W I C T

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.
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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.
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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.
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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.
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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.
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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.
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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”].
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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.
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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.
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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.
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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.
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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.
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VI.Bibliography
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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.
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