UNITED NATIONS INTERNATIONAL CRIMINAL TRIBUNAL for RWANDA TRIAL CHAMBER Ill Before

UNITED NATIONS

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA

TRIAL CHAMBER Ill

Before: Judge Lloyd George WILLIAMS, Presiding Judge Pavel DOLENC Judge Andresia VAZ ", ,L7 *,% , ; 3 I I

Registrar: Mr. Adama DlENG J~ j I rrsEEacm

c, Date: 28 July 2002 1tr.z "-- F J -13

7.. , The Prosecutor iL.,,! : ly v . , Theoneste BAGOSORA : Gratien KABlLlGl P', "$ Aloys NTABAKUZE Anatole NSENGIYUMVA

Case No. ICTR-98-41-T

b DEFENCE RESPONSE TO THE PROSECUTOR'S MOTION FOR I JUDICIAL NOTICE and Appendices A and B annexed to the II Prosecutor's Motion for Judicial N

Defence Counsel Prosecution Counsel

Kennedy Ogetto Barbara MULVANEY Gershom Otachi Bw' Omanwa Chile EBOE-OSUJI Drew WHITE Segun JEGEDE Christine GRAHAM DEFENCE RESPONSE TO THE PROSECUTOR'S MOTION FOR JUDICIAL NOTICE AND APPENDICES A AND B ANNEXED TO THE PROSECUTOR'S MOTION FOR JUDICIAL NOTICE filed on 23 July 2002.

INTRODUCTION

The Prosecutor relies on Rule 94 of the Rules of Procedure and Evidence, jurisprudence of the ICTR, jurisprudence of the ICTY and the doctrine of Judicial Notice, in support of her motion.

She seeks a declaration by the Tribunal to take Judicial Notice of "facts of common knowledge" and "adjudicated facts and documents", listed in Appendices A and B to the Prosecutor's Motion.

On examination of appendices A and 9, annexed to the Prosecutor's Motion the Defence finds that most of the facts stated are disputable facts. Further, these facts directly support counts of the Indictment, for which the Prosecutor is under an obligation to adduce formal proof.

Considering that Judicial Notice dispenses with the requirement that she establish formal proof of facts, it is evident that the Prosecutor is simply trying to use the doctrine of Judicial Notice to avoid her obligation to prove her allegations against the accused, Anatole Nsengiyurnva.

The Prosecutor has realized that she does not have any evidence to support the allegations in the indictment and has resorted to the use of Judicial Notice as a tool for mischief and tyranny. 6. The ultimate aim is to ensure that the accused is not given an opportunity to rebut the charges in the Indictment.

7. The Defence notes that the Prosecutor is misleading the court by misinforming the Trial Chamber. Her motion is an attempt to use the doctrine of Judicial Notice to ensure that her biased account of the massacres, which is in actual fact the Rwanda Patriotic Front (RPF) theory, is admitted as the correct version of the events without hearing Defence arguments on the disputed facts.

FACTS OF COMMON KNOWLEDGE.

1. It has been noted by Honourable Judges of this Trial Chamber that,

"Rule 94 provides no guidance as to what manner of facts constitutes common knowledge."'

2. For a clarification as to the meaning of "common knowledge" for purposes of Judicial Notice, the Honourable Judges went further and cited various legal treatises for guidancea2The explanation given was as follows;

"The term "common knowledge" is generally accepted as encompassing "those facts which are not subject to reasonable dispute including, common or universally known facts, such as general facts of history, generally known geographical facts and the laws of nat~re."~

1 The Prosecutor v Laurent Semanza, Case No; ICTR-97-204, Decision on the Prosecutor's Motion for Judicial Notice and Presumption of Facts pursuant to Rules 94 and 54, 3 November 2000, para 22 (hereinafter referred to as The Prosecutor v Semanza, First Decision) 2 The Prosecutor v Semanza, First Decision, para 23. 3 M. Cherif Bassiouni & P. Manikas, The law of the International Tribunal for the Former th Yugoslavia, (United States of America, 1996) p. 952, See also Phipson on Evidence, 14 ed. 2- 3. However, it is clear that a court may notice without proof,

"facts which can be described as being too notorious to be the

subject of serious debate "4

4. Facts of common knowledge should be facts that are not subject to reasonable dispute. This has been emphasized by this Trial Chamber, other Trial Chambers of the ICTR and the ICTY.~

5. It has been stated in no unclear terms that,

"Disputable facts should not form part of the proceedings by way of Judicial Notice but should be determined after the parties have submitted their evidence which will subsequently be discussed by the opposing Party following an adversarial proceduremV6

6. The Defence notes that the Prosecutor seeks Judicial Notice of contested facts, of which she is obliged to adduce formal evidence. The Defence will

06 to 2-16 (,England, 1990): Sakar's Law of Evidence in India, Pakistan, Bangladesh, Burma and Ceylon, 15' ed. (India, 1999) p. 1015: Hon. Roger E. Salhany Criminal Trial Handbook, (Canada, 1994), 9.5. A common example of a fact of common knowledge are the days of the week. 4 Eugene O'Sullivan, Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk Mc Donald p. 331, See also Australian Evidence, Ligertwood A, 6.36 p. 334. 5 The Prosecutor v Semanza, First Decision para 24, Decision on Defence Motion for Judicial Notice and Presumption of Facts pursuant to Rules 94(B) and 54, para 20 (hereinafter Third Decision), The Prosecutor v Elizaphan Ntakirutimana et a/, Case No; ICTR-96-I O-T, ICTR-96- 117-T, Decision on the Prosecutor's Motion for Judicial Notice of Adjudicated Facts, 22 November 2001, para 29 in which it was stated ...the Chamber will avoid taking judicial notice of facts that are the subject of reasonable dispute, Such matters should not be settled by judicial notice, but should be determined on the merits.. ., The Prosecutor v Nyiramasuhuko et a/, Case No; ICTR-97-21-T, Decision on the Prosecutor's Motion for Judicial Notice and Admission of Evidence, 15 May 2002, para 38, The Prosecutor v Sikirica et al, Decision on Prosecution Motion for Judicial Notice of Adjudicated facts, 27 September 2000 in which it was held, it is not the purpose of Rule 94(B) to allow findings on contested matters of law ... See also Federal Rules of Evidence, Rule 201 (b) and also See Australian Evidence, Ligertwood A. 6;36 p 333-334. 6 The Prosecutor v Nyiramasuhuko et a/, Ibid, para 39. adduce evidence to the contrary, and should not be denied an opportunity to do so.

7. Without a doubt, this is an attempt by the Prosecutor to use the device of Judicial Notice to relieve herself of the burden of proof which she has attempted and failed to shift to the accused through the admissions process and now sees an opportunity to use the doctrine of Judicial Notice as an escape valve.

8. Now that the Prosecutor failed to have the accused assist her to dispense with proof of charges in the lndictment by way of the admissions process, she is seeking to establish the very same facts by way of Judicial Notice.

9. It is also possible that the Prosecutor seeks to deny the accused the right to challenge charges in the lndictment.

10. Under the guise of "facts of common knowledge," the Prosecutor presents very controversial contested facts in Appendix A, which depending on the source of the information differ from one source to another.

The facts stated by the Prosecutor in Appendix A of her motion are actually myths which have become common knowledge amongst a certain group of people, but cannot be judicially noticed. This is the theory advanced by the RPF and those who serve their interests.

The historical matters, for instance in Appendix A of the Prosecutor's Motion are not matters of public history. The Defence will counter the Prosecutor's version of historical facts with an unbiased account, to put the record straight. 13. The Defence submits that Judicial Notice can only be taken of notorious facts which cannot be contested by a reasonable man of good faith. This should be limited to matters,

"so notorious, or clearly established or susceptible of demonstration by reference to readily obtainable, and authoritative source that evidence of their existence is unnecessary."'

14. The Defence urges the Trial Chamber not to permit the Prosecutor to mislead the court by providing rumours, generalisations and myths passed on from one generation to the next over the years and her assumptions, as "facts of common knowledge" under Rule 94.

15. The historical record presented is only an example of the facts stated in the annexures that the Defence disputes.

The generalisation sought by the Prosecutor is an attempt to simplify her case and consequently prejudice the trial of the accused.

Ideally, if she is unable to prove the allegations in the indictment, she should simply withdraw the allegations.

18. The Prosecutor asserts that she seeks to ensure judicial economy and uniformity of Judgement and that efficiency and economy are of real importance to the present case, given its complexity and number of accused persons.

19. It is evident that the rights of the accused are of no importance to the Prosecutor.

7 Archbold Pleading, Evidence and Practice 10-71 England, 2000, Phipson on Evidence 2-06. 20. The discretion to take Judicial Notice must not be exercised in a way that may prejudice the accused. It has been stated by Honourable Judges that,

"the aim of Judicial Notice must be balanced against the fundamental right of an accused to a fair triaY8

21. And further that,

"a balance should be struck between judicial economy and the rights of the accused to a fair trial."'

22. In any case the accused must not be denied the opportunity to fully defend himself against all the accusations in the indictment, particularly the right to examine or have examined the evidence presented by the Prosecutor and the right to an independent determination of the facts at issue.

23. Taking Judicial Notice of a fact must be consistent with procedural fairness. This means that if the accused is adversely affected, he must have the chance to challenge facts to be noticed. The accused should have the opportunity to meet in the appropriate fashion all facts that influence the disposition of the case."

24. These facts for which the Prosecution seeks Judicial Notice are properly before the court for determination. Arguments should be presented by

8 The Prosecutor v Ntakirutimana, Supra note 5, para 28 reference made to Article 20 of the Statute, The Prosecutor v Simic et a/, ICTY, Decision on the Pre-trial Motion by the Prosecution requesting the Trial Chamber to take Judicial Notice of the International Character of the conflict in Bosnia-Herzegovina, 25 March 1999. The Prosecutor v Ntakirutimana et a/, Supra note 5, para 28, See also Sikirica et a1 Supra note 5, Simic et a/, Supra note 8, The Prosecutor v Nyiramasuhuko Supra note 5, para 36. lo Eugene O'Sullivan, Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk Mc Donald.

6 both parties and most importantly the accused must not be denied an opportunity to answer to the charges brought by the Prosecutor.

After all the Prosecutor has brought the accused, Anatole Nsengiyumva before the court and should be prepared to face the challenge of proving the charges in the Indictment, always mindful of the fact that the option to withdraw the charges remains.

The Trial Chamber is being asked by the Prosecutor to take Judicial Notice of the very crimes with which the accused is charged. This poses a risk to the accused person's right to a fair trial.

The Defence urges the Trial Chamber to protect and guarantee the rights of the accused as provided for under Article 20 of the Statute. The accused should be tried on the basis of evidence presented to the court for determination and not some pre-conceived notions of the Prosecutor and by extension the RPF.

On the other hand, the Defence urges the Trial Chamber not to allow the Prosecutor to charge the accused persons on the basis of "facts we all know to be false assumptions." The legal system should not deliver verdicts based on such facts.

ADJU DlCATED FACTS

The scope of Rule 94(B) has been misunderstood by the Prosecutor, only relevant adjudicated facts can be considered under this Rule. However, the Defence notes that jurisprudence from concluded cases before the ICTR is still very limited and does not relate to the whole of Rwanda. The reasoning was based on the particular circumstances of the cases on which the Prosecutor relies, in her motjon, and cannot be extended to the present case.

2. The Prosecutor is simply trying to import different orders from different Trial Chambers and introduce the same in this case under the notion of adjudicated facts without considering all the circumstances and arguments which were brought to the attention of the court during the hearing in the cases to which she refers.

3. In any case, it is with concern that the Defence questions the relevance of the facts the Prosecutor seeks to be Judicially Noticed.

4. The need for relevance of facts to be Judicially noticed has been emphasized by Honourable Judges of the ICTR who held,

"Rule 94(B) also requires that the proposed adjudicated facts must "relate" to matters at issue in the current proceedings. This means that matters which have only an indirect or remote bearing on the present case should not be the subject of Judicial ~otice.""

5. In even stronger terms, the Honourable Judges of this Trial Chamber held,

"Judicial Notice must not be used to litter the trial record with irrelevant matters."'* 6. By failing to establish or demonstrate the relevance of the facts the Prosecutor seeks to be Judicially Noticed, she is making an attempt, albeit futile, to litter the trial record with irrelevant matters.

11 The Prosecutor v Ntakirutimana et a/, Supra not 5, para 27. See also The Prosecutor v Nyiramasuhuko et a/, Supra note 5, para 40. 12 The Prosecutor v Semanza, Third Decision, para 14. 7. This wastes the courts time and fails to achieve her much touted objective of Judicial economy.

8. An illustration of irrelevant facts with no bearing to the present case and to Anatole Nsengiyumva, yet sought by the Prosecutor to be Judicially Noticed are points 43, 44 and 45 of Appendix A. These state as follows;

"43. During the week of 14 to 21 April 1994, the President of the lnterim Government, the Prime Minister and some key ministers travelled to Butare and Gikongoro.

44. On 19 April 1994, the President of the lnterim Government, Theodore Sindikubwabo spoke on the radio and called for the killing of "accomplices" in Butare.

45. The visits of the President of the lnterim Government, the Prime Minister and some key ministers to Butare and Gikongoro during the week of 14 to 21 April 1994, marked the beginning of killings in the regions."

D) LEGAL CONCLUSIONS

1. Legal conclusions that are essential elements of the Prosecutor's criminal charges in the indictment are not within the ambit of matters that can be judicially noticed.

2. As it has been held by Honourable Judges of this Trial Chamber,

"the Chamber cannot take Judicial Notice of matters which are unadorned legal conclusions."'3

13 The Prosecutor v Semanza, First Decision , para 35. 3. This was cited with approval by Trial Chamber I, and the Honourable Judges further held;

"Moreover, the Chamber is not inclined to take Judicial Notice of legal characterisations or legal conclusions based on interpretation

4. Trial Chamber II placed more emphasis and stated that,

"The Chamber is of the opinion that Judicial Notice of facts which can be characterised either as controversial or which involve drawing legal findings from facts sought to be admitted or from their interpretation.. ..shall not be Judicially ~oticed."'~

5. At the ICTY it has been held that,

"Rule 94 is intended to cover facts and not legal conclusions, consequences inferred from them.. .and.. .that the Trial Chamber can only take Judicial Notice of factual findings but not of a legal characterisation as such."16

6. And further;

"that facts involving interpretation or legal characterisation of facts are not capable of admission under Rule 94.""

l4 The Prosecutor v Ntakirutimana et a/, Supra note 5, para 30. 15 The Prosecutor v Nyiramasuhuko, Supra note 5, para 39. l6 The Prosecutor v Simic et a/, Supra note 8. 17 The Prosecutor v Sikirica et a/, Supra note 5. WIDESPREAD OR SYSTEMATIC VIOLENCE

The Trial Chamber cannot possibly take Judicial Notice as sought by the Prosecutor of the assertion that there was widespread and systematic violence. These are the very charges the Prosecutor has brought against the accused in the Indictment and she is now trying to dispense with proof thereof, by way of Judicial Notice.

In proceedings before the ICTR in which the Prosecutor has attempted to seek Judicial Notice of the same assertion, the Honourable Judges said that

"the Tribunal's findings so far do not relate to all prefectures of the country, but only certain regions. It is true that some judgements contain statements about the general situation in Rwanda, but they are formulated in a different way than the Prosecutor's present

Declining the Prosecutor's request, the Honourable Judges further stated;

"Even if previous case law gives some support to the view that there was a "widespread or systematic attack against a "civilian population," the Chamber prefers in the circumstances of the present case to hear evidence and arguments on the issue, rather than take Judicial ~otice."'~

'8 The Prosecufor v Ntakirufimana, Supra note 5, para 33. l9lbid, para 35. DOCUMENTARY EVIDENCE

The Prosecutor has not set out reasons why these documents should be presented in court.

In any case the fact that these documents have been used in other cases does not automatically make them relevant to the present case.

CONCLUSION

The Defence concludes that the Prosecutor is not entitled to the orders she is seeking as the facts listed in the appendices to her motion are contested facts of which Judicial Notice cannot be taken.

Annexed hereto is the Defence response to Appendices A and B to the Prosecutor's Motion for Judicial Notice.

IN VIEW OF THE FOREGOING the Defence urges the Trial Chamber to dismiss the Prosecutor's Motion for Judicial Notice

All of which is humbly submitted.

Dated at Arusha this y of July 2002. KENNEDY OGETTO LEAD COUNSEL FOR ANATOLE NSENGIYUMVA ...... GERSHOM OTACHI BW'OMANWA CO-COUNSEL FOR ANATOLE NSENGIYUMVA DEFENCE RESPONSE TO APPENDIX A

ANNEXED TO THE PROSECUTOR'S MOTION FOR JUDICIAL NOTICE i). The Defence submits that the "facts" stated in Appendix A to the Prosecutor's Motion for Judicial Notice are irrelevant to the current proceedings and the Prosecutor has failed to demonstrate the relevance of the L'facts"to the present case. ii) Nevertheless, the Defence responds to the Prosecutor's irrelevant facts, simply for the record and to point out misleading and false theories advanced by the Prosecutor.

DEFENCE SUBMISSIONS IN RESPONSE TO FACTS STATED BY THE PROSECUTOR

HISTORICAL BACKGROUND

1. The revolution of 1959 marked the beginning of a period of ethnic clashes between the Hutu and the Tutsi in Rwanda, causing hundreds of Tutsi to die and thousands more to flee the country in the years immediately following.

This is a false and biased statement. Rwanda existed prior to 1959 and the history of Rwanda certainly did not begin in 1959. The Prosecutor is seeking Judicial Notice to avoid having to face the challenge of contrary evidence being presented to the court by the Defence, stating the cause of the revolution, the fact that the Tutsi were infact the first to attack the Hutu and killed several Hutu leaders, among others. 2. The revolution of 1959 led to the abolition of the monarchy, the removal of all Tutsi political and administrative structures and the establishment of the First Republic in 1961.

This point is also biased. The Prosecutor seeks to block the Defence from presenting an unbiased account of the history of Rwanda. The Defence urges the Trial Chamber to give the Defence an opportunity to argue these historical facts in court as opposed to concluding the matter by way of Judicial Notice.

3. Legislative elections held in September 1961 confirmed the dominant position of the essentially Hutu, MDR-PARMEHUTU, led by Gregoire Kayibanda, who was subsequently elected President of the Republic by the Legislative Assembly on 26 October 1961.

One issue cannot be taken in isolation and Judicially Noticed without considering the surrounding circumstances. An unbiased historical account should be presented to the Trial Chamber which should include details on the environment at the time, participating political parties and the results. All this is part and parcel of the same point.

4. The MDR-PARMEHUTU was the only party to present candidates in the elections of 1965.

Once again, this point cannot be considered in isolation. The Prosecutor is misleading the court by deliberately excluding the surrounding circumstances. The early part of 1973, The First Rwandan Republic, which was under the domination of the Hutu of central and southern Rwanda, was again marked by ethnic violence.

This statement cannot be considered in isolation. The Prosecutor implies that there was calm followed by sudden violence. She is misleading the court by excluding crucial details which will be made known to the court by the Defence.

The ethnic confrontations in 1973 prompted another mass exodus of the Tutsi minority from the country, as had occurred between 1959 and 1963.

This statement is misleading and a clear pointer to the impression the Prosecutor is attempting to create by her selective manner of presenting facts to the Trial Chamber. The Prosecutor has deliberately excluded certain periods such as pre- 1959, 1959-1963, 1963-1973 for reasons the Defence will argue in court.

Many Tutsi in exile made violent incursions back into Rwanda from neighbouring countries.

The Defence should not be denied an opportunity to argue this matter in court as it is one of the main reasons why the massacres occurred and should not be excluded from evidence by way of Judicial Notice. More details are required and such a statement should not be noticed by the court. 8. The word lnyenzi, meaning cockroach, came to be used to refer to Tutsi.

The word lnyenzi must be undestood to have been invented by the Tutsi themselves. The Defence will demonstrate the significance of the use of this word and show that the Prosecutor's contention that this word was used by the Hutu to insult the Tutsi is false and misleading.

9. On 5 July 1973, General Juvenal Habyarimana seized power in a military coup.

This statement is irrelevant to the present case. In any case more details are required and the matter cannot be considered in isolation. The Prosecutor will take undue advantage if the Trial Chamber takes Judicial Notice of this statement, concluding the matter without hearing all the evidence.

10. In 1975, Juvenal Habyarimana founded the MRND.

This is a false statement, the Prosecutor creates the impression that the late President Habyarimana was the sole founder of MRND, which is not true. The reasons why MRND was formed, what the party stood for, among other issues, must all be presented in court. The extent of prejudice the accused person will suffer is now evident, if the "facts" the Prosecutor seeks to be noticed are indeed noticed.

Juvenal Habyarimana assumed the position of Chairman of the MRND.

This point is also linked to point number 10. President Habyarimana did not lead MRND on his own as implied by the Prosecutor. 12. Every Rwandan was automatically a member of the MRND from birth.

This is not a true statement. There are Rwandan citizens who have never belonged to any political party.

13. From 1973 to 1994, the government of President Habyarimana used a system of ethnic and reginal quotas, which was supposed to provide educational and employment opportunities for all.

This is a false statement. The Defence will demonstrate that a quota system of education was in place prior to 1973. Evidence is available on this from reliable sources.

14. The quota system was in fact used increasingly to discriminate against both Tutsi and Hutu from regions outside the north-west of Rwanda.

The Defence will strongly protest this statement, there was never discrimination against the Tutsi and Hutu from regions outside the North- west of Rwanda. In any case, they stood to gain. The Prosecutor is presenting a misleading set of facts gathered from various sources and presented to the court in a manner that adversely affects the accused.

15. Among the privileged elite, an inner circle of relatives and close associates of President Habyarimana and his wife Agathe Kanziga, known as Akazu, enjoyed great power.

The AKAZU theory is RPF propaganda. The Defence should not be denied an opportunity to adduce evidence to demonstrate this. Now that the Prosecutor cannot prove this theory, she attempts to conclude the matter without presenting evidence and hearing the Defence, by way of Judicial Notice.

16. Some Tutsi in exile formed a political organisation called the Rwandan Patriotic Front.

The Defence urges the Trial Chamber to give the accused a chance to present a full defence. The issue of formation of the RPF is not as simple as the Prosecutor makes it out to be. The Trial Chamber must be presented with the full context, which comprises who formed the RPF and under what circumstances. The trial Chamber must be made aware of the fact that the RPF is the party responsible for all the atrocities committed in Rwanda,

17. The RPF was a politico-military opposition organisation.

This point is linked to point 16. It is necessary to know the formation and organisation of the RPF, functioning and chaos caused, before drawing conclusions on whether or not it was a politico-military organisation. The Prosecutor is trying to avoid having these explanations heard by the Trial Chamber.

18. The RPF's military wing was called the Rwandan Patriotic Army (RPA).

This is also linked to points 16 and 17, the composition of RPF and method of recruitment must be known as these are key elements to determine if at all RPF had a military wing. 19. On 1 October 1990, the Rwandan Patriotic Front attacked Rwanda.

The issue is not whether or not RPF attacked Rwanda on 1'' October 1990, it could have been any other date. The important point is how the 1990 RPF attack occurred, for what reason, which part of Rwanda was attacked, what the objective was and finer details. The Prosecutor should not avoid having this evidence presented before the court because she too will appreciate that RPF were responsible for the massacres in Rwanda.

20. Within days after the 1 October 1990 invasion of the RPF, the government began arresting thousands of people.

In what circumstances did arrests, if any, take place. Who was arrested and for what reason? The Prosecutor would prefer that these details are not revealed and Judicial Notice is taken of a statement as vague her statement in point 20.

21. Tutsi and Hutu political opponents were the main targets of the arrests following the RPF invasion of 1 October 1990.

This is a false statement and only evidence presented before the Trial Chamber can prove that indeed it is one of the rumours that have now become common knowledge amongst those who advance the RPF theory. 22. Following pressure from the internal opposition, the international community and the RPF attack of October 1990, President Habyarimana permitted the introduction of multiple political parties and the adoption of a new constitution on 10 June 1991.

This statement cannot be further from the truth. lnfact the RPF were totally against the formation of a multi-party democratic Rwanda.

Subsequently the following parties were established in Rwanda: The MRND, the MDR, the PSD, the PL and the CDR.

This statement is inaccurate. More than five political parties were formed, some examples being PDC, PD, PDR, PDI, PECO and several others. Once again the Prosecutor is being selective to twist this information in her favour

The first transitional government following the 1991 constitutional reforms was made up almost exclusively of MRND members, following the refusal of the main opposition parties to take part.

Once again the Prosecutor is isolating an issue that should be viewed in the the context of other issues so as not to prejudice the accused. This is a matter that should be argued in court and not concluded by way of Judicial Notice.

25. With the second transitional government formed in April 1992, the MRND became a minority party for the first time in its history, with nine (9) ministerial portfolios out of nineteen (19). This point is linked to point 24 above. If reasons are not given and the Defence are not given an opportunity to be heard, the Prosecutor will use this statement if Judicially Noticed to prejudice the accused person's case.

26. Even in the second transitional government, the MRND retained its domination over local administration.

This statement contradicts certain aspects of the Prosecutor's argument and should be determined by the Trial Chamber only after both parties are heard. It is evident that the Prosecutor seeks to use this statement adversely if Judicially Noticed.

27. The new transitional government of 1992 then entered negotiations with the RPF which resulted in the signing of the Arusha Accords on 4 August 1993.

Circumstances such as the attitude of the parties, the alliances formed by the RPF and political parties in Rwanda are key elements to be argued and should be considered by the Trial Chamber. The Prosecutor's request for this point to be noticed should be denied.

28. Among other things, the Arusha Accords provided for the following: a) The integration of both the government's FAR and the RPF into the Rwandan National Army. b) The new national army was to be limited to 13,000 men, 60% FAR and 40% RPF. c) The military command posts were to be shared equally (50%- 50%) between the two sides, with the post of Chief of Staff of the Army assigned to FAR. d) The Gendarmerie was to be limited to 6,000 men, 60% FAR and 40% RPF, with the posts of command shared equally (50%- 50%) between the two sides and the post of Chief of Staff of the Gendarmerie assigned to the RPF. e) The Accords limited the number of ministerial portfolios to be held by the MRND to five including the Presidency. f) The other portfolios within government were to be shared as follows: RPFd, MDR-4, PSDQ, PL-3 and PDC-1.

This point is linked to point 27. It is necessary to present all circumstances surrounding the Arusha Peace Accords in the full context, to avoid prejudice to the accused persons.

29. On 5 October 1993, the U.N. Security Council resolved to establish and deploy an International Peace-Keeping force in Rwanda named UNAMIR.

The formation of the UNAMIR is not an issue that can be presented to the Trial Chamber for Judicial Notice in isolation without the presentation of evidence and arguments linked to points 27 and 28 above, otherwise, the Prosecutor will use Judicial Notice to affect the accused adversely.

30. Determined to avoid the power sharing prescribed by the Arusha Accords, several prominent civilian and military figures pursued their strategy of ethnic division and incitement to violence.

This point is one of the charges in the lndictment. For the Prosecutor to seek Judicial Notice in this instance is an indication that the she is using the doctrine of Judicial Notice to avoid her obligation to adduce formal proof. The Defence urges the Trial Chamber not to take Judicial notice of a statement such as this to ensure that the Prosecutor does not dispense with her obligation to prove the charges in the lndictment. She is using Judicial Notice to indirectly prove guilt, as she seeks to have most if not all the charges in the Indictment noticed by the court. In any case, the statement is vague, the Prosecutor states, "several prominent civilian and military figures."

31. With the intention of ensuring widespread dissemination of the calls to ethnic violence, prominent figures, including some from the President's circle set up hate media.

The Defence response with respect to point 31 is similar to point 30 above.

32. The most prominent forms of hate media included RTLM and the newspaper Kangura.

The Defence response with respect to point 31 is similar to point 30 above.

33. Several political parties established youth organisations. (a) The MRND established a youth wing referred to as the Interahamwe. (b) The CDR established a youth wing referred to as Imuzamugambi.

This point should not be Judicially Noticed. The Prosecutor has isolated an issue and not presented facts. The motive is to have the Chamber take Judicial Notice of this point and not have any evidence on youth wings and their formation adduced in court. This will enable the Prosecutor to mislead the court and the public basing her charges on these two parties youth wings and she will be better placed to construct her theory without having to face Defence arguments and objections. Members of the lnterahamwe (MRND youth wing) and the lmpuzamugambi (CDR youth wing), were organised into militia groups.

When the Defence considers the meaning of the term militia, it is false to state or even imply that the MRND and CDR had militia groups. This is a matter that the Defence will argue during the trial and should not be concluded by way of Judicial Notice.

Between 1 January and 17 July 1994, citizens native to Rwanda were identified according to the following ethnic classifications, Tutsi, Hutu and Twa.

The Defence argues that matters pertaining to ethnicity should be presented to the court. This being a very controversial issue, both parties should be heard.

On 6 April 1994, the President of the Republic of Rwanda, Juvenal Habyarimana, was killed when his plane was shot down on its approach to Kigali airport.

This is a very controversial matter and should not be concluded by way of Judicial Notice. The killing of the President and cannot be considered in isolation and in such a selective manner. All circumstances surrounding the assassination must be considered, including who killed the President, the planning that took place and the motive of those who were responsible. None of these factors should be concluded by way of Judicial Notice and to do so would seriously prejudice the case of the accused. 37. From the morning of 7 April 1994, groups of military personnel commenced the systematic assassinations of a large number of individuals, including:

(a) The then Prime Minister, Ms. Agathe Uwingiliyimana. (b) Some of the ministers in the government of Prime Minister Uwilingiyimana. (c) Cour de Cassation (Constitutional Court) President Joseph Kavaruganda. (d) The Belgian UNAMIR soldiers sent to protect the Prime Minister.

This is an issue that would have to be argued in court as it is one of the charges in the Indictment and the accused must be given a chance to present his defence. To take Judicial Notice of this point as sought by the Prosecutor would include contested maters in the trial record and prejudice the Defence. The statement "some of the Ministers in the government" having had been killed is also very vague and should not be noticed by the court.

38. The massacre of the Belgian soldiers prompted the withdrawal of the Belgian troops in the days that followed.

It is not correct to say that the Belgian Soldiers withdrew following the killing of Belgian soldiers. It would be misleading to ascertain that one reason led to withdrawal of troops. This is a matter that should be argued in court and the Defence should be given an opportunity to present arguments which will portray the contrary. 39. After the withdrawal of the Belgian troops, the UN Security Council drastically reduced the number of UNAMIR personnel in Rwanda.

The Defence response is similar to point 38.

40. Given the political and constitutional void created by the deaths of most national political authorities a new government, the lnterim Government, composed solely of Hutu was set up on 9 April 1994.

This statement is misleading and prejudicial. The accused should be given an opportunity to respond in court.

41. Jean Kambanda was appointed Prime Minister of the lnterim Government that was officially sworn in on 9 April 1994.

This point is linked to point 40, the Defence should be given an opportunity to present arguments on the circumstances surrounding the appointments in the interim government.

The interim Government, the MRND held nine ministerial posts, plus the Presidency of the Republic, while the remaining eleven (11) positions, including that of Prime Minister, went to...( illegible). .. actions of the other parties.

This paragraph is linked to paragraph 41 and the Defence response is similar.

14 During the week of 14 to 21 April 1994, the President of the lnterim Government, the Prime Minister and some key ministers travelled to Butare and Gikongoro.

Circumstances in the Akayesu and Kayishema et al, cases were different from the present, making it grossly unfair to import such a "fact" to the present case. The Chamber should deny the Prosecutor's request because it is evident that by way of Judicial Notice, she is seeking to build her case, by fitting in facts gathered from left, right and centre, instead of adducing formal proof as should be the case. In any case, this is irrelevant to Anatole Nsengiyumva's case.

44. On 19 April 1994, the President of the lnterim Government, Thoedore Sindikubwabo, spoke on the radio and called for the killing of accomplices in Butare.

The Defence response is similar to point 43 above.

45. The visits of the President of the lnterim Government, the Prime Minister and some key ministers to butare and gikongoro during the week of 14 to 21 April 1994, marked the beginning of killings in the regions.

The Defence response is similar to point 43 above. B. WIDESPREAD OR SYSTEMATIC VIOLENCE

The following state of affairs, among others, prevailed in Rwanda between 6 April 1994 and 17 July 1994:

(a) There were through out Rwanda widespread or systematic attacks against human beings. (b) The widespread or systematic attacks were directed against a civilian population. (c) The widespread and systematic attacks were directed against a civilian population on the grounds of political persuasion, Tutsi ethnic identification or Tutsi racial origin. (d) The widespread or systematic attacks were organised and planned by (i) members of the Rwandese Armed Forces of the day (FAR) and (ii) the political forces behind the Hutu power movement. (e) The widespread or systematic attacks were carried out mainly

(i) Rwandese state security personnel (ii) Civilians including the armed militia, and (iii) Ordinary citizens.

The Prosecutor is seeking Judicial Notice of very serious charges in the Indictment for which she must adduce formal proof. How then can she now seek to dispense with formal proof by way of Judicial Notice? This is an indication that she is actually unable to prove these charges.

From late 1990 until July 1994, some rwandan citizens conspired among themselves and with others to work out a plan with the intent to exterminate the civilian Tutsi population and eliminate members of the opposition.