts, ANA, March 24, 2005, p. 9, lines 3-23.

[421] Transcripts, ANA, March 24, 2005, p. 23, lines 23-25.

[422] Transcripts, ANA, March 24, 2005, p. 27, lines 13-25.

[423] Transcripts, ANA, March 23, 2005, p. 17, line 30.

[424] Transcripts, ANA, March 23, 2005, p. 20, line 18.

[425] Transcripts, ANA, March 23, 2005, p. 12, lines 7-10.

[426] Transcripts, ANA, March 23, p. 20, lines 34-37, p.21.

[427] Transcripts, May 26, 2008, p. 44.

[428] Prosecutor v Zigiranyirazo, Trial Judgement at para 90.

[429] Transcripts, ANA, March 22, 2005 p. 43.

[430] Transcripts, ANA, March 22, 2005, p. 48 line 35.

[431] Transcripts, Ndindiliyimana, June 18, 2008, p. 64, lines 21-26.

[432] Transcripts, CBP80, May 26, p. 38, lines 1-21.

[433] Transcripts, CBP69, February 25, 2008, p. 30, lines 11-14.

[434] Transcripts, CBP69, February 25, 2008, p. 31, lines 1-4.

[435] Transcripts, CBP80, May 26, 2008, p. 22.

[436] Transcripts, CBP80, May 26, 2008, p. 28, lines 19-24.

[437] Transcripts, CBP80, May 26, 2008, p. 38, lines 6-12.

[438] Transcripts, CBP85, May 28, 2008, p. 44.

[439] Transcripts, CBL104, June 4, 2006, p. 16, lines 28-37.

[440] Transcripts, ANH, October 19, 2005, p. 70, lines 14-16.

[441] Transcripts, ANH, October 19, 2005, p. 71, lines 24-28.

[442] Transcripts, ANH, October 19, 2005, p. 75, lines 12-33, p. 78.

[443] Transcripts, ANH, October 19, 2005, p. 78, lines 17-37.

[444] Transcripts, ANH, October 19, 2005, p. 79, lines 34-37, p. 80, lines 1-2.

[445] Transcripts, ANH, October 19, 2005, p. 80, lines 30-37.

[446] Transcripts, ANH, October 19, 2005, see pp. 81, 82.

[447] Transcripts, ANH, October 19, 2005, p. 82, lines 32-36.

[448] Transcripts, ANH, October 20, 2005, see discussion pp. 21 and 22.

[449] Transcripts ANH, October 20, 2005, p. 23.

[450] Transcripts, ANH, October 20, 2005, pp. 26-29.

[451] Transcripts, ANH, October 20, 2005, p. 33, line 2.

[452] Transcripts, ANH. October 20, 2005, pp 33, 34, 36. See also, Exh. D. 537.

[453] Transcripts, CBP46, January 28, 2008, p.28, lines 1-4.

[454] Transcripts, ANH, October 19, 2005, p. 55.

[455] Muvunyi Trial Judgement, at para 190.

[456] Transcripts, ANH. October 20, 2005, pp. 46-49.

[457] Transcripts, ANH, October 20, 2005, p. 50, lines 31-37, p. 51 lines 1-9, pp. 51-55.

[458] Transcripts, ANH, October 20, 2005, p.56, lines 22-37, p. 57 and pp. 58-62.

[459] Transcripts, ANH, October 19, 2005, p. 66, lines 32-37, p. 67, October 20, p.55, lines 17-27.

[460] Transcripts, ANH. October 19, 2005, p. 67, lines 12-37, p. 68, lines 1-15.

[461] Transcripts, ANH, October 20, 2005, p. 12, lines 36-37.

[462] Prosecutor v Ndindiliyimana et al No. ICTR-00-56-T, Decision on Ndindiliyimana’s Extemely Urgent Motion to Prohibit the Prosecution from Leading Evidence on Important Material Facts Not pleaded in the Indictment Through Witness ANF (15 June, 2006).

[463] Transcripts, ANF, September 13, 2006, p. 19, line 16, p. 55, lines 7-37.

[464] Transcripts, ANF, September 2006 at pp. 42-43.

[465] Transcripts, ANF, September 13, 2006, p. 44, lines 25-28.

[466] Transcripts, ANF, September 13, 2006, p. 45.

[467] See, discussion of paragraph 103 of the Amended Indictment under the Conspiracy count and the testimony of CBP7.

[468] Transcripts, AMW, February 23, 2005, pp. 41-42.

[469] Transcripts, AMW, February 23, 2005, p. 43, line 27.

[470] Transcripts, AMW, February 23, 2005, p. 36, lines 28-29.

[471] Transcripts, AMW, February 28, 2005, p. 41, lines 29-33.

[472] Transcripts, AMW, February 23, 2005, p. 66, lines 10-12.

[473] Transcripts, AMW, February 23, 2005, p. 66, line 23 (French).

[474] Transcripts, AMW, February 23, 2005, p. 67 (portion of statement read into the record by Prosecutor Van).

[475] Transcripts, AMW, February 24, 2005, p. 6 lines 3-5.

[476] Transcripts, AMW, February 24, 2005, p. 21.

[477] Transcripts, AMW, February 23, 2005, p. 62.

[478] Transcripts, January 22, 2008, p. 46.

[479] Transcripts, February 23, 2005, pp. 10-11.

[480] Transcripts, AMW, February 23, 2005, p. 27.

[481] Transcripts, CBP41, January 22, 2008, p. 41, lines 21-23.

[482] Transcripts, CBP41, January 22, 2008, pp. 41, 42, 43, 44.

[483] Transcripts, CBP56, February 1, 2008, p. 33.

[484] Transcripts, CBL104, June 4, 2008, p. 12.

[485] Transcripts, CBL104, June 4, 2008, p. 13-14.

[486] Transcripts, CBP41, January 22, 2008, p. 45.

[487] Transcripts, CBP41, January 22, 2008, p. 46, lines 24-37, p. 47, lines 1-2.

[488] Transcripts, CBP41, January 22, 2008, p. 48-49.

[489] Transcripts, CBP76, February 7, 2008, p. 38, lines 21-23.

[490] Transcripts, CBP76, February 7, 2008, p. 38-39.

[491] Transcripts, CBP56, February 1, 2008, p. 24.

[492] Transcripts, CBP56, February 1, 2008, p. 27, lines 24-28.

[493] Transcripts, ANG, May 30, 2005, see p. 25.

[494] Transcripts, ANG, May 30, 2005, p. 20, 21.

[495] Transcripts, CBP55, February 4, 2008, pp. 44-51.

[496] Transcripts, Ndindiliyimana, June 23, 2008, pp. 31-32.

[497] Simba Trial Judgement of December 13, 2005, at para. 112.

[498] Transcripts, ANI/KEI, January 26, 2005, p. 61.

[499] Transcripts, ANI/KEI, January 26, 2005, p. 30.

[500] Transcripts, ANI/KEI, January 26, 2005, p.14.

[501] Transcripts, ANI/KEI, January 26, 2005, p. 61.

[502] Transcripts, ANI/KEI, January 26, 2005, p. 76.

[503] Transcripts, ANJ/KTB, June 2, 2005, p. 24, lines 25-37, p. 25, lines 1-13.

[504] Transcripts, ANJ/KTB, June 2, 2005, pp. 37, 38, 39, 40.

[505] Transcripts, ANJ/KTB, June 6, 2005, pp. 11-15.

[506] Transcripts, ANJ/KTB, June 6, 2005, p. 14.

[507] Transcripts, ANJ/KEI, June 2, 2005, p. 28, lines 18-39, p. 29, lines 18-39.

[508] Transcripts, ANJ/KEI, June 2, 2005, p. 24, lines 32-37.

[509] Transcripts, ANC, May 30, p. 2, lines 17-20, 22-25.

[510] Transcripts, ANC, May 29, p. 32.

[511] Transcripts, ANC, May 29, 2006, p. 28, lines 18-20.

[512] Transcripts, ANC, May 29, p. 58, lines 33-35.

[513] Transcripts, ANC, May 29, p. 63.

[514] Transcripts, ANC, May 31, pp. 1-5.

[515] Transcripts, ANC, May 31, p. 6, lines 29-36.

[516] Transcripts, ANC, May 31, p. 13, lines 11-14.

[517] Transcripts, ANC, May 31, p. 20, lines 13-16.

[518] Transcripts, ANC, May 31, p. 24.

[519] Transcripts, ANC, May 30, p. 50.

[520] Transcripts, ANC, May 31, p. 13, lines 11-14.

[521] Transcripts, ANC, May 31, 2006, p.34.

[522] Transripts, ANC, May 31, 2006, p. 34.

[523] Transcripts, UB, February 8, 2005, p. 37, lines 7-10.

[524] Transcripts, UB, February 8, 2005, p. 41.

[525] Transcripts, UB, February 8, 2005, p. 61, lines 15-19.

[526] Transcripts, UB, February 14, 2005, pp. 46-47.

[527] Transcripts, DBE, March 30, 2005, p. 50, line 14, p. 51, lines 10-11.

[528] Transcripts, DBE, March 30, 2005, p. 44, lines 22-37.

[529] Transcripts, GFV, May 23, 2005, p. 43, lines 19-39, p. 44, lines 1-6.

[530] Transcripts, GFV, May 24, 2005, p. 27, lines 2-5.

[531] Transcripts, GFV, May 24, 2005, p. 39, lines 18-37.

[532] Transcripts, GFV, May 24, 2005, p. 32, lines 22-30, p. 34.

[533] Transcripts, GFV, May 24, 2005, p. 28, lines 2-7, p. 30, lines 19-37.

[534] Transcripts, GFV, May 24, 2005, pp. 36, 37, 38, 39.

[535] Transcripts, GLJ, June 14, 2005, pp. 33-34, p. 21, lines 1-9.

[536] Transcripts, GLJ, June 14, 2005, p. 23, line 21.

[537] Transcripts, GLJ, June 14, p. 24, line 9.

[538] Transcripts, LMC, November 14, 2006, p. 3, lines 24-26.

[539] Transcripts, LMC, November, 14, 2006, p. 31, lines 34-37, p. 60, lines 14-16.

[540] Transcripts, LMC, November, 15, 2006, p. 15, lines 11-16.

[541] Transcripts, DBB, January 26, 2006, p. 32, lines 7-8.

[542] Transcripts, DBB, January 30, 2006, p. 28, lines 9-13.

[543] Transcripts, DBB, January 30, 2006, p. 29, line 36.

[544] Transcripts, DBB, January 30, 2006, p. 30, line 10.

[545] Transcripts, DBB, January, 30, 2006, p. 32, lines 1-21.

[546] Transcripts, DEA, September 27, 2005, p. 7, line 14.

[547] Transcripts, DEA, September 28, 2005, p. 37, lines 6-8.

[548] Transcripts, DEA, September 28, p.9 lines 18-21.

[549] Transcripts, DEA, September 28, p. 73, lines 22-33, p. 74, lines 3-37, p. 75, lines 1-37.

[550] Transcripts, DEA, September 28, p. 78, lines 1-8.

[551] Transcripts, LBC, October 10, 2005, p. 18, lines 23, 34 and p. 81, lines 1-5.

[552] Transcripts, LBC, October 10 2005, p. 73, lines 35-37.

[553] Transcripts, LBC, October 10, 2005, p. 80, lines 22-23.

[554] Transcripts, LBC, October 10, 2005, p. 54, lines 30-32.

[555] Transcripts, ON, September 7, 2007, p. 41, lines 23-24.

[556] Transcripts, ON, September 7, 2007, p. 47, lines 14-37.

[557] Transcripts, ON, September 7, 2007, p. 58, lines 19-21.

[558] Transcripts, ON, September, 7, 2007, p. 54, lines 22-24; Sept. 11, p. 15, lines 9-12.

[559] Transcripts, ON. September 7, 2007, p. 54, lines 36-39.

[560] Transcripts,, ON, September 7, 2007, p. 61 lines 23-27, p. 62, lines 1-6.

[561] Transcripts, ON, September 11, 2007, p. 12, line 34.

[562] Transcripts, ON, September 11, 2007, pp. 2, 3, 4 and Exhibit D134.

[563] Transcripts, ON, September 7, 2007, p. 78, lines 6-8.

[564] Transcripts, KF, January 17, 2006, p. 20, lines 21-22.

[565] Transcripts, KF, January 17, 2006, p. 68, line 15.

[566] Transcripts, KF, January 17, 2006, p. 21, lines 16-19.

[567] Transcripts, KF, January 17, 2006, p. 21, lines 24-28.

[568] Transcripts, KF, January 17, 2006, p. 33, lines 24-26.

[569] Transcripts, KF, January 17, 2006 p. 42, lines 32-34.

[570] Transcripts, KF, January, 17 2006, see discussion at p. 44, lines 30-32.

[571] Transcripts, KF, January 17, 2006, p. 45, lines 25-26.

[572] Transcripts, KF, January 17, 2006, p. 48, lines 1-37, p.49, lines 1-17.

[573] Transcripts, KF, January 17, 2006, p. 49, lines 19-37.

[574] Transcripts, KF, January 17, 2006, p. 51, lines 6-37.

[575] Transcripts, KF, January 17, 2006, p. 62, lines 10-19.

[576] Transcripts, KF, January 17, 2006, p. 64, lines 18, 19.

[577] Transcripts, KF, January 18, 2006, p. 2, lines 30-34.

[578] Transcripts, KF, January 18, 2006, p. 4, lines 32-37, p. 5, lines 1-3.

[579] Transcripts, JVN, February 18, 2009, p. 10.

[580] Transcripts, JVN, February 18, 2009, p. 11-12.

[581] Transcripts, JVN, February 18, p. 12.

[582] Transcripts, JVN, February 18, p. 14.

[583] Transcripts, JVN, February 18, p. 14.

[584] Transcripts, JVN, February 18, p. 18.

[585] Transcripts, JVN, February 18, 2009, p. 21.

[586] Transcripts, GLJ, January 15, 2005, p. 17 lines 26-27.

[587] Transcripts, GLJ, January 15, 2005 p. 24.

[588] ID58 (exhibit number not located when document drafted).

[589] Transcripts, JVN, February 18, 2009, pp. 21-21.

[590] Transcripts, JVN, February 18, 2009, p. 23.

[591] Transcripts, JVN, February 18, 2009, p. 23.

[592] Transcripts, CBL105, January 29, 2008, p. 10, lines 14-17.

[593] Transcripts, CBP88, June 11, 2008, p. 9, lines 33-37.

[594] Transcripts, CBP88, June 11, 2008, p. 10, lines 9-18.

[595] Transcripts, CBP56, February 1, 2008, p. 15, lines 33-34.

[596] Transcripts, CBP99, March 3, 2008, pp. 33-34.

[597] Transcripts, CBP99, March 3, 2008, p. 35, lines 7-19.

[598] Transcripts, CBP99, March 3, 2008 p. 24-35.

[599] Transcripts, CBP99, March 3, 2008, p. 37-38.

[600] Transcripts, CBP7, July 7, 2008, p. 38.

[601] Transcripts, CBP7, July 7, 2008, p. 40.

[602] Prosecutor v Rugambarara, No. ICTR-00-59-T, Sentencing Judgement (16 November 2007) at para. 47.

[603] See, e.g. Ndindabahizi v Prosecutor, No. ICTR-01-71-A, Judgement (16 January 2007) at para. 136 (finding that Ndindabahizi’s position in the Interim Government was not in and of itself an aggravating factor, but rather, it was the abuse of that position).

[604] Semanza v Prosecutor, No. ICTR-97-20-A, Judgement (20 May 2005) at para. 398;Prosecutor v Gacumbitsi, No. ICTR-2001-64-T, Judgement (17 June 2004) at para.352;Prosecutor v Bisengimana, No. ICTR-00-60-T, Judgement and Sentence (13 April 2006) at para. 150; Prosecutor v Nzabrinda, No. ICTR-2001-77-T, Judgement (23 February 2007) at para. 92.

[605] Prosecutor v Bisengimana, No. ICTR-00-60-T, Judgement and Sentence (13 April 2006) at para. 165; Prosecutor v Serugendo, No. ICTR-05-84-I, Judgement and Sentence(12 June 2006) at para. 65; Prosecutor v Nzabrinda, No. ICTR-2001-77-T, Judgement (23 February 2007) at para. 92 Prosecutor v Rugambarara, No. ICTR-00-59-T, Sentencing Judgement (16 November 2007) at para.43.

[606] Prosecutor v Bisengimana, No. ICTR-00-60-T, Judgement and Sentence (13 April 2006) at para. 143-44; Prosecutor v Serugendo, No. ICTR-05-84-I, Judgement and Sentence (12 June 2006) at para. 66.

[607] Prosecutor v Muvunyi, No. ICTR-2000-55A-T, Judgement and Sentence (12 September 2006) at para. 543.

[608] Prosecutor v Serugendo, No. ICTR-05-84-I, Judgement and Sentence (12 June 2006) at para. 69; Prosecutor v Nzabrinda, No. ICTR-2001-77-T, Judgement (23 February 2007) at para. 77 Prosecutor v Rugambarara, No. ICTR-00-59-T, Sentencing Judgement (16 November 2007) at para. 37.

[609] Prosecutor v Bisengimana, No. ICTR-00-60-T, Judgement and Sentence (13 April 2006) at para. 143; Prosecutor v Nzabrinda, No. ICTR-2001-77-T, Judgement (23 February 2007) at para. 81; Prosecutor v Rugambarara, No. ICTR-00-59-T, Sentencing Judgement (16 November 2007) at para. 39.

[610] Rules of Procedure and Evidence

[611] DeBrouwer, T. February 21, 2008, p. 36-37.

[612] Swinnen, T. October 22, 2008, p.30

[613] Transcripts, Swinnen, October 22, 2008, p. 30-32.

Introduction

I. Conspiracy to Commit Genocide

A. Introduction

B. The Prosecutor failed to provide evidence of the development of a plan to exterminate Tutsi by MRND and military leaders in 1990 as alleged in para. 23 of the Amended Indictment.

C. General Ndindiliyimana did not prevent the success of the swearing ceremony of 5 January 1994 as implied by para. 35 of the Amended Indictment.

D. There was no strategy for perpetrating the events of April 1994 as the prosecution alleges in para. 25 of the Amended Indictment.

(1) General Ndindiliyimana was not involved in the creation or distribution of the “Definition of the Enemy” document and that document had a legitimate military purpose.

(2) General Ndindiliyimana did not participate in any incitement to hatred and he acted within legal constraints to try to silence ethnically inflammatory speech and punish ethnically motivated crimes

(3) General Ndindiliyimana did not participate in any way in the training of or distribution or weapons to Interahamwe militiamen.

(4) There is no evidence to support the allegation that senior military officers created lists of Tutsi to be eliminated.

(5) General Ndindiliyimana supported the power sharing agreement.

(6) General Ndindiliyimana did the best he could with the resources available to him to restore peace after the massacres began.

E. The Definition of the Enemy document had a legitimate military purpose; further, General Ndindiliyimana is not linked with that document.

F. There was no meeting between General Ndindiliyimana and MRND members on 7 January 1994.

G. General Ndindiliyimana facilitated UNAMIR search operations and did not compromise their effectiveness.

H. General Ndindiliyimana had no jurisdiction to investigate or order a judicial probe of journalists as alleged in para. 37 of the Amended Indictment.

J. General Ndindiliyimana did not support the institution of an interim Government composed solely of Hutu extremists.

K. General Ndindiliyimana was not informed of the gravity of the situation prevailing at Camp Kigali.

L. General Ndindiliyimana was not involved in the political killings of 7-11 April 1994; He took the necessary and reasonable steps to protect in light of UNAMIR’s undertaking to protect said political figures; He did not fill a political power vacuum.

N. General Ndindiliyimana did not issue “many laissez-passer” to Interahamwe.

I. Genocide

A. Introduction

B. Timeline of General Ndindiliyimana’s Actions and Reactions

C. Factual Allegations

(1) Kansi Church and Massacres Committed in Nyaruhengeri

(2) The Secteur Office Explosion

(3) Saint-Andre College in Kigali

(4) CELA and the Road Leading to the CND

III. Crimes Against Humanity: Murder

A. Introduction

B. The Deaths of Célestin Munyanshagore and Ignace Habimana

C. The Death of Gashugi

D. The Death of Aloys Niyoyita

E. The Death of Phocus Kananeri

F. Nyamirambo Roadblock

IV. Crimes Against Humanity: Extermination

V. Violations of Common Article 3 To The Geneva Conventions And Additional Protocol II: Murder

VI. Allegations Not Pleaded In The Indictment

A. Historical Background of the Indictment and the Extraneous Allegations

B. The Law

C. Material Allegations Outside of the Amended Indictment

(1) Nyanza Stadium

(2) Prosecution Witness ANH

(3) Prosecution Witness ANF

(4) Prosecution Witness AMW

(5) Prosecution Witness ANG

(6) Prosecution Witness ANJ/KTB

(7) Prosecution Witness ANC

(8) Prosecution Witness UB

(9) Prosecution Witness DBE

(10) Prosecution Witness GFV

(11) Prosecution Witness GLJ

(12) Prosecution Witness LMC

(13) Prosecution Witness DBB

(14) Prosecution Witness DEA

(15) Prosecution Witness ON

(16) Prosecution Witness KF

VII. Sentencing

A. Mitigating Circumstances

B. Cumulative Convictions

C. Conclusions on Sentencing

VIII. Issues Relating to Intent

IX. Conclusion

FOLLOW US

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