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Judgement and Sentence - Jugement - Bagosora-Kabiligi-Ntabakuze-Nsengiyumva

Judgement and Sentence - Jugement - Bagosora-Kabiligi-Ntabakuze-Nsengiyumva

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Introduction

695. The Chamber heard extensive evidence on the events surrounding the death of Prime
Minister Agathe Uwilingiyimana from a number of witnesses. In particular, General Dallaire,
Major Beardsley, Colonel Marchal, Colonel Dewez and Sergeant Hutsebaut gave testimony
on the role of UNAMIR in attempting to arrange for the Prime Minister to address the nation
on Radio Rwanda. Witnesses XXO, AE, ATY, DA, DAK, XXJ, HP and Ruggiu testified
about the organisation and perpetrators of the attack on the Prime Minister’s residential
compound. The Defence did not present any evidence attempting to refute the killing of the
Prime Minister. Instead, their arguments focus on whether the evidence connects them to the
crime and whether the attack conformed to a military operation.832

826

Des Forges, T. 25 September 2002 pp. 96-100; Bagosora, T. 2 November 2005 p. 75, T. 15 November 2005

p. 65.

827

Dallaire, T. 19 January 2004 p. 25; Beardsley, T. 3 February 2004 p. 25; Bagosora, T. 7 November 2005 pp.

5, 8-9.

828

Des Forges, T. 18 September 2002 p. 39; Reyntjens, T. 15 September 2004 p. 17.

829

T. 14 November 2006 pp. 42, 44-45.

830

Bagosora, T. 8 November 2005 p. 50. See also Bagosora Closing Brief, paras. 1003-1011.

831

T. 8 November 2005 p. 49.

832

Bagosora Closing Brief, paras. 1003-1055, 1683, 1691, pp. 365, 375-376; Kabiligi Defence Brief, para. 203.
The Ntabakuze and the Nsengiyumva Defence teams do not address the allegations concerning the death of the
Prime Minister in their Closing Briefs.

The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T

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Evidence

696. Much of the evidence concerning the death of the Prime Minister is not in dispute.833
On the night of 6 April 1994, Prime Minister Uwilingiyimana was at her residential
compound in the Kiyovu neighbourhood of Kigali, located about 200 to 300 metres away
from ESM. Her security detail included 10 Rwandan gendarmes and six Ghanaian
peacekeepers from UNAMIR. Around 8.30 p.m., the head of her Rwandan security detail
informed the Prime Minister about the death of President Habyarimana and advised her to
leave before the surrounding area became blockaded. The Prime Minister, however, refused
to leave.834

697. General Dallaire spoke by telephone with Prime Minister Uwilingiyimana several
times before 10.30 p.m., and she informed him that she was having difficulty reaching
members of her cabinet.835

During the meeting of the Crisis Committee, as discussed above
(III.3.2.1), Bagosora expressly refused Dallaire entreaties to consult with the Prime Minister.
In addition, Dallaire also proposed that she should address the country about Habyarimana’s
death.836

Bagosora again refused to consult with her during a meeting at the residence of
Special Representative Booh-Booh later that night (III.3.2.2). At the end of that meeting,
Dallaire and Booh-Booh spoke privately and agreed that UNAMIR would escort the Prime
Minister to a radio station in the morning to address the country.837

698. Bagosora and Dallaire returned to military headquarters around 2.00 a.m.838

Dallaire
asked Colonel Marchal, who had been meeting with General Ndindiliyimana, to prepare an
escort to take the Prime Minister to Radio Rwanda and to secure Radio Rwanda.839

When
Beardsley and Dallaire returned to UNAMIR headquarters a short time later, around 3.00
a.m., he reiterated this plan, and Dallaire contacted the Prime Minister to inform her that an
escort was on its way.840

Dallaire’s efforts to arrange the address with Radio Rwanda were
ultimately refused after the director of the station informed him that members of the
Presidential Guard, who were at the station, would prevent it.841

In addition, Dallaire’s
attempts to arrange access for the Prime Minister with RTLM were immediately rejected.842

699. Marchal relayed Dallaire’s orders to Colonel Dewez sometime after 2.00 a.m. and
further ordered him not to use force in executing the mission.843

Dewez then tasked a
contingent of Belgian peacekeepers, headed by Lieutenant Lotin, with escorting the Prime

833

As mentioned previously (III.3.2), the Chamber, thus, sees no need to summarise the evidence piecemeal.

834

Witness XXO, T. 19 November 2003 pp. 44, 49-51; T. 20 November 2003 pp. 16-17.

835

Dallaire, T. 19 January 2004 p. 24.

836

Beardsley, T. 3 February 2004 pp. 25, 27-29. This is reflected in the Code Cable drafted shortly after the
meeting from Dallaire to Maurice Baril, head of the military division of the United Nations Department of
Peacekeeping Operations. See Prosecution Exhibit 170 (Code Cable of 7 April 1994 from General Dallaire to
Baril), para. 11. Colonel Marchal also testified that the issue of a radio address was raised during the meeting,
but that no decision was taken as to who would give the address. T. 4 December 2006 p. 60.

837

Dallaire, T. 19 January 2004 p. 34.

838

Id. p. 45; Bagosora, T. 7 November 2005, p. 26.

839

Dallaire, T. 19 January 2004 pp. 28, 35, T. 22 January 2004 pp. 70-72; Beardsley, T. 3 February 2004 p. 29.

840

Beardsley, T. 3 February 2004 p. 29; Dallaire, T. 22 January 2004 pp. 70-71. General Dallaire recalled
raising the issue with the Prime Minister after meeting with Special Representative Booh-Booh and noted that
he may have spoken to her from the Rwandan military headquarters.

841

Dallaire, T. 21 January 2004 p. 27, T. 22 January 2004 p. 71; Beardsley, T. 3 February 2004 p. 29.

842

Dallaire, T. 22 January 2004 p. 71; Beardsley, T. 3 February 2004 p. 29.

843

Marchal, T. 4 December 2006 p. 61; Dewez, T. 24 June 2005 pp. 4-5.

The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T

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18 December 2008

Minister to Radio Rwanda.844

In addition, Dewez dispatched a second group of Belgian

peacekeepers in order to secure Radio Rwanda.845

This second group, however, was

prevented from reaching the station at a roadblock manned by soldiers.846

Lotin’s double
escort of four jeeps arrived at the Prime Minister’s residence around 5.00 a.m., after receiving
information on a passable roadblock.847

700. Meanwhile, the situation at the Prime Minister’s residential compound in the
preceding hours had become increasingly tense. The Rwandan gendarmes in the Prime
Minister’s security detail had received reports from their platoon commander that members of
the Presidential Guard were moving through the Kimihurura neighbourhood of Kigali
targeting government ministers.848

The Prime Minister had contacted UNAMIR twice around

12.00 and 2.15 a.m. seeking reinforcements to her security detail.849

During the course of the
evening, her security detail noticed that nearby roadblocks had been reinforced by soldiers
and that an armoured vehicle from the Reconnaissance Battalion had arrived and pointed its
cannon at the Prime Minister’s residential compound. Soldiers manning the roadblock near
ESM periodically fired guns and grenades at the compound as the security detail scouted the
compound for escape routes.850

701. Witness XXO, who was present, explained that the Prime Minister’s residential
compound came under sustained gun and grenade fire around 5.00 a.m. after the Belgian
peacekeeping contingent arrived.851

Around that time, the security detail was trying to
arrange for the Prime Minister to take refuge at the neighbouring compound of an American
diplomat.852

When this proved unsuccessful, the gendarmes moved the Prime Minister, her
husband and children into hiding in separate rooms in another nearby home.853

Before going
into hiding, the Prime Minister spoke with General Dallaire sometime on the morning of 7
April to inform him that Rwandan troops had arrived outside her home and she was
leaving.854

After hiding the Prime Minister, the gendarmes then returned to her compound to
monitor the situation with the Belgian and Ghanaian peacekeepers.855

702. Between 7.30 and 8.00 a.m., a large number of soldiers from the Presidential Guard
and ESM advanced on the compound and ordered the peacekeepers and gendarmes to drop
their weapons. The advancing Rwandan soldiers then opened fire on the Prime Minister’s
compound. The gendarmes retreated to the neighbouring home where the Prime Minister was

844

Marchal, T. 4 December 2006 p. 61; Dewez, T. 24 June 2005 p. 8.

845

Dewez, T. 24 June 2005 pp. 3-4.

846

Id. p. 5.

847

Hutsebaut, T. 2 December 2003 p. 57; Dewez, T. 24 June 2005 p. 11.

848

Witness XXO, T. 20 November 2003 pp. 17-18.

849

Hutsebaut, T. 2 December 2003 pp. 25, 45.

850

Witness XXO, T. 20 November 2003 pp. 18-22.

851

T. 20 November 2003 pp. 24-25; Dewez, T. 24 June 2005 p. 14.

852

T. 20 November 2003 p. 24.

853

Id. pp. 24-25, T. 21 November 2003 p. 8.

854

Beardsley, T. 3 February 2004 p. 37.

855

Witness XXO, T. 20 November 2003 p. 25. See also Dewez, T. 24 June 2005 p. 15 (Colonel Dewez
explaining that he ordered the Belgian peacekeepers not to accompany the Prime Minister into hiding in order to
remain transparent and to remain in radio contact with him. He stated that the contingent thus remained at the
residence). The Ghanaian peacekeepers were already stationed at the Prime Minister’s residence as part of her
security detail. See Beardsley, T. 3 February 2004 p. 30.

The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T

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18 December 2008

hiding. The peacekeepers were disarmed and taken to nearby Camp Kigali on a minibus
(III.3.4).856

703. Around 8.30 or 9.00 a.m., Witness XXO spoke with his superior, Lt. Colonel
Bavugamenshi, to apprise him of the attack. Bavugamensi said that he would ask for the
attack to be stopped during a meeting of military officers being held at ESM that morning.
The witness subsequently received a call from Bavugamenshi as the Rwandan soldiers
attacked the residence where the Prime Minister was hiding. The soldiers arrested Witness
XXO and gendarmes in the Prime Minister security detail. The witness then heard the
soldiers shout that they had found the Prime Minister after searching the house.857

704. On the morning of 7 April 1994, Witness AE, who was stationed at a roadblock near
ESM, heard soldiers from ESM shouting that the Prime Minister had been found and saw her
emerge from a nearby home. According to the witness, soldiers from the Prime Minister’s
residence and Camp Kigali then ran toward her. Witness AE stated that the Prime Minister
asked not to be killed and to instead be taken to army headquarters. He heard several soldiers
arguing about what to do with the Prime Minister with some saying she should be killed and
others saying she should be taken to military headquarters.858

705. Witness AE stated that he ordered his soldiers back to their positions at ESM and then
heard gunshots a few minutes later. The Prime Minister’s naked and bullet ridden body was
seen lying openly in the compound with a bottle shoved into her vagina.859

Soldiers from
several units including the Presidential Guard, ESM, the Reconnaissance Battalion and the
Huye Battalion, were seen walking around the property.860

Around 1.00 to 1.30 p.m., Dallaire
travelled from the Ministry of Defence to the UNDP compound passing by the Prime
Minister residence. He saw blood and bullet holes on the walls of the compound, but
explained that the Prime Minister’s body had been taken away.861

706. The Prosecution also presented other evidence from Witnesses ATY, DA, DAK, XXJ,
HP and Ruggiu relating to the organisation and perpetrators of the attack on the Prime
Minister’s residential compound. Parts of this specific evidence are disputed.862

Prosecution Witness ATY

707. Witness ATY, a Tutsi who lived in Kiyovu, recalled that, a few days before 6 April
1994, her husband showed her a list of names of people to be killed. It included among others
Prime Minister Agathe Uwilingiyimana, Faustin Rucogoza, Landoald Ndasingwa and
Frédéric Nzamurambaho.863

708. The witness stated that, on the morning of 7 April, soldiers from the Presidential
Guard came to her house, pointed a gun at her, and one of them said it was necessary to kill
all Tutsis. A Presidential Guard captain prevented this soldier from killing her, saying: “But
why do you want to kill this lady? Bagosora has given us a list, and he has said that we
should finish that list by 1 p.m. Do you think we are going to do everything, finish off all

856

Witness XXO, T. 20 November 2003 pp. 28-30. See also Witness AE, T. 16 December 2003 pp. 38-39.

857

Witness XXO, T. 20 November 2003 pp. 30-32.

858

Witness AE, T. 16 December 2003 p. 41.

859

Id. pp. 42-43; Witness DA, T. 18 November 2003 p. 49.

860

Witness DA, T. 18 November 2003 pp. 51-52.

861

Dallaire, T. 20 January 2004 pp. 49-51.

862

The Chamber will therefore follow its usual way of summarising the testimonies witness by witness.

863

T. 27 September 2004 pp. 14-16; Prosecution Exhibit 309 (personal identification sheet).

The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T

Judgement and Sentence

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18 December 2008

those who are on that list? Do you think we'll have scoured the whole Kiyovu
neighbourhood?”.864

709. On the advice of the Presidential Guard captain, Witness ATY then fled, but as she
left her house she saw soldiers take the Prime Minister out of her residential compound. She
heard a soldier say to the Prime Minister, “I don't know you. I have nothing against you, but
Bagosora and the government asked us to kill you.” The witness returned to her home later
that day and hid behind bottle crates in a dark storage room near the garage. In the afternoon,
Bagosora called her house and spoke with one of her children to ask if their father had been
killed. Her son responded that both parents were dead. Around 6.30 p.m., she observed
Bagosora at her house, taking some of her husbands papers and speaking with her children.
The witness thought that he was also confirming that she was dead. Bagosora explained to
her children that their father, who was murdered on the same occasion as the Prime Minister,
had been killed because he collaborated with the enemy and Tutsis. He regularly called the
children in 1994 to try to assist them.865

Prosecution Witness DA

710. Witness DA, a Hutu soldier stationed at Camp Kigali, testified that, on 6 April 1994,
Major Nzuwonemeye of the Reconnaissance Battalion tasked Captain Sagahutu with the
mission of preventing the Prime Minister from leaving her residence. Sagahutu in turn
dispatched Chief Warrant Officer Bizimungu and several armoured vehicles with the
operation. The witness claimed that, on the morning of 7 April, he replenished the
ammunition of the soldiers near the Prime Minister’s residence. In addition, he overheard
radio communications between Major Nzuwonemeye and Captain Sagahutu discussing
Bagosora’s instructions to complete the mission using any reinforcements as necessary, in
particular, to ensure that no one had access to Radio Rwanda. Witness DA also stated that he
accompanied Captain Sagahutu to identify the body of the Prime Minister and saw her
bloodied naked corpse.866

Prosecution Witnesses DAK, XXJ and HP

711. Witness DAK, a Hutu member of the Reconnaissance Battalion, testified that Captain
Sagahutu dispatched him to Radio Rwanda and the Prime Minister’s residence with
instructions to prevent the Prime Minister from gaining access to the radio station.867

Witness

XXJ, a Hutu army officer, overheard a similar order over the radio network.868

Witness HP, a
Hutu member of the Reconnaissance Battalion, attested to overhearing a radio transmission
between Captain Sagahutu and Chief Warrant Officer Bizimungu concerning what to do with
the Prime Minister. Bizimungu informed Sagahutu that they had found her and asked if he
should bring her. Sagahutu responded by asking why he would bring her to the camp.
Witness HP stated that, between 4.40 and 6.00 p.m. on 7 April 1994, he transported the body

864

T. 27 September 2004 p. 23; T. 28 September 2004 p. 20.

865

T. 27 September 2004 pp. 24, 29; T. 28 September 2004 pp. 34-41.

866

T. 17 November 2003 pp. 19-20, 24, 25-27, 30, 32, 33; T. 18 November 2003 pp. 46-49, 52; Prosecution
Exhibit 129 (personal identification sheet).

867

T. 7 November 2003 pp. 35-38; Prosecution Exhibit 121 (personal identification sheet).

868

T. 14 April 2004 pp.18, 20, 21, 69-70; Prosecution Exhibit 208 (personal identification sheet).

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18 December 2008

of the Prime Minister, her husband and two other victims from the Prime Minister’s residence
to Camp Kanombe.869

Prosecution Witness Georges Ruggiu

712. Georges Ruggiu, a Belgian and Italian journalist with RTLM, testified that, on 7
April, a group of Presidential Guard soldiers informed him that they had received orders to go
to the Prime Minister’s residence. The members of the Presidential Guard explained that,
after disarming the Belgian peacekeeping contingent and removing them from the area, they
asked the Prime Minister to remove her dress before killing her.870

Deliberations

713. In the Chamber’s view, General Dallaire and Major Beardsley provided largely
consistent and credible accounts of Dallaire’s unsuccessful efforts to convince Bagosora to
consult with the Prime Minister as well as Dallaire’s failed attempts to arrange for her to
make a radio address on the morning of 7 April. Both witnesses directly participated in these
events, and, in particular, Beardsley’s main function at the time was to take contemporaneous
notes on what transpired at the meeting and to prepare a cable later that night conveying the
information to Maurice Baril, head of the military division of the United Nations Department
of Peace Keeping Operations in New York. The cable largely confirms the account as
described by the two witnesses.871

714. Dallaire testified that he did not inform members of the Crisis Committee of his
specific plan to dispatch Belgian peacekeepers to escort the Prime Minister to Radio
Rwanda.872

Beardsley recalled, however, that Dallaire proposed that the Prime Minister
address the country during the first part of the meeting with the Crisis Committee. This is
reflected in the cable drafted shortly after the meeting.873

In the context of Rwanda, such an
address would clearly be given over the radio. Therefore, in the Chamber’s view, Bagosora
would have been aware, at the very least, of Dallaire’s desire to arrange for the Prime
Minister to make a radio address.

715. It also follows from the evidence of Dallaire and Beardsley that Dallaire tasked
Colonel Marchal with the mission to escort the Prime Minister to Radio Rwanda. Dallaire
gave this order at the Rwandan military headquarters at Camp Kigali in the presence of other
Rwandan military officers after returning to the camp with Bagosora from the meeting with
Special Representative Booh-Booh. The Chamber notes that Marchal does not recall speaking
with Dallaire or seeing him at Camp Kigali at this time.874

However, the corroborated
accounts of Dallaire and Beardsley, confirming that Dallaire spoke with Marchal about the
mission at the camp, are more convincing. Therefore, the totality of the evidence indicates

869

T. 10 November 2003 p. 49; T. 11 November 2003 pp. 21, 23-24, 27-28; Prosecution Exhibit 122 (personal

identification sheet).

870

T. 16 June 2003 pp. 38-39.

871

Beardsley, T. 3 February 2005 p. 26. See also Prosecution Exhibit 170 (Code Cable of 7 April 1994 from

Dallaire to Baril).

872

Dallaire, T. 22 January 2004 p. 72.

873

Prosecution Exhibit 170 (Code Cable of 7 April 1994 from Dallaire to Baril: “The FC asked who would
speak to the population and suggested the PM Agathe.”), para 11.

874

Marchal, T. 4 December 2006 p. 57.

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18 December 2008

that senior Rwandan military officials, including Bagosora, were likely aware of this more
specific plan.

716. The Chamber considers that Dallaire, Beardsley, Marchal, Colonel Dewez and
Sergeant Hutsebaut provided generally consistent and credible evidence concerning the
issuance and the execution of the orders ultimately tasking the Belgian peacekeeping
contingent with escorting the Prime Minister to Radio Rwanda and securing the station.

717. With respect to the killing of Prime Minister Uwilingiyimana, the Chamber considers
that Witnesses XXO and AE provided credible and convincing first-hand accounts of what
transpired at her residence from 6 to 7 April 1994. Both witnesses were in a position to
closely follow the events, and the Defence generally does not dispute the accuracy of their
evidence.875

From their accounts, it clearly follows that elements of the Presidential Guard
and Reconnaissance Battalion participated in the attack on the Prime Minister’s residence as
well as her murder and sexual assault.

718. Witnesses DA, DAK, HP, XXJ and Ruggiu offered varying degrees of corroboration.
They confirmed the key aspects of the testimonies of Witnesses XXO and AE concerning the
build-up of soldiers around the Prime Minister’s residence, the presence of armoured vehicles
and the condition of her body. The Chamber notes that the Defence does not specifically
contest their evidence on these general points.

719. The Defence emphasises that the testimonies of Witnesses XXO, AE and other
witnesses reflects the chaotic nature of the attack, which shows that it did not conform to an
organised military operation. In support of this, the Bagosora Defence points to the evidence
of Marchal, who reviewed Witness AE’s evidence, and agreed that the killing of the Prime
Minister did not appear to be organised, given the disagreement about what to do with her.876

720. In the Chamber’s view, however, the attack on the Prime Minister’s residence in
Kiyovu was an organised military operation. The Chamber notes the proximity in time of the
attack to the killing of other moderate politicians in the Kimihurura area nearby (III.3.3.3).
Furthermore, the use of armoured vehicles and the build-up of soldiers during the course of
the night, including elite units of the Rwandan army, also strongly suggest an organised
military operation. Moreover, the Chamber simply cannot accept in this context that elite
units of the Rwandan army would spontaneously engage in sustained gun and grenade fire
with Rwandan gendarmes and United Nations peacekeepers, arrest these individuals, and
then brutally murder and sexually assault the Prime Minister of their country unless it formed
part of a military operation. The fact that Witness AE observed some soldiers who did not
wish to pursue this ultimate course of action in the overall context does not detract from the
Chamber’s finding.

721. The question remains, however, to what extent this military operation can be
attributed to the Accused. Witnesses ATY and DA connected Bagosora directly to the
killings. However, the Chamber is not convinced that this evidence is credible and reliable. It
is not disputed that Witness ATY’s husband was killed along with the Prime Minister.
However, some aspects of the witness’s evidence appear speculative and lack clarity and
coherence. For example, the witness provided a vague explanation of how her husband

875

Bagosora Closing Brief, paras. 1683, 1691.

876

Id.; Marchal, T. 4 December 2006 p. 68.

The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T

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18 December 2008

obtained a purported list of assassination targets.877

She also claimed that she knew all of the
members of the Presidential Guard, but became evasive when pressed for the identity of the
soldiers who came to her home.878

The Chamber also has doubt that Bagosora was at her
house on the afternoon of 7 April in light of prevailing circumstances in Kigali and evidence
that he was at Camp Kanombe at that time.

722. Witness DA claimed that, on the morning of 7 April, Bagosora ordered the
Reconnaissance Battalion to use reinforcements, if necessary, to prevent anyone from
accessing Radio Rwanda. This follows from a conversation the witness allegedly overheard
between Sagahutu and Major Nzuwonemeye. Bagosora was not discussed during the
conversation, and the witness inferred that the order came from him since Nzuwonemeye
mentioned that he was going to consult a meeting of officers which had been convened by
Bagosora. In the Chamber’s view, this evidence is not sufficiently reliable to show that
Bagosora issued the instructions.

723. Nevertheless, the Chamber has found that Bagosora had authority over the Rwandan
army at the time of the attack (IV.1.2). The organised attack, involving elite units of the
Rwandan army, targeted a senior government official. In the Chamber’s view, the order for
such an assault could only have come from the highest military authority, which at the time
was Bagosora. In this respect, the Chamber also bears in mind his refusal to consult with the
Prime Minister, his suspicions that she was involved in an attempted coup d’état, and his
awareness that UNAMIR wanted her to address the nation.

724. The Chamber has not heard sufficient evidence directly implicating Kabiligi,
Ntabakuze or Nsengiyumva in this crime.

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