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Genocide as a Fact of Common Knowledge

Published online by Cambridge University Press:  17 January 2008

Nina HB Jørgensen
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Abstract

Judicial notice has become a widely used tool in the practice of international criminal tribunals but its use has always been constrained by the fair trial rights of the accused. This article considers the possible impact on those rights of the decision of the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber to take judicial notice of the genocide in Rwanda as a notorious fact against the backdrop of the legal requirements for judicial notice as a fact of common knowledge and as an adjudicated fact. The question whether it would have been more appropriate to notice the Rwandan genocide as an adjudicated fact is addressed in the context of the implications for other instances of genocide, for example Srebrenica.

Type
Shorter Articles, Comments, and Notes
Information
International & Comparative Law Quarterly , Volume 56 , Issue 4 , October 2007 , pp. 885 - 898
Copyright
Copyright © British Institute of International and Comparative Law 2007

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References

1 Prosecutor v Sam Hinga Norman, Moinina Fofana and Allieu Kondewa (Fofana—Decision on Appeal against Decision on Prosecution's Motion for Judicial Notice and Admission of Evidence) SCSL-2004–14-AR73 (16 May 2005) (Fofana Appeal Decision), Separate Opinion of Justice Robertson, para 6.

2 Paragraph (B) was added on 9–10 July 1998 with respect to the ICTY and 3 November 2000 with respect to the ICTR. Rule 94(B) of the SCSL Rules states: ‘At the request of a party or of its own motion, a Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Special Court relating to the matter at issue in the current proceedings.’ The Statute and Rules of Procedure and Evidence of the International Criminal Court (ICC) take a different approach. Article 69 of the ICC Statute provides that ‘The Court shall not require proof of facts of common knowledge but may take judicial notice of them.’ There is no provision on judicial notice of adjudicated facts.

3 See Stewart, JG, ‘Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent’ (2003) 3 Intl Crim L Rev 245, 246–7 and nn 8–9CrossRefGoogle Scholar, who notes that apart from the common law jurisdictions of Australia, Canada, India, Malaysia and Singapore, New Zealand, Uganda, United Kingdom and United States, civil law jurisdictions such as Germany and Russia have incorporated ‘procedural mechanisms that dispense with the need to prove matters of established truth’.

4 Prosecutor v Laurent Semanza (Decision on the Prosecutor's Motion for Judicial Notice and Presumption of Facts Pursuant to Rules 94 and 54) ICTR-97–20-T (3 Nov 2000) (Semanza Decision) para 20, citing Tapper, C, Cross and Tapper on Evidence (8th edn, Butterworths, London, 1995) 78.Google Scholar

5 Prosecutor v Édouard Karemera, Mathieu Ngirumpatse and Joseph Nzirorera (Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice) ICTR-98–44-AR73(C) (16 June 2006) (Karemera Appeal Decision) paras 33–7. Emphasis added.

6 Convention on the Prevention and Punishment of the Crime of Genocide (9 Dec 1948) 78 UNTS 277.

7 See further Mettraux, G, International Crimes and the Ad Hoc Tribunals (OUP, Oxford, 2005) 199–202.Google Scholar

8 Prosecutor v Jean Paul Akayesu (Judgment) ICTR-96–4, Trial Chamber (2 Sept 1998) para 731.

9 Prosecutor v Radislav Krstic (Judgment) IT-98–33, Appeals Chamber (19 Apr 2004) paras 21, 26.

10 ibid para 33.

11 Prosecutor v Vidoje Blagojevic and Dragan Jokic (Judgment) IT-02–60-A (9 May 2007) paras 119–24.

12 See Prosecutor v Milomir Stakic (Judgment) IT-97–24, Appeals Chamber (22 Mar 2006) paras 16–28.

13 See UN International Commission of Inquiry on Darfur, paras 494–501 and 508–12, <http://www.un.org/News/dh/sudan/com_inq_darfur.pdf>.

14 Press Release, ‘ICTR Appeals Chamber takes Judicial Notice of Genocide in Rwanda’ ICTR/INFO-9–2–481.EN (Arusha, 20 June 2006).

15 Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96–4-T (2 Sept 1998) paras 126 and 129.

16 Prosecutor v Clément Kayishema and Obed Ruzindana (Judgment) ICTR-95–1-T (21 May 2001).

17 ibid para 273.

18 Semanza Decision (n 4) Annex A, para 2.

19 ibid para 36.

20 See, eg Prosecutor v Pauline Nyiramasuhuko (Decision on the Prosecutor's Motion for Judicial Notice and Admission of Evidence) ICTR-98–42-T (15 May 2002) paras 122–29; Prosecutor v Eliezer Niyitigeka (Decision on the Prosecutor's Motion for Judicial Notice of Facts) ICTR-96–14-T (4 September 2002) finding: ‘Given that there are no new facts that can be considered adjudicated by this Tribunal, the Prosecutor's resubmission of items denied in the recent decisions does not contribute to judicial economy' para 3. See generally Maitra, N, ‘A Perpetual Possibility? The International Criminal Tribunal for Rwanda's Recognition of the Genocide of 1994’ (2005) 5 Intl Crim L Rev 573–99.CrossRefGoogle Scholar

21 Prosecutor v Elizaphan Ntakirutimana (Decision on the Prosecutor's Motion for Judicial Notice of Adjudicated Facts) ICTR-96–10-T and ICTR-96–17-T (22 Nov 2001) para 43.

22 ibid paras 40–6.

23 Prosecutor v Juvenal Kajelijeli (Decision on the Prosecutor's Motion for Judicial Notice pursuant to Rule 94 of the Rules) ICTR-98–44A-T (16 Apr 2002) para 19.

24 Maitra, (n 20) 589.Google Scholar

25 Prosecutor v Édouard Karemera (Decision on Prosecution Motion for Judicial Notice) ICTR-98–44-R94, 9 November 2005 para 7.

26 Karemera Appeal Decision (n 5) para 14.

27 ibid para 37.

28 ibid para 37.

29 Prosecutor v Laurent Semanza (Judgment) ICTR-97–20-A, Appeals Chamber (20 May 2005).

30 Semanza Decision (n 4) para 25, cited in Fofana Appeal Decision (n 1) para 21.

31 Karemera Appeal Decision (n 5) para 30.

32 Semanza Decision (n 4) para 24.

33 Prosecutor v Vujadin Popovic (Decision on Prosecution Motion for Judicial Notice of Facts of Common Knowledge pursuant to Rule 94(A)) IT-05–88-T (26 Sept 2006) para 11. Rule 89(C) of the ICTY and ICTR Rules provides that ‘A Chamber may admit any relevant evidence which it deems to have probative value’. The equivalent SCSL Rule (also Rule 89(C)) provides that ‘A Chamber may admit any relevant evidence.’

34 See generally Karemera Appeal Decision (n 5) paras 45–56; Prosecutor v Vujadin Popovic (Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts with Annex) IT-05–88-T (26 Sept 2006); Prosecutor v Momcilo Krajisnik (Decision on Third and Fourth Prosecution Motions for Judicial Notice of Adjudicated Facts) IT-00–39 (24 Mar 2005) para 14; Prosecutor v Enver Hadzihasanovic and Amir Kubura (Final Decision on Judicial Notice of Adjudicated Facts) IT-01–47-T (20 Apr 2004); Prosecutor v Vidoje Blagojevic and Dragan Jokic (Decision on Prosecution's Motion for Judicial Notice of Adjudicated Facts and Documentary Evidence) IT-02–60-PT (18 Dec 2003) para 15; Prosecutor v Enver Hadzihasanovic and Amir Kubura (Decision on Judicial Notice of Adjudicated Facts following the Motion Submitted by Counsel for the Accused Hadzihasanovic and Kubura on 20 January 2005) IT-01–47-T, Trial Chamber II (14 Apr 2005); Prosecutor v Slobodan Milosevic (Decision on Prosecution's Motion for Judicial Notice of Adjudicated facts Relevant to the Municipality of Brcko) IT-02–54-T (5 June 2002) 3; Prosecutor v Zoran Kupreskic (Decision on the Motions of Drago Josipovic, Zoran Kupreskic and Vlatko Kupreskic to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to be taken pursuant to Rule 94(B)) IT-65–16-A (8 May 2001) para 6; Prosecutor v Elizaphan Ntakirutimana (Decision on the Prosecutor's Motion for Judicial Notice of Adjudicated facts Rule 94(B) of the Rules of Procedure and Evidence) ICTR-96–10-T and ICTR-96–16-T (22 Nov 2001) paras 32–9 and 54.

35 Karemera Appeal Decision (n 5) paras 40 and 42; Prosecutor v Vujadin Popovic (Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts with Annex) IT-05–88-T (26 Sept 2006) para 19. See also Prosecutor v Slobodan Milosevic (Decision on the Prosecution's Interlocutory Appeal against the Trial Chamber's 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts) IT-02–54-AR73.5 (28 Oct 2003); Momir Nikolic v Prosecutor (Decision on Appellant's Motion for Judicial Notice) IT-02–60/1-A (1 Apr 2005) para 11; Prosecutor v Jadranko Prlic (Decision on Motion for Judicial Notice of Adjudicated Facts pursuant to Rule 94(B)) IT-04–74-PT (14 Mar 2006). Similarly, the Trial Chamber in the Krajisnik case adopted the statement in Milosevic: Prosecutor v Momcilo Krajisnik (Decision on Third and Fourth Prosecution Motions for Judicial Notice of Adjudicated Facts) IT-00–39-T (24 Mar 2005) para 13.

36 See Prosecutor v Bizimungu (Decision on the Prosecutor's Motion and Notice of Adjudicated Facts. Rule 94(B) of the Rules of Procedure and Evidence) ICTR-99–50-T, Trial Chamber II (10 Dec 2004) para 14.

37 Karemera Appeal Decision (n 5) para 22.

38 Prosecutor v Slobodan Milosevic (Decision on the Prosecution's Interlocutory Appeal against the Trial Chamber's 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts) IT-02–54-AR73.5 (28 Oct 2003).

39 Prosecutor v Zeljko Mejakic (Decision on Prosecution Motion for Judicial Notice pursuant to Rule 94(B)) IT-02–65-PT (1 April 2004) 6.

40 Prosecutor v Casimir Bizimungu (Decision on the Prosecutor's Motion and Notice of Adjudicated Facts. Rule 94(B) of the Rules of Procedure and Evidence) ICTR-99–50-T, Trial Chamber II (10 Dec 2004) para 12.

41 Prosecutor v Enver Hadzihasanovic and Amir Kubura (Decision on Judicial Notice of Adjudicated Facts following the Motion Submitted by Counsel for the Accused Hadzihasanovic and Kubura on 20 January 2005) IT-01–47-T, Trial Chamber II (14 Apr 2005) 3.

42 Karemera Appeal Decision (n 5) para 36.

43 Heller, KJ, ‘Prosecutor v Karemera, Ngirumpatse & Nzirorera, Case No. ICTR-98-AR73(C), Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice, June 16, 2006’ (2007) 101 AJIL 157, 159. See also Maitra (n 20).Google Scholar

44 See Jørgensen, NHB., ‘The Definition of Genocide: Joining the Dots in the Light of Recent Practice’ (2001) 1 Intl Crim L Rev 285, 287–8 and related footnotes.CrossRefGoogle Scholar

45 Sliedregt, E van, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (TMC Asser Press, The Hague, 2003) 4–5.CrossRefGoogle Scholar

46 Prosecutor v Goran Jelisic (Judgment) IT-95–10, Trial Chamber (14 Dec 1999) paras 100–1.

47 Prosecutor v Vidoje Blagojevic and Dragan Jokic (‘Judgment’) IT-02–60-T (17 Jan 2005) para 638.

48 Karemera Appeal Decision (n 5) para 36.

49 ibid.

50 Prosecutor v Pavle Strugar (Judgment) IT-01–42-T, Trial Chamber (31 Jan 2005) para 333.

51 Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96–4-T (2 Sept 1998) para 523. In the later case of Prosecutor v Sylvestre Gacumbtsi (Judgment) ICTR-2001–64-T, Trial Chamber (17 June 2004) para 253, citing the Trial Chamber in the cases of Kayishema and Kajelijeli, it was found that: ‘Evidence of genocidal intent can be inferred from “the physical targeting of the group or their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, the systematic manner of killing”.’

52 See Heller, (n 43) 160–2.Google Scholar

53 Semanza Decision (n 4) para 43.

54 ibid para 47.

55 Fofana Appeal Decision (n 1) Separate Opinion of Justice Robertson, para 16.

56 Prosecutor v Édouard Karemera (Decision on Prosecution Motion for Judicial Notice) ICTR-98–44-R94 (9 Nov 2005) para 15.

57 Prosecutor v Radovan Stankovic (Decision on Prosecution's Motion for Judicial Notice pursuant to Rule 94(B)) IT-96–23/2-PT (16 May 2003) para 10.

58 Karemera Appeal Decision (n 5) para 48.

59 ibid n 85.

60 ibid para 47.

61 ibid para 50.

62 ibid para 37.

63 Prosecutor v Vujadin Popovic (Decision on Prosecution Motion for Judicial Notice of Facts of Common Knowledge pursuant to Rule 94(A)) IT-05–88-T (26 September 2006) para 14.

64 See also Heller, B, ‘Noticing Genocide’ (2006) 116 Yale L J Pocket Part 101.Google Scholar

65 Karemera Appeal Decision (n 5) para 36.

66 In the judgment in the Kayishema case, the Trial Chamber devoted a chapter to an assessment of ‘whether the events in Rwanda as a whole, reveal the existence of the elements of the crime of genocide’, on the basis that: ‘Such a finding allows for a better understanding of the context within which perpetrators may have committed the crimes alleged in the Indictment. Additionally, because the Indictment concerns events that took place in Kibuye, this Chapter of the Judgment includes a general examination of the events in that prefecture.’ Prosecutor v Clément Kayishema and Obed Ruzindana (Judgment) ICTR-95–1-T (21 May 2001) ch 5.2.

67 See, eg Prosecutor v Casimir Bizimungu (Decision on the Prosecutor's Motion and Notice of Adjudicated Facts) ICTR-99–50 (10 Dec 2004).

68 Karemera Appeal Decision (n 5) para 35.

69 Prosecutor v Radislav Krstic (Judgment) IT-98–33, Appeals Chamber (19 Apr 2004) para 37.

70 Attributed to Winston Churchill, in Schabas, W, Genocide in International Law (CUP, Cambridge, 2000) 14.Google Scholar

71 Although notably, in the Blagojevic case, genocide in Srebrenica was found to be constituted differently than in Krstic, namely by forcible transfer, which also included killings and destruction of properties. Prosecutor v Vidoje Blagojevic and Dragan Jokic (Judgment) IT-02–60-T, Trial Chamber (17 Jan 2005).

72 Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Genocide Case) (Judgment) (26 Feb 2007). Avaialble on ICJ website: http://www.icj-cij.org/docket/files/91/13685.pdf.

73 Genocide Case (n 72) Verbatim Record (28 Feb 2006) 23, para 11.

74 Fisheries Case (United Kingdom v Norway) (1951) ICJ Reports 116, 139.Google Scholar

75 Genocide Case (n 72) para 297.

76 At the Member States' discretion, the denial, approval or gross trivialization of genocide may be criminalized even if there is no direct incitement to hatred and violence. Framework Decision on Combating Racism and Xenophobia, OJ C 75E, 26 Mar 2002, summary at <http://europa.eu/scadplus/leg/en/lvb/133178.htm>.

77 EU Press Release, ‘EU: Common Criminal Provisions against Racism and Xenophobia’ (20 Apr 2007), <http://www.eu2007.de/en/News/Press_Releases/April/0420BMJRassismus.html>.

78 Charter, D, ‘EU makes it against law to condone genocide’ The Times (20 04 2007) 46Google Scholar; D Bilefsky, ‘EU Adopts measure outlawing Holocaust denial’ International Herald Tribunal (19 Apr 2007) <http://www.iht.com/articles/2007/04/19/news/eu.php>. The European Commission has pledged to prepare a Green Paper on 20th-century genocidal crimes and to carry out a review of whether denying these should come under the scope of the law.

79 The framework decision will be formally adopted after the European Parliament has been consulted over the amendments made during the meetings of the Council of EU Justice Ministers.