Table of contents:
Element:
P.39. Evidence inferred from an utterance, a document or a deed.
P.40. Evidence inferred from a circumstance.
P.40.1. Evidence that the perpetrator was aware that an attack was about to occur.
A. Legal source/authority and evidence:
The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54, Judgement (TC), 20 December 2012, para. 1388-1389:
1388. The Chamber considers that the specific circumstances of the case clearly demonstrate that Ngirabatware was subjectively aware that the rape of Tutsis in Nyamyumba commune was a possible consequence of the JCE. Ngirabatware distributed weapons to the Interahamwe and verbally encouraged them to kill Tutsis on 7 April 1994 with genocidal intent. There is no doubt that Ngirabatware knew that these weapons would be used to perpetrate horrific violence against the Tutsi population of Nyamyumba commune in order to kill or seriously attack members of this group. The Chamber considers that it was entirely foreseeable to Ngirabatware that the Interahamwe, including Juma and Makuze, might rape Tutsis as part of the brutal attacks they had been encouraged to commit without restraint.
1389. Furthermore, the Chamber notes that several witnesses testified of massacres against the Bagogwe Tutsis in 1992 and 1993. Witness ANAF testified that the Bagogwe killings were known to the international community and that Habyarimana had ordered that the perpetrators be jailed. This implies that it was also known of at the national level. At the commune level, Witness ANAJ specifically testified that Ngirabatware spoke at a meeting in Nyamyumba commune in 1993 of the Bagogwe massacres.1636 Witness ANAK testified that he heard Ngirabatware discuss the Bagogwe massacres with his friends.1637 Witness ANAJ testified that he was a victim of the attacks because he had a Tutsi wife.1638 Witness ANAK further testified that Tutsis had been raped in Nyamyumba commune during these attacks.1639 The Chamber has no doubt that Ngirabatware, as a native of Gisenyi préfecture who spent large amounts of time there, knew of such prior attacks. That rape occurred during these attacks is evidence that the possible reoccurrence of sexual violence during similar violence against the Tutsi population in 1994 was foreseeable on the basis of previous experience.
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 552 558, 568:
"552. Kayishema led the attackers from the Prefecture office to the Complex. He then ordered them to begin the attack on the Tutsi by relaying a message from Kigali, through a megaphone, to kill the Tutsis. Thus, Kayishema orchestrated and participated in the attack that lasted hours. As a result of the attack, thousands of Tutsis were killed.
553. The Trial Chamber finds that prior to the attack; Kayishema knew that it was imminent. Indeed, along with initiating the attack, he was seen at the Complex twice before the attacks of 17 April.
Kayishemas Criminal Responsibility
554. For the reasons stated above, pursuant to Article 6(1) of the Statute, Kayishema is individually responsible for instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation and execution of genocide by the killing and causing of serious bodily harm to the Tutsis at the Complex on 17 April 1994.
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"COUNT 7: Charges Kayishema with Genocide in Violation of Article 2(3)(a) of the Statute for the Massacres at the Stadium in Kibuye Town
556. The Trial Chamber finds that by 18 April 1994, thousands of men, women and children, unarmed Tutsis, sought refuge in the Stadium located in Kibuye Town. Once the refugees had gathered, persons under Kayishemas control, including gendarmes, prevented refugees from leaving the Stadium and surrounded the Stadium. The Trial Chamber is satisfied that during the attacks, some of the Tutsi who attempted to flee were killed. Kayishema instigated the attacks by ordering the attackers to "shoot those Tutsi dogs" and by firing the first shot into the Stadium. As a result of the attack, thousands of people were killed and numerous sustained serious physical injuries.
557.The Chamber finds beyond a reasonable doubt, that at the time when the Tutsi were prevented from leaving the Stadium, Kayishema knew or had reason to know that an attack was about to occur.
Kayishemas Criminal Responsibility
558. For the reasons stated above, Kayishema is individually criminally responsible under Article 6(1) of the Statute for instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation and execution of genocide by killing and injuring Tutsis in the Stadium."
"568. Under Article 6(1) of the Statute, Kayishema is individually responsible for genocide for killing and injuring the Tutsi at the attacks in the Bisesero area during April, May and June 1994 with the intent to destroy the Tutsi ethnic group. Kayishemas involvement varied from crime site to crime site within Bisesero. At the crime sites where he was found to have participated, Kayishema committed one or more of the following acts: headed the convoy of assailants; transported attackers in his vehicle; directed the initial positioning of the attackers; verbally encouraged them; initiated the attacks by orders or gunshots; lead the groups of attackers; shot at fleeing Tutsis; and, finally, thanked the Hutu attackers for their "work." These facts prove, beyond a reasonable doubt, that Kayishema, instigated, ordered, committed and otherwise aided and abetted in the preparation and execution of the massacre that resulted in thousands of deaths and serious bodily injuries with intent to destroy the Tutsi ethnic group."
[B. Evidentiary comment:]
P.40.2. Evidence that the perpetrator was aware that beatings were taking place.
A. Legal source/authority and evidence:
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004, para. 757:
"757. The Trial Chamber is satisfied that its commander, Bozidar Popovic, was aware of the beatings being inflicted upon the detainees. The Trial Chamber has already found that detainees died inside Manjaca camp as a result of beatings.1839 Popovic ordered that death certificates giving a false account of the cause of death be issued.1840 Moreover, the detainees cowed attitude could only be the result of a very strict discipline regime.1841 In addition, the Trial Chamber is satisfied that General Talic was aware of the mistreatment being visited upon detainees and of the conditions in Manjaca camp. At a meeting in the army club in Banja Luka on 22 June 1992, Adil Medic described the conditions he had witnessed in Manjaca camp to General Talic, and told him that detainees said they were being mistreated.1842 On one occasion, Vojo Kupresanin visited Manjaca camp.1843"
"1839. See A.2. supra , "The killing of a number of men in Manjaca between 1 June and 18 December 1992 Banja Luka municipality".
1840. Enis Sabanovic, T. 6517.
1841. Barney Mayhew, T. 13570, 13577 ; ex. P1617/ S 217 A, "Mayhew Report on Manjaca and Trnopolje", dated 4 September 1992.
1842. Adil Medic, T. 2231-2232, 2276 .
1843. Enis Sabanovic, T. 6577; Adil Draganovic, T. 5114; Jakov Maric, T. 10833-10834."
[B. Evidentiary comment:]
