Taking Judicial Notice of the Genocide in Rwanda: The Right Choice

Penn State International Law Review Volume 27 Number 3 Penn State International Law Review Article 20 5-1-2009 Taking Judicial Notice of the Genocide in Rwanda: The Right Choice Rebecca Faulkner Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the International Law Commons Recommended Citation Faulkner, Rebecca (2009) "Taking Judicial Notice of the Genocide in Rwanda: The Right Choice," Penn State International Law Review: Vol. 27: No. 3, Article 20. Available at: http://elibrary.law.psu.edu/psilr/vol27/iss3/20 This Comment is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact . I Comments I Taking Judicial Notice of the Genocide in Rwanda: The Right Choice Rebecca Faulkner* I. INTRODUCTION At the Roman Catholic Church compound in Shangi, Rwanda, bloody handprints remain on the walls as a gruesome reminder of the Hutu massacre of Tutsis that occurred on April 18, 1994.1 In one room, handprints stretch from floor to ceiling, showing how Tutsis stood on one another's shoulders in desperate efforts to reach ceiling crawl spaces and the roof in order to hide from Hutu militiamen.2 Other rooms are bulletpocked or partially blown apart by hand grenades.3 Although no one knows for sure, it is estimated that as many as 4,000 Tutsis-adults and children alike-were hacked, shot, or beaten to death at the Shangi * Juris Doctor, The Dickinson School of Law of the Pennsylvania State University, 2009; Bachelor of Arts, Wheaton College, Norton, Massachusetts, 2006. Special thanks to my family and friends who supported and encouraged me during the writing process. Thank you also to the PILSR members who took the time to read this Comment and provide thoughtful critique. 1. See Jonathan C. Randal, A Mosaic of Bloody Handprints Recalls 4,000 Tutsis' Last Day of Life, WASH. POST, June 29, 1994, at A 17. 2. See id. 3. See id. PENN STATE INTERNATIONAL LAW REVIEW [Vol. 27:3,4 church that day.4 As horrifying as the events at Shangi are, they mark just a fraction of the Tutsis massacred throughout Rwanda in the span of just four months in the summer of 1994. 5 Following the atrocities committed against Rwandan Tutsis, the United Nations formed the International Criminal Tribunal for Rwanda ("ICTR" or "Tribunal") to prosecute those accused of these heinous acts. 6 The ICTR has since tried dozens of cases and uncovered evidence of genocide on a large scale.7 Yet, until recently, the Tribunal addressed the issue of genocide in Rwanda as an issue of fact for the prosecutor to prove in each case. 8 However, on June 16, 2006, in Prosecutor v. Karemera, et al., the Appeals Chamber for the ICTR issued a decision upholding the Prosecutor's interlocutory appeal and taking 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" as a fact of common knowledge. 9 Taking judicial notice of genocide in Rwanda means that the prosecutor in this and future cases need no longer offer evidence to prove that genocide occurred; the fact of genocide in Rwanda is now beyond argument. 10 With the evidence compiled in ICTR cases, like the bloody handprints left at Shangi, the Tribunal's decision is difficult to dispute. 4. See id. 5. See Gabriel Packard, Rwanda: Census Finds 937,000 Died in Genocide, N.Y. AMSTERDAM NEWS, Apr. 8, 2004, at 2-2. 6. See International Criminal Tribunal for Rwanda, www.ictr.org (follow "About the Tribunal" hyperlink; then follow "General Information" hyperlink) (last visited Jan. 11,2009). 7. See International Criminal Tribunal for Rwanda, supra note 6 (follow "Cases" hyperlink; then follow "Status of Cases" hyperlink). 8. See, e.g., Prosecutor v. Nyiramasuhuko, Case No. ICTR 97-21-T, 127-28 (May 15, 2002) (declining to take judicial notice of genocide, "prefer[ing] in the circumstances of the present case to hear evidence and arguments on this issue, rather than to take judicial notice of those legal conclusions"); Prosecutor v. Kajelijeli, Case No ICTR 9844A-T, Decision on the Prosecutor's Motion for Judicial Notice Pursuant to Rule 94 of the Rules, 19 (Apr. 16, 2002) (declining to take judicial notice of genocide in Rwanda); Prosecutor v. Semanza, Case No. ICTR 97-20-I, Decision on the Prosecutor's Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, 36 (Nov. 3, 2000) (declining to take judicial notice of genocide because "the question is so fundamental, that formal proofs should be submitted bearing out the existence of this jurisdictional element crime"); Prosecutor v. Kayishema, Case No. ICTR 95-1-T, Judgment, 273 (May 21, 1999) (holding that the question of genocide is so fundamental to the case against the accused that the Trial Chamber feels obligated to make a finding of fact on the issue). 9. Prosecutor v. Karemera et al., Case No. ICTR 98-44-AR73(C), Decision on Prosecutor's Interlocutory Appeal of Decision on Judicial Notice, 33-35 (June 16, 2006). 10. See Semanza, Case No. ICTR 97-20-I, Decision on the Prosecutor's Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54, 17. 2009] TAKING JUDICIAL NOTICE OF THE GENOCIDE IN RWANDA 897 Yet the Appeals Chamber's ruling in Karemera took many observers by surprise, for prosecutors had asked the Tribunal to take judicial notice of the genocide in Rwanda in past cases without success." Aside from the novelty of this decision, commentators question the prudence of the Appeals Chamber's decision, arguing that it is unwise and illogical, 12 as well as conceptually flawed. 13 This Comment examines the issue of judicially noticing genocide in Rwanda and argues that it is a positive step in the right direction. In responding to arguments against judicially noticing the genocide in Rwanda, this Comment is divided into three principle sections. The first section discusses the historical context of violence in Rwanda and the procedural context of Prosecutorv. Karemera. The second section provides a more detailed discussion of judicial notice and the ways in which that term has been defined. Finally, the third section addresses the ICTR's decision to take judicial notice of the genocide in Rwanda in Prosecutor v. Karemera. Discussion of Karemera is further divided into four subsections: an explanation of the Appeals Chamber's reasons for noticing genocide; an examination of the arguments against noticing genocide; a response to the arguments against noticing genocide; and an argument in support of noticing genocide. II. HISTORICAL AND PROCEDURAL CONTEXT A. A BriefHistory of Violence in Rwanda Rwanda has long been a country of conflict. From its earliest days, discord between its two major ethnic groups, the Hutus and the Tutsis, 15 has divided the country.14 In 1916, Rwanda (...truncated)