WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE “GENOCIDE” The Importance of Employing Judicial Notice Correctly in Establishing a Historical Record Jake Hirsch-Allen - 6028209 - November 2nd, 2009 - Intl. Criminal Tribunals Procedure - Göran Sluiter I. Introduction 1 II. Judicial Notice 2 A. Judicial Notice in Domestic Law 2 B. Judicial Notice in International Criminal Law 3 C. Contradictory Case Law and Controversy 4 III. Karemera 6 A. A Controversial and Contradictory Decision 6 B. Tribunals Must Take Judicial Notice of Facts Using Non-legal Language 7 C. Courts Should Apply Rule 94(a) over 94(b) 7 IV. Establishing a Robust and Uniform Historical Record 9 A. R. v. Zundel and Semanza B. Building on Past Factual Findings using Rule 94(b) V. Conclusion VI. Bibliography 9 10 12 13 WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE “GENOCIDE” Jake Hirsch-Allen 1 I. Introduction Trials tell a story in various ways. Generally they require that evidence be submitted in order to compile a set of facts that builds to a legal conclusion. This painstaking process is particularly complex and time and resource-intensive for international criminal tribunals which are often tasked with trying individuals with indirect or command responsibility for mass crimes. One means of assembling the story more quickly is to increase the number of facts that are assumed by the court thereby relieving the requirement that a party produce evidence to support these facts. This process, called taking judicial notice, is used increasingly frequently by international criminal tribunals to expedite their trials.1 Judicial notice has a secondary benefit as well. It can ensure that the stories various tribunals tell are consistent and incremental rather than duplicative.2 The benefits of judicial notice must be balanced with its negative effects on defendants’ due process rights and in particular the preservation of the presumption of innocence. In commenting on the use of judicial notice by international criminal tribunals, however, critics have focused too much on the individual rights of the defendant and have neglected the impact of this procedure on a trial’s factual record. This paper fills this vacuum by re-evaluating how international criminal tribunals use judicial notice. The paper focuses in particular on Karemera, the International Criminal Tribunal for Rwanda’s (ICTR) most prominent decision on judicial notice, and to a lesser extent, on the ICTR’s Semanza decision and on the Canadian trial of Ernst Zundel. The analysis of judicial notice case law is meant to be illustrative rather than exhaustive but the conclusions are meant to apply to international and even domestic criminal law more generally. The paper uses the Karemera decision to argue that international criminal tribunals should sparingly take notice of previously adjudicated facts instead of, for instance, taking for granted that the Rwandan genocide is common knowledge in a genocide trial. In addition to better safeguarding defendants’ rights - and these are the most important counterweight to judicial notice’s benefits - this approach to judicial notice will improve the creation of an authoritative factual record. This judicial record could in turn advance the tribunals’ place in international society and history. 1 While the focus of this paper is on the case law of the International Criminal Tribunal for Rwanda (ICTR), its conclusions have implications for all of the international and “hybrid” criminal tribunals including the International Criminal Tribunal for Yugoslavia, the Special Court for Sierra Leone, the Extraordinary Chambers of the Courts of Cambodia and the International Criminal Court. I use the terms international criminal tribunals and international criminal law to refer to these tribunals and their law. 2 Nina Jorgensen summarizes clearly the rationale behind the doctrine which “has been said to be, in the first instance, to expedite the trial by dispensing with the need to submit formal proof on issues that are patently indisputable; and secondly, to foster consistency and uniformity of decisions on factual issues where diversity in factual findings would be unfair.” “Genocide as a Fact of Common Knowledge” ICLQ vol. 56 Oct 2007 [hereon Jorgensen] at 886. WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE, “GENOCIDE” Jake Hirsch-Allen 2 II. Judicial Notice A. Judicial Notice in Domestic Law As indicated above, judicial notice is a procedural doctrine that, in short, allows a relevant fact to be taken for granted when that fact is so well known and widely accepted that it is beyond dispute.3 The “distinguishing characteristic of judicial notice is that it is a means of proof without evidence.”4 The doctrine follows from the nearly universal reliance by courts on some common knowledge and allows courts to maintain a uniform interpretation of commonly reviewed facts.5 Originally a common law doctrine, judicial notice is now also employed in a number of civil jurisdictions.6 The doctrine was at first restricted to notice of common knowledge or notorious facts and this interpretation continues to be the most widespread. Judicial notice has now been expanded in various jurisdictions to allow courts to independently assume statutory law, previous case law and, in some countries, previously adjudicated facts. In Canada, for instance, a court may take judicial notice of what are called “adjudicative facts” that relate specifically to the parties before the court and “legislative facts” which are general propositions affecting future litigants and which assist the tribunal in establishing law and policy. Legislative facts include social and economic facts.7 More importantly for the discussion that follows, however, is the trend in Canadian courts to take judicial notice of previous cases.8 For instance, Supreme Court Justice Sopinka recommends that courts examine previous case law to avoid having to re-prove acknowledged facts.9 3 William J. Vancise and Patrick Healy, “Judicial Notice in Sentencing” 65 Sask. L. Rev. 97 2002 [hereon Vancise] at 99. 4 Vancise at 101. 5 Ralph Mamiya, “Taking Judicial Notice Genocide? The Problematic Law and Policy of the Karemera Decision” Wisconsin Intl. L.J. Vol. 25, No. 1 [hereon Mamiya] at 5 citing James G. Stewart, “Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent”, 3 Intl. Crim. L. Rev. 245 (2003) at 245. 6 Jorgensen at 885 citing “JG Stewart, ʻJudicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedentʼ (2003) 3 Intl Crim L Rev 245, 246–7 and nn 8–9, 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 ʻprocedural mechanisms that dispense with the need to prove matters of established truthʼ.” 7 Susan G. Drummond, “Judicial Notice: The Very Texture of Legal Reasoning” 15 Can. J.L. & Soc. 15 2000 [hereon Drummond] at p 7. 8 “Judicial Notice” Tribunal Proceedings - Department of Service Canada <http://www.ae-ei.gc.ca/eng/board/tribunal/ chapter_3-3-1.shtml> visited 2 Nov 2009: “Tribunals take notice of their enabling statute, general laws and regulations and easily accessible cases.” 9 Drummond at 14. WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE, “GENOCIDE” Jake Hirsch-Allen 3 B. Judicial Notice in International Criminal Law The Rules of Procedure and Evidence of each of the ad hoc international criminal tribunals contain a similarly worded Rule 94 which describes two types of facts of which the tribunals can take judicial notice: (A) A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof. (B) At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings.10 Article 94(a) resembles the widely held “common knowledge” rule for judicial notice and includes “matters so notorious, or clearly established or susceptible to determination by reference to readily obtainable and authoritative sources that evidence of their existence is unnecessary.” 11 Article 94(b) represents a very different type of judicial notice. It has been applied to facts that fulfill a checklist which is used to determine whether the expressions have been accepted as facts in a previous trial.12 While rule 94(a) is based on the national law 10 Importantly, the Statute and Rules of Procedure and Evidence of the International Criminal Court (ICC) do not contain a provision on judicial notice of adjudicated facts. Article 69 of the ICC Statute states only that ʻThe Court shall not require proof of facts of common knowledge but may take judicial notice of themʼ leaving the ICC much less leeway to judicial notice appropriately. While I am unable to discuss fully the implications of my conclusions for the ICC, briefly the Court should interpret its rules in a manner that would allow it to at least notice facts from its previous decisions if not those from the ad hoc tribunals. 11 Prosecutor v Laurent Semanza (Decision on the Prosecutorʼs Motion for Judicial Notice and Presumption of Facts Pursuant to Rules 94 and 54) ICTR-97-20-T (3 Nov 2000) [hereon Semanza decision] at para 25, cited in Prosecutor v Sam Hinga Norman, Moinina Fofana and Allieu Kondewa (Fofana—Decision on Appeal against Decision on Prosecutionʼs Motion for Judicial Notice and Admission of Evidence) SCSL-2004-14-AR73 (16 May 2005), Separate Opinion of Justice Robertson at para 21. 12 The list follows: (i) it is distinct, concrete and identifiable; (ii) it is relevant to an issue in the case at hand; (iii) it is in the same or substantially similar form as it was expressed by the trial or appeals Chamber; (iv) it is not unclear or misleading in the context in which it is placed in the moving partyʼs motion; (v) it is restricted to factual findings of a trial or appeals Chamber and does not include characterizations that are of an essentially legal nature; (vi) it is not based on facts voluntarily admitted in a previous trial or on plea agreements in previous cases; (vii) it was contested at trial and forms part of a judgment which has either not been appealed or has been finally settled on appeal; or it was contested at trial and now forms part of a judgment which is under appeal, but falls within issues which are not in dispute on appeal; (viii) it does not have a direct bearing on the acts, conduct and mental state of the accused; and (ix) it does not impact upon the right of the Accused to a fair trial. Jorgensen at 889 citing generally “Prosecutor v Édouard Karemera, Mathieu Ngirumpatse and Joseph Nzirorera (Decision on Prosecutorʼs Interlocutory Appeal of Decision on Judicial Notice) ICTR-98-44-AR73(C) (16 June 2006) [hereon Karemera Appeal Decision] at paras 45–56 and Prosecutor v Elizaphan Ntakirutimana (Decision on the Prosecutorʼ 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. WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE, “GENOCIDE” Jake Hirsch-Allen 4 conception that some facts are, taken alone, beyond sensible dispute,13 94(b) attempts to increase a court’s efficiency and predictability by avoiding the re-arguing of previously established facts. It is also important to note that 94(a) is mandatory and binding while 94(b) is discretionary and rebutable.14 Originally, considerable limits were placed on the tribunals’ exercise of judicial notice. For instance, the tribunals often confirmed that “legal characterisations or legal conclusions based on an interpretation of facts” should not be noticed.15 Over time, however, these safeguards weakened. As indicated above and as with judicial notice in the domestic context, the two rationales for the doctrine are to expedite a trial by dispensing with the need to submit proof on indisputable issues and “to foster consistency and uniformity of decisions on factual issues.”16 The first rationale has been stressed and is the reason for the rapid increase in the use of judicial notice in international criminal law. The driving force behind this increase was the report of a United Nations Security Council panel of experts that recommended the use of judicial notice in order to prevent the unnecessary delays that had plagued the hybrid international criminal tribunals. The expert group recommended “greater use of judicial notice in a manner that fairly protects the rights of the accused and at the same time reduces or eliminates the need for identical repetitive testimony and exhibits in successive cases...”17 Until the Security Council’s report the tribunals were very cautious in their use of judicial notice.18 Since its issuance, however, the tribunals’ increasing jurisprudence with regard to judicial notice has been inconsistent at best and occasionally outright contradictory. Pressure from the Security Council to speed up trials is perhaps the most significant cause for the tribunals’ increasingly frequent use of judicial notice. The visible effects of this pressure reinforce common criticisms of the tribunals’ lack of independence. C. Contradictory Case Law and Controversy In Akayesu and Kayishema, the first genocide convictions, the trial Chamber did not take judicial notice of genocide because it saw the question of whether a genocide had taken 13 Vancise at 100 citing R. v. Zundel (1987), 35 D.L.R. (4th) 338, 56 C.R. (3d) 1 (Ont. C.A.) [hereon Zundel Trial 1]. 14 Prosecutor v. Milosevic, Case No.: IT-02-54-AR73.5, Decision on the Prosecutorʼs Interlocutory Appeals Against the Trial Chamberʼs 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts (Oct. 28, 2003). 15 Prosecutor v. Ntakirutimana et al., Case No.: ICTR-96-10-T, ICTR-96- 17-T, Decision on the Prosecutorʼs Motion for Judicial Notice of Adjudicated Facts, at para 28-29 (Nov. 22, 2001) at para 30. 16 Jorgensen at886 citing Semanza para 20, citing C Tapper, Cross and Tapper on Evidence (8th edn, Butterworths, London, 1995) at 78. 17 Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, U.N. Doc. A/54/634, (Nov. 11, 1999) [hereon Security Council Report] at para 85. 18 Security Council Report at para 85. WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE, “GENOCIDE” Jake Hirsch-Allen 5 place as too fundamental to the rights of the accused.19 Nevertheless the court in Akayesu took notice of “the fact that widespread killings were perpetrated throughout Rwanda” in 1994 and the tribunal did the same in its first Semanza decision.20 Nina Jorgensen contrasts these decisions with those in the Ntatikirutimana and Kajelijeli cases, noting the many contradictions in the ICTR trial Chambers’ approaches to judicial notice of genocide. 21 The divergence of opinion amongst various trial Chambers, including also the Nyiramashuko, Niyitegeka and subsequent Semanza decisions, is substantial. 22 The first Semanza decision does, however, include a lesson in the careful use of judicial notice. There, the court took notice of specific facts relating to the genocide including its dates, targets, etcetera without applying the term itself.23 Nevertheless, the ICTR’s use of judicial notice has been erratic and even contradictory. Originally careful and hesitant, the tribunal now notices facts under rule 94(a) frequently, giving rise to fears for defendant’s rights. These fears were arguably realized in the Karemera decision. Controversial from the outset, this decision represents for some the pinnacle of the ICTR’s abuse of judicial notice. Noting that judicial notice “has now become a widely used tool in practice” Nina Jorgensen describes how “caution was ultimately thrown to the wind by the ICTR Appeals Chamber when on 16 June 2006 it took judicial notice pursuant to Rule 94(a) of the fact that ‘between 6 April 1994 and 17 July 1994, there was a genocide in Rwanda against the Tutsi ethnic group’.”24 19 Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96-4-T (2 Sept 1998) paras 126 and 129 and Prosecutor v Clément Kayishema and Obed Ruzindana (Judgment) ICTR-95-1-T (21 May 2001) para 273. 20 Jorgensen at 895. 21 Mamiya 15 citing Prosecutor v. Niyitegeka et al., Case No. ICTR-96-14-A, Reasons for Oral Decision Rendered 21 April 2004 on Appellantʼs Motion for Admission of Additional Evidence and for Judicial Notice, at para 14-17 (May 17, 2004); Prosecutor v. Milosevic, Case No. IT-02-54-AR73.5, Decision on the Prosecutionʼs Interlocutory Appeal Against the Trial Chamberʼs 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts (Oct. 28, 2003); Kupreškic Decision, at para 6, 12. 22 For full citations see Jorgensen at 886-889. 23 “In the Semanza decision, the Trial Chamber, being guided by the Akayesu judgment, took judicial notice that:The following state of affairs existed in Rwanda between 6 April 1994 and 17 July 1994. There were throughout Rwanda widespread or systematic attacks against a civilian population based on Tutsi ethnic identification. During the attacks, some Rwandan citizens killed or caused serious bodily or mental harm to persons perceived to be Tutsi. As a result of the attacks, there was a large number of deaths of persons of Tutsi ethnic identity.Again, however, the Trial Chamber found that the question of the occurrence of genocide was so fundamental that formal proof at trial was necessary.” Jorgensen at 887-8 citing Semanza Decision (n 4) Annex A, para 2 and 36. 24 Jorgensen at 886 citing Karemera Appeal Decision paras 33–7. WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE, “GENOCIDE” III. Jake Hirsch-Allen 6 Karemera A. A Controversial and Contradictory Decision The Karemera trial involved three defendants accused of genocide and crimes against humanity among other crimes. 25 While the Karemera trial Chamber did not take judicial notice of genocide,26 on interlocutory appeal the Appeals Chamber reversed this decision and ruled that the “fact of the Rwandan genocide is a part of world history . . . a classic instance of a ‘fact of common knowledge’”.27 This decision is the Chamber’s most substantive analysis of judicial notice to date and represents the first time an international criminal tribunal has taken judicial notice of genocide. The ICTR applauded the decision as “silencing the ‘rejectionist camp’ which had been disputing the occurrence of genocide”28 but some legal analysts have nevertheless been highly critical of its implications for international criminal justice in general and for defendants’ rights including, in particular, the presumption of innocence.29 The criticisms are justified. Contradictions and flaws in the reasoning of the decision highlight the court’s poor choice in taking judicial notice of genocide under rule 94(a). For instance, the Appeals Chamber’s finding that 94(b) is only available for facts that bear on the criminal responsibility of the accused because all facts must do so in order to be relevant contradicts its analysis of Rule 94(a).30 The context of a crime need not be an element of responsibility for it to be relevant to it. Courts should only take judicial notice of facts that provide context without being a part of any element of the crime itself. For instance, if an individual is being tried for her role in an execution, a court should be able to take judicial notice of the purpose of a firing squad (killing by gunshot) without drawing conclusions about her personal role in the killing. Such facts form the necessary background to a case and are similarly important in establishing a historical record. If defined as historical context and not personal history, 25 See Prosecutor v. Karemera, et al., Case No. ICTR-98-44-I, Amended Indictment, at 1 (February 23, 2005). 26 Prosecutor v Édouard Karemera (Decision on Prosecution Motion for Judicial Notice) ICTR-98-44-R94, 9 November 2005 para 7” “[I]t does not matter whether genocide occurred in Rwanda or not, the Prosecutor must still prove the criminal responsibility of the Accused for the counts he has charged in the Indictment. Taking judicial notice of such a fact as common knowledge does not have any impact on the Prosecutionʼs case against the Accused, because that is not a fact to be proved. In the present case where the Prosecutor alleges that the Accused are responsible for crimes occurring in all parts of Rwanda, taking judicial notice of the fact that genocide has occurred in that country would appear to lessen the Prosecutorʼs obligation to prove his case.” 27 Karemera Appeal Decision at para 14. 28 Jorgensen at 887 citing Press Release, ʻICTR Appeals Chamber takes Judicial Notice of Genocide in Rwandaʼ ICTR/INFO-9-2-481.EN (Arusha, 20 June 2006). 29 See generally KJ Heller, ʻProsecutor v Karemera, Ngirumpatse & Nzirorera, Case No. ICTR-98-AR73(C), Decision on Prosecutorʼs Interlocutory Appeal of Decision on Judicial Notice, June 16, 2006ʼ (2007) 101 AJIL [hereon Heller] and Jorgensen for two examples. 30 Jorgensen at 894. WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE, “GENOCIDE” Jake Hirsch-Allen 7 such facts could benefit society by contributing to a judicial system’s factual record without prejudicing the defendant’s rights. The Appeals Chamber justified taking notice of genocide by claiming that noticing a common knowledge fact generally does not relieve the prosecutor of her obligations with regard to the defendant in particular. The Chamber stated that the prosecution must “still introduce evidence demonstrating that the specific events alleged in the Indictment constituted genocide and that the conduct and mental state of the Accused specifically make them culpable for genocide.”31 Yet this statement does not take into consideration how the Chamber’s noticing of such an important fact shifts the burden of proof from the prosecution to the defense. In fact, this is often a key failing with regard to judicial notice: while the noticed facts may not be conclusive with regard to culpability, the increased burden on the defense can be overwhelming. B. Tribunals Must Take Judicial Notice of Facts Using Non-legal Language The Appeals Chamber also argued that it was only using the term genocide to set out the context for the defendant’s crimes. The use of judicial notice for this purpose is commendable but the Chambers choice of the term “genocide” is not. Establishing the existence of genocide is “essentially a legal determination”.32 While genocide is also a historical, sociological and anthropological phenomena, courts must be careful not to use such terms when not implying their full legal meaning. To suggest otherwise is to encourage judicial laziness. They key distinction for judicial notice in international criminal law should be between facts and statements of law. These two categories must be kept distinct in order to avoid taking judicial notice of legal conclusions which could, in turn, prejudice the defendant and confuse the record. In order to maintain the distinction courts must ensure that they do not use language with legal connotations, such as, for instance, genocide. C. Courts Should Apply Rule 94(a) over 94(b) The tribunal should instead have used language without a legal connotation or, even better, it should have applied rule 94(b) and taken notice of previously adjudicated cases of genocide. Doing so would increase the clarity of the judgment and would ensure the facts in question serve only as background information because they are specific to other criminals. It would also reinforce past decisions and demonstrate continuity amongst the court’s decisions and its over all findings with regard to the conflict. 31 32 Karemera Appeal Decision para 37. Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, at 114 (Sept. 2, 1998) [hereafter “Akayesu Judgement”]; Prosecutor v. Semanza, Case No. ICTR-97-20-I, Decision on the Prosecutorʼs Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, at 29 (Nov. 3, 2000) [hereinafter “Semanza Decision”]. WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE, “GENOCIDE” Jake Hirsch-Allen 8 Had the court noticed the facts of the genocide as previously adjudicated it would have granted the defendant numerous more procedural safeguards than exist under 94(a). Facts established under 94(b) create a weak rebuttable presumption in favor of the prosecution. 33 The defendant can disprove these facts on any of the ten conditions which any fact introduced under this rule must pass including notably their restriction to “factual findings…not of an essentially legal nature.” These facts also cannot “impact upon the right of the Accused to a fair trial.”34 To paraphrase Jorgensen, by taking judicial notice of genocide as a fact of common knowledge rather than as an adjudicated fact, many years after the establishment of the Tribunal, the court undermined previous case law and contradicted (rather than reaffirmed) one of the reasons for its establishment.35 33 Jorgensen at 890 citing Karemera Appeal Decision paras 40 and 42. 34 See note 12. 35 Jorgensen at 895. WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE, “GENOCIDE” Jake Hirsch-Allen 9 IV.Establishing a Robust and Uniform Historical Record A. R. v. Zundel and Semanza The importance of upholding human rights and due process for international criminal tribunals necessitates that such tribunals occasionally draw from legal sources outside of their statutes. The Canadian trial of Holocaust denier Ernst Zundel, for instance, includes useful lessons for those attempting to balance the need for judicial notice with its perils for both individual fair trial rights and the communal right to a robust truth finding process. After distributing pamphlets denying the Holocaust, Zundel was charged with spreading false information injurious to the public interest. The trial judge in R v. Zundel took judicial notice of “the mass murder and extermination of Jews in Europe by the Nazi regime during the Second World War” but did not take judicial notice of the Holocaust.36 In this way, the judge carefully and adeptly established an important historical record without preventing the defendant from being able to defend his alleged of truthfulness. As Supreme Court Justices Cory and Iacobucci note, the trial judge “explicitly did not take away from the jury the possibility of accepting evidence in support of Zundel's fundamental premise that there was no systematic plan of genocide and thus that racism was not as dangerous as supposed.”37 In Semanza, the ICTR similarly describes how judicial notice can be used to fill in the background to a case without infringing the presumption of innocence: “By taking judicial notice...the Chamber merely provides a backdrop—a blank canvas— against which the Prosecutor 36 R. v. Zundel Ontario Court of Appeal, 1990, para 23-4. The Supreme Courtʼs decision affirming the trial judgeʼs ruling on judicial notice is a useful explanation of the correct use of judicial notice: “the trial judge gave instructions to the jury as to the historical fact of which he had taken judicial notice. He correctly reviewed the essential elements of the offence with which the accused was charged and directed them that the Holocaust "which is defined, in essence, as the mass murder and extermination of Jews in Europe by the Nazi regime during the Second World War, is a historical fact which is so notorious as not to be the subject of dispute among reasonable persons and I direct you now as I would later, to accept it as a fact. We think the trial judge took judicial notice of noncontentious historical facts which were background and declined to take judicial notice of historical facts which the Crown had to demonstrate in proving that specific statements or allegations in the pamphlet were false and that the accused knew them to be false when he published them. These latter were issues of fact for the jury and the trial judge had no intention of resolving their proof by judicial notice or of diminishing the accused's right to make full answer and defence with respect to these facts. He did not take judicial notice of any policy of the National Socialist government and/or Adolf Hitler, he did not take judicial notice of the specific numbers of persons who died and he did not take judicial notice of the use of gas Chambers.” Zundel Supreme Court at 62. Interestingly, the ICTR Appeals Chamber in Karemera listed as examples of facts of which a court could take judicial notice “notorious historical events and phenomena, such as, for instance, the Nazi Holocaust, the South African system of apartheid, wars, and the rise of terrorism.” Karemera Appeal Decision para 30. Emphasis added. 37 R. v. Zundel, [1992] 95 D.L.R. (4th) 209 (Can.) [hereon Zundel Supreme Court]at para 63. WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE, “GENOCIDE” Jake Hirsch-Allen 10 is still saddled with the daunting burden of adducing formal evidence to paint the picture establishing the personal responsibility of the Accused for the offence with which he is charged in the indictment beyond a reasonable doubt.”38 The trial judge in Zundel acted in accordance with this description. He outlined the details of the Holocaust without removing the possibility for the defendant to refute this element of his case. In other words, by not taking judicial notice of the planned genocide that the accused was charged with lying about, the court allowed for a possible defense based on the disproval of this element of his crime (the requirement that the defendant lie). The Zundel decision now stands for the fact that “a judge, in the exercise of judicial discretion, may take judicial notice of an indisputable historical fact.”39 Based on this decision and others, Canada is developing a theory of judicial notice under which noticed facts “usually define an undisputed state of affairs within which disputed events have occurred” and in this respect serves as a model for international criminal tribunals. Unfortunately the existence of almost any genocide is controversial. Despite overwhelming evidence, trials like Zundel show that even the Holocaust is frequently disputed by “revisionist” thinkers to say nothing of the Armenian, Cambodian, Darfuri or Bosnian “genocides”. Nevertheless, courts can find a balance between ensuring an accurate historical record and guaranteeing an individual’s right to a fair trial as Zundel demonstrates. B. Building on Past Factual Findings using Rule 94(b) International criminal tribunals’ decisions on whether to take judicial notice have generally focused on the balance between efficiency and defendants’ rights. While some decisions passingly mention the creation of a consistent judicial record, the legal and political importance of creating a factual record has regularly been underemphasized or overlooked. These oversights correspond with a lawyer’s tendency to focus on the legal conclusions or ratio decidendi in a decision rather than the facts. This is one reason why the international criminal tribunals have more often used Rule 94(a) than 94(b). Yet the use of judicial notice by the ICTR in general, and Karemera in particular, demonstrates that judicial findings of fact can be as controversial as findings of law. The factual story that is established in a court record can be as useful for future courts as the legal precedent. Mamiya rightly notes that “one of the most fundamental goals of international criminal fora is to establish a history of the events that they examine” and that by simply taking judicial notice of genocide a tribunal is doing a disservice to the 38 Semanza Decision para 47. 39 “Judicial Notice” Canadian Encyclopedic Digest Evidence, CED Evidence XVII.2.(b) §1189.1 citing Zundel Trial 1. WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE, “GENOCIDE” Jake Hirsch-Allen 11 historical record.40 Instead of establishing evidentiary support for the existence of genocide the court leaves itself open to accusations of prejudgement. Taking judicial notice of common knowledge is a more established judicial procedure than noticing previously adjudicated facts, but it is also more appropriate for everyday facts, such as the colour of a banana, than controversial historical events such as genocide. The positive process of learning from past factual findings is captured better by Rule 94(b). Not only does 94(b) preserve a defendant’s right to confrontation but by referencing a particular case, it “provides a concrete factual context” for the judicially noticed occurrence. 41 Thus, whenever a court wants to take judicial notice of a fact that could possibly be contentious, and this should rarely be the case, it should use 94(b) instead of 94(a), because this ensures that evidence of the fact has been contested in a legitimate trial. It also ensures that tribunals create a consistent and authoritative historical record. This process is particularly effective within a clearly delineated and relatively small legal system such as that developed by contemporary international criminal tribunals. A historical record could have the secondary benefit of securing the place of international criminal tribunals within the international legal and lay communities. As such, it is one of many areas where criminal procedure, and particularly international criminal tribunal procedure, meets politics. The specific benefits to international criminal tribunals derive from their especially political, transparent and highly publicized nature and the restrictions that state cooperation and the UN and international legal systems place on their operations. 40 Mamiya at 22 citing RATNER & ABRAMS, supra note 3, at 155; but see Jose Alvarez, Crimes of State/Crimes of Hate: Lessons from Rwanda, 24 YALE INTʼL L. J. 365 (1999) (questioning the Tribunalsʼ role in establishing an historical record). 41 Mamiya at 26. WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE, “GENOCIDE” Jake Hirsch-Allen 12 V. Conclusion Judicial notice will always have to be used carefully. First and foremost to protect the rights of the defendants but also because of the future political and legal implications of having a court validate facts that can have social and cultural significance attached to them. As Jorgensen notes, Karemera highlights “the difficulties that may be presented where history has judged a certain event to be genocide—a fact of common knowledge from the perspective of the victims—but the law falls short of expectations.”42 Jorgensen and Heller are right to worry about the consequences of reading the Akeyesu and Karemera decisions together for future defendant’s rights. 43 The ICTR Appeals Chamber in Karemera should have suppressed “the understandable urge to proclaim the notoriety of the fact of genocide in Rwanda both in the interests of the rights of the accused and of history, and to allow the adjudicated facts themselves to speak for what is undeniable.” 44 Instead of relying on Rule 94(a), the ICTR should have noticed the finding of genocide in Akayesu as a previously adjudicated fact. This would have increased efficiency by alleviating unnecessary evidentiary requirements. It would also better secure the defendant’s rights by confining judicial notice to the facts of one specific case and would benefit the historical record by confirming that a previous tribunal’s decisions are adequately supported and final. In addition, to using Rule 94(b) instead of 94(a) the international criminal tribunals should be more sparing in their use of judicial notice and more careful with the words they choose to describe noticed facts. Commentators Vancise and Healy correctly explain that “the underlying axiom for any statement of judicial notice must be that the scope for application of this doctrine diminishes the more a fact is material and in dispute.”45 Canada’s courts are far from uniformly following this axiom, but the principle should serve as a maxim for all court’s employing similar doctrines. International criminal law is still nascent and developing rapidly. By carefully confirming its own case law instead of taking judicial notice of the Rwandan genocide as a fact of common knowledge the ICTR would have created a more robust factual record and would have set a better legal precedent, thereby doing its part in correcting the direction in which international criminal law is moving. 3527 words 42 Jorgensen at 887. 43 Both writers note that reading Akeyesu together with the Karemera judgement generates “unease over the presumption of innocence even if the relevancy of the wider genocidal context is accepted. The suggestion is that it will be all too easy in the future to infer genocidal intent.” Heller at 160–2. 44 Jorgensen at 898. Emphasis added. 45 Vancise at 100. WHY INTERNATIONAL CRIMINAL TRIBUNALS SHOULD NOT CALL GENOCIDE, “GENOCIDE” Jake Hirsch-Allen 13 VI.Bibliography Drummond, Susan G. “Judicial Notice: The Very Texture of Legal Reasoning” 15 Can. J.L. & Soc. 15 2000. 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. Jorgensen, Nina, “Genocide as a Fact of Common Knowledge” ICLQ vol. 56 Oct 2007. “Judicial Notice,” Canadian Encyclopedic Digest Evidence, CED Evidence XVII.2.(b) §1189.1. “Judicial Notice,” Tribunal Proceedings - Department of Service Canada <http://www.ae-ei.gc.ca/eng/board/tribunal/ chapter_3-3-1.shtml> visited 2 Nov 2009. Mamiya, Ralph, “Taking Judicial Notice Genocide? The Problematic Law and Policy of the Karemera Decision” Wisconsin Intl. L.J. Vol. 25, No. 1. Press Release, ‘ICTR Appeals Chamber takes Judicial Notice of Genocide in Rwanda’ ICTR/INFO-9-2-481.EN (Arusha, 20 June 2006). Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, U.N. Doc. A/54/634, (Nov. 11, 1999). Vancise, William J. and Patrick Healy, “Judicial Notice in Sentencing” 65 Sask. L. Rev. 97 2002.