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ICTR/TPIR : Augustin Ngirabatware : summary of judgement and sentence
http://www.unictr.org/tabid/155/Default.aspx?id=1334
Before:
Judge William H. Sekule, Presiding Judge Solomy Balungi Bossa Judge Mparany Rajohnson Acting Registrar: Mr. Pascal Besnier
Date: 20 December 2012
The PROSECUTOR v. Augustin NGIRABATWARE
Case No. ICTR-99-54-T
SUMMARY OF JUDGEMENT AND SENTENCE
Office of the Prosecutor Defence
Counsel Ms. Mylène Dimitri Mr. Claver Sindayigaya Mr. Deogratias Sebureze Ms. Anne-Gaëlle Denier Mr. Gregg Shankman Mr. Philippe Plourde Mr. Wallace Kapaya Mr. Rashid Rashid Mr. Patrick Gabaake Mr. Iskandar Ismail Mr. Kristian Douglas Ms. Sonja Sun Ms. Mankah Fombang Ms. Faria Rekkas
INTRODUCTION
1. The Chamber will now read out a summary of the Judgement in this case, which will address the central findings in the written Judgement. In doing so, the Chamber emphasizes that only the written Judgement is authoritative. It will be made available as soon as possible, after the completion of the editorial process.
2. The Accused in this case is Augustin Ngirabatware. Ngirabatware was born in 1957 in Nyamyumba commune, Gisenyi préfecture. He obtained a PhD in Economic Sciences in 1986, after which he worked in various ministries in the Rwandan government. Ngirabatware served as the Minister of Planning from 1990 through July 1994. He was also a member of the National Committee of the MRND party, of the Préfecture Committee of the MRND party in Gisenyi, and of the technical committee of Nyamyumba commune.
3. The Prosecution has charged Ngirabatware with conspiracy to commit genocide, genocide or alternatively complicity in genocide, direct and public incitement to commit genocide, and extermination and rape as crimes against humanity. During Closing Arguments, the Prosecution dropped the charge of conspiracy to commit genocide, and maintained the other five charges. The Prosecution alleges that Ngirabatware bears direct responsibility for having planned, instigated, ordered, aided and abetted, and committed these crimes, including through a joint criminal enterprise in both the basic and extended forms.
4. The Defence disputes all charges, and challenges the credibility of the Prosecution’s evidence. In addition, the Defence has presented an alibi for 6 to 12 April 1994, 23 April to 23 May 1994, and 23 June to 3 July 1994. The Defence submits that Ngirabatware should be acquitted of all charges against him.
5. The trial in this case commenced on 23 September 2009, and closed on 3 July 2012. Over the course of 154 trial days, the Chamber heard the evidence of 62 witnesses and admitted 310 exhibits into evidence. The Prosecution presented 27 witnesses, seven of whom testified in rebuttal, and tendered 93 exhibits into evidence. The Defence called 35 witnesses including the Accused, and tendered 216 exhibits into evidence. The Chamber also admitted into evidence the report of the Chamber’s site visit to the Republic of Rwanda , which was undertaken over five days in May 2012. Throughout the proceedings, the Parties filed a total of 147 written motions: 47 from the Prosecution and 100 from the Defence.
6. The Chamber heard Closing Arguments on 23, 24 and 25 July 2012. It now renders Judgement in this case.
FACTUAL AND LEGAL FINDINGS
Influence
7. Both the Prosecution and the Defence adduced extensive evidence concerning Ngirabatware’s influence in and around Nyamyumba commune in 1994. A number of Prosecution witnesses described Ngirabatware as being tantamount to “a god” in the region, and Ngirabatware acknowledged that he was a figure of authority in Gisenyi préfecture. Having considered this overwhelming evidence, and taking into account Ngirabatware’s various positions and the extent to which they were known around Nyamyumba commune, the Chamber has no doubt that Ngirabatware was an influential and well-known personality in Nyamyumba commune and its surrounding areas throughout the relevant events in 1994.
Election of Faustin Bagango
8. The Indictment alleges that Ngirabatware wielded this influence to secure the appointment of Faustin Bagango to the position of bourgmestre of Nyamyumba commune in April 1994. The Defence responds that Bagango was fairly elected through a secret ballot in 1993. Only one witness provided evidence that Bagango became bourgmestre in 1994. Conversely, 11 witnesses stated or implied that Bagango attained this post at some point in 1993. This year is further supported by documentary evidence. The Chamber considers that Faustin Bagango became bourgmestre of Nyamyumba commune in 1993.
9. Six Prosecution witnesses agreed that an election took place, and nine Prosecution witnesses testified that Bagango was either appointed by Ngirabatware or else was elected owing to the influence of Ngirabatware. The sheer number of witnesses testifying in a similar fashion raises the possibility that Ngirabatware either rigged the election or swayed the electorate to vote for Bagango. This possibility is strengthened considering the close association between Ngirabatware and Bagango. The Chamber has noted, however, that none of these witnesses provided a first-hand account of the election, offering instead a mix of hearsay, rumor, speculation and inference. In contrast, six Defence witnesses testified to having participated directly in the election, and none of them described an unfair election or undue influence by Ngirabatware. The Chamber finds that the Prosecution has not made out its case in relation to this allegation. Kanyabuhombo School
10. The Prosecution alleges that, at a meeting at Kanyabuhombo School in early 1994, Ngirabatware told the audience to hunt for Tutsis and kill them, and distributed weapons at the school. Two Prosecution witnesses provided credible, reliable and mutually corroborative evidence about this meeting. Their accounts have not been undermined by the evidence presented by the Defence. The Chamber finds that in early 1994, a few hundred people attended a meeting at Kanyabuhombo School , including Ngirabatware, Bourgmestre Bagango and Conseiller Jean Simpunga. Bagango introduced the officials and asked for weapons to fight the “Inkotanyi”. Ngirabatware then spoke for an hour, during which time he commended Bagango’s energy and the Interahamwe’s strength, claimed that only the MRND and CDR parties could safeguard Hutu interests by fighting the Tutsis, and told the crowd that he would be providing weapons. About an hour after the meeting ended, Bagango went to the Nyamyumba commune office and distributed weapons to Interahamwe and Impuzamugambi leaders.
11. In considering Ngirabatware’s public address on this day, the Chamber has observed that both Prosecution witnesses understood his speech to be intended to fan ethnic hatred between Hutus and Tutsis. The Chamber considers hate speech to be deplorable in any context, but particularly where ethnic tension already exists and the speech is directed towards inflaming this tension even further. Nevertheless, the Chamber recalls that mobilizing hatred against an ethnic group is distinct from direct incitement to commit a violent act against that group. Hate speech may precede or accompany direct incitement to commit genocide, but it is not an offence under the Genocide Convention or under the ICTR Statute. Accordingly, the Chamber does not find that Ngirabatware directly and publicly incited genocide through his speech at Kanyabuhombo School .
12. The Prosecution has also not established beyond reasonable doubt that Ngirabatware distributed weapons at the meeting at Kanyabuhombo School , as alleged in the Indictment. Even though weapons were distributed later by Bagango at a different location, the Prosecution has not established that the distributed weapons were used to kill or harm Tutsis in Nyamyumba commune. Because there is insufficient evidence to link this meeting with any subsequent killings or attacks, the Chamber finds that Ngirabatware has not been proven guilty of genocide or complicity in genocide in relation to the meeting at Kanyabuhombo School .
Speeches at Roadblocks, and Creation of Interahamwe Group
13. Two Prosecution witnesses testified that, after the death of CDR Chairman Martin Bucyana in February 1994, demonstrations occurred in Nyamyumba commune, at which Ngirabatware was present and spoke to the assembled crowds. One Prosecution witness described a speech at the Electrogaz roadblock, and both witnesses discussed Ngirabatware’s speech at the Cyanika-Gisa roadblock. These witnesses provided credible and reliable testimony that was not undermined by the Defence evidence.
14. Based on this testimony, the Chamber finds, Judge Sekule dissenting, that Ngirabatware went to the Electrogaz roadblock. Approximately 400 people were present, and Ngirabatware told them that one roadblock was not enough, and that another needed to be established in order to prevent Tutsis from crossing it. Although this speech was made publicly and was intended for a public audience, the Chamber is unconvinced that Ngirabatware’s speech was sufficiently direct to constitute incitement to commit genocide.
15. The Prosecution has also alleged that in early 1994, Ngirabatware created a group of Interahamwe militia and positioned them at Kitraco in order to capture and kill Tutsis who were fleeing to Zaire . The evidence establishes that the Kitraco roadblock was set up after 6 April 1994, but the Chamber has not found that the only reasonable inference is that it resulted from Ngirabatware’s instructions at the Electrogaz roadblock in February 1994. Nor is there evidence to substantiate the allegation that Tutsis were captured and killed at this location, or that Ngirabatware participated in creating a group of Interahamwe to be positioned there. This allegation has not been proven.
16. In relation to Ngirabatware’s speech at the Cyanika-Gisa roadblock in February 1994 after Bucyana’s death, the Chamber finds that as many as 150 to 200 people had been assembled there. Ngirabatware spoke to the crowd and told his audience to “kill Tutsi”. Ngirabatware then gave 50,000 francs to Honoré Ndayamiyemenshi to buy drinks and/or traditional weapons. The Chamber has no doubt that Ngirabatware’s speech to the crowd objectively and unambiguously called for genocide against the Tutsis, and that Ngirabatware’s intended audience was the public. Accordingly, the Chamber finds beyond reasonable doubt that Ngirabatware committed direct and public incitement to commit genocide by virtue of his speech to the crowd gathered at the Cyanika-Gisa roadblock.
17. There is insufficient evidence, however, to establish beyond reasonable doubt that Ngirabatware’s role at the Electrogaz and Cyanika-Gisa roadblocks contributed to any subsequent killings or attacks. Consequently, the Chamber finds that Ngirabatware has not been proven guilty of genocide or complicity in genocide in relation to his speeches and actions at these roadblocks in February 1994.
Meetings
18. Turning to March 1994, the Prosecution alleges that Ngirabatware convened a meeting at his half-brother Cenge’s house, and another meeting at the MRND Palace in Gisenyi. The Prosecution brought no evidence to support these allegations. The Chamber therefore concludes that these allegations have not been proven.
19. The Prosecution further alleges that Ngirabatware convened MRND party meetings in Nyamyumba commune throughout March 1994. The Chamber finds that Ngirabatware, Bagango and Simpunga all spoke at a meeting at the Gatunda School in March 1994. Ngirabatware told the crowd that “bad grain should be separated from the good grain”, which was understood as calling for the separation of Tutsis from Hutus. This meeting, however, is not mentioned in the Indictment, even though the Prosecution was aware of it several years before filing the operative Indictment. The Chamber recalls that the Prosecution must know its case prior to trial and cannot tailor its case against an accused depending on how the evidence unfolds. Considering the absence of any mention of the Gatunda School meeting in the Indictment or in any relevant pre-trial submissions by the Prosecution, the Chamber has not considered the meeting at the Gatunda School as a basis for conviction.
20. The Chamber also finds, based on the evidence that Ngirabatware attended and spoke at a meeting at the Umuganda Stadium at the beginning of 1994. Ngirabatware stated that the enemies of Rwanda were the Tutsis living outside of the country who were collaborating with the Tutsis still residing in Rwanda , those who were married to Tutsis, and Hutus who were collaborating with the RPF. This meeting, however, was not pleaded in the Indictment. The relevant paragraph of the Indictment alleges meetings in Nyamyumba commune, whereas Umuganda Stadium was located in Rubavu commune. Nor does the Prosecution rely on this meeting in support of its allegation about MRND meetings in March 1994. The Chamber therefore has not considered this meeting as a basis for conviction.
21. Likewise, the Chamber has found that Ngirabatware, Bagango, Major Xavier Uwimana and others attended a rally and flag-raising ceremony at Kitraco in early April 1994, before President Habyarimana’s plane was shot down. Ngirabatware spoke to around 600 to 800 Interahamwe and asked them to continue to man the roadblocks and carry out night patrols to avoid infiltration by the enemy. The vice-chairman of the Interahamwe asked Ngirabatware how they could manage night patrols armed only with sticks, and Ngirabatware responded that he and Major Uwimana would find a solution to that problem. Ngirabatware also promised them at least one firearm so that they could shoot in the air to disperse the enemy. A few hours later, Major Uwimana drove to the Gitsimbi/Cotagirwa roadblock in a vehicle with cartons and boxes. Bagango arrived and stated that Uwimana brought the material that had been promised to the Interahamwe earlier that day at the Kitraco meeting. Bagango thanked Uwimana and asked him to express their thanks to Ngirabatware as well. Six cartons of grenades and crates with firearms were distributed at the Gitsimbi/Cotagirwa roadblock. These weapons were subsequently used to kill Tutsis. Because this event was not pleaded in the Indictment, the Chamber has not considered it as a basis for conviction.
22. The Chamber will now turn to the events following the assassination of President Habyarimana on 6 April 1994. The Chamber will first discuss the Defence alibi, before addressing the Prosecution allegations for this period.
First Alibi
23. The Defence relies upon alibi evidence that Ngirabatware was in Kigali in the days following this assassination, from 6 to 12 April 1994. In particular, the Defence submits that Ngirabatware, his family and others took refuge in the Presidential Guard Camp on the nights of 6 and 7 April 1994, and that they moved to the French Embassy on the morning of 8 April 1994. The Prosecution disputes this alibi, and alleges that on 7 and 8 April 1994, Ngirabatware was committing crimes in Nyamyumba commune.
24. The Chamber recalls that an accused does not bear the burden of proving his alibi beyond reasonable doubt, but must simply present evidence likely to raise a reasonable doubt in the Prosecution case. The Chamber has considered the totality of the evidence with this principle in mind. Having done so, the Chamber considers that the Defence witnesses who testified in support of the alibi for 7 April 1994 are not credible. Their evidence suffered from numerous inconsistencies and discrepancies. Combined with the insufficient notice of alibi in this case, the Chamber considers that there is a high probability that this alibi was tailored to fit the Prosecution case. The evidence, when viewed as a whole, does not raise the reasonable possibility that Ngirabatware was in Kigali on 7 April 1994.
25. In relation to the alibi for 8 April 1994, the Chamber notes that the French Embassy in Kigali sent telegrams on this day, which appear to indicate that Ngirabatware may have been present at the Embassy. The Chamber finds that it is reasonably possibly true that Ngirabatware may have been at the French Embassy around the early afternoon on 8 April 1994.
Distribution of Weapons, 7 April 1994
26. Two Prosecution witnesses testified to having seen Ngirabatware in Nyamyumba commune on separate occasions just prior to the attack on Safari Nyambwega on 7 April 1994. The Chamber has found their evidence to be credible, reliable and mutually corroborating. The Defence evidence has not raised doubt in this regard.
27. The Chamber finds that, on 7 April 1994, Ngirabatware arrived at the Bruxelles roadblock in Nyamyumba commune in the first of two vehicles. Ngirabatware asked that Bagango be located and, once Bagango arrived, Ngirabatware said that he brought weapons because he did not want to see any Tutsis alive in Bruxelles. Ngirabatware provided ten machetes to Bagango, who in turn gave them to Conseiller Jean Simpunga for further distribution. Simpunga distributed nine of these machetes to roadblocks in the area, and kept one for himself. Bagango said that the remaining machetes would be taken to other areas of Nyamyumba commune.
28. Later that same day, Ngirabatware returned to the Bruxelles roadblock in the first of two vehicles. Many Interahamwe were present, including Juma. Ngirabatware chastised the Interahamwe for only pretending to work, and he charged that Safari was communicating with “Inyenzi”. Firearms and grenades were offloaded. Ngirabatware then drove to the nearby Gitsimbi/Cotagirwa roadblock, where he again summoned Bagango, who came immediately. Weapons were offloaded once more, and Ngirabatware explained that he brought the weapons because he did not want to see any Tutsis remaining in Nyamyumba commune, and he ordered Bagango to work well. Ngirabatware also told Bagango that Safari needed to be located and killed. Shortly afterwards, Safari Nyambwega, a Tutsi, was attacked and seriously injured by various Interahamwe, including Juma.
29. Juma was only one of numerous Interahamwe who manned the notorious Gitsimbi/Cotagirwa roadblock and attacked Tutsi civilians starting on 7 April 1994. Prosecution and Defence witnesses confirm that Juma was joined in these actions by many other Interahamwe, including Makuze and Felix Niyoniringiye.
30. The Indictment alleges that Ngirabatware is responsible for having committed genocide through a joint criminal enterprise. In relation to the weapons distribution on 7 April 1994, however, paragraph 16 of the Indictment clearly charges Ngirabatware only with having instigated and aided and abetted genocide. This specification indicates that the Prosecution did not charge Ngirabatware with any other mode of liability for this distribution of weapons, including through a joint criminal enterprise. As a result, the Chamber has considered only whether Ngirabatware’s words and actions on this day instigated and aided and abetted genocide.
31. The Chamber finds that at least some of the weapons distributed by Ngirabatware on 7 April 1994 were used by the Interahamwe during the attacks and killings. Ngirabatware’s word and actions both prompted and encouraged the Interahamwe to kill, and substantially contributed to the subsequent attacks and killings of Tutsis in Nyamyumba commune. He knew that the Interahamwe, who perpetrated these crimes, possessed genocidal intent. The Chamber therefore finds beyond reasonable doubt that Ngirabatware instigated and aided and abetted genocide through his words and actions on 7 April 1994.
32. The Chamber further observes the coordination between Ngirabatware, Bagango and Simpunga as authority figures, with Juma, Makuze and Niyoniringiye, who manned the Gitsimbi/Cotagirwa roadblock together and singled out Tutsis for attack and killed them. Given these interactions and chains of event, the Chamber has no doubt that Ngirabatware and these other individuals possessed genocidal intent, and that each significantly contributed to their shared goal of ridding Nyamyumba commune of Tutsis.
33. Based on the totality of the evidence in this case, the Chamber finds beyond reasonable doubt that Ngirabatware participated in a joint criminal enterprise with Faustin Bagango, Jean Simpunga, Juma, Makuze and Felix Niyoniringiye. This joint criminal enterprise was in existence by 7 April 1994, and its members shared the common purpose of destroying, in whole or in part, the Tutsi ethnic group as such, and exterminating the Tutsi civilian population in Nyamyumba commune.
Killings in Furtherance of Prior Agreements
34. The Indictment alleges that, in April 1994, Ngirabatware instigated the Interahamwe to seek out and exterminate Tutsi civilians in Gisenyi préfecture, in furtherance of agreements made at prior meetings in February and March 1994. The Prosecution adduced no evidence of these prior agreements, and instead dropped the allegations relating to them after the close of its case-in-chief. The Prosecution also made no closing submissions on this allegation. The Chamber finds that the Prosecution has not met its burden in establishing this allegation. Events at Alphonse Bananiye’s Home
35. One Prosecution witness testified that, in the evening of 7 April 1994, she was taking refuge in Alphonse Bananiye’s home when Ngirabatware arrived, hid two boxes of weapons in the house, and subsequently gave them to Bagango. The Chamber considers her testimony to be generally credible and reliable. It was unaffected by Defence evidence. Based on her testimony, the Chamber finds that in the evening of 7 April 1994, Ngirabatware and Bagango were present at Bananiye’s home. Nevertheless, this Prosecution witness, in a prior statement to Tribunal investigators, did not mention the presence of weapons at this event, as alleged by the Prosecution. The Chamber considers this to be a material omission warranting appropriate caution. Under the circumstances, the Chamber does not consider her evidence sufficient to base a finding beyond reasonable doubt about the presence of weapons at Bananiye’s home in the evening of 7 April 1994.
36. A different Prosecution witness testified that Ngirabatware was also present at Bananiye’s home the following day, 8 April 1994, around 2.00 p.m. Although the Chamber finds this witness’s evidence to be credible and reliable, the Chamber has also found it to be reasonably possible that Ngirabatware may have been at the French Embassy in Kigali around this time period. This raises reasonable doubt as to this event.
Instruction to Interahamwe
37. The Indictment alleges that around 7 April 1994, Ngirabatware instructed members of the Interahamwe to “remove all the dirt between their teeth” and to “pull up all the weeds from the millet field”. The Prosecution has presented no evidence to substantiate this allegation. As such, it has not been proven.
Killing of Mukarugambwa
38. The evidence establishes that around 8 April 1994, Felix Niyoniringiye killed a woman named Mukarugambwa. Although Niyoniringiye was a member of the joint criminal enterprise with Ngirabatware, the Indictment does not charge Ngirabatware with having committed this event. Instead, it alleges that Ngirabatware planned, instigated, ordered and aided and abetted this killing, through Ngirabatware’s listing of Tutsis for extermination. Because the Prosecution has not established that Ngirabatware participated in the listing of Tutsis for extermination, the Chamber does not find Ngirabatware guilty in relation to the killing of Mukarugambwa.
Rape
39. Two Prosecution witnesses testified that Juma and Makuze raped the Tutsi woman identified in paragraph 63 of the Indictment. This was corroborated by a third Prosecution witness. Based on their evidence, the Chamber has no doubt that Juma and Makuze abducted this Tutsi woman about seven days after President Habyarimana’s death, took her to a nearby banana plantation, and raped her. Three days later, Juma and Makuze returned, took her back to a banana plantation, and raped her again. These rapes occurred within the context of a widespread and systematic attack directed against the civilian population on ethnic grounds, which was known to the perpetrators. The Chamber finds that this constitutes rape as a crime against humanity.
40. As noted earlier, Juma and Makuze were members of the joint criminal enterprise with Ngirabatware. Although the common purpose was to destroy and exterminate Tutsis, the Chamber finds that it was a natural and foreseeable consequence that at least some of the members of the joint criminal enterprise would resort to rapes and sexual assaults. Ngirabatware was subjectively aware of this risk, and he willingly accepted it through his distribution of weapons in Nyamyumba commune and encouragement of the Interahamwe to kill Tutsis. Accordingly, the Chamber finds beyond reasonable doubt that Ngirabatware committed rape as a crime against humanity, through the extended form of joint criminal enterprise liability.
41. The Prosecution further alleges that two Tutsi women, identified in paragraphs 61 and 62 of the Indictment, were also raped by Interahamwe around April 1994. One Prosecution witness testified that the victim alleged in paragraph 61 was raped, but the witness did not know when this occurred, nor did she provide further details. No witness testified that the victim alleged in paragraph 62 had been raped. The Chamber finds that the Prosecution has not proven these allegations beyond reasonable doubt.
Distribution of Machetes, Mid-April 1994
42. The Prosecution alleges that, in mid-April 1994, Ngirabatware ordered Bagango to distribute machetes to attackers. In support of this allegation, the Prosecution refers to the same evidence presented to establish the distribution of weapons on 7 April 1994. The Chamber finds that this allegation has not been proven.
Killing of Ten Tutsis
43. The Prosecution alleges that, in mid-April 1994, Ngirabatware instigated and publicly incited the Interahamwe to kill ten Tutsis, including a lady named Nyamunini. This allegation was supported by the hearsay evidence of a single Prosecution witness. Other Prosecution witnesses testified that this lady was killed before 1994. The Chamber finds that the Prosecution has not met its burden in relation to this allegation.
Meetings at Ngirabatware’s Parents’ House
44. The Prosecution further alleges that Ngirabatware convened three meetings at his parents’ house, in mid-April, late April and late May 1994. It further alleges that Ngirabatware brought grenades to the Interahamwe who convened at his parents’ house in mid-April 1994.
45. One Prosecution witness testified about two meetings at this location that took place around early May and mid-May 1994. In relation to the first alleged meeting, the witness testified that she did not see Ngirabatware there, but was able to hear him speaking. The witness provided no basis for her ability to identify Ngirabatware by his voice. Absent corroborating evidence, the Chamber cannot conclude that Ngirabatware spoke, and was present, at this meeting. In relation to the second alleged meeting, this witness provided only hearsay evidence from an Interahamwe, who described having participated in the attack on Nyamunini. This evidence lacked detail and corroboration. Accordingly, the Chamber finds that these allegations have not been proven beyond reasonable doubt.
Second Alibi and Third Alibi
46. The Chamber will now turn to the Defence alibi for the period 23 April to 23 May 1994. The Defence submits that during this time period, Ngirabatware was not in Rwanda but was instead travelling in or through Zaire, Cameroon, Gabon, Togo, Ivory Coast, Senegal, France, Swaziland, South Africa, Zambia and Kenya. In addition to witness testimony, the Defence relies on documentary evidence, including Ngirabatware’s passport. The Prosecution challenges the passport as containing forged stamp and visa impressions, and refers to the witnesses brought in rebuttal.
47. The Chamber has significant reservations about the credibility and reliability of the evidence presented by the Defence. There are numerous discrepancies and irregularities located throughout the passport, the Defence witnesses did not offer credible testimony, and the Defence failed to file a notice of alibi for this time period, in contravention of the Rules of Procedure and Evidence. By contrast, the Prosecution presented credible and compelling rebuttal evidence challenging the Defence alibi evidence.
48. Having assessed the credibility of the alibi evidence as a whole, the Chamber finds it lacking in both credibility and sufficient probative value to suggest the reasonable possibility of its truthfulness for the entire period of 23 April to 23 May 1994. The Chamber has considered, however, that it is reasonably possible that Ngirabatware was outside of Rwanda at some point during this timeframe.
49. As for the third alibi period from 23 June to 3 July 1994, the Chamber notes that the Prosecution has not brought evidence to support any allegations pertaining to this timeframe. As such, the Chamber has not considered it necessary to assess the reasonable possibility of this alibi.
Provision of Vehicle to the Interahamwe
50. The Prosecution alleges that towards the end of April 1994, Ngirabatware provided the Interahamwe with his vehicle, thereby facilitating their movements to massacre sites. In support of this allegation, the Prosecution refers to the evidence of three Prosecution witnesses. Having reviewed their evidence, the Chamber considers it clear that these witnesses provided no testimony that is capable of sustaining this allegation. The Prosecution has not met its burden in relation to this charge.
Distribution of Weapons, Mid-May 1994
51. According to the Prosecution, Ngirabatware and others used two Benz lorries and a Toyota pick-up truck to bring arms and ammunition to Gisenyi préfecture in mid-May 1994. The Chamber has identified no evidence in the record that could substantiate this allegation, nor has the Prosecution referred to any. This allegation has not been proven.
Bruxelles Roadblock
52. The Prosecution also alleges that, in late May 1994, Ngirabatware distributed rifles at the Bruxelles roadblock, and told the Interahamwe there to kill Tutsis. The Prosecution, however, refers to no evidence that supports this allegation. One Prosecution witness testified to having seen Ngirabatware about one month after President Habyarimana’s death in the Bruxelles area. This witness said that she saw Ngirabatware standing near the road with a group of people who were not doing anything unusual. This is insufficient to substantiate the Prosecution’s allegation.
Extermination
53. The Chamber observes that it has made a number of findings beyond reasonable doubt. None of these events, however, were pleaded in support of the charge of extermination as a crime against humanity.
VERDICT
54. For the reasons set out in the written Judgement, having considered all evidence and submissions of the Parties, the Trial Chamber finds unanimously in respect of Augustin Ngirabatware as follows:
55. On Count One of the Indictment, Conspiracy to Commit Genocide, the Chamber notes that this has been WITHDRAWN by the Prosecution.
56. On Count Two of the Indictment, Genocide, the Chamber finds Augustin Ngirabatware GUILTY for instigating and aiding and abetting the attacks and killings of Tutsis in Nyamyumba commune through his words and actions in distributing weapons on 7 April 1994.
57. On Count Three of the Indictment, Complicity in Genocide, the Chamber DISMISSES the charge because it is pleaded as an alternative to Genocide.
58. On Count Four of the Indictment, Direct and Public Incitement to Commit Genocide, the Chamber finds Augustin Ngirabatware GUILTY for statements inciting the killing of Tutsis at the Cyanika-Gisa roadblock in February 1994.
59. On Count Five of the Indictment, Extermination as a Crime Against Humanity, the Chamber finds Augustin Ngirabatware NOT GUILTY.
60. On Count Six of the Indictment, Rape as a Crime Against Humanity, the Chamber finds Augustin Ngirabatware GUILTY for committing, through a joint criminal enterprise in the extended form, the repeated rape of the Tutsi woman identified in paragraph 63 of the Indictment.
SENTENCING
61. In considering sentencing, the Chamber has taken into account the individual, aggravating and mitigating circumstances of Augustin Ngirabatware. The Chamber also recalls that the gravity of the offences is the deciding factor in the determination of the sentence. These have been fully detailed in the written Judgement. The Chamber has the discretion to impose a single sentence and chooses to do so.
62. The Chamber invites Augustin Ngirabatware to stand while his sentence is pronounced.
63. Augustin Ngirabatware, the Chamber has found you guilty of Genocide, Direct and Public Incitement to Commit Genocide, and Rape as a Crime Against Humanity. For these crimes, and considering all relevant circumstances, the Chamber sentences you to 35 YEARS’ IMPRISONMENT.
64. Augustin Ngirabatware shall receive credit for time served since his arrest on 17 September 2007, and shall be kept in detention under the present conditions until his transfer to his designated place of imprisonment.
CONCLUSION
65. This has been the summary of the Judgement and Sentence, and the trial proceedings in this case have now come to a close. The Chamber thanks all those involved in this case.