CILRAP » Case Matrix Network » CMN Knowledge Hub » Means of Proof Digest » Art. 8 War crimes » Art. 8(2)(a) War crimes » Art. 8(2)(a)(i) Wilful killing » 6.b.i. [Mental element for Element 5] Consequence of killing: The perpetrator meant to cause death; OR

Element:

6.b.i.[Mental element for Element 5] Consequence of killing: The perpetrator meant to cause death; OR

P.11. Evidence of perpetrators indicating their intention prior to acting.

P.11.1. Evidence of the perpetrators declaring or singing their intention to cause death prior to acting.

A. Legal source/authority and evidence:

The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC - 01/04-01/07, Decision on confirmation of charges (PTC), 30 September 2008, para. 280:

280. The Prosecution tendered sufficient evidence to establish substantial grounds to believe that, prior to the attack, combatants from FRPI and FNI militias recited songs with lyrics indicating that they should kill the Hema people, and show mercy towards the Ngiti and Bira.

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 909:

"909. [] In this respect, the Trial Chamber notes VG014s evidence that Milan Lukic said that he must hurry up with the killings because he had to kill also the six men who remained in the house in Bikavac.[]"

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 329:

"329. Kemal Mehmedovic further testified that the soldiers at one point said: "Lets go to the meadow to kill the people."¹²¹⁵ []"

"1215. Kemal Mehmedovic, T. 1287."

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, paras. 111, 121:

"111. Witness TAQ further testified that at around 3 p.m. on 15 April, while she was in front of the priests office in the parish compound near the church, she saw the white double-cabin vehicle belonging to Rusumo commune pull up in front of the parish compound. In the vehicle, she saw the Accused, who was in civilian clothes and wearing glasses, as well as other people, including the driver of the vehicle and a young man called Augustin. In the back of the vehicle, she saw machetes and uniformed communal police, including Berakumenyo and Kazoba, carrying guns. The commune vehicle was followed by two vehicles decorated with branches and carrying young people, dressed in the same peculiar way as the Interahamwe, wearing banana leaves and carrying sticks, grenades and clubs. They sang: "Lets exterminate them". Other vehicles followed, although the witness could not see them since the three vehicles that were in front were obstructing her view. Witness TAQ explained that she and the other refugees were heartened by the arrival of the Accused. They thought that he would restore security, as the Interahamwe were threatening to kill them. She saw him alight from his vehicle and head towards the refugees, who were also coming towards him.^[91]"

"[91] T., 29 July 2003, pp. 48 to 52."

"121. Witness TAO further testified that it was then that the Accused asked aloud the Hutu who were at the parish to separate themselves from the Tutsi, adding that the hour of the Tutsi had come. At the time of the attack, the Interahamwe were singing "Lets exterminate them".^[113] []"

"[113] Ibid."

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, para. 534:

"534. Prosecution Witness GAO testified that on 7 April 1994 the Interahamwe left Byangabo Market, singing: "Let us exterminate the Inyenzi; let us exterminate the accomplices; Let us exterminate Kagame."⁷¹⁰ []"

"710. T. 23 July 2001, pp. 22-24 (GAO)."

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC) 16 May 2003, para. 133, 137, 139:

"133. Witness GGY saw the Accused again that same day at 10.00 a.m. at Muyira Hill, shooting at the refugees. The distance between the witness and the Accused was not more than 100 metres. The attackers were shouting "Tuba Tsemba Tsembe", which he said means "Lets exterminate them". The witness stated that this attack lasted until 5:30 p.m. After the attack, the attackers assembled at Kucyapa for a meeting. He said that there were so many refugees killed that day that he would compare them to "leaves which were falling from trees". Some survivors recognized their kith and kin amongst the dead bodies and buried them in shallow graves; however, other dead bodies were eaten by wild animals and dogs on the hill. As for the method of attack, the witness stated that the attackers would shoot at the refugees first, then the attackers armed with clubs and machetes would finish them off. The Accused was in the front row of attackers with about 20 other people."

"137. On 13 May, vehicles with Interahamwe and soldiers on board arrived by the witnesss hiding place. The witness heard them start to plan their attacks at Muyira and other hills. They were further than 40-50 metres away but the witness could hear them as they used loudspeakers. The witness said that these attackers were armed Hutu who were trying to exterminate Tutsi. He saw the Accused with Musema and Ndimbati about 80 metres away. The witness said that the Accused seemed to be the leader of a group of attackers because he was in front of these attackers who followed him, and because he was carrying a gun. Witness GGR saw the Accused fire the gun when the Accused was going towards Muyira.^[119]At this point, the Accused was about 40-50 metres away from him. The attacks began around 8.00 a.m. and 8.30 a.m., and ended in the evening. The witness saw the Accused on several occasions throughout the attack. In the evening, he heard the attackers singing "Tubatsembatsembe" which he said means "they should exterminate all Tutsis because the Tutsis were a dirty race". The Accused was in front of the attackers from Gisovu as this was being sung.^[120]There were so many attackers that the witness wondered if any Hutu stayed home that day and did not go to the attacks. Many of the Tutsi refugees died that day as a result of the attack.^[121]"

"139. Witness DAF was at Muyira Hill, in Bisesero, on 13 May 1994, during a large-scale attack aimed at exterminating Tutsi who were in Bisesero. The witness saw the Accused from a distance of 50 to 100 metres, in the early afternoon of 13 May at Kucyapa, on the border between Gishyita and Gisovu communes. The attack had begun between 7.00 a.m. and 8.00 a.m. The persons attacked were Tutsi in Bisesero and included old people, young men and women, and babies. The Accused was one of the leaders whom he knew and recognized, which included Kayishema, Prefet of Kibuye Prefecture; Ruzindana, a well-known trader; Musema, Manager of Gisovu Tea Factory; Sikubwabo, the former bourgmestre of Gishyita; Ndimbati, the bourgmestre of Gisovu; and Mika. The attackers comprised Interahamwe, soldiers, policemen and Hutu members of the population. The witness saw the Accused when the attackers were pursuing him and others, and killing the Tutsi. The Accused was shooting at the fleeing Tutsi, including the witness himself. The attackers carried weapons, including firearms, spears, machetes and clubs and were chanting "lets exterminate them, lets flush them out of the forest" and "Power, Power". They came in vehicles, including buses, pick-ups and other vehicles from the Gisovu Tea Factory, which parked at Kucyapa. The leaders, including the Accused, carried firearms. They were well-known persons in authority, or traders, acknowledged as leaders by the attackers. These leaders expressed joy and approval for the acts of killings carried out by the attackers.^[123]"

"[123] T. 26 Aug. 2002, pp. 83-88, 96, 102-103."

Prosecutor v. Elizaphan And Gérard Ntakirutimana, Cases No. ICTR-96-10 and ICTR-96-17-T, Judgment (TC), 21 February 2003, paras. 589, 631, 717:

"589. [] The Accused came out of the front cabin. He was unarmed. The witness then heard him address the attackers, pointing at fleeing refugees and saying: "There they are!" The attackers then chased these refugees, singing "Exterminate them; look for them everywhere; kill them; and get it over with, in all the forests." []"

"631. Witness GG testified that, one day in mid-May 1994, he saw Gérard Ntakirutimana at a place called Rwiramba in Bisesero. Gérard Ntakirutimana was arriving in his vehicle. A number of other vehicles, including buses, were part of the convoy approaching Muyira Hill. All the vehicles were full of individuals armed with clubs and machetes chanting, "Lets exterminate them; let us flush them out of all the bushes; let us flush them out of all the caves." The attackers left their vehicles at the bottom of Muyira Hill and moved up the slope flushing out refugees along the way. Individuals he described as the leaders, among whom the Accused, sent the other attackers to pursue the refugees up a steep hill called Rugona. Gérard Ntakirutimana was seen with Clément Kayishema, Obed Ruzindana, Charles Sikubwabo, Musema, Mika Muhimana, and Aloys Ndimbati. The witness specified that many people were killed as a result of this attack.^[968]"

"[968] T. 24 September 2001 p. 26-38."

"717. Witness OO testified to seeing Gérard Ntakirutimana towards the end of June 1994, not at the camp of the Gendarmerie, but at a naval post near Lake Kivu, which post was near the prefectural office. He saw Gérard Ntakirutimana among about 400 people in cars heading for the office, some in civilian attire and others in military clothes, with various types of weapons and dancing and singing "Lets exterminate them. Lets eliminate them from the forests. We will exterminate them, we will conquer them". []"

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 404:

"404. . Witness F testified that, following two weeks of calm a large scale attack took place on Muyira hill on 13 May 1994. [] Witness F estimated that only 10000 of the 40 - 50000 refugees on Muyira hill on 13 May 1994 survived the attack. As far as he knew, all the victims were Tutsis, while all the assailants were Hutus. Questioned by the Bench, he confirmed that the assailants used to chant slogans as they approached the hills. The witness quoted two such slogans, "Exterminate them"⁽⁴⁾, "them" meaning the Tutsis, and "Even the Tutsi God is dead"⁽⁵⁾."

"4. See "Warrant of Arrest, Order for Surrender", Case No. ICTR-96-13-I.

5. See "Warning and notice to Counsel in terms of Rule 46(A) of the Rules of Procedure and Evidence", Case No. ICTR-96-13-I, (31 October 1997)."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 363:

"363. [] Witnesses K and L added further that Kayishema was armed with a sword and that the attackers were singing a song in Kinyarwanda with the lyrics, "exterminate them, exterminate them." These witnesses also testified that the attackers surrounded the Stadium, used tear gas, grenades and guns to kill those inside the Stadium, but did not enter."

P.11.2. Evidence that threats were made prior to killing.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 832 833:

"832. [] Further, Milenko Kuljanin gave testimony relating to Hazim Delics state of mind. This witness stated that, after the journalists had visited the prison-camp and the victim had failed to make the confessions sought of him, Mr. Delic came back into Tunnel 9, bringing with him Zeljko Milosevic and the others who had previously been taken out to be interviewed. He threatened them by saying that they "would remember him well"⁸⁸⁵. In addition, Milenko Kuljanin testified that, the day before, Hazim Delic had "forewarned him [Zeljko Milosevic] of what was to come and told him to be ready" at one in the morning⁸⁸⁶. Although there are some variations between the testimony provided by the witnesses to these events, the fundamental features of this testimony, as it relates to Zeljko Milosevics last evening of life, are consistent and credible.

833. The Trial Chamber finds that in July 1992, after inflicting numerous beatings, Hazim Delic deliberately and severely beat Zeljko Milosevic for a period of at least an hour. The beatings leading up to and including the last prolonged and serious beating, and Mr. Delics threats to the victim prior to the last beating, demonstrate an intent to kill on the part of Mr. Delic. The Trial Chamber is further convinced that the beating inflicted on this occasion caused the death of the victim."

"885. T. 5481.

886. T. 5483."

P.12. Evidence that killings were planned or premeditated.

P.12.1. Evidence of planning of killings.

A. Legal source/authority and evidence:

Prosecutor v. Mile Mrkić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para.510:

"[] The Chamber also refers here to its findings made elsewhere in the Judgement, that a large grave had been dug before the killings, that the grave was in an isolated location, that the bodies of at least 190 of the victims were covered and left, and that the killings occurred in the evening and at night. To establish the intent of the actual perpetrators it is further relevant that the victims were prisoners of war, that they were unarmed, the majority also being sick or wounded patients from a hospital. The Chamber would also observe here that the perpetrators were among the victors in a bitter armed conflict in which the victims had been among the Croat losers."

Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Judgement (TC), 20 July 2009, para. 918, 922:

"918. The Trial Chamber has found that Milan Lukić told individuals among the Koritnik group as they were leaving Jusuf Memics house that they did not need to put on or bring their shoes with them to Adem Omeragićs house. The Trial Chamber has also found that the carpet in Adem Omeragićs house had been coated with a flammable substance prior to the Koritnik groups arrival. Given these facts and in light of the actions by Milan Lukić before and during the burning, the Trial Chamber is satisfied that Milan Lukić intended to kill the people he had herded into Adem Omeragićs house. These killings were premeditated and deliberate. The Trial Chamber notes in this respect the evidence of CW1 that before she left Visegrad on 29 May 1992, she had met Milan Lukic at the SUP building, where he had said that "we got orders that not an ear should remain of the Kurspahic family".

"922. The evidence shows that all the exits of the house had been blocked by heavy furniture when the people entered Meho Aljićs house, thereby preventing anyone inside the house from escaping. After he had herded everyone inside, Milan Lukić then blocked the last exit to the house. Shortly thereafter, he set the house on fire. This evidence makes it is abundantly clear that Milan Lukic acted deliberately and with premeditation. The Trial Chamber is satisfied that the only reasonable inference is that Milan Lukić intended to kill the persons that he had herded into Meho Aljićs house."

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, paras. 51, 55:

"51. Witness TBH testified that a meeting of conseillers took place on 9 April 1994, around noon, in the IGA room, located in Rusumo commune.^[39]In attendance were Conseillers Birasa of Musaza secteur, Claude Ahishakiye of Gatore secteur, André Bizuru of Kigina secteur, Anastase Mutabaruka of Kirehe secteur, Rwabarinda of Nyabitare secteur, Nyiringabo of Kankobwa secteur, Claudien Kabandana of Nyamugari secteur,^[40]Ananie Karamage of Nyarubuye secteur and Seth Sebijojo of Gisenyi secteur. Only the Conseiller of Kigarama secteur was absent.^[41]Also in attendance were Edmond Bugingo, MRND Chairman for Rusumo commune and Justin Manayabagabo, Secretary of MRND. The Accused, who chaired the meeting, recalled the situation in Rwanda since the assassination of President Habyarimana, the fact that the country was at war, the presence of the Rwandan Patriotic Front (RPF) at Kinihira and the fact that young Tutsi were leaving their families in the commune to join RPF. The Accused asked the conseillers of the secteurs of Rusumo commune to organize meetings, which were to be held without the knowledge of the Tutsi, between 9 and 12 April 1994 in their respective secteurs. He also asked them to tell the Hutu, during the meetings, that all the Tutsi should be killed, adding that otherwise, the accomplices of the Inkotanyi would denounce the Hutu, and such Hutu would die before the others. He said that once the Tutsi were killed, the Inkotanyi would not have any more accomplices. The witness explained that before the meeting, he had never heard the Accused make any statement intended for the massacre of Tutsi. According to the instructions of the Accused, all meetings were to be held before 12 April and the massacres were to commence on 13 or 14 April 1994. In response to a question put to him by the Bench, Witness TBH testified that the issue of weapons distribution was not mentioned during the meeting of 9 April 1994.^[42]"

"[39] The IGA room is a training centre which, according to Witness ZEZ, is located at the same place as the communal office. See T., 6 October 2003, pp. 52 to 53.

[40] In the transcripts, Nyamugari is also spelled Nyamugali.

[41] T., 25 August 2003, pp. 23 to 28.

[42] T., 25 August 2003, pp. 21 to 36; T., 26 August 2003, pp. 13 to 16 and 22."

"55. Prosecution Witness TAW testified that, on the morning of Saturday 9 April 1994, the Accused went to the Rusumo communal office in Nyakarambi, to take part in a meeting with the conseillers. The meeting ended late in the afternoon. Apart from the conseillers de secteur and the cellule officials, certain political party representatives had been invited. Subsequently, Witness TAW had a conversation with one of the participants in the meeting who told him that the general situation was serious, that the situation of the Tutsi was very delicate, as their hour was up, that "weapons were going to be distributed in the near future", with a view to massacring them and that the Hutu, MDR and CDR were in a coalition to fight against all the Tutsi.^[46]The witness testified that the purpose of the meeting was to inform the conseillers de secteurs of the message given during the meeting of 8 April at Kibungo.^[47]"

"[46] T., 20 August 2003, pp. 13 to 16 and 55 to 56.

[47] T., 20 August 2003, pp. 52 to 53."

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, para. 313:

"313. The Chamber recalls that Prosecution Witness GEK testified that her husband was a member of Kamuhandas family, and that she saw Kamuhanda about four times prior to the April 1994 events. On 10 April 1994, her husband asked her to hide inside a room when Kamuhanda came to their residence and stayed to talk to her husband. The Witness testified that she was not far away, and could hear what they were saying to each other. Kamuhanda told her husband that the killings had not yet started in the Gikomero commune and that those who were to assist them had married Tutsi women. She testified that Kamuhanda indicated that he would bring equipment for them to start and if their Tutsi women were obstacles "they should, first, eliminate them". She testified that the Accused said that he would return to see if they had started with the killings or that he would return so that the killings would start. She said that she saw what happened with the weapons when the Accused returned to arrange for the killing to start."

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, paras. 465, 611 612:

"465. Prosecution Witness GDD testified, "Kajelijeli first of all told [them] [...] you very well know that it was the Tutsis that killed--that brought down the Presidential plane. What are you waiting for to eliminate the enemy?"⁶³⁴ The Witness affirmed that the Accused, after being informed by Shadrack Sendugu that there were no weapons to attack the population, left the group at the canteen to go with Deputy Brigadier Boniface Ntabareshya to make a telephone call in the communal police station.⁶³⁵ When the Accused returned, he informed the group that Major Bizabarumana had agreed to provide them with "equipment" at the commune the following morning. The Accused also promised Interahamwe reinforcements from Mukingo for the attack on Kinyababa cellule.⁶³⁶ The Accused, accompanied by Senior Brigadier Sembandugu [Sebazungu], returned to his house, which was located sixty to seventy metres from the canteen. After the Accused left, Sendugu Shadrack and another participant in the meeting discussed how they were going to "find youths to assist us in killing the Tutsis".⁶³⁷"

"634. T. 3 October 2001, p. 25; T. 4 October 2001, pp. 105-111 (GDD).

635. T. 3 October 2001, pp. 25, 112 (GDD).

636. T. 3 October 2001, p. 26; T. 4 October 2001, p. 71 (GDD).

637. T. 3 October 2001, pp. 25-28 (GDD)."

"611. Prosecution Witness GAO testified that, sometime between 12 and 14 April 1994, Tutsis were taken to the Ruhengeri Court of Appeal. They were taken there from Ndusu commune, Busengo⁷⁸⁹ sub-préfecture in the préfecture of Ruhengeri. The Witness testified that the Interahamwe in Byangabo refused a request for assistance from the Interahamwe in the neighbourhood of the Ruhengeri Court of Appeal. The Witness testified that the Accused, together with Chief Warrant Officer Karorero, came to the PetroRwanda filling station that was owned by Esdras Baheza, near the Mukamira camp. The Witness indicated that the Accused personally told the Witness that the Tutsis at the Court of Appeal had repelled an attack and that the "others" needed help. The Witness responded to the Accused that he did not have the "tools" necessary to aid the attack. The Accused responded "Don't worry, come with me. Get on board the vehicle. The tools are available and you will be given them."⁷⁹⁰

612. Prosecution Witness GAO testified that he then got into the Accused's Toyota Hilux, which the Accused was driving, along with Karorero. The Witness testified that the Accused drove to Karorero's house in Nkuli commune, where Karorero gave the Witness four grenades of the M26 and Chinese-made type. They then drove to the house of Gervais, who was the chairman of the CDR and a businessman at Mukamira, in order to secure reinforcements from other members of the CDR. The Witness testified that Gervais provided the Accused with other members of the CDR to go with the Accused.⁷⁹¹"

"789. Also spelled Busenge.

790. T. 23 July 2001, pp. 39-40, 45; T. 24 July 2001, pp. 61-62 (GAO).

791. T. 23 July 2001, pp. 40-41 and 45; T. 24 July 2001, pp. 63-65 (GAO)."

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC) 16 May 2003, para. 209:

"209. After the attack, some left and others, transported in buses, went to the prefecture offices in Kibuye town. Some were in the Kibuye Prefectural Office, while others were in the canteen. The witness was outside in the open air close by the windows of the canteen with his Interahamwe friend. From his position he could hear what was going on in the canteen despite the fact that people were coming and going and there was quite a lot of noise. The meeting was held to provide refreshments to the attackers and to discuss the attack and its shortcomings, and to plan for the future. Many lamented the fact that they could not "finish off" the refugees in Bisesero and said the attacks should continue the next day. The witness said the Accused spoke as the governments representative and promised gendarmes for the next days attack. He also told the bourgmestres and others present to do everything they could to ensure they participated in the attacks in order to end the Tutsi problem in Bisesero. Others also spoke while refreshments were served. The meeting only lasted about one to two hours, as it was already dark. Everyone then returned home. The witness heard from one of his friends that an attack did take place the next day although he did not witness it.^[195]"

"[195] T. 27 Aug. 2002, pp. 39-44; T. 28 Aug. 2002, pp. 17-18."

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, paras. 166:

"166. []According to the witness, the Accused and those who came to the church with him held a meeting with the priest and some of the refugees.^[264] Witness VA testified that after the meeting, she heard the Accused tell Bisengimana that the church had to be burned down to kill the refugees inside.^[265]Witness VA testified that Bisengimana expressed his reluctance to burn down the church, and instead proposed starving the refugees to death.^[266]The witness noted that the Interahamwe then guarded the refugees on 11 and 12 April 1994 to prevent their escape.^[267]"

"[264] T. 7 March 2001 p. 60.

[265] T. 7 March 2001 pp. 60, 118-119.

[266] T. 7 March 2001 p. 61.

[267] T. 7 March 2001 pp. 69, 70."

Prosecutor v. Elizaphan And Gérard Ntakirutimana, Cases No. ICTR-96-10 and ICTR-96-17-T, Judgment (TC), 21 February 2003, paras. 711 713, 717 :

"711. Witness UU testified about having attended three meetings convened in Kibuye town in June 1994. The first took place around 10 June in the conference room of the prefectural office. He attended with Omar and another friend. To disguise himself, he wore a military cap, dark glasses, and an overcoat. The meeting started between 10.00 and 11.00 a.m. It was attended by Interahamwe and various officials, including Prefect Kayishema, Ruzindana (a trader), Musema (the manager of Gisovu tea factory), Eliézer Niyitegeka (a member of parliament and government minister), Gérard Ntakirutimana, and the bourgmestres of the communes surrounding Bisesero, seated in the front row. More than 50 other persons were present, and some gathered outside the conference room because there was not enough room for them inside. The witness was positioned towards the back of the room, about 25 to 40 metres from the front row. Ruzindana took the floor and explained to the participants that the meeting was aimed at evaluating their progress in killing Tutsi in the Bisesero area and to decide what still needed to be done to finish that task. Gérard Ntakirutimana also took the floor, saying that the problem they faced in completing the work was that they had insufficient guns and ammunition. Like other speakers at the meeting, Gérard Ntakirutimana spoke through a microphone connected to loudspeakers. Witness UU estimated that he observed Gérard Ntakirutimana from a distance of 20 to 30 metres. When the meeting ended, between 1.30 and 3.00 p.m., Gérard Ntakirutimana left in a white Toyota pickup belonging to the Mugonero Hospital.^[1044]

712. Witness UU testified about a second meeting that took place about a week later at the same venue. It also started between 10.00 and 11.00 a.m. and lasted about four hours. The same officials who attended the first meeting also attended the second. Many other persons, including Interahamwe, were present, inside and outside the room. Gérard Ntakirutimana was carrying a long gun. The objective of the second meeting was to distribute firearms, a task that was performed by Niyitegeka and Ruzindana. Gérard Ntakirutimana received weapons for the area of Murambi. Gérard Ntakirutimana was at the front of the room and the distance separating him from Witness UU was roughly the same as at the first meeting. Gérard Ntakirutimana was dressed in white shorts and a white shirt. Witness UU heard Gérard Ntakirutimana speak with Ruzindanas younger brother and say that the weapons that they had obtained were insufficient. Niyitegeka then announced a programme of attacks that were to be launched the following day. He drew a circle on the board and within that circle he wrote the word "Bisesero". Using this circle he indicated where the attacks by different groups of attackers should start, and the leaders of the various groups of attackers. Gérard Ntakirutimana was named as a member of the "Ngoma group", which included Enos Kagaba and Mathias Ngirinshuti and was to attack Murambi. On his way out of the room, the witness was able to study the blackboard closely, for five to ten minutes as there was a bottleneck around the exit and also because he did not want to move away from his friend Omar. Witness UU read on the board that Gérard Ntakirutimana was one of the leaders of the attackers, and saw that Gérard Ntakirutimana would take the floor whenever he wanted, leading the witness to conclude that Gérard Ntakirutimana held an influential leadership role.^[1045]

713. The third meeting at which Witness UU saw Gérard Ntakirutimana was held in the canteen of the prefectural office around 18 June 1994 at dusk. The objective of that meeting was to recapitulate the events. Gérard Ntakirutimana and all the leaders of the attacks were in the canteen. Witness UU was outside, about a metre away from the canteen windows, which were open and free of curtains. The distance between himself and Gérard Ntakirutimana was 3 to 5 metres. He heard Gérard Ntakirutimana make the following pronouncement in French, then repeat it in Kinyarwanda: "The thorns must be uprooted because, otherwise, they will grow again and can kill you or disable you. There should be no pity for Tutsi women and children because they are the ones who will reproduce in future, and we will be faced with the exact same problems that we are having now." Gérard Ntakirutimana said that the results of the Murambi attack were satisfactory. Towards the end of the meeting, Niyitegeka announced that it was necessary to go back to Bisesero to kill the survivors. Witness UU then saw Gérard Ntakirutimana go to a canteen window and announce to certain persons outside that the attacks would continue the next day at the same time.^[1046]"

[1044] T. 25 October 2001 pp. 115-129; T. 29 October 2001 pp. 84-95.

[1045] T. 29 October 2001 pp. 5-38; pp. 106-108; T. 30 October 2001 pp. 54-55.

[1046] T. 29 October 2001 pp. 30-51.

"717. [] Witness OO followed the crowd. He testified that at the prefectural office, Eliézer Niyitegeka, Minister of Information, took the floor and spoke through a loud-speaker. According to the witness, he said that they should continue to work together and that they had already done a good job. He thanked them, but said they should continue and double their efforts in order to continue the work. The meeting lasted from about 2.00 to 6.00 p.m.^[1047]"

"[1047] T. 1 November 2001 pp. 175-184; T. 2 November 2001 p. 95-97."

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, paras. 471, 488 489:

"471. The vehicles dropped off the attackers and then all, save Musema's, went to pick up other individuals in Gisovu, returning 45 minutes to an hour later. Other attackers led by Ruzindana and Sikubwabo were also seen by the witness coming from Gishyita with two vehicles, a lorry and a Toyota Stout. Witness S said the attackers first grouped and had a "meeting" before blowing their whistles and launching the attack against Sakufe's house on Mumataba hill. The attack was aimed at between 2000 and 3000 Tutsis who had sought refuge in and around the house. The majority of the refugees, including relatives of the witness, were killed during the attack. The witness stated that Musema stayed by his car during the attack in the company of persons dressed in white."

"488. Witness AB testified that he saw Musema sometime in the month of June at the military camp in Kibuye in the company of Second Lieutenant 'Buffalo' Ndagijimana, Ndimbati and Doctor Gérard Ntakirutimana. Ndimbati was carrying a pistol and wearing military trousers and a black jacket. He said that Musema was armed with a pistol and was wearing a military jacket. The witness said that he overheard them discussing one last operation that had to be carried out in Bisesero. Witness AB added that he was able to hear them as they were speaking with raised voices, and as he was responsible for the camp security he had the right to know who was there and why they were there.

489. According to the witness, Musema said that information that he had received indicated that Tutsi were hiding in the tin mines. Musema explained that he therefore needed a lorry load of firewood to start a fire at the entrance of the hole where they were hiding, and consequently to block the hole to prevent anyone getting out. The witness said that Musema asked the second Lieutenant for the firewood. The witness explained that although it was with 'Buffalo' that they carried out the operations, permission for the wood could only be given from Masengesho, the camp commander. Witness AB testified that he was unable to say whether they succeeded in getting the wood as he did not spend all day at the camp."

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4, Judgment (TC), 2 September 1998, paras. 225, 235, 311 312, 361, 384:

"225. [] At approximately 1 am on 19 April 1994, a person came to the witness's house and informed him that he had just attended a meeting led by the Accused where plans were being made to kill the witness and to commence killings in Taba in a similar manner to killings that were happening in Runda. []"

"235. In clarification of an averment in his written statement made to the Office of the Prosecutor (exhibit 105), the witness testified that the Accused held meetings on 18 and 19 April 1994 with a view to planning the genocide. The witness stated that he had not attended any of these meetings but he heard of them. The witness stated that at these meetings a decision was taken that the MDR and the MRND should not fight the Interahamwe and the CDR but they should fight the tutsi. This decision according to the witness, was taken at communal level by the bourgmestre. Although the bourgmestre belonged to the MDR all the political parties at communal level were under his authority. The witness did not go to work from 7 April 1994. The witness stated that he knew that there were major security problems in the commune and expressed the view that if the bourgmestre believed that the witness was competent to resolve these problems, the bourgmestre would have provided the witness with transport to go to work."

"311. Evidence has demonstrated that on or about 19 April 1994, Akayesu addressed refugees and Interahamwe in front of the bureau communal, calling for all Tutsi within the commune to be hunted and found. It has been established that Akayesu stated that there were accomplices in the commune, one of whom lived behind the bureau communal. It has been established that Akayesu cited a professor by the name of Tharcisse as the accomplice and ordered the Interahamwe and communal policemen to fetch him. Evidence has established that persons using whistles fetched Tharcisse and his wife from behind the bureau communal. Tharcisse and his wife were made to sit in the mud on the road outside the bureau communal, whereupon his wife was undressed and told to leave. It has been established that Akayesu asked Tharcisse for information on the Inkotanyi, after which the Interahamwe killed Tharcisse in the presence of Akayesu.

312. Evidence has shown that Akayesu said to the Interahamwe that the intellectuals were the source of all the misery, and that he ordered the Interahamwe to bring the teachers from Remera. It has been demonstrated that a number of teachers from Remera school were brought to the road outside the bureau communal and killed with traditional weapons, including hoes and clubs. Evidence identified the victims to be Theogene and Phoebe Uwineze and her fiancé."

"361. With regard to the allegation that the Accused urged the population, during the said gathering, to eliminate the accomplices of the RPF, after considering the weight of all supporting and corroborative evidence, the Chamber is satisfied beyond a reasonable doubt that the Accused clearly called on the population to unite and eliminate the sole enemy: accomplices of the Inkotanyi. On the basis of consistent evidence heard throughout the trial and the information provided by Dr. Ruzindana, appearing as an expert witness on linguistic issues, the Chamber is satisfied beyond a reasonable doubt that the population construed the Accused's call as a call to kill the Tutsi. The Chamber is satisfied beyond a reasonable doubt that the Accused was himself fully aware of the impact of his statement on the crowd and of the fact that his call to wage war against Inkotanyi accomplices could be construed as one to kill the Tutsi in general."

"384. The Chamber finds that it has been proved beyond reasonable doubt that Akayesu did cite Ephrem Karangwa during the Gishyeshye meeting. It has also been established beyond a reasonable doubt he did so knowing of the consequences of naming someone as an RPF accomplice in the temporal context of the events alleged in the Indictment."

B. Evidentiary comment:

Althought most of the evidence above was discussed in the context of the accuseds mode of liability, it may be equally applicable to establishing that the direct perpetrators meant to bring about the consequence of the victims deaths.

P.12.2. Evidence that the killers were acting on instructions.

A. Legal source/authority and evidence:

Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004, paras. 67, 73 74, 77, 79, 113, 140:

"67. Prosecution Witness TAS, a Hutu woman married to a Tutsi, who knows the Accused very well and identified him in court, testified to having seen him near Nyakarambi market around 10 or 11 a.m. on Wednesday, 13 April 1994, accompanied by Rusumo communal policemen. Through a megaphone, the Accused invited the population to assemble behind the stores, beside the market. The policemen, who were armed, were in the vehicles, while one of them, Kazoba, also armed, had come down and was beside the Accused. Eighty to one hundred people, almost all of whom were Hutu, and some Interahamwe, were assembled there. Addressing the crowd, the Accused asked them to be vigilant and make sure no one escaped, adding that they should follow the example of Rukira commune, pointing to burning houses there, which were visible from Nyakarambi market. The witness and a Tutsi friend, who was beside her, felt targeted by those statements and decided to leave the place. Witness TAS pointed out that she had interpreted the bourgmestres statements to mean that killings should begin, as was the case in the other communes. Later, in the evening, while she was hiding in a bush, below a road where Kazoba was passing, though she could not see him, she heard him, as she recognized his voice, telling someone that as from 12 noon the following day, Thursday 14 April, there would not be a single Tutsi alive, for the Accused had asked that they should all be killed, starting with the women called Marie and Béatrice, his tenants. Witness TAS added that earlier in the day, the Accused had driven away people who had wanted to take refuge in the Rusumo commune office.^[59]"

" [59] T., 5 August 2003, pp. 10 to 12, 13 to 17, 28 to 37 and 53 to 55."

"73. Prosecution Witness TBJ, a Hutu,^[66] who was arrested in 1997 on charges of genocide committed in 1994 and provisionally released in 2003 pending his appearance before the gacaca Court, testified that between 10 a.m. and 12 noon on Thursday, 14 April 1994, he saw the Accused arrive at the Rwanteru commercial centre. The Accused was accompanied by policemen, including Sergeant Rukara, Assistant Sergeant Kazoba and Berakumenyo. Speaking to the witness and friends with whom he was having a drink, the Accused was surprised that they were drinking beer, whereas they should be participating in "the struggle against the enemy",^[67] that is, hunting down the Tutsi and looting their belongings. At the commercial centre where the Accused made that statement, there were at least one hundred people. Juvénal Ntamwemizi, nicknamed "Sergeant" who presented himself as the Accuseds envoy or [proxy],^[68] formed two groups of assailants. One of them stayed in the village and attacked Ludovico Buhandas house and property.^[69]The other group, composed of about 50 to 60 people, including the witness, armed with clubs and machetes, followed the bourgmestre to Kigarama, 10 kilometres and one-hours walk from the commercial centre. In the group were two soldiers with guns and a few assailants armed with grenades. In Kigarama, the assailants, whom some other people had joined on the way and who now numbered between 150 and 200, were led by a young man called Bamenya to the house of Callixte, rumoured to be Tutsi. They looted his house and captured his cows. The witness testified that the purpose of the attack was clearly to "carry out the instructions" given by the Accused.^[70]

74. Prosecution Witness TBH testified that between 12 noon and 1 p.m. on 14 April 1994, he saw the Accused arrive at the Rwanteru bus stop in a commune vehicle accompagnied by the police. The witness testified that from his vehicle, the Accused shouted at the many people who were gathered there in these terms: "You are there doing nothing while the others have finished. Go, take your machetes let no Tutsi live tomorrow morning". The witness explained that "at those words, the population took machetes".^[71] Shortly after the speech, Witness TBH saw traders closing their stores, the population, armed with machetes, set out with the Accused for Kigarama. Witness TBH also heard that the Accused had given instructions to Juvénal Ntamwemezi, a retired army sergeant.^[72]"

"[66] T., 18 August 2003, pp. 68 to 69.

[67] T., 18 August 2003, pp. 68 to 69.

[68] T., 19 August 2003, pp. 3 to 4.

[69] At the hearing, Buhanda was sometimes referred to in the French transcript as Ludovico or Ludoviko and sometimes Louis.

[70] T., 18 August 2003, pp. 71 to 72; T., 19 August 2003, pp. 1 to 5 and 27 to 28.

[71] T., 25 August 2003, pp. 27 to 28.

[72] T., 25 August 2003, pp. 28 to 30."

"77. Prosecution Witness TBK is a Hutu^[75]who was arrested in 1997 but provisionally released in 2003 for pleading guilty to the murder of one person, and who is awaiting trial by the gacaca Court. He testified that around 3 p.m. on Thursday, 14 April 1994, he saw the Accused in Musaza, at the Kanyinya commercial centre, Rusumo. The Accused arrived in a white double-cabin vehicle accompanied by four persons, including two uniformed policemen, Berakumenyo who was carrying a gun, a soldier and a driver. The Accused told a group of about ten people, including the witness: "Others have already completed their work. Where do you stand?".^[76]When some people asked what he meant by work, Berakumenyo pointed to a woman selling sorghum beer, promising to demonstrate to them that the woman was Tutsi. When he was told that she was not Tutsi, she was spared. The Accused then said that anyone who looked like a Tutsi should be killed immediately, and he left aboard his vehicle for Nganda market. Once the Accused left, two young demobilized soldiers from the region, Nkaka and Sendama, present at the commercial centre, carried out his instructions. As early as 15 April, these two young people, who had weapons, mobilized the local population to kill, loot and destroy. The witness stated that the targets of the assailants attacks were the Tutsi, in line with the instructions given by the Accused. The witness himself took part in the Muyoka attacks, where about 100 persons allegedly died. Witness TBK added that on 15 April he went out, armed with a bow which he used for hunting, but that it was only on 16 April that he killed a Tutsi whom he knew.^[77]"

"[75] T., 19 August 2003, pp. 34 to 36.

[76] T., 19 August 2003, pp. 40 to 41.

[77] T., 19 August 2003, pp. 38 to 42, 44 to 46, 48 to 51 and 59 to 60."

"79.Witness TBI testified that he saw the Accused around 4 p.m. on 14 April 1994 at the Gasenyi commercial centre. The Accused, who was travelling in a white double-cabin "Hilux" belonging to Rusomo commune, was accompanied by communal policemen, armed with guns, and by a criminal investigations Officer (IPJ) from Rusomo. The Accused addressed a crowd of about forty people at the centre, urging them to kill the Tutsi and throw their bodies into the river. He also ordered the boatmen to remove their boats from the River Akagera, so as to prevent the Tutsi from using them to run away. After the speech, Witness TBI heard the Accused instructing André Nyandwi to make sure that the local population carried out the orders he had just given. Witness TBI stated that he, and Rwandans as a general rule, have a high respect for authority, and also that he obeyed the bourgmestres instructions. A small number of Tutsi who were at the Gasenyi centre during the speech immediately understood that they were threatened and tried to run away. Certain Hutu hid some Tutsi, while the local population went after them in order to kill them, attacked and destroyed their houses and looted their belongings. According to Witness TBI, the Hutu had no choice but to start looting, setting houses ablaze and killing cattle belonging to the Tutsi, as soon as the bourgmestres speech ended. Witness TBI was also one of the looters. He, however, helped two Tutsi friends to escape before killing others. After the Accuseds speech, the policemen and the criminal investigations Officer (IPJ) asked the people to carry out the instructions.^[80]"

"[80] T., 18 August 2003, pp. 15, 17 to 22, 32 to 34 and 37 to 38; see also Exhibit P12."

"113. Witness TAQ testified that she heard the Accused tell the Interahamwe surrounding him to act quickly so that the refugees should not flee. While the refugees were being massacred with machetes, guns and grenades, she and some others fled towards the presbytery. Some people fell and "others ran over them".^[93]Once she was in the presbytery, near a doghouse in which she hid later, she heard the Accused asking "the Hutu who were within the area to come out".^[94] She explained that she could not see the Accused at that particular moment, but could hear him speaking on the megaphone. A young woman allegedly came out, followed by a child who had to go back after being told that he was not Hutu. Immediately after the young girl came out, grenades were thrown into the crowd.^[95]"

"[93] T., 29 July 2003, pp. 53 to 54.

[94] T., 29 July 2003, pp. 52 to 55; T., 30 July 2003, pp. 25 to 26.

[95] T., 29 July 2003, pp. 54 to 55."

"140. Prosecution Witness TAX testified that she saw the Accused around 9 a.m. on the Sunday following 15 April 1994 (17 April, by inference), when Nyarubuye Parish was attacked. Witness TAX testified that at around 7 a.m., Interahamwe, led by one Antoine and armed with bows, machetes, clubs and knives, had found a group of 15 Tutsi refugees in a classroom. The group comprised two adult men, children, women and young girls, including the witness. The attackers threw stones and small children at the bodies to discover survivors.^[145] Then they gathered the 15 survivors, including the witness, on the lawn in front of the church. Two vehicles arrived. One of them was carrying Interahamwe, who alighted with their weapons. The other was carrying the Accused. The witness testified that the Interahamwe displayed their weapons when the Accused arrived. The Accused came out of the car and asked them to turn around. The Accused then told them: "I do not want to repeat what I said before. Everybody should take up their weapons, and to kill a snake you have to aim at the head and spare no one."^[146] The witness and other survivors begged in vain for mercy. Witness TAX testified that Ferdinand and Pascal, two attackers whom she knew well, handed her over, despite her pleas, to Antoine, who hit her with a club on the right hand until her bone became visible, and on her shoulder. He then hit her again twice on the head with a machete. Witness TAX further testified that she lost consciousness again. While this was happening, the Accused stood two metres away.^[147]"

[145] T., 31 July 2003, pp. 37 to 38.

[146] T., 31 July 2003, pp. 37 to 38.

[147] T., 31 July 2003, pp. 38 to 39 and 58 to 61.

Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54A-T, Judgement (TC), 22 January 2004, paras. 322, 334, 349, 375, 383:

"322. Prosecution Witness GAF testified that Kamuhanda stepped down from the vehicle, raised his hands and spoke to those who came with him, particularly the Interahamwe. Kamuhanda was accompanied by Interahamwe, a word used to designate members of the MRND. However, even the inhabitants of the region that killed were called Interahamwe, and the word Interahamwe came to mean anybody who participated in the killings. Kamuhanda spoke in Kinyarwanda to those who were with him, particularly the Interahamwe, and said "Mukore", which means, "work". Kamuhanda, as he came with killers and was their leader, used this word to tell them that they should begin the killings. The killings started after he pronounced that word and all but one of the vehicles left. Kamuhanda was not armed when he got out of the car. Kamuhanda incited the people to start the killing and the young people who he had brought with him started killing on his order. Kamuhanda was only there briefly; approximately one or two minutes before leaving. Kamuhanda was not present when the killings started. When Kamuhanda spoke, there were a lot of gunshots following which most the cattle dispersed. Other cattle were shot in the courtyard and one of the vehicles carried away the beef."

"334. Prosecution Witness GAA testified that in Kamuhandas presence, Hutus shouted, "Get to work Kamuhanda is here now." The Witness testified that Kamuhanda went back into his vehicle and left while Hutus continued to shoot Tutsis. The Witness further testified that Kamuhanda was present during these killings but he did not stop the soldiers from shooting. The Witnesss family members told him that the shooting continued for four to five hours, and after he returned from exile he estimated the number of people killed at approximately three thousand."

"349. Prosecution Witness GEC testified that Kamuhanda raised his hands and said "start working" to those who were with him. She explained that the attackers had guns, grenades, machetes, clubs, and cudgels and those with guns wore military uniforms. She heard the words "start working" when she was at the door of the classroom. The distance between Kamuhanda and herself was approximately five metres. The local Hutus joined those who had arrived in the vehicles. After Kamuhanda said these words, the attackers started shooting and cutting up people who were in the classrooms. The Interahamwe ordered the Witness and other refugees to leave the classroom and lie on the ground. The attackers undressed her and the other refugees and started cutting them up when they came out of the classroom and lay on the ground. The Witness did not know if Kamuhanda was still present. The Witness was injured on her leg, chest, and back with a spear and a club, received a cut on her head with a machete, and her ear lobe was split in two. The people lying beside her were cut up, and those trying to run away were shot. According to the Witness, the massacre started about 1:00pm or 2:00pm and continued until 5:00pm when the attackers withdrew, but the local people continued to loot. The Witness estimated that there were about three thousand refugees there, of which approximately 2,500 died. She testified that at about 5:00pm she left the place, went to Pastor Nkuranga's house and then went to hide in a sorghum field. When she left the massacre site, she was injured and was only wearing a skirt which was torn by the attackers as the attackers took away the refugees clothes."

"375. Prosecution Witness GEP testified that after Kamuhanda had finished speaking to a man, one of the passengers in the vehicle he had come in shot the man dead. On cross-examination, the Witness stated that people there said that the person shot was a Protestant Priest called "Bucundura", whom she did not know. On cross-examination, she also stated that Kamuhanda had a discussion with the pastor before they killed Bucundura. The Witness stated Kamuhanda said nothing after the man was killed, but turned around and, as their leader, told the others, "Start working", so as to incite them to kill."

"383. Prosecution Witness GEH testified on cross-examination that he did not hear the Accused give the order that the killings should start because it was impossible to hear the conversation between the Accused and the pastor. The Witness testified that Kamuhanda went back to his vehicle and that when he returned, he was with the killer. The Witness believed that "he was the one that gave the order for the killing." In cross-examination, the Witness testified that he did not personally hear Kamuhanda give the order to start killing. Interahamwe shot at them, and they were with the person [Kamuhanda] who ordered them from the vehicle. They all panicked and fled because the Interahamwe had started shooting at them. They ran towards Kibara, where there were no more than 300 refugees. They spent two days there. . He testified that they had to move on and cross Lake Muhazi. They went to Rutare commune, in Byumba préfecture because the people in Kibara "ran after them.""

Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement (TC), 1 December 2003, paras. 492, 570 571, 606 607, 632, 637:

"492. Prosecution Witness GAO further testified that Bambonye directed the gathering mob: "Kill all of them, including those in the mothers' wombs."⁶⁷² The Witness stated that the Accused gave further instructions to "exterminate the Tutsis."⁶⁷³ []"

"672. T. 23 July 2001, p. 17 (GAO).

673. T. 23 July 2001, p. 17 (GAO)."

"570. Prosecution Witness ACM testified that, at around 9am on 7 April 1994, she saw the Accused bring about thirty Interahamwe aboard his vehicle, a red pick-up that belonged to Mukingo commune, and leave them at Munyemvano's compound. The Interahamwe went around the compound exclaiming that the hour of the Tutsi had arrived. The Accused was wearing the same uniform as the Interahamwe and was carrying a gun. The Witness testified that the Accused instructed the Interahamwe "...not to kill anyone yet, but to wait for the order to start." The Accused later departed, leaving behind the Interahamwe. The Accused was followed by a white pick-up that belonged to Baheza and also carried the Interahamwe. The Witness recognized some of the Interahamwe, all of whom were Hutu, and identified Nkundile, Mbarushemana, Tuyeringire and Kazungu.⁷⁴⁹

571. Prosecution Witness ACM testified that the Accused returned to Munyemvano's compound between 9:00am and 10:00am. The Accused ordered the Interahamwe to "go out and kill the Tutsi because the others have already started killing them." In response to the Accused's order, the Interahamwe started throwing grenades into the houses and burning them down. Four of the Witness's relatives were shot, including three old females, and one handicapped male.⁷⁵⁰"

"749. T. 11 December 2001, pp. 29, 32-36 and 39 (ACM).

750. T. 11 December 2001, pp. 40, 42-43 and 74 (ACM)."

"606. Prosecution Witness GDD testified that on the morning of 8 April 1994 he and other assailants killed a woman named Nyirabusoro and her five children. Nyirabusoro was the wife of a Hutu named Muvuka. The Witness affirmed that the killings were in response to the Accused's order to "fine-comb" the Gitwa secteur.⁷⁸⁶The Witness further testified that he killed the five children of mixed Hutu and Tutsi origin "upon the order of the authorities ... among others, Nzirorera and Kajelijeli."⁷⁸⁷

607. Prosecution Witness GDD testified that on the afternoon of 8 April 1994 he and a veteran named Barabara continued to search for Tutsis in furtherance of the Accused's instruction to "fine comb" the commune for Tutsis. The Witness and Barabara "went up towards Ruhafi where the two children of Seruyombo were hiding [...]. Ndagijimana ... was killed with a bullet from my Kalashnikov [...] and his sister Nyirabukobwa was killed with the traditional club."⁷⁸⁸"

"786. T. 3 October 2001, pp. 52,and56-59 (GDD).

787. T. 3 October 2001, pp. 56-57 (GDD).

788. T. 3 October 2001, pp. 53, 57 and 113-114 (GDD)."

"632. Prosecution Witness GAO testified that, on the morning of 7 April 1994, he and the Interahamwe went to Rwankeri cellule after the Accused instructed the individuals gathered at Byangabo Market "to kill and exterminate". At Rwankeri, the Witness saw two Interahamwe, Gapfobo Mbonankira and Rugumire Ntuziyiremye, rape a Tutsi girl named Joyce at the home of Rudatinya.⁸⁰⁵ After they raped her, they pierced her side and her sexual organs with a spear,⁸⁰⁶ and covered her with her skirt after she died.⁸⁰⁷"

"805. T. 26 November 2001, p. 112 (GAO).

806. T. 23 July 2001, p. 30 (GAO).

807. T. 23 July 2001, p. 28 (GAO)."

"637. [.] The Witness testified that the Accused told the Interahamwe: "it was necessary to look for the Tutsi women, rape them and kill them." The Witness testified that the Accused ordered the Interahamwe to rape Tutsi women, "that [the Accused] had to separate the good grain from the bad one".⁸¹⁴"

"814. T. 18 July 2001, pp. 38, 47 and 51-52 (GDO)."

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC) 16 May 2003, para. 85:

"85. [] Furthermore, everywhere the Accused went, he used a megaphone to tell Hutu to kill the enemy, the Tutsi, and to spare no one. []"

Prosecutor v. Laurent Semanza, Case No, ICTR-97-20-T, Judgement (TC), 15 May 2003, para. 175, 178:

"175.[...]Witness VM testified that the Accused led the attack.^[306] He explained that he knew the Accused as a bourgmestre and that he witnessed the Accused giving instructions, including to shoot people.^[307]"

"[306] T. 6 March 2001 p. 92.

[307] T. 6 March 2001 pp. 99, 144."

"178. Witness VM testified that outside the Accused ordered the Hutus to identify themselves from amongst the refugees and stated that nothing would happen to them.^[315]Witness VM stated that he identified himself as a Hutu and that a soldier then questioned him.^[316]Witness VM stated that the refugees claiming to be Hutu were lined up, and that the Accused directed the attackers to kill the Tutsi refugees.^[317]Witness VM stated that the Accused then also directed the killing of those refugees whom he recognised as Tutsis in the group of the Hutus.^[318]On the Accuseds directions, the soldiers and Interahamwe killed the Tutsi refugees with machetes and guns.^[319]The witness stated that many people were killed during the attack.^[320]The witness testified that he did not witness the Accused shoot or cut anyone.^[321]"

"[315] T. 6 March 2001 p. 93.

[316] T. 6 March 2001 p. 93.

[317] T. 6 March 2001 pp. 94-95.

[318] T. 6 March 2001 p. 95.

[319] T. 6 March 2001 pp. 95-96; T. 7 March 2001 pp. 15, 46.

[320] T. 7 March 2001 p. 18.

[321] T. 6 March 2001 pp. 144-145."

Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10 and ICTR-96-17-T, Judgment (TC), 21 February 2003, para. 589:

Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement (TC), 27 January 2000, para. 474 475:

"474. Witness AC recalled an incident which took place at a cave in Kigarama Commune, Nyakavumu cellule. He testified that he was 40-50 metres away from the cave and saw Kayishema, Musema, Ruzindana and the bourgmestres of Gishyita and Gisovu come to the cave and order it to be sealed by having it covered in firewood. The witness told the Chamber that a man from Gisovu was ordered by Ndimbati, Ruzindana, Musema, Niyitegeka and Kayishema to light the wood. The man then set the wood on fire using grass and kerosene.

475. Witness AC recalled that of the 300 people inside the cave, only one survived, all others being suffocated to death by the smoke. Following questions from the bench, the witness affirmed that he had heard Musema give orders at the cave, however, he gave two answers, namely that he had heard Musema say on the one hand, "Bring some wood, make some fire", and, on the other hand, "Bring some wood, bring some sods of earth". The witness also reaffirmed that Musema ordered that a fire be lit."

Prosecutor v. Georges Rutaganda, Case No. ICTR-96-3, Judgement (TC), 6 December 1999, para. 183:

"183. Witness M said that the killing began that afternoon. After hearing the Accused say that the Tutsi should be killed, Witness M went back to where he was staying. In the afternoon, Muzehe shot Nyamugambo, the person who had provided refuge to Witness M, with the gun he had received from the Accused and then he came to loot the house. []"

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 330, 435, 445:

"330. They were all positioned so that they could hear Kayishema utter these words. According to witnesses E and F, the phrase "go to work" in the Rwandan context means "to kill Tutsis." At that point, Witnesses E and F testified that after ordering attackers "to go to work," Kayishema climbed up the hill along the path near the Church, addressed the assembled attackers through a megaphone, informed them that he had received orders from Kigali to kill the Tutsis and commanded the gendarmes to shoot. Witness E said that Kayishema then fired three shots."

"435. [] Witness HH confirmed Ws account that Kayishema and Ruzindana were leading the groups of assailants and he saw the two men giving them instructions, "just like an overseer who is demonstrating to workers how the work should be done." []"

"445. []According to this witness Ruzindana told the attackers to "hurry up, Im going to bring other people to help you. But each time bring me an identity card or a head and I will pay you." []"

"[99] Trans., 20 Nov. 97, p. 86. [3]"

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4, Judgment (TC), 2 September 1998, paras. 257, 265:

"257. Karangwa hid on a hill approximately 80 metres from the house of witness S in Musambira, to await his brothers. [] Karangwa heard shouts and whistles, and thereafter saw his brothers in the courtyard with these people. He heard the Accused say that his brothers must be shot and he heard gun-shots. His three brothers whom he names in his written statement to the prosecutor as; Simon Mutijima, Thadée Uwanyiligira, and Jean Chrysostome were shot dead."

"265. [] The bourgmestre of Musambira asked the Accused if he knew the men and what should be done with them. The Accused said they came from his commune and said we need to finish these people off-they need to be shot. All three brothers were then shot dead at close range in the back of their heads by two policemen from Musambira, in the Accused's presence."

P.12.3. Intent inferred from evidence of large and organised nature of killings.

A. Legal source/authority and evidence:

Prosecutor v. Mile Mrkić et al., Case No. IT-95-13/1-T, Judgement (TC), 27 September 2007, para.510:

"510. The evidence further demonstrates, in the finding of the Chamber, that at the time of these 194 killings, the perpetrators acted with the requisite intent for murder. The circumstances demonstrate this. The Chamber refers in particular to the very large number of victims and to the fact that almost all victims died from multiple gunshot wounds.[]"

Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Judgement (TC), 17 January 2005, para. 577:

"577. The Trial Chamber finds that the killings established above were part of one murder operation, which led to the death of more than 7,000 thousands Bosnian Muslim men and boys. The crime of extermination in the present case is clearly indicated by the massive scale of the number of victims and by the intent of the perpetrators to kill on massive scale. The Trial Chamber inferred this intent from the nature of the murder operation, which, as it has been described above, was carried out in a short time period, with similar pattern of killings, in locations near to each other and by perpetrators who in some cases were active in more than one of these locations.¹⁹²⁰"

"1920. See supra paras 568 -569."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, para. 374:

"374. Paragraph 34 of the Indictment alleges that people under Kayishemas control, surrounded the Stadium and prevented people from leaving at a time when Kayishema knew the attack was going to occur. The evidence of Prosecution witnesses I, K, L and M, discussed above, is sufficient to show that after those seeking refuge had gathered in the Stadium, it was surrounded by people under Kayishemas control, including gendarmes. Witnesses I, K, L, M and O, testified that gendarmes prevented persons from leaving the Stadium from about 16 April 1994. Kayishema himself accepted that gendarmes were controlling the movement of people in and out of the Stadium. Furthermore, the Stadium massacre followed the massacres at Mubuga Church and Catholic Church, Home St. John. Indeed, a systematic pattern of extermination existed which is a clear demonstration of the specific intent to destroy Tutsis within Kibuye Prefecture in whole or in part. The evidence shows that Kayishema played a major role within this system. For these reasons, the Trial Chamber finds that at the time when the Tutsi were prevented from leaving, Kayishema knew or had reason to know that an attack on the Stadium was going to occur."

P.13. Evidence of the violence or acts committed indicating that it was intended to cause death.

ICTY, The Prosecutor v. Jovica Staniić and Franko Simatović, IT-03-69-T, Judgement (TC), 30 May 2013, para. 977-978:

"977. When assessing the mental element of murder, the Trial Chamber considered the forensic evidence about the cause of death and other injuries to the victims. The Trial Chamber further considered evidence concerning the circumstances of the incidents, including the treatment of the victim by the perpetrator (for example, beating).

978. With regard to one incident (Murder of approximately 27 non-Serb civilians by using them as human shields on or about 12 July 1992 (Indictment, para. 54)), the Trial Chamber considered the manner in which the victims were forced by perpetrators to take off their shirts, line up in rows as human shields, and walk towards the frontline."

P.13.1. Inference drawn from the brutality of the accuseds actions that death was intended to result.

A. Legal source/authority and evidence:

The Prosecutor v. Ljube Boskoski and Johan Tarculovski, CaseNo. IT-04-82, Judgement (TC), 10 July 2008, para. 331:

331. The evidence satisfies the Chamber, and it finds, from the extent and variety of the injuries to his body, that Atulla Qaili was repeatedly, extensively and most brutally beaten. Very considerable physical force was inflicted. Its effect was to cause death by the means set out in the report of the autopsy conducted on 14 August. The Chamber accepts from the evidence that Atulla Qaili had been mistreated before he reached Mirkovci police station. At the police station, however, he was further and severely beaten. The Chamber cannot exclude that some of the injuries noted in the autopsy report were inflicted before he reached the Mirkovci police station. It does not understand Dr Jacovski to exclude the injuries being inflicted over some hours by his statement from his findings in 2002 that the injuries were inflicted "at the same time". The word "time" has a relative temporal context in the Chambers understanding. The Chamber finds that by the last stages of the beatings of Atulla Qaili, which occurred at Mirkovci police station, the seriousness of the nature and effects of earlier mistreatment would necessarily have been obvious to the person or persons who continued it. The Chamber therefore concludes that this person or persons continued to beat Atulla Qaili in the knowledge that by doing so his death was a probable consequence of his or their actions.

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 823, 833, 877, 890, 894:

"823. On the basis of these facts and the previous discussion of the offences of wilful killing and murder under the Statute, the Trial Chamber finds that the killing of Scepo Gotovac was a clear case of such wilful killing and murder. As stated above, a person commits wilful killing under Article 2 and murder under Article 3, when he has the intention to kill his victim or when he inflicts serious injuries upon him in reckless disregard of human life. In this case, Hazim Delic and Esad Landzo twice beat up a man of about 70 years, within a space of four to five hours, so mercilessly that on the first occasion he was left moaning in the Hangar, and on the second occasion he could not make his way back inside by himself. He died a few hours later on account of the injuries that he had thus received."

"833. The Trial Chamber finds that in July 1992, after inflicting numerous beatings, Hazim Delic deliberately and severely beat Zeljko Milosevic for a period of at least an hour. The beatings leading up to and including the last prolonged and serious beating, and Mr. Delics threats to the victim prior to the last beating, demonstrate an intent to kill on the part of Mr. Delic. The Trial Chamber is further convinced that the beating inflicted on this occasion caused the death of the victim."

"877. In relation to the present charge and on the basis of the foregoing facts, the Trial Chamber finds that the act of severely beating Zeljko Cecez over a prolonged period of time evidences an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, and as we have been left in no doubt that the injuries inflicted upon Zeljko Cecez in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Zeljko Cecez, as described above, constitutes the offence of wilful killing under Article 2 and murder under Article 3 of the Statute."

"890. Considering the severity of the beatings to which Petko Gligorevic was subjected and the fact that the perpetrators used metal and wooden objects to inflict the blows, the Trial Chamber finds that the beatings were administered with an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, as we have been left in no doubt that the injuries inflicted upon Petko Gligorevic in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Petko Gligorevic, as described above, constitutes wilful killing under Article 2 and murder under Article 3 of the Statute."

"894. Considering the severity of the beatings to which Gojko Miljanic was subjected and the fact that the perpetrators used rifle butts and other metal and wooden objects to inflict the blows, the Trial Chamber finds that the beatings were administered with an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, as we are convinced that the injuries inflicted upon Gojko Miljanic in the course of the beatings led directly to his death, the Trial Chamber finds that the killing of Gojko Miljanic, as described above, constitutes wilful killing under Article 2 and murder under Article 3 of the Statute."

P.13.2. Inference drawn from use of firearm against unarmed person.

A. Legal source/authority and evidence:

The Prosecutor v. Ljube Boskoski and Johan Tarculovski, CaseNo. IT-04-82, Judgement (TC), 10 July 2008, para. 312:

312. It has been established elsewhere in this Judgement that a number of persons who entered the yard and shot at the house in which Rami Jusufi lived on the morning of 12 August at the time he was shot were members of the police. Taking into consideration, in particular, the fact that evidence discloses there was no resistance, the fact that Rami Jusufi was shot at close range from outside the house as he was at the open door, that he was unarmed at the time, in civilian clothes, and the number of bullets fired from the front yard and patio area at the house in the vicinity of the doorway in which Rami Jusufi was standing, the Chamber finds that those who fired at the house, i.e., members of the police who were the actual perpetrators, did so with the intention to kill Rami Jusufi, or alternatively, with the knowledge that his death would be a probable consequence of their actions. The identity of these police members has not been established, nor does the evidence identify any one of them as the firer of the shot which caused the death of Rami Jusufi.

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 903:

"903. In the instant case it is established that Miroslav Vujicic was shot and killed by one of the individuals participating in the collective beating, as described above, in the Celebici prison-camp. The Trial Chamber finds that, under these circumstances, the use of a firearm against an unarmed individual demonstrates an intent to kill or to inflict serious injury in reckless disregard of human life. Accordingly, the Trial Chamber finds that the killing of Miroslav Vujicic constitutes the offences of wilful killing under Article 2 and murder under Article 3 of the Statute."

P.13.3. Evidence of violence against a particularly vulnerable person.

A. Legal source/authority and evidence:

Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 907 908:

"907. Based upon this evidence, the Trial Chamber finds that Pero Mrkajic was already seriously injured when he arrived at the Celebici prison-camp. Despite the serious nature of his medical condition, Mr. Mrkajic was subjected to further beatings during his period of detention within the prison-camp. He was subsequently transferred to the so-called infirmary, where he remained until his death a few days later.

908. In relation to the present charge and based upon the foregoing facts, the Trial Chamber finds that the act of beating Pero Mrkajic, given the serious nature of his medical condition, demonstrates an intent on the part of the perpetrators to kill or to inflict serious injury in reckless disregard of human life."

P.13.4. Evidence that the accused participated in actions knowing that people were to be killed.

A. Legal source/authority and evidence:

Prosecutor v. Zoran Kuprekić et al., Case No. IT- 95-16-T, Judgement (TC), 14 January 2000, para. 820:

"820. Drago Josipovic, as may be safely inferred from his actions, had the requisite intent both for murder and inhumane acts. He knew that the inhabitants of that house were going to be killed, and if not killed then at least expelled and their house burned down. That witnessing the death of a loved one and the loss of the family home would cause serious mental suffering was equally obvious to the accused when he embarked upon his crimes. He also acted in pursuance of a common design together with the accused Vladimir Santic. This is borne out by his actions described under count 1. The accused also had the requisite mens rea."

P.14. Evidence of conduct after the crime suggesting it had been intentional.

A. Legal source/authority and evidence:

Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC) Vol II, 26 February 2009, para. 237 and 1356-1357:

"237. Taking into consideration the evidence of Peraj, Deda, Pnishi, and K72, the Chamber finds that, following the Reka/Caragoj valley joint VJ/MUP operation, bodies of many of those Kosovo Albanians killed during its course were taken to the public cemetery at Brekovac/Brekoc in Đakovica/Gjakova by VJ and MUP forces acting jointly. K72s evidence of digging up bodies from this location, as described in Section VII.P below, and the subsequent finding of at least 287 bodies of Kosovo Albanians killed during the Reka/Caragoj valley operation, particularly the eight individuals whose killings were witnessed by Merita Deda and the five individuals whose killings were witnessed by Lizane Malaj, at the Batajnica mass graves, satisfies the Chamber that these bodies were shifted in order to conceal the crimes committed during the operation. Given that K72 carried out these operations under the direction of the MUP, the role of the VJ in shifting bodies to conceal crimes appears to be more limited. However, it is established that this process of exhuming and moving bodies was carried out in order to cover up the results of a joint VJ and MUP cooperation, and the fact that the MUP was responsible for the cover up provides strong evidence of its forces involvement in the commission of crimes."

"1356. Having reviewed the evidence outlined above, the Chamber is of the view that there can be no doubt that a clandestine operation involving the exhumation of over 700 bodies originally buried in Kosovo and their transportation to Serbia proper took place during the NATO bombing. The main personalities involved in organising this large scale operation were the Minister of Interior, Vlajko Stojiljković; the President of the FRY, Slobodan Miloević; and the Head of the RJB at the time, Vlastimir Đorđević, all of whom are also, in this Indictment, named members of the joint criminal enterprise. The events described above are very damning of the MUP and many of its employees, who not only worked to exhume, transport, and rebury the bodies, but also participated in the institutional cover-up of the truck containing many bodies discovered in the Danube river.

However, aside from Gjogaj and his evidence about Spasić wearing a VJ uniform, the witnesses involved in this operation did not mention the involvement of the VJ, and given that the Batajnica centre was deserted by both the VJ and the MUP at the time the reburials were taking place, the involvement of the VJ has not been proved beyond reasonable doubt. Tomaevićs evidence suggests that some unconventional action may have been taken by Pavković. However, this does not assist the Prosecution greatly, as much of Tomaevićs work was not of clandestine nature and only a small number of Izbica victims, none of whom appear to have been examined by her, were later found in Petrovo Selo. The issue of Lukić and ?ainovićs involvement in this clandestine operation is dealt with later in sections dealing with their responsibility.

1357. The Chamber is convinced that the purpose of this operation was to conceal over 700 bodies scattered throughout Kosovo from both citizens of the FRY and Serbia, and from the international community, including this Tribunal and NATO ground forces, whose presence on the ground in Kosovo was anticipated following the NATO bombing. The fact that the persons involved felt this concealment to be necessary in the first place also leads the Chamber to conclude that they knew that the great majority of the corpses moved were victims of crime, as opposed to combatants or people who perished during legitimate combat activities, such as the victims from the area of Meja and from Suva Reka/Suhareka town."

Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement (TC) 16 May 2003, para. 208:

"208. [] While the Accused was resting, one person found Inyenzi in the bushes and said he had found his victim for the day. The Accused told him not to kill them, an old man and a young boy, but to bring them to the Accused. The Accused then said to them: "[Y]our relatives almost killed me". He loaded his gun and shot the old man in the chest. He shot the young boy in the head and the body, and told the attackers to "remove the filth", being a reference to the corpses of the old man and young boy. This attack lasted until around 3.00 p.m. or 4.00 p.m. and resulted in a large number of victims among the Tutsi refugees.^[194]"

Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases No. ICTR-96-10 and ICTR-96-17-T, Judgment (TC), 21 February 2003, para. 717:

"[1047] T. 1 November 2001 pp. 175-184; T. 2 November 2001 p. 95-97."

Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), 21 May 1999, paras. 418, 421:

"418. [] There he saw and heard Kayishema thanking those attackers from the surrounding commune and prefectures, including Ruzindana, for having shown such devotion to their work."

"421. On 14 May, witness JJ again saw Kayishema between Gishyita Hill and Gisovu where the assailants parked their vehicles. At the end of the large-scale attack, Kayishema brought together and congratulated the assailants from other areas. Attackers shot witness JJ in the hand during the Muyira attacks."

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