The Yale Law Journal


Noticing Genocide

25 Oct 2006

On June 16, 2006, the Appeals Chamber for the International Criminal Tribunal for Rwanda (“ICTR”) took judicial notice of the Rwandan genocide as a “fact of common knowledge” in Prosecutor v. Karemera. Though this unprecedented move originated from good intentions, it will prove to be a harmful precedent. The ICTR’s decision to take judicial notice of genocide is conceptually flawed, internally contradictory, and has the potential to alter ICTR jurisprudence, and perhaps the totality of international criminal procedure, for the worse.

In Karemera, three former high officials of the interim Rwandan government are charged under Article 2 of the Statute of the Tribunal with conspiracy to commit genocide, direct and public incitement to genocide, and genocide, or alternatively complicity in genocide. On June 30, 2005, the Prosecutor asked the Trial Chamber to take judicial notice of six purported “facts of common knowledge” under ICTR Rule 94(A). The Trial Chamber rejected the request, but the Appeals Chamber reversed that decision and took notice of the fact that “[b]etween 6 April 1994 and 17 July 1994 there was genocide in Rwanda against the Tutsi ethnic group.” This decision will prevent any other defendant, in any ICTR proceeding, from arguing that the genocide did not occur. The Prosecutor has filed similar motions for notice in several ongoing trials, including Prosecutor v. Zigiranyirazo and Prosecutor v. Bizimungu.

This holding was surprising because the ICTR Trial Chambers had pointedly refused to take judicial notice in earlier cases, explaining that “the question [whether genocide took place in Rwanda] is so fundamental, that formal proofs should be submitted bearing out the existence of this jurisdictional elemental crime.” The Trial Chambers also had refused to notice other facts that, like the genocide, might imply individual criminal responsibility.

The Prosecution gave the Appeals Chamber two reasons to take judicial notice of the genocide. First, the Prosecutor promoted the notice as a progressive step toward efficiency—an argument that addressed common political critiques that the Tribunal wastes both time and money. Second, the Prosecution argued that the notice would foreclose “rejectionist” lines of defense, which claim that no genocide occurred. The Tribunal could in this way acknowledge and confirm the genocide, for the benefit of the people of Rwanda, without prejudicing the case against any particular individual.

These rationales seem plausible enough at first glance. In practice, however, the notice’s costs will outweigh its intended benefits. Because the notice may never be disputed in any ICTR proceeding, the notice will prevent all further testimony and evidence of the genocide—in effect truncating the judicial record. That truncation will bolster the claims of those who deny the genocide and those who claim that the Tribunal metes out “victor’s justice” rather than truth. And because those who are accused of planning and implementing the genocide will no longer be compelled to explain or excuse their behavior to survivors, who might have derived understanding from the perpetrators’ words, the notice may impede the “reconciliation” that it was meant to promote. Future historians may also lament the decision, which will make it all the more difficult to paint a full portrait of the causes and mechanisms of the genocide. Declaring the genocide “common knowledge,” therefore, though intended at least in part to console and acknowledge, may actually provide less healing than a multitude of individual judgments would have.

Moreover, it is far from certain that the decision will save either time or money. The time that is saved by taking notice may be offset by the time wasted due to continuing protests by the defense counsels and the accused. Thus the goal of judicial efficiency may be undermined by a measure designed to further it.

On a more fundamental level, the ICTR’s decision violates basic legal principles. The term “genocide” is more than a fact: it is a legal conclusion that a crime has occurred, and a court should not be able to take factual notice of an expressly legal determination. By taking notice of genocide, the ICTR conflates an issue of fact with an issue of law.

One element of the crime of genocide is dolus specialis, the specific “intent to destroy” another group. As the Appeals Chamber has previously acknowledged, this specific intent “is difficult, even impossible, to determine,” but without it, the accused must be acquitted of genocide. Because specific intent is so hard to prove, the Appeals Chamber has long permitted the Prosecutor to prove a defendant’s specific intent from circumstantial evidence. But now the judicial notice of genocide will remove even that burden from the Prosecutor by requiring the Trial Chamber to presume that the specific intent existed in some person or people. That presumption of guilt will be in direct conflict with the presumption of innocence that should be accorded to each accused.

Judicial notice of genocide is most problematic in relation to group-based charges such as complicity in genocide. So long as a principal conspirator acts with the “specific intent to destroy,” all his co-conspirators will be guilty of complicity in genocide if they “knew or had reason to know that the principal was acting with [specific] genocidal intent.” The ICTR’s judicial notice will make it all but impossible for future defendants to deny that they did not have “reason to know” that at least one of their number possessed the specific intent to destroy. A real danger of the judicial notice, then, is that an accused person may be found guilty of complicity in genocide without the Prosecutor ever demonstrating that he himself meant to destroy another group.

Because ICTR decisions inform other international criminal trials, this notice may soon be cited as precedent elsewhere. For example, the Special Court for Sierra Leone adopted the ICTR Rules—including the rules governing judicial notice—in their entirety. The International Criminal Tribunal for the Former Yugoslavia follows Rules of Evidence and Procedure whose provisions for judicial notice are nearly identical to the ICTR’s, and the International Criminal Court has codified similar provisions. The precedent set in Rwanda may soon be repeated in other courts—possibly endangering those courts’ reputations for fairness.

The Appeals Chamber could have avoided the pitfalls of declaring the genocide to be a “fact[] of common knowledge” under Rule 94(A) by instead deeming the genocide an “issue of adjudicated fact[]” under Rule 94(B). Because defendants may contest issues of “adjudicated facts” but not “facts of common knowledge,” the practical effect of choosing Rule 94(B) over Rule 94(A) would have been to keep trials open to new evidence contesting the genocide. Perhaps that openness would have helped thwart rejectionist claims and would have reduced the chance that Rwandans will perceive the Tribunal as biased in favor of the victors.

Even the Rule 94(B) alternative, however, would not have corrected the fundamental unfairness of presuming a defendant’s guilt from the fact of the crime’s occurrence. In Karemera, good intentions have not translated into good law.

Brittan Heller is a second year student at Yale Law School and a student director of the Orville H. Schell, Jr. Center for International Human Rights. She previously worked as a legal intern for the International Criminal Tribunal for Rwanda.

Preferred Citation: Brittan Heller, Noticing Genocide, 116 Yale L.J. Pocket Part 101 (2006),