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 rrscmEEa 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.

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