A perpetual possibility? The International Criminal Tribunal for Rwanda's recognition of the genocide of 1994

International Criminal Law Review

Volumn 5, Issue 4, 2005, Pages 573-599

  Maitra, Neelanjan ^a  

^a International Criminal Tribunal for Rwanda ^*  (France)

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EID: 34248042842     PISSN: 1567536X     EISSN: 15718123     Source Type: Journal    
DOI: 10.1163/157181205775093810     Document Type: Article

References (58)

1. U. N. S. C. Res. 955(1994) ("the Resolution").
2. Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, 2 September 1998 ("Akayesu").
3. "Historical Context of the Events in Rwanda in 1994", Akayesu, supra n. 11, paras. 78-111.
4. Patrick L. Robinson, "Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia", 11(3) European Journal of International Law 569, 579 n. 51(2000) ("Robinson, Ensuring Fair Trials").
5. One possible exception is the case of Jean Kambanda, the erstwhile Prime Minister of the Interim Government of Rwanda who was presumably responsible for events at a national level. In any event, Kambanda pleaded guilty thereby rendering the question largely academic. See, Prosecutor v. Kambanda, ICTR-97-23-S, Judgment and Sentence, 4 September 1998 ("Kambanda").
6. The most recent decision to clarify the legal position regarding specificity in the Indictment is that of the Appeals Chamber in the case of the Prosecutor v. Ntakirutimana. See, Prosecutor v. Ntakirutimana, ICTR-96-17-A, Judgment (AC), 13 December 2004, paras. 21-125 ("Ntakirutimana, Judgment (AC) ").
7. This time the Trial Chamber inserted a stronger note of interrogation than in Akayesu, asking itself "Was there a Genocide in Rwanda in 1994?", Kayishema, supra n. 15, paras. 273-291.
8. See "Genocide in Kibuye", Kayishema, supra n. 15, paras. 292-313.
9. ICTR-96-14-T, Judgment, 16 May 2003, para. 376 ("Niyitigeka, Judgment").
10. In a recent article, James Stewart provides instances of legislation and case law from Australia, Canada, India, Malaysia, Singapore, New Zealand and the United Kingdom to show the existence of the concept in a number of common law Jurisdictions. Stewart also cites Section 244(3) of the German Criminal Procedure Code and Article 90 of the new Russian Penal Code in support of his view that judicial notice is not restricted to common law jurisdictions alone. See James Stewart, "Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent", 3 International Criminal Law Review 245, 247 n. 8, n. 9(2003) ("Stewart, Judicial Notice").
11. As to this and other measures to combat the volume of work and delays faced by the International Criminal Tribunals, see Robinson, Ensuring Fair Trials, supra n. at 581-582.
12. Prosecutor v. Semanza, ICTR-97-20-I, Decision on the Prosecutor's Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, 3 November 2000, para. 25.
13. ("Semanza Decision No. 1") The Trial Chamber was citing Archbold's Criminal Pleading, Evidence and Practice, 2000.
14. Semanza Decision No. 1, supra n. 38, para. 23.
15. Prosecutor v. Nyiramasuhuko, ICTR-98-42-T, Decision on the Prosecutor's Motion for Judicial Notice and Admission of Evidence, 15 May 2002 ("Nyiramasuhuko"), para. 38.
16. This had also been acknowledged in Semanza Decision No. 1, supra n. 38, para. 31.
17. See also Stewart, Judicial Notice, supra n. 34, at 249.
18. Semanza Decision No. 1, supra n. 38, para. 46.
19. The wording of the relevant fact judicially noticed by this decision ran as follows, "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." Semanza Decision No. 1, supra n. 38, para. 46.
20. A second decision on judicial notice followed on 7 February 2001. See Prosecutor v. Semanza, ICTR-97-20-I, Decision on the Prosecutor's Urgent Motion for Review of the Prosecutor's Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, 7 February 2001.
21. Semanza Decision No. 1, supra n. 38, para. 46. The Trial Chamber stated that "The facts of which the Chamber takes judicial notice will not place even the smallest chink in the armour of presumed innocence in which the Accused is cloaked throughout the proceeding"
22. Semanza Decision No. 1, supra n. 38, para. 47.
23. Prosecutor v. Kajelijeli, ICTR-98-44A-T, Decision on the Prosecutor's Motion for Judicial Notice Pursuant to Rule 94 of the Rules, 16 April 2002, ("Kajelijeli").
24. Prosecutor v. Niyitigeka, ICTR-96-14-T, Decision on the Prosecutor's Motion for Judicial Notice of Facts, 4 September 2002 ("Niyitigeka, Judicial Notice").
25. This formed item 1 of Annexure A of the Prosecutor's Motion for Judicial Notice of Facts, filed on 25 July 2002. While Annexure A dealt with facts of common knowledge, Annexure B dealt with adjudicated facts. The fact represented by Item 1 was the only "fact of common knowledge" to be accepted by such by the Trial Chamber in this decision, Niyitigeka, Judicial Notice, supra n. 60, para. 4-6.
26. Niyitigeka, Judicial Notice, supra n. 60, para. 4.
27. Niyitigeka, Judicial Notice, supra n. 60, para. 6.
28. Semanza Decision No. 1, supra n. 38, para. 20.
29. Prosecutor v. Casimir Bizimungu, ICTR-99-50, Decision on the Prosecutor's Motion and Notice of Adjudicated Facts, 10 December 2004 ("Bizimungu" ).
30. The Prosecutor v. Ntakirutimana, ICTR-96-10-T, "Decision on the Prosecutor's Motion for Judicial Notice of Adjudicated Facts", 22 November 2001 para. 27 ("Ntakirutimana, Judicial Notice").
31. Ntakirutimana, Judicial Notice, supra n. 72, para. 26.
32. Ntakirutimana, Judicial Notice, supra n. 72, para. 29.
33. Prosecutor v. Simic et al., Decision on the Pre-trial motion by the Prosecution requesting the Trial Chamber to take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, 25 March 1999 ("Simic").
34. Stewart, Judicial Notice, supra n. 34, at 261.
35. Prosecutor v. Sikirica et al., Decision on the Prosecution Motion for Judicial Notice of Adjudicated Facts, 27 September 2000, at 4.
36. Semanza Decision No. 1, supra n. 38, para. 30.
37. Ntakirutimana, Judicial Notice, supra n. 72, paras. 35, 36.
38. Stewart, Judicial Notice, supra n. 34, at 262.
39. Stewart, Judicial Notice, supra n. 34, at 265-266.
40. Stewart, Judicial Notice, supra n. 34, at 265-266.
41. Amended Indictment, Prosecutor v. Gratien Kabiligi & Aloys Ntabakuze, ICTR-97-34-I and 97-30 I, paras. 4.2 and 4.6
42. Amended Indictment, Prosecutor v. Anatole Nsengiyumva, ICTR-96-12-I, paras. 4.2 and 4.3.
43. Amended Indictment, Prosecutor v. Bagosora, ICTR-96-7-I, para. 6.32 accuses Colonel Bagosora of ordering Interahamwe from Remera to exterminate Tutsi. Similarly, para.6.44 of the Amended Indictment does speak of killings throughout Rwanda but says that this was organized and carried out at a préfectural level.
44. IT-95-16, Judgment (AC), 23 October 2001 ("Kupreökic").
45. Prosecutor v Imanishimwe, ICTR-97-36, Judgment And Sentence, 25 February 2004, para. 35 ("Imanishimwe").
46. See also Prosecutor v. Brdjanin, IT-99-36-PT, Decision on Objections by Momir Talic to the Form of Amended Indictment (TC), 20 February 2001, para. 20;
47. repeated in Imanishimwe, para. 33 and in Ntakirutimana, Judgment (AC), supra n. 25, para. 473.
48. Prosecutor v. Strugar, IT-01-42-PT, Decision on Defence Preliminary Motion Concerning the Form of the Indictment, 28 June 2002, Imanishimwe, supra n. 104, para. 35
49. See Brdjanin and Talic, Case No. IT-99-36, Decision on Objections by Momir Talic to the Form of the Amended Indictment (TC), 20 February 2001, paras. 19-20
50. For a review of "Hotel Rwanda" see Stephen Holden, "Holding a Moral Center as Civilization Fell", New York Times, 22 December 2004, http://movies2.nytimes.com/mem/movies/review.html?title1 =Hotel%20Rwanda%20 (Movie).
51. Bradley F. Smith, THE ROAD TO NUREMBERG, (Basic Books, New York, 1981) at 204
52. speaks of how the Nazi regime's genocidal activities did not occupy the attention of the Allies until the defeat of Germany; material indicating how large amounts of evidence were turned up shortly before the commencements of the trial can be found in another book by the same author, REACHING JUDGMENT AT NUREMBERG (Basic Books, New York, 1977) at 65
53. as well as in Joseph E. Persico, NUREMBERG: INFAMY ON TRIAL at 41-43.
54. Samantha Power, 'A PROBLEM FROM HELL': AMERICA AND THE AGE OF GENOCIDE, (Basic Books, New York, 2002) at 362-364
55. Linda Malvern, A PEOPLE BETRAYED: THE ROLE OF THE WEST IN RWANDA'S GENOCIDE (Zed Books, London, 200) at 137-147 and 193-198;
56. Shahryar M. Khan, THE SHALLOW GRAVES OF RWANDA (I. B. Taurus, London, 2000) at 200.
57. One prominent and recent example relates to paintings by Gustav Klimt which are alleged to have been stolen from an Austrian family; Kenneth Ofgang, "Supreme Court to Decide Whether Suit Against Austria Over Art Stolen by Nazis Can Go Forward" http://www.metnews.com/articles/altm100103.htm.
58. Semanza Decision No. 1, supra n. 38, para. 30.