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Published online by Cambridge University Press: 27 February 2017
Prosecutor v. Karemera, Ngirumpatse, & Nzirorera. Case No. ICTR-98-44-AR73(C). Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice. At <http://www.ictr.org>.
International Criminal Tribunal for Rwanda, Appeals Chamber, June 16, 2006.
In an interlocutory appeal in Prosecutor v. Karemera, the appeals chamber of the International Criminal Tribunal for Rwanda (ICTR) held that the commission of genocide against the Tutsis in 1994 is a “fact of common knowledge” of which trial chambers must take judicial notice (Appeals Decision, paras. 35, 38). The decision represents a significant reversal in ICTR practice: although some trial chambers have been willing to take notice of “widespread and systematic attacks” against Tutsis in Rwanda, they have uniformly insisted that the question of whether the attacks amounted to genocide is so fundamental that formal proof is required.
As noted in the indictment, Edouard Karemera and Jospeh Nzirorera were minister-level officials in the Rwanda’ interim government (Indictment, paras. 1, 3) and served, along with Mathieu Ngirumpatse, as the national executive leadership of the National Republican Movement for Democracy and Development (MRND) (id., para. 9). They are charged with, inter alia, conspiracy to commit genocide, direct and public incitement to commit genocide, genocide, and—alternatively—complicity in genocide (id.). The prosecution alleges that they created, recruited, and organized the Interahamwe, the vicious youth wing of the MRND; provided members of the Interahamwe with weapons and military training; and helped formulate and implement policies of the interim government of April 8, 1994, that were intended to incite, encourage, and abet killings of Tutsis (id., para. 14).
1 Prosecutor v. Karemera, Case No. ICTR–98–44–AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, para. 38 (June 16, 2006)Google Scholar [hereinafter Karemera Appeals Decision]. The cases, basic legal texts, press releases, and other materials of the International Criminal Tribunal for Rwanda are available at <http://www.ictr.org>.
2 See, e.g.,. Prosecutor v. Semanza, Case No. ICTR–97–20–I, Decision on Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, para. 29 (Nov. 3, 2000)Google Scholar. But see Prosecutor v. Kajelijeli, Case No. ICTR–98–44A–T, Judgment and Sentence, para. 19 (Dec. 1, 2003)Google Scholar.
3 See, e.g., Prosecutor v. Semanza, para. 36.
4 Amended Indictment, paras. 1, 3 (Feb. 23, 2005), Prosecutor v. Karemera, Case No ICTR–98–44–I.
5 International Criminal Tribunal for Rwanda, Rules of Procedure and Evidence, as amended, UN Doc. ITRV3/Rev.11, Rule 94(A) (2001).
6 See Prosecutor v. Karemera, Case No ICTR–98–44–R94, Decision on Prosecution Motion for Judicial Notice, para. 7 (Nov. 9, 2005)Google Scholar.
7 Id., para. 7.
8 Citing Prosecutor v. Semanza, para. 194.
9 ICTR Press Release ICTR/INFO–9–2–481.EN, ICTR Takes Judicial Notice of Genocide in Rwanda (June 20, 2006).
10 See Felly, Kimenyi, “ICTR Finally Recognizes 1994 Rwanda Genocide,” New Times (June 22, 2006), at <http://www.globalpolicy.org/indjustice/tribunals/rwanda/2006/0622recognizes.htm>Google Scholar.
11 See, e.g., Prosecutor v. Krstić, Case No. IT–98–33–A, Judgment, para. 223 (Apr. 19, 2004)Google Scholar (“The offence of genocide, as defined in the Statute . . . , does not require proof that the perpetrator of genocide participated in a widespread and systematic attack against civilian population.”).
12 See Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, annex, Art. 2 (Nov. 8, 1994), 33 ILM 1602 (1994).
13 See John, Quigley, The Genocide Convention: an International Law Analysis 118 (2006)Google Scholar (“Even though others may have been acting to destroy a given group, the specific accused person may have been acting outside that context, pursuing wholly different objectives.”).
14 See, e.g., Prosecutor v. Kupreskić, Case No. IT–95–16–A, Judgment, para. 89 (Oct. 23, 2001)Google Scholar.
15 See, e.g., Prosecutor v. Kayishema, Case No. ICTR–95–1–A, Judgment (Reasons), para. 84 (June 1, 2001)Google Scholar.
16 See Prosecutor v. Blagojević, Case No. IT–02–60–T, Judgment, para. 638 (Jan. 17, 2005)Google Scholar.
17 See, e.g., Prosecutor v. Krstić, para. 143.
18 Prosecutor v. Ntagerura, Case No. ICTR–99–46–T, Judgment, para. 35 (Feb. 24, 2005)Google Scholar.
19 Amended Indictment [Bisesero] (July 7, 1998), para. 4.11, Prosecutor v. Ntakirutimana, Case Nos. ICTR–96–10 & ICTR–96–17.
20 Prosecutor v. Ntakirutimana, Case No. ICTR–96–10–A, Judgment, para. 509 (Dec. 13, 2004)Google Scholar.
21 There is no reason to believe, however, that the appeals chamber would not hold exactly that in the right situation. A number of more specific genocides in Rwanda seem equally indisputable, such as the notorious atrocities committed in the Taba commune. See Prosecutor v. Akayesu, Case No. ICTR–96–4–T, Judgment, paras. 167–71.
22 See, e.g., Prosecutor v. Kayishema, para. 273 (noting, without explanation, that the nationwide campaign is a question “of general importance” in a genocide case).
23 See, e.g., Prosecutor v. Akayesu, para. 129.
24 See Prosecutor v. Bagasora, Case Nos. ICTR–98–41–AR93 & ICTR–98–41–AR93.2, Decision on Prosecutor’s Interlocutory Appeals Regarding Exclusion of Evidence, para. 16 (Dec. 19, 2003).
25 See, e.g., Prosecutor v. Kajelijeli Case No. ICTR–98–44A–T, Judgment and Sentence, para. 804 (Dec. 1, 2003) (approving Akayesu).
26 Prosecutor v. Akayesu, para. 523.
27 Prosecutor v. Stakić, Case No. IT–97–24–A, Judgment, para. 40 (Mar. 22, 2006) (noting that it is permissible to consider “whether the apparent intentions of others. . . could provide indirect evidence of the Appellant’s own intentions when he agreed with those others to undertake criminal plans” (emphasis added)).
28 Prosecutor v. Akayesu, para. 730 (“Owing to the very high number of atrocities committed against the Tutsi, their widespread nature not only in the commune of Taba, but also throughout Rwanda, . . . the Chamber is also able to infer, beyond reasonable doubt, the genocidal intent of the accused in the commission of the above–mentioned crimes.”).
29 See supra note 13 and accompanying text.
30 Prosecutor v. Akayesu, paras. 112–29 (detailing evidence of the nationwide campaign).
31 Prosecutor v. Tadić, No. IT–94–1–A, Judgment, paras. 227–28 (July 15, 1999).
32 Rwamakuba v. Prosecutor, Case No. ICTR–98–AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, para. 25 (Oct. 22, 2004).
33 Prosecutor v. Kambanda, Case No. ICTR 97–23–S, Judgment and Sentence, para. 16 (Sept. 4, 1998).
