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Principles of Evidence in International Criminal Justice edited by Khan, Karim A A; Buisman, Caroline; Gosnell, Christopher (28th October 2010)

Part IV Proof of Facts Other than Through Evidence at Trial, 15 Judicial Notice

Nina H. B. Jørgensen

From: Principles of Evidence in International Criminal Justice

Edited By: Karim A. A. Khan, Caroline Buisman, Christopher Gosnell

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 28 January 2020

(p. 695) 15  Judicial Notice

1.  Introduction

A simple domestic law example of the use of judicial notice is the decision of the Second Circuit of the United States Court of Appeals to take judicial notice of the ‘traditional features of a snowman.’1 A more complex international example is the decision of the International Criminal Tribunal for Rwanda (ICTR) Appeals Chamber to take judicial notice of the fact that genocide occurred in Rwanda in 1994.2 The ICTR had been in operation for 11 years by the time this conclusion was reached; evidence enough of the complexities inherent in the exercise of judicial notice by international criminal tribunals.

Judicial notice has its origins in the common law but is also known to civil law jurisdictions.3 Traditionally, it is a doctrine that permits a departure from the normal rules of leading evidence in that it requires the court to act upon its own knowledge rather than upon evidence adduced by the parties. Its general purpose is to maintain consistency in judicial findings in areas that are not reasonably open to dispute and to save the time and costs involved in unnecessarily bringing (p. 696) formal proof of evidence. The rationale behind the doctrine has been said to be in the first instance, to expedite the trial by dispensing with the need to submit formally 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.4

The rules of evidence of international tribunals starting with the Nuremberg Tribunal have contained provisions on judicial notice and the existing ad hoc tribunals have a two-tiered system incorporating judicial notice of adjudicated facts in addition to the better known category of ‘notorious’ facts. Article 21 of the Nuremberg Charter5 set the trend for an approach to evidence by international tribunals of a more flexible nature than their domestic counterparts. As Robertson J has stated:

It is illuminating … to note the recognition (at a time when the rule against hearsay was rigid in national courts) that prosecution of war crimes would require a much broader evidential canvas and that the introduction of relevant background information should not be constrained by artificial rules developed in [the] context of trial by jury.6

The right to a fair trial provides the important constraining element and international tribunals have proceeded hesitantly with the result that a coherent body of principles has been slow to develop. Consequently, the full potential of the doctrine of judicial notice is only just starting to be realized. At the same time, efforts to realize this potential in the face of external pressure to bring the work of ad hoc tribunals to a speedy conclusion place the spotlight more centrally on the protection of the rights of the accused. Developments related to the Rwandan genocide demonstrate that a workable framework for judicial notice in complex areas has yet to be established.

(p. 697) 2.  Comparison of Rules

2.1  Judicial notice at four international courts

The Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the ICTR contain identical provisions on judicial notice in their respective Rule 94:7

  1. (a)  A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.

  2. (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.

The Rules of Procedure and Evidence of the Special Court for Sierra Leone (SCSL) contain an identically worded Rule 94(A) and a virtually identical Rule 94(B).8 Therefore, the practice of these three tribunals can readily be compared.

Interestingly, despite the growing jurisprudence in relation to the common Rule 94 and the very limited perceived need for any amendments at plenary sessions of the judges, the Statute and Rules of Procedure and Evidence of the International Criminal Court (ICC) do not place an equivalent emphasis on judicial notice. Article 69(6) of the ICC Statute provides under the heading ‘Evidence’ that, ‘The Court shall not require proof of facts of common knowledge but may take judicial notice of them.’

There is no equivalent to Rule 94(B) and the relationship between the ‘shall’ and the ‘may’ in Article 69(6) is not immediately evident. Nonetheless, the practice of the ad hoc tribunals will be a useful guide to the application and scope of Article 69(6) of the ICC Statute.

2.2  Judicial notice distinguished

It is important to distinguish judicial notice from a number of related concepts. First, while a chamber may consider itself bound by admissions or agreed facts, such admissions or agreed facts do not necessarily constitute facts of common knowledge qualifying for judicial notice and may not be treated as ‘adjudicated’ for the purposes of Rule 94(B). As stated in the Semanza case, ‘facts that are voluntarily admitted by an accused in the context of a proceeding are not the proper (p. 698) subject of judicial notice because such admissions speak neither to the general currency of the fact nor to its indisputable character.’9 It has been noted that even if agreed facts derive from a previous judgment, this does not affect their characterization as agreed rather than adjudicated facts.10

Rule 94, therefore, is to be distinguished from Rule 65ter(H) of the ICTY Rules11 which provides that the pre-trial judge shall record the points of agreement and disagreement between the parties on matters of law and fact. In general, parties are encouraged to agree to facts as far as possible and as early as possible, although often such encouragement by the chamber is with limited success.12 The scope of agreed facts is only limited by the willingness or ability of the parties to take issues out of contention and therefore this category is broader than judicial notice.

Another distinguishing aspect is that judicial notice does not relate to propositions of law or legal principles ‘available for the court to apply to the facts in evidence in order to produce conclusions necessary for the determination of guilt or innocence.’13 Strictly, judicial notice is confined to facts, even if legal conclusions may be drawn from them. However, the distinction is not always so easy to draw in practice.14 In the Semanza Decision, the Trial Chamber took judicial notice of some of the factual elements constituting, for example, crimes against humanity, and the legal characterization of the conflict (a matter that other trial chambers had declined to notice15) while finding that it could not take judicial notice of matters that were ‘unadorned legal conclusions.’16 In the Karemera Appeal Decision, the Chamber noted that while phrases such as ‘widespread and systematic attack against a civilian population’ and ‘armed conflict not of an (p. 699) international character’ had legal meanings, they nonetheless described factual situations and could constitute facts of common knowledge.17

The question is not whether a proposition is put in legal or layman’s terms (so long as the terms are sufficiently well defined such that the accuracy of their application to the described situation is not in doubt). The question is whether the proposition can reasonably be disputed.18

Finally, judicial notice is distinguishable from the reception of written witness statements or other information in lieu of oral testimony pursuant to Rule 92bis of the ICTY and ICTR Rules and the broader Rule 92bis of the SCSL Rules.19 The latter rule provides that the information must be relevant to the purpose for which it is submitted and its reliability must be susceptible of confirmation.

3.  Facts of Common Knowledge

Facts of common knowledge ‘encompasses facts that are not reasonably subject to dispute: in other words, commonly accepted or universally known facts, such as general facts of history or geography or the laws of nature.’20 The category 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.’21 According to the ICTR Appeals Chamber, ‘notorious historical events and phenomena, such as, for instance, the Nazi Holocaust, the South African system of apartheid, wars, and the rise of terrorism’22 are covered. ‘Not subject to reasonable dispute’ means that the fact is generally known within the territorial jurisdiction of a court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be called into question.23

The SCSL Trial Chamber in the Norman et al case seemed to envisage a two-stage inquiry in the sense that first, a preliminary determination that a fact is one of common knowledge needs to be made and secondly, the court must proceed to a judicial evaluation of whether the fact merits the characterization of reasonably (p. 700) indisputable.24 However, as Ayoola J noted in his Separate Opinion on appeal, this is not envisaged by the wording of Rule 94(A). Ayoola J remarked that a judicially noticed fact was conclusive and not subject to rebuttal by evidence. ‘Once a court finds that a fact is a fact of common knowledge, it has subsumed in such finding a character of indisputability of that fact.’25

The SCSL Trial Chamber identified the requirements for judicial notice as follows:

  1. (a)  The facts are relevant to the case of the accused person.

  2. (b)  The facts are not subject to reasonable dispute.

  3. (c)  The facts do not include legal findings.

  4. (d)  The facts do not attest to the criminal responsibility of the accused.26

These requirements were not disputed before the Appeals Chamber.27

4.  Adjudicated Facts

The ICTY Appeals Chamber has stated that under Rule 94(A), the basis on which judicial notice is taken is that the material is notorious, whereas in the case of Rule 94(B), the basis is that the material, in the case of adjudicated facts, is the subject of an adjudication made by another chamber.28 An adjudicated fact relates to a fact in a trial upon which the judges have made a finding.

In accordance with the case law, in order for a chamber to consider a proposed fact to be an ‘adjudicated fact’ and therefore eligible for judicial notice, the fact must be truly adjudicated in the sense that:29

  1. (a)  it is distinct, concrete, and identifiable;

  2. (b)  it is relevant to an issue in the case at hand;

  3. (p. 701) (c)  it is in the same or substantially similar form as it was expressed by the Trial or Appeals Chamber;

  4. (d)  it is not unclear or misleading in the context in which it is placed in the moving party’s motion;

  5. (e)  it is identified with adequate precision by the moving party;

  6. (f)  it is restricted to factual findings of a Trial or Appeals Chamber and does not include characterizations that are of an essentially legal nature;

  7. (g)  it is not based on facts voluntarily admitted in a previous trial or on plea agreements in previous cases;

  8. (h)  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; and

  9. (i)  it does not have a direct bearing on the acts, conduct and mental state of the accused.

The further requirement that judicial notice must not impact on the right of the accused to a fair trial has been described as an essential safeguard for the application of the other criteria rather than an independent criterion for judicial notice.30 Notably, it has been found that the only facts of which a chamber may take judicial notice are those that constitute part of the factual findings in previous proceedings. On this basis, facts contained in the introductory part of a judgment or the historical context set out in some judgments, do not qualify.31

It is incumbent on the parties to identify with precision the facts sought to be judicially noticed.32

5.  Documentary Evidence

Article 21 of the Nuremberg Charter allowed the Tribunal to take judicial notice of ‘official government documents and reports of the United Nations, including (p. 702) the acts and documents of the committees set up in the various Allied countries for the investigation of war crimes,’ although very limited use was made of this provision in practice.33

The ICTY and ICTR have taken extensive judicial notice of UN documentation, including Security Council resolutions as public documents which ‘bear substantial authority.’34 In the Akayesu case, which was decided before the amendment of the rules to incorporate Rule 94(B), judicial notice was taken of a list of UN reports, which extensively documented the massacres which took place in Rwanda in 1994.35

The SCSL Appeals Chamber has taken the view that documents such as Security Council resolutions may not be judicially noticed for their contents as such. However, facts asserted within the reports of the UN or other reputable organizations can be the subject of judicial notice. The Appeals Chamber noted that this could not be achieved by noticing the contents of the whole report, which would contain numerous assertions, the majority of which might be irrelevant. Thus, the proper procedure would be for the moving party to extract the relevant propositions for judicial notice to be taken of them.36

Under Rule 94(B), there is no requirement that documentary evidence be ‘adjudicated.’ It is sufficient that the document was admitted into evidence. ‘[T]he Chamber in other proceedings does not need to have pronounced a specific and unchallenged or unchallengeable decision on the admissibility of the document,’37 but will have applied a criterion of reliability. The moving party must demonstrate how the documentary evidence sought to be judicially noticed is related to the matters at issue in the current proceedings.38

Often documents will be more suited to admission under Rule 92bis, particularly as worded in the SCSL Rules, or Rule 89(C) concerning the general admission of evidence. It has been noted that taking judicial notice of a document for its existence and authenticity only, as was done in the Semanza Decision and the Norman (p. 703) Trial Chamber Decision, serves a similar purpose to Rule 92bis.39 Robertson J has also observed that this ‘appears to be an exercise without obvious point’ and that a more effective approach would be to put the documents in evidence pursuant to Rule 92bis.40

6.  Mandatory or Discretionary Nature of Judicial Notice

Rule 94(A) is of a mandatory nature: ‘A Chamber … shall take judicial notice’ of facts of common knowledge. This has been confirmed by the Appeals Chamber of both the ICTY and ICTR. In the Karemera Appeal Decision, the ICTR Appeals Chamber cited the Semanza Appeal Judgment with approval as follows: ‘As the ICTY Appeals Chamber explained in Prosecution v. Milošević, Rule 94(A) “commands the taking of judicial notice” of material that is “notorious.” ’41

In contrast, judicial notice under Rule 94(B) is discretionary.42 In the exercise of a chamber’s discretion, factors that may be taken into account include whether the facts will be of such a large number as to compromise the principle of a fair and expeditious trial, and whether the facts are ‘too broad, too tendentious, not sufficiently significant, too detailed, too numerous, repetitive of other evidence already admitted by the Chamber, or not sufficiently relevant to the case’ so as to be excluded from the operation of Rule 94(B).43 While a chamber’s decision to take judicial notice might be based on factors such as whether this would advance consistent case law, judicial economy, or is otherwise in the interests of justice,44 a chamber retains a discretion to refuse to take judicial notice if the interests of justice, including the right of the accused to a fair trial, so require.45

The ICC’s Article 69 imports both a mandatory and a discretionary element. The Court shall not require proof of facts of common knowledge, so in that sense judicial notice is mandatory, but at the same time the Court has the discretion whether or not to take judicial notice, which presumably means that if the fact of common knowledge is not relevant to the case, judicial notice need not be taken of it.

(p. 704) 7.  Legal Effect of Judicial Notice

There has been a debate as to the legal effect of judicial notice, particularly under Rule 94(B). In the Semanza Decision, which was delivered just before the addition of Rule 94(B) to the rules, the Trial Chamber was of the view that judicially noticed facts shall serve as conclusive proof of those facts.46 Any other conclusion would ‘undermine the very nature of the doctrine which is aimed at dispensing with formal proofs for matters that are of common knowledge and reasonably indisputable.’47 This particular point was not raised directly on appeal. Indeed, if the possibility of a reasonable dispute exists then the fact should not be judicially noticed. The Appeals Chamber agreed with the lower court that the fact that a party places a fact in dispute does not mean that the fact cannot be found to be beyond reasonable dispute.48

In the Fofana Appeals Decision, the SCSL Appeals Chamber also held that ‘facts of common knowledge under Rule 94(A) cannot be challenged during trial.’49 In his Separate Concurring Opinion, Robertson J elaborated upon the point, stating that if a fact is beyond reasonable dispute, ‘[t]hat fact will thereafter be deemed incontrovertible in the proceedings. The only exception … is if fresh information subsequently comes into the hands of a party or to the notice of the court suggesting that the fact is questionable after all.’50 Robertson J went on to say, ‘[i]t follows that facts judicially noticed are for all intents and purposes invincible: no evidence in rebuttal is admissible. If it were, the doctrine would serve little purpose.’51

The position under Rule 94(B), after an uncertain period, is now settled in the jurisprudence. The ICTY Appeals Chamber held in the Milošević case that ‘by taking judicial notice of an adjudicated fact, a chamber establishes a well-found presumption for the accuracy of this fact, which therefore does not have to be proven again at trial, but which, subject to that presumption, may be challenged at that Trial.’52 The Appeals Chamber confirmed this position in the Nikolić case.53 This approach was followed, as the established position, by the Trial Chamber in the case of Prosecutor v. Prlić et al. In that case the Trial Chamber went on to say that ‘[a]s a party may challenge, at trial, a fact that has been judicially noticed, it follows that a Chamber is not restricted to taking judicial notice of facts that are not the subject of dispute between the parties.’54

(p. 705) This approach was challenged by Judge Hunt in his Dissenting Opinion appended to the Milošević Appeals Decision. He expressed the view that giving judicially noticed adjudicated facts the legal effect of a rebuttable presumption impermissibly relieved the prosecution of its burden of proof thereby violating the presumption of innocence. He found it to be ‘inappropriate to impose rebuttable presumptions of fact in favour of the prosecution in relation to the proof of its own case.’55 He emphasized that the phrase ‘judicial notice’ is used in both 94(A) and (B) and that the term must therefore be given the same effect under both subparagraphs, namely that a judicially noticed adjudicated fact is conclusive and that evidence cannot be admitted to refute it. As a consequence, according to Judge Hunt, the judicially noticed fact under both subparagraphs must not be the subject of reasonable dispute.56

Robertson J, while not stating a conclusive opinion on this point, suggests that the interpretation advocated by Judge Hunt is logical:

It has sometimes been suggested that judicial notice merely shifts the burden of proof or creates a ‘well found presumption’ of truth, but logically this cannot be the case, certainly with facts noticed judicially under Rule 94(A). Facts judicially noticed must be given their full evidential weight and may be used by any party as a basis for submissions or inferences or arguments.57

While Judge Hunt’s approach has a certain attraction, in that it achieves consistency within the concept of judicial notice, his reasoning may be challenged in two main respects. First, his focus is exclusively on the presumption of innocence and the inappropriateness of any burden of proof being shifted to the defence. However, this ignores the fact that both prosecution and defence are entitled to bring motions for judicial notice and it is not exclusively a tool available to the prosecution to assist in proving its case. As noted by Robertson J:

[j]udicial notice is not, most emphatically, a prosecution tool that must be ‘balanced’ or ‘weighed’ against countervailing rights to a fair trial: it is a procedure that can and should also be used by defendants to simplify a task which might otherwise be beyond their resources.58

Moreover, a Trial Chamber may decide to take judicial notice of adjudicated facts proprio motu and this may be of benefit to the case of either party. Secondly, it is unlikely that Rule 94(B) would have the desired effect of promoting judicial economy and narrowing the factual issues if judicial notice could only be taken of adjudicated facts that are not the subject of reasonable dispute. As Judge Shahabuddeen pointed out in his Separate Opinion appended to the Milošević Appeals Decision:

If there is no right of rebuttal, the consequence is that, as a result of the judicial notice, the opposing party would be bound by the adjudicated fact without an (p. 706) opportunity to dispute it with new evidence. The undesirability of this, particularly in a criminal case, cannot be overstated. The adjudicated fact may be important to the outcome of the case.59

Thus, if judicial notice of adjudicated facts is to be a workable tool notwithstanding the need, precisely in the interests of the presumption of innocence, for any previous decision to be open to consideration in the light of any new facts in the later case, it is best interpreted as generating a presumption that may be challenged.

In the Blagojević case,60 the Trial Chamber noted that although the Milošević Appeals Decision had resolved the split of authority regarding the legal consequences of taking judicial notice of adjudicated facts, it did not specifically address the question whether a proposed fact must be beyond reasonable dispute in order for judicial notice to be taken. The Trial Chamber did not proceed to answer this question; however, the conclusion must be that facts need not be beyond reasonable dispute to fall within the ambit of Rule 94(B). This follows both from the creation of a challengeable presumption and the logical understanding of facts of common knowledge under Rule 94(A) as being equivalent to facts that are beyond reasonable dispute.

This interpretation of the legal effect of judicial notice under Rule 94(B) raises the question whether the term ‘judicial notice’ is apt to describe the process of using adjudicated facts in subsequent proceedings. While the use of adjudicated facts fulfils some of the same purposes as judicial notice of facts of common knowledge, placing both concepts under the same heading tends to dilute the general understanding of judicial notice.61 In this respect the ICC may benefit from the single concept of judicial notice of facts of common knowledge that appears in the Statute while permitting the concept of adjudicated facts to take on an identity of its own.

(p. 707) 8.  Protection of the Rights of the Accused

A fact that attests directly or indirectly to the criminal responsibility of the accused cannot be judicially noticed under Rule 94(A). This is a necessary and well accepted consequence of the right to a fair trial which includes the presumption of innocence and the right to examine witnesses. It also reflects the principle that if an accused pleads not guilty, there can be no facts directly related to his criminal responsibility that are so notorious as to meet the standard under Rule 94(A). In the Semanza Decision the Trial Chamber stressed that it was drawing no impermissible inferences regarding the accused’s involvement in those matters of which it took judicial notice. ‘The burden of proving the Accused’s guilt, therefore, continues to rest squarely upon the shoulders of the Prosecutor for the duration of the trial proceeding. The critical issue is what part, if any, did the Accused play in the events that took place.’62 The Trial Chamber went on to stress:

By taking judicial notice … the Chamber merely provides a backdrop—a blank canvas—against which the Prosecutor 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.63

In his Separate Opinion to the Fofana Appeals Decision, Robertson J mirrored the view of the Trial Chamber in Semanza:

The doctrine of judicial notice does not and cannot relieve the Prosecution of proving the elements of the offence. The defendant, by pleading ‘not guilty’, puts in issue his mens rea or guilty mind which cannot in consequence be the subject of judicial notice. He also puts in issue the actus reus, i.e. that description of offending conduct to which the court must be satisfied that his actions amount. Judicial notice may be taken of facts which are relevant to characterise his actions, but those actions themselves must be proved by evidence. In practice, any fact which is within the knowledge of the defendant, but which he denies, cannot be made the subject of judicial notice: his denial must be accepted by the court as indicative that the alleged fact is reasonably disputable if only because the defendant himself disputes it and intends to do so on oath or affirmation or to call witnesses to dispute it.64

More specifically with regard to Rule 94(B), the Trial Chamber in the Karemera case had concluded that it could not take judicial notice of certain adjudicated facts because those facts went directly or indirectly to the guilt of the accused.65 (p. 708) This had been the general approach of the trial chambers. For example, in the Stanković case, it was stated that:

The Chamber agrees with the Defence that great caution should be exercised when assessing whether to admit adjudicated facts according to Rule 94(B) of the Rules, lest the right of the accused to a fair trial be compromised. The request for judicial notice should be dismissed if related to adjudicated facts which, directly or indirectly, tend to incriminate the Accused.66

However, in the Karemera Appeals Decision, the Appeals Chamber stated that it had never found this to be the position under Rule 94(B) and did not agree with this approach on the basis that it would render Rule 94(B) a dead letter. According to the Appeals Chamber, judicial notice under Rule 94(B) would in fact only be available for adjudicated facts that do bear on the criminal responsibility of the accused because if they are not related to criminal responsibility, they are simply not relevant at all.67 The Appeals Chamber noted some exceptions to its categorical statement in a footnote, namely facts bearing on the Tribunal’s jurisdiction such as the location of territorial boundaries.68

The Appeals Chamber went on to square its observations with the presumption of innocence. It had previously noted that it would ‘plainly be improper’ for facts judicially noticed to be the basis for proving criminal responsibility in the sense of being sufficient in themselves to establish responsibility.69 It went on to explain that Rule 94(B) did not shift the ultimate burden of persuasion but only the initial burden of production, although it was recognized that even this limited shifting of the burden had implications for the accused’s procedural rights. As a result, the Appeals Chamber considered that judicial notice should not be taken of adjudicated facts relating to the acts, conduct and mental state of the accused.70 The Appeals Chamber was satisfied that this interpretation struck the appropriate balance between the procedural rights of the accused and the interest of expediency. Furthermore, it noted what was described as a ‘reliability concern’ in relation to adjudicated facts from other cases bearing specifically on the actions, omissions or mental state of an individual not on trial in those cases, where the facts may not have been challenged appropriately.71 Finally, the Appeals Chamber drew a comparison with Rule 92bis of the ICTY Rules which is similarly interpreted to exclude any written statement which goes to proof of the acts and conduct of the accused, and concluded that facts related to the existence of a joint criminal enterprise and the conduct of its members other than the accused, as well as facts related to the conduct of physical perpetrators of a crime for which the accused is being held criminally responsible through some other mode of liability, could (p. 709) potentially be judicially noticed. The Trial Chamber nevertheless retained its discretion to determine consistency with the rights of the accused with reference to the circumstances of a particular case.

The position taken by the Appeals Chamber does not on its face differ radically from the approach of the trial chambers but requires a more careful and detailed exercise of discretion that clearly distinguishes facts that relate indirectly to criminal responsibility from those that directly establish such responsibility. It may prove easier to accomplish this task in theory than in practice. Moreover, since international tribunals rely heavily on inferences, in particular as it concerns findings related to the mental element for crimes such as genocide, there is a danger that a judicially noticed fact could end up forming the basis for a conviction.

A related and broader issue is how to balance the rights of the accused with the underlying purpose of judicial notice which has repeatedly been held to be to promote judicial economy. In the case of Momir Nikolić v. Prosecutor, the ICTY Appeals Chamber, citing a number of Trial Chamber decisions, stated that ‘[w]hen applying Rule 94 of the Rules, a balance between the purpose of taking judicial notice, namely to promote judicial economy, and the fundamental right of the accused to a fair trial must be achieved.’72 However, the aim is surely to protect the fundamental right to a fair trial while improving judicial economy rather than to balance one against the other as equally fundamental interests. Indeed, the added efficiency and expeditiousness of allowing judicial notice to be taken under carefully controlled circumstances also feeds into the accused’s right to a fair and expeditious trial without undue delay. In the Krajišnik case, the Trial Chamber recognized the importance of judicial economy as one of the procedural legal principles of the ICTY based on Articles 20(1) and 21(4)(c) of the Statute but emphasized that ‘its first concern is always to ensure that the Accused is offered a fair trial. As long as this principle is accomplished, the Chamber is under a duty to avoid that unnecessary time and resources are wasted on unnecessary disputes.’73 Robertson J has observed in a similar vein that:

Expedition and economy may be the result of judicial notice, but the purpose of the Rule is rather to promote a fair trial for all parties both by relieving them of the burden of proving facts that have been convincingly established elsewhere and by enabling the tribunal to take into account in its decision the full panoply of relevant facts currently available in the world.74

Another question is whether judicial notice does in fact result in expedition and economy so as to promote a fair trial. The potential for injustice where the (p. 710) prosecution puts forward hundreds of adjudicated facts for notice as part of a motion that must be responded to and decided ‘all in the interests of judicial economy’ is self-evident.75 In the Krajišnik case, the defence complained of a risk of oppression where the prosecution sought admission of large numbers of adjudicated facts. The defence argued quite reasonably that it needed to understand fully the significance of each fact for the prosecution case, as well as the nature of the charges and evidence in the previous trial and the reasons why a particular fact was not challenged on appeal. As a result, the defence asked that the procedure be used sparingly.76 The Trial Chamber took these arguments seriously and noted that:

the ‘wholesale nature of the application to admit [a large number of facts] is capable of offending the principle of a fair trial, enshrined in Article 20 and 21 of the Statute of the Tribunal.’ Moreover, since the admission of an adjudicated fact only creates a presumption as to its accuracy, the admission may consume considerable time and resources during the course of the proceedings, thereby frustrating, in practice, the implementation of the principle of judicial economy.77

The Chamber found there to be some merit in the defence argument as to a ‘severe risk of oppression’ due to the high number of adjudicated facts constituting elements of highly detailed descriptions of minor incidents and reminded the prosecution that proposed adjudicated facts should be kept within a manageable size.78 This is increasingly important, since with the continually growing pool of adjudicated facts there is a risk that overuse of Rule 94(B) will lead to its very purpose being undermined.

9.  Developments in Practice

9.1  ICTR

It is evident from the extensive jurisprudence relating to the legal principles applicable to judicial notice that it has become a widely used tool in practice. Perhaps the most significant development is the decision of the ICTR Appeals Chamber on 16 June 2006 to take judicial notice of the fact that ‘[b]etween 6 April 1994 and 17 July 1994, there was a genocide in Rwanda against the Tutsi ethnic group.’79

The prosecutor had on several occasions sought judicial notice of the fact of genocide in Rwanda. In the Akayesu Judgment, the first judgment given by the tribunal, it was determined that genocide had been committed against the Tutsi as a group in Rwanda in 1994, but that this fact could not influence the Trial Chamber in its decisions as to (p. 711) the individual criminal responsibility of the accused for the crimes with which he was charged.80 A similar position was taken in the Kayishema case.81 In that case the Trial Chamber found the question of whether genocide took place in Rwanda in 1994 as being one of general importance to the case, and one that could be regarded as settled in view of the many reports confirming the occurrence of genocide. However, the Trial Chamber considered the question to be so fundamental to the case against the accused that it felt obliged to make a finding of fact on this issue.82

In the Semanza Decision, the Trial Chamber, being guided by the Akayesu Judgement, took judicial notice that:

The following state of affairs existed in Rwanda between 6 April 1994 to 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.83

Again, however, the Trial Chamber found that the question of the occurrence of genocide was so fundamental that formal proof at trial was necessary.84

Subsequent cases demonstrated a reluctance to notice facts that acknowledged the existence of genocide on a national scale in Rwanda.85 In the Ntakirutimana case, the Trial Chamber declined to take judicial notice pursuant to Rule 94(B) of any adjudicated facts relating to the existence and execution of a genocidal plan. This was on the basis that some of the facts derived from guilty pleas or admissions, and that, in relation to the findings in Akayesu and Kayishema, ‘the cited conclusions are … inferences from findings relating to charges of genocide brought against the three accused, in those two cases, as individuals’86 while the Ntatikirutimana Chamber was being asked to take notice of the modus operandi and execution of a genocidal plan. Judicial notice of these facts was also found to have the potential to compromise the accused’s defence, since the defence disputed the theory that genocide, or a single genocide, had occurred. Furthermore, the Trial Chamber questioned how the existence of a genocidal plan in Rwanda as a whole would assist the assessment in the case under consideration.87 In the Kajelijeli (p. 712) case, the Trial Chamber refused to take judicial notice of a substantially similar fact to the one judicially noticed in Semanza because it found that judicial notice of organized widespread and systematic attacks would amount to a finding that conspiracy to commit such attacks existed which was reasonably disputed by the defence.88 As a result it has been noted that ‘the case law seems to show that no Trial Chamber asked to recognise the genocide as a fact of common knowledge, regarded the question as being incapable of adjudication.’89

The Trial Chamber in Karemera had found as follows:

[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 Prosecution’s 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 Prosecutor’s obligation to prove his case.90

The Appeals Chamber, overturning the Trial Chamber, ruled in determined language that the ‘fact of the Rwandan genocide is a part of world history … a classic instance of a “fact of common knowledge.” ’91 The Appeals Chamber pointed to the contradictory nature of the Trial Chamber’s reasoning and confirmed that the question whether genocide occurred in Rwanda was of relevance to the prosecution’s case in that it provided the context for understanding the individual’s actions. In relation to the prosecutor’s obligation to prove his case, the Appeals Chamber noted that the ‘Prosecution must, of course, 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.’92

The Appeals Chamber’s decision was hailed in a press release as having an immediate impact on all current and pending trials before the ICTR and as silencing the ‘rejectionist camp’ which had been disputing the occurrence of genocide.93 Nonetheless, it raises some questions of interpretation that may impact upon future decisions to take judicial notice of genocide. In the first instance, as argued by the defence, the existence of genocide is essentially a legal determination. The Appeals Chamber maintained that ‘the term “genocide” is not distinct from other legal terms used to characterise factual situations, such as “widespread or systematic” or “not of an international nature”, which the Appeals Chamber in Semanza (p. 713) already held to be subject to judicial notice under Rule 94(A).’94 This proposition was followed by an ICTY Trial Chamber which confirmed that whether a fact proposed for judicial notice under Rule 94(A) is a legal qualification is immaterial when it also describes a factual situation, and further, that there is no exception to the application of the rule when a fact proposed for judicial notice constitutes an element of an offence charged in the indictment.95

The more appropriate analogy would be between ‘genocide’ and ‘crimes against humanity’ rather than ‘genocide’ (incorporating a full legal definition) and an element of the notion of crimes against humanity. When construed in this broad sense the actual impact of the Karemera Decision on the determination of individual criminal responsibility in future cases appears quite limited as it could be interpreted to relate to genocide more as an historical, sociological or anthropological phenomenon. Indeed, it is only in this sense that genocide may be viewed as describing a factual situation divorced from its legal elements.96

On the other hand, the Appeals Chamber not only found the issue of whether genocide occurred in Rwanda to be of ‘obvious relevance’97 to the prosecution’s case, but also stated that the existence of the genocide ‘may … provide the relevant context for other charges against the Accused.’98 When these statements are considered together with the pronouncements in Akayesu that ‘specific intent … is a mental factor which is difficult, even impossible, to determine’ and that ‘it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others,’99 the Karemera Appeal Decision has potentially a very broad reach.

ICTR trial chambers in subsequent cases have not dwelt on the implications of taking judicial notice of genocide. In the judgment in the Muvunyi case,100 the Trial Chamber simply noted that the Appeals Chamber had taken judicial notice of certain facts, including that genocide took place in Rwanda between 6 April and 17 July 1994, and similarly took judicial notice of those facts, pointing out that it would disregard any evidence to the contrary. The important disclaimer (p. 714) was that ‘this does not relieve the Prosecution of its burden to lead evidence to prove beyond reasonable doubt that the Accused’s conduct and mental state rendered him individually responsible for genocide and crimes against humanity as charged in the Indictment.’101 In the judgment in the Rwamakuba case,102 the Trial Chamber observed, with reference to the finding of the Appeals Chamber, that the fact of genocide in Rwanda was a notorious fact not subject to reasonable dispute and that the defence had not disputed it. Again, the Trial Chamber was at pains to point out that the prosecution must still demonstrate that the conduct and mental state of an accused establishes his responsibility for genocide, and that ‘[t]he Tribunal’s contribution in this area is by conducting impartial criminal proceedings where the burden of proving the guilt of an individual accused is on the Prosecution.’103 The Trial Chamber in the Rukundo case offered no further elaboration, and noted that the Appeals Chamber had reasoned that the notoriety of the fact of the genocide was confirmed by ‘multiple Appellate and Trial Chamber Judgments of the Tribunal’ as well as other documents. The Trial Chamber suggested that with respect to notorious facts, Rule 94(A) trumped Rule 89(C) dealing with the admission of any relevant evidence deemed to have probative value.104

The ease with which the trial chambers have embraced the Appeals Chamber’s decision may be linked to the fact that evidence of the genocidal context had generally been regarded as relevant and admissible under Rule 89(C), and therefore the actual impact on the decision-making process in individual cases was insignificant. Therefore, judicial notice of the genocide has been regarded in a practical manner as advancing judicial economy by focusing the parties and judges’ attention on the precise allegations in the indictment.

This practical reaction to the Karemera Decision goes some way to meeting academic disconcertion with the Appeals Chamber’s reasoning which has centred on the irrelevance of a nationwide campaign of genocide to proof of individual criminality as well as the danger of prejudice if such a campaign is permitted to serve some probative purpose as providing the context for the accused’s acts.105 The broader implication of the decision for the establishment of a historical record in cases of mass atrocities has also been noted in the literature.106

(p. 715) An alternative and perhaps preferable approach would have been to take judicial notice of genocide as an adjudicated fact pursuant to Rule 94(B).107 Even though the effect would be to create a rebuttable presumption that genocide occurred, it is unlikely that this fact could effectively be disputed. The Appeals Chamber in Karemera noted that not even the accused had claimed that genocide might not have occurred in Rwanda in 1994.108 While it is true that reports indicating that genocide occurred in Rwanda were a key impetus for its establishment, the Tribunal was established precisely to determine in a legal sense whether genocide occurred and who was individually criminally responsible for acts of genocide. 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 could be regarded as undermining previous case law and contradicting (rather than reaffirming) one of the reasons for its establishment. However, despite the finding of the occurrence of genocide on a national scale in the Akayesu and Kayishema109 cases, trial chambers have not recognized genocide as an adjudicated fact.110 It seems that the finding in Akayesu has unfairly been relegated to the status of a fact forming part of the ‘historical context’ that does not qualify as ‘truly adjudicated.’ Notably, the Appeals Chamber in Karemera found support for its position that the genocide in Rwanda was a fact of common knowledge in the preceding jurisprudence establishing that genocide occurred on a national level, and this was highlighted by the Trial Chamber in Rukundo. This results in a blurring of the distinction between Rule 94(A) and Rule 94(B) in the sense that the finding that genocide had occurred on a national level, which had withstood an appeal, helped to justify the finding many years later that the fact of genocide was so notorious as to be beyond dispute.

9.2  ICTY

Motions for judicial notice of adjudicated facts, in particular, have been made almost as a matter of course at the ICTY in view of the large pool of adjudicated facts now available. The principles set out in the landmark Karemera Appeal Decision have been further elucidated in ICTY jurisprudence.111 In the case of (p. 716) Dragomir Milošević, the ICTY Appeals Chamber considered a number of issues raised in an appeal by both parties against the Trial Chamber’s decision on a prosecution request for judicial notice of facts adjudicated in the Galić case.112 The proposed adjudicated facts pertained to the deliberate targeting of civilians by forces of the Sarajevo Romanija Corps (SRK) under the command of Galić in the time period preceding the indictment period in the Dragomir Milošević case. Addressing first the defence argument that the proposed facts lacked relevance, the Appeals Chamber held that even though the facts fell outside the time period of the indictment they were nonetheless relevant as Milošević was charged with inheriting a campaign of shelling and sniping when he succeeded Galić as commander of the SRK and furthering that campaign through his own conduct. As far as the prosecution appeal was concerned, the Appeals Chamber upheld the finding in Karemera that it is prohibited to take judicial notice of adjudicated facts relating to the acts, conduct and mental state of the accused, and explained that:

This means that, when an accused is charged with crimes committed by others, while it is possible to take judicial notice of adjudicated facts regarding the existence of such crimes, the actus reus and the mens rea supporting the responsibility of the accused for the crimes in question must be proven by other means than judicial notice.113

It was held that establishing the existence of the crimes committed by Galić did not imply that Milošević had knowledge of their commission; the prosecution would still be required to demonstrate beyond reasonable doubt that Milošević knew of the campaign under Galić’s command, supported its continuation when he took over command, and failed to prevent or punish the crimes subsequently committed. This was a significant reversal of the Trial Chamber’s cautious approach, which appeared concerned with the extent to which inferences as to Milošević’s notice of the crimes might in effect shift the burden of proof to the accused.

The Appeals Chamber went on to confirm that it is irrelevant under Rule 94(A) whether the fact in question is defined by terms with a legal meaning as long as those terms describe factual situations and are not subject to reasonable dispute.114 Similarly, it was emphasized that while legal conclusions from past proceedings should not be imported under Rule 94(B), the question whether a fact contains findings of an essentially legal nature, thereby requiring its exclusion, is a matter to be determined on a case-by-case basis.115 The Trial Chamber in the Karadžić case has indicated that: ‘While a finding is legal when it involves interpretation or (p. 717) application of legal principles, many findings have a legal aspect, if this expression is interpreted broadly.’116

Prosecution motions for judicial notice at the ICTY are common, but such motions have sometimes also been brought by the defence. For example, in the Hadžihasanović case, the defence requested judicial notice of certain facts which would provide the Chamber with information about the context and circumstances in which the two accused carried out their functions as high-ranking commanders. The Chamber found that a number of the facts met the requirements for judicial notice but questioned their relevance. Ultimately it was decided to admit them on the basis of their relevance to the historical, political and military context at the material time in the case.117

In the case of Mico Stanišić, a defence motion and two prosecution motions for judicial notice were considered in a single decision which related to two proposed facts under Rule 94(A) and 951 proposed facts under Rule 94(B).118 The case demonstrates the cautious approach still taken under Rule 94(A) in spite of the Karemera Appeal Decision. The Trial Chamber refused to take judicial notice of the fact that a state of armed conflict existed in Bosnia and Herzegovina from April to 31 December 1992, finding the sources relied upon by the prosecution insufficient to demonstrate the notoriety and indisputability of the fact. The Trial Chamber in addition refused to take judicial notice of the existence of a widespread or systematic attack against the Bosnian Muslim and Bosnian Croat civilian population on the territory of Republika Srpska, noting that the jurisprudence of the Tribunal did not thus far include a finding that the widespread or systematic attack in Bosnia in 1992 was a fact of common knowledge and declining to extend the law in this respect on the basis of the evidence put forward by the prosecution. However, dozens of facts were admitted as adjudicated facts under Rule 94(B). The Trial Chamber affirmed the nine established requirements for a fact to be judicially noticed under Rule 94(B) and stressed that even where these were satisfied, it retained a discretion to withhold taking judicial notice if this would not serve the interests of justice.119

9.3  Special Court for Sierra Leone

Facts of common knowledge were judicially noticed at an early stage in the proceedings before the Special Court for Sierra Leone at the initiative of the prosecution. The approach of the prosecution was to base its judicial notice motions on its ‘request to admit facts’ presented to the defence. While it proved difficult for (p. 718) the parties to agree facts, the trial chambers took judicial notice of a number of facts of common knowledge, for example that the armed conflict in Sierra Leone occurred from March 1991 until January 2002.120

The Trial Chamber’s decision in the Norman et al case to judicially notice the positions held by each accused at the relevant time was overruled on the basis that since each accused was charged with superior responsibility, it was necessary to prove the specific position held at trial.121 The Appeals Chamber also found that to say that the accused were required to comply with the Geneva Conventions was a matter of legal conclusion to be drawn on an application of the law to the facts which would include the factual situation of armed conflict that had correctly been judicially noticed.122

With the rendering of its first judgments, the Special Court for Sierra Leone was poised to consider applications for judicial notice of adjudicated facts. In contrast to the trend at the ICTY, it was the defence that brought the initial motions for judicial notice under Rule 94(B) of the Special Court’s rules. A request by the Sesay defence for judicial notice to be taken of adjudicated facts from the completed AFRC and CDF cases was dismissed in its entirety. The Trial Chamber relied upon jurisprudence from the ICTY and ICTR in determining the legal requirements for judicial notice of adjudicated facts and found that certain of the proposed facts failed to meet these requirements. However, its decision not to exercise its discretion to take judicial notice was based primarily on the ‘overriding consideration’ of whether taking judicial notice would promote judicial economy while ensuring that the trial is fair, public and expeditious.123 In the circumstances, the late stage of the application (where virtually all of the evidence in the case had been presented) and the fact that trial fairness would require that the prosecution be given the opportunity to call rebuttal evidence, meant that taking judicial notice would prolong the proceedings and ‘needlessly complicate the evidentiary record.’124 It was found that ‘[a]bove all, it would be counterproductive in terms of promoting judicial economy.’125

The Trial Chamber in the Taylor case granted in part a defence motion for judicial notice of adjudicated facts from the AFRC case, including facts related to the involvement of the RUF in the Freetown invasion—a central issue in the case.126 Notably, in the circumstances the Trial Chamber was not perturbed by (p. 719) the timing of the motion, which was brought after the close of the prosecution’s case but before the commencement of the defence case. It was found that Rule 94(B) is not limited to the pre-trial stage or to the prosecution case and that the judicially noticed facts could be challenged through cross-examination or by calling rebuttal evidence.127

The prosecution at the Special Court has made effective use of Rule 92bis, which allows a chamber to admit as evidence ‘information in lieu of oral testimony,’ to seek the admission into evidence of a large number of documents relevant to each case and initially relied upon as supporting evidence in its judicial notice motions. It has been recognized by the Trial Chamber that documentary evidence may be admissible if the facts therein are relevant, reliable and susceptible of confirmation.128 However, the Trial Chamber has stated that it is not prepared to wade through a mountain of materials in an effort to determine what is relevant as opposed to what are irrelevancies, opinions or legal findings.129 The procedure directed by the Trial Chamber consists of clearly indicating on each document the passages the moving party wishes the chamber to consider on the question of relevance.130 The relationship between Rule 89(C), providing for the admission of any relevant evidence, and Rule 92bis of the SCSL’s rules has since been revisited by the Appeals Chamber.131

9.4  ICC

In the Lubanga case before the ICC, the prosecution, pursuant to the Trial Chamber’s instructions, submitted a tentative list of admitted facts prior to the commencement of the trial proceedings with the aim of rendering it unnecessary to lead evidence on the issues contained in the proposed admissions.132 This formed part of a unique procedure for non-disclosure of protected information to the defence. The ICC Trial Chamber allowed certain alternatives to full disclosure including admissions of fact in relation to so-called ‘tu quoque evidence’ which reflected the recruitment and use of child soldiers by armed groups other (p. 720) than the groups at issue in the Lubanga indictment.133 The Trial Chamber found that such a procedure would place the defence in a more favourable evidential position than it otherwise would have been through full disclosure because of the ‘certainty’ provided by the admissions which were nonetheless deemed non-binding on the Chamber.134 Consequently, a number of admissions of fact were found to meet the prosecution’s disclosure obligations.

While the Lubanga case concerned admitted facts rather than judicial notice, the willingness to adopt novel approaches to the admission of evidence suggests that the ICC might be guided by the wealth of jurisprudence and experience in relation to adjudicated facts in future cases. Indeed, the goal of expediting cases while ensuring that no party is impaired in the presentation of its case renders almost inevitable a development of the jurisprudence on judicial notice by the ICC.

10.  Conclusion

Judicial notice has been seen to serve the dual and sometimes competing purposes of ensuring efficiency and consistency. As a practical matter, it has been suggested that the imposition of time limits on the filing of motions for judicial notice could help to promote efficiency.135 Ideally, the bulk of such motions should be made in the pre-trial stage to assist in the preparation of both prosecution and defence cases but such an approach does not exclude subsequent judicial notice motions on isolated issues during trial. A recommendation made in an assessment by the President of the ICTY of the progress made towards implementing the Tribunal’s completion strategy was greater use by trial chambers of adjudicated facts and documentary evidence from other proceedings under Rule 94(B).136 Judges were urged to reach decisions on the admissibility of such evidence at the pre-trial stage, a procedure that has been facilitated by a policy of trial scheduling which means that a case is transferred as soon as possible to the Trial Chamber that will actually hold the trial.137 It has been observed that Rule 94(B) is particularly useful in dealing with crime base evidence138 and this is especially true in (p. 721) international cases focused on senior leaders where the contention relates to the linkage evidence more than the crime base itself.

Despite the volume of jurisprudence that has been generated by the international criminal tribunals, the potential for inconsistency in the manner in which the legal principles are applied remains.139 A classic example has been whether judicial notice may be taken of the international or non-international nature of an armed conflict, although eventually the Appeals Chamber laid this issue to rest.140 It is important for trial chambers to have regard to the types of fact judicially noticed in other cases so as to achieve consistency and also to consider the taking of judicial notice proprio motu especially in cases where the parties are unsuccessful in agreeing facts.141 While each decision must be based on the circumstances of a particular case, the chambers should also be cognizant of the accomplishments of the respective tribunals as institutions, and the body of case law and historical record that will eventually be left behind.

This is particularly important where different institutions are defining in legal terms the same historical events. In the Krstić case the Appeals Chamber called ‘the massacre at Srebrenica by its proper name: genocide,’142 raising the potential for the fact of genocide in Srebrenica to be considered as an adjudicated fact in subsequent proceedings related to Srebrenica.143 The International Court of Justice (ICJ), in its judgment in the Case Concerning the Application of the Genocide Convention (Genocide Case),144 declined however to take judicial notice of any of the facts surrounding the genocide at Srebrenica despite being urged to do so in the pleadings on behalf of Bosnia. This was appropriate in the circumstances as the core issues contested by the respondent included whether the specific intent existed and whether the acts complained of could be attributed to the state. Nevertheless, the ICJ gave considerable weight to adjudicated facts from the ICTY.145 As a consequence of the ICJ judgment, two international courts have confirmed that the events in Srebrenica satisfy the legal definition of genocide.

(p. 722) Trial chambers do not appear to have struggled with the modalities of determining individual criminal responsibility against the backdrop of the judicially noticed fact of genocide in Rwanda. It is questionable whether taking judicial notice in that case has resulted in greater efficiency in subsequent cases despite giving commonly reviewed facts a definitive interpretation. Consistency is relevant both within the factual context of a single tribunal and more broadly, and the Appeals Chamber’s decision has invited a wider debate over the issue of which notorious historical events attracting the label ‘genocide’ are not reasonably open to dispute and which must be subjected to legal scrutiny before acquiring an adjudicated characterization.

Footnotes:

*  The author wishes to thank Wolfgang Schomburg, Katherine Gallagher, Simon Meisenberg, and James Johnson for their comments on an earlier draft. The views expressed in this chapter are those of the author alone and do not necessarily reflect those of any organization.

1  Eden Toys Inc. v. Marshall Field and Co 675 F 2d 498 (2nd Cir.), 1982, n 1 (stating ‘The traditional features of a snowman are known generally and thus appropriate for judicial notice’).

2  Prosecutor v. Karemera (Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice Appeal) ICTR-98-44-AR73(C) (16 June 2006) [hereinafter ‘Karemera Appeal Decision’].

3  See James Stewart, ‘Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent’ (2003) 3 Intl Crim. LR 245, 246–7, n 8–9 (noting 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 ‘procedural mechanisms that dispense with the need to prove matters of established truth’).

4  Prosecutor v. Semanza (Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54) ICTR-97-20-T (3 November 2000) [hereinafter ‘Semanza Decision’] [20] (citing C. Tapper, Cross and Tapper on Evidence (8th edn, 1995) 78). Commenting on this rationale, J. Stewart has aptly noted that: ‘These aspirations are felt most acutely in international criminal jurisdictions, where assessment of personal responsibility requires the repetitive proof of a range of preliminary technicalities in the context of well founded criticism of the time taken to complete cases. Conversely, the dangers inherent in the exercise of judicial notice are also particularly pronounced in international trials since dispensing with formal proof risks undermining the prosecutorial burden to prove an accused’s guilt beyond reasonable doubt, breaching an accused’s right to present a full and public defence and crystallizing what are commonly held but inaccurate historical views born of war-time propaganda. ICL has sought to account for these competing agenda by facilitating greater use of judicial notice subject to specific safeguards.’ See J. Stewart, ‘Judicial Notice’ in A. Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford: OUP, 2009) 397.

5  Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (adopted 8 August 1945, entered into force 8 August 1945) 82 UNTS 279.

6  Prosecutor v. Norman (Decision on appeal against ‘Decision on Prosecution’s motion for judicial notice and admission of evidence’) SCSL-2004-14-AR73 (16 May 2005) (Robertson J) [hereinafter ‘Fofana Appeal Decision’] [6].

7  Paragraph (B) was added on 9–10 July 1998 with respect to the ICTY and 3 November 2000 with respect to the ICTR.

8  Rule 94(B) states: ‘At the request of a party or of its own motion, a Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Special Court relating to the matter at issue in the current proceedings.’

9  Semanza Decision (n 4 above) [4].

10  Prosecutor v. Blagojević (Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Documentary Evidence) IT-02-60-PT (19 December 2003) [hereinafter ‘Blagojević Decision’] [20].

11  Cf. Rule 69 of the ICC Rules which provides that ‘[t]he Prosecutor and the defence may agree that an alleged fact, which is contained in the charges, the contents of a document, the expected testimony of a witness or other evidence is not contested and, accordingly, a Chamber may consider such alleged fact as being proven, unless the Chamber is of the opinion that a more complete presentation of the alleged facts is required in the interests of justice, in particular in the interests of the victims.’

12  See Prosecutor v. Stakić (Judgment) IT-97-24 (31 July 2003) [966] (stating ‘[a]ll attempts to take judicial notice of adjudicated facts or to reach an agreement failed throughout the trial’; Prosecutor v. Prlić (Decision on Motion for Judicial Notice of Adjudicated Facts pursuant to Rule 94(B)) IT-04-74-PT (14 March 2006) [hereinafter ‘Prlić First Decision on Judicial Notice’] [13].

13  Fofana Appeal Decision (n 6 above) [10] (Robertson J).

14  See Stewart (n 3 above) 261–7, who argues that judicial notice should be capable of including underlying legal components.

15  See, eg, Prosecutor v. Simić (Decision on the Pre-Trial Motion by the Prosecution requesting the Trial Chamber to take Judicial Notice of the Nature of the Conflict in Bosnia and Herzegovina) IT-95-9 (25 March 1999) [4].

16  Semanza Decision (n 4 above) [35].

17  Karemera Appeal Decision (n 2 above) [29].

18  Ibid.

19  It has been noted that judicial notice must also be distinguished from res judicata although it is difficult to see how the two concepts could be confused. See John R. W. D. Jones and Steven Powles, International Criminal Evidence (3rd edn, Transnational/OUP, 2003) 8.5.727 referring to Simić (n 15 above).

20  Prosecutor v. Semanza (Judgment in Appeals) ICTR-97-20-A (20 May 2005) [hereinafter ‘Semanza Appeal Judgment’].

21  Semanza Decision (n 4 above) [25] cited in Fofana Appeal Decision (n 6 above) [21].

22  Karemera Appeal Decision (n 2 above) [30].

23  Semanza Decision (n 4 above) [24].

24  See Prosecutor v. Norman (Decision on Prosecution’s Motion for Judicial Notice and Admission of Evidence) SCSL-2004-14-PT (2 June 2004) [hereinafter ‘Norman Trial Chamber Decision’] [29].

25  Fofana Appeal Decision (n 6 above) [28] (Ayoola J).

26  Norman Trial Chamber Decision (n 24 above) [32(iv)].

27  See Fofana Appeal Decision (n 6 above) [28].

28  Prosecutor v. Milošević (Decision on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts) IT-02-54-AR73.5 (28 October 2003) [hereinafter ‘Milošević Appeal Decision’].

29  See generally Karemera Appeal Decision (n 2 above) [45]–[56]; Prosecutor v. Karadžić (Decision on First Prosecution Motion for Judicial Notice of Adjudicated Facts) IT-95-5/18-PT (5 June 2009) [hereinafter ‘Karadžić Decision on Judicial Notice’] [9]; Prosecutor v. Popović (Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts with Annex) IT-05-88-T (26 September 2006) [hereinafter ‘Popović Decision on Judicial Notice’]; Prosecutor v. Krajišnik (Decision on Third and Fourth Prosecution Motions for Judicial Notice of Adjudicated Facts) IT-00-39 (24 March 2005) [hereinafter ‘Krajišnik Decision on Judicial Notice’] [14]; Prosecutor v. Hadžihasanović (Final Decision on Judicial Notice of Adjudicated Facts) IT-01-47-T (20 April 2004); Blagojević Decision (n 10 above) [15]; Prosecutor v. Hadžihasanović (Decision on Judicial Notice of Adjudicated Facts Following the Motion Submitted by Counsel for the Accused Hadžihasanović and Kubura on 20 January 2005) IT-01-47-T (14 April 2005) [hereinafter ‘Hadžihasanović Decision on Judicial Notice’]; Prosecutor v. Milošević (Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts Relevant to the Municipality of Brcko) IT-02-54-T (5 June 2002) [3]; Prosecutor v. Kupreškić (Decision on the Motions of Drago Josipović, Zoran Kupreškić and Vlatko Kupreškić to Admit Additional Evidence Pursuant to Rule 115 and for Judicial Notice to be Taken Pursuant to Rule 94(B)) IT-95-16-A (8 May 2001) [6]; Prosecutor v. Ntakirutimana [hereinafter ‘Ntakirutimana Decision on Judicial Notice’], ICTR-96-17-T, [32]–[39], [54].

30  Prosecution v. Prlić (Decision On Prosecution Motions For Judicial Notice Of Adjudicated Facts Of 14 And 23 June 2006) IT-04-74-T (7 September 2006) [hereinafter ‘Prlić Second Decision on Judicial Notice’] [19].

31  See Prosecutor v. Bizimungu (Decision on the Prosecutor’s Motion and Notice of Adjudicated Facts) ICTR-99-50-T (10 December 2004) [hereinafter ‘Bizimungu Decision on Adjudicated Facts’] [14].

32  Ibid, [13].

33  See R. May and M. Wierda, International Criminal Evidence (New York: Transnational, 2002) 136 [4.102].

34  See, eg, Prosecutor v. Delalić (Judgment) IT-96-21-T (16 November 1998) [90]. The Trial Chamber did not state under which provision it noticed the documents.

35  Prosecutor v. Akayesu (Judgment) ICTR-96-4-T (2 September 1998) [hereinafter ‘Akayesu Judgment’] [165].

36  Fofana Appeal Decision (n 6 above) [49]. See also ibid, [28] (Robertson J) (stating ‘it is unacceptable for the court simply to adopt an entire resolution, invariably a mixture of posited facts, propositions of law, and opinions of the Secretary General or the powers that be in the Security Council’). Ibid, [51] (Ayoola J).

37  Prosecutor v. Bizimungu (Decision on Prosecution’s Motion for Judicial Notice Pursuant to Rules 73, 89 and 94) ICTR-99-50-I (2 December 2003) [35].

38  Prosecutor v. Nikolić (Decision on Appellant’s Motion for Judicial Notice) IT-02-60/1-A (1 April 2005) [hereinafter ‘Nikolić Decision on Judicial Notice’] [11].

39  Stewart (n 3 above) [260].

40  Fofana Appeal Decision (n 6 above) [27] (Robertson J).

41  Karemera Appeal Decision (n 2 above) [22].

42  Milošević Appeal Decision (n 28 above).

43  Prosecutor v. Mejakić (Decision on Prosecution Motion for Judicial Notice Pursuant to Rule 94(B)) IT-02-65-PT (1 April 2004) [6].

44  Bizimungu Decision on Adjudicated Facts (n 31 above) [12].

45  Hadžihasanović Decision on Judicial Notice (n 29 above) [3].

46  Semanza Decision (n 4 above) [41].

47  Ibid.

48  Semanza Appeal Judgment (n 20 above) [194], [197].

49  Fofana Appeal Decision (n 6 above) [32].

50  Fofana Appeal Decision (n 6 above) [8]–[9] (Robertson J).

51  Ibid.

52  Milošević Appeal Decision (n 28 above).

53  Nikolić Decision on Judicial Notice (n 38 above) [11].

54  Prlić First Decision on Judicial Notice (n 12 above). Similarly, the Trial Chamber in the Krajišnik case adopted the statement in Milošević: Krajišnik Decision on Judicial Notice (n 29 above) [13].

55  Milošević Appeal Decision (n 28 above) [6] (Judge Hunt).

56  Ibid, [9].

57  Fofana Appeal Decision (n 6 above) (Robertson J) [9].

58  Ibid, [15].

59  Milošević Appeal Decision (n 28 above) [14] (Judge Shahabuddeen). Judge Shahabuddeen set out four distinctions between Rule 94(A) and Rule 94(B) that give additional force to the argument that the legal effect need not be identical under the two subparagraphs: ‘First, unlike Rule 94(A), Rule 94(B) is discretionary: the Trial Chamber may or may not decide to take judicial notice. Second, the parties have a right to be heard before the Trial Chamber acts; under Rule 94(A) they have no such right, even though they may be accorded a privilege. Third, Rule 94(B) is based on the circumstance that the fact has been adjudicated in other proceedings or that the documentary evidence has been presented in those proceedings, even though the adjudicated fact or the documentary evidence does not relate to “facts of common knowledge” within the meaning of Rule 94(A) but rather to “matters at issue in the current proceedings.” Fourth, Rule 94(B) in consequence relates to a case in which evidence is necessary unless excluded by the taking of judicial notice; evidence is unnecessary in the case of Rule 94(A)’ [6].

60  Blagojević Decision (n 10 above) [17].

61  Notably, in German law, a distinction is drawn between offenkundigkeit (notoriousness) as a term covering ‘of common knowledge,’ and ‘judicial notice’ which applies where one or more judges of the deciding bench or another bench have established certain background information. In neither case can the fact relate to the acts or conduct of the accused. An accused may challenge the notoriety of facts.

62  Semanza Decision (n 4 above) [43].

63  Ibid, [47].

64  Fofana Appeal Decision (n 6 above) (Robertson J) [16].

65  Prosecutor v. Karemera (Decision on Prosecution Motion for Judicial Notice) ICTR-98-44-R94 (9 November 2005) [hereinafter ‘Karemera Decision on Judicial Notice’] [15].

66  Prosecutor v. Stanković (Decision on Prosecution’s Motion for Judicial Notice Pursuant to Rule 94 (B)) IT-96-23/2-PT (16 May 2003) [10].

67  Karemera Appeal Decision (n 2 above) [48].

68  Ibid, n 85.

69  Ibid, [47].

70  Ibid, [50].

71  Ibid, [51].

72  Nikolić Decision on Judicial Notice (n 38 above) [12]; Semanza Decision (n 4 above) [25] cited in Fofana Appeal Decision (n 6 above) [21].

73  Prosecutor v. Krajišnik (Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Admission of Written Statements of Witnesses Pursuant to Rule 92bis) IT-00-39 & 40 (28 February 2003) [11].

74  Fofana Appeal Decision (n 6 above) [15] (Robertson J).

75  See Prosecutor v. Ljubičić (Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts) IT-00-41-PT (23 January 2003).

76  Krajišnik Decision on Judicial Notice (n 29 above).

77  Ibid, [16].

78  Ibid, [22].

79  Karemera Appeal Decision (n 2 above) [33]–[37].

80  Akayesu Judgment (n 35 above) [126], [129].

81  Prosecutor v. Kayishema (Judgment) ICTR-95-1-T (21 May 2001) [hereinafter ‘Kayishema Judgment’].

82  Ibid, [273].

83  Semanza Decision (n 4 above) Annex A [2].

84  Ibid, [36].

85  See, eg, Prosecutor v. Nyiramasuhuko (Decision on the Prosecutor’s Motion for Judicial Notice and Admission of Evidence) ICTR-98-42-T (15 May 2002) [122]–[129]; Prosecutor v. Niyitigeka (Decision on the Prosecutor’s Motion for Judicial Notice of Facts) ICTR-96-14-T (4 September 2002) [3] (finding ‘[g]iven that there are no new facts that can be considered adjudicated by this Tribunal, the Prosecutor’s resubmission of items denied in the recent decisions does not contribute to judicial economy’; See generally Neelanjan Maitra, ‘A Perpetual Possibility? The International Criminal Tribunal for Rwanda’s Recognition of the Genocide of 1994’ (2005) 5 Intl Crim. LR 573, 573–99.

86  Ntakirutimana Decision on Judicial Notice (n 29 above) [43].

87  Ibid, [40]–[46].

88  Prosecutor v. Kajelijeli (Decision on the Prosecutor’s Motion for Judicial Notice Pursuant to Rule 94 of the Rules) ICTR-98-44A-T (16 April 2002) [19].

89  Maitra (n 85 above) 589.

90  Karemera Decision on Judicial Notice (n 65 above) [7].

91  Karemera Appeal Decision (n 2 above) [14].

92  Ibid, [37].

93  ICTR Appeals Chamber takes Judicial Notice of Genocide in Rwanda, ICTR Press Release ICTR/INFO-9-2-481.EN, 20 June 2006.

94  Karemera Appeal Decision (n 2 above) [37].

95  Popović Decision on Judicial Notice (n 29 above) [14].

96  See also Brittan Heller, ‘Noticing Genocide’ (2006) 116 Yale LJ Pocket Part 101.

97  Karemera Appeal Decision (n 2 above) [36].

98  Ibid.

99  Akayesu Judgment (n 35 above) [523]. In the later case of Prosecutor v. Gacumbtsi (Judgment) ICTR-2001-64-T (17 June 2004) [253] citing the Trial Chamber in the cases of Kayishema and Kajelijeli, it was found that: ‘[e]vidence of genocidal intent can be inferred from “the physical targeting of the group or their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, the systematic manner of killing.”’

100  Prosecutor v. Muvunyi (Judgment and Sentence) ICTR-2000-55A-T (12 September 2006) [4], [122].

101  Ibid, [16].

102  Prosecutor v. Rwamakuba (Judgment) ICTR-98-44C-T (20 September 2006) [84].

103  Ibid, [2], [210].

104  Prosecutor v. Rukundo (Decision on Prosecutor’s Motion for the Trial Chamber to take Judicial Notice of Facts of Common Knowledge pursuant to Rule 94(A)) ICTR-2001-70-T (29 November 2006).

105  See Kevin Jon Heller, ‘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 157.

106  Ralph H. Mamiya, ‘Taking Judicial Notice of Genocide? The Problematic Law and Policy of the Karemera Decision’ (2006) 25 Wis Intl LJ 1; N. H. B. Jørgensen, ‘Genocide as a Fact of Common Knowledge’ (2007) 56 ICLQ 885–95. For arguments in support of the Appeals Chamber’s approach see Rebecca Faulkner, ‘Taking Judicial Notice of the Genocide in Rwanda: The Right Choice’ (2009) 27 Penn St Intl L Rev 895, 912.

107  See Mamiya (n 106 above) 20–1.

108  Karemera Appeal Decision (n 2 above) [36].

109  In the judgment in the Kayishema case, the Trial Chamber devoted a chapter to an assessment of ‘whether the events in Rwanda as a whole, reveal the existence of the elements of the crime of genocide,’ on the basis that ‘[s]uch a finding allows for a better understanding of the context within which perpetrators may have committed the crimes alleged in the Indictment. Additionally, because the Indictment concerns events that took place in Kibuye, this Chapter of the Judgment includes a general examination of the events in that prefecture.’ Kayishema Judgment (n 81 above) [s 5.2].

110  See, eg, Bizimungu Decision on Adjudicated Facts (n 31 above).

111  See Prlić Second Decision on Judicial Notice (n 30 above).

112  Prosecutor v. Dragomir Milošević (Decision on Judicial Notice) IT-98-29/1-AR73.1 (26 June 2007) [hereinafter ‘Dragomir Milošević Decision’].

113  Ibid.

114  Ibid, [21].

115  Ibid, [22], referring to Krajišnik Decision on Judicial Notice (n 29 above).

116  Karadžić Decision on Judicial Notice (n 29 above) [29].

117  Hadžihasanović Decision on Judicial Notice (n 29 above).

118  Prosecutor v. Stanišić (Decision on Judicial Notice) IT-04-79-PT (14 December 2007).

119  Ibid, [32], [46]. The nine requirements have been seen as definitive since Popović Decision on Judicial Notice (n 29 above).

120  Norman Trial Chamber Decision (n 24 above) Annex 1.

121  Fofana Appeal Decision (n 6 above) [43].

122  Ibid, [41].

123  Prosecutor v. Sesay (Decision on Sesay Defence Application for Judicial Notice to be taken of Adjudicated Facts under Rule 94(B)) SCSL04-15-T (23 June 2008) [21].

124  Ibid, [33].

125  Ibid.

126  Prosecutor v. Taylor (Decision on Defence Application for Judicial Notice of Adjudicated Facts from the AFRC Trial Judgment pursuant to Rule 94(B)) SCSL-03-01-T (23 March 2009); See also opinion of Doherty J.

127  Ibid, [32]. In a subsequent decision, the same Trial Chamber by a majority dismissed applications for judicial notice of adjudicated facts by both the prosecution and the defence on the basis that allowing the applications would be ‘counterproductive in terms of promoting judicial economy’. Prosecutor v. Taylor (Decision on Defence Application for Judicial Notice of Adjudicated Facts from the RUF Trial Judgment Pursuant to Rule 94(B) and Prosecution Motion for Judicial Notice of Adjudicated Facts from the RUF Judgment) SCSL-03-1-T (17 June 2010) [31].

128  Prosecutor v. Brima (Decision on the Prosecution Motion for Judicial Notice and Admission of Evidence) SCSL-04-16-PT (25 October 2005) [69].

129  Ibid, [71].

130  Ibid, [75] referring to Fofana Appeal Decision (n 6 above) [30] (Robertson J).

131  Prosecutor v. Taylor (Decision on ‘Prosecution Notice of Appeal and Submissions Concerning the Decision Regarding the Tender of Documents’) SCSL-03-01-T (6 February 2009).

132  Prosecutor v. Lubanga (Prosecution’s Provision of a Tentative Consolidated List of Admissions) ICC-01/04-01/06 (19 January 2009), n 2.

133  Prosecutor v. Lubanga (Redacted Decision on the ‘Prosecution’s Request for Non-Disclosure of the Identity of Twenty-Five Individuals providing Tu Quoque Information’ of 5 December 2008) ICC-01/04-01/06 (2 June 2009).

134  Ibid, [40], [42].

135  Stewart (n 3 above) 273.

136  Report to the President of the Security Counsel, ‘Letter dated 29 May 2006 from the President of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, to the President of the Security Council’ (31 May 2006) S/2006/353 [24].

137  Ibid, [27].

138  Mike B. Harmon, ‘The Pre-Trial Process at the ICTY as a Means of Ensuring Expeditious Trials’ (2007) 5 J Intl Crim. Justice 377, 382.

139  See Stewart (n 3 above) 250–2, for some of the examples of inconsistencies in the application of the legal principles pertaining to judicial notice of facts of common knowledge.

140  Semanza Appeal Judgment (n 20 above) [192].

141  However, in Prlić Second Decision on Judicial Notice (n 30 above) [17], the Trial Chamber declined to use its proprio motu powers to reclassify the facts of common knowledge proposed by the prosecution as in that particular case such action was considered to be unfair to the defence.

142  Prosecutor v. Krstić (Judgment) IT-98-33 (19 April 2004) [37].

143  Although notably, in the Blagojević case, genocide in Srebrenica was found to be constituted differently than in Krstić, namely by forcible transfer, which also included killings and destruction of properties. Prosecutor v. Blagojević (Judgment) IT-02-60-T (17 January 2005); and Prosecutor v. Blagojević (Appeal Judgment) IT-02-60-A (9 May 2007).

144  Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) 2007 <http://www.icj-cij.org/docket/files/91/13685.pdf> (last accessed 10 February 2010).

145  See Andrea Gattini, ‘Evidentiary Issues in the ICJ’s Genocide Judgment’ (2007) 5 J Intl Crim. Justice 889.