ECLI:NL:RBSGR:2009:BK0520

[Translation from Dutch] DISTRICT COURT IN THE HAGUE Criminal Law Section Three-judge Division for Criminal Matters Case numbers 09/750009-06 and 09/750007-07 Date of Judgement: 23 March 2009 Judgement Based on the charges and further to the investigation during the court hearing, the District Court in The Hague has rendered the following judgement in the criminal case of the Prosecution against the Defendant: Joseph [M.], born in [place of birth] (Rwanda) on [date of birth] 1968, address: [address], presently detained at the Penitentiary Institution Haaglanden, Penitentiary Complex Scheveningen, Remand Prison Unit 2. The investigation was held during the court hearings on 13, 14, 16, 17, 20, 21, 23, 24, 27, 28 October, 3, 10, 11, 17, 18, 19, 24 November, 1 and 4 December 2008, 2 February and 9 March 2009. The Court has taken cognizance of the requests of the Public Prosecutors Mrs. H.C.M. van Bruggen and Mr. W.N. Ferdinandusse and of the submissions by the Counsel for the Defendant Mr. A.B.G.T. von Bóné, Lawyer in Rotterdam, and by the Defendant himself. Chapter 1: The charges and the requests. 1. The Defendant stands trial for his involvement in serious criminal offences, allegedly committed in Rwanda in the period between April through July 1994. These facts are described in the Indictment with case numbers 09/750009-06 (Indictment I)(1) and 09/750007-07 (Indictment II)(2). Both Indictments were handled in a joint action. 2. In brief, the charges of Indictment I imply the following: I: On or around 13 April 1994, the Defendant, together with others, stopped an ambulance in Birogo (prefecture Kibuye). This ambulance was driven by [witness 1] and carried two Tutsi-women. (Dativa and Brigitte) with their children and a girl named [witness 2]. After the ambulance had been stopped, the Defendant, together with others, forced it to drive to nearby Mugonero. During this drive, the ambulance was surrounded by attackers while arms were shown and the ambulance was hit by the attackers. The people surrounding the ambulance also yelled words such as 'Inkotanyi'. In Mugonero the passengers were forced to leave the ambulance. Threats were uttered such as “Before the cockroaches are going to be killed, the driver must be killed first”. Subsequently, the two Tutsi-women and their children were hit/hacked with machetes, clubs and/or other weapons. As a consequence, all passengers had to fear for their lives for a considerable time, the two Tutsi-women and their children died (after which a number of the children were thrown into Kivu Lake) and [witness 1] and [witness 2] suffered (serious) bodily harm. II: On 16 April 1994, the Defendant, together with others and using all kinds of weaponry, attacked Tutsi civilians who stayed at the Seventh Day Adventists Complex in Mugonero. The Defendant and others shot at these civilians, hit and hacked them with machetes and other weapons and threw teargas into the buildings in which part of the Tutsis were hiding. Consequently, these persons were forced in a situation in which they had to fear for their lives and the lives of their family and friends. As a consequence of this attack, a large number of these people died and one or more of them suffered (serious) bodily harm. III: On 27 April 1994, the Defendant, together with others, refused passage to [witness 3], her partner [witness 4] and their baby [B1] at a road block in Mugonero. Weapons were shown openly to the victims and they were able to hear remarks such as “cockroach(es)”, “Look well at that Tutsi woman, these are the people who murdered the president”, “Would you like to be treated as a Tutsi?”, “You can choose whether you are going to be killed in Kibingo, in Mugonero or in Gishyita”, “Look how bad these Tutsis are, they even laugh when we are going to kill them” and “Hutu-power”. As a consequence of this, [witness 3] found herself in a situation in which she had to fear for her life and that of her son for a prolonged time, while she was seriously humiliated in public by these actions. [Witness 4] was put in a situation in which he had to fear for his life and that of his partner for a prolonged time, while he was seriously humiliated in public by these actions. 3. In brief, the charges of Indictment II imply the following: Ia: On 13 May 1994, the Defendant, together with others, at Muyira Hill, in the Bisesero area, grabbed a woman named Consolata Mukamurenzi, pushed her to the ground and said to her: “If you do not tell me where they are, we will kill you. If you tell me, we will leave you alone.” Subsequently, the Defendant told his co-perpetrators that they could rape her and that he would guarantee their safety. Upon this, his co-perpetrators raped her repeatedly, after which the Defendant stabbed a bayonet into her vagina and shot bullets in her back and head, as a consequence of which she died. Ib: On 16 April 1994, the Defendant, together with others, threatened Marie Mukagatare and Gertrude Mukamana, who, while being on the run for the large scale violence towards Tutsi civilians, had taken refuge in a hospital room at the Adventists complex in Mugonero, by pointing a fire arm at them. Subsequently, he said to them: “For a long time we asked you to have sex with us. Then you refused. Now you cannot refuse anymore”, after which he raped both women and cut their throats as a consequence of which they died. Ic: On or around 14 April 1994, at the Adventists Complex in Mugonero, the Defendant, together with others, grabbed, hit and raped a woman named Kayitesi. II: In the period between 6 April through 1 July 1994, in Kibuye prefecture, the Defendant, together with others, took three grand children of [witness 5] and [witness 6] from the home of the grandparents, after which they were never heard of again. 4. In brief, all these facts have been charged principally as war crimes (article 8 Criminal Law in Wartime Act (3), and alternatively as torture (article 1 and 2 The Convention against Torture Implementation Act(4). 5. The Public Prosecution Service has demanded the Court to acquit the Defendant of the charges in the Indictment II under 1b, and shall deem legally and convincingly proven that the Defendant has committed the other charges in both Indictments, as principally charged. Furthermore, the Prosecution has demanded the Court to convict the Defendant to life imprisonment. Chapter 2: Jurisdiction 1. Originally, all these facts were also charged to the Defendant as genocide. On 24 July 2007, the District Court of The Hague decided the Netherlands had no jurisdiction to bring the Defendant to trial for this charge.(5) On 17 December 2007, the Court of Appeal in The Hague came to the same decision.(6) The appeal in cassation, brought by the Prosecution, was dismissed by the Supreme Court.(7) 2. Although this subject did not lead to a discussion during the hearing of the case, the Court will, however, investigate whether the Netherlands has jurisdiction with respect to the facts as charged at present. As the Court considered in the afore mentioned decision dated 24 July 2007, the Defendant is not of Dutch nationality, nor are the victims mentioned in the charge, the Defendant is charged with committing the facts in Rwanda and furthermore, any (specific) Dutch interest is lacking. 3. However, other than in cases of genocide, Dutch law has, respectively in the Criminal Law in Wartime Act and the Torture Convention Implementation Act, provided for universal jurisdiction with respect to war crimes and torture committed in 1994. 4. Article 3 (old) of the Criminal Law in Wartime Act at the time of the facts as charged: “Notwithstanding the provisions in the Dutch Criminal Code and the Code of Military Criminal Justice, Dutch criminal legislation is applicable to: 1°.

any person who is guilty of a crime as described in articles 8 and 9 (...), committed outside the kingdom of the Netherlands”. 5. Recently, the Supreme Court has confirmed that on the basis of this provision the judge in the Netherlands has universal jurisdiction with respect to war crimes. “Assuming that since the taking effect of the Convention, acting contrary to art. 3 of the Convention constitutes the serious offence as described in art. 8 of the Criminal Law in Wartime Act and that – as results from the decision of the Supreme Court of 11 November 1997, LJN ZD0857, NJ 1998, 463 – in such cases the Dutch judge has jurisdiction pursuant to art. 3 (old) of the Criminal Law in Wartime Act.”(8) 6. At the time of the charges, Article 5 of the Criminal Law in Wartime Act read as follows: “Dutch criminal law is applicable to any person who commits a serious offence outside the kingdom of the Netherlands as described in articles 1 and 2 of this law.” 7. In its judgement in the Bouterse case, the Supreme Court considered the following with respect to the universal jurisdiction as defined in this article with respect to torture, with reference to the Torture Convention Implementation Act: “8.4 (...) that at the time of implementation of the jurisdiction rule of art. 5 of the Convention against torture and other cruel, inhuman or degrading punishment, the legislator did not want to go further than the terms to which the Netherlands are obliged pursuant to art. 5, first and second paragraph. 8.5. As a consequence, the prosecution and trial of the Defendant of an offence as meant in art. 1 and 2 of The Convention against Torture Implementation Act, committed in a foreign country, are only possible if there are reference points mentioned in that Convention for the establishment of jurisdiction, for instance because the Defendant and/or the victim are of Dutch nationality, or because the Defendant, at the time of his arrest, stayed in the Netherlands.”(9) 8. It is the Court’s opinion that this restriction of the execution of the universal jurisdiction should also be valid with respect to legislation for war crimes in cases as described in art. 3 under 1 (old) of the Criminal Law in Wartime Act. 9. In the meantime, in article 2, paragraph 1, under a of the International Crimes Act (10), the legislator has restricted the execution of the universal jurisdiction for all international crimes included in the International Crimes Act (such as war crimes and torture) to those cases in which the Defendant is staying in the Netherlands. This provision includes (in so far as is important): “Article 2: 1. “Notwithstanding the provisions of the Dutch Criminal Code and the Code of Military Criminal Justice, Dutch criminal legislation is applicable to: 1°. any person who is guilty of a crime as described in this law and committed outside the kingdom of the Netherlands, if the Defendant is staying in the Netherlands; (...)” 10. The explanatory memorandum to the bill that resulted in the International Crimes Act, provides the following reasons for this choice made by the legislator: “There are good arguments to be put forward for the restriction of the universal jurisdiction with respect to Defendants who are staying within the territory of the state. First, trial in absentia, without any reference point with the case (offence committed within the territory, Defendant is a national subject etc.) is generally not considered correct. Furthermore, trial in absentia may easily lead to jurisdiction conflicts with states that do have a reference point with the case. These jurisdiction conflicts may undermine an effective international cooperation for the administration of justice regarding international crime, among others because of the rule that a country which itself has initiated prosecution in a certain case, will not decide to render (limited) legal assistance in that case to another country (ref. our article 5521, first paragraph, under c, CP).”(11) 11. At the time of initiating investigative actions or prosecution against him, the Defendant was staying in the Netherlands. 12. Therefore, based on the provisions of art. 3 (old) of the Criminal Law in Wartime Act and art. 5 of the Torture Convention Implementation Act, the Court has jurisdiction with respect to the serious offences which the Defendant is charged with. Chapter 3: Rwanda Introduction 1. Between 6 April and mid July 1994, hundreds of thousands of Rwandese citizens were killed. The estimations of the number of victims made by experts vary; most come to six hundred thousand to – most probably – eight hundred thousand deaths(12), roughly 10% of the entire population. The large majority of the victims belonged to the Tutsi population. It is estimated that during those 100 days, 75% of the Rwandese Tutsi population was murdered. These mass murders occurred, as was established in many (scientific) publications and as mentioned in a large number of judgements by the International Criminal Tribunal for Rwanda (ICTR)13), with the aim to eradicate the Tutsi population as such. Therefore, there cannot be any doubt that during these months in 1994, a genocide took place in Rwanda. In the words of the Appeals Chamber of the ICTR(14): “The fact of the Rwandan genocide is part of world history, a fact as certain as any other, a classic instance of a ‘fact of common knowledge’.” 2. During those same 100 days, an armed conflict was fought out on Rwandese territory between the Rwandese government army (Forces Armées du Rwanda, hereafter: FAR) and the armed forces of the Rwandese Patriotic Front (hereafter: RPF), an army of rebels mainly consisting of (descendants of) Rwandese Tutsi who fled from Rwanda in preceding decennia. The RPF was a structured and disciplined army under a responsible command; it had a recognized command structure headed by general Paul Kagame.(15) 3. During this period, Defendant stayed at his parents’ house in Mugonero, a village in the Kibuye Préfecture in the western part of Rwanda. In this part of Rwanda there was no fighting between units of the RAF and the RPF. It is the opinion of the Prosecution that the Defendant committed the offences as charged to him in close relation with the war between these fighting forces and therefore they can be regarded as war crimes. The Prosecution also accuses the Defendant of the fact that these serious offences were acts of a policy of systematic terror against the Tutsi population, that also materialised in Mugonero and surroundings. 4. In this chapter, the Court will give a brief summary of the (political) historical background of the dramatic events that occurred in Rwanda during the period between 6 April and mid July 1994. The Court will also generally describe the course of the horrific events, based on documents accessible to the public and that form part of the criminal case file(16), as well as some reports that were written for the purpose of this criminal case.(17) In this summary, the Court will limit itself to facts which are essential for an adequate interpretation of the (context of the) charges against the Defendant. That is why in this summary hardly any attention is paid to the role of international participants (essentially France, Belgium, the United States of America, Rwanda’s neighbouring countries, the (security Council of the) United Nations and the Organisation of African Unity. Period up to 6 April 1994 5. In its first judgement (in the Akayesu case), the Trial Chamber of the ICTR set out a detailed explanation of the history of Rwanda.(18) Below, the Court will cite (parts from) paragraphs from this judgement about the colonial period and the decolonisation process, amplified on the relation between the different population groups. “80.

Prior to and during colonial rule, first, under Germany, from about 1897, and then under Belgium which, after driving out Germany in 1917, was given a mandate by the League of Nations to administer it, Rwanda was a complex and an advanced monarchy. The monarch ruled the country through his official representatives drawn from the Tutsi nobility. Thus, there emerged a highly sophisticated political culture which enabled the king to communicate with the people. 81. Rwanda then, admittedly, had some eighteen clans defined primarily along lines of kinship. The terms Hutu and Tutsi were already in use but referred to individuals rather than to groups. In those days, the distinction between the Hutu and Tutsi was based on lineage rather than ethnicity. Indeed, the demarcation line was blurred: one could move from one status to another, as one became rich or poor, or even through marriage. 82. Both German and Belgian colonial authorities, if only at the outset as far as the latter are concerned, relied on an elite essentially composed of people who referred to themselves as Tutsi, a choice which, according to Dr. Alison Des Forges, was born of racial or even racist considerations. In the minds of the colonizers, the Tutsi looked more like them, because of their height and colour, and were, therefore, more intelligent and better equipped to govern. 83. In the early 1930s, Belgian authorities introduced a permanent distinction by dividing the population into three groups which they called ethnic groups, with the Hutu representing about 84% of the population, while the Tutsi (about 15%) and Twa (about 1%) accounted for the rest. In line with this division, it became mandatory for every Rwandan to carry an identity card mentioning his or her ethnicity. The Chamber notes that the reference to ethnic background on identity cards was maintained, even after Rwanda's independence and was, at last, abolished only after the tragic events the country experienced in 1994. 85. From the late 1940s, at the dawn of the decolonization process, the Tutsi became aware of the benefits they could derive from the privileged status conferred on them by the Belgian colonizers and the Catholic church. They then attempted to free themselves somehow from Belgian political stewardship and to emancipate the Rwandan society from the grip of the Catholic church. The desire for independence shown by the Tutsi elite certainly caused both the Belgians and the church to shift their alliances from the Tutsi to the Hutu, a shift rendered more radical by the change in the church's philosophy after the second world war, with the arrival of young priests from a more democratic and egalitarian trend of Christianity, who sought to develop political awareness among the Tutsi-dominated Hutu majority. 87. In 1956, in accordance with the directives of the United Nations Trusteeship Council, Belgium organized elections on the basis of universal suffrage in order to choose new members of local organs, such as the grassroots representative Councils. With the electorate voting on strictly ethnic lines, the Hutu of course obtained an overwhelming majority and thereby became aware of their political strength. The Tutsi, who were hoping to achieve independence while still holding the reins of power, came to the realization that universal suffrage meant the end of their supremacy; hence, confrontation with the Hutu became inevitable. 88. Around 1957, the first political parties were formed and, as could be expected, they were ethnically rather than ideologically based. (...)” 6. In November 1959, political tension ran up high and this accumulated in a first eruption of ethnic violence. Hundreds of Tutsi were killed and many thousands of Tutsi fled to neighbouring countries. The disturbances resulted in the end of the Tutsi monarchy and the proclamation of the (First) Republic by Grégoire Kayibanda, leader of the Mouvement Démocratique Républicain Parmehutu (hereafter: MDR Parmehutu), by far the largest political party, which proclaimed itself (literally) as a movement exclusively of and for Hutus. On 1 July 1962, Rwanda officially became independent. Kayibanda was its first president. 7. The early years of this First Republic were also characteristic of ethnic violence. The victims were mainly Tutsi. The MDR Parmehutu-regime considered supremacy by Hutus, the “majority population” (rubanda nyamwinshi), after all it made up for 85% of the population, equal to democracy and preached an aggressive and exclusive Hutu solidarity.(19) During these years, Tutsi refugees regularly executed small scale guerrilla attacks in Rwanda. Every time this lead to retaliation attacks against the Tutsi population, most of the time encouraged by the authorities and/or executed by Rwandese army units. Again, this violence forced thousands of Tutsi into exile. During the years between 1961 and 1967, in this cycle of violence, fleeing and armed attacks roughly 20.000 Tutsi were killed and some 300.000 fled to neighbouring countries. From this period derives the practice under Hutus to call the Tutsi attackers “inyenzi”, cockroaches.(20) Also around this time, Hutu authorities started to accuse Tutsis living in Rwanda of being accomplices (“ibyitso”) of these attackers. (21) In 1972-1973, a new period of heavy ethnic violence against Tutsi followed which resulted in them fleeing again in large numbers to neighbouring countries.(22) 8. These – and later – developments in Rwanda cannot be regarded separately from those in neighbouring country Burundi. In the words of the OAU-report: “Its partner on a deadly seesaw”.(23) Burundi also had known a colonial administration by Germany first and Belgium thereafter and also in Burundi, the population was made up of 85% Hutu and 15% Tutsi and Burundi became independent in 1962 as well.(24) However, different from the situation in Rwanda, the Tutsi minority in Burundi remained in power. The OAU-report summarises the developments in Burundi as follows: “Since 1962, Burundi's Tutsi minority has dominated successive governments, the army and other security forces, the judiciary, the educational system, the news media, and the business world. In Rwanda, such domination was seen to legitimise the country's own rigid quota system. In Burundi, it has led to a state of almost permanent conflict. The decades-long struggle for power between the elites of the two groups has led to the deaths of hundreds of thousands of Burundians, most of them civilians. Repeated Hutu challenges to Tutsi domination have been followed each time by vicious reprisals by the Tutsi army and police against Hutu civilians that were invariably disproportionate to the original provocation. In the years between independence and the genocide in Rwanda, no fewer than seven giant waves of killings occurred in Burundi: in 1965, 1969, 1972, 1988, 1991, 1992, and 1993.”(25) And about the interaction between the developments in both countries, the report mentions: “Victimisation of the Tutsi in one country was first aggravated by, and then used to justify, persecution of the Hutu in the other country and vice versa. Each act of repression in the one state became the pretext for a renewed round of killing in the other. Such retaliation was fuelled by the constant refugee movements across the shared border, the inflammatory tales told by all who fled, and the eagerness felt by many of them to join in any attempts to wreak revenge from their new refuge. Perhaps refugees were also emboldened by yet another perverse, common characteristic of the two nations: In both countries, massacres by governments went largely unpunished, and a pervasive culture of impunity began to complement the growing culture of violence that was emerging.”(26) 9. In 1973, primarily regional differences within the Hutu elite lead to the fall in Rwanda of the Kayibanda regime. General Juvénal Habyarimana, chief of staff of the Rwandese army, seized power and proclaimed the Second Republic.

In 1975, he founded the Mouvement Révolutionnaire National pour le Développement (MRND), a party of which every Rwandese was a member from the day he or she was born.(27) Some years later, Rwanda also officially became a one-party State. The Habyarimana regime ended the ethnic violence, but not the policy of systematic discrimination against the Tutsi population and Tutsi exiles were still not allowed to return to Rwanda. When Hutu from other regions than the president’s (the north west) were increasingly barred from important positions in the administration and the army and the economic situation deteriorated, the regime was increasingly confronted with unrest among the population and opposition from dissident Hutus. 10. In the meantime, Rwandese exiles in Uganda and Kenya (mainly Tutsis) founded the RPF in December 1987. The objects of the Front, a political organisation with a military wing, were to secure the right of all Tutsi exiles to return to Rwanda and to end the one-party regime of Habyarimana.(28) On 1 October 1990, thousands of RPF fighters invaded the (north eastern part of) Rwanda. With that, an armed battle broke out between the RPF troops and the Rwandese army, which – although interrupted by negotiations and truces – continued until July 1994. The attack of 1 October 1990 was countered successfully by the government army while the RPF also did not succeed in permanently occupying a large part of Rwandese territory in the period afterwards (until 6 April 1994. But, in the words of the OAU-report: “Even those sympathetic to the invaders' cause acknowledge that the attack triggered a series of pivotal consequences that ultimately led, step by step, to the genocide. In the words of one human rights group, “...it is beyond dispute that the invasion ... was the single most important factor in escalating the political polarisation of Rwanda.”(29) 11. The military operations of the RPF in – mainly – the north eastern part of Rwanda, which included serious offences against the civilian population, together with cynic anti Tutsi propaganda, generated a large flow of Hutu refugees towards the centre of Rwanda. In 1990, There were approximately 300.000 refugees, early 1993, after a new large scale RPF attack, roughly 1.000.000 more.(30) The OAU-report describes how the invasion and the guerrilla war increased the influence of radical Hutu factions in the government and the army, how they worsened the already immense economic problems and most of all how they gave credibility to the ethnic strategy of the regime(31) that was based on the retention of power and more in particular of the small circle around Habyarimana, known as the Akazu (the small house)(32): “The invasion gave an ethnic strategy immediate credibility. The carefully inculcated fears about Tutsi conspiracies - fears about alleged plots to regain control of the republic and launch merciless attacks on all Hutu - that had been dormant for so many years were deliberately revived. The nation was reminded that the Tutsi were, from the first, the “other”; they were all alien invaders. Was is therefore not self-evident that all Tutsi were accomplices of the invaders? Any question of class or geographical division among Hutu had to be submerged in a common front against the devilish intruders. It was not difficult for the government to exploit its own failures in order to rally the majority behind them. In a country where so many had so little land, it took little ingenuity to convince Hutu peasants that the newcomers would reclaim lands they had left long before and on which Hutu farmers had immediately settled.”(33) 12. From October 1990 onwards, massacres among the Tutsi population took place on a regular basis. The OAU-report says: “On virtually each occasion, they were carefully organised. On each occasion, scores of Tutsi were slaughtered by mobs and militiamen associated with different political parties, sometimes with the involvement of the police and army, incited by the media, directed by local government officials, and encouraged by some national politicians.”(34) At that moment it became clear what would develop into a mass event after 6 April 1994: massacres among the Tutsi population just because of their ethnicity, organised and stimulated by the authorities, executed by Hutu civilians and militiamen who were incited by a poisonous anti Tutsi propaganda and assisted by the police and the army. 13. In June 1991, president Habyarimana, being confronted with the war against the RPF, growing political unrest, a further deteriorating economic situation and heavy international pressure – in the military sense, Rwanda depended on France and in the economic senses on different donor countries – was forced to allow the formation of opposition parties and to start peace negotiations with the RPF. In April 1992, a government was formed consisting of the MRND (in the meantime renamed as the) Mouvement Révolutionnaire National pour la Démocratie et le Développement (MRNDD) and some former opposition parties. In that government, the MRNDD was the largest party, but still a minority. As a reaction to these developments, radical Hutu formed the Coalition pour la Défense de la République (CRD), a party that took an even more extreme position than Habyarimana, at various times opposed him violently and by doing so exercised a large influence on the MRNDD. Despite the criticism, CRD and MRNDD also often worked together.(35) 14. From June 1992, the new government held negotiations with the RPF in Arusha (Tanzania) about peace arrangements and a new division of power in Rwanda. This resulted in sub-agreements with respect to repatriation of refugees, the integration of the armed forces of the FAR and the RPF and, on 4 August 1993, in the signing of a final agreement based on which a broad transit government would be formed by the MRNDD, the former opposition parties and the RPF.(36) These agreements, extracted from Habyarimana, encountered heavy opposition from the Akazu, because in their opinion, execution of the agreements would mean loss of power, and the CRD, and would increase the polarisation in the country. Almost all former opposition parties broke up either into moderate parties or into so-called Hutu Power wings. The latter siding with the increasingly radicalising MRNDD and the CDR. 15. On 23 October 1993, the first Hutu president Melchior Ndandaye, democratically elected shortly before, was killed by Tutsi soldiers of the Burundi army. In the following massacres, an estimated 50.000 Burundians, Hutu as well as Tutsi, were killed and another 1.000.000 Hutus fled the country, many of them to Rwanda. These events contributed anew to the fear among Rwandese Hutu for (domination by) Tutsi, which fear was totally cashed in on by opponents of the division of power, agreed to in Arusha. In a joint statement, President Habyarimana’s own MRNDD and the CDR denounced the Arusha agreements as ‘treason’.(37) The battle between the supporters of Hutu Power and the moderates, who pursued implementation of the Arusha agreements, became more serious and violent.(38) 16. There is overwhelming evidence for the conclusion that from 1990, Hutu extremists incited the Hutu population continuously and systematically to hatred against their Tutsi compatriots.(39) Once again, the Court cites the OAU-report: “A constant barrage of virulent anti-Tutsi hate propaganda began to fill the air. It was designed to be inescapable, and it succeeded. From political rallies, government speeches, newspapers, and a flashy, new radio station, poured vicious, pornographic, inflammatory rhetoric designed to demonise and dehumanise all Tutsi. With the active participation of well-known Hutu insiders, some of them at the university, new media were founded that dramatically escalated the level of anti-Tutsi demagoguery.”(40) 17. Publications in the Kangura paper were infamous. In December 1990, an article was published titled “Appeal on the conscience of Hutus”.

The article opened with the theory that Tutsi extremists, who had invaded Rwanda in October (i.e. the RPF), relied on the support of “infiltrators in the country and the complicity of Tutsi in the country”. Subsequently, all Tutsis were depicted as bloodthirsty and power mad and Hutus were called up to stand firm and be on their guard with regard to the Tutsi enemy “who is among us and waits for the right moment to decimate us”;(41) the article finished with the “Ten commandments for Hutus”, in which Hutus were incited to have no more mercy on Tutsis. Also in many later articles in Kangura, Tutsis - meaning all Tutsis – were depicted as “inyenzi” (cockroaches), “inkotanyi” (members of the RPF), “ibyitso” (accomplices); enemies against whom the Hutus had to defend themselves without showing any mercy.(42) 18. From mid 1993, that same message was disseminated in broadcasts of the radio station Radio-Télévision Libre des Milles Collines (RTLMC), co-founded by some members of the Akazu and rapidly becoming very popular. This radio station was used by the CDR to spread propaganda messages.(43) According to expert Des Forges, this radio station played “the most important role in convincing Rwandese that Tutsis were enemies who had to be eliminated”.(44) 19. Party meetings also gave a stage to carry out the message that all Tutsis were “ibyitso” of the RPF and that Hutus had to defend themselves against them. In a saved speech of a vice president of the MRNDD, Léon Mugesera, to party militants, the following can be heard: “And what are we going to do about those accomplices (ibyitso) here who send their children to the RPF? Why are we waiting and why don’t we rid ourselves of those families? (...) We have to take responsibility ourselves and eliminate this scum... In 1959 we made a fatal mistake by letting them [the Tutsis] get away... They belong in Ethiopia and we can provided a short route back for them by throwing them into Nyabarongo river... I emphasize this point. We have to act now... Eradicate them all!”(45) An announcement of the upcoming genocide 20. One remarkable element in the anti Tutsi propaganda was the continuous warning to Hutu men not to get seduced by Tutsi women. Tutsi women, was the message, were the secret sexual weapon the inkotanyi used to conquer Rwanda and therefore, the first of the above “Ten Commandments” was that every Hutu man who married a Tutsi woman, made her his concubine or hired her as his secretary, was a traitor.(46) 21. After the transition towards a multi party system (see above in paragraph 13), some political parties founded youth groups associated to them. The youth movement of the MRND(D) was called Interahamwe (“those who stand together” or “those who attack together”). These groups assisted in the organisation of party meetings, they took care of publicity and they spread propaganda material. In the strongly polarised and increasingly violent climate, youth groups were often mobilised as a gang of thugs to disturb meetings of rivalling parties and to attack their members. Gradually, the Interahamwe extended their violent actions to attacks on Tutsi civilians, organised by the authorities and executed in collaboration with soldiers.(47) Moreover, from 1992 onwards, the army, which was fully controlled by Hutu extremists, provided military training to the Interahamwe, who also received weapons and ammunition. This way the Interahamwe became an armed militia group that was put into action against political adversaries (moderate Hutus) and Tutsi civilians. The CRD youth movement, Izapuzamugambi ('those who have the same goal' or 'those who have one goal), played a similar role. 22. From October 1990 onwards, political and military leaders started to speak about the necessity of citizen self defence against the possible advancement of the RPF army. Early 1994, a commission of army officers drew up a secret action plan, called “Organisation de l' Auto-Défence Civile”. Central point in that plan was that, in case the armed battle would resurge, the army and the civilian authorities would cooperate with leaders of the MRND and parties allied to it (which also meant its militias(48) in mobilising and armouring the civilians (i.e. the Hutu population). Whether or not within the scope of this plan, during 1993 and 1994 a huge amount of firearms was distributed to the municipalities and in the period between January 1993 and March 1994, 3.385.000 kilograms of machetes were imported, which was by large the double quantity of the preceding years.(49) 23. From times immemorial, from an administrative point of view Rwanda was known for its very efficient administration, its strong hierarchy and its intricate structure. The country was divided in 11 “prefectures”, each headed by a “préfect” who received his instructions from the government (more in particular: the Minister of Interior Affairs). In turn, the préfect gave instructions to his “sub-préfects and burgomasters, who were political leaders as well as administrators in the communes in his préfecture.(50) The burgomasters instructed the “conseillers” of the sector within their municipalities. These “secteurs” were divided in “cellules” (700 to 1000 persons per cellule) each headed by a “chef de cellule”.(51) 24. From early days, Rwanda was known for its very law abiding population.(52) This culture of extreme obedience to the higher authorities, lead to the fact that the Rwandese were used to submissively carry out all orders from above. Especially under the regime of Habyarimana there was strict obedience as to the carrying out of development related activities down to the lowest level of the administrative organisation of the country, the local community.(53) The OAU-report says that some have described this as “a culture of blind obedience”.(54) 6 April - mid July 1994 25. At the beginning of April 1994, the Arusha agreements were still not implemented and president Habyarimana – his country troubled by political violence and economically on the verge of bankruptcy (55) – was under severe international pressure to still accomplish this. On 6 April 1994, he travelled to Dar es Salaam (Tanzania) for a meeting about this with heads of state of the neighbouring countries. When he returned home that same evening, his plane, that just had started its descent to Kigali airport, was shot down by a rocket that was fired from the ground. The plane crashed on the terrain of the presidential palace. All passengers, including president Ntaryamira of Burundi and a number of important assistants of president Habyarimana, were killed. It is still not clear at present who was responsible for the shooting of the plane.(56) 26. What happened next is briefly summarised as follows in the judgement of the Trial Chamber of the ICTR in the so-called 'Media trial'(57): “On 6 April, the plane carrying President Habyarimana was shot down, a crime for which responsibility has not been established. Within hours, killings began. Soldiers and militia began systematically slaughtering Tutsis. The Presidential Guard, backed by militia, murdered government officials and leaders of the political opposition. On 7 April 1994, the RPF renewed combat with government forces. (...) On 9 April 1994, an interim government was sworn in, with Jean Kambanda as Prime Minister. A meeting of prefects took place on 11 April, and on 12 April the Minister of Defence appealed through the radio for Hutu unity, saying partisan interests must be set aside in the battle against the common enemy, the Tutsis. On 16 April, the military chief of staff and the prefect best known for opposing the killings were replaced. This prefect was later executed. Three burgomasters and a number of other officials who sought to stop the killings were also killed, in mid-April or shortly after. In the instructions given to the population, killing was known as “work”, and machetes and firearms were described as “tools”.

In the first days of killing, assailants sought out and killed targeted individuals, Tutsi and Hutu political opponents. Roadblocks were set up to catch Tutsis trying to flee. Subsequently a different strategy was implemented: driving Tutsis out of their homes to churches, schools, or other public sites where they were then massacred in large scale operations. In mid-May the strategy turned to tracking down the last surviving Tutsis, who had successfully hidden in ceilings, holes, or the bush, or who had been protected by their status in the community. Throughout the killing, Tutsi women were often raped, tortured and mutilated before they were killed.” 27. As can be derived from the above, the genocide was no spontaneous eruption of violence, but a massacre, organised by the authorities, on a part of their own population, with the object to exterminate this population Group once and for all. The OAU-report describes this as follows: “(...) A clique of Rwandan Hutu consciously intended to exterminate all Tutsi in the country, specifically including women and children so that no future generations would ever appear. (...)”(58) And: “(...) The Rwandan genocide did not occur by chance. It demanded an overall strategy, scrupulous planning and organisation, control of the levers of government, highly motivated killers, the means to butcher vast numbers of people, the capacity to identify and kill the victims, and tight control of the media to disseminate the right messages both inside and outside the country. This diabolical machine had been created piecemeal in the years after the 1990 invasion, accelerating in the second half of 1993 with the signing of the Arusha accords and the assassination in Burundi by Tutsi soldiers of its democratically-elected Hutu President. In theory at least, everything was ready and waiting when the President's plane went down.”(59) 28. Although preparations for the civilian self defence program had not been finished yet when the battle resurged on 7 April 1994, the guidelines were clear enough to put the process to work: the interim-government, the army and the civilian authorities (the regional and local authorities), political parties, the militia and the media closely worked together as a unit.(60) The interim government (Hutu-power leaders) gave orders to the prefects who, in turn, would transmit those to the burgomasters. These burgomasters instructed the conseillers and chefs de cellules of respectively the secteurs and the cellules, who finally gave the instructions to the population which mobilised their men. (61) In addition, the political leaders used their authority and power to gather their militias and to supply them weapons and to send them to the country there where they were needed. (62) Also the high military sent the gendarmes and the militias in a very efficient way to parts of the country where they were needed. (63) Additionally, members of the armed forces provided military know-how. 29. The propaganda of the government was continued in all severity, also after 6 April 1994. The radio kept on broadcasting calls for hatred against the Tutsi population. Broadcasts from the RTLM were listened to intensely. Radio was also used on a large scale to transmit instructions to the Interahamwe, among others. A remarkable phenomenon in those radio calls was the use of language that was aimed to underline that the country was under siege; therefore, Hutus were called to “protect themselves” by using their “tools” for their “work” against “the accomplices of the enemy”.(64) With respect to the radio broadcasts of the RTLM, the Trial Chamber of the ICTR judged as follows in the 'Media Trial':(65) “486. The Chamber finds that RTLM broadcasts engaged in ethnic stereotyping in a manner that promoted contempt and hatred for the Tutsi population. RTLM broadcasts called on listeners to seek out and take up arms against the enemy. The enemy was identified as the RPF, the Inkotanyi, the Inyenzi, and their accomplices, all of whom were effectively equated with the Tutsi ethnic group by the broadcasts. After 6 April 1994, the virulence and the intensity of RTLM broadcasts propagating ethnic hatred and calling for violence increased. These broadcasts called explicitly for the extermination of the Tutsi ethnic group.” 30. Everywhere in Rwanda road blocks were set up. From both the recent judgement of the Trial Chamber of the ICTR in the Bagosora e.a. case ('Military I'), and the reports written by Des Forges(66) and Clingendael, it appears that a distinction must be made between road blocks set up by the army and other road blocks that were set up by civilian authorities, being civilians with or without the permission of the authorities. The road blocks set up and manned by the army were located close to the frontline/army positions.(67) The other road blocks were the most dangerous and served uniquely to stop fleeing Tutsis and to subsequently eliminate them summarily. The selection of Tutsis was primarily based on identity papers.(68) 31. Numerous Hutus were the willing executioners of the genocidal policy of the authorities. According to expert Des Forges, fear was the biggest motive for common Rwandese to participate in the attacks on Tutsi. A fear that was based on the widespread and incorrect assumption that all Tutsis were supporters of the RPF and would be prepared to support the RPF in its military advance.(69) 32. In the meantime, at the battlefield the fight between the FAR and the RPF ended disastrously for the government army. From its north-eastern basis, the RPF army rapidly conquered large parts of the Rwandese territory. On 4 July, it captured Kigali.(70) Mid July, the opposition of the RAF was broken definitively, the interim government fled the country and the RPF announced a cease-fire. The civil war that had started on 1 October 1990 ended in a total victory for the RPF. The advance of the RPF army in western direction (including the Kibuye prefecture) and towards the South western part of the country was halted temporarily by the presence (as from the end of June) of armed forces, directed by France, in an operation which was ratified by the Security Council of the United Nations and called ‘Opération Turquoise’, which object it was to create a safe zone in that part of Rwanda. From the end of August, after the foreign troops had left, this (last) part of Rwanda also came under the authority of the RPF. 33. In order to answer the question whether Defendant is guilty of war crimes, the Court will, later in this judgement, pay explicit attention to the interrelation between the (course of the) civil war and the genocide and the meaning of it all. The Court already notes here that the Trial Chamber of the ICTR, in its first judgement (the Akayesu case) explicitly came up with the question whether, as contended in some circles, (71) the massacres among the Tutsi population(72) were solely part of the war between the RAF and the RPF. In the paragraphs 127 and 128, the Chamber answered this question as follows: “127. Finally, in response to the question posed earlier in this chapter as to whether the tragic events that took place in Rwanda in 1994 occurred solely within the context of the conflict between the RAF and the RPF, the Chamber replies in the negative, since it holds that the genocide did indeed take place against the Tutsi group, alongside the conflict. The execution of this genocide was probably facilitated by the conflict, in the sense that the fighting against the RPF forces was used as a pretext for the propaganda inciting genocide against the Tutsi, by branding RPF fighters and Tutsi civilians together, through dissemination via the media of the idea that every Tutsi was allegedly an accomplice of the Inkotanyi. Very clearly, once the genocide got under way, the crime became one of the stakes in the conflict between the RPF and the RAF.

In 1994, General Kagame, speaking on behalf of the RPF, declared that a cease fire could possibly not be implemented until the massacre of civilians by the government forces had stopped. 128. In conclusion, it should be stressed that although the genocide against the Tutsi occurred concomitantly with the above-mentioned conflict, it was, evidently, fundamentally different from the conflict. The accused himself stated during his initial appearance before the Chamber, when recounting a conversation he had with one RAF officer and Silas Kubicaana, a leader of the Interahamwe, that the acts perpetrated by the Interahamwe against Tutsi civilians were not considered by the RAF officer to be a way to help the government armed forces in the conflict with the RPF. Note is also taken of the testimony of witness KK which is in the same vein. This witness told the Chamber that while she and the children were taken away, an RAF soldier allegedly told persons who were persecuting her that “instead of going to confront the Inkotanyi at the war front, you are killing children, although children know nothing; they have never done politics”. The Chamber's opinion is that the genocide was organised and planned not only by members of the RAF, but also by the political forces who were behind the “Hutu-power”, that it was executed essentially by civilians including the armed militia and even ordinary citizens, and above all, that the majority of the Tutsi victims were non-combatants, including thousands of women and children, even foetuses. The fact that the genocide took place while the RAF was in conflict with the RPF, can in no way be considered as an exculpatory circumstance for it.”(73) 34. The OAU-report writes in this context: “For three weeks, the conspirators attempted to hide the rural genocide from the outside world. Shrewd manipulators of the media, the Hutu Power leaders blamed the carnage on civil war, which confused foreign correspondents who knew little about the real situation.”(74) 35. About this matter, Des Forges remarked that from the beginning, the war was intertwined with the genocide because government officials described the enemy foremost in ethnic terms rather than in pure political or military terms.(75) In this context, the Clingendael report refers to a politicide: during the initial phase of the genocide, with the aid of lists, the entire political opposition was murdered, regardless of their ethnic background. Since this materialised at the time of the battle between the advancing rebel army of the RPF and the government army FAR, for a considerable time, the killings could be presented as 'unmeant' side effects of the war. For months, this mystification of the truth was presented as a cover by the interim government to the outside world.(76) 36. The rapid advance of the RPF, as described earlier in paragraph 32 and the ensuing total collapse of the Hutu regime, forced millions of Hutu to flee; approximately 2 million of them to the neighbouring countries, many to Zaire.(77) One of them was Joseph M. Chapter 4: The Defendant 1. Defendant was born on 1 July 1968 in [place of birth] (Rwanda) as the son of Eli Murakaza and [F1]. At a very early age he moved to Mugonero in the Kibuye préfecture in the western part of Rwanda. He has one brother,(Obed Ruzindana) and eight sisters ([F2], [F3], [F4], [F5], [F6], [F7], [F8] and [F9]). Originally, his father was the burgomaster of [place of birth], but after an accident, in which he became handicapped, he started a (trading) business in Mugonero. It is a Hutu family. 2. For a part, the Defendant went to primary school at the Seventh Day Adventists complex in Mugonero and after that he went to a boarding school in Kigali for his secondary education. After this he studied building engineering for three years in Bari (Italy). 3. At the end of 1992 Defendant returned to Rwanda and went to work for his father’s company for which he alternately stayed in Mugonero and Kigali. The business of Elie Murakaza included a shop in the centre of Mugonero, a coffee export company in Kigali and coffee and banana plantations around Mugonero. The shop sold food stuffs, household effects and building material. Defendant served on the clients of the shop in Mugonero, bought the shop’s stock and, together with his father, inspected the plantations. 4. The Murakaza family was very prosperous and was highly respected by the population of Mugonero and its vicinity. 5. Mid July 1994, Defendant fled to Kenya, via Zaire. During that period, his brother and some of his sisters also fled to a foreign country. On 20 September 1996, Obed Ruzindana was arrested in Nairobi (Kenya), in presence of [Defendant], on the suspicion of having been involved in the genocide. On 21 May 1999, Ruzindana was convicted by the Trial Chamber of the ICTR to 25 years imprisonment for genocide(78), which judgement was confirmed by the Appeals Chamber.(79). At this moment, he is serving his sentence in Mali. One of Defendant’s sisters, [F2], formerly a Judge in Kigali, was convicted by the District Court of Gitarama (Rwanda) to the death penalty for crimes committed during the genocide. Later on, this punishment was converted into life imprisonment. The parents of [the Defendant] served time in prison on charges of involvement in the genocide. They were both released, his father for lack of evidence and his mother (temporarily) because of illness. After his detention, Elie Murakaza passed away. [F1] has left Rwanda. 6. At present, [F8], [F7] and [F3] are staying in Finland. [F6] and [F4] live with their mother in France and [F5] lives in the United States of America. [F9] is staying in Congo as a refugee. Chapter 5: The investigation Introduction 1. A criminal case such as this one is no routine business for a Dutch Judge. Not only does he have to judge crimes committed during the genocide in Rwanda in 1994, statements of witnesses from a foreign country far away and statements made before foreign organisations, but also the period of time during which the court hearing took place was very long in comparison with other cases. The court started hearings on 21 November 2006, which were closed on 9 March 2008. 13 pro forma court sessions took place and the actual trial lasted 21 days in court. From the day of his arrest, the Defendant spent approximately 2 years and seven months in pre-trial detention before judgement was passed on him. 2. Because of the special nature of this case, the complexity of the investigation it involved and the time of the legal proceedings, the Court has decided to report on and to account for the investigation which was carried out in this case in its judgement and not only in the official reports. Primarily, the Court will keep to the chronological order of the investigation. With respect to the actual trial, the ranging of the chapter will be thematically. Strong criticism came from the Defence Counsel – especially against the Prosecution – with regard to the quality of the investigation. In this chapter, the Court will deal with this criticism. Course of the proceedings IND proceedings 3. On 11 November 1998, Defendant travelled with a false Ugandan passport and under a false name [false name] from Kenya to the Netherlands. Upon arrival in the Netherlands, he applied for asylum and he was interviewed by the Immigration and Naturalisation Service (IND).(80) On 1 July 1999, another interview was held and Defendant stated then – rendered briefly – as follows.(81) In July 1994, the Defendant fled his domicile Mugonero because the RPF (see Chapter 3) massacred the Hutus. He was a sympathiser of the MRND and expected - being a Hutu – that upon his return to Rwanda he would be killed by the RPF. Defendant also feared for his life because he had acted as a defence witness at the ICTR in the case against his brother, Obed Ruzindana.

Besides, he was afraid to be arrested by the RPF since this had also happened with family members of his (his sister, brother and parents). Finally, he expected to be prosecuted by the regime because he is an academic. This is what the Defendant said to the IND. 4. On 12 August 1999, the Secretary of Justice turned down the Application of Defendant for admission into the Netherlands and a residence permit because there was no reason whatsoever to assume that the Defendant had good reason to fear prosecution in Rwanda in the sense of refugee law.(82) Defendant submitted a notice of objection against this decision.(83) The Court is not aware of any decision on this objection and if there is, when it was taken and what it consists of. However, the case file mentions that several years later, on 8 February 2005, the (authorised representative of) Defendant was informed about the fact that his file for processing his application had been transferred to “Unit 1F” of the IND, since there were indications that article 1F of the Convention Relating to the Status of Refugees (84) would be applicable to his application for asylum.(85) 5. On 14 February 2006, the Minister of Foreign Affairs wrote an individual official report with regard to the Defendant.(86) In this report, the following is stated, among others: 2. (...) it is clear that this person was in charge at a road block which was set up 50 metres from his home in Mugonero and that he escorted a group of soldiers at their departure for the attacks and the men-hunt. There are numerous witness statements against this person and his brother mentioning that at the road block, they decided about life and death of other people. 3. There are strong reasons to assume that this person was involved in the massacres in Rwanda in 1994. There are a number of charges uttered against him, being: (...) Killed a man, named Murego, with his own hands after he became at odds with this person; Ordered to kill Tutsis in an ambulance in the vicinity of the road block in Mugonero. 5. The person involved has been indicted directly in the Kibuye region by the Gacaca of Gabiro, Mahembe district, Rusenye area, for his participation in the genocide. 6. To the best of our knowledge, no warrant has been issued against this person, but it is very likely that this will happen. Additional information: (...) Almost all interviewed sources were certain about the fact that this person participated in the massacre in Mugonero. Investigation carried out by the National Criminal Investigation Service (NCIS) prior to the arrest of the Defendant 6. On 18 May 2006, the IND transferred Defendant’s file to the National Office of the Public Prosecution Service (Prosecution).(87) Subsequently, on 23 May 2006, this Service handed over the file to the NCIS, International Crimes Team (ICT) and ordered that the ICT initiate an investigation into possible indictable offences by the Defendant. The NCIS consulted public sources, including via the internet, (88) and wire tapped the telecommunication services that were used by Defendant.(89) Contact between the Public Prosecution Service and the Rwandese Parquet Général 7. After this investigation, the Prosecution consulted the Parquet Général in Rwanda. At the Parquet Général Defendant appeared to be known in relation to an investigation by the Provincial Parquet of Cyangugu (south west Rwanda) in 1999. This investigation did not include an arrest warrant because Defendant was staying abroad and the Parquet Général concentrated on the prosecution and trial of already arrested accused in Rwanda. On 14 June 2006, the Prosecution issued a first request for legal assistance to the Rwandese authorities and requested their permission to interview witnesses in Rwanda.(90) In connection with this request for legal assistance the Rwandese authorities, at their own initiative, heard the witnesses from the so-called 'Cyangugu file' anew.(91) Continuation of the investigation carried out by the NCIS. 8. In the period between 22 July and 5 August 2006, the NCIS, with permission granted by the Rwandese authorities, heard 12 witnesses.(92) Eight of them appeared in the 'Cyangugu file' and the other four were traced by the police in connection with the statements of these witnesses.(93) The examination of the witnesses by the NCIS in Rwanda gave cause to the hearing of witnesses outside of Rwanda. For instance: witness [witness 7], who appeared in the 'Cyangugu file', testified about a German doctor and his family who allegedly were threatened to be killed “at the road block of Defendant”. (94) Via internet the name and the address of this German doctor were found - [witness 4] – and subsequently the doctor and his wife were traced and heard as witnesses (see also chapter 8: crimes against the family) [witnesses 3 and 4]). Arrest of the Defendant 9. With the permission of the Public Prosecutor, the Defendant was arrested on 7 August 2006 in Amsterdam on suspicion of having committed war crimes.(95) Right after the arrest, the Examining Judge carried out a search for the purpose of seizure in the house where Defendant was arrested and in his own house. In the house of Defendant, the following goods were found and seized: various articles, DVD’s and books about the genocide in Rwanda, a computer containing a large number of email messages (to and from persons who are suspected of involvement in the genocide), the Rwandese passport of the Defendant and three lists of genocide accused (not including the name [Defendant] or Joseph Murakaza). Contact between the Public Prosecution Service and the ICTR 10. In a letter dated 11 August 2006, the Public Prosecution Service made mention of the arrest of Defendant to the Prosecutor of the ICTR, S. Rapp, and asked him to indicate his wishes with respect to the prosecution of the Defendant. Subsequently, during the months of August and September 2006 there were contacts between the Prosecution and the ICTR Prosecutor. During these contacts it was discussed that the ICTR, in view of resolution 1503 (2003) and resolution 1534 (2004) of the UN Security Council, would have to finish off matters and would be unable to try the Defendant. Extradition of the Defendant to Rwanda was no option either. The Public Prosecution Service also indicated to the ICTR Prosecutor that it was not possible to try the Defendant for genocide with respect to the afore mentioned unlawful conduct since Dutch law, with respect to this serious offence, does not have universal jurisdiction regarding facts that were committed prior to October 2003. In addition, the possibilities that the Dutch law offers to take over prosecution and the possibilities of the ICTR to transfer prosecution to national organisations have already been discussed. The Public Prosecution Service and the ICTR Prosecutor agreed that a so-called `prosecutor's referral´ would be the right way to transfer prosecution for genocide to the Netherlands. This resulted in a letter from the ICTR Prosecutor, dated 3 October 2006, to the Ambassador of the Netherlands in Dar es Salaam, Tanzania, with the request to redirect the appendix containing the “request to accept transfer for national prosecution from the Prosecutor of the International Criminal Tribunal for Rwanda to the Minister of Justice of the Kingdom of the Netherlands” of 29 September 2006. On 27 November 2006, the Minister of Justice granted this request which refers to the 'prosecution for the crimes of genocide and complicity in genocide', and he authorised the Public Prosecutor at the Dutch Public Prosecution Service to take over the prosecution of Defendant.(96) Investigation by the NCIS after the arrest of the Defendant 11.

The Prosecution asked the Finnish authorities to hear three sisters of Defendant who live in Finland.(97) The Finnish National Bureau of Investigation answered that, in view of their family relationship with Defendant, these three witnesses had indicated that they did not want to testify before the Dutch authorities.(98) Subsequently, the Prosecution requested the French authorities to hear two other sisters and Defendant’s mother.(99) These three persons made a statement before the NCIS. Furthermore, with the permission of the ICTR, the NCIS travelled to Arusha (Tanzania) and Mali to interview nine witnesses who were in detention either as accused or as convicts of the Tribunal, including Defendant’s brother.(100) These witnesses were heard by order of the Prosecution because they could possibly render exculpatory statements for the Defendant.(101) The brother of Defendant, Obed Ruzindana, refused to make a statement.(102) 12. After the Defendant’s arrest, the NCIS travelled five times to Rwanda. During these trips, witnesses were heard, crime scenes were visited and photographed and measurements taken. In addition the NCIS interviewed a witness in France(103), a witness in Switzerland(104) and two witnesses in Finland.(105) Preliminary judicial inquiry I 13. On 12 October 2006, at the request of the Public Prosecutor the Examining Judge initiated a preliminary inquiry with respect to the case with case number 09/750009-06 (hereafter: GVO I).(106) The charges on the request involved, briefly represented, crimes against the passengers of the ambulance and against the family [witnesses 3 and 4] and crimes committed during the attack on the Seventh Day Adventists complex. These offences were principally charged as war crimes and alternatively as torture. 14. On 7 November 2006, the Examining Judge appointed Mrs. dr. A. des Forges as expert in order to initiate an inquiry to get answers to the different questions formulated by the Examining Judge about the situation in Rwanda prior to and during the genocide in the period between April and July 1994.(107) The expert report written by A. des Forges was received on 20 November 2006. 15. In the period between 11 and 18 November 2006, the Examining Judge, on his own initiative and in the presence of the Defence Counsel and the Prosecutor, heard three witnesses in Rwanda within the scope of this preliminary inquiry. First Pro Forma hearing of the Court 16. The Defendant was summoned to appear in Court on 21 November 2006. The charges on the indictment were the same as on the order to initiate the GVO I (see above). This hearing had a pro forma nature. The Defendant and his Counsel were present. At that time, the Defence Counsel did not give an indication of his requirements as to the investigation. The Court gave the Examining Judge the order to hear the following persons as witnesses: [witness 1], [witness 8], [witness 10], [witness 7] and [witness 15] – witnesses of which the Examining Judge had already decided ex officio to hear them – and to perform all investigative activities that she deemed necessary. Preliminary inquiry II 17. On 5 January 2007, at the request of the Public Prosecutor the Examining Judge initiated a second preliminary inquiry (hereafter: GVO II) with respect to the charges that were mentioned on the second indictment. These charges involved the rape and murder of a number of women and the crimes against the grand children [name witness 5]. In addition, in this indictment all charged facts, also those on the first indictment, are also charged as genocide. In her decision dated 11 January 2007, the Examining Judge rejected this request in so far as the alleged criminal acts by Defendant in the indictment qualified as genocide, but allowed the request for the remaining part.(108) Pro Forma hearings 18. On 12 February 2007, a second Pro Forma hearing took place. The Defendant and his Counsel were not present then. Despite a written request by the Court to appear at the hearing on 5 March 2007, in order to give an indication as to the requirements with respect to the investigation, neither the Counsel of the Defendant, nor Defendant himself, appeared at the hearing. During that hearing, the Court instructed the Examining Judge to a) hear as witnesses (for the Prosecution)[witness 9], [witness 14] and [witness 20], to b) perform an on-site visit at the Seventh Day Adventists Complex and to c) hear 18 defence witnesses in Congo-Brazzaville and Cameroun (the Counsel had given notice of these witnesses to the Examining Judge). First by letter of 10 May 2007, the Defence Counsel indicated his requirements regarding the investigation to the Court. Among other matters, the Counsel requested then to add the statements that had been made by the witnesses heard so far before other organisations – as witnesses or Defendants – to the criminal case file. These involved statements made before the gacaca, the judicial authorities in Rwanda, the ICTR and the judicial authorities in the United States of America (hereafter: US). The Counsel explained the reason why he wanted to have these statements added to the criminal file: this way, the consistency of the subsequent statements given by a certain witness before different authorities could be tested. 19. The Counsel’s requests regarding the investigation were dealt with extensively during the hearings on 11, 16 and 21 May 2007, in presence of the Counsel and the Defendant. Before this hearing, the Prosecution issued a second indictment. The charges in this indictment were the same as on the request to initiate the GVO II (see above). During the hearing of 16 May 2007, the Prosecution agreed with the request of the Counsel to add statements made by witnesses elsewhere to the criminal file and informed the Counsel that requests for legal assistance for this purpose had already been prepared. In addition, during these Pro Forma hearings, the Prosecution and the Counsel took positions (partly written) concerning the question whether the Court had jurisdiction with respect to the crime of genocide. The Prosecution as well as the Defence replied to written questions asked by the Court. 20. During the subsequent Pro Forma hearings - 24 July, 8 October and 20 December 2007, 18 February, 23 April, 11 July and 5 September 2008 – the progress of the investigation was discussed, every time in presence of the Counsel and the Defendant. Investigation carried out by the Examining Judge at the instruction of the Court 21. On 19 March 2007, the Examining Judge conducted the on-site visit at the Seventh Day Adventists Complex, the church near the 'École primaire de Ngoma', the two bridges near Mugonero and the market square in Mugonero. The Public Prosecutor, the Counsel of the Defendant and the NCIS were present during these on-site visits. 22. In May 2007, the Examining Judge travelled to Cameroun to hear seven (out of 18 indicated by Counsel) witnesses. Three witnesses were heard.(109) The other four witnesses did not respond to the call to be heard by the Examining Judge.(110) During the period between May and June 2007, the Examining Judge heard four witnesses for the defence in Brazzaville (Congo).(111) The other witnesses, who were to be heard in Congo, did not appear.(112) 23. In total, the Examining Judge made seven rogatory trips to Rwanda to hear witnesses on the instruction of the Court. In addition, the Examining Judge heard a witness in Switzerland,(113), a witness in France(114), and three witnesses in the Netherlands.(115) 24. During the Pro Forma hearing on 24 July 2007, the Court informed the parties to the proceedings that, following the expert report written by A. des Forges – through the intermediary of the Examining Judge – would put some additional questions to the expert. The Court also provided the Prosecution and Counsel the opportunity to present additional questions to the expert.

The Court received the answers of the expert to the questions of the Court, the Public Prosecutor and the Defence Counsel in December 2007.(116) 25. The Counsel requested the Court to hear one of the officers [reporting officer 1], of the NCIS in Court concerning the cause of the investigation, the manner in which the investigation was held and the way in which the NCIS ‘tracked down’ certain witnesses. On 18 February 2008, the Court rejected the request to hear the above mentioned [reporting officer 1], but it provided the opportunity to the Counsel to submit written questions – through the intermediary of the Examining Judge – to the officer. Subsequently, [reporting officer 1] answered the questions submitted by Counsel in writing. General remarks with respect to the witness examinations 26. The NCIS and the Examining Judge heard a large number of witnesses. With regard to the procedure around witness examinations, the Court makes the following remarks. Compensations, remunerations and transportation 27. On request of the Prosecution, employees of the Parquet Général traced the witnesses who were heard by the NCIS and the Examining Judge in Rwanda and escorted them to Kigali for examination.(117) This choice was made in connection with the safety of the witnesses; if the Prosecution would have sent out a couple of white Dutch detectives to look for witnesses in order to interview them, it would have been quite clear in the area who was acting as a witness in this case.(118) The witnesses who were heard by the NCIS did not receive a payment for their statements; however, the NCIS provided food and beverages on the day(s) of examination. The NCIS refunded the costs for travel and residence of the witnesses to the Parquet Général. These costs have been justified to the NCIS by an administrative employee of the Parquet Général who had been assigned by the Procurator General.(119) During the last trip of the NCIS, five witnesses requested to be eligible for compensation because of loss of income as a consequence of the witness examination. The Parquet Général awarded the requested compensation to the witnesses. Upon consultation with the Prosecutor, the NCIS refunded those costs (RF 7000 in total) to the Parquet Général.(120) The witnesses for the defence who were heard by the Examining Judge in Congo and Cameroun only received a refund for their costs. The amount of this refund was established in accordance with calculations used by the UN criminal tribunals. The witnesses in Congo received € 16 each and the witnesses in Cameroun received € 40. 28. During the rogatory trips of 26 March and 3 April 2008, the Examining Judge heard three witnesses. These examinations lasted several days. The witnesses received a compensation for each day, which amount had been established by the Chief Prosecutor of the Parquet Général at (roughly) € 7.(121) The same applies to the witnesses who were heard by the Examining Judge in December 2008 and in January 2009. [Witness 18], heard by the Examining Judge in Switzerland, received compensation for the costs he had made in accordance with Swiss rules and regulations. Psychologist & social worker 29. No psychologist was involved during the examinations carried out by the NCIS. During some interviews of the Examining Judge, a trauma psychologist was present to provide support to those witnesses who needed this and to render advice to the Examining Judge when asked for. For the second rogatory trip to Rwanda, the Examining Judge engaged a Rwandese social worker who was available to the witnesses before and after the examinations and during breaks.(122) During the examinations of the witnesses for the defence, no psychologist and/or social worker was present. Contacts by telephone between Counsel and Defendant 30. On 11 October 2006, the Examining Judge instructed the police, based on article 177 CP, to find out whether video- and/or audio connection could be established between the location of the (witness)examinations in Rwanda and the detention centre where the Defendant stayed at that moment, in order to provide the opportunity to the Defendant to be ‘present’ during the examinations of the witnesses.(123) This did not appear to be possible.(124) Subsequently, the Examining Judge provided the opportunity to the Defence Counsel to have contact by telephone with his client, during the breaks of each interview, by means of a telephone made available to the Counsel by the Examining Judge. Influencing and disappearance of witnesses 31. As mentioned above, during the hearing of 21 November 2006 the Court gave the instruction to the Examining Judge to hear, among others, witnesses [witness 7] and [witness 15]. The NCIS and the Examining Judge have not been able to hear these witnesses, because they could not be found. At the time of the second Pro Forma hearing of 12 February 2007, the Prosecution put forward that there were indications that the Defendant and/or his brother tried to influence witnesses and that the two said witnesses had ‘disappeared’. Prior to this hearing, the Prosecution made documents available to the Court and the Defence which contained indications to that respect. 32. In the course of the investigation, it became clear that great pressure had been exercised on a number of witnesses not to tell the truth. Based on facts and circumstances detailed hereafter, the Court has established that the family of the Defendant was involved in the disappearance of the two witnesses mentioned above and the pressure exercised on other witnesses and that Defendant was informed about this (afterwards) by his sister. 33. The relevant facts and circumstances are as follows. 34. In November 2006, the witness [witness 1], witness in the case concerning the serious offences against the passengers of the ambulance, testified by telephone to the NCIS that there were rumours ‘in the village’ – the Court assumes that he means Mugonero - that [witness 7] and [witness 15] had fled to a foreign country because they did not want to testify anymore in the case against Defendant. [Witness 1] had heard that the group around [Defendant] was involved since his brother, Obed Ruzindana, had contacted people in the area by telephone. [Witness 1] stated before the NCIS that he suspected that [witness 7] and [witness 15] had been taken abroad to make sure that they would “withdraw” their statements.(125) 35. In addition, [witness 1] stated that a month earlier, he had been approached by [witness 21] who told him that the brother of Defendant wanted him out of the country so he could not testify anymore. After [witness 1] refused to cooperate, Obed Ruzindana contacted [name] – i.e. [witness 28] - (126), a friend of [witness 1]. Obed Ruzindana gave [witness 28] the instruction to “kindly ask [witness 1] to change his statement”: [witness 1] should say that the ambulance had to turn around by order of the soldiers who collaborated with Ruzindana instead of at the instruction of Joseph. [Witness 28] transmitted the request of Obed Ruzindana to [witness 1], but he also advised [witness 1] to contact the Rwandese authorities because he was afraid of Obed Ruzindana.(127) [Witness 1] did not feel safe because he had not agreed to Obed Ruzindana’s proposition and that is why he got in touch with M. Kagiraneza, Prosecutor of the Parquet Général in Kigali.(128) 36. In November 2006, the NCIS also heard [witness 21]. He stated that he knew Obed Ruzindana via [F 10], who lived in the same village. [F 10] is the son of [F 3] and therefore a cousin of the Defendant. [F 10] had contacted him because he wanted to know what the people had said about Defendant during the gacaca. [Witness 21] told [F 10] that [witness 1] had made a statement about an incident at a barrier.

Shortly thereafter, Obed Ruzindana contacted [witness 21] with the request to approach [witness 1] and to ask him whether he actually had made such a statement and whether he would be willing to withdraw the statement. If [witness 1] would be willing to do that, Obed Ruzindana would help him to “relocate”. [Witness 21] did approach [witness 1] who told him that he was unable to change his statement and that [witness 7] was the one who had made a statement about [the involvement of the Defendant] in a massacre in Mugonero.(129) 37. [Witness 21] also stated that he, at the request of Obed Ruzindana, visited [witness 7], after which [witness 7] and Obed Ruzindana had a telephone conversation with the mobile telephone of [witness 21]. He could not hear very well what was being said, but he heard [witness 7] say the following to Obed Ruzindana: “Yes, that is okay, no problem”. After this, [witness 21] had not seen [witness 7] anymore.(130) 38. Historical data recovered from the GSM of [witness 21] show that in the period from September up to and including November 2006 there have been incoming and outgoing telephone calls with Obed Ruzindana.(131) 39. In March 2007. [witness 29], the partner of witness [witness 7], and [witness 30], the wife of witness [witness 15] confirmed to the NCIS that their husbands had disappeared since September 2006.(132) [Witness 29] stated additionally that her husband had told her that he would be going away, just like [F 10] (the cousin of Obed Ruzindana and Defendant).(133) These witnesses could not be traced.(134) 40. From wiretapped conversations the following appears: On 3 January 2007, Defendant talked to his sister, [F3]. During this conversation she told Defendant that she had recently talked to someone who had told her the following: “that ambulance driver was the meanest one”. Upon this, Defendant asked his sister who the ambulance driver was. [F3] answered: “You know we are talking about three people... whom we knew beforehand... those two were able to escape and when they approached the third one, this person told this story to the authorities... he had been approached to flee as well, but he refused to cooperate... and he told it... and the person who had given the telephone number was also terrorised and in the end he told everything... and the person who helped them flee the country was supposedly murdered... in any case, he cannot be traced anymore”.(135) 41. During a conversation between the Defendant and his brother, Obed Ruzindana, on 7 January 2007, the following excerpt can be overheard: Defendant: For the remaining part... I will be informed about what was said a couple of days ago. Ruzindana: That is the way it goes, will those people in Arusha show you everything? Defendant: Everything... Everything... I already know the names... and shortly I will have all kinds of information... everything they...[B3] and others have told. Ruzindana: These [B3]... I know them all. Defendant: I will have all this information tomorrow. Ruzindana: Whether or not the statement is incriminating or exculpatory? Defendant: Everything... I know them all. Ruzindana: A couple of days ago they also heard 5 other people in Rwanda ... among whom the person who stole the goods... and he also testified... I will get all the information tomorrow. Defendant: I will have everything tomorrow.(136) 42. Based on the above, it has become apparent that, in early January 2007, both [F3] and Obed Ruzindana, knew about (in any case part of the contents of) the statements which had been rendered by various witnesses against the Defendant until then, and the fact that still more witnesses were to be heard. Furthermore, it has been established that [witness 21] and [witness 28] were approached by the brother of Defendant and requested to convince other witnesses to adjust their statements in favour of the Defendant. For this purpose promises were made in exchange for the adjustment of the statements. 43. Of all witnesses about whom it is clear that they had been approached, only one witness stuck to his statement ([witness 1]); the other two witnesses ([witness 7] and [witness 15]) disappeared and therefore could not be heard by the NCIS and the Examining Judge. During the hearing, Defendant stated that he did not discuss the proceedings substantially with his family.(137) The opposite appears from the above. 44. The Court considers this procedure, i.e. the influencing and disappearance of witnesses extremely shocking and alarming. 45. From statements by other witnesses in the case file, such as [witness 8](138), [witness 22](139) and [witness 17](140), it appears that the fear for the family of the Defendant, in particular for Obed Ruzindana, is deeply rooted. Obtaining ‘foreign documents’ General 46. As mentioned above, Counsel has requested to add statements to the criminal file which already had been rendered by witnesses before other organisations, being statements before the gacaca, the judicial authorities in Rwanda, the ICTR and the judicial authorities in the United States of America (hereafter: US) and from the start, the Prosecution made it clear that it would make a serious effort to obtain those statements. In the course of the investigation, statements were added to the file which had been rendered by witnesses in this case before investigators and/or judges of the ICTR, the US and Canadian authorities, and the gacaca. The perseverance it took the Prosecution to obtain these different statements and the time it took, is illustrated by the following. Documents from the ICTR 47. At different moments in time during the criminal proceedings, the ICTR made statements available which witnesses had rendered before investigators and/or judges of that Tribunal in their capacity of accused or witness. The Prosecution encountered the problem that it was not clear from the beginning to the ICTR that the Prosecution wanted to submit the statements in public criminal proceedings in the Netherlands. On 21 December 2007, the ICTR Prosecutor filed a motion to the ICTR Trial Chamber to accomplish that the statements be made available to the Dutch Prosecution Service (disclosure).(141) On 4 March 2008, the ICTR Trial Chamber decided that these statements could indeed be made available, but that the protective measures would still have to be applied mutatis mutandis in any proceedings before judicial authorities in the Netherlands.(142) Therefore it was not allowed that the Court would read from the statements in a public hearing or would include them as evidence in the judgement.(143) After consultation with the Prosecution, the ICTR Prosecutor requested the ICTR Trial Chamber on 17 July 2008 to lift these protective measures.(144) The NCIS asked all witnesses involved individually for their permission to lift the protective measures that were in force for them. They all gave their permission. On 13 August 2008, the Trial Chamber subsequently lifted all protective measures, making it possible to use the statements from that moment onwards in a public trial in the Netherlands.(145) Prior to the Pro Forma hearing of 5 September 2008, the Prosecution added five document files to the case file containing witness statements from witnesses for whom the protective measures were still in force. Already in July 2008, the Prosecution had made statements of witnesses, who did not fall under the protective measures, available to the Court and the Defence. 48. Shortly before the beginning of the trial, the Defence Counsel submitted a witness statement to the Court from witness [witness 8] that was rendered before ICTR investigators.

Subsequently, the Court added this statement to the file.(146) During the trial the Prosecution added three more witness statements to the file which had been rendered by witness [witness 24] before ICTR investigators.(147) Documents from the United States of America and Canada 49. The Prosecution sent two requests for legal assistance to the U.S. which included the request to supply the statements rendered by three witnesses in the case against Enos Kagabe. In first instance the Prosecution received the statements which two of the three(148) witnesses had rendered before US police officers in Rwanda. However, it appeared that these witnesses had also been heard during a hearing in the U.S. The recording of a testimony during a hearing is represented in so-called transcripts. These are verbatim recordings of questions and answers during the hearing. Subsequently, the Prosecution requested these transcripts from the US judicial authorities. On 20 December 2007, the U.S. contact officer of the Ministry of Justice had received the case file. If transcripts had been made available, they should be included in this case file. During the Pro Forma hearing on 23 April 2008, it was clear that the contact officer had indeed found the transcripts but that he still awaited permission to transfer these documents to the Netherlands. At that moment the Prosecution had no clue as to the date on which this permission would be granted. 50. During the Pro Forma hearing of 11 July 2008, the Prosecution announced that the statements of two witnesses from the U.S. had been received by the National Office of the Public Prosecution Service, but that these statements appeared to be incomplete. On enquiry it turned out that part of these statements had been possibly destroyed during a flood and that the statement of the third witness had been entirely destroyed during this flood. However, during trial the Prosecution announced that part of the statements had 'surfaced', but that the US authorities had objected to the use of these documents in a Dutch trial. The U.S. authorities adopted the standpoint that the already forwarded statements had been forwarded by mistake.(149) After oral pleadings by the Counsel, the Prosecution received permission from the US authorities after all, and the transcripts provided by the US authorities were added to the case file.(150) 51. With respect to the statements which had been rendered in this case by witnesses in Canada, the Court received the statement of one witness. During the Pro Forma hearing on 5 September 2008, it became apparent that the Canadian authorities refused to submit the statement of the second witness, since this could harm the Canadian investigation. Apparently, the first statement was supplied by mistake by the Canadian authorities. Documents from the gacaca 52. In 1996, a law was enacted in Rwanda regulating the prosecution of persons who had been accused of genocide at a national level.(151) Early 2000, approximately 2.500 persons had been tried by the courts in Rwanda and another 120.000 people waited their trial in overcrowded prisons.(152) In 2000, the authorities regenerated the traditional court, the gacaca, to lift the pressure off the national Courts.(153) A gacaca is a traditional form of dispute settlement in the community and the word literally means 'lawn' or 'grass' and refers to the fact that parties and members of the gacaca were actually sitting on the grass during the proceedings. 53. Every gacaca is formed by a General Assembly, consisting of all members of the community. From this group the General Assembly elects nine judges and five deputies. The judgement of a gacaca court may be contested by a gacaca court of appeal. The gacaca operates in two phases: in the first phase, statements are collected from both the perpetrators and the victims. In the second phase, the accused are divided into different categories and brought to trial. Those categories depend on the seriousness of the crime. 54. On 9 July 2007, the Prosecution sent a request for legal assistance to Rwanda in order to obtain the gacaca testimonies of 14 witnesses.(154) In the period between 31 July 2007 and 15 August 2007, the NCIS stayed in Rwanda for this purpose. During this investigation, the NCIS received various gacaca-cahiers from the Rwandese authorities. Most of the time, the gacaca testimonies are written by hand in continuing cahiers or files.(155) The documents included charges against Defendant before the gacaca of the Uwingabo, Karongi region(156) and before the gacaca of the Cyanya secteur and Gitovu, Karongi region(157), and a conviction of Defendant to 15 years imprisonment before the gacaca in the Gishyita secteur, Karongi region.(158) In the latter document, Defendant is referred to as a 'category 1' Defendant, i.e. belonging to the heaviest category of persons accused of genocide. 55. During the Pro Forma hearing of 18 February 2008, the Counsel indicated that – as far as he could see – at least three gacaca testimonies were lacking in the file and he requested the Prosecution to add these to the file as yet. The Prosecution promised to do this. Furthermore, following the Pro Forma hearing of 23 April 2008, the Prosecution promised that it would instruct the NCIS to carry out an additional investigation into possible gacaca testimonies in Mugozi. During that hearing, the Prosecution asked the attention of the Court and the Defence for the difficulties they encountered in their search for gacaca testimonies. In fact, there is no central registration system for gacaca testimonies which are written by hand and not stored under a certain name. Every testimony must be studied one after the other “in hopes of recognizing the names of the witnesses and/or Defendant between the piles of paper”. In March and May 2008, the NCIS received additional gacaca documents.(159) On 16 May 2008, the NCIS went to the office of the gacaca in Mugozi, Kibingo, in order to obtain the gacaca testimonies of three witnesses. Once at that location, it appeared that the administration and storage system of the witness statements were of such a nature, that looking for names would be a very labour-intensive action. Since it was impossible to search the administration within such limited time, in consultation with the Prosecution it was decided to call off the search.(160) 56. During the trial it appeared that the dates on the gacaca testimonies were rather unclear. Many testimonies did not carry a date of rendering. As a consequence, the NCIS drew up an additional official report containing some indications for the Court and the parties to the proceedings to get some idea of the dates of these testimonies.(161) The Trial 57. The trial could not start earlier than October 2008 because, until that time, a large number of foreign statements were still ‘in the pipeline’ and consequently the file was not yet complete. The postponement of the trial until October 2008 had no relation to the expected judgement of the Supreme Court concerning the District Court’s jurisdiction on the genocide crimes in this criminal case. That judgement was rendered on 21 October 2008, shortly after the beginning of the trial. As already mentioned, the Supreme Court confirmed what the Court had decided on 24 July 2007, i.e. that the Dutch Criminal Court Judge had no jurisdiction in so far as the alleged crimes concerned genocide.(162) As a matter of fact, the Court had urged the president of the Supreme Court, by way of a written request, to hear the case with priority, in view of the upcoming trial. The president of the Supreme Court granted this request. 58. The trial took place on 13, 14, 16, 17, 20, 21, 23, 24, 27, 28 October, 3, 10, 11, 17, 18, 19, 24 November, 1 and 4 December 2008, 2 February and 9 March 2009. The following aspects of the trial deserve mentioning and/or a short discussion. Interpreters 59.

The Defendant, being a man with a university education who has been living in the Netherlands for more than ten years, perfectly understands the Dutch language and speaks it rather well. This already became clear at the beginning of the court hearings. The NCIS interrogated the Defendant in the Dutch language all along, since the Defendant had indicated that he understood the language well, spoke it sufficiently and had no objection against an examination in Dutch. Moreover, from the reactions of the Defendant – whether or not verbally – to the proceedings it became clear that the Defendant could follow everything in Dutch without any problem. However, at the request of the Defence, an interpreter in the Kinyarwanda language was present all the time during the court hearings. The Court left it up to the Defendant to decide at which moments he desired the assistance of the interpreter. This way not everything that was said during the hearing had to be translated all the time. During the trial the Court noticed that Defendant corrected the interpreter regularly when he thought that the latter did not translate something correctly, or he helped the interpreter with the correct Dutch words or expressions when the interpreter seemed to be unable to find those. In addition, the Defendant regularly expressed himself directly in Dutch or French to the Court. Defendant’s conduct during the trial 60. After his arrest, Defendant was interrogated seventeen times by the NCIS. During the first six interrogations he stated about his personal circumstances, his family members, the area where he lived and worked in Rwanda etc. and he signed these statements. After the sixth examination Defendant claimed his right to remain silent and he did not want to sign his statements anymore. From the third interrogation onwards, the NCIS recorded the statements of the Defendant with audio and/or video equipment. 61. During the Pro Forma hearing of 11 July 2008, the Defendant stated that he knew the contents of his criminal file “for a 100%” and that he would be prepared to answer the questions asked by the Court during the trial. He said that he would be glad to cooperate with the investigation.(163) 62. From the second day of the trial, on 14 October 2008, the Defendant regularly claimed his right to remain silent when the Court asked him certain questions, also when this involved questions to which Defendant had replied earlier on during the proceedings. Almost always, Defendant claimed his right to remain silent when questions from the Prosecution were involved. The Court confronted Defendant with the fact that, several times in the initial phase of the trial, he had indicated that during the examinations by the NCIS several misunderstandings had arisen which he would like to clear up during the trial. However, during the trial Defendant, when asked, did not clarify which parts of the examinations were involved and in what sense he would like to add to them or change them. More than once, Defendant sighed and said that he wanted and hoped that the “the truth be disclosed” and that the Prosecution and the Examining Judge “did not make any efforts to just do that”. When asked, Defendant stated that he did believe that the Court was focused on finding the truth. In connection to this, the Court mentioned to Defendant that he was not very helpful in this quest each time he invoked his right to remain silent in case of crucial questions, either on his own initiative or that of his Counsel. In this context the idea could arise that Defendant was not looking for the truth and that, with respect to certain points, he preferred the Court not to discover the truth. However, Defendant did not change his attitude during the proceedings. 63. During the trial, Defendant made a statement about the situation in his village, Mugonero, during the genocide. Briefly summarised he stated that he had not noticed any differentiation in his village between Hutu and Tutsi(164), that he did not know who was Hutu and who was Tutsi in his village(165), and – after his return from Italy – that he had not noticed any increased tension or problems between Hutus and Tutsis(166), that he had not noticed any hate propaganda against Tutsis(167), that he had not seen any violence(168) and that he had never seen any Interahamwe in Mugonero(169). In short, according to the Defendant, during the genocide Mugonero was a peaceful place, where Hutu and Tutsi lived together in peace without ethnicity playing any role in daily life. According to the Defendant, the only form of insecurity in the village came from people who were fleeing from the war between the RAF and the RPF.(170) 64. It is self-evident that these remarks of Defendant, i.e. a total denial of reality, and his attitude during the trial as described above had their influence and gave colour to the way in which the trial took place. Any way, the Court did not include these mendacious statements made by Defendant in any of the evidence considerations. Finally it should be reported that at some point during the trial Defendant happened to state that the Court should not only ask itself whether Hutus killed Tutsis, but also “what the Tutsis had done to deserve to be killed”. When requested to give an explanation, the Defendant claimed his right to remain silent. The examination of witnesses in general 65. In the build-up to the trial, the Court asked the Prosecution and the Defence several times if they wanted to examine witnesses during the court session. Every time, both parties replied negatively. The Court did not see the need to hear witnesses proprio motu in court. 66. However, on 20 December 2007, the Prosecution did suggest to the Court to appoint one of the Court Judges as Examining Judge in order to go and hear two witnesses in Rwanda. The Prosecution mentioned that, in its vision, it would contribute to the “sharpness of the reference framework” of the Court if one of the Court Judges would experience for him/herself the witness examination procedure, under which circumstances the Examining Judge had had to work up to that moment and to see Rwanda with his/her own eyes. The Defence Counsel expressly joined this proposal. 67. After deliberation on this proposal during a session on 18 February 2008, the Court notified both parties that it would not make use of the power to appoint one of the Court Judges as Examining Judge. The Court considered the motives of the Prosecution and the Counsel to proceed to such an appointment understandable and relevant, but this would include that in this manner one of the Court Judges would carry out some sort of on-site visit. Moreover the Court explained that the authority to appoint a Court Judge as Examining Judge was not meant for this purpose and that article 318 CP stated that relocating a court session for the purpose of judicial inspection was only possible within the jurisdiction of the Court. Besides, the concrete added value of an examination conducted by one of the Court Judges of these two specific witnesses had not become manifest. On the side, the Court remarked here that it would be preferable if the Court could also perform on-site vistis outside of its own jurisdiction. For instance this could be important in order to determine whether a witness was able or not to witness certain events from a certain (hiding) place. The examination of witness Adrien Harorimana 68. As mentioned before, the Court did not see the need to call witnesses and when requested, the Prosecution indicated several times that it did not want to hear any witnesses during court sessions either. However, this point of view of the Prosecution changed when it became known that Adrien Harorimana would appear in Court as aggrieved party and surviving relative of one of the victims of the crimes charged against the Defendant. In a letter dated 2 October 2008, the Prosecution informed the Court and the Counsel that it had the intention to summon Adrien Harorimana to appear as a witness during trial.

In court the Prosecution explained that because of the danger of collusion, the chance of witnesses being influenced by the Defendant and/or his family and the possible disproportionate pressure put on a witness by having to testify in court, it was originally decided not to summon any witnesses to appear during the trial. Now that Adrien Harorimana had joined in the proceedings as a plaintiff against the Defendant, and that he had indicated that he was going to appear in his capacity of aggrieved party and surviving relative and that he was prepared to appear as a witness during the trial, the objections against a witness examination played a minor role. Furthermore, the Prosecution explained that it wanted to hear the witness during the trial for the purpose of “underlining the trustworthiness of this witness”. In addition, the witness would be able to “raise understanding for the contextual situation in Rwanda and the possible differences in culture”.(171) The Counsel objected to the examination of this witness.(172) 69. At the hearing the Court established that, according to the Examining Judge, the examination of witness Adrien Harorimana had been concluded(173) and that the Examining Judge had not barred any questions during the examination of the witness. The Court mentioned that, although it considered the Prosecution to have a prosecution interest with respect to hearing the witness (the interest of underlining the trustworthiness of this witness), the Court indicated beforehand that it would not have any questions for this witness. (174) During the session of 23 October 2008, the Prosecution stated that it would no longer keep to the request to hear Adrien Harorimana. Subsequently the witness did not testify in court. Aggrieved parties 70. [Witness 4] and [witness 3] (count 3 on indictment I) and Adrien Harorimana (count 1 on indictment II) all submitted claims and, represented by their Counsel Mrs. Zegveld, they appeared in court in order to explain their claims. Right to speak 71. Since 1 January 2005, victims of certain indictable offences have the right to submit a written victim statement or to render a verbal statement in the court room: the right to speak. The right to speak was introduced in the Dutch criminal proceedings to give victims and/or surviving relatives the possibility to explain the consequences they suffer as a result of the commission of an indictable offence against them. 72. During the court session on 20 October 2008, [witness 4] and [witness 3], as victim of count 3, used their right to speak. 73. In principal, only the victim has the right to speak; only in case of death, the victim may be substituted by a surviving relative. Article 336 CP restricts this right to speak to a limited group of surviving relatives (in the family line up to the second degree). From the statement of Adrien Harorimana it becomes clear that his father is the brother of Consolata Mukamurenzi’s grandfather.(175) In Rwanda, such a family relation is regarded as a direct family relation; however, in the Netherlands, Adrien Harorimana and Consolata Mukamurenzi would have had a family relation in the fifth degree. Adrien Harorimana also stated that most likely he was the only surviving family member of Consolata Mukamurenzi.(176) 74. Therefore, Adrien Harorimana does not fall within the group of surviving relatives who would have an enforceable right to speak. In so far as the Court can see, Adrien Harorimana is the only surviving family member of Consolata Mukamurenzi. The fact, such as in this case, that within the legally determined circle of persons with a right to speak there are no more family members alive to make use of the right to speak, represents a circumstance to which the Legislator had not anticipated. In this special circumstance, the Court decided to allow Adrien Harorimana to exercise the right to speak, especially since there is no conflicting legal regulation. During the session of 23 October 2008, Adrien Harorimana exercised his right to speak. The Defence did not object to this. New inquiries conducted by the Examining Judge following the reception of foreign documents 75. After the Public Prosecutor’s closing speech and the closing plea of the Defence, the Court officially suspended the trial on 24 November 2008, in order to allow the Examining Judge to hear five witnesses in Rwanda again. This involved the five victims who rendered statements about the attack at the Seventh Day Adventists Complex before ICTR investigators, the ICTR Trial Chamber and/or the authorities of the US and/or Canada. The testimonies concerned were only included in the proceedings after the examinations of the five witnesses by the Examining Judge had been completed (see paragraph 47 above). If the Examining Judge would have had those statements and testimonies available during his/her examinations, then he/she would, without any doubt, have asked questions about this subject, especially since it was noticeable that the name of the Defendant almost never appeared in those documents, in any case not with respect to the attack on the Seventh Day Adventists Complex. The questions that raised on account of these documents were also discussed during the court session. The Court judged that the inquiry by the Examining Judge could not have been complete because, before and during the examination of the witnesses, he/she had not yet been confronted with the contents of the said statements and testimonies. 76. The Court discussed in which way the witnesses would have to be heard once more: during a court hearing, by way of telecommunication or by the Examining Judge in Rwanda. The Court preferred a rogatory mission by the Examining Judge. The considerations of the Court that lead to this decision were that the investigation of the Examining Judge had not been complete and therefore needed continuation to finalise the instruction that had been given to the Examining Judge earlier. Examination by means of telecommunication was no option because of differences in culture and possible technical problems. Furthermore, the Court considered that, in view of the facts about which the witnesses would have to testify, it would be better for the peace of mind of the witnesses to have the Examining Judge interview the witnesses personally. In addition, the Examining Judge could take precautions to prevent the witnesses from seeing each other and talking to each other, which would present a better way for arriving at the truth. 77. For the benefit of further examinations by the Examining Judge, the Court drew up a list of questions accompanied by an explanation with finding locations, and made this list available to the Examining Judge. The parties were allowed to signal possible misstatements of facts and to submit additional questions. Especially the Prosecution made use of this opportunity; the Defence Counsel only on a single point. In December 2008 and January 2009, the Examining Judge heard the five witnesses anew. Criticism by the Counsel on the quality of the investigation Criticism on the Prosecution 78. The criticism of the Counsel on the Prosecution was extensive and severe. Within the scope of the investigation, the Prosecution supposedly was “negligent” and “faulty”; the Prosecution supposedly was “ignorant”; “not looking for the truth”, “closing their eyes for reality” and “getting carried away by emotions”. More concretely the Defence Counsel, among other matters, reproached the Prosecution for the fact: a. that it had not conducted sufficient investigations into statements that had been rendered earlier by witnesses before international organisations; b. that none or little forensic investigations had been carried out; c. that no so-called foslo confrontations1 had taken place. 79. Re a. From the report about the investigation, as described above, it appears that this criticism lacks factual grounds.

The Court has observed that from the start, the Prosecution distinguished the importance to obtain statements and testimonies rendered elsewhere and that it made a considerable effort to be able to add these statements to the case file. 80. Re b. During the discussion about the indictable offences, on several occasions, the Counsel argued that the statements of witnesses were at no point supported by “objective and indisputable evidence”: this evidence supposedly should indicate, among other matters, which people were “dead, how they died, what was used to kill them, where these people came from all together”. According to the Counsel, the file offered sufficient reference points. There should have been forensic excavations (177), in connection with investigations into the cause of death,(178) or how old these corpses were and DNA-research should have been carried out. Pictures of the corpses should have been taken. More detailed information about the victims should have been requested from the Register of Births, Deaths and Marriages in Rwanda.(179) The Counsel noted that neither clothing of victims was found, nor murder weapons or shotgun wounds. 81. These theories of the Counsel are based on the assumptions that it is known where the victims in this case are buried, that reference material (DNA) of the victims is available for the purpose of identification of the corpses and that the Rwandese authorities keep certificates of births and deaths of the people who perished during the genocide. These assumptions lack all sense of reality. In fact, with respect to the rape and murder of Consolata Mukamurenzi, Counsel argued that there should have been an excavation of Consolata Mukamurenzi at the location that witness Adrien Harorimana had indicated. In this, Counsel completely ignored the remark of this witness about the situation in which he had to leave Consolata Mukamurenzi: “We were able to cover Consolata Mukamurenzi a little bit with earth, but not enough because we had to run and when we came back at the location three days later, I saw that Consolata Mukamurenzi was not in that grave anymore; apparently she had been removed by dogs. We never found her again.”(180) Another example is that Counsel argued that there should have been forensic excavations at the location where the passengers of the ambulance were buried, because there are witnesses who have testified about that exact location. Again, Counsel completely ignored the fact that these witnesses indeed indicated the location where the victims of the ambulance were buried, but they also testified that, after the genocide, all victims were reburied in mass graves.(181) Therefore, a forensic excavation was not possible. 82. The Court supports the conclusion of the Prosecution that all possibilities for forensic investigation were employed sufficiently (182) and that the contents of the case file does in no way offer a realistic perspective on obtaining relevant forensic evidence, other than the evidence that has been included into the case file. 83. Re c. The individual witnesses in this case indicated that they knew Defendant (183), for instance because he was the son of an important merchandiser, or because they were in school with him or members of his family, or regularly sold coffee to him etc. Notwithstanding the circumstance that with respect to almost every witness for the prosecution, Defendant indicated that he did not know this witness, the Court has no reason whatsoever to doubt the witness statements on this point. After all, in the area where he lived, Defendant was a well known person, which makes it imaginable that there are witnesses who do know Defendant, but Defendant does not know them. The Court distances itself from the reproach of Counsel that the Prosecution’s investigation was faulty because no confrontations between witnesses and Defendant took place. On this point, all authoritative scientists agree on the principle that for an identification test it is a strict condition that the witness should not have seen the defendant in any other situation than at the scene of the crime.(184) If not, the problem of “locating” arises, which means the situation in which the witness knows that he knows the defendant shown to him, but that he does not know from what circumstance. With respect to all witnesses for the prosecution – except for [witness 4] – it can be established that they had seen Defendant under other circumstances than during the indictable offences. On this point, professional literature tells us that the problem of identification of a person known to the witness cannot be tested with the aid of controlled identification procedures and that identification should actually be accepted on the authority of the witness. However, according to the experts, the identification situation may be evaluated, focussing on the items for consideration in Chapter 6 (assessment of witness evidence).(185) 84. The Prosecution is also right in asserting that a (f)oslo2 in 2006 or later, exclusively says something about the question whether the witness still recognizes the Defendant ten years later, but very little about the question whether the witness could identify the Defendant in 1994. Criticism on the Examining Judge 85. In his closing plea, Counsel paid considerable attention to all the questions that he would have liked to put to the witnesses, but were, in his opinion wrongly, prevented by the Examining Judge from being asked.(186) Although Counsel did not attach any conclusions to his assumptions, the Court considers that Counsel wanted to argue that under these conditions, Defendant’s right to a fair trial was not acknowledged. This argument is rejected based on the following. 86. The Court considered that it is true that the Examining Judge has prevented certain questions by Counsel from being answered.(187) The Examining Judge has the legal authority to bar questions in order to avoid the witness being forced to answer questions from the Defendant (or his counsel) or from the Prosecution, that are unnecessary, that may harm him or that may injure his reputation. Furthermore, the Court has established that, for the major part of the barred answers by him/her, the Examining Judge has provided his/her motivation in the official report of the examination of the corresponding witness. It is the opinion of the Court that, in view of the motivation included in the official report, the Examining Judge has barred the answer to most of the questions with good reason.(188) For example, it is evident that the question from Counsel in which he asks the witness [witness 14] why he did not help the women who were being raped when he was lying under a pile of corpses, was barred as being unnecessary harmful to the witness and devoid of any human empathy.(189) 87. Not in all cases the motivation to bar the answer to a question was related in the official report which, after all, is not required by law. There are no indications in the official report that in those cases, Counsel had explained the relevance of the question to the Examining Judge.(190) 88. It is remarkable that in his plea, Counsel continuously mentioned the questions barred from being answered by the Examining Judge, but only in one single case requested the Court to put those barred questions to the relevant witnesses once more.(191) Subsequently, on the instruction of the Court, these questions were put anew to the witness, or answered in a different way.(192) A number of other questions, barred by the Examining Judge from being answered by witnesses during earlier examinations, were finally answered during the rogatory missions in December 2008 and January 2009. 89. In view of the above, it is considered that Defendant’s right to a fair trial was not breached. Chapter 6: Evaluation of the evidence Introduction 1. The evidence with respect to the crimes charged against the Defendant mainly consists of statements by (eye)witnesses.

The Maton file includes over 50 witnesses and the file contains over 100 witness statements. The oldest statement dates from 10 September 1996 and the most recent from 27 January 2009. 2. The file contains statements from witnesses rendered before: - National Criminal Investigation Service (NCIS); - Examining Judge; - ICTR, in the form of testimonies and witness statements; - gacaca Courts; - Canadian and/or U.S. authorities; - Parquet Général in Rwanda. 3. In this criminal case, for the Court the evaluation of the different witness statements represents the “pièce de résistance”, as formulated by the Prosecution. This evaluation will have to take place on a 'paper' basis. After all, the Court did not hear any witnesses in court, although three witnesses rendered a statement during the court session in their capacity of victim and/or plaintiffs and/or surviving relative. 4. This chapter will deal with the manner in which this evaluation will take place, from which points of view and points of particular interest. General remarks 5. The assessment of this case is based on Dutch law which, among other matters, means that only those factual findings are recognized as legal evidence that are described in article 339 of the Code of Criminal Procedures (hereafter: CP) and that the rules for minimum evidence of article 341-344a CP are applicable. Hence, the judicial factfinding cannot be based on the statements of only one witness (the “unus testis nullus testis” -rule). This evidence minimum gives expression to the principle of double confirmation, which means that there must always be two independent sources in order to come to a judicial finding of fact with respect to an indictable offence. This principle is based on the assumption that it is irresponsible to convict a person solely on the statements and testimonies of just one person. Furthermore, our criminal system starts from the principle that the Judge is free in his selection and evaluation of the (legal) evidence. 6. The ICTR has no rules for minimum evidence. It is standard case-law that the Tribunal does not apply the “unus testis nullus testis”-rule;(193) a conviction based on the testimony of one person, without any supporting evidence, is possible, even when this involves a hearsay testimony. (194) 7. Research shows that eye-witness statements, even rendered under the most favourable circumstances, are inaccurate in many cases. For that reason, in general, witness statements must be considered scrupulously. Reference: “Justice Inside, Psychology of the Law” [Het Recht van Binnen, Psychologie van het Recht]: “Memories are not reliable by definition and the subjective certainty about their correctness is no guarantee for accurateness. Errors may be caused by different circumstances. There are even so many factors that may lead to errors and there is so little that can be done to prevent them from happening, that one can ask oneself whether memories can be trusted at all. Is everything that we think we remember not an illusion? (...) However, for the administration of justice, the answer is not very reassuring. In particular in those situations that occur often during proceedings, such as having to remember emotional and unexpected events that receive a lot of attention and in which it is essential that specific details are correct, appear to be most sensitive to error. This does not mean that from now on, all (eye)witness statements should be mistrusted. It does mean however, that such statements must be studied scrupulously and that their role in the factfinding should be evaluated carefully”.(195) 8. The boundaries of human perceptivity and memory are evident. By internal processes as well as external influences, the memory trail from the original experience is altered or complemented. There, the problem is that those alterations or additions are not noted or they are forgotten. That source may consist of internal processes, such as selective observation and interpretation during the experience of the original event or the reconstruction during the recollection of that event. The source may also consist of external factors, such as the integration of later obtained information in the memory trail of the original experience, or the acceptation of suggested events as real memories. Often, the cause of “errors” in the memory is a form of source confusion, also called source amnesia.(196) 9. Dutch case law has no 'strict criteria' on the basis of which it may be established whether a witness is credible and his statement reliable. However, it is a generally excepted starting point that, in view of the person who renders a statement, the circumstances under which it was rendered and the facts it contains, the Court needs to verify whether this testimony is sufficiently reliable to be used as evidence. 10. Evaluating the credibility of the witness and the reliability and credibility of the witness statements in this case is rather difficult and should be dealt with scrupulously, all the more since almost all witnesses in this case come from a different background and culture than ours, they have given evidence of events that date back almost 15 years, in a different part of the world, and these statements are of such a dramatic nature that they almost exceed our imagination. 11. In the past years, Dutch Courts more often had to deal with witness evidence in international criminal cases, in which the crimes charged against the accused took place a long time ago, in a different part of the world and in which the case file mainly consisted of testimonies rendered by witnesses from a 'faraway country'. For those reasons, witness statements were evaluated with caution; the same caution that the Court will apply in this criminal case. This is illustrated by the District Court in The Hague in its case against the Afghan general [F.]: “The criminal proceedings against the defendant refer to offences allegedly committed more than twenty years ago in a country torn apart by political, religious and ethnic disputes and by acts of violence. Many of those disputes still exist today. This fact, but especially the lapse of time, calls for prudence when studying the witness statements. This is even more important because it concerns events in a society, which in all areas – cultural, technical, economical and political – is so totally different from the Dutch society, that the Court can hardly relate anything to facts and circumstances ‘that are generally known’ and to the understanding of common organisation structures and relations, so therefore the Court is obstructed in its assessment of the witness statements”.(197) 12. In addition, the Court of Appeal in The Hague, in its case against [K.], also pointed out these particulars with respect to the defendant’s own statements and urged caution: “[By way of the above mentioned considerations], the Court would like to emphasize how difficult it is to establish the actual situation in such a 'faraway country' and why it is therefore necessary to cautiously deal with the evaluation of the correctness or incorrectness of the rendered statements, against the background of that actual situation, which is, a priori, not a familiar situation to the Dutch judicial authorities”.(198) Criteria for the assessment of the evidence 13. The Prosecution indicated that, for the evidence in this case, it mainly relied on statements that the witnesses rendered before the (Dutch) Examining Judge. In addition, the Prosecution drew evidence from statements of these witnesses rendered before the NCIS and the ICTR.(199) 14. The Court recognizes the position of the Prosecution that primarily those incriminating statements by the witnesses that were rendered before the (Dutch) Examining Judge are considered to be relevant.

After all, these statements were rendered before a judge and were explicitly aimed at determining whether this Defendant is guilty or not guilty. In addition, both the Prosecution and the Defence were offered the opportunity to interview the witnesses at length and to verify the credibility of the witnesses and the reliability of their testimonies. 15. With respect to the manner in which trial testimonies in this case file should be assessed, the Prosecution and the Defence have expressed their views and taken up their standpoints. In connection to this, the Prosecution has formulated frameworks for the assessment of the testimonies and has presented those to the Court and in addition, it has given extensive consideration to factors that could be of importance when assessing testimonies. In this chapter, the Court shall formulate an assessment framework to be used for the assessment of testimonies. In order to come to an assessment framework, the following needs to be addressed. I: The witness 16. The Court will investigate whether circumstances have arisen which may possibly have an influence on the credibility of the witness. For this purpose, the Court will investigate whether there was any involvement of the witness in any of the crimes charged against the Defendant, as well as the fact whether the witness had an interest or a – personal, ethnic, financial or other – motive that would entice him, contrary to the truth, to render a false incriminating statement.(200) Furthermore, it may be of importance whether the witness knew the Defendant and, if so, in what relation or to what extend and also whether the witness knew one or more other witnesses who rendered testimonies that incriminated the Defendant. 17. The Court will also investigate whether witnesses were able to make a distinction between events which they actually saw for themselves and events that they heard others talk about (hearsay). Furthermore, the Court will consider possible disrupting effects as a result of cultural differences. Within this scope, the Court will investigate whether a witness has difficulty with aspects of determining time, space and distance and/or his/her orientation with the aid of maps, photo or film footage, as well as the way in which a witness reacts and answers to questions, especially delicate ones.(201) 18. Most witnesses in this case file are traumatised witnesses. It cannot be said that a traumatised witness is less reliable than a non-traumatised witness. However, it is a fact that memories of central details of a traumatic event often are more accurate and complete than memories of incidental details of that same event. There are two reasons for this: the attention is focused on threatening, central details of an event (the co-called “weapon focus effect”). (202) In addition, the boundaries of the traumatic image have a tendency to narrow (“boundary restriction”), meaning that the person observes less background information, thus forgetting elements which appear in the margin of the traumatic image.(203) 19. In this case file appear two witnesses who were a child at the time. (Legal) psychological research has shown that the memory of a child is indeed accurate and that children are able to tell about events that took place several years earlier.(204) Therefore, there are no reasons to assume a priori that statements rendered by a child would not be accurate because of the child’s age, even when they speak about events that occurred several years earlier. II: The formation of the testimonies and the statements 20. The Court will investigate whether, in the manner of the formation of the testimony, or at the time of the testimony, there were circumstances that could have had an influence on the reliability of the contents of the testimony. In this respect, the Court emphasizes on the formation of statements rendered before the Examining Judge, because those, as mentioned above, are primarily considered to be relevant. In connection to the manner in which the statement was obtained, it is relevant to consider the way in which the questions were asked, the type of questions asked, the contents of the questions and the attitude of the interviewer. Furthermore, it is important to establish whether there are any indications of communication problems or misunderstandings between the interviewer and the witness or between the interpreter and the witness. In addition, it is important whether the witness knew one or more of the other witnesses who incriminated the accused or had discussed the case in question prior to the rendering of a testimony. 21. Subsequently, the Court will have to establish whether, in view of the factual information it contains, the witness statement is sufficiently reliable and credible to be admitted as evidence. Reliability of the testimony in objective terms 22. For the assessment of the reliability of the testimonies in objective terms, the Prosecution has adopted the assessment framework which the Court of Appeal in The Hague used in the case against [K.]. The relevant considerations of the Appeals Court are as follows: “With respect to the evidence ‘testimony’ (and for the statement of the accused as well) it is generally considered that this testimony or statement, because of the subjectivity of the observation, per definition has a less strict character, even without considering a possible failing memory or malicious intentions of the witness involved. The assessment (in objective terms) of the integrity of the testimony rendered by the witness will also have to take place by reference of: a) the verification with objective elsewhere obtained information such as relating to the local situation; b) the consistency of successive testimonies rendered by the witness involved; c) the consistency of the testimonies with the statements of other witnesses and - finally - d) the plausibility of the contents of the rendered statement(s) (which is more difficult to establish.”(205) 23. Just like the Prosecution accentuated, from case law at the ICTR, it appears that the Tribunal uses the same assessment framework when assessing the witness testimonies as the Appeals Court in the case against [K.] and also when looking at it from a different angle, such as with respect to the personality of the witness and the formation of the examination. In addition to the relevant considerations in the cases against Akayesu(206) and Semanza(207), one should take a look at the judgement of the Trial Chamber in the case against Nchamihigo: “15. The jurisprudence on the recollection of details is also well formulated. The events about which the witnesses testified occurred more than a decade before the trial. Discrepancies attributable to the lapse of time or the absence of record keeping, or other satisfactory explanation, do not necessarily affect the credibility or reliability of the witnesses. The Chamber will evaluate the testimony of each witness in the context of the testimony as a whole and determine to what extent it can believe and rely on the testimony. In making this assessment, the Chamber will consider whether the testimony was inconsistent with prior statements made by the witness and, if so, the cause of the inconsistency. The Chamber will also consider the internal consistency and integrity of the testimony and the context in which it was given. The Chamber will compare the testimony of each witness with the testimony of other witnesses and with the surrounding circumstances. The Chamber will explain the criteria on which it acts on a case-by-case basis.” (208) as well as – even more recently – the judgement of the Trial Chamber of the ICTR in the case against Bikindi of 2 December 2008: “31.

When evaluating viva voce evidence, the Chamber considered various factors, including the witnesses' demeanour in Court, the plausibility and clarity of their testimony, and whether there were contradictions or inconsistencies within their testimony or between their testimony and their prior statements relied upon in Court or admitted as exhibits. It also considered the individual circumstances of the witnesses, including their role in the events in question, their relationship with the Accused and whether the witnesses would have an underlying motive to give a certain version of the events.” (209) 24. The Court shares the vision of the Prosecution that this assessment framework can offer something to hold on when assessing testimonies in this case. III: The verification of objective information, obtained elsewhere, with respect to the local situation. Forensic investigation 25. Already in Chapter 5, the Court established that all possibilities for forensic investigation were used. However, the possibility to verify the testimonies of witnesses against objective data is, apparently, limited. The verification can only take place with the aid of background material concerning the Rwandese genocide in 1994 in the case file, the established facts of the ICTR, for example, about the Seventh Day Adventists Complex (Mugonero), the footage with respect to the investigation about the Seventh Day Adventists Complex, the photographs of the NCIS and the footage of the on-site visit which was carried out. Furthermore, the case file contains -[family witnesses 3 and 4] reports of the Netherlands Forensic Institute (hereafter: NFI) concerning a letter that was made available by the married couple. In any case, the fact that the objective evidence, as meant by Counsel, is not available, does not mean that a reliability assessment would in principle not be possible. Conclusions ICTR 26. Counsel has argued that the Court cannot be allowed to adopt findings of the ICTR to the disadvantage of Defendant, if they are based on witness investigation, document research and/or expert research and if the Defence has not been able to examine these witnesses and experts and/or has not been able to study the documents involved.(210) 27. Some factual findings of the Tribunal, such as the finding that on 16 April 1994, at the Mugonero-complex, an attack on Tutsi refugees took place and on 13 May 1994, at Muyira Hill, should also be valid as a starting point in this case. The factual findings were made by the Tribunal after extensive investigations and the Court sees no reason whatsoever to doubt its correctness. Although the findings were partly based on statements of witnesses and experts as well as on documents, without the Defence being able to exercise any influence on the realisation thereof, this does not mean that the Court cannot adopt the factual findings, especially now that the Defence has not indicated (concretely) which findinds it disputes and on what basis. IV: The consistency of successive testimonies rendered by the witness in question; and VI: the correspondence of those testimonies with testimonies rendered by other witnesses. Status of statements 28. The assessment of the statements rendered by witnesses before the Examining Judge and the NCIS, will take place in view of, among others, a) the statements, in so far as relevant, rendered earlier before other organisations – including the ICTR, the Parquet Général in Rwanda, Canadian and U.S. authorities and the gacaca Courts -, b) the statements rendered by other witnesses before one or more of the above mentioned organisations and c) the statements rendered by Defendant. 29. As indicated above, the documents include various statements rendered by witnesses before investigators and/or judges of the ICTR. These involve witness statements and trial testimonies. Witness statements are statements which (potential court-) witnesses have rendered before ICTR investigators. In general, these statements are not very comprehensive and certainly not worked out literally. In most cases, the ICTR investigators (or of the Rwandese authorities(211) (only) asked the witnesses about a particular person against whom an investigation was being carried out(212) or about a certain incident.(213) Trial testimonies are statements of witnesses rendered during a court session - public or closed – before judges of the ICTR, in the presence of the Prosecution and the Defence. In general, verbatim reports of this type of testimony are available. The same distinction may be made with respect to statements rendered by witnesses before Canadian and U.S. investigators respectively judges. 30. The Prosecution mentioned the limitations of the statements which were rendered before ICTR investigators and the possible presence of errors in these statements. The Prosecution explained that, immediately after the genocide, hundreds of U.N. investigators spread over Rwanda to collect as much information as possible. In this way, many thousands of statements, also called interviews, were put on paper. Also during later years, statements were taken down, often directed to ongoing investigations against certain accused persons or in relation to specific incidents. There can be no doubt about the fact that these statements, especially during the first years, were taken down under primitive conditions. After all, “the country was in shambles”. Moreover, the statements were taken down by investigators from all over the world, with unknown skills, customs and backgrounds and with the aid of interpreters whose quality levels are not known either. For these reasons, only relative value should be attributed to these statements. The Prosecution indicated various considerations of the ICTR, devoted to different “weaknesses” in statements, which is why the Tribunal considers these statements – partly because of the above reasons – to have considerably less value than the trial testimonies rendered before judges in court.(214) 31. Furthermore, the Prosecution argued that the gacaca-statements, at least the gacaca-statements in the case file, are of very limited value as an instrument to assess their reliability. In connection to this, the following factors are considered important by the Prosecution: no comparison can be made between a witness examination carried out in Dutch criminal proceedings, or before international tribunals and the aforesaid gacaca records. The nature of a gacaca record is more like the minutes of a meeting. There is no way to tell how gacaca meetings proceeded: whether certain persons or events played a central role, whether everybody who wanted to say something got the chance to do so, whether everything could be said or not, etc. The records are very fragmentary. It is not possible to establish whether the records adequately represent the procedure during the meetings. Furthermore, according to the Prosecution, it is rather difficult to say whether the person who is quoted made his remarks in relation to another person or in relation to someone else’s remark, etc.(215) 32. The Court has taken due note of the theories of the Prosecution with respect to the statements and the gacaca statements, - theories which the Counsel did not contest – and where necessary it shall pay further attention to them during the discussion of the charges and the individual witness statements. At this moment, the Court considers it sufficient to conclude that in any case, the theories of the Prosecution give no reason to determine that the statements, in general, should be labelled as factual findings to which only limited conclusive force can be attributed.

The given fact that at the time a statement was rendered, in general considerable less time had passed since the events in 1994 – and therefore the memory of these events were much 'fresher' – than the time passed until the moment when the other statements were rendered, already means that the contents of the statements may be of great importance indeed. After all, it is a well known fact that in the course of time memories become less detailed. Every time it should be considered in which context a certain statement was rendered, what the witness was asked exactly and what his or her answer was. 33. The Court understands the Defence Counsel’s argument that the Court is bound to the contents of a statement or trial testimony if a witness, who gave evidence to the investigators or the judges of the ICTR, promised that he/she would testify truthfully.(216) This argument is rejected. It is up to the Court to establish the reliability of the statement in question and the affirmation of the witness that he rendered a truthful statement only plays a marginal role. The argument of the Counsel also implies that each time the Court should consider the different incriminating statements rendered before the Examining Judge to be correct because the witness would have stated before a judge to have testified according to the truth. It must be assumed that this is not what the Counsel wanted to submit. Investigation into the (source of) discrepancies, inconsistencies or contradictions 34. The Counsel submitted that the statements of the witnesses could only be considered reliable and would serve as conclusive evidence of the charges, if the statements were consistent in relation to each other. Since none of the witnesses has stated consistently, the Counsel argued that either the statements will have to be excluded from the evidence, or they cannot be used as evidence. 35. In brief, it is the Prosecution’s theory that when witnesses render different statements over the years, it is almost evident that differences arise between those statements. Only substantial inconsistencies should be analysed and weighed. In this respect the Prosecution is of the opinion that a number of possible causes for such inconsistencies need to be studied, including: cultural aspects, trauma, laps of time, the circumstances under which the statements were taken or the purpose of the taking of the statements, the fact that a lot that was said can be lost in translation, errors made by the witnesses and/or the other participants in the proceedings, etc. When there is no satisfactory explanation for fundamental inconsistencies, this may have an influence on the conclusive force of a statement. As consequences which may be the result of these inconsistencies, the Prosecution indicated successively: the determination of the inconsistency without further consequences; the fact that the inconsistent part of the statement should be used as evidence; the requirement for supporting evidence for the inconsistent part; and total disqualification. 36. The Court considers that this vision of the Prosecution not only finds support in national case law, but also in case law of the international tribunals. Case law of the international tribunals shows that, on a regular basis, inconsistencies are attributed to the same causes as mentioned by the Prosecution and do not necessarily imply that statements cannot be used as evidence. In paragraph 31 of the judgement in the case against Kupreškic, the Appeals Chamber of the ICTY considered the following: “The presence of inconsistencies in the evidence does not, per se, require a reasonable Trial Chamber to reject it as being unreliable. Similarly, factors such as the passage of time between the events and the testimony of the witness, the possible influence of third persons, discrepancies, or the existence of stressful conditions at the time the events took place do not automatically exclude the Trial Chamber from relying on the evidence. However, the Trial Chamber should consider such factors as it assesses and weighs the evidence.”(217) The Special Court for Sierra Leone has also considered that inconsistencies do not automatically disqualify the witness. In the case against Fofana(218), the Trial Chamber pointed out the passage of time and the way in which the memory functions as possible causes for mixing up certain details and forgetting other aspects. In the case against Furundžija(219), the Trial Chamber of the ICTY indicated that inconsistencies can also be an indication that the witness was actually not influenced and therefore told the truth. 37. Furthermore, the Court adopts the vision of the Prosecution that substantial inconsistencies should be analysed and weighed. When discussing the individual facts, the Court will pay attention to those inconsistencies in statements which are of substantial value for the evidence or which evidently call into question the credibility of the witness and/or the reliability of his/her statement. In imitation of the ICTR(220), it is the Court’s opinion that a fundamental discrepancy or inconsistency should be brought to the attention of the witness, thus enabling the witness to explain the inconsistency. Against this background, on 4 December 2008 the Court decided to suspend the court hearing and to have five witnesses examined by the Examining Judge again. 38. The most striking discrepancy that came forward in this case, is that various witnesses mentioned the name of the Defendant only to the NCIS and the Dutch Examining Judge, but not in earlier statements and/or trial testimonies. In this respect, the Prosecution argued that for the ICTR, where witnesses were blamed “repeatedly” that they had not mentioned a certain incident or accused earlier, it hardly appeared to be a “factor of importance” whether a witness mentioned the name of an accused earlier or not. Therefore, the Prosecution stated: “the judges simply think that it is “not significant”, or that witnesses cannot be blamed, if they have not been specifically examined with respect to a certain accused. This is valid in case the witness does not mention the name of an accused in his statements, but also in trial testimonies. In connection to this, the Prosecution quoted certain passages from the cases against Ntakirutimana and Kayishema & Ruzindana. 39. On the basis of this case law the Prosecution concluded that, within the scope of the Rwandese genocide with so much violence and so many attackers, it is not suspicious or curious that in this case different witnesses did not mention the name of Defendant in earlier statements, gacaca statements and trial testimonies with regard to other accused, when they had not been asked for it. 40. The Court adopts the conclusion of the Prosecution that the ICTR does not always consider it to be relevant whether a witness mentioned a certain accused or a certain incident earlier or not.(221) However, the Court notes here that the ICTR does not “simply” consider it to be “not significant”, but looks at many factors, including the explanation for this omission and the attitude of the witness during the court session. Many times and in different cases, the ICTR also concluded that a witness did not give a satisfactory explanation of such an “omission” and based on this, did not accept his/her statement as reliable.(222) V: Identifications and recognitions 41. The Prosecution takes the view that, when verifying the quality of the identifications of the Defendant by the witnesses, the Court needs to ask the following questions: a. Did the witness know Defendant? b. What was the distance between the witness and Defendant? c. How long and/or how often did the witness see Defendant? d. Was that during day time or when it was dark outside? e. To what extend are the observations supported by other evidence of (witnesses)? f.

Are there any other aspects which make the observations reliable or less reliable? (For example, was the witness capable of describing the actions, the weapon, the clothing or the co-perpetrators of Defendant?) 42. In this respect, the Prosecution pointed out the Anglo Saxon legal practice, in which, through the years, a consistent verification framework to measure the quality of identification by witnesses was formulated. The British Turnbull-case is one of the most important leading cases about witness identification (judgement of 1976 of the Court of Appeal Criminal Division in the cases Regina - v -Turnbull and Another; Regina - v - Whitby; Regina - v - Roberts, 6 July 1976, hereafter: Turnbull). In many cases, the International Tribunals made reference to this judgement and they expressed the view that visual identifications, pre-eminently are sensitive to error and therefore should always be treated with “extreme caution”.(223) Also in relevant authoritative literature, the questions mentioned by the Prosecution clearly appear to be relevant regarding the assessment of the quality of the identification of defendants by witnesses.(224) 43. Every time, when assessing the reliability of witness testimonies with respect to the identification of Defendant, the Court will make an effort to answer the questions as mentioned above under a through f. With regard to the question formulated under a, the Court deems it important to stress that it is a commonly known fact that, for the quality of an eye witness observation it is important to know whether this observation involves the recognisance of an acquaintance ('recognizing') or the identification of a person unknown to the witness ('identification'). It is a generally accepted principle that the recognisance of an acquaintance under favourable circumstances is considerably more reliable than the identification of a stranger.(225) 44. As mentioned above in Chapter 5 (The investigation), all witnesses(226) - individually – indicated with motivation to know Defendant. As said before, the Court distances itself from the reproach expressed by Counsel that the investigation carried out by the Prosecution was inadequate because there were no confrontations of the witnesses with Defendant. Concerning this point, the Court recalls that among all authoritative scientists it is a well known principle that when carrying out identification verifications, it is a strict condition that the witness could not have seen the Defendant on any other occasion than at the scene of the crime.(227) Otherwise, the problem of “locating” arises, which means the situation in which the witness is aware that he knows the defendant shown to him, but that he does not remember under which circumstances. With respect to all witnesses for the prosecution – except for dr. [witness 4] – it can be established that they had seen Defendant under other circumstances than during the commission of the indictable offences. On this point, professional literature tells us that the problem of identification of a person known to the witness cannot be tested with the aid of controlled identification procedures and that identification should actually be accepted on the authority of the witness. However, according to the experts, the identification situation may be evaluated, whereby the points mentioned under a through f are important.(228) VII: The plausibility of the contents of the rendered statement(s) 45. As the Prosecution rightly notes, when assessing the plausibility of the statements and testimonies in this case, considerable reticence should be observed. With the aid of visual material that had nothing to do with this case, the Prosecution made it clear to the Court that what seems to be (physically) unimaginable from one’s own frame of reference, still appears to be possible or credible. Furthermore and in particular in this case, the events during the genocide in 1994, seem to touch the boundaries of our imaginative powers. Conclusion 46. Based on the above, the Court shall, when judging the facts individually, verify the credibility of the witnesses and the reliability of their statements and testimonies by reference to the points of attention mentioned above: I: The witness; II: The formation of the testimonies and the statements; III: The verification of objective information, obtained elsewhere; IV: The consistency of successive testimonies rendered by the witness in question; and V: The quality of identifications and recognitions; VI: The correspondence of those testimonies with testimonies rendered by other witnesses. VII: The plausibility of the contents of the rendered statement(s) In this respect, it will become clear that not everything which was put forward earlier needs additional discussion. Where necessary, those relevant points of attention that were made concerning the indictable offences involved, will be indicated. Chapter 7 The roadblock in Mugonero General 1. As mentioned above in Chapter 5 (The investigation), on 14 February 2006, the Minister of Foreign Affairs delivered an individual official report with regard to the Defendant. This report stated that it is clear that Defendant was in charge at a road block which was set up 50 metres from his home in Mugonero. Furthermore, the report mentions that there are many witness statements against Defendant and his brother, stating that they both decided about life and death of other people at the said roadblock. 2. Many of the witnesses who were examined in this investigation(229) mentioned a roadblock in Mugonero, in the vicinity of the bridge over Kiboga river. Below, the Court will briefly represent only some of these statements. Witness testimonies [Witness 3] 3. On 18 October 1996, [Witness 3] rendered a statement before investigators of the ICTR. This statement was particularly related to the role of the brother of Defendant, Obed Ruzindana, during the genocide. In this statement she also mentioned a roadblock which she saw on 27 April 1994 in Mugonero. This roadblock was manned by soldiers or militia(230) and gendarmes. According to the witness, the younger brother of Obed Ruzindana, Joseph Murakaza, was in charge of this roadblock.(231) 4. The statements she rendered in 1996 before ICTR investigators, she later repeated and completed before the Dutch authorities. These statements, (the statement rendered before the NCIS as well as the statements rendered before the Examining Judge), will be discussed comprehensively below in Chapter 8 (Crimes against the families [witnesses 3 and 4]). 5. This witness was not able to indicate the precise location of the roadblock. However, she did know that this roadblock was located near the bridge in Mugonero. That was on the road from Kibuye to Cyangugu.(232) At this roadblock she had to show her identity papers to the people manning the barrier.(233) The witness had destroyed her papers because they disclosed that she was Tutsi and at the time, Tutsis were tracked down and killed. The people at the barrier did not accept this.(234) 6. This witness also stated that she knew this Joseph as Murakaza and that she knew that others called him [family name of Defendant]. Murakaza is his father’s name. His brother’s name is Obed Ruzindana and he came from a large family. His sisters are called [F2] and [F9]. She was in school with [F2] and [F9] was attending the same school but one grade higher. About the Defendant’s family she stated that it was a well known family of traders, living in the commercial centre of Mugonero. The shop was located in front of their home and the family owned shops in Kigali as well.(235) [Witness 4] 7. With respect to the roadblock, this witness rendered a largely similar statement. In his recollection, this barrier was at a bigger roadblock.

He could not remember in detail what kind of people were at the barrier.(236) 8. In addition, he stated that he thought that the person who was tending the shop was also the owner. About this person his wife had said that his name was Joseph. The name Murakaza stuck in the memory of this witness, because that man had signed the letter – to be discussed in detail later in Chapter 8 - with that name.(237) Furthermore, the witness stated that, according to his observation, there seemed to be a connection between the owner of the shop and the guards at the barrier. As a matter of fact, the salesman in the shop had regular contacts with the 'personnel' at the barrier and exchanged opinions with them, which made this witness think that the person in the shop was the coordinator of the activities at that location.(238) He also had the impression that the shop owner was authorised to take decisions and that he was in charge of maintaining the rules there.(239) [Witness 12] 9. This witness stated that he had seen a barrier in Mugonero. This barrier was located near the bridge over Kiboga River. This bridge was between Rwamatamu and Mugonero. Before the Examining Judge, this witness stated that he did not know who had put that barrier there and who owned it.(240) After the witness had been confronted with his statement before the NCIS mentioning that [Defendant] had his own barrier in Mugonero, he stated that [Defendant] was the man in charge at the barrier. To the question how he knew this, the witness replied that it was obvious that [Defendant] was the chief of that barrier.(241) [Witness 28] 10. This witness stated that Joseph [family name of Defendant] had appointed a certain Murego – whom he killed later – as chief of the barrier and that he had told him that everybody should show their identity cards at the barrier. According to this witness, Joseph was in charge of the situation at this barrier and he saw and noticed Joseph giving orders and instructions to the people there.(242) [F6] 11. [F6], one of Defendant’s sisters, stated that the distance between Kiboga River and their home was a walk of about 2 to 3 minutes. There was a bridge over this river and at the time of the war, there was a barrier on this bridge which was manned by Hutu men.(243) Defendant’s own statement Before the National Criminal Investigation Service (NCIS) 12. When interrogated by the NCIS, Defendant stated that the nearest barricade, from his home and from the shop in Mugonero, was located between the market square and the bridge over Kiboga River. He described this barricade as a bunch of stones that were removed when someone was allowed passage. There was no barrier.(244) 13. In a later statement he mentioned about this barricade that it was located next to the bridge on the road in the direction of Kibuye and Cyangugu. During this interrogation, he repeated that this barricade was only made of stones. To the question whether there was also wood on this barricade, he answered that he only saw stones and that he could only tell what he saw.(245) 14. Furthermore, he denied having been involved in that barricade at all.(246) According to Defendant, there were soldiers at this barricade. He added that the people who manned this barricade were gendarmes, wearing uniforms. They were government people. To the question whether these people were soldiers or police officers, he answered that they were actually police officers working for the government.(247) 15. When he was questioned by the NCIS, Defendant denied that, at times, he was called Joseph Murakaza.(248) However, during his interrogation he did say that if a witness speaks about Joseph Murakaza, member of the Murakaza family, of whom one of the sisters is called [F2] and who has a brother with the name Obed Ruzindana, they mean him.(249) During the court session of 14 October 2008 16. Defendant stated that he knew that a barricade had been erected over Kiboga River in Mugonero. The distance between his home and this barricade was about 100 metres. He was unable to see this barricade from his home. According to Defendant this barricade consisted of stones. 17. Shortly after the erection of this first barricade, a second barricade was created. This second barricade was made of trees: two vertical trees with a horizontal tree on top. This barricade was located at about 150 to 200 metres from his home and from Kiboga River in the southern direction (Cyangugu) and not towards the direction of Kibuye. When leaving from the river towards Kibuye, one would first pass the stone barricade. Seen from the river, the wooden barricade was located in the other direction. 18. Defendant stated that he could not remember when exactly the barricade had been set up, but he thought that it was done within a week of the death of the president. Supposedly, the second barricade was set up a few days later. After the second barricade had been set up, the first one had become useless. 19. In addition, Defendant stated that he did not know whether people could set up a barricade just like that. He never heard about people being called to set up barricades, nor did he learn that someone else had been called, for instance by radio, to do so. The barricades were manned by civilians as well as soldiers. He did not know any of the civilians who did that; they had come from different places. He did not know the names of the soldiers either. 20. When he was asked about the purpose of such barricades, Defendant said that he could not answer that question. He thought that the barricades had been set up because of the security problem. When asked about this, he was unable to indicate what this security problem exactly was. During the court session of 16 October 2008 21. At this day of the hearing, Defendant denied ever having been active at any barricade in Mugonero. During the court session of 17 October 2008 22. On this day of the hearing, Defendant stated that he did not see who set up the second (wooden) barricade. He thought the authorities did that. He could not say whether these were civilian, military or other authorities. No one ever told him who gave the instructions to set up this barricade. He had never heard instructions being given to the people who manned the barricade. 23. Furthermore, Defendant stated that he could not remember ever having seen any civilian authorities such as a prefect, at the barricade, nor could he say anything about the ranks of the soldiers he had seen at the barricade. Asked about the number of soldiers at the barricade he answered that he thought he had seen about ten soldiers. Regarding the difference between soldiers and gendarmes he said that he was unable to distinguish them. About the involvement of civilians in manning the barricades he stated that he did not know whether civilians played a role at the barricade. He did not know the civilians he had seen there and therefore, he could not tell whether they were manning the barricade. 24. About the wooden barricade he stated that from his shop, he was unable to see this barricade. Asked whether he was able to see the barricade from his home, he answered that he thought this was impossible. Trees were blocking the view at the barricade and it was not possible to climb on the roof of the house, so it was impossible to see the barricade from the roof either. 25. Additionally, Defendant stated that one could see the stone barricade from the veranda in front of the house/shop. One could not see the wooden barricade from the veranda. 26. To the question whether he happened to pass the barricade or went there to have a look, Defendant stated that he did not pass the barricade very often. In his recollection, there was a café not far from the wooden barricade to which he went from time to time to see other people.

He also stated that he thought having been at the barricades about once or twice. 27. He never saw any incident at one of the barricades and he could not remember ever having heard anything about incidents in which people had been killed. However, he did see that cars would come to the stone barricade and stop there, but he never saw passengers being searched or having to show identification papers. 28. Furthermore, Defendant stated that he could not remember having seen cars stopping at the wooden barricade. The persons manning this barricade were civilians and soldiers. He could not remember any names. With respect to the civilians at the barricade he could not say whether they were in function or just curious. 29. The soldiers at the barricades had weapons, but in his recollection, the civilians he sometimes saw at the barricades did not have any weapons. To the question who he thought was the boss, Defendant answered that he did not know exactly. 30. He also stated that he had never heard shots coming out of the direction of the first barricade. He could not remember ever having heard shots coming from the second barricade. 31. About the precise location of the barricades and the pub, Defendant stated that the café was located in the direction of Cyangugu, close to the bridge. The second barricade was located 150 metres after the bridge in the direction towards Cyangugu. When walking over there, one had to pass the café first. The café was located at about 10 metres from the barricade. 32. At the request of the Court, Defendant indicated the location of the barricades on an aerial photograph, after which he also made a drawing of them on an aerial photograph. In this respect the Prosecution and the Court noted that at first, Defendant pointed out the café to be very near to the bridge and after that, considerably further away from the bridge. During the court session of 20 October 2008 33. At the hearing Defendant denied ever having been called Joseph Murakaza. To the question who is meant when a witness speaks about Joseph Murakaza, member of the Murakaza family, of whom one of the sisters is called [F2] and who has a brother with the name Obed Ruzindana, Defendant refused to answer. However, he did say that the police asked him about Joseph, son of Murakaza, who worked in the shop and who was the brother of Obed Ruzindana and that in view of this form of formulating things, it could only be him whom they were referring to. Conclusion of the Court with regard to the roadblock 34. In view of the above, the Court establishes that, shortly after the president’s plane crashed on 6 April 1994, a roadblock was set up in Mugonero in the vicinity of the bridge over Kiboga river. As will follow from the facts to be discussed hereafter, the purpose of this roadblock was the identification of Tutsis.(250) The Court also establishes that Defendant played a leading role at this barrier and that, when Defendant was not present at the roadblock, there was a conscious and close cooperation between Defendant and the persons who were manning this roadblock at those moments. 35. Based on the above, the argument of the Counsel that Defendant could not have had actual control over the soldiers at the barrier since he was only a civilian who could not be related to the army, is rejected. Chapter 8 The crimes against the family [witnesses 3 and 4] Origin of the suspicion 1. As already mentioned in Chapter 5 (The investigation), witnesses were interview in Rwanda by the NCIS following the transfer of the so-called Cyangugu file. One of these witnesses was [witness 7]. In his statement he mentions a German doctor and his family who were allegedly threatened to be killed at the barrier of Defendant.(251) Through the internet, the NCIS traced the name and the address of this German doctor, dr. [witness 4], after which he and his wife were heard as witnesses. Representation of the most relevant eye witness statements 2. First, the Court will briefly present the most important eye witness statements as they were rendered before the Examining Judge, completed with parts of statements of these witnesses as rendered before the NCIS. [Witness 3] 3. This witness stated that on 27 April 1994(252), she, together with her husband [witness 4], a German doctor, and their baby son who was born in February of that year, wanted to flee Kibuye (Rwanda)(253). They wanted to flee because, on 25 April 1994, her brothers and friends had been killed. She also stated that they were often threatened and that many people had entered and plundered their house.(254) 4. In order to make their escape possible, her husband had gone to the prefect to request a document enabling them to leave. Shortly after they received such a document from the prefect, she, her husband and their baby left in an ambulance. The driver of this ambulance was [B4] and they were escorted by a gendarme.(255) 5. The witness continued by stating that, during that escape, they passed different barriers and that, in Mugonero, they had to stop at such a barrier. This barrier was manned by militias.(256) These militias were armed with machetes,(257) some sort of wooden clubs and sticks.(258) The witness could not remember how many people were at this barrier, nor did she remember whether these people wore uniforms.(259) 6. The people at the barrier asked for papers that would mention their permission to leave. They also wanted to see the identity papers of this witness. About this, the witness stated that she had destroyed her papers because they mentioned that she was Tutsi and that, at that time, Tutsi were tracked and killed. The people at the barrier did not accept this and said: “This is not the way these things go, we are going to ask Joseph”. Upon this, they had to go to Joseph.(260) When they drove to the Murakaza home, several people followed them by foot. These people were yelling things like: “Tutsis must be killed, Tutsis killed the president so we must kill them; we must see to it that the white man does not pay money to corrupt”. They also yelled: “You Tutsi, you cockroaches”(261) and they said that “Tutsis were mean”, “That they all had to be killed”, “That they never wanted to see a Tutsi again”, “That they wanted their children and grand children to ask them some day what Tutsis actually looked like”, “That nobody could be satisfied and happy as long as there were still Tutsis alive” and “That Tutsis were just like snakes”. The witness also kept on hearing the word “Inyenzi” (cockroach).(262) The driver of the ambulance stopped at the shop of Joseph and she, her husband, their baby and the gendarme got out of the car and there they met Joseph.(263) 7. To the question of the Examining Judge whether the witness recognized Joseph right away, she answered that it was no secret that Mugonero was a dangerous place which was under control of Murakaza.(264) When she arrived at the shop, she met a man who was wearing a military uniform. [B4] told her that this man was Joseph.(265) 8. After Joseph had asked what was the matter, [B4] explained that they could not be killed because this would be dangerous since her husband was German. If he would die, there would be trouble with Germany. According to the witness, Joseph, [witness 4] and [B4] negotiated a lot. She did not follow this very well, because she was a bit distracted.(266) She did notice however, that Joseph was the leader, everybody was focused on him; he had the last word.(267) He also cooperated with the militias. The witness noticed this because, from the barrier, they were taken to Joseph and had to stop at him, the chief. When the situation was explained to him, he said: “Be careful not to hurt the white man”. After that, he encouraged the militia with slogans. She could not repeat word by word what they said to each other.(268) To her, Joseph was also the boss because the militia obeyed him.

Joseph was not influenced by anyone and it was him who took the decisions.(269) 9. After the situation had been explained to Joseph he negotiated with [B4] and [witness 4] and subsequently he sent [B4] to the prefect to enquire what had to be done with the German doctor. The gendarme who escorted the ambulance [witness 4], the witness and their baby remained with Joseph. During the time they had to wait for the answer of the prefect, the other people present kept on threatening the witness.(270) 10. At one point, [B4] returned with the prefect’s answer. He had said that the doctor and the baby would have to be released, but that the witness would have to stay. She was not allowed to leave because she came from Rwanda. She was yelled at, humiliated and she was told how she was going to be killed. They also said that the baby would have to be killed since she and [witness 4] were not married and therefore the baby was not German but Tutsi. About this, the witness said that, at that moment, she did not realise what they meant; she actually felt she was dead already and she saw a bunch of madmen around her.(271) 11. After he returned with the answer from the prefect, [B4] also negotiated with Joseph. [B4] pointed out to him that it would be dangerous to hurt [witness 4] because of international cooperation with Germany. Upon this, Joseph decided that the question had to be laid down before the burgomaster of Gishyita. For that purpose, Joseph wrote a letter to the burgomaster to ask him to come over to Mugonero to give his judgement in this matter.(272) The witness did not see for herself whether or not Joseph wrote that letter himself; she only saw him coming out of the shop with that letter. Furthermore, she saw that the letter was signed with the name Murakaza Joseph.(273) 12. [B4] left with this letter and after it had become dark, he returned with the answer of the burgomaster. The answer was that the burgomaster gave them his permission to return to Kibuye and that he would think about this matter and that he would check the books to find out whether the witness was married to the German or not. After this answer was read aloud, Joseph told them they could leave, upon which they got into the ambulance and returned to Kibuye.(274) 13. During the time that the witness, her husband and their baby were held and had to wait, many people came in who insulted her and yelled at her. These people also had weapons and they did not stop yelling at her.(275) Joseph stimulated this and incited them. One of the things those people yelled was: “Hutu-power”.(276) The children who were there were told: “Take a good look at this Tutsi woman, she belongs to the people who killed the president”. When a woman, who had bought oil from Joseph, complained about the measured quantity, he told her that he did not care, unless she wanted to be treated like a Tutsi.(277) 14. To the question whether Joseph personally threatened or insulted the witness, she answered that she did not know whether it could be called an insult, but that for her – in view of the context – Joseph’s question “You are leaving with a white man, but did you think of saying goodbye to your mother?” sounded as such. She explained this by pointing out that she was unable to react. This hurt her because almost all Tutsis had been killed. In addition, she explained this by referring to her mental state of mind at the time; she felt like she was already dead.(278) 15. About the events that happened during the hours that they had to wait, the witness also stated she was there, but that she did not really realise what was happening. She remembered that there were a lot of militia who said that everybody had to be careful not to be corrupted. The first instruction was to kill all Tutsi and after the killing they would share out the Tutsi belongings.(279) She also stated that sometimes she spoke and sometimes she laughed, upon which Joseph reacted: “Look how bad these Tutsis are, they laugh even when we are going to kill them”.(280) The people present also told the witness that she could choose where she would be killed: in Kibingo, Mugonero or Gishyita.(281) 16. To the question how long they had to wait at the shop of Joseph, the witness answered that she did not know because she was not aware of time. She did remember that, during that period, Joseph was not in the shop all the time. Sometimes he would go outside to talk to the people there. There were many people outside who yelled all kinds of things at her, and Joseph heard that too. The people yelled slogans like “Hutu power, Hutu power” and sometimes Joseph joined them.(282) 17. To the question about how she felt that afternoon, the witness replied that she did not feel anything. She was like a spectator and somehow, had accepted that maybe, she was dead already.(283) Furthermore, she stated that all this time she was afraid for her son, because people also yelled at her that she would have to give up her baby and that it did not belong to her. Other people said that the child was a Tutsi, maybe returning over 30 years to revenge its mother.(284) [Witness 4] 18. This witness stated that, on 27 April 1994(285) he and his wife, [witness 3], and their only 2 months old son [B1](286) wanted desperately to flee Rwanda via Cyangugu (Rwanda) to Congo.(287) Prefect Kayishema had given him documents to enable them to pass the barriers.(288) At the barrier in Mugonero, the car, made available to them by the hospital, was stopped.(289) The witness said about this that he could not remember the people who were at the barrier. He was not sure about the kinds of weapons these people were wearing, but usually, people at these checkpoints were armed with sticks, machetes or rifles. The witness was not sure but he thought he could remember seeing people with rifles.(290) 19. After they had been stopped, he was told that his wife, being Tutsi, was not allowed to travel any further, because she resorted under Rwandese power and so did their son. The witness himself was allowed to pass because he was a foreigner and because the prefect had granted his permission in the travel documents.(291) 20. The driver of the hospital conducted negotiations for their permission to carry on travelling. Finally, the driver was allowed to return to prefect Kayishema as an intermediary, to ask for permission to continue the journey. The witness and his family had to wait; in particular his wife was not allowed to leave and the witness stayed with her. They were taken to a shop(292) where they waited under a shed. The waiting took the longer part of the day.(293) They were taken to the shop and were guarded by the person who was tending that shop. (294) 21. While waiting, they were continuously regarded by a changing amount of people who, according to the witness, were waiting for the moment to kill her, which they were discussing all that time. The witness saw people making gestures such as slicing their throats. The witness did not understand everything that was said in detail. According to him, understanding some of the things that were said was sufficient, things like: Tutsi and Inyenzi.(295) The witness had experienced this situation, in which people around them continuously spoke about them and used words like “Inyenzi” (cockroach) as very threatening.(296) At some point in time, the guards also started to lose their patience and tension increased considerably.(297) 22. The witness stated that he did not know whether the shop, in front of which they had to wait, was owned by the person whom he saw there. However, according to him the person who was in the shop was the owner. The witness heard from his wife that this person was Joseph. The name Murakaza stuck with the witness because the letter, written by the shop owner was signed with that name.

His wife told him that the shop owner was the brother of Obed Ruzindana.(298) Furthermore, the witness stated that he supposed that people in the shop addressed the owner as Joseph, but that remembering this is not important to him.(299) For the witness, Joseph was just an official.(300) 23. During the afternoon, the witness noticed that the salesman in the shop was in regular contact with the guards at the barrier. The witness saw that this person was the coordinator there and on top of that, he was the contact person for the witness.(301) He was also under the impression that the shop owner had power to take decisions and he noticed that the owner, at least in the background, participated in all decision taking. It is the witness’s opinion that the shop owner was responsible for maintaining the rules, that he had influence and that he had the power to take the decisions.(302) 24. At some point in time, the driver came back with the information that there was nothing the prefect could do for the family and that the decision regarding the fact whether the family could continue their travels was up to the local authorities. About this matter, the witness stated that this meant that his wife would be killed. The witness himself was allowed to continue, but he would not give up on his wife. Upon this, the driver suggested to ask the burgomaster of Gishyita for help. This was accepted, upon which the driver left for the ‘town hall’ with a written application.(303) 25. To the question whether the witness saw that Joseph wrote that application himself, he answered that he assumed Joseph did. The witness does not remember whether Joseph gave the letter to the driver or not. In any case, the witness did not see this letter prior to the driver leaving, he only saw it later. He kept the letter on him because he assumed that he would need it to return.(304) This letter was signed with the name Murakaza.(305) 26. After approximately one hour and a half, the driver came back and told them that the burgomaster was prepared to marry them the following day, thus allowing them to leave together to return to Kibuye to start up the procedure.(306) The answer of the burgomaster was written on the back of Joseph’s application.(307) The witness described the situation at that moment as very tense: the people were frustrated and disappointed. At some point in time, the driver told the family to get into the ambulance, after which they left for Kibuye.(308) The witness recollects this situation as being very hectic.(309) Additional possible evidence 27. In addition, the criminal file contains statements of the witnesses [witness 28], [witness 17], [witness 7], [witness 15] and [witness 9], as well as research by the Netherlands Forensic Institute (hereafter NFI) of the letter that was made available by the family [witnesses 3 and 4]. 28. At this moment, the Court limits itself to just mentioning the additional witness statements. In the next paragraphs the Court will first discuss the research conducted by the NFI, the Defendant’s own statement and the viewpoints of the Prosecution and the Counsel. Subsequently, the Court will proceed to investigate the reliability of the statements of [witness 3] and [witness 4]. The letters made available by the family [witnesses 3 and 4] 29. In their statements rendered in August 2006, [witnesses 4 and 3] both mentioned a letter allegedly written by Joseph to burgomaster Charles Sikubwabo. Mr. [witness 4] stated that he still had this letter and that, the following day, he would make a copy of it available to the officials of the Bundeskriminalambt.(310) 30. This letter, including the answer of the burgomaster written on the back, was translated by a court interpreter. The contents of the letter written to burgomaster Charles Sikubwabo are as follows: 27 April 1994 Mister burgomaster of the municipality of Gishyita I would like to ask you to be patient with your important work. Right now, it is very urgent that you come to Mugonero to solve the problem concerning that Tutsi whom we found with a white man. But we wanted to send the car that transported them to the governor. The governor said that this person had to stay. The white man must continue his travels to Icyangungu. That is why I am sending this car, escorted by a soldier, to fetch you. The same car will take you back. I am Joseph Murakaza(311) 31. The answer, written on the back of the letter, reads as follows: Mister Joseph Murakaza They will have to return to Kibuye, because we do not know whether they are married or not. With respect to the lady, this will be regarded later. We can have a look in the books that are meant for this purpose. Please be careful as to not disturb society, the relation between the Germans and the Rwandese. May peace be with you Sikubwabo Charles Burgomaster.(312) 32. In order to conduct a handwriting test, on 9 August 2006, Defendant was submitted to a writing test.(313) 33. On 18 December 2006, [witness 4] telephoned the investigation team. During this conversation he said that, after his examination, he had started to look for the original letter that Joseph had written to the burgomaster, including the answer of the latter. After he had succeeded in tracing the letters in Rwanda, they were mailed to him to his home address in Germany.(314) Subsequently, the letters were handed over to the investigation team on 28 December 2006.(315) 34. On 29 January 2007, the NFI filed its first expert report. When comparing the letter signed by Joseph Murakaza with the available test material, the report showed, besides differences, also similarities, or at least traces thereof. The conclusion of the report is that the letter that was signed with the name Joseph Murakaza, was possibly written by [Defendant].(316) 35. On 10 May 2007, the NFI filed its second expert report concerning research of the little folder which contained the letters that had been made available by [witness 4]. The investigation was focused on exposing the text on the little folder and to try to indicate where on the folder the text was found and the substance of the text. This investigation showed that pieces of text ended up on the outside of the folder. These pieces of text ended up there because the copies of the letters stuck to the folder and this way, the ink was transferred to the plastic.(317) 36. On 23 May 2007, The NFI filed its third expert report. This report shows that some five dactyloscopic traces - (NFI-01; NFI-02; NFI-03; NFI-04 and NFI-05) – were found on the letters that were made available by [witness 4]. These traces were handed over to the National Police Agency (NPA) for identification. (318) Subsequently, the NPA researched these traces and on 14 June 2007, they reported that the traces NFI-01, NFI-03, NFI-04 an NFI-05 did not belong to the person mentioned in the report.(319) 37. On 29 August 2007, the NFI reported that research into the age of the letter in question could not be executed by researching the ink that was used to write the letter, if the letter was older than 6 months. In that case, the research could not be carried out with the necessary accuracy, so an official opinion with respect to the age of the letter could not be given. Also, determining the first possible date of introduction of the ink used on the document would be extremely difficult and could only be an indication whether something could have been drawn up in a certain period. In addition, the expert explained that it was difficult, or impossible, to determine the origin (country) of the means (paper, ink) used to write the letter. Furthermore, the NFI pointed out that it was very difficult to answer questions such as whether it was possible to determine the personality of the author of the letter or under what circumstances he wrote the letter, based on his handwriting.

In that respect, the reliability and validity of such graphological results have never been scientifically established, nor can reliable opinions be given about the sex of the author, based on the character of his handwriting.(320) 38. At the court hearing of 20 December 2007, the Court put forward the question whether the fact that no dactyloscopic traces of Defendant were found on the letter made available by [witness 4], could be an indication of the possibility that Defendant never had this letter on him. Very much against the will of the Counsel, the Court requested the Public Prosecutor to approach an expert of the NFI with the question whether a conclusion could be drawn from the fact that no dactyloscopic traces of Defendant were found on the letter, and if there were, what traces. 39. On 28 April 2008, reporting officer [reporting officer 2], Forensic Consultant/Expert Forensic Research with the NPA, reported that no forensic research could be conducted on the letters in question. In this respect he noted that, in view of the smoothness of the surface, the absence of an indication of specific contact, a relative low frequency of contact, various contacts by other donors and the passage of time (over 14 years) the letter could not be qualified as a very likely piece of conviction for DNA-research.(321) 40. On 19 May 2008, the NCIS requested the Immigration Service in Kigali to supply a handwritten letter, which Defendant allegedly wrote to apply for a passport. On 20 May 2008, a copy of this letter was received. The authorities in Kigali also mentioned that the original could be supplied as well, but this would need an explicit request submitted by the prosecutor general of the Parquet Général in Kigali.(322) At some point in time, the NPA received this letter as well. 41. On 12 June 2008, the NFI reported that the fact that no fingerprints of Defendant had been found on the letter in question, could not lead to the conclusion that Defendant never had this letter in his hands. In addition, the NFI reported the fact that the second dactyloscopic trace (NFI-2) appeared to contain too little dactyloscopic information. Therefore, this trace could not be used for identification purposes.(323) 42. On 30 September 2008, at the request of the Public Prosecutor of 19 September 2008 for additional research, the NFI reported that the new reference material (i.e. the handwritten letter for the application of a passport as referred to in paragraph 40) was written five years prior to the disputed letter. According to the expert, this time passage is a limitation for comparative research. Furthermore, this report mentioned that, next to signs of similarity, the new reference material in particular showed differences as well. However, these differences were not substantial to the point that they could exclude the possibility that they were connected to the developments in the handwriting of Defendant in the five years prior to the writing of the disputed letter. In this respect, the expert mentioned that, by using reference handwriting that could be dated closer to the date of the disputed letter, it could be possible to obtain more clarity. Therefore, the conclusion, as mentioned in the report of 21 June 2007, that the letter might have been written by [Defendant], shall be maintained.(324) 43. At the hearing of 18 November 2008, the Prosecution noted that on 26 May 2008, a request for legal assistance was sent to Italy, the reason being that the Prosecution deemed it possible that handwritten material of the Defendant would still be available at the University of Bari. Such material would have been written shortly before 1994, which would make it possible to obtain the clarity as referred to above. Reference material from Italy was finally received on 14 November 2008, upon which the Prosecution requested the NFI for additional research. 44. On 8 December 2008, the NFI reported in a letter that the conclusion, as worded in the report of 21 June 2007 and the letter of 30 September 2008, (that the letter possibly had been written by [Defendant]) was still valid.(325) Defendant’s own statement 45. Before the NCIS as well as at the trial, Defendant denied that he had anything to do with this charge. At the NCIS 46. During his examination on 8 August 2006, Defendant stated that, during the period between April 1994 and June/July 1994, he had seen no foreigners in Mugonero and that he had heard that the foreigners had been evacuated a week after the president’s plane had been shot down. However, around June/July 1994, he had seen French soldiers.(326) 47. At questions about a German doctor who supposedly was in Mugonero in April 1994, Defendant stated during a later interrogation that he had actually seen a white man on the street in Mugonero, about a week after the plane had crashed. He had not seen any woman or child with this man. Defendant saw this man when standing on his veranda, from which he could see the barrier, looking in the direction of the road. He saw then that this man was talking to a gendarme. However, he had not seen how this ended because at a certain moment he went home. In any case, the white man never visited his shop.(327) 48. As already mentioned in Chapter 7 (the roadblock in Mugonero) paragraph 15, Defendant denied that he was sometimes called Joseph Murakaza.(328) However, he did say that if a witness stated about Joseph, who worked in a shop in Mugonero and who was the brother of Obed Ruzindana and the son of Murakaza, it was clear that the witness referred to him.(329) 49. In a later interrogation, Defendant also acknowledged that if a witness mentioned Joseph Murakaza, member of the Murakaza family, of which one sister is called [F2] and who had a brother named Obed Ruzindana, the witness referred to him.(330) 50. To the question of the NCIS why she would make an incriminating statement, Defendant stated the following: “His wife is Tutsi and he is German. If you read the witness statement, it says that he knew me and my sister. Now we are talking about his wife, it was she who knew me and my sister. She said that in 1996, she went back to my town to look for me and to take revenge on me. When looking at the relationship between her and her husband, isn’t it logical that his wife, being a Tutsi, would do anything to get me into trouble.”(331) During the hearing on 20 October 2008 51. In his testimonies at the trial, Defendant acknowledged that during the interrogations by the NCIS he had spoken about a white man whom he had seen about a week after the death of the president. He withdrew the part in the statement that he had not seen any foreigners in Mugonero during that period. During the trial, he testified that, after the plane had been shot down, he saw many white people walking by and passing by in cars. He also testified that he had heard on the radio that foreigners were being evacuated and that when he saw white people, he assumed that they were being evacuated. Furthermore, Defendant testified that he could not remember this very well and that he was unable to say where he had seen white people and during what period, nor could he determine from which moment he stopped seeing white people in Mugonero. 52. After being confronted with his statement before the NCIS in which he referred to only one white man whereas, during the trial, he repeatedly mentioned many white men, he stated that in that case the statement rendered before the NCIS must be based on a misunderstanding. He clarified his remark by stating that he had understood that the NCIS had asked only about “white people in the shop”. 53. Defendant also testified that if he remembered well, he saw the man somewhere on the street. This is very difficult for him to remember because he saw many white people at various moments. He also said that his statement before the NCIS could not be taken to mean that he saw the white man at the barrier.

He explained this by pointing out that every car that passed by had to stop at the barrier. The white man had to stop there, just like all other people. Since there were soldiers at the barrier, Defendant testified that he thought the white man at the barrier was chatting with the soldiers. 54. During the trial, the Court asked Defendant questions about some of the remarks he made before the NCIS. It was put to him that before the NCIS, he mentioned some possible motives for people to make false statements, such as: manipulation by the government, illiteracy and envy with respect to successful people. The Court suggested that, in any case, [witness 4] is no illiterate and asked Defendant whether there was reason to believe that [witness 4] was manipulated by the government. Defendant answered that he saw no reason to assume this. 55. During the trial, Defendant was confronted with his statement that it was only logical that Mrs. [witness 3] and Mr. [witness 4] as well, incriminated him because Mrs. [witness 3] was a Tutsi. To this he answered that he did not mean “someone in particular”. It was put to Defendant that even if the Tutsi background of Mrs. [witness 3] would play a role, this would not be an explanation for the fact that she incriminated him in particular and not another Hutu man, who would have stopped her and who would have written the letter instead of him. Defendant did not react to this. Position of the Prosecution 56. The Prosecution deems this fact legally and convincingly proven on grounds of the letter written by Defendant to burgomaster Sikubwabo, the testimonies of [witness 3] and [witness 4], in conjunction with (regarded as supporting evidence) testimonies from [witness 28] and [witness 7].(332) 57. According to the Prosecution it is an established fact that Joseph Murakaza is Joseph M. and that, when writing this letter, he consciously used the well known name of his father. The main reason being, according to the Prosecution, that there would have been a considerable chance that an important man like Sikubwabo would have had no idea whom he was dealing with. The Prosecution thinks that another important indication for the fact that [Defendant] falls back on the use of the name Joseph Murakaza is the email address he chose: murajos@[X].com. According to the Prosecution, the only logical conclusion is that this email address is composed of the names Murakaza and Joseph.(333) 58. Therefore, the Prosecution argued that the letter, deemed as objective evidence, was written by Defendant. In this respect, the Prosecution also argued that although the handwriting analysis did not result in anything certain, it did not provide any contra-indications either.(334) 59. With respect to the statements and trial testimonies of [witness 3] the Prosecution argued that the reliability of this witness is no point of discussion, since she stated and testified in detail and consistently. Therefore, her statements and testimonies are considered to be reliable and credible by the Prosecution.(335) 60. With regard to the point of recognition of Defendant by [witness 3], the Prosecution made reference to the circumstance that she already knew Defendant well before 27 April 1994, and that she also knew Mugonero and surroundings. In addition, the Prosecution argued that the witness saw Defendant during quite a long period and that he was also pointed out to her by the driver.(336) 61. The statements of [witness 4] are less detailed, but according to the Prosecution, they support the statements of [witness 3] significantly. About the degree of detail, the Prosecution noted that also the witness himself observed that he cannot remember some details very well. In addition, he noted that he was unable to understand everything because Kinyarwanda is not his native language. In view of the consistency and credibility of the statements of [witness 4], the Prosecution deemed them reliability and therefore useful for the evidence.(337) 62. With respect to the statements of [witness 28] and [witness 7], the Prosecution observes that they differ on certain parts. In view of this, the Prosecution used these statements only where they are supported by other findings of fact.(338) 63. Furthermore, the Prosecution noted that the armed conflict has had (substantial) influence on the realization of the facts declared proven and the way in which these facts were committed. According to the Prosecution, Defendant’s acts must be qualified as defamation of the personal dignity, humiliation and degrading treatment and as threat of violence aimed at a person’s life. Therefore, the Prosecution has demanded that the Court deems the principal charge proven in its entirety.(339) 64. In case the Court gets into the alternative charge of torture, the Prosecution notes that [witness 3] and [witness 4] did not have the possibility to withdraw from the situation and the actions of Defendant. In view of this, they were deprived of their freedom as defined in the Torture Convention Implementation Act.(340) Counsel’s point of view 65. The Counsel pleaded that Defendant should be acquitted on this charge for lack of legal and convincing proof. To substantiate his plea, the Counsel put forward the following. With regard to witness [witness 3] 66. The statement of this witness that she was in boarding school with one of the sisters of Defendant, is not supported by any finding of fact. Besides, even if this is assumed, the fact is that she only saw Defendant in the 1970’s. In addition, she stated that she could not describe Defendant. Since a perpetrator can only be identified by someone who knows him, no other conclusion can be drawn than that this witness has not been able to identify the perpetrator in a proper manner. The circumstance that the driver [B4] told her that Joseph was the perpetrator does not change this, after all, the witness must be capable of identifying the perpetrator herself. According to the Counsel, no evidential value whatsoever can therefore be attached to the statements of this witness. Hence, her statements cannot be used as evidence in this case.(341) With regard to witness [witness 4] 67. The Counsel pleaded that this witness only describes an incident and is unable to identify the perpetrator as being Joseph M. The witness did not know the perpetrator, cannot describe him nor does he have any recollection as to the age of the perpetrator. This witness only heard the name Joseph from his wife and later from the NCIS and the Examining Judge. According to the Counsel, it is very well possible that as a consequence, this witness started to call the perpetrator Joseph. Furthermore, the Counsel brought forward that the witness testified that the name Murakaza only stuck with him because it is the name with which the disputed letter was signed. 68. It is the Counsel’s opinion that based on the statements and testimonies of this witness, no certainty can be obtained with respect to the question whether Defendant is actually the person who committed the alleged crimes. Therefore, the Counsel takes the standpoint that relevant evidence has not been furnished.(342) With regard to [witness 28] 69. With respect to this witness, the Counsel brought forward that it is presumed that he is a ‘parrot’ or at least someone who bases his statements on facts that he may have heard from someone else. In addition, this witness went through a great deal to incriminate Defendant and mentioned incidents about which the other witnesses did not say anything. Therefore, according to the Counsel, the Court shall have to make a choice: either Mr. and Mrs. [witnesses 4 and 3] have lied in their statements or [witness 28] must be considered to be a storyteller whose statements were just a pack of lies.(343) 70. According to the Counsel, the latter is the case: the statements rendered by [witness 28] are incredible and inconsistent.

Therefore, the statements of this witness cannot be used at all, in particular since they are filled with all kinds of details about which no other witness reported. The Counsel argues that selecting certain usable parts from his statement impairs the total judgement of the witness.(344) With regard to the statements of [witness 7] and [witness 15] 71. With respect to the statements of these witnesses, the Counsel brought forward that they cannot be used as evidence since the Examining Judge and the Counsel have not been able to hear these witnesses.(345) With regard to the letter written to Charles Sikubwabo 72. Concerning this letter, the Counsel has brought forward that the Court should look at positive evidence based on which something can be established as being true. The reasoning of the Prosecution that, despite the fact that Defendant’s fingerprints are lacking on the letter it cannot be excluded that Defendant has had this letter in his hands, is false, according to the Counsel. (346) In addition, the Counsel brought forward that since fingerprints of another person on this letter have been secured, this is a very good indication that Defendant never had this letter in his hands.(347) 73. Furthermore, the Counsel brought forward that the handwriting analysis did not provide any positive evidence. With respect to the second reference research, the Counsel argued that this reference material, i.e. the handwritten letter for the passport application, cannot serve as supporting evidence for the first letter. For this purpose the Counsel brought forward that there is no evidence showing that this letter was written by Defendant. After all, Defendant was never heard about it, the data were not verified and the handwriting was not compared with the handwriting obtained from the writing test. Therefore, there are no clues that Defendant is the author of this letter. In view of the above, this letter cannot serve as evidence.(348) Alibi 74. Furthermore, the Counsel brought forward that [witness 18] stated that on 27 April 1994, Defendant conducted an attack on Kizenga Hill. Since Defendant cannot be in two places at the same time, the Court shall have to dare to make a choice: the Court either deems this witness unreliable or incredible, or Mr. and Mrs. [witnesses 4 and 3]. If the Court deems witness [witness 18] unreliable, the Counsel thinks the Court will do this because it cannot be explained that this witness – like so many other witnesses in this case file, for that matter – did not mention the name of Defendant prior to the initiation of the Dutch criminal investigation, while right now the witness assigns a crucial role to the Defendant. The Counsel argues that another reason to consider this witness unreliable is the fact that other witnesses saw Defendant at the same time in another place. In view of the importance of this judgement, the Counsel mentions that he hopes the Court has the courage to actually make this consideration. (349) The judgement of the Court 75. As mentioned above in paragraph 28, concerning this point, the Court sees reason to investigate the statements of the witnesses [witness 3] and [witness 4] expressly as to their reliability. For this purpose, the Court will apply the points of attention as mentioned in chapter 6 (Assessment of witness evidence) paragraph 46, which will be explained below (without wanting to be exhaustive), but only if the statements give cause for it. [Witness 3] Ad I: The witness as a person 76. Before the Examining Judge, this witness stated that she is Tutsi.(350) During the first weeks of the genocide, she lived in Kibuye, together with her partner, [witness 4], and their baby son, who was born in February.(351) 77. About Defendant she stated that she knows him as Joseph Murakaza. In addition she said that via the internet she learned that others call him [name of Defendant].(352) About Joseph Murakaza she heard that he had been in Europe for a study.(353) Furthermore, the witness stated that she has known Joseph for a long time because she was in school with his sisters [F2] and [F9].(354) The witness was in the same grade as [F2] and [F9] was one grade up.(355) As mentioned above in chapter 7 (The roadblock in Mugonero) paragraph 6, she stated that Murakaza is the name of the father of Joseph. 78. About the family of Joseph she stated that his brother’s name is Obed Ruzindana. In addition she stated that Joseph comes from a large family and that the Murakaza family was a well known family of traders (356), who lived in the commercial centre of Mugonero. The shop was located in front of their home and they had shops in Kigali as well. The shop sold all kinds of goods.(357) 79. During the court session on 20 October 2008, Defendant stated that he does not know this witness. He also stated that he does not know whether this witness was in boarding school with his sister, nor can he remember if [F2] and [F9] were in boarding school together. 80. It appears from the charges that this witness was actually mentioned as being one of the victims of the indictable offence. In view of this, there is no reason to discuss the question as to the involvement of the witness, other than as a victim. 81. The Court is not convinced of the fact that the witness has any interest or motive to render an incriminating statement in violation with the truth. The fact that the witness stated, before the Examining Judge, that she went back to Rwanda after the genocide and that she asked people for the [Defendant](358), is no reason for the Court to assume that she would have any interest or motive to render a statement which would incriminate Defendant and be in violation with the truth. Finally, the Court notes that, during the court session, Defendant has not demonstrated in any way that this witness incriminated him because of the fact that she is Tutsi and he is Hutu. 82. As appears from the above, in the meantime, this witness got married to [witness 4], who is also considered to be a victim in the charges. When asked, the witness testified that she and her husband [witness 4] did not make any arrangements as to the contents of their statements.(359) 83. The Court has not noticed any evidence of any harmonization of statements between these witnesses, for that matter. Nevertheless, source amnesia cannot be excluded. Although the case file does not expressly shows this, it is very likely that these witnesses have often spoken to each other about the events. As discussed earlier in chapter 6 (Assessment of witness evidence) paragraph 8, in the scientific world it is a well known phenomenon that it is rather difficult for witnesses who have knowledge from their own experience of an incident, to differentiate additional information from other sources (for instance details they hear from other people) from the facts they actually experienced personally. However, also in view of what the Court will consider later with respect to her testimonies, the Court sees no reason to deem the statements and testimonies of this witness less reliable. 84. Furthermore, the statements rendered by this witness show that she is very capable of making a distinction between facts she experienced personally and facts that were told to her by others.(360) 85. Therefore, it is the Court’s opinion that the witness as a person gives no reason to doubt her credibility. Re II: The formation of the statement 86. As far as the formation of the witness statements during the examinations is concerned, there are no indications that at the time of the examinations circumstances occurred that could have had an influence on the reliability of the contents of the statements. Reliability of the statement in objective terms Re III: Verification with elsewhere obtained, objective data 87.

In view of the earlier observations in paragraphs 34 up to and including 44, the outcomes of the investigations carried out by the NFI and the NPA are not in violation with the statements of this witness. 88. It has been established that the dactyloscopic traces on the letter are not the Defendant’s. Therefore, the outcome of this investigation does not expressly support the statements of this witness. However, since the lack of these traces does not justify the conclusion that Defendant never could have had this letter in his hands, the outcome of this investigation is not in violation with the statements of this witness either. 89. The same goes for the handwriting analysis. To the question whether the handwriting on the letter corresponds with the handwriting of Defendant, based on the research carried out by the NFI, the experts could not indicate that this could be 'probable' or anything stronger than that. However, the research does not preclude the possibility that Defendant wrote this letter, since the conclusion of this research remains that the disputed letter may have been written by Defendant. From professional literature enclosed with this conclusion appears that the said conclusion was reached because - although the findings of the research are not in violation with the assumption that this letter was produced by Defendant - there is no combination of writer typical characteristics either that would justify the statement 'probable' or anything stronger than that. Re IV: The consistency of successive statements rendered by this witness 90. As already mentioned in chapter 7 (The roadblock in Mugonero) paragraph 3, on 18 October 1996, this witness rendered a statement before ICTR investigators. Within the scope of the investigation against Defendant, on 2 August 2006, she was heard as a witness in presence of investigators of the NCIS and on 5 and 6 February 2007, by the Examining Judge. 91. Already in 1996, this witness mentioned the barricade in Mugonero, the role of Joseph Murakaza there as well as his role in the currently charged fact. Especially in comparison with later statements, this statement was rendered relatively shortly after the incident as defined in the charge. Besides, in broad outline, her statement rendered in the investigation against Obed Ruzindana, corresponds with the contents of her later (more detailed) statements. Finally, it is important to realize that she rendered these incriminating statements already more than 10 years prior to the Dutch criminal investigation. 92. In view of the above, it is the Court’s opinion that the statements rendered by this witness are consistent to a high degree. The differences in the statements of this witness are limited to differences in small details which cannot be regarded in any way as being substantial contradictions. Therefore, these small differences do not deserve any discussion. The Court reached this conclusion because these differences – not in interrelation either – do not constitute a circumstance as a result of which the statements rendered by this witness may be considered to be unreliable. 93. Another point of attention in this respect is that when rendering more than one statement, there will be differences in those statements. In some statements certain elements are hardly mentioned, or not mentioned at all. These differences may very well be caused by the passage of time, the chaotic nature of the incident in which the witness seriously feared for her life and that of her baby, the emotions caused by the recollection of the dramatic events for the witness, or by an error of the witness or another party to the proceedings. In addition, a comparison of differences cannot be allowed to lead to it that the statement is considered inadmissible. 94. In view of the above, it is the Court’s opinion that the differences in the statements of this witness are not detrimental to the reliability of those statements. Re V: The quality of the identification of Defendant by [witness 3] 95. The witness stated that she had not seen Defendant since her school days. (361) During her witness examination in Germany, she stated that from 1975 until 1979, she was at a boarding school in Kibuye-City.(362) She also stated that she was in this boarding school with [F2], one of the Murakaza daughters.(363) Furthermore, she stated that, during the five years prior to the genocide, she had not seen any persons of the Murakaza family anymore.(364) 96. In view of the above, it is the Court’s opinion that it is an established fact that she had not seen Defendant for about 15 years prior to the indictable offence. Therefore, the Court considers that there is no recent, especially strong and reliable basis for recognition and identification of Defendant. As mentioned before in chapter 6 (Assessment of witness evidence) paragraph 42, visual identifications, pre-eminently are sensitive to error and therefore should always be treated with extreme caution, especially in case this identification takes place under difficult and traumatic circumstances. Re VI: Conformity of the statements of this witness with statements rendered by other witnesses 97. In view of the nature of this verification and the concurrence with the assessment of other witness statements, the Court will discuss this point later in paragraphs 128 - 130. Re VII: The plausibility of the contents of the rendered statements 98. The contents of the statements rendered by this witness do not give cause for explicit discussion. [Witness 4] Re I: The witness as a person 99. This witness is a German doctor who worked in Congo/Zaire between 1984 and 1989. From 1989 until the end of 1991, he lived in Germany after which he left for Rwanda at the beginning of 1992. In October 1993, he moved to Kibuye City to work at the hospital there.(365) During the first weeks of the genocide, he and his partner, [witness 3], and their 2 months old son [B1] lived in Kibuye City.(366) The witness worked at the hospital until the end of April 1994, but decided, out of desperation, they would try to flee the country on 27 April 1994. After they had failed to flee the country, on 21 May 1994, they were rescued by the honorary consul in Bukavu and taken to Germany. From August 1994 until the end of 1998, the witness worked in Rwanda again.(367) 100. Before the Examining Judge, the witness stated that, prior to the genocide, he had never heard of [Defendant], nor did he ever have contact with him. The witness also stated that he thinks he had never heard anything about the Murakaza family in the days before the genocide started. In any case, he had never had contact with this family, but he did know that they owned a shop at a market place in Mugonero. Prior to the genocide, he had often driven on the road passing the market place, but he had never visited the market itself. He had never been in the shop of the Murakaza family.(368) 101. To the question whether he had ever seen Joseph before, the witness answered that he is not aware of that.(369) He also stated that he cannot describe Joseph and that, most probably, he would not recognize him when he saw him.(370) During his examination in Germany the witness said about this that he thinks he remembers that his wife told him that the younger brother of Obed Ruzindana could be seen in the shop as well and that he even could be the owner of the shop.(371) 102. After the incident at the roadblock on 27 April 1994, the witness never saw Obed Ruzindana or his brother again.(372) 103. During the trial on 20 October 2008, Defendant stated that he does not know this witness. 104. From the indictment appears that this witness was personally mentioned as one of the victims of the alleged crime. In view of this, there is no direct reason to discuss the involvement of this witness, other than as a victim. 105.

The Court sees no reason to believe that the witness has any interest or motive to falsely render a statement that would incriminate Defendant. 106. As mentioned above, this witness got married to [witness 3], who is also mentioned as a victim in the indictment. When asked about it, the witness stated that he and his wife indeed spoke about the examination, but that they did not make any agreements as to the contents and did not harmonize their statements.(373) 107. The Court has not noticed any evidence of any harmonization of statements between these witnesses, for that matter. Nevertheless, source amnesia cannot be excluded. Although the case file does not expressly shows this, it is very likely that these witnesses have often spoken to each other about the events. As discussed earlier in chapter 6 (Assessment of witness evidence) paragraph 8, in the scientific world it is a well known phenomenon that it is rather difficult for witnesses who have knowledge from their own experience of an incident, to differentiate additional information from other sources (for instance details they hear from other people) from the facts they actually experienced personally. However, also in view of what the Court will consider later with respect to her testimonies, the Court sees no reason to deem the statements and testimonies of this witness less reliable. 108. Furthermore, the statements rendered by this witness show that he is very capable of making a distinction between facts he experienced personally and facts that were told to her by others.(374) 109. Therefore, it is the Court opinion that the witness as a person gives no reason to doubt her credibility. Re II: The formation of the statement 110. The official record of witness examination before the Examining Judge shows that the witness was very assertive regarding the examination procedure (375) and indicated on several occasions that he was not happy with the translation procedure.(376) Clearly the witness was capable of sustaining his own evidence by making reference to his observations, by which the Court has obtained a clear view of the local situation.(377) The witness was able to draw his conclusions from what he had seen at the local situation of the alleged crimes (378) and also about what he failed to remember.(379) There are no indications that at the time of the examinations circumstances occurred that could have had an influence on the reliability of the contents of the statements. Reliability of the statement in objective terms Re III: The verification of objective information, obtained elsewhere, with respect to the local situation. 111. Considering the observations contained in paragraphs 34 through 44, which was further discussed in paragraphs 87 though 89, the results of the research carried out by the NFI and the NPA are not contradictory to the statements made by this witness. Re IV: The consistency of successive statements rendered by this witness 112. On 25 September 1995, 19 September 1996 and 20 September 1996, this witness rendered statements before ICTR investigators. In none of these statements did the witness mention this alleged act during the incident. 113. The witness explained this during his examination before the Examining Judge. He noted the fact that he only stated with regard to the general situation, prior to, during and after the genocide. Furthermore, he said that, during his examination before the investigation he did state about Kayishema but not about Joseph and the militia in Mugonero. He has clarified this by saying that Joseph was just 'side figure'. Although on that particular day he was of crucial importance to the witness and his partner, for the ICTR he was just a side figure with an unimportant role at the time.(380) 114. In view of the contents of these witness statements, the Court deems the explanation of the witness with respect to his not mentioning the charged fact very plausible. After all, these witness statements show that the witness, just like he stated before the Examining Judge, first only spoke about the general situation, prior to, during and after the genocide, in particular in his town Kibuye. In his last statement before ICTR investigators, he stated about what he had seen and/or heard in Kibuye concerning the attack on the 'Home St. Jean'-complex. Only at the end of his statement, this witness made a statement about his attempt to flee the country on 27 April 1994, about which he did not give any detail. Under these circumstances it is not surprising that, in his statements, he did not mention Defendant and the incident at the barrier in Mugonero. 115. Therefore, it is the opinion of the Court that the fact that the witness did not mention this count with which the Defendant is charged in the indictment during his statements before the investigators of the ICTR, in no way affects the reliability of his statement. 116. For the rest it can be stated that the statements of this witness are consistent to a very high degree. The differences in the statements of this witness are limited to differences in small details which cannot be regarded in any way as being substantial contradictions. Therefore, these small differences do not deserve any discussion. The Court reached this conclusion because these differences – not in interrelation either – may constitute a circumstance as a result of which the statements rendered by this witness may be considered to be unreliable. 117. Another point of attention in this respect is that when rendering more than one statement, there will be differences in those statements. In some statements certain elements are hardly mentioned, or not mentioned at all. These differences may very well be caused by the passage of time, the chaotic nature of the incident in which the witness seriously feared for her life and that of her baby, the emotions caused by the recollection of the dramatic events for the witness, or by an error of the witness or another party to the proceedings. In addition, a comparison of differences cannot be allowed to lead to it that the statement is considered inadmissible. In view of the above, it is the Court’s opinion that the differences in the statements of this witness are not detrimental to the reliability of those statements. Re V: The quality of the identification of Defendant by [witness 4] 118. As mentioned above in paragraphs 22, 100 and 101, the witness did not know the person under whose guard they had been placed and who took the decisions with respect to their continuing their travels or not. His partner told him that this person was called Joseph and the witness remembers the name Murakaza, because the letter to burgomaster Charles Sikubwabo was signed with the names Joseph Murakaza. 119. In view of this, reference to actual visual identification by this witness cannot be made, and therefore cannot be verified either. Re VI: Conformity of the statements of this witness with statements rendered by other witnesses 120. In view of the nature of this verification and the concurrence with the assessment of other witness statements, the Court will discuss this point later in paragraphs 128 up to and including 130. Re VII: The plausibility of the contents of the rendered statements 121. The contents of the statements rendered by this witness do not give cause for explicit discussion. Other witness statements in the case file 122. As mentioned above, [witness 7], [witness 15], [witness 28], [witness 17] and [witness 9] rendered statements that (possibly) are related to this count in the charge. At this moment, the Court limits itself to briefly mentioning these statements. With respect to [witness 7] and [witness 28] 123. These witnesses rendered a very general, brief statement with regard to this incident.

In summary, these statement mention that they both saw that a white man and his Rwandese wife were stopped at the barrier. Subsequently they were taken to the house of (the father of) Joseph. There, the man and the woman had to wait until the prefect notified them that they were allowed to pass though.(381) 124. Remarkable points can be indicated in the statements of both witnesses. For instance, [witness 7] stated that in front of Joseph’s house, German was spoken with the white man(382), while [Witness 28] stated that at the moment the white man and his wife were allowed by Joseph to leave, a certain Murego refused to open the barrier whereupon Joseph shot him to death. After this, the white man and his wife drove off.(383) With respect to [witness 15] 125. This witness stated that in April 1994, a white man and his Rwandese wife arrived at the barrier. According to this witness, Joseph took the woman with him and killed her.(384) This white man came from Kigali and together with his wife, he was stopped at the barrier and taken to the house of Joseph. There, Joseph said to his Interahamwe that the woman should be taken away and killed. The witness stated that upon this, the white man, who also held the baby, left without saying a word. The woman was taken away and never came back. That is why the witness assumes that the woman is dead. When the NCIS asked the witness had heard of an incident in which a white doctor was stopped at the barrier, the witness answered that he had heard nothing about that.(385) 126. Now that this witness stated that the woman was murdered and that he had heard nothing about an incident involving a white doctor, it cannot be excluded that this statement of this witness is about another incident than the alleged crime during this incident. In so far as this statement does relate to the alleged crime, the Court establishes that the statement is evidently incorrect, since [witness 3] obviously was not murdered. With respect to [witness 17] and [witness 9] 127. Witnesses [witness 17] and [witness 9] are considered not to have any personal knowledge about this fact and have only stated what they heard from other persons. Therefore, at this moment the Court just concludes that the essence of the statements rendered by these witnesses corresponds with the contents of the statements of [witness 3] and [witness 4], represented above. Assessment of the charge Considerations with respect to the relative differences between the statements of [witness 3] and [witness 4] 128. The Court shall now assess the statements of [witness 3] and [witness 4] with the aid of the verification framework as defined in the point of attention under VI. 129. The statements of [witness 3] and [witness 4] only differ from each other on small details. In no way, these small differences(386) can be marked as fundamental contradictions. 130. Therefore, the Court notes that these differences do not need any further discussion. In this respect, the Court refers to its earlier consideration with respect to not reducing statements to loose elements. Furthermore, the Court once again points to the fact that when rendering more than one statement, there will be differences in those statements. In some statements certain elements are hardly mentioned, or not mentioned at all, for instance because of the manner in which the examination is conducted, the circumstance that witnesses saw different parts of the incident and thus remembered different parts thereof. Considerations with respect to Defendant’s involvement 131. As mentioned earlier with regard to the recognition of Defendant by [witness 3] in paragraphs 95 and 96, there can be no reference to a recent and particularly strong, reliable basis to recognize Defendant and identity him. 132. However, this have no effect on the 'recognition' of Defendant by the witness and therefore, her statements about the involvement of Defendant should be considered to be very reliable. The Court has considered that this 'recognition' is largely and convincingly supported in other evidence. 133. In fact, the witness stated that the driver [B4] told her that the person in the shop was called Joseph and that she concluded that he was called by that name by other people. Besides, there is no doubt that the witness, in view of her description of Joseph, referred to Defendant. As mentioned earlier, Defendant acknowledged this before the NCIS. Furthermore, the Court – together with the Prosecution – notes that the email address used by the witness, i.e. email address murajos@[X]. can only be composed by using the names Murakaza and Joseph. Therefore, the conclusion can be drawn that Defendant uses the name Joseph Murakaza more frequently. The Court arrived at this conclusion by taking into consideration its conclusion in chapter 7 (The roadblock in Mugonero paragraph 34) concerning the leading role Defendant played at the barricade in Mugonero, where the family [witnesses 3 and 4] were stopped. Finally, it can be concluded that the statements of this witness, as represented already in paragraphs 87 - 89, are not in contradiction with the outcomes of the NFI research, although this research does not explicitly supports the statements rendered by this witness. 134. Although that fact that the statement from the witness [witness 4] concerning the name of the person in the shop under whose guard they had been put, is based on remarks from [witness 3], his statement also contributes to the evidence with respect to the involvement of Defendant in this incident. 135. In addition, Defendant himself stated that when a witness speaks about Joseph, who works in a shop in Mugonero, who is the brother of Obed Ruzindana and the son of Murakaza, it is obvious that this witness refers to him.(387) He repeated this actually during a later examination. After all, he admitted that if a witness speaks about Joseph Murakaza, member of the Murakaza family, of whom one of his sisters is called [F2] and who has a brother with the name Obed Ruzindana, the witness refers to him.(388) 136. Furthermore, the contents of the letter provided by [witnesses 3 and 4] which is signed with the name Joseph Murakaza, perfectly match the contents of their statements about the incident. Considerations regarding the statements of [witness 18] 137. This witness has rendered a brief statement concerning the attacks on the Kizenga Hill and Defendant’s involvement. The attacks on this hill supposedly took place between 11 April and 27 or 28 April 1994. In addition the witness described Defendant as one of the instigators who often could be seen during the attacks. 138. Different from the Counsel, the Court - together with the Prosecution – considers that this witness never stated that he saw Defendant during the attack on Kizenga Hill on 27 April 1994. In view of this, the statement of this witness does not refute the assertion that Defendant could have been at the barrier in Mugonero on 27 April 1994. Considerations concerning other witness statements 139. As mentioned earlier in paragraphs 123 and 124, remarkable differences can be pointed out in the statements of [witness 7] and [witness 28]. These differences raise questions about the reliability of the witness statements with respect to this incident. In view of this, the Court has decided not to accept the statements of these witnesses as evidence with regard to the charge. Therefore, according to the Court, there is no need to discuss the statements of these witnesses explicitly with the aid of the earlier mentioned attention point in the assessment framework. 140. With respect to the statements of [witness 17] and [witness 9], the Court has established that these witnesses have no personal recollection with regard to this fact and only stated what they had heard from other people.

Although there is no legal rule barring these statements from being used as evidence, the Court, together with the Prosecution, shall not include these statements in the evidence with respect to the charge. Therefore, according to the Court, there is no need to discuss the statements of these witnesses explicitly with the aid of the earlier mentioned attention point in the assessment framework. 141. With regard to the statement of [witness 15] it can be established that in view of the contents of paragraphs 125 and 126, it is not indisputable that the statement of this witness refers to the charge. Therefore, the Court has decided not to accept this statement as evidence with regard to the charge and sees no need to discuss the statements of these witnesses explicitly with the aid of the earlier mentioned attention point in the assessment framework. Final considerations 142. The Court uses the statements of witnesses [witness 3] and [witness 4] as evidence, with reference to Defendant’s own statement when he said that if the witnesses speak about Joseph Murakaza they refer to him and with reference to the letter signed by Joseph Murakaza. 143. Based on the above, it has been firmly established that Defendant was in charge of the roadblock in Mugonero, where [witness 3], [witness 4] and their two-months old son [B1] were stopped, after which they were taken to the house of Defendant. In the hours that they had to wait close to that house, they were insulted and threatened by Defendant, among others. In addition and based on the above, it has been established that, only because [witness 4] was a foreigner and Defendant feared trouble if they would kill a foreigner, he finally wrote the letter to burgomaster Sikubwabo to explain the situation to him. 144. Therefore, the Court considers the following acts as defined in the indictment to be legally and convincingly proven. However, the principally and alternatively charged acts are somewhat different in a linguistic meaning, although in essence, they are identical. In view of this difference and because of the fact that this difference is unrelated to the later to be answered question with respect to which legal qualification that should be applied to this fact, for now the Court shall just render briefly which acts it deems legally and convincingly proven. In view of the difference between the principal and alternative option, the Court opts for the most detailed description of the facts which, based on the earlier mentioned findings of fact, are considered to be legally and convincingly proven, without anticipating the decision to be taken hereafter. The Court deems legally and convincingly proven that Defendant: On 27 April 1994, the Defendant, together with others, refused passage to [witness 3], her partner [witness 4] and their son [B1], who was only a couple of months old, at a roadblock in Mugonero. Weapons were shown openly to the witnesses and during the hours in which they were not allowed passage, they [witness 3, witness 4 an [B1] were able to hear remarks such as “cockroach(es)”, “Look well at that Tutsi-woman, these are the people who murdered the president”, “Would you like to be treated as a Tutsi?”, “You can choose whether you are going to be killed, in Kibingo, in Mugonero or in Gishyita”, “Look how bad these Tutsi’s are, they even laugh when we are going to kill them” and “Hutu-power”, while [witness 3] belonged to the Tutsi population and her son [B1] was considered by the bystanders to belong to the Tutsi population. As a consequence of this, [witness 3] found herself in a situation in which she had to fear for her life and that of her son for a prolonged time, while she was seriously humiliated in public by these actions. [witness 4] was put in a situation in which he had to fear for his life and that of his partner for a prolonged time, while he was seriously humiliated in public by these actions. Chapter 9 The crimes against the passengers of the ambulance Origin of the suspicion 1. As mentioned earlier in Chapter 5 (The investigation) paragraph 5, On 14 February 2006, the Minister of Foreign Affairs delivered an individual official report with regard to the Defendant.(86) In this report, the following is stated under 2 that according to informants, that is was clear Defendant was in charge of a roadblock which was set up 50 meters from his home in Mugonero. Furthermore, this report mentions that there are numerous witness statements against this person and his brother mentioning that at the road block, they decided about life and death of other people. Point 3 mentions the fact that Defendant is accused of giving orders to kill Tutsis in an ambulance near the roadblock in Mugonero. 2. As indicated earlier in chapter 5 (The investigation) paragraph 7, following the above mentioned official report, the Prosecution consulted the Parquet Général in Rwanda. These consultations showed that the name of Defendant already appeared in an investigation of the Provincial Prosecution Service of Cyangugu (the so-called Cyangugu file). Following these consultations, on 14 June 2006, the Public Prosecutor sent a request for legal assistance to Rwanda. After receipt of this request for legal assistance, the Rwandese authorities, at their own initiative, conducted an investigation during which they heard the witnesses form the Cyangugu file a new. Among these witnesses was [witness 7]. The Rwandese authorities made these statements - rendered after 14 June 2006 - available to the Dutch authorities, after which the NCIS took receipt of them on 14 July 2006. 3. More than a year later, on 13 August 2007, the NCIS received the actual Cyangugu file of the Rwandese authorities. This file contains a statement rendered by [witness 34](389) and dated 9 April 1999, in which she states about Defendant and his brother, whom she calls Interahamwe ((see chapter 3 for an explanation of the word Interahamwe (Rwanda) paragraph 21)). In addition, she spoke about an incident involving an ambulance in which a certain Joseph was involved. 4. Shortly after the NCIS received the Rwandese statements on 14 July 2006, the statements were scanned by an interpreter in the Kinyarwanda language on relevancy, after which a selection was made of witnesses to be heard in more detail in Rwanda. [Witness 7] was classified in the first selection and the NCIS heard him on 26 July 2006 and 9 August 2006 as a witness. Among other matters, he stated about a barrier which was set up by Defendant and his brother Obed Ruzindana. He also stated that he had seen an incident involving an ambulance at this barrier. He pointed out [witness 1] as being the driver of the ambulance. About this witness [witness 1] he also stated that he is still alive and the often go to the gacaca together. In addition, this witness mentioned the name of [witness 15], a civilian who had to guard the barrier. Finally, he stated that a girl of 7 at the time had been in that ambulance and that she had survived the massacre. 5. Subsequently, the NCIS traced [witness 1] and [witness 15] and heard them as witnesses. [Witness 1] confirmed that one of the passengers of the ambulance, a young girl, had survived the incident. He told that the aunt of the girl was a nun who is called [witness 16]. Supposedly, this aunt is still alive and living in Kiruhura. 6. Following this statement, the NCIS traced this [witness 16] and heard her as a witness. She said that her niece [witness 2] had been in the ambulance at the time of the incident and that she had survived the massacre. Subsequently, the NCIS also heard [witness 2] as a witness. 7. As mentioned earlier in chapter 5 (The investigation) paragraph 31 and further, the NCIS, following signals that witnesses in this investigation possibly were threatened and/or influenced and that two witnesses had disappeared, heard [witness 28] and [witness 29], the wife of [witness 7].

These witnesses not only stated about influencing and disappearances and that this seemed to be related to the statements of [witness 1] and [witness 7], they stated that they had also witnessed parts of the ambulance incident. [Witness 28] further stated that his (late) uncle, police-sergeant [B12] had also told him about the incident. 8. During the investigation by the NCIS, it appeared that a number of witnesses [witness 21], [witness 26], [witness 9] and [witness 20]) had heard other people speaking about this incident, whether or not before the gacaca. These witnesses were also heard about this incident. 9. During the investigation by the NCIS that was focused another fact (family witnesses 4 and 3), Mr. and Mrs. [witnesses 4 and 3] were heard as witnesses by the NCIS. These witnesses knew [witness 17] from the period when they were living in Rwanda. In 2007 and not in relation to this case, the latter got in touch with the family [witnesses 4 and 3]. During this conversation, the couple [witnesses 4 and 3] told him that had been heard as witnesses in the criminal case against Defendant. Upon this, [Witness 17], by way of the [witnesses 4 and 3] family, got in touch with the NCIS in order to render a statement himself. Subsequently, this witness was heard by the NCIS and he stated about the things he had seen during the ambulance incident. 10. Finally, at the request of the Counsel, the Examining Judge heard a number of witnesses for the defence. Four of these witnesses ([witness 31], [witness 32], [witness 35] and [witness 33]) also stated about this incident. Representation of most relevant eyewitness statements 11. First, the Court shall briefly present the most important eyewitness statements, as they were rendered before the Examining Judge, supplemented by parts of the statements, which these witnesses rendered before the NCIS. However, shortly prior to them being heard by the Examining Judge, two witnesses disappeared. Just like in the case of witness [witness 29], i.e. not having been heard by the Examining Judge, the Court shall represent a brief summary of the statements which the above mentioned witnesses rendered before the NCIS. [Witness 1] 12. This witness stated that on 13 April 1994(390), as the driver of an ambulance, he left from the Centre de Santé in Kibingo to find shelter in Rwamatamu. The passengers of the ambulance consisted of the families of Gerard Muhutu and Anaclet Munyanziza(391): Dativa and Brigitte with their children(392) and a seven to eight year old girl. Her father’s name was [B5](393) and the girl resembled the daughter of burgomaster Furere.(394) Police sergeant [B12] was also in the ambulance.(395) 13. Near Birogo, the road was blocked by a car that belonged to Obed Ruzindana and which was driven by the Defendant, preventing the ambulance from continuing. There were about 8 to 10 persons in Ruzindana’s car. Some of these passengers wore military uniforms and others wore civilian clothing. By way of gestures, the Defendant ordered the witness to turn the ambulance and to return to Mugonero. At that moment, the Defendant held a rifle in his hands. The witness fulfilled the Defendant’s order to return to Mugonero right away.(396) 14. But before he had managed to turn the ambulance around, he saw that many people had approached to take a look. He also saw soldiers at the side of the Defendant.(397) The Defendant ordered the bystanders to escort the ambulance to Mugonero. This group consisted of people in military uniforms as well as people in civilian clothing. Other people from the area were also attracted by the noise and they came to look what was going on. They pushed and shook the ambulance. Because of the fact that the escorting group walked at a footpace, the ambulance drove at that same speed. Therefore, it took about an hour and a half before they arrived in Mugonero.(398) 15. Although this cannot be found in his statements before the Examining Judge, before the NCIS witness stated that during the drive from Birogo to Mugonero, soldiers and civilians who escorted the ambulance kept on yelling: "where we are taking the cockroaches", while hitting the car all the time.(399) 16. Just before the ambulance arrived at the barrier in Mugonero, soldiers approached the ambulance.(400) The ambulance stopped at the barrier which was situated near the bridge. There, the leader of the soldiers said to the witness that "before killing the cockroaches, they should kill the driver".(401) 17. Then, the witness had to step out of the ambulance. At the same time, he saw the Defendant’s car approaching, driven by the Defendant himself.(402) He noticed that a soldier took him by the hand and lead him the other way.(403) Upon that, the witness was able to run away. That is why he did not see what happened to the passengers of the ambulance; whether Dativa or other passengers were clubbed (to death) with machetes.(404) [Witness 2] 18. At the time of the genocide, this witness lived with her father [B5], mother[B6](405), sisters and a brother in the cellule Gabiro, secteur Kirimbi, municipality of Rwamatamu in the prefecture Kibuye.(406) During the genocide, she fled to the hospital of Kibingo, where she met Dativa and her family.(407) 19. Before the Examining Judge, the witness – 12 years old at the time – stated that approximately one week after 6 April 1994, police sergeant [B12] said to her that she had to step into an ambulance and that, together with others, she would be taken from the hospital of Kibingo to the town hall of Rwamatamu. The other persons who stepped into the ambulance were, in any case, Dativa and her children. The ambulance was driven by [witness 1].(408) 20. In Birogo, the ambulance had to stop. There were Interahamwe, soldiers and police officers. The Interahamwe told the driver to turn the ambulance around and to return to Mugonero.(409) At that moment, the witness saw other people as well; she only knew the Defendant and Ruzindana.(410) However, in a later statement, before the Examining Judge, the witness stated that she had not seen Ruzindana there after all.(411) 21. In her statement before the NCIS, the witness stated that the people who had stopped the ambulance in Birogo, were happy to see the ambulance, because they were clapping their hands and waving their weapons in the air. Then she heard them yelling, shouting that they were happy they had found these women because they were going to kill these beautiful women out in the open. Furthermore, she heard the Interahamwe say that they had received orders from [Defendant] and Obed Ruzindana to search for these two mothers and their children in order to kill them. They also heard the Interahamwe say that they had received orders from [Defendant] and Ruzindana to take these women to Mugonero when they had found them.(412) 22. The driver turned his ambulance around and, together with his passengers, returned to Mugonero. According to the witness, the ambulance was accompanied from Birogo, by cars in front of it and behind it. The Interahamwe were in the cars that accompanied the ambulance. When cars passed the ambulance, Interahamwe slapped it. This only happened in Birogo. When the ambulance continued, this slapping stopped. The ambulance drove from Birogo to Mugonero, not very slowly, but not very fast either. A person would not be able to catch up with the ambulance by foot.(413) The Interahamwe who were standing in the cars leading or following the ambulance, sang "we will massacre them". They also yelled, clapped their hands and sang just to scare the passengers.(414) 23. When the ambulance arrived in Mugonero, Defendant and "his" Interahamwe were already there; they had driven ahead of the ambulance.(415) In Mugonero, the ambulance had to stop.(416) Subsequently, the passengers had to step out of the ambulance and they had to go and stand next to a river. In this respect, the witness stated that she was very afraid.

When she had stepped out of the ambulance, she saw Defendant and "his" Interahamwe. Next to it was a group of curious people looking on. This group included soldiers who did not do anything, they were just looking.(417) 24. The passengers had to stand in line. The witness, standing in the back of the row herself, did not see the driver again.(418) While standing in line, the witness saw that Dativa was hit on the head with a club. Since the witness found it very hard to talk about the killing of the passengers, the Examining Judge – after the witness had confirmed that she had spoken the truth during the examination by the NCIS – did not discuss this subject in detail anymore.(419) 25. Before the NCIS, [witness 2] stated about the killings that she saw Dativa trying to protect her head with her hands and that she cried for mercy. She saw Dativa bending her head forwards and receiving a second blow on her head with a club. She saw Dativa falling to the ground and remaining there, after which an Interahamwe gave her a third blow on her head with a club. After the first blows, the witness heard Dativa still cry, but after the third blow, she remained silent, although she still made some movements, like someone who is dying. The witness also saw that Dativa’s head was full of blood.(420) The other passengers were all crying loudly. Subsequently, the witness saw that the other Interahamwe killed Dativa’s children with machetes.(421) The Defendant did not participate himself. The people whom he led, were "cutting" people with their machetes. However, Defendant was the man who had said that passengers had to be killed.(422) 26. After this, the witness was taken away by someone.(423) She is unable to remember whether this person was the Defendant or someone else. At that moment she was crying and she "did not know anymore who she was".(424) About an hour later, she passed the market square of Mugonero again and she saw that the ambulance was parked near the house of Murakaza.(425) 27. To questions from the Examining Judge whether she saw then what had happened to the passengers of the ambulance, she answered that she saw the bodies of Dativa’s children lying there. The children were half dead and were taken to a car by soldiers. Then she saw the car driving off in the direction of the water. To additional questions from the Examining Judge whether she was able to see what had happened to the other people, she answered that they had been killed. (426) 28. The witness was taken to the house of [B10] after which soldiers took her to burgomaster Abel Furere. The burgomaster pardoned her and took her to his children. Later, she went back to her mother.(427) [Witness 15] 29. This witness stated that he was having a beer in the centre of Mugonero when he saw that an ambulance had arrived from Kibingo.(428) He saw that [witness 1] was driving the ambulance. According to the witness, [witness 1] wanted to help the passengers to flee to Cyangugu, but on the way, had run into Joseph. Joseph forced the ambulance to return to Mugonero.(429) 30. When the witness saw the ambulance arriving in Mugonero, he went over there to have a look.(430) The ambulance was parked about 50 meters from the house of Joseph,(431), near the barrier that was set up on the bridge in the centre of Mugonero.(432) When he arrived there, the passengers of the ambulance had not yet been killed.(433) He saw Joseph standing there, holding a firearm.(434) He also saw [witness 1] escape.(435) He heard Joseph order the Interahamwe to take the passengers out of the ambulance and to kill them.(436) The witness heard Joseph say: "Get these cockroaches out of the car and kill them".(437) At the time he heard Joseph say this, he was standing at about 5 meters from Joseph. (438) 31. Subsequently, the witness saw that the passengers were taken out of the ambulance, one after the other.(439) Apart from the 'daughter of Abeli Furere', he knew none of the passengers. These passengers were sad; some were crying and others were praying.(440) Some of the passengers were crying aloud and calling God for help.(441) The 'approximately ten year old daughter of Abeli Furere', who was one of the passengers, survived the massacre because she was taken away by Joseph.(442) 32. Subsequently, the remaining passengers were killed with clubs and machetes(443) by about 15 men.(444) This took approximately twenty minutes.(445) Joseph did not hit any of the victims personally, by he was the boss.(446) He was the first one to give the order to kill these people(447) and if he had said that he did not want the people in the ambulance killed, they would not have been dead now.(448) 33. After the passengers had been killed, the witness saw a number of men standing next to the corpses holding clubs and machetes. He also saw that their machetes were covered with blood.(449) After this, he had left. Later, he saw the corpses still lying there. He saw wounds to the heads, shoulders and to the rest of the bodies. Those were wounds inflicted by machetes or clubs.(450) 34. The witness indicated that he does not remember the exact date of this incident. He thinks it happened around May 1994, but he is not sure about the date(451), although he does remember that it happened during daylight. (452) [Witness 7] 35. This witness stated that the brother of Defendant, Obed Ruzindana, had set up a barrier in Mugonero at approximately 30 meters of the house of the witness.(453) On the Monday after the Wednesday when the plane of the president had been shot down, the witness saw an ambulance arriving. The ambulance belonged to the church in Kibingo. The driver of the ambulance was [witness 1].(454) 36. The witness saw the ambulance arriving at the barrier at around 9.00 o’clock and that [Defendant] was at the barrier and stopped the ambulance.(455) He also saw that the ambulance was followed by Ruzindana in his car in which also some Interahamwe were seated. The witness heard Ruzindana saying to [Defendant]: "See to it that these people are killed". After this, the witness saw Ruzindana drive off with "his" Interahamwe.(456) 37. The witness heard [Defendant] ask the driver: "where are you taking these cockroaches?" and [Defendant] continued by saying that the passengers of the ambulance had to be taken out.(457) The witness saw that the passengers were taken out of the ambulance and taken to the cattle market.(458) The, [Defendant] ordered the Interahamwe to kill these people.(459) He told "his" Interahamwe: "You must kill these cockroaches between now and 30 minutes". Subsequently, the witness saw these people being killed by the Interahamwe.(460) [Defendant] did not personally kill people, but he gave the order and was there when it happened.(461) 38. The Interahamwe killed the passengers of the ambulance by clubbing them to death. Since some people did not die directly from these blows, they were finished off with machetes. The witness heard the victims scream terribly while the clubbing by the Interahamwe was going on. 39. Of the passengers of the ambulance, only the driver survived, because other people helped him to escape.(462) Also a seven-year-old girl, 'the daughter of Abel Furere', survived. Before the massacre started, the girl was taken away by [Defendant] to his house because [Defendant] did not want the girl to see the massacre.(463) [Witness 29] 40. This witness (the wife of [witness 7]) stated before the NCIS that, from her home, she saw during the genocide, passengers from an ambulance being killed. 41. [Witness 1] was the driver of this ambulance and he tried to help people to flee.

This plan failed because the ambulance ran into Ruzindana and other soldiers and had to return to Mugonero.(464) In Mugonero, at the barrier near the Kiboga river (on the bridge in Mugonero into the direction of Kibingo), the passengers were killed.(465) According to the witness, this happened at the cattle market.(466) 42. Although her house is located at twenty minutes walking from the place where the passengers were killed, the witness indicates that she is very well able to see it because her house is situated on a higher spot. However, she was unable to see how exactly these people were killed, because so many people from the village were standing around.(467) 43. The witness did see that the passengers were being killed by Ruzindana’s men.(468) When asked, the witness indicated that she had not seen Defendant at that time. However, she stated that prior to that, Joseph and his brother and those soldiers and other people who were forced to participate in the attack, were following the ambulance. That was at the time when the ambulance was on its way back to Mugonero.(469) 44. The witness did not see the passengers of the ambulance, but some time after they had been killed, she saw the bodies. There were many bodies and it was a terrible sight. These were bodies of women and children who had been killed in a barbaric way.(470) From the wounds on their heads she could see that the children had been killed by blows with clubs. The witness also stated that she thinks she saw the children of Gerard Muhutu there as well, but she is not sure. She did hear however that his wife and children were passengers of the ambulance.(471) Other witness statements 45. With respect to this count, the file further contains statements rendered by [witness 17], [witness 28], [witness 16], [witness 21], [witness 26], [witness 9], [witness 20], [witness 31], [witness 32], [witness 35] and [witness 33]. 46. At this moment, the Court confines itself to mentioning these other witness statements. In the next paragraphs, the Court will discuss Defendant’s personal statement, the standpoints of the Prosecution and those of the Counsel first. Subsequently, the Court will proceed to the assessment of the reliability of the statements rendered by [witness 1], [witness 2], [witness 15], [witness 7] and [witness 29]. Defendant’s personal statement National Criminal Investigation Service (NCIS) 47. In his third examination before the NCIS, the Defendant stated that he had not seen that an ambulance had been stopped at the barricade in Mugonero. However, he had heard about it from people in the street: the ambulance had arrived at the barricade, had not been allowed passage and subsequently had returned to where it had come from. He had not heard that the passengers of the ambulance had been killed, nor did he know what had happened to the people in the ambulance. To the question whether he had seen ambulances at the barricade more often, the Defendant had answered that he had not seen any other ambulances there.(472) During the court session on 17 October 2008 48. During the Court session on 17 October 2008, Defendant denied having had anything to do with the ambulance incident. In brief, he stated that on the day the incident took place, he had "heard people talking about it". 49. Furthermore, the Defendant stated that he was at home when he heard people saying that an ambulance, coming from Kibingo had been stopped at the barrier in Mugonero. After having had to wait for a long time at the barrier, the ambulance had to return into the direction of Cyangugu. He had not heard anything about the passengers of that ambulance, nor had he been told that people had been killed during that incident. 50. When asked, Defendant confirmed that this was the only thing he could remember from the incident: the fact that the ambulance had been sent back, without someone being killed then. When confronted with the remark that his recollection of this fact is surprising since it is so insignificant in a time when massacres were taking place all the time in Rwanda. The Defendant answered that this incident came back to his memory after he had read the case file. When told that he stated the above on 8 August 2006, at a time when he could not have read anything from the case file, the Defendant answered that it had come to mind because it had been mentioned in the official report drawn up by the Minister of Foreign Affairs. Standpoint of the Prosecution 51. The Prosecution deems this fact legally and convincingly proven on grounds of the testimonies of [witness 1] and [witness 2], in conjunction with (regarded as supporting evidence) testimonies from [witness 28] and [witness 17], [witness 7] and [witness 29].(473) 52. However, the Prosecution requested that Defendant be (partially) acquitted of the part in the indictment that involves throwing (a number of) children in Lake Kivu(474), as well as of the principal charge that [witness 1] and [witness 2] have suffered serious bodily harm as a result of these alleged acts.(475) 53. In addition, the Prosecution requested the Court to correct the writing error in the name of [witness 2] in the charges so that the Court will read [witness 2] in stead of [name spelled differently].(476) 54. During its closing speech, the Prosecution extensively paid attention to the differences between the witness statements, i.e. differences in statements from one and the same witness, as well as in statements from different witnesses. According to the Prosecution, the differences cannot be considered to be fundamental inconsistencies without a reasonable explanation. In this respect, the Prosecution pointed out that [witness 1] and [witness 2] each only saw 'part of the movie'.(477) In addition, the influence of the traumatic event on [witness 1] and [witness 2] should be considered.(478) 55. With respect to the statements rendered by [witness 17] and [witness 7], the Prosecution referred to the differences in their respective statements and with regard to the statements of [witness 17] also to the differences in his statements. The source of these differences remains unclear. Because of these differences, the Prosecution shall consider the statements of these two witnesses (only) to be supporting evidence. In this respect, the Prosecution further argued that the Defendant and his family are to blame for the fact that [witness 7] could not be examined by the Examining Judge about the differences in his statement, since this witness has disappeared and Defendant’s family is directly involved in this disappearance.(479) Standpoint of the Counsel 56. Counsel argued that the Defendant should be acquitted of this count by lack of legal and convincing proof. With respect to all other statements of witnesses regarding this incident, the Counsel expressly pointed to the inconsistencies in the different statements of the same witnesses as well as relative differences with respect to statements of different witnesses. 57. Furthermore, Counsel put forward that several witnesses, including [witness 32], saw Defendant and his brother on 11, 12, 13, 14 and 15 April 1994 elsewhere. Therefore, it is impossible that on 13 April 1994 they were in Birogo and/or at the barrier in Mugonero.(480) 58. In addition, Counsel pleaded that no investigation was done with regard to the passengers of the ambulance. Therefore, it has not been established that the people mentioned in the charges actually died at the barrier in Mugonero. Assuming they are dead, the cause of their death was not established either. The Counsel argued that the Prosecution should have conducted forensic excavations.(481) Counsel also pointed out that the murder weapon (Defendant’s firearm) is construed by the Prosecution.(482) 59.

Furthermore, the Counsel pleaded that the greater part of the witnesses did not know the Defendant personally, so in his opinion, confrontations between the witnesses and Defendant should have taken place.(483) 60. In addition, the Counsel brought forward that the statement of [witness 34] as well as the statement of [witness 29] cannot be used as evidence since these witnesses have not been heard by the Examining Judge in presence of the Counsel.(484) 61. It is the opinion of the Counsel that the statements of [witness 1] cannot be used as evidence with respect to the assumed killings of the passengers. In this respect, he argued that this witness did not see the assumed killings. Finally, with regard to this witness, the Counsel put forward that this witness made notes during his examination. The Examining Judge allowed this and Counsel cannot exclude the possibility of the witness passing on his notes to [witness 28].(485) 62. The statements of [witness 2] cannot be used as evidence with respect to the assumed killings either, since this witness did not see this either. Counsel also brought forward that the witness did not know the Defendant very well and therefore, it cannot be assumed that this witness was capable of identifying and recognizing Defendant.(486) In this respect, Counsel expressly pointed out that his request to go on an on-site visit in Kibingo in order to verify whether this witness could actually have seen the Defendant then and there and if so, from what distance and under what circumstances, was rejected.(487) According to Counsel, it cannot be assumed that this witness could have recognized the Defendant, so her statement cannot support the assumed involvement of the Defendant. Furthermore, Counsel referred to the young age of the witness at the time of the incident. In view thereof, her statement should be considered with great caution.(488) In addition, Counsel argued that this witness did not mention the name of Defendant when, in November 1994, she told her aunt what had happened.(489) 63. With respect to the statements of the witnesses [witness 15] and [witness 7], Counsel put forward that these statements should be excluded from the evidence since the Counsel was not allowed the possibility to examine these witnesses.(490) 64. In addition, Counsel, with regard to witness [witness 7], expressly pointed to the possible motives of this witness, for rendering, in defiance of the truth, an incriminating statement. Concerning the statements of this witness, the Counsel also pointed out that this witness did not know the passengers of the ambulance. Therefore, his statements do not contain the confirmation as to the identity of the persons who supposedly died in that incident.(491) 65. With respect to witness [witness 28], Counsel expressed his surprise about the fact that, according to his statements, this witness did not discuss this incident with this friend [witness 1]. In addition, Counsel does not exclude that this witness received the notes which [witness 1] made during his examination and with the help of these notes harmonized his statement with the statement of [witness 1].(492) 66. About the statements of [witness 28] and [witness 29], Counsel remarked that these statements are exculpatory. [Witness 28] did not see the Defendant giving the order to the Interahamwe and [witness 29] did not see Defendant do anything at all.(493) 67. Counsel called [witness 17] a big storyteller. He has an enormous imagination and he tries to incriminate the Defendant in a very transparent manner. Therefore, the statements of this witness are incredible and totally unreliable and cannot be used as evidence.(494) 68. With respect to the witnesses [witness 16], [witness 9] and [witness 26], the Defence argued that these witnesses did not see anything personally. They only stated the fact that they had heard about the incident, and that is not relevant.(495) 69. About this witness [witness 9] Counsel remarked that three days after the examination of [witness 1] by the Examining Judge this witness had already heard about the examination. According to Counsel, this shows clearly that the witnesses had mutual contact.(496) 70. With regard to the statement of witness [witness 20], Counsel put forward that he had seen the ambulance in Birogo, but that he did not followed it. Although this witness is a neighbour of the Defendant, he does not know anything about this incident.(497) 71. Furthermore, Counsel referred to the statements of [witness 35] and [witness 31]. These witnesses were involved in redirecting the ambulance, but they each stated individually that they had not seen the Defendant at that time. Besides, [witness 31] also stated that he had walked with the ambulance from Birogo to Mugonero. Once in Mugonero, the witness had left and he had heard shots. Shortly after that, he had seen the Defendant, but that was not at the barrier, but at the shop of the Murakaza family.(498) The opinion of the Court Witnesses which the Counsel was not able to examine 72. As mentioned above in paragraphs 60 and 63, the Counsel put forward that the statements of [witness 7] and [witness 15] should be excluded from the evidence, while the statement of [witness 29] cannot be used as evidence. In so far as Counsel wanted to rely on the provisions of article 6 European Convention on Human Rights (ECHR), the Court considers the following. 73. Article 6, third paragraph under d, ECHR includes the following: (3) Any person against whom prosecution has been initiated, has the following rights, in particular: (d) to examine/have examined witnesses for the prosecution and to have witnesses for the defence summoned and examined in the same manner as would have been the case with witnesses for the prosecution. 74. The ratio of this provision is the guarantee for a fair trial. This includes, among others, that a Defendant is provided the opportunity to demonstrate the (un)reliability of the witness or the (in)correctness of his or her statements. 75. According to fixed case law of the European Court of Human Rights (hereafter referred to as: ECtHR) as well as the Supreme Court, the Defence may be expected to show considerable initiative in this matter. This is without prejudice to the fact that the implementation of the right of examination may not be made totally dependent on a request from the Defence. In case the disputed statements are of crucial importance to the evidence and the Prosecution has omitted to summon the witnesses to appear at the trial, the Court shall officially order the summons of the witness. 76. In addition, it is fixed case law at the ECtHR and the Supreme Court that, if the defendant or his counsel was not provided the opportunity to examine a witness, article 6 ECHR does not at all times precludes the statements rendered by that witness from being used as evidence. When assessing whether a fair trial has been conducted, the ECtHR takes the procedure in its entirety into consideration. In this respect, leading factors include: the presence of other - witness statement supporting – evidence, the possibility for the defendant to demonstrate the reliability of the witness and/or his or her statement, and the commitment of the judicial authorities in their efforts to have the witness examined by the defence. 77. Now that article 6 ECHR does not necessary prevent statements rendered by witnesses not having been heard by the defence to be used as evidence, in principle the Court sees no reason whatsoever to exclude these statements from the evidence. As mentioned in the paragraph above, to answer the question whether a fair trial has been conducted in case statements of witnesses not having been heard by the defence are used as evidence, it is important whether those statements are supported by other evidence.

In view of the nature of this assessment and the cohesion with the assessment of the reliability of other witness statements, the Court will discuss this subject extensively in paragraphs 240 – 246 below and will limit itself to the remark now that in principle the Court sees no reason to exclude the statements of these witnesses from the evidence. Pleas with respect to confrontations and forensic research not having taken place 78. Concerning the pleas of the Counsel with regard to confrontations between witnesses and Defendant not taking place on the one side and the lack of forensic excavations on the other, the Court refers to the remarks in this respect in chapter 5 (The investigation) paragraphs 80-82. 79. The Court would like to emphasize that, although several witnesses indicated a location as being the place where the passengers of the ambulance supposedly were buried, a forensic excavation was not possible because those same witnesses also stated that, after the genocide, all victims were reburied in mass graves.(499) Framework for the assessment of the evidence 80. As mentioned earlier in paragraph 46, the Court will now explicitly assess the statements of the witnesses [witness 1], [witness 2], [witness 15], [witness 7] and [witness 29] on their reliability. In this respect, the Court will apply the framework as mentioned in chapter 6 (Assessment of witness evidence) paragraph 46, but only when the statements give cause for that. [Witness 1] Re I: The witness as a person 81. On 31 July 2006, this witness was interviewed by the NCIS. Subsequently, on 13 November 2006 and on 15 January 2007, he gave his statement to the Examining Judge. During his interview by the NCIS he stated that he is not Tutsi(500); When asked during his second statement by the Examining Judge, he answered that he is Hutu.(501) Furthermore, this witness stated that, during the genocide in 1994 he lived and worked in Mugozi in Kibingo as a driver in the local medical centre.(502) 82. He also stated that he already knew the Defendant and his brother Obed Ruzindana prior to the genocide; he knew his house as well as his family. About the Defendant and his brother he stated that he knew they lived in Mugonero, near the market where he used to go shopping. The father had a shop there. They sold different products such as nails and food articles.(503) He stated to the Examining Judge that he had known the Defendant for a long time. He also stated that everybody would frequent the shop of the Defendant’s family and the he also went there from time to time(504). Furthermore, he stated that the Defendant used to work in his father's shop.(505) About the family of Defendant and his brother Obed Ruzindana he further stated that he knows their father’s name is Murakaza and that he passed away. He also stated that their mother’s name is [F1] and that Defendant also has a number of sisters.(506) 83. During the trial on 17 October 2008, the Defendant stated that he does not know this witness. 84. Based on statements mentioned above, it can be established that this witness was the driver of the ambulance. Any involvement of this witness in the facts mentioned in the charges has not been proven other than his being the driver of the ambulance. Therefore, he is considered to be a victim. 85. Furthermore, it appears from the statements of this witness that he is very well capable of making a distinction between facts he saw for himself (507) and facts other people told him about.(508) 86. As mentioned above, during his first examination by the NCIS, this witness stated that one of the passengers of the ambulance, a young girl, had survived the incident. He said that the aunt of the girl was a nun who was called [witness 16]. However, the case file does not show him having had contact with this witness, let alone about this concrete event. 87. Before the NCIS, the witness also stated that had heard statements against Ruzindana and his group before the gacaca in Mugozi. These statements were rendered by people who stated that the passengers of the ambulance had been killed and that the people rendering these statements had witnessed these killings themselves.(509) He had heard this from [witness 7] from Mugonero and from [B7], who worked as a guard in Mugonero. When asked, this witness replied that he had no contact with these witnesses anymore.(510) 88. As represented in chapter 5 (The investigation) paragraph 35, the case file shows that this witness was approached by [witness 21] who told him, on behalf of Obed Ruzindana, to leave the country. The witness refused, after which Obed Ruzindana contacted [witness 28], a friend of the witness.(511) [witness 28] was also requested to convince the witness to change his statement and to point out Obed Ruzindana as the guilty person instead of the Defendant. [Witness 28] transmitted this request to [witness 1]. Subsequently, they discussed this matter and decided to consult the Rwandese authorities.(512) 89. The fact that the witness discussed this matter substantively with [witness 28] is no reason for the Court to deem his statements less reliable. After all, the witness only discussed this matter and/or the incident with [witness 28] after he had been approached, through the intermediary of the family of the Defendant, with the request to alter his statement. 90. The fact that, during his examination by the Examining Judge, this witness made notes (of which the Counsel suspects that they were transmitted to witness [witness 28]), does not make his statement less reliable. Even if these notes would have been passed on, this can only touch the reliability of the statement of [witness 28]. In this respect, the Court notes that, contrary to Counsel’s argument, (513), it appears from the Examining Judge’s official report of findings, that the witness [witness 1] requested permission to make notes. The Examining Judge granted this permission after the Public Prosecutor and the Counsel had indicated that they had no objection against it.(514) 91. It has not been demonstrated to the Court that the witness has any interest or motive to render, contrary to the truth, an incriminating statement against the Defendant. Before the Examining Judge, the witness mentioned the pressure exercised on him to alter his statement and the fear this caused to him. He resisted this pressure and stood behind his statement. The Court took this into consideration when judging that there is absolutely no reason to doubt the reliability of the witness. Re II: The formation of the statement 92. From the official reports of the examination it appears that at some moments, misunderstandings arose.(515) However, these misunderstandings were discussed during the examination and explained by the witness, who also mentioned that he would indicate if he could not understand certain questions. That the witness actually did this is demonstrated in the official reports of this examination and other examinations before the Examining Judge.(516) In addition, these official reports show that, when his statement was read to him, this witness regularly provided additions and explanations. In view of this, it is the opinion of the Court that the misunderstandings which arose during the examination between the interviewer and the witness, were not of a substantial nature. Furthermore, with respect to the formation of the statements, there are no indications that there were circumstances which may have been of influence to the reliability of the contents of the statements. Therefore, the Court sees no reason to discuss this any further. Reliability of the statement in objective terms 93.

With respect to the contents of the statements of this witness, the Court sees no reason to further discuss the points defined in the assessment framework under III and VII (respectively verifying against objective data obtained elsewhere and the plausibility of the contents of the rendered statement). Re IV: The consistency of successive statements rendered by this witness 94. The Court considers the statements of this witness highly consistent. The most remarkable difference in the statements rendered by this witness is (in brief) the question whether a soldier had stepped into the ambulance or not, after the ambulance had been stopped in Birogo. 95. It is the opinion of the Court that in no way, this difference may or can be considered to be a fundamental inconsistency with regard to the essential aspects of the statements. Therefore, this difference, as well as other small differences in the statements of this witness, do not deserve further discussion. In this respect, the Court considers that these differences - whether in relation to each other or not - do not constitute a circumstance under which the statements of this witness should be considered to be unreliable. 96. Another point of attention in this respect is that when rendering more than one statement, there will be differences in those statements. In some statements certain elements are hardly mentioned, or not mentioned at all. These differences may very well be caused by the passage of time, the chaotic nature of the incident in which the witness seriously feared for his life and that of passengers he wanted to safe, the emotions caused by the recollection of the dramatic events for the witness, or by an error of the witness or another party to the proceedings. In addition, a comparison of differences cannot be allowed to lead to it that the statement is considered inadmissible. In view of the above, it is the Court’s opinion that the differences in the statements of this witness are not detrimental to the reliability of those statements. Re V: The quality of the recognition of Defendant by [witness 1] 97. In view of the facts mentioned above with respect to the witness recognizing the Defendant, the fact that the incident took place during daylight and that the witness was not at a long distance from the Defendant, the Court sees no reason to further discuss the quality of the recognition of Defendant by the witness. Re VI: The concurrence of the statement of this witness with statements rendered by other witnesses 98. In view of the nature of this assessment and the connection with the assessment of other witness statements, the Court will discuss this point below in paragraphs 202 - 239. [Witness 2] Re I: The witness as a person 99. On 10 November 2006, this witness was heard by the NCIS. Subsequently, she was heard on 24 January 2007 by the Examining Judge. Before the NCIS the witness stated that she is Tutsi.(517) At the time of the genocide, she was twelve years old and she lived with her parents, sisters and brother in the cellule Gabiro, secteur Kirimbi, municipality of Rwamatamu, prefecture Kibuye.(518) During the genocide, she fled to the hospital of Kibingo. 100. Prior to her fleeing to the hospital of Kibingo, the witness had never heard of the Defendant; she did not know he existed.(519) She got to know him during the genocide, because he carried out attacks on the hospital of Kibingo and other people told her that these were attacks conducted by [Defendant]. During the first attack by [Defendant] she heard this from Dativa and Brigitte. She does not know whether Dativa and/or Brigitte knew Defendant personally.(520) 101. At the moment she was told during the first attack that the attack was carried out by [Defendant], the witness looked out of the window and saw a man standing in front of a group of attackers. At that moment she was told that this man was [Defendant]. She could see him very well.(521) During the first attack by [Defendant] she heard people in his group addressing him by his name. She could hear this very well.(522) During the war, this witness also heard that [Defendant’s] name was Joseph. She also heard this from people with whom she was in the hospital.(523) Prior to the genocide, she did not know Obed Ruzindana either, but she did know the shop of his father. To the question from the Examining Judge whether Ruzindana and [Defendant] are of the same family, the witness answered in the negative. To the question from the Examining Judge whether [Defendant] was in any way involved with the shop of Murakaza, she answered in the negative as well.(524) 102. The witness saw Defendant three times, every time during attacks. Since he conducted his attacks during daytime, she always saw him during daytime,(525) but she was unable to describe him because she could not remember anymore. She did see him, but she did not pay attention to what he looked like, how tall he was; after all, this was war and she did not feel very well.(526) However, the witness will never forget the person who wanted to kill her: that was Joseph M.(527) 103. Since this witness stated not to have known Defendant prior to the genocide and to have heard who he was from other people, during the trial Defendant was not asked whether he knew this witness. 104. Based on statements represented above, it can be established that this witness was one of the passengers of the ambulance. Involvement of this witness in the facts as charged has not become manifest other than being a passenger of the ambulance and therefore, as a victim. Furthermore, the statements rendered by this witness show that she is very capable to make a distinction between matters she personally witnessed(528) and matters she was told about by others.(529) 105. It has neither become apparent that the witness knows one or more other witnesses who incriminate the Defendant and/or had contact with them about this case, nor that the witness has any interest and/or motive to render, in defiance of the truth, a statement that would incriminate the Defendant. 106. Therefore, it is the opinion of the Court that this witness gives no reason whatsoever to doubt her credibility. Re II: The formation of the testimony 107. As far as the formation of the witness statements during the examinations is concerned, there are no indications that at the time of the examinations circumstances occurred that could have been of influence on the reliability of the contents of the statements. Therefore, the Court sees no reason to discuss this point any further. Reliability of the statement in objective terms 108. With respect to the contents of the statements of this witness, the Court sees no reason to further discuss the points defined in the assessment framework under III and VII (respectively verifying against objective data obtained elsewhere and the plausibility of the contents of the rendered statement). Re IV: The consistency of successive statements rendered by this witness 109. The Court considers the statements of this witness highly consistent. The most striking difference in the statements rendered by this witness is (in brief) the fact whether or not she saw the Defendant at the barrier in Birogo. 110. In her statement before the NCIS, the witness stated that she had not seen the Defendant and Obed Ruzindana at the barrier. About the stopping of the ambulance in Birogo, she stated that the people who had stopped the ambulance in Birogo, were happy to see the ambulance, because they were clapping their hands and waving their weapons in the air. Then she heard them yelling, shouting that they were happy they had found these women because they were going to kill these beautiful women out in the open.

Furthermore, she heard the Interahamwe say that they had received orders from [Defendant] and Obed Ruzindana to search for these two mothers and their children in order to kill them. They also heard the Interahamwe say that they had received orders from [Defendant] and Ruzindana to take these women to Mugonero when they had found them.(531) 111. Before the Examining Judge the witness stated that when it became apparent that the ambulance had to stop at the barrier in Birogo, she saw the leaders Ruzindana and [Defendant].(532) However, later she withdrew this statement and she stated that she only saw Ruzindana in Mugonero and not at the barricade in Birogo.(533) She had seen the Defendant at the barricade and when the ambulance had to turn around, he got into a pick-up which preceded the ambulance on its way to Mugonero.(534) 112. In itself, this discrepancy is remarkable. However, during her interview with the Examining Judge, she was not expressly informed about the fact that contrary to what she had stated before the NCIS, she had not seen the Defendant in Birogo. Therefore, the witness was not provided with the opportunity to clarify this discrepancy. 113. It is the opinion of the Court that this discrepancy can very well be caused by the passage of time, the chaotic nature of the incident in which the witness seriously feared for her life and the lives of the other passengers, the emotions caused by the recollection of the dramatic events for the witness, or by an error of the witness or another party to the proceedings. In addition, the Court as well as the Prosecution considers it quite likely that only during her interview with the Examining Judge, the witness remembered the fact that she had already seen the Defendant in Birogo. 114. As mentioned earlier, the witness was very consistent in her other statements. Therefore, the Court considers that this discrepancy cannot lead to exclusion of the statements from the evidence, nor can it cause the Court of deeming her statements unreliable. Re V: The quality of the recognition of Defendant by [witness 2] On-site visit of the health centre in Kibingo 115. As represented above in Chapter 5 (The investigation) paragraph 18, during the status hearing on 12 February 2007, the Court suspended the hearing because of the unexpected absence of the Defence Counsel. The Court proceeded to this because the Public Prosecutor fiercely resisted a so-called open referral back to the Examining Judge and the Court was not aware of specific requests of the Counsel as to the investigation. 116. On 20 February 2007, the Court informed the Counsel by letter that it had suspended the hearing until 5 March 2007, because of the unexpected absence of the Counsel and because the Court was not aware of specific requests of the Defence as to the investigation. In the letter, the Court expressly pointed out to the Counsel that status hearings are the moments at which the progress of the investigation is discussed and the Trial Chamber decides what investigative activities the Examining Judge should carry out. 117. Subsequently, on 1 March 2007, the Defence Counsel requested the Examining Judge (and not the Court) to include the Centre de Santé of Kibingo in the official on-site visit initiated by her. The Counsel substantiated this request by arguing that clarity should be obtained as to the locations where witnesses (of the ambulance incident) allegedly were at the time and where they made their observations. 118. On 1 March 2007, the Counsel, after he had sent his request to the Examining Judge, informed the Court by fax not to be present at the forthcoming status hearing on 5 March 2007. In this fax message the Counsel indicated that, next to the request granted by the Examining Judge to hear witnesses for the Defence, he had no other requests with respect to the investigation. However, he did request the Court to refer the case back to the Examining Judge by way of a so-called open instruction. His fax message did not include his request for the extension of the intended inspection. 119. On 2 March 2007, the Examining Judge informed the Counsel that she would not comply with his request for the extension of the intended on-site visit. In her opinion, the on-site visit of the Centre de Santé in Kibingo was not relevant since, according to the witnesses, the incident had not taken place there. 120. Together with the Defence Counsel, the Court is of the opinion that for the assessment of the quality of the recognition of Defendant by [witness 2], an on-site visit of the Centre de Santé in Kibingo could have delivered relevant information. After all, in that case it could have been established whether the witness could have seen the Defendant from the space where she was according to her statement, and if so, from what distance and under what circumstances. 121. However, the sole fact that this on-site visit did not take place, does not mean that an assessment of the quality of the recognition is impossible. 122. With respect to this request, the Court would like to emphasize that the Counsel never submitted his request, directed to the Examining Judge and rejected by her, to the Court for assessment. In view of the procedure mentioned above and the fact that the Court had expressly pointed out to the Counsel that trial judges determine what investigative actions the Examining Judge needed to perform, this would have been obvious. In addition, the Counsel had motivated and substantiated his request to the Examining Judge very poorly. In view thereof, it is understandable that the Examining Judge did not recognize the relevancy of this request. The recognition of Defendant by [witness 2] 123. As represented above in paragraphs 100 - 102, the witness did not know Defendant. Dativa and Brigitte, other people with whom she was hiding, once, shortly prior to an attack, pointed out a man to her and told her that was [Defendant]. 124. A reliable recognition of Defendant by this witness would only have been possible if: - Dativa and Brigitte knew Defendant and were able to recognize him in the hectic circumstances and tension prior to the attack; - the witness had a fair and unhindered view at the man outside from the location where she was hiding at that moment. 125. It is not possible to verify whether these conditions were met. Dativa and Brigitte are not alive anymore and, as mentioned above, an on-site visit of the Centre de Santé in Kibingo did not take place. 126. In view of the fact that the only time the witness saw the Defendant, it was for a very short time and right before an attack, the Court – contrary to the Prosecution – considers that the witness was unable to see Defendant under fair conditions. After all, at that moment the witness was hiding and she must have been very frightened for the upcoming attack and must have been fearing for her life. 127. To the opinion of the Court, this is not considered to be a strong basis for recognition and identification of the Defendant. As mentioned before in Chapter 6 (Assessment of witness evidence) paragraph 42, visual identifications, pre-eminently are sensitive to error and therefore should always be treated with extreme caution. In view of the above, the Court notes that with respect to recognition of the Defendant by [witness 2], the utmost reticence should be observed. Re VI: Conformity of the statements of this witness with statements rendered by other witnesses 128. In view of the nature of this verification and the concurrence with the assessment of other witness statements, the Court will discuss this point later in paragraphs 202 - 239. [Witness 15] Re I: The witness as a person 129. On 7 August 2006, this witness was interviewed by the NCIS. At the end of that interview, he indicated that he would be prepared to confirm his statement before a Dutch Judge.

However, as mentioned above, shortly before he was to be heard by the Examining Judge, he disappeared. 130. During his examination by the NCIS he stated that he is Hutu.(535) He also stated that, during the genocide, he lived in Gituruka (Mugozi).(536) This was approximately one kilometre from the house of the Defendant and the witness would go to the centre of Mugonero about once or twice a day.(537) 131. Furthermore, the witness stated that his profession was to unload trucks and that he knew Defendant because he used to unload the trucks of the Murakaza family.(538) 132. Asked about the family members of Defendant, the witness stated that he knew the following persons: a sister called [F2], a sister called [F9], a sister called [F11], a sister called [F12], a sister called [F13], his brother Obed Ruzindana. He also knew Eli Murakaza, the father of the Defendant. Finally, he stated that the mother’s name was [F1].(539) 133. About the Defendant the witness stated that he knew the Defendant lived in the centre of Mugonero, with his father Murakaza. He also stated that the Defendant went to primary school in Muramba in Mugonero. Later, the Defendant went to study in Italy. He returned in June 1993 and from then on he helped his family with their trade in beans, sorghum and corrugated iron sheets, among other matters. They sold this from their shop in the centre of Mugonero; the shop and their home are located in one building, on the side of the big market.(540) 134. During the court session on 17 October 2008, the Defendant stated that he does not know this witness. He also stated that it does not mean a thing to him that the witness claims he unloaded trucks for the family of Defendant. 135. This witness stated that he knows [witness 1] and that he rendered a statement before the gacaca about the ambulance incident and he pointed out [witness 1] as the driver of this ambulance.(541) His statement also demonstrates that he knows [witness 7],(542) but not that this witness supposedly was in contact with other witnesses regarding this case. 136. Furthermore, the statements of this witness clearly show that he is quite capable of making a distinction between matters he has witnessed himself or matters other people told him about.(543) 137. The witness denies emphatically ever having assisted in the genocide and/or the attacks himself. According to his statements however, various people (including the Defendant) would come to him to tell him, under threats, he had to participate. He also states that sometimes people would pick him up to participate in the attacks, but that he was always able to hide from them.(544) 138. However, the contrary might be concluded from the statement of witness [witness 7]. In fact, [witness 7] stated that [witness 15] was a guard at the barrier which was set up by the Defendant and his brother Obed Ruzindana. The witness also stated that, at the time of the ambulance incident, he saw [witness 15] standing at the barrier.(545) [Witness 7] stated further that [witness 15], just like himself as a matter of fact, received a machete during the genocide, distributed by Obed Ruzindana or Defendant.(546) The wife of [witness 7], [witness 29], also stated that [witness 15] was forced to participate in the attacks.(547) 139. In view thereof, it cannot be excluded that this witness was involved in some way in the genocide in general. Therefore, according to the Court it cannot be excluded that this witness tried to minimize his role by shifting the responsibility to the Defendant. 140. All of the above considered, it is the opinion of the Court that the statement of this witness cannot be deemed to be outright incredible, although it should be regarded with caution. Re II: The formation of the statement 141. As far as the formation of the witness statements during the examinations is concerned, there are no indications that at the time of the examinations circumstances occurred that could have been of influence on the reliability of the contents of the statements. Reliability of the statement in objective terms 142. With respect to the contents of the statements of this witness, the Court sees no reason to further discuss the points defined in the assessment framework under III and VII (respectively verifying against objective data obtained elsewhere and the plausibility of the contents of the rendered statement). Re IV: The consistency of successive statements rendered by this witness 143. Since this witness disappeared shortly before he was to be interviewed by the Examining Judge, he was only heard once by the NCIS. Therefore, the consistency of his successive statements cannot be assessed. As mentioned above in paragraph 77, the fact that this witness was not heard in presence of the Defence, is no reason for the Court to exclude his statement from the evidence. Re V: The quality of the recognition of Defendant by [witness 15] 144. In view of the facts mentioned in the statements with respect to the witness recognizing Defendant or concerning the fact that the incident took place during daylight and the witness was not at a long distance from Defendant, the Court sees no reason to further discuss the quality of the recognition of Defendant by the witness. Re VI: The concurrency of the statement of this witness with statements rendered by other witnesses 145. In view of the nature of this assessment and the connection with the assessment of other witness statements, the Court will discuss this point below in paragraphs 202 - 239. [Witness 7] Re I: The witness as a person 146. On 21 July and 9 August 2006, this witness was interviewed by the NCIS. At the end of both interviews, he indicated that he would be prepared to confirm his statement before a Dutch Judge. However, as mentioned above, shortly before he was to be heard by the Examining Judge, he disappeared. 147. During his second examination by the NCIS he stated that he is Hutu.(548) 148. He also stated that, during the genocide in 1994, he lived in Mugonero, Gituruka cellule, municipality of Rwamatamu, where he was still living at the time of the interview. In Mugonero, he lived next to Obed Ruzindana, with whom he grew up together.(549) However, during his second interview it became apparent that the distance between his house and the house of Obed Ruzindana was approximately 200 metres. Besides, the houses are located on different sides of the bridge; the Kiboga River runs between the houses. However, from his house, the witness could see the house of Obed Ruzindana and therefore the house of the Defendant.(550) 149. About the family of Obed Ruzindana the witness stated that, at the time of the war, Obed lived in one house together with his father Eli Murakaza, mother [F1], brother Joseph and his sisters. He stated the following names as being sisters of Obed: [F9], [F2], [F11] and [F4]. The official record of the witness examination shows that the witness could have mentioned more names of sisters, but the reporting officers did not deem this necessary.(551) 150. The witness described the profession of the family of the Defendant as ‘first class’ traders, which means that the family had considerable power. The Defendant was his father’s driver and besides that, he helped his father in the shop. In addition, the witness knows that the Defendant finished his studies in Italy. 151. From the official records of witness examination it appears that, during the war, this witness owned a pub. This pub was located near the bridge over Kiboga river, near the barrier of Defendant.(552) 152. When asked during the court session on 17 October 2008, Defendant stated that he thought he knew this witness. He stated that if he remembered well, the witness was living not too far from him: at approximately one kilometre distance.

Defendant further stated that he did not know him very well and that, as children, they did not play with each other. Defendant also stated that there was no animosity between him and the witness. 153. Furthermore, the statements rendered by this witness show that he is very capable of making a distinction between facts that he experienced personally and facts that were told to him by others.(554) 154. It also appears from the statements of this witness that [witness 1] often accompanied him to the gacaca.(555) In view of this it cannot be excluded that, at the gacaca, this witness heard information with respect to the charge and therefore, one can speak about source amnesia. As a result of this, the Court shall treat the statements of this witness with caution. 155. The statements also demonstrate that the witness knows [witness 15] and that he lives nearby.(556) However, it was not demonstrated that the witness spoke substantively about this case with [witness 15]. 156. The file does not show any proof of any involvement of this witness in the charged offences. The statements of the witness do make clear that he was convicted to imprisonment for the murder of a pastor during the genocide. In this respect, the witness stated that he confessed because there was nothing he could do for the victim.(557) He further stated that the Defendant and his brother Obed Ruzindana had ordered him to kill this pastor.(558) 157. The witness denied ever having participated in attacks on Tutsis.(559) According to him, the Defendant and Obed Ruzindana would not accept that he did not participate in the attacks, but he always took good care to be able to escape prior to the attacks. The witness stated that Defendant called him to account for this behaviour. As a penitence, Defendant took two goats and served them as food to the Interahamwe. Later, Defendant came back once more and on that occasion he took the commercial stock of cigarettes from the witness.(560) 158. As mentioned above, Defendant stated that he had no idea why the witness rendered an incriminating statement. According to Defendant there was no animosity between him and this witness. During the court session on 4 December 2008, Defendant explicitly denied having taken/stolen goats and cigarettes from this witness. The Defendant also repeatedly denied having been involved in any attack on Tutsi civilians, let alone that he would have incited other people to participate and/or would have called them to account for their refusal to do so. Finally, the Defendant denied having been involved in any murder whatsoever. 159. Notwithstanding this denial of Defendant and in view of the contents of paragraphs 156 and 157, the Court cannot exclude that the witness may have a possible motive to render an incriminating statement against Defendant. Nor can it be excluded that the witness has tried to minimize his own role/involvement by trying to shift the responsibility to the Defendant. In view of this, the Court shall regard the statements of this witness with caution. Re II: The formation of the statement 160. As far as the formation of the witness statements during the examinations is concerned, there are no indications that at the time of the examinations circumstances occurred that could have been of influence on the reliability of the contents of the statements. Therefore, the Court sees no reason to discuss this point any further. Reliability of the statement in objective terms 161. With respect to the contents of the statements of this witness, the Court sees no reason to further discuss the points defined in the assessment framework under III and VII (respectively verifying against objective data obtained elsewhere and the plausibility of the contents of the rendered statement). Re IV: The consistency of successive statements rendered by this witness 162. Since this witness disappeared shortly before he was to be interviewed by the Examining Judge, - apart from his examination before the Parquet Général in Rwanda - he was only heard twice by the NCIS. Therefore, the consistency of his successive statements cannot be assessed properly. As mentioned above in paragraph 77, the fact that this witness was not heard in the presence of the Defence, is no reason for the Court to exclude his statement from the evidence. 163. The most striking discrepancies in the statements rendered by this witness concern (briefly): I what happened after the passengers stepped out of the ambulance; II the moment at which the passengers were murdered and how long this had lasted. Re I: What happened after the passengers stepped out of the ambulance 164. Before the Parquet Général in Rwanda, in June 2006, this witness stated that the people were forced to step out of the ambulance of [witness 1]. Among those people was the wife of Gerard. She was so scared that her cloth fell to the ground. When she wanted to pick it up, she gave her child to the witness, because she knew him. The witness carried the child until the moment [B11] forced him to put the child down. After the witness refused, this [B11] hit him and took the child from him and gave it back to the mother.(561) 165. During his interview by the NCIS, the witness did not mention this incident. To the question during his second interview before the NCIS whether he knew the victims who had been killed in the ambulance incident, he answered that he did not know their names.(562) 166. The second interview of this witness before the NCIS took place shortly (approximately two months) after he had rendered his statement before the Parquet Général in Rwanda. Therefore, the difference on this point is remarkable. Because of his disappearance, it was not possible to confront the witness with this inconsistency. However, this circumstance does not necessarily have to lead to exclusion from the evidence. Ad II: The moment the passengers were killed and how long this had lasted 167. In June 2006, before the Parquet Général in Rwanda, this witness stated that after the passengers had stepped out of the ambulance, the Defendant asked the bystanders to leave because he wanted to be alone with the Interahamwe. Thereupon the witness and the other bystanders left. During two hours, the Defendant and his Interahamwe interrogated the women asking them where their husbands were hiding. Subsequently, the women were brutally murdered with clubs.(563) 168. During his first interview by the NCIS, the witness stated that the Defendant ordered the passengers to get out. Then he gave the order to the Interahamwe to kill these people, after which he parked the ambulance behind his house. When he returned, the passengers had not been killed yet, but the Interahamwe proceeded immediately with the killing. The victims asked for some time to pray, but the Defendant did not allow them this time. According to the witness, the massacre lasted approximately 20 minutes.(564) 169. During his second interview by the NCIS, the witness stated that the passengers were forced out of the ambulance and taken to the cattle market. Once at the cattle market, located right at the other side of the bridge over Kiboga River, as seen from the house of the Defendant, the passengers were massacred by the Interahamwe of the Defendant, who was standing there too.(565) 170. This difference can be considered remarkable too and once more, because of the disappearance of this witness, it has not been possible to confront the witness with this inconsistency. However, this circumstance does not automatically lead to exclusion of evidence, but since there is no reasonable explanation for this discrepancy, the Court will pass over the statement that the witness rendered with respect to the moment at which the passengers were killed and the time it had taken. 171. As mentioned above, there is no reasonable explanation for this discrepancy.

Nevertheless, these discrepancies in itself - and in relative sense - do not result in a circumstance in which the statements of this witness should be automatically excluded from the evidence, all the more since the witness has not had the opportunity to explain them. In addition, because of a number of discrepancies, a witness statement cannot be regarded as totally unreliable. Re V: The quality of the recognition of Defendant by [witness 7] 172. In view of the facts mentioned in the statements with respect to the witness recognizing Defendant or concerning the fact that the incident took place during daylight and the witness was not at a long distance from Defendant, the Court sees no reason to further discuss the quality of the recognition of Defendant by the witness. Re VI: The concurrency of the statement of this witness with statements rendered by other witnesses 173. In view of the nature of this assessment and the connection with the assessment of other witness statements, the Court will discuss this point below in paragraphs 202 - 239. [Witness 29] Re I: The witness as a person 174. On 21 and 22 March 2007, this witness was interviewed by the NCIS following the disappearance of her husband [witness 7], to whom, as a matter of fact, she is not officially married.(566) 175. During these examinations, the witness did not state anything about her ethnic background. She did state that she had lived with [witness 7](567) since she was seventeen – i.e. already during the genocide - near the market in Mugonero, which is very near to the road from the market towards Kibingo.(568) 176. This witness stated that she had known the Defendant for a long time, because he was born in the village.(569). He was a young man and his brother Ruzindana was married. However, the witness does not know the last name of the Defendant.(570) 177. With respect to the family of Defendant, this witness spoke about his brother Obed Ruzindana, his sister [variation on name F3] and the child of that sister: [F10].(571) As the grandfather and grandmother of [F10] (and therefore as the parents of the Defendant) the witness mentions Murakaza and [F1]. About Murakaza and [F1] the witness further stated that they had been in prison because they had been charged with participating in the genocide. In addition, this witness stated that [F1] went abroad and that Murakaza had died after he had been released from prison.(572) 178. When asked during the court session on 17 October 2008, Defendant testified that he did not know this witness. 179. This witness stated that she knows that her husband [witness 7] was picked up once or twice by a man from the Parquet Général. However, [witness 7] did not tell her before what authority he had rendered a statement.(573) Her statement also shows that she knows [witness 15](574) and that she knows everybody in the neighbourhood by face since they meet frequently at the market, but not by name.(575) 180. The file does not show that this witness had substantive conversations about this case with other witnesses. Furthermore, it has become apparent that this witness is very well capable of making a distinction between facts that she experienced personally and facts that were told to her by others.(576) 181. Any involvement of this witness in this charged offence has not been shown. 182. The Court recognizes that the disappearance of her husband [witness 7] could provide a possible motive to this witness to render a statement that would incriminate Defendant. In addition, this witness made the following statement before the NCIS: “Joseph has done some bad things during the genocide, since he was always with his brother Obed, which means Joseph is guilty as well.”(577) 183. Therefore, it cannot be excluded that the witness has a possible motive to render, contrary to the truth, an incriminating statement against the Defendant. In addition, from the above quotation could be derived that the witness considers the Defendant guilty just because of his family ties with Obed Ruzindana. 184. However, the statements of the witness show that she also said that she had never seen the Defendant do anything.(578) With respect to the ambulance incident, she stated about what she had seen and she clearly added that she had not seen the Defendant at the time of the massacres of the passengers. 185. Therefore, it is the opinion of the Court that the person of the witness does not give reason to doubt her credibility. The Court takes into consideration that the witness stated that she had not seen the Defendant at the time of the massacre of the passengers of the ambulance, despite a possible motive to render, contrary to the truth, a statement that would incriminate Defendant. Re II: The formation of the statement 186. As far as the formation of the witness statements during the examinations is concerned, there are no indications that at the time of the examinations circumstances occurred that could have been of influence on the reliability of the contents of the statements. Reliability of the statement in objective terms 187. With respect to the contents of the statements of this witness, the Court sees no reason to further discuss the points defined in the assessment framework under III and VII (respectively verifying against objective data obtained elsewhere and the plausibility of the contents of the rendered statement). Re IV: The consistency of successive statements rendered by this witness 188. Since this witness was heard twice by the NCIS and the first interview was focussed on the disappearance of [witness 7], the consistency of her successive statements cannot be assessed. As mentioned above in paragraph 77, the fact that this witness was not heard in presence of the Defence, is no reason for the Court to exclude his statement from the evidence. Re V: The quality of the recognition of Defendant by [witness 29] 189. Since this witness stated that she had not seen the Defendant at the time of the massacre on the passengers, there is no reason to discuss the assessment of the quality of the recognition of Defendant by this witness. Re VI: The concurrency of the statement of this witness with statements rendered by other witnesses 190. In view of the nature of this assessment and the connection with the assessment of other witness statements, the Court will discuss this point below in paragraphs 202 - 239. Other witness statements in the criminal case file 191. As mentioned earlier, [witness 17], [witness 28], [witness 16], [witness 21], [witness 26], [witness 9], [witness 20], [witness 31], [witness 32], [witness 35] and [witness 33] also rendered statements in relation to this charged offence. At this moment, the Court will briefly mention these statements. [Witness 17] 192. In the statements of this witness, remarkable differences can be pointed out with respect to the consistency of his successive statements(579) as well as regarding the concurrence of these statements with statements by other witnesses.(580) In addition, at some points these statements are inconsistent and/or not very plausible(581). Moreover, these points are regularly related to aspects that could be crucial for the evidence. Therefore, these points raise considerable question marks for the Court with respect to the reliability of the statements of this witness. [Witness 28] 193. With respect to the statements of this witness concerning this fact it must be noted that he only saw parts of the incident and heard about other parts from other people, while on other points his statements are difficult to follow.(582) The ‘hearsay’ witnesses 194.

The other witnesses for the Prosecution are [witness 16], [witness 21], [witness 26], [witness 9] and [witness 20]. These are all witnesses who have not personally witnessed this incident and have only testified about matters they had been told about by other people, which is the reason for the Court not to discuss these statements in detail right now. Witnesses for the Defence [Witness 31] 195. In brief, witness [witness 31] stated that he was in Birogo at the moment an ambulance was redirected by police officers. At the instruction of these police officers, the ambulance was escorted by a group of people including the witness.(583) At that moment, the witness had no idea about the ethnic background of the passengers. During the drive from Birogo to Mugonero, people who escorted the ambulance were singing “Alleluia, Alleluia”.(584) Once arrived at the barrier in Mugonero, the witness saw that the passengers were taken out of the ambulance, after which he walked away. A couple of minutes later, he heard shots and he ran away. While he ran away he passed the house of the Defendant, whom he saw sitting there. The witness briefly told the Defendant what he had seen and went to his own house.(585) [Witness 32] 196. This witness stated that he was aware of the incident on 13 April 1994, involving an ambulance. He told that on that day he was quenching his thirst in the company of the Defendant, when they heard shots. From people who ran away, they heard that police officers with rifles had shot at people who had been transported in an ambulance. The witness had not heard anything about the ethnic background of the passengers of the ambulance.(586) [Witness 35] 197. This witness stated that he was employed as a gendarme. On the day of the incident, he was on duty in Birogo when his boss ordered him to redirect the ambulance to Mugonero in order to protect the shopping centre in Kibongo.(587) To the question whether the passengers were Hutus or Tutsis, the witness answered that he had not paid attention to that. To him it was not important; he just did his job.(588) According to this witness, the passengers of the ambulance were not killed. In addition, the witness stated that during all the time he was in Birogo, he had not seen the Defendant.(589) 198. Furthermore, this witness stated that a number of people escorted the ambulance. Those people were on foot because the driver of the ambulance had not allowed them to get in. Thereupon, those pedestrians went along to go shopping in Mugonero. They were singing while they walked along with the ambulance.(590) [Witness 33] 199. This witness stated that he saw the ambulance at the barrier in Mugonero on market day. Because many people had gathered at the barrier and made a lot of noise, he went over there to have a look. Subsequently, he saw that the gendarmes made the passengers step out and stand in a line. The soldiers surrounded the passengers, took them into the bushes, after which the witness heard gunshots.(591) 200. About the Defendant this witness stated that he had seen him on that particular day. The first time was at the shop of the family of the Defendant, approximately 40 minutes before the ambulance arrived. After the witness had heard the gunshots, he went into the direction of the market where he saw the Defendant again. He had not seen the Defendant at the barrier.(592) Assessment of the charges 201. Now that all possible evidence in the case file has been discussed (in some cases briefly), the Court shall verify the most important (eye)witness statements of [witness 1], [witness 2], [witness 15], [witness 7] and [witness 29] against the statements of other witnesses, with the aid of the item of consideration mentioned under VI in the assessment framework. When doing this, the Court will limit itself to the most noticeable differences. Later, in paragraphs 225 – 239, the Court will attach conclusions to these differences and, in paragraphs 256 – 260, indicate which facts are legally and convincingly proven, and which facts are not. Re VI: Conformity of the statements of this witness with statements rendered by other witnesses 202. Briefly represented, the most important differences in the statements of the above mentioned witnesses are: a) the date of the incident; b) the number of passengers in the ambulance; c) the barrier in Birogo; d) other cars surrounding the ambulance; e) whether or not Defendant was present at the barrier in Mugonero prior to the arrival of the ambulance; f) whether or not Defendant was present at the time the passengers of the ambulance were massacred. Re a: the date on which the incident allegedly took place 203. [Witness 1] stated that this incident took place on 13 April 1994.(593) [Witness 2] stated that she thinks it must have been approximately one week after 6 April 1994.(594) During his examination, [Witness 7] mentioned the Monday after the Wednesday on which the plane of the president crashed, as the date.(595) The wife of [witness 7], [witness 29] did not mention any date during her examination. 204. As mentioned above in paragraph 34, witness [witness 15] does not recall the date of the incident anymore. He thinks it took place around May 1994, but he is not sure.(596) Re b: the number of passengers in the ambulance 205. As mentioned above in paragraph 12, [witness 1] stated that the following persons were in the ambulance: the families of Gerard Muhutu and Anaclet Munyanziza:(597) Dativa and Brigitte with their children(598) and a seven to eight-year-old girl. The father of this girl was [B5](599) and the girl looked like the daughter of burgomaster Furere.(600) The police sergeant [B12] was also in the ambulance.(601) 206. [Witness 2] (whose father is [B5], as mentioned before) stated that the following persons were in the ambulance: Dativa with her children; Dativa’s younger sister, called Pascasi whose nickname was Nyiraamwamira; Brigitte with her children. As the children of Dativa and Brigitte, she gave the following (nick) names: Jagwar, Kinuma, Thea and Claire. In addition, she and Caritas were in the ambulance. [Witness 1] was the driver (602) and police sergeant [B12] was with them. Already before the ambulance arrived in Birogo, Caritas and the police sergeant got out of the ambulance.(603) 207. Contrary to the above, [Witness 15] stated that in Mugonero, about 20 people were taken out of the ambulance, men, women and children.(604) About the passengers he stated that ‘apart from the daughter of Abeli Furere’(605), he knew none of the passengers (606). He did know that [witness 1] was the driver of the ambulance.(607) 208. During his interview before the NCIS, [witness 7] did not explicitly mention the people in the ambulance, although he did state that the driver and a seven-year-old girl, 'the daughter of Abel Furere' had survived the incident.(608) Before the Parquet Général in Rwanda he stated that in any case the driver [witness 1] and the wife of Gerard and her child were in the ambulance.(609) 209. [Witness 29] stated that she had not seen the passengers of the ambulance. After they had been killed, she had seen their bodies. There were bodies of women and their children(610) and she thought she saw the bodies of Gerard Muhutu’s children, but she was not sure anymore. In any case, she had heard that his wife and children were in the ambulance.(611) Re c: the barrier in Birogo 210. As represented above, witness [witness 1] stated that he had been stopped in Birogo because the road was blocked by Ruzindana’s car which was driven by the Defendant. 211. Contrary to this, [witness 2] stated that there was a roadblock in Birogo, a barricade. Before the Examining Judge she described this barricade as two vertical trees with a horizontal tree on top.

She also stated that one was not allowed to cross the barricade without being checked first and that there were Interahamwe at the barricade. Everybody was checked and searched.(612) 212. Before the NCIS, she further stated that, before they arrived at the barricade, the passengers of the ambulance were afraid they would be stopped at the barricade in Birogo. The witness knew that barricade was there, she had been told by other people. Those other people had tried to flee, but they would not be allowed to pass this barricade, which is why they had returned to the hospital/church complex in Kibingo.(613) 213. None of the other witnesses mentioned a barricade in Birogo, although witness [witness 35] speaks about a post in Birogo where he was working as a gendarme.(614) Re d: other cars surrounding the ambulance 214. As mentioned above, witness [witness 1] stated that the ambulance had been surrounded and kept surrounded on the road between Birogo and Mugonero, by a group of people escorting the ambulance. 215. Witness [witness 2] stated that the ambulance had been escorted by cars driving in front of it as well as behind it. 216. None of the other witnesses interviewed about this incident mentioned the ambulance being surrounded by cars. As represented above, the witnesses [witness 31] and [witness 35] did state that the ambulance had been surrounded by pedestrians. Re e: whether or not the Defendant was present at the barrier in Mugonero prior to the arrival of the ambulance 217. As represented above in paragraphs 16 and 17, witness [witness 1] stated that in Mugonero, he had been held for a short time at the barrier by soldiers and that the Defendant arrived there shortly after.(615) 218. Contrary to this, [Witness 2] stated, as mentioned in paragraph 23, that the Defendant had been driving ahead of the ambulance and that he had already arrived in Mugonero when the ambulance arrived.(616) She did not say who had stopped the ambulance there. 219. Witness [witness 15] did not state anything about this; he had come to the spot when the ambulance had already arrived in Mugonero. 220. As represented earlier in paragraph 36, witness [witness 7] stated about this that when the ambulance arrived at the barrier, he had seen the Defendant standing there already and he had seen Defendant stopping the ambulance.(617) 221. Finally, witness [witness 29] stated about this that at the moment the ambulance had turned around and gone back to Mugonero, she had seen that the Defendant, together with his brother, soldiers and other people followed the ambulance.(618) Re f: whether or not the Defendant was present at the time the passengers of the ambulance were massacred 222. From the examination of [witness 29] it appears that she had not seen the Defendant at the moment the passengers of the ambulance were killed at the cattle market.(619) In this sense, the statement of this witness differs from the other evidence in the case file. It should be noted here that she indicated that she had not been able to see exactly how the people were killed because many people from the village surrounded the spot.(620) General considerations with respect to differences in the statements of different witnesses 223. It is the opinion of the Court that the differences in the statements of witnesses deserve a close look. It is important to remember that differences between statements can be caused by the passage of time, the chaotic nature of the incident in which the witness seriously had to fear for his or her life and the lives of the other passengers, the emotions caused by the recollection of the dramatic events for the witness, or by an error of the witness or another party to the proceedings. In addition, the statements demonstrate that each witness had only been capable of seeing part of the events. A total image of the events arises only when the different statements are regarded in cohesion. 224. Therefore, it is the Court’s view that other differences than those discussed above (in statements rendered by one and the same witness as well as differences between statements of different witnesses) do not need any further discussion. Considerations with respect to these differences Re a: the date on which the incident allegedly took place 225. In view of the witness statements rendered by [witness 1] and [witness 2], which statements are supported by the statement of [witness 7], the Court judges that the massacre must have taken place on or around 13 April 1994. 226. Therefore, concerning this point, the Court puts aside the different statement of witness [witness 15]. During the interview, this witness already indicated that he could not remember anymore when the incident had taken place. This difference can very well be attributed to the considerable passage of time since the incident. Re b: the number of passengers in the ambulance 227. As mentioned earlier in paragraphs 205 – 209, the statements of the witnesses differ with respect to the number of passengers of the ambulance. The statements of [witness 1] and [witness 2], who were in the ambulance themselves, are in concurrence regarding Dativa with her children, Brigitte with her children, the police sergeant and their own presence. Furthermore, these statements are consistent regarding the fact that when the ambulance had arrived in Mugonero, the police sergeant had already left the ambulance. 228. Also the statements of [witness 7] and [witness 29] show that, in any case, the wife of Gerard Muhutu and her child had been one of the passengers of the ambulance. 229. In view of these statements, it is the opinion of the Court that it can be established that [witness 1] was the driver of the ambulance and that when the ambulance arrived in Mugonero, at least the following persons were in it: [witness 2], Dativa (the wife of Gerard Muhutu) and her children, Brigitte (the wife of Anaclet Munyanziza) and her children. [witness 2] stated that there were at least four children in the ambulance. 230. Therefore, the Court disregards the statement of [witness 15] stating about 20 passengers including men. However, this does not mean that because of this, the Court will put aside all other parts of his statements. Re c: the barricade in Birogo 231. Only [witness 2] mentioned a barricade in Birogo. [Witness 1] stated that he had been forced into the kerb by a car driven by the Defendant. Now that [witness 1], being the driver, must have had a better view on the road ahead of him than one of the passengers, the Court accepts the statement of [witness 1] and disregards the statement of [witness 2] on this point. 232. The Court would like to emphasize that it does not consider the statements of this witness to be unreliable. Certainly since these differences can be explained very well by a failing memory caused by the passage of time, the chaotic nature of the attack, an error of the witness or another party to the proceedings and the emotions caused by the recollection of the dramatic events. Re d: the ambulance being surrounded by other cars 233. In view of the witness statements above, the Court is of the opinion that, from Birogo, in any case, the car driven by the Defendant, either ahead or behind the ambulance, must have been driving. Therefore, on the point of cars or pedestrians surrounding the ambulance, the statements of [witness 2] and [witness 1] do not necessarily contradict each other. In addition, considering the statement of [witness 1] who, as the driver, must have had a good view on the road, the Court considers that the ambulance must have been surrounded by pedestrians as well. Re e: whether or not the Defendant was present at the barrier in Mugonero prior to the arrival of the ambulance 234.

As mentioned above in paragraphs 217 – 221, [witness 1] and [witness 29] stated that the Defendant drove behind the ambulance from Birogo. Contrary to this, the witnesses [witness 2] and [witness 7] stated that the Defendant was already standing at the barrier in Mugonero when the ambulance arrived. Finally, [Witness 15] stated nothing in this regard. 235. In view of these contradictions, it is the opinion of the Court that it cannot be proven beyond all reasonable doubt that the Defendant was already at the barrier prior to the arrival of the ambulance in Mugonero. 236. As considered above in Chapter 7 (The roadblock in Mugonero, paragraph 34), it has been established that the Defendant played a leading role at this barrier, set up by himself and his brother. Furthermore, the statement of [witness 2] shows that the Interahamwe said they had received instructions from the Defendant and his brother to look for the passengers of the ambulance and that, once they had found them, to take them to Mugonero. 237. In view thereof, it is the Court’s opinion that, even if the Defendant was not yet present at the barrier, there was a conscious and close cooperation between the Defendant and the people at the barrier who actually stopped the ambulance. Therefore, in that sense, the question whether the Defendant himself had carried out the act of stopping the ambulance (not mentioned in the charges, as a matter of fact) is not relevant. Even if the Defendant would not have assisted in the stopping of the ambulance in Mugonero, this stopping can be closely related to the instructions given by him earlier and therefore, to the conscious and close cooperation. Re f: whether or not the Defendant was present at the time the passengers of the ambulance were massacred 238. As mentioned above, [witness 29] stated that she had not seen the Defendant at the moment the passengers of the ambulance were murdered. In this respect she also noted that she was not able to have a good look since the spot was surrounded by many people from the village. 239. Therefore, the Court considers the statement of this witness not in contradiction with other evidence. After all, the statement of this witness only demonstrates that she had not seen the Defendant, which may not lead to the conclusion that the Defendant was not present at the barrier in Mugonero and during the massacre of the passengers. General considerations with respect to witnesses not cross-examined by the Defence Counsel 240. As mentioned earlier in paragraphs 60, 63 and 72, the Counsel brought forward that the statements of [witness 7] and [witness 15] should be excluded form the evidence, while the statement of [witness 29] should not be used as evidence. In so far as the Counsel wanted to rely on the provisions of article 6 European Convention on Human Rights (ECHR), the Court considers the following. 241. In so far as the Defence Counsel wanted to rely on the provisions of article 6 (ECHR), the Court mentioned already in paragraphs 73 – 77, that in case the Defendant or his Counsel was not provided the opportunity to cross-examine a witness, article 6 ECHR does not at all times preclude the statements rendered by that witness from being used as evidence. Therefore, in principle the Court sees no reason whatsoever to exclude these statements from the evidence. 242. In this respect, the Court noted that although the European Court of Human Rights takes the procedure in its entirety into consideration, to answer the question whether a fair trial took place the following factors play an important role: ° the presence of other - witness statement supporting – evidence; ° the possibility for the Defendant to demonstrate the reliability of the witness and/or his or her statement; ° and the commitment of the judicial authorities in their efforts to have the witness cross-examined by the Defence. Considerations with respect to witnesses [witness 15] and [witness 7] 243. Because of the disappearance of witnesses [witness 15] and [witness 7], the Prosecution and the Counsel did not have the opportunity to (give the instruction to) interview these witnesses. The allegation made by the Counsel that the Examining Judge as well as the Prosecution were negligent with regard to their efforts to trace witnesses, lacks any legal basis: these witnesses could not be traced. 244. Therefore, it is the opinion of the Court that the (judicial) authorities were not negligent with regard to their efforts to (give the instruction to) hear these witnesses. Furthermore, as demonstrated above, the statements of these witnesses are largely supported by other evidence. Consequently, article 6 ECHR does not preclude the statements rendered by that witness from being used as evidence. In this respect, the plea of the Defence Counsel to preclude the statements of [witness 15] and [witness 7] from the evidence is rejected. Considerations with respect to witness [witness 29]: 245. As shown earlier in paragraph 75, the statement of a witness who was not cross-examined by Counsel, may be used as evidence without misapplication of article 6 ECHR, if Counsel did not request at any time to cross-examine that witness and if the statement of the witness is largely supported by other evidence. 246. The Court puts first that, at no moment during the proceedings, the Counsel requested to have this witness interviewed by the Examining Judge. Now that the statement of witness [witness 29] is largely supported by other evidence, there is no reason to preclude this statement from the evidence and therefore, the plea of the Counsel is rejected. Consideration with respect to the other, remaining, witness statements 247. As mentioned above, it is the opinion of the Court that the differences in the statements of [witness 17] raise considerable question marks with regard to the reliability of the statements of this witness. Following the judgement of the Court of Appeal of The Hague in the [K.] case, it is the Court’s opinion that it is considered to be risky, at least, to consider parts of the statements of this witness to be reliable, while in other statements, he is demonstrable 'wrong'. Furthermore, the Court endorses the Appeal Court’s ruling in the said case, indicating that it is impossible to disregard parts of statements which are obviously contradictory, impossible or not very plausible and, on the other hand, use rather selectively chosen parts from those statements as (supporting) evidence. Therefore, the Court shall not use the statements of this witness as evidence with respect to the charges. However, the Court would like to emphasize that - notwithstanding the above – it explicitly distances itself from the assertion of the Defence Counsel that this witness should be regarded as a storyteller who, in a very transparent way, tries to incriminate the Defendant. 248. With respect to the statements of witness [witness 28], the Court stated earlier that remarkable differences in those statements can be pointed out and that this witness only saw parts of the acts mentioned in the charges personally and just heard about other parts. In view thereof, the Court has decided not to use the statements of this witness as evidence with regard to the charged facts. 249. As mentioned earlier with respect to the other witnesses for the Prosecution, these are all witnesses who have no personal knowledge of this fact and who only have stated about matters they had been told about by other people. 250. Although no legal rule bars these statements from being used as evidence, in imitation of the Prosecution when substantiating the charges, the Court shall not use these statements as evidence with regard to the charges. 251.

In view of the remarks recorded earlier in Chapter 3 (Rwanda) with respect to the historical background of Rwanda and the course of the genocide, the Court believes that the statements of the witnesses for the Defence [witness 31] and [witness 35] deny the atrocious reality of the genocide in Rwanda. In fact, both witnesses stated that they did not know the ethnic background of the passengers of the ambulance, in which respect [witness 35] stated that he only did his work as a gendarme and that the ethnicity was of no importance to him. Therefore, the Court considers these statements to be totally incredible. 252. The Court also deems the statement of [witness 32] incredible. It this respect, the Court expressly points out the incredible statements about his dowry and about being unable to indicate the ethnic background of the passengers. Finally, in its judgement the Court also considered the circumstance that, on a very essential point (i.e. the shooting down of the passengers) the statement of this witness differs from statements rendered by other witnesses. 253. Also the statement of [witness 33] does not correspond with statements of other witnesses on the very essential point of shooting the passengers. Besides, this witness also stated that, although he lived in Mugonero at the time of the genocide, he does not know anything about the massacre in the Mugonero hospital on 16 April 1994. Therefore, the Court considers the statement of this witness to be incredible. 254. In view of the above, the Court disregards the statements of these witnesses for the Defence. 255. In addition, the above taken into account, the Court sees no reason to discuss the statements of these witnesses explicitly with the aid of the assessment framework. Final considerations 256. Based on the statements of [witness 1] and [witness 2] which statements are partly supported by statements rendered by [witness 15], [witness 7] and [witness 29], the Court considers the following acts as defined in the indictment to be legally and convincingly proven. However, the principal and alternative charges are somewhat different in a linguistic meaning, although in essence, they are identical. In view of this difference and because of the fact that this difference is unrelated to the question to be answered later on with respect to which legal qualification should be applied to these facts, for now the Court shall just render briefly which acts it believes legally and convincingly proven. In view of the difference between the principal and alternative option, the Court proceeds from the most detailed description of the facts which, based on the earlier mentioned factual findings, are considered to be legally and convincingly proven, without anticipating the decision to be taken hereafter. The Court deems legally and convincingly proven that the Defendant: on or around 13 April 1994, in Birogo or Mugonero respectively, in Birogo, forced an ambulance to stop which contained the following passengers: [witness 1], [witness 2], Dativa (the wife of Gerard Muhutu) and her children, and Brigitte (the wife of Anaclet Munyanziza) and her children. Subsequently, the ambulance was forced to drive to Mugonero all the while being surrounded and being hit by the people surrounding it, who were yelling and shouting insults such as “Inkotanyi”. Once arrived in Mugonero, the passengers were forced to step out of the ambulance, during which threats were uttered such as “before the cockroaches are killed, the driver must be killed first' and 'we are happy to have found these women because we are going to kill these beautiful women out in the open”. Subsequently, the passengers of the ambulance were forced to stand in a line, whereupon Dativa (the wife of Gerard Muhutu) and her children and Brigitte (the wife of Anaclet Munyanziza) and her children were hit on the head, knocked down with machetes and/or clubs. As a consequence of these acts Dativa (the wife of Gerard Muhutu) and her children and Brigitte (the wife of Anaclet Munyanziza) and her children died. 257. In the final statement of judicial finding of fact, the Court shall correct the typing and writing errors now that it has become apparent that these corrections have not prejudiced the defence of Defendant. 258. Together with the Prosecution, the Court is of the opinion that the principally charged aggravating circumstance i.e. that, as a consequence of the acts, [witness 1] and [witness 2] would have suffered (serious) bodily harm, has not been legally and convincingly proven. 259. Furthermore, with the Prosecution the Court considers the principally as well as alternatively charged fact i.e. throwing one or more hit and slashed children into Kivu lake, not to be legally and convincingly proven. Finally, in this respect the Court notes that other charges (i.e. showing all kinds of weapons such as firearms, machetes and/or clubs, during the ride from Birogo to Mugonero) as principally charged after the second dash and alternatively charged after the third dash, have not been legally and convincingly proven. 260. Finally, the Court notes that there is no need to further motivate that the above defined acts in the principal charge are to be qualified as attacks on the life and/or killing and/or inflicting serious bodily harm or mutilation and/or cruel inhuman treatment and/or torture and/or threat. Nor is there any doubt about the fact that the above mentioned acts as defined in the alternative charge have lead to it that the passengers were forced in a situation in which they had to fear for their lives and/or the lives of their family and/or friends and/or acquaintances (as recorded after the second dash). Chapter 10: The attack on the Seventh Day Adventists Complex Origin of the suspicion 1. As mentioned in the above Chapter 5, the Minister of Foreign Affairs issued an individual official report about Defendant on 14 February 2006. This report contained the following statement: ‘Almost all interrogated sources confirmed the fact that the person concerned participated in the massacre in Mugonero.’(621) 2. Partly as a result of this official report the National Office of the Public Prosecution Service consulted the Parquet Général in Rwanda. These consultations showed that the name of Defendant had already appeared in an investigation conducted by the Parquet Provinciale in Cyangugu (the so-called Cyangugu-file). Subsequently, the Public Prosecutor sent a request for legal assistance to Rwanda on 14 June 2006. At the receipt of this request for legal assistance, the Rwandese authorities, on their own accord, conducted further inquiries whereby they decided to examine once again the witnesses from the Cyangugu-file. These witness statements made after 14 June 2006 were made available to the NCIS. A number of these witnesses accused the Defendant of being involved in the attack on the Seventh Day Adventists Complex.(622) At a later date, these witnesses were also interviewed by the NCIS and they stated once again about the attack on the Seventh Day Adventists Complex and about the involvement of Defendant in this attack.(623) Furthermore the NCIS also interviewed other witnesses from the Cyangugu-file in relation to other offences allegedly committed by the Defendant. One of them also gave evidence about the aforesaid attack and the role of Defendant in the attack.(624) Position of the Prosecution 3. The Prosecution requested the Court to declare legally and convincingly proven that the Defendant jointly and in conjunction with his co-perpetrators attacked the unarmed refugees who were present at the complex, seriously injured them, shot and killed them, beat or stabbed them to death by using fire arms, machetes, clubs and grenades, as charged to the Defendant.

In this context the Prosecution made reference to the witness statements made by [witness 24], [witness 25], [witness 10], [witness 14], [witness 22], [witness 8] and [witness 9], which will be discussed below.(625) Position of the Defence 4. The Defence submitted the motion that Defendant be acquitted of this charge and – as elaborated further in his oral pleadings – basically argued that the witness statements of [witness 8], [witness 10], [witness 14], [witness 25], [witness 24], [witness 9] and [witness 22] were unreliable and therefore could not be used as evidence. The witness statements contain large and very important discrepancies. Furthermore the witnesses did not give consistent evidence (over the years) regarding important elements. The Defence especially pointed out that the name of the Defendant did not come forward in prior testimonies rendered before other (international) courts.(626) Court assessment The attack on the Seventh Day Adventists Complex 5. In the judgements pronounced in the cases against Elizaphan and Gérard Ntakirutimana(627) and Mikaeli Muhimana(628), the ICTR concluded that large groups of Hutu seriously maltreated and killed many Tutsi on Saturday 16 April 1994 at the Seventh Day Adventists Complex in the vicinity of Ngoma, commune of Gishyta, prefecture Kibuye. On account of their involvement in this attack, among other offences, the above mentioned persons were sentenced to a term of (life) imprisonment by the ICTR. 6. These judgements of the ICTR and the books written by Dr. A.L. Des Forges and Ph. Gourevitch give the following description of this attack.(629) 7. In the days following the death or president Habayirima, on 6 April 1994, Tutsi in the vicinity of Ngoma (West-Rwanda) were confronted with Hutu who set their houses on fire, stole their cattle and killed Tutsi. These Tutsi had gone on the run to find a safe haven. From days past, churches and hospitals were common safe havens for Tutsi at times of rising internal conflicts between the Hutu and the Tutsi. After 6 April 1994, many Tutsi sought refuge at the Seventh Day Adventists Complex near Ngoma (and Mugonero). On 9 April the first refugees arrived at the complex. Their numbers increased during the days that followed. On Thursday 14 April 1994, the Tutsi heard that preparations were made for a large scale attack on the complex. A group of seven Tutsi clergymen then sent a desperate letter to Elizaphan Ntakirutimana, director of the complex and pastor of the Seventh Day Adventist Church located on the compound, asking if he could do anything to help the Tutsi.(630) His answer to this plea arrived on Friday evening, stating that he would not be able help them. The attack started on Saturday morning, when Hutu, both civilians and Interahamwe, as well as gendarmes and soldiers attacked the Tutsi refugees at the complex. The attack lasted the entire day. Many Tutsi lost their lives and large numbers were injured.(631) 8. At the Seventh Day Adventists Complex there was a church, a secondary school with dormitories for boys and girls (named ‘dortoirs’), a hospital with ancillary buildings, the office of the director of the complex, Elizaphan Ntakirutimana, a building named the ‘Association’ and also some houses.(632) In one of these houses lived doctor Gérard Ntakirutimana, the hospital director and son of aforesaid Elizaphan Ntakirutimana. The hospital consisted of two floors: a ground floor which included the office of Gérard Ntakirutimana and a basement that was constructed partly above ground level. This basement included a surgery ward which consisted of several rooms. These two floors were connected by means of a stairway. After the genocide in 1994, a memorial was built to commemorate the victims of the genocide. Furthermore, since 1994 several buildings were added to the school. 9. The Seventh Day Adventists Complex is situated in the vicinity of Ngoma commune. Mugonero, where Defendant lived in 1994, is located at a distance of less than 10 kilometres in a straight line from the complex.(633) 10. The Seventh Day Adventists Complex was referred to in different ways, but also by only mentioning the hospital or the church. Some witnesses spoke of the hospital in Mugonero (634) or of the Mugonero Seventh Day Adventists Church.(635) Witness [witness 9] referred to the location as the (Adventists) church of/in Ngoma and the church complex.(636) This witness stated that originally, the hospital was referred to by adding the name of Ngoma, because ‘the church was located in Ngoma’. He also gave a description of how this apparently resulted in confusions with regard to postal deliveries, because the mail used to end up in Goma in Zaire. According to the witness Ngoma is situated in Mugonero and therefore they chose to refer to the hospital and the church by adding the name of Mugonero.(637) 11. Ngoma commune is situated near the Seventh Day Adventists Complex. At the court hearing on 24 October 2008, the Prosecution submitted a combination of three aerial photographs which clearly show the location of Ngoma in relation to the complex. The square in Ngoma, where they regularly organised markets, is also referred to by the name Kabahinyuza.(638) 12. The case file contains statements of eight witnesses who gave evidence about the attack both to the NCIS and the Examining Judge. Five of them – [witness 8], [witness 10], [witness 25], [witness 14], [witness 24] – gave evidence as to how they were attacked by the Hutu. All these witnesses had already made statements before ICTR investigators, and four of them also testified during the trial at the ICTR. Two of these five witnesses also made statements in legal proceedings in the United States or Canada. Witnesses [witness 9], [witness 22] and [witness 12] stated that they belonged to the attackers. All statements of these witnesses made before the NCIS, the Examining Judge and the gacaca are included in the case file. Moreover the witness statement of [witness 22] rendered to the ICTR investigators, is also included in the case file.(639) 13. The statements made by the witnesses who were victims of the attack essentially contain the following. Many Tutsi civilians ran away from the genocidal violence in the area. Many of them sought refuge at the Seventh Day Adventists Complex. However, they did not appear to be safe there either. On Saturday 16 April 1994, the Tutsi were attacked by large numbers of Hutu at the Seventh Day Adventists Complex. Witnesses not only saw Interahamwe(640), but also soldiers(641) and civilians who jointly carried out the attack on the Tutsi refugees. The attack started in the morning and lasted the entire day until it became dark. The witnesses mentioned the following weapons which according to them were used by the attackers: fire arms, machetes, clubs, hand grenades and tear gas.(642) The Tutsi were shot and killed by fire arms(643), stabbed down and sometimes cut to pieces by machetes(644), beaten with clubs(645), while hand grenades were thrown at and between them. Hence, many Tutsi were (seriously) injured and/or killed.(646) Tear gas was thrown into the hospital rooms where possibly Tutsi were hiding with the intention to let them reveal themselves.(647) The Tutsi tried to defend themselves with stones; they did not have any other weapons.(648) Victims who survived the attack on the Tutsi stated that they feared for their own life as well as that of their family members, friends and acquaintances during the entire day. In most of these cases their fear became reality. In some cases they themselves or their family members, friends or acquaintances suffered (severe) bodily harm.(649) 14.

The Defendant himself stated to the NCIS and testified in Court that fighting took place at the Mugonero complex ‘at the start of the war’.(650) The Court concludes that when mentioning this moment in time, the Defendant referred to the period shortly after 6 April 1994. Possible involvement of Defendant in the attack 15. Both when he was questioned by the NCIS and during the court hearing, the Defendant denied having been involved in any way in the attack.(651) He also denied ever having had a weapon in his possession.(652) 16. In their statements made to the NCIS and/or the Examining Judge, the five victim witnesses pointed out the Defendant as one of the leaders of the attack.(653) They all accused the Defendant of having killed people(654) and of shooting at Tutsi with fire arms.(655) 17. The attackers [witness 22] and [witness 9] stated to the NCIS that Defendant was one of the participants in the attack. [Witness 22] repeated this statement before the Examining Judge. [Witness 9] withdrew his statement before the Examining Judge. [Witness 12] also stated to the NCIS that the Defendant participated in the attack; but what he knew about it, he knew from hearsay.(656) However, before the Examining Judge he said that his statement, which was incriminating for the Defendant, did not apply to the Defendant’s participation in this attack.(657) Assessment of the credibility and reliability of the witnesses 18. Currently, the Court will study the reliability of the statements of these witnesses, with the exception of [witness 12], because he stated that he only knew about the involvement of the Defendant in the attack from hearsay. While doing so, the Court will use the assessment framework mentioned in Chapter 6 (Assessment of Witness Evidence). 19. There are no indications of any circumstances that might have occurred at the time of the formation of the testimonies that could have had an influence on the reliability of the contents of the statements (item of consideration II of the assessment framework). 20. The Court has tested the witness statements against objective information (item of consideration III of the assessment framework) as incorporated in the case file in the form of photographs, video footage of the inspection, maps and measurements. None of the statements contain elements that are contrary to the actual situation, for instance the location of the complex, the layout of the church and the hospital. For this reason the verification of the witness statements has not caused the Court to have any doubts about the reliability of these statements. 21. It is a matter of fact that the witnesses have given evidence of events that are difficult to imagine. But within the context of the genocide in Rwanda, there is no reason to doubt (which in itself is less ‘difficult’ to establish) the plausibility of the witness statements (item of consideration VII of the assessment framework). 22. The Court will now assess item of consideration I. Re I: The witness as a person [Witness 8] 23. Witness [witness 8] was born in 1966. He stated being Tutsi.(658) At the time of the attack on the Seventh Day Adventists Complex he lived in Ngoma.(659) He was assistant nurse (‘auxiliaire de santé’) at the hospital of the Seventh Day Adventists Complex.(660) Witness [witness 10] confirmed this.(661) 24. [Witness 8] was at the complex at the time of the attack, not because he was working there at that moment, but because he had sought refuge there, after he had seen that also others were fleeing to the hospital.(662) He is the only survivor of a family of 16 persons.(663) His brother was killed in the hospital.(664) He described how he had hidden himself at the surgery ward of the hospital between the victims who had been killed; only when it became dark he had been able to run away.(665) Witness [witness 25] confirmed that [witness 8] was hiding inside the hospital, because at one point in time they both found themselves in the same room.(666) 25. [Witness 8] stated that he had known the Defendant from the moment the Defendant attended secondary school. They used to play football with other boys.(667) They were not friends, but sometimes they participated in the same group activities.(668) He stated that he had visited the shop of the Defendant and his family several times in the period before April 1994.(669) 26. During the trial, the Defendant stated that he did not know this witness. (670) 27. Witness [witness 8] stated that he had known the witness [witness 10] since they were young. In those days, they used to play football together and there was a lot of contact between them.(671) Also after 1994, he had had good contact on a regularly basis with [witness 10].(672) He also stated that he had known [witness 14] from the time when they were young. He also said that he still saw this witness from time to time and that they lived in the same ‘cellule’, in Ngoma.(673) 28. When asked about his profession during the interview, the witness said that he was a chauffeur, but that he did not have a job at that moment. (674) 29. Considering the witness as a person, the Court does not find any cause to doubt the credibility of this witness. [Witness 10] 30. Witness [witness 10] was born in 1973. He declared being Tutsi.(675) At the time of the attack at the Mugonero complex he had just finished his education at the Technical School in Kibingo and because of the war he could not find a job and was staying with his parents.(676) Together with his parents, sisters and younger brothers he had fled to the Seventh Day Adventists Complex.(677) His entire family was killed at the Mugonero complex, except for his father who was injured and later died in Bisesero.(678) 31. When the Tutsi were attacked in the morning by Hutu, the witness found himself together with [witness 8] and two other witnesses who appear in this case file: [witness 25] and [witness 24].(679) The witness decided to hide himself in a room at the hospital, together with his father. After he had fled to the hospital room he hid himself underneath the bodies of people who had been killed.(680) In the evening he ran away together with his father.(681) 32. The witness stated that he knew the Defendant, because he used to buy products from the shop of the Defendant’s father.(682) 33. During the trial, the Defendant stated that he did not know this witness. (683) 34. The witness stated that he knew [witness 8]. He also stated that he had known this witness since his childhood and that they used to play football together with [witness 8].(684) At the time of the witness examination (2006) they still saw each other, because they lived in the cellule.(685) 35. [Witness 10] was working as an agricultural/cattle farmer in 2006.(686) Furthermore, he was coordinator of the Kigarama cellule (2008).(687) 36. Considering the witness as a person, the Court does not find any cause to doubt the credibility of this witness. [Witness 25] 37. Witness [witness 25] was born in 1959. He stated being Tutsi.(688) He was (and still is) health worker at the hospital of the Seventh Day Adventists Complex.(689) During the genocide, he worked as gardener for doctor [B13].(690) 38. The witness had sought refuge with his family at the Seventh Day Adventists Complex, because in his village houses were being destroyed and set on fire and people were being killed.(691) He lost his pregnant wife, his two children and his whole family during the “war”.(692) His brother was shot and killed in the hospital of the Seventh Day Adventists Complex.(693) 39. The witness stated that he had known the Defendant since he was in elementary school. Before the genocide in 1994, he used to see him often at Ngoma Hospital (Adventists Complex) and also in Mugonero.(694) 40.

During the trial, the Defendant stated that he did not know this witness. (695) 41. The witness stated that he knew both [witness 8] and [witness 10] at the time of the attack on the Mugonero complex.(696) He also stated that he knew [witness 24], but it has not become clear if he already knew him when the attack occurred.(697) 42. Considering the witness as a person, the Court does not find any cause to doubt the credibility of this witness. [Witness 14] 43. Witness [witness 14] was born in 1961. He declared being Tutsi.(698) During the genocide, the witness lived in Ngoma. 44. Together with his wife and three children, the witness fled to the hospital in Mugonero.(699) His family was killed in the church.(700) By hiding himself under the corpses in one of the hospital rooms, he succeeded to escape the attackers.(701) 45. The witness stated that he knew the Defendant from buying goods at his father’s shop. The Defendant used to help his father in the shop.(702) Each Wednesday, on market day, the witness went to the shop.(703) 46. During the trial, the Defendant stated that he did not know this witness. (704) 47. This witness was not asked whether he knew the other witnesses in the case file. However, [witness 8] stated that he knew [witness 14]. They had known each other since their childhood.(705) 48. The witness is a farmer.(706) 49. Considering the witness as a person, the Court does not find any cause to doubt the credibility of this witness. [Witness 24] 50. Witness [witness 24] was born in 1970. He stated being Tutsi. (707) The witness stated that he had become a farmer after his school years (8 years of elementary school), then tailor and again farmer later on.(708) 51. On 9 April 1994, the witness sought refuge at the Seventh Day Adventists Complex together with his father, mother, his younger brother, his cousins and another girl and boy, because the people in his ‘secteur’ had been killed and houses had been set on fire.(709) In the end, all his family members were murdered.(710) During the attack he managed to hide in the roof of one of the ‘dortoirs’ and at nightfall he had escaped.(711) 52. The witness stated that he did not see the Defendant very often in the period before the genocide. When asked about it, he stated that he did not speak with the Defendant right before the genocide, because “he drove the car and I was on foot.” (712) 53. During the trial, the Defendant stated that he did not know this witness. (713) 54. Among the refugees who had fled to the Seventh Day Adventists Complex, he knew [witness 8] and [witness 10].(714) On being asked, the witness told that [witness 10] was now his ‘neighbour’ (meaning that he was also living in his neighbourhood).(715) 55. His present function is president of the gacaca at the second level in Ngoma, which implies that he exercises the office of judge at the gacaca.(716) He also works as a farmer. 56. Considering the witness as a person, the Court does not find any cause to doubt the credibility of this witness. [Witness 9] 57. Witness [witness 9] was born in 1963. This witness stated being Hutu.(717) In the period prior to the genocide he was still living with his parents, brothers and sisters.(718) There is no information about any work he performed at that time. 58. This witness stated inconsistently about his involvement in the attack on 16 April 1994. He did make consistent statements about his presence at the Seventh Day Adventists Complex on that date. The Court will discuss the inconsistencies in the statements of this witness later on in this judgement. 59. He stated that he was sentenced to a term of imprisonment for his part in the genocide.(719) 60. According to the witness he knew the Defendant because of the commercial activities performed by the Defendant’s father. His job was to unload bags of coffee from the truck driven by the Defendant. He also used to buy products from the Defendant’s parents who were traders. The witness did not maintain a friendly relationship with the Defendant. He stated: “I saw that he was eating grilled meat with traders. But his parents were rich, so I could not sit with him at the same table.”(720) 61. Both before the NCIS and during the trial, the Defendant stated that he did not know this witness.(721) 62. At the time of his interview, the witness stated that he worked in a bar.(722) 63. Considering the witness as a person, the Court does not find any cause to doubt the credibility of this witness. [Witness 22] 64. Witness [witness 22] was born in 1958. He stated being Hutu.(723) 65. The witness made statements about his involvement in the attack on the Seventh Day Adventists Complex on 16 April 1994. 66. The gacaca sentenced him for killing people during the genocide and since his conviction he has served his term of imprisonment.(724) 67. He stated that he knew the Defendant as well as his father and that he knew where the Defendant used to live. However, he never had personal contact with the Defendant.(725) 68. Both before the NCIS and during the trial, the Defendant stated that he did not know this witness (726) 69. The witness works as a farmer.(727) 70. Considering the witness as a person, the Court does not find any cause to doubt the credibility of this witness. Reliability of the statements in objective terms (IV, V and VI) 71. First of all, the Court concludes that in broad outline, the five victims/ witnesses have made consistent statements about the attack before the Dutch and international authorities, as well as before the ICTR. 72. Nevertheless, the Court has also discovered that there are some remarkable discrepancies between their individual statements, which will be discussed below. The most remarkable fact is that before the start of the Dutch criminal investigation, none of these five victims/witnesses had mentioned the name of the Defendant as being one of the attackers in their statements made to the ICTR investigators, neither in their trial testimonies, nor during the judicial inquiries in the United States. This only became clear at a late stage of the investigation, at the moment when these prior statements made elsewhere were included into the case file of the Dutch proceedings in July and September 2008 respectively. Consequently, during the examination of these witnesses the Examining Judge had not been able to confront them with (possible) inconsistencies or contradictions. For that reason the Court deemed it necessary that these witnesses be examined again by the Examining Judge. These additional statements were made in December 2008 and January 2009. 73. The statements made by the witnesses who declared that they had participated in the attack ([witness 9], [witness 22]), are consistent regarding the circumstance that the attack had indeed taken place. However, the Court has observed that also in this respect there are differences that need to be discussed. 74. The Court has determined that there are differences concerning details in the statements of these witnesses. The most important are: the colours of the cars that were driven by the attackers, including the Defendant and his brother, (728) the answers to the question as to who owned one of the cars that the attackers had used to drive to the complex, and by whom this car had been taken away (729) as well as the clothes that the Defendant had been wearing.(730) These do not concern essential contradictions. In spite of those small differences, also when looked at in correlation, these witness statements do not create the circumstance that would cause them to be considered unreliable.

These differences might have been the result of the way in which the witness was heard, the lapse of time, the chaotic nature of the events in which the witness had to fear for his or her life, the emotions which are caused by the memories of these traumatic events, or through a mistake on the part of the witness or one of the parties to the proceedings. Moreover it appears from these statements that each witness was only able to observe part of the events. One can only arrive at a general overview after having studied the correlation between the individual accounts. Re IV: Consistency of the successive statements made by this witness [Witness 8] Statements made prior to December 2008 75. The Court concludes that the witness [witness 8] gave evidence about the events that occurred at the Seventh Day Adventists Complex before the NCIS (2006), before the Examining Judge (2006/2007/2008) and before the Canadian judicial authorities (2007). Both to the NCIS and the Examining Judge, this witness described the Defendant as a leader; he gave instructions to others. (731) Before the Canadian judicial authorities (2007) he stated that Ruzindana arrived at the complex together with his brother on 16 April 1994.(732) 76. This witness also gave evidence before the judicial authorities of the United States in the case against Enos Iragaba Kagaba(733) (2002/2003). (734) Regarding the attack on the Seventh Day Adventists Complex he named Obed Ruzindana, Kagaba, Elizaphan and Gérard Ntakirutimana, and Charles Sikubwabo as being the leaders. The Defendant’s name does not appear in this statement.(735) In a gacaca statement, the witness did mention the Defendant as being involved in the genocide, but not in relation to the attack on the Seventh Day Adventists Complex.(736) This gacaca statement dates back to the end of May / beginning of June 2005.(737) In his statement before the Parquet Général this witness mentioned the Defendant as one of the attackers who shot at the Tutsi at the Seventh Day Adventists Complex.(738) In several statements made by this witness (1995-2002) the Defendant’s name does not appear.(739) In three of these statements he did mention Obed Ruzindana.(740) The statement of this witness before the Examining Judge in December 2008/ January 2009 77. The Examining Judge asked this witness why he only started mentioning the Defendant as one of the attackers from 2006. To this question the witness said that his answer depended on how the question was put to him and what was the purpose the questioner had in mind. “Sometimes he [the questioner] wanted to know a specific name. Then I would mention five people and he would say ‘stop’ when he heard the name he intended to hear. So you can find his name with one authority and not with the other.” (741) Concerning the 'list of killers in Mugonero Hospital and Church' drawn up by the witness, which was included as an appendix to a witness statement and which include nine names of attackers (742), he observed that he did not remember what question was asked. He said that he thought that he had been asked to write down the names and again referred to the purpose the questioner had in mind.(743) In relation to his statements before the authorities in the United States he stated that he had been questioned with the purpose to ‘investigate certain persons’.(744) He also observed that the longer he is questioned, the more he can remember.(745) 78. Subsequently, the Court arrives at another important issue from the witness’ statement that needs attention. In one of his statements the witness mentioned a certain Adrien who, according to him, lived in Musenyi.(746) The Examining Judge asked the witness if he could remember this, to which he answered that he knew a person named Adrien Harorimana who lived in Musenyi; the Defendant allegedly shot this Adrien in his upper leg during the genocide. The witness did not see this incident himself, but this Adrien had told him about it. Next, the Examining Judge confronted him with his own statement where he had mentioned Mika Muhimana as the one who had shot Adrien. The witness answered that he had mentioned the name Mika to the ICTR investigator, but that he thought that this investigator might have made a mistake in writing this down. When the examination was continued the next day, this witness further explained that he knew two persons by the name of Adrien Harorimana who both lived in Musenyi. The one Adrien was hit by a bullet from Mika, which he saw with his own eyes, the other Adrien was hit by a bullet from the Defendant, which he did not see for himself but heard from this Adrien.(747) Final conclusion with regard to this witness 79. The Court believes without a doubt that the witness was a victim of the attack on the Seventh Day Adventists Complex. Again and again he has made credible statements about this incident. The Court bases its conclusion on the consistency of his statements over the years (as of 1995). Moreover, his statements correspond with the statements of other witnesses who were also victims of this attack. 80. However, the Court has doubts about the reliability of his statement with regard to the Defendant’s involvement in this attack. The explanation given by the witness about the fact that he did not mention the Defendant’s name earlier is not considered to be altogether convincing by the Court. The ICTR investigators asked the witness to render an account of the attack. It is difficult to understand that a witness, when asked to give a description of the attack, referred to the main attackers and repeatedly mentioned – at different times – the name of Defendant’s brother but not the Defendant himself, although in later statements he claimed that the Defendant did have an important role as one of the leaders together with his older brother. Also in his statements before the judicial authorities in the United States in the case against Enos Kagaba, the witness mentioned the brother of the Defendant (among other names) as being one of the leaders, but not the Defendant himself. His explanation that the investigation, and therefore the questions, were targeted at certain persons (in this case Enos Kagaba), does not clarify why he did mention the brother of the Defendant but not the Defendant himself, given the fact – as stated before – that he saw both brothers as leaders of the attack. 81. In its assessment of the reliability of the statements of this witness concerning the possible role of the Defendant in the attack, the Court also takes into consideration the things he said in his last statement about the shooting of ‘Adrien’ (not included in the charges against the Defendant). On this point the witness changed his statement, after the Examining Judge had confronted him with his prior statement about this incident. The Court finds it inexplicable that, if he knew two victims with the same Christian name and family name who lived in the same secteur, this witness did not immediately make mention of this fact in order to avoid any confusion. This is detrimental to the reliability of the entire statement of this witness. 82. In this context, the Court recalls its considerations in Chapter 6 (especially in paragraph 8) regarding the limits of human perception and memory. Both by internal processes and external factors the memory flow of the original experience is changed or expanded. The problem is that the witness himself has no perception of these changes or additions, which in itself is a reason for caution. This is even more relevant because the witness has given evidence about a traumatic event which took place almost 15 years ago. [Witness 10] Statements made before December 2008 83.

In his statements made before the Parquet Général (2006), the NCIS (2006) and the Examining Judge (2006/2007), this witness mentioned the name of the Defendant in relation to the attack.(748) Also before the gacaca (in any case before June 2006)(749) the witness gave evidence regarding the Defendant’s involvement in the attack. 84. In the statement rendered before the judicial authorities in the United States in the case against Enos Kagabe (2003) with respect to the Seventh Day Adventists Complex, the witness did not mention that the Defendant was involved in the attack. In those statements he named the following persons as leaders of the attack: burgomaster Sikubwabo, Mika Muhimana, Obed Ruzindana, Gérard Ntakirutimana, Kanaybungo, Ndayissaba 'and many others'.(750) For the benefit of the ICTR this witness also gave evidence on several occasions, in witness statements as well as trial testimonies. In his witness statement dated 25 October 1999, the name of the Defendant does not appear. In his trial testimony dated 1 October 2001 and 2 October 2001, in the case against Elizaphan and Gérard Ntakirutimana and in the trial testimony dated 30 April 2004, in the Nyitegeka case, the witness did not mention the name of the Defendant. However, he did mention the brother of the Defendant, Obed Ruzindana, as one of the attackers.(751) The witness does know the Defendant, because he did refer to him in one of his trial testimonies before the ICTR in the Niyitegeka case, while he also mentioned the Defendant in the aforesaid statement made before the judicial authorities in the United States.(752) He did not mention the Defendant in these statements as participant in the attack on the Seventh Day Adventists Complex, but as someone who was present during the attack on 'Muyira Hill' on 13 May 1994.(753) The statement rendered before the Examining Judge by this witness in December 2008/January 2009 85. The witness stated that the ICTR investigators – just like the Examining Judge had done during this examination – requested him to give a list of names of attackers on the Seventh Day Adventists Complex. He had complied with this request, but after mentioning a few names they had told him that it was enough and then he had stopped. So therefore he did not need to mention all names he knew.(754) With reference to his statements made to the judicial authorities in the United States, he said that he just mentioned the first names “that popped up in his head”.(755) In his statement dated 17 December 2008, this witness clearly mentioned the Defendant as one of the leaders of the attack.(756) 86. Furthermore the witness was confronted with his trial testimony in the Gérard and Elizaphan Ntakirutimana case. On this occasion, the witness was asked to tell who was sitting in the cars at the time of the attack and he answered to the judges of the ICTR that the Interahamwe were inside the cars.(757) Before the Examining Judge he stated that the Defendant was also sitting in one of the cars; in Obed Ruzindana’s car. Subsequently, the Examining Judge confronted him with the fact that this was a very specific question and asked him why he did not mention the Defendant’s name on that occasion. The witness replied that he did give a specific answer; he said that there were Interahamwe in the car and that the Defendant also formed part of the Interahamwe.(758) 87. The Examining Judge also asked the witness more specific questions about his earlier statement concerning rapes committed during the attack on 16 April 1994. The witness had more or less stated that he had seen the rape of a teacher, the daughter of Karera, by one of the sons of Kanyabungo.(759) During this examination the witness told the Judge that he had not seen the rapes of women by the sons of Kanyabungo with his own eyes, but that others had told him about those rapes. 88. The Examining Judge also put questions to the witness about rapes that had taken place prior to 16 April 1994. In reply, he stated that he knew about two girls that had allegedly been picked up from the hospital premises and had been raped elsewhere by Mika Muhimana and Sikubwabo (Maria and Martha, the daughters of Gafurafura). Subsequently, the Examining Judge confronted the witness with his earlier testimony before the ICTR, where he had testified about this same incident, by stating that three girls, Josianne, Maria and Mariana had been picked up and raped elsewhere.(760) At that point the witness seemed to hesitate and referred back to the text of this prior testimony.(761) During his examination before the Examining Judge he further stated – and this is new with respect to his former statements – that there had been a car arriving behind the car of Mika and Sikubwabo when the women were picked up; this was the car that was used by the Defendant and his brother Obed Ruzindana.(762) He thought that one of the two people that were sitting in this last car had been the Defendant.(763) 89. Furthermore, the Examining Judge asked him questions about a certain Vianney Ntaganira, because apparently the witness had been inconsistent in his statements about this person’s death. When he was interviewed by the NCIS, this witness had stated that the Defendant had shot this Vianney during the attack at Gitwe Hill; according to him Vianney had been shot in his stomach.(764) However, in a document written by 'African Rights', which was submitted by the Defence during the trial, it is reported that according to this witness, Vianney Ntaganira would have died in the church in Murambi.(765) In his trial testimony against Elizaphan and Gérard Ntakirutimana this witness also testified that a person named Vianney Ntaganira had died during the attack on the church in Murambi, after being hit by a bullet which had been fired by Elizaphan or Gérard Ntakirutimana.(766) 90. First of all, the Examining Judge asked the witness if he knew a person by the name of Vianney Ntaganira. The witness replied affirmatively and told the Judge that Vianney was still alive and also where he lived. Next, the Judge asked the witness if he knew or had known only one person by the name of Vianney Ntaganira, to which his answer was affirmative. Accordingly, the Examining Judge confronted the witness with his statement made to the NCIS regarding the person known as Vianney Ntaganira who had been shot during the genocide. Then, the witness stated that he knew two persons named Vianney Ntaganira: one who was still alive and the other had been injured during the genocide and later shot and killed by the Defendant. He stated that the deceased Vianney had been shot dead in Bisesero near Gitwe; according to him he was hit by a bullet in the back.(767) If the report says that Vianney died in the church of Murambi, then that is not correct, according to the witness.(768) Finally, the Examining Judge confronted him with the fact that his statement about the shot wound was different from the statement he had made earlier to the NCIS. To this, the witness replied that the bullet had hit the victim in the back and it had come out again from the stomach.(769) 91. Finally, it is remarkable what this witness stated about the death of Thomas Rukara. In his statement before the Examining Judge in November 2006, he said that the Defendant and others shot at people and that after the firing from that group, Thomas Rukare appeared to be one of the victims.(770) In his statement before the Examining Judge on 26 January 2009 however, the witness declared decisively that he had seen Thomas Rukara become the victim of a grenade that had been thrown by the Defendant.(771) Final conclusion with regard to this witness 92. The Court believes without a doubt that the witness was a victim of the attack on the Seventh Day Adventists Complex. Again and again he has made credible statements about this incident. The Court bases its conclusion on the consistency of his statements over the years (as of 1999).