ECLI:NL:RBSGR:2009:BK0520

(1)and 09/750007-07 (Indictment II)

(2). Both Indictments were handled in a joint action.

1. 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.
2. 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.
3. 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).

1. 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
2. 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.

(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; (...)”
2. 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).”

(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.

(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. “

1. 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.
2. 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.
3. 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.
4. 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
6. 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.
7. 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.
8. Around 1957, the first political parties were formed and, as could be expected, they were ethnically rather than ideologically based. (...)”
9. 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.
10. 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

1. 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
2. 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.

1. The propaganda of the government was continued in all severity, also after 6 April
2. 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)“

1. 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.”
2. 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: “

1. 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.
2. 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.

1. 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
2. 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
3. 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.
4. 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
5. 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:

1. (...) 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.
2. There are strong reasons to assume that this person was involved in the massacres in Rwanda in
3. 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.
4. 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.
5. 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

1. 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
2. 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

1. 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
2. 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

2. 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
3. The Defendant was summoned to appear in Court on 21 November
4. 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
5. 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

1. a)hear as witnesses (for the Prosecution)[witness 9], [witness 14] and [witness 20], to
2. b)perform an on-site visit at the Seventh Day Adventists Complex and to
3. 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.

(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 €

2. 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

1. [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
2. 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

1. 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.
2. 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.
3. The relevant facts and circumstances are as follows.
4. 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.

(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.

(137)The opposite appears from the above.

1. The Court considers this procedure, i.e. the influencing and disappearance of witnesses extremely shocking and alarming.
2. 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

1. 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
2. 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.

(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.

1. 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.
2. 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.

1. 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
2. The following aspects of the trial deserve mentioning and/or a short discussion. Interpreters
3. 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
4. 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.
5. 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.

(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.

(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

1. [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
2. 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.
3. During the court session on 20 October 2008, [witness 4] and [witness 3], as victim of count 3, used their right to speak.
4. 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.

(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).

(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

2. 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
3. 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
5. 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.
6. 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.
7. This chapter will deal with the manner in which this evaluation will take place, from which points of view and points of pa