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Tuesday 29 July  
International Justice Tribune
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Arusha, Tanzania
Arusha, Tanzania

Matter of Fact

Published on : 11 October 2001 - 12:00am | By International Justice Tribune
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In the middle of the Ntakirutimana trial, the prosecution again asked the judges to take it as well-established fact that genocide occurred in Rwanda. That prompted a spirited challenge from Ramsey Clark who told the judges they had no business writing history. Back in July, the prosecution requested « judicial notice » of some 32 « adjudicated facts » ranging from the date of former President Juvenal Habyarimana\'s plane crash to the existence of a « genocidal plan to exterminate the Tutsi ethnic group in Rwanda. » The prosecution went to the judges after the Ntakirutimanas refused to « admit » those facts. Both judicial notice and party admissions serve the same goal: if a fact can be agreed on, then the parties don\'t need to spend time proving it at trial.

Judicial Notice, Take 3
This is the third time the Prosecutor\'s office has sought judicial notice of the Rwandan genocide. The reasons are obvious. As lead prosecutor Charles Adeogun- Phillips put it during the Ntakirutimana hearing on October 10, « Several judgments have been rendered *so+ we don\'t see why every trial team...has to go through the hurdle of proving *genocide+. » And, of course, what the prosecution won\'t say out loud is that a particular accused\'s genocidal intent (mens rea) may be inferred from such judicial notice of genocide. For, as the judges held in Akayesu, « the scale of atrocities committed, their general nature, in a region or a country ... can enable the Chamber to infer the genocidal intent of a particular act. »
The prosecution lost its first motion in Semanza last November. There, Trial Chamber III ruled: « Notwithstanding the over-abundance of official reports, including United Nations reports confirming the occurrence of genocide, this Chamber believes that the question is so fundamental, that formal proofs should be submitted bearing out the existence of this jurisdictional elemental crime. » Shortly after that decision, the Rwanda Tribunal adopted Rule 94(B) that allows judges to « take judicial notice of adjudicated facts ... from other proceedings of the Tribunal relating to the matter at issue in the current proceedings. » With that new rule in hand, the prosecution twice invited Trial Chamber III to reconsider its decision in Semanza, but its overtures were spurned both times. In its March 2001 decision, the judges stated, in dicta, that they were « not inclined to consider as adjudicated facts within the meaning of Rule 94(B) the propositions that Tutsis were killed in Rwanda with the intent to destroy their ethnic group. »
Undaunted, the prosecution filed similar motions for judicial notice in Trial Chamber I (Ntakirutimana) and Trial Chamber II (Butare). The Ntakirutimana motion is the more important. First, it looks as though Trial Chamber I will be the first to make a decision applying Rule 94(B), and, therefore, it will set a precedent for the other two Trial Chambers. Second, the Ntakirutimanas are conducting a more overtly political defense, challenging the existence of genocide in Rwanda. And finally, taking judicial notice of facts in prior judgments would have more impact on the Ntakirutimana trial because it shares the same locale, as well as some of the same perpetrators and survivors, with the Musema and Kayishema/Ruzindana judgments.

The New Epistemology
The new Rule 94(B) is a radical departure from common-law jurisprudence, where judicial notice is reserved for the sort of mundane, incontestable facts that can be verified using maps, calendars and common knowledge: the sun sets in the west of Rwanda, October 11, 2001 fell on a Thursday and the like. Rule 94(B) also poses a thorny epistemological issue: what\'s an « adjudicated fact »? Is it a disputed fact that judges decided in a previous trial and that was affirmed on appeal? In Akayesu, Musema, Kayishema/Ruzindana, the accused did not strongly dispute that genocide occurred in Rwanda (only their own participation), and so, not surprisingly, the judges found that genocide occurred in those three cases. Now, are the Ntakirutimanas bound by those findings based on admissions of different accused?
In Ntakirutimana, the prosecution asked for a broad reading of Rule 94(B): the court should take judicial notice not only of « adjudicated facts » but also of « legal conclusions reached in other proceedings, provided that those conclusions do not go to prove the guilt of the accused persons. » In Semanza, Trial Chamber III refused to take judicial notice of « unadorned legal conclusions. » Similarly, Judge Richard May, who has since earned a reputation for switching off Slobodan Milosevic\'s microphone, presided over two ICTY decisions rejecting the expansion of judicial notice to cover « facts involving interpretation or legal characterisations of facts. » But the Semanza and ICTY decisions predate Rule 94(B).

A Genocidal Plan?
Apparently, the judges hoped to duck ruling on judicial notice. They waited until halfway through the prosecution case before hearing oral argument. During the October 10 hearing, Presiding Judge Erik Mose inquired whether further admissions from the defense hadn\'t rendered the prosecution\'s motion unnecessary. Adeogun-Phillips stubbornly responded that those admissions « don\'t go far enough. »
During the hearing, Judge Mose and Judge Navanethem Pillay focused on the request for judicial notice that « the genocidal plan » partly consisted of the « use of a meticulously planned programme of gathering Tutsi civilians in historically \'safe havens\' or community centers such as churches stadiums, commune offices assuring them that their safety was guaranteed and thereafter confining them to such locations following which attacks were launched upon them therein. » Judge Pillay challenged the prosecution\'s claim that the Kambanda judgment (based on Kambanda\'s guilty plea rather than a contested trial) and the Akayesu judgment had actually made findings of a genocidal plan. When Adeogun-Phillips said, « My recollection is that Kambanda confessed to a plan, » Judge Pillay sharply retorted, « Don\'t rely on your recollection - show us. » At that point, Adeogun-Phillips had to admit he didn\'t have the judgments in court. With an assist from Judge Mose, he retreated to paragraphs 291 and 312 in the Kayishema/Ruzindana judgment where that court found a plan of genocide in Rwanda and Kibuye, respectively (as well as the employment of « safe havens » to gather Tutsi refugees for slaughter).
Adeogun-Phillips stated, « Our strategy is to ask you to consider events in Kibuye as ... part of a common transaction during same period of time to serve same end purpose. » Pillay expressed concern: « My difficulty is *the Kayishema/Ruzindana] Chamber makes factual findings in respect to two venues [Home St. Jean complex and Kibuye stadium] and concludes on basis of the evidence ... that killings occurred over the whole prefecture. This Chamber may well come to a different conclusion about whether it occurred in the whole prefecture. »

Ramsey Clark\'s Challenge
Ramsey Clark, Elizaphan Ntakirutimana\'s defense lawyer, warned the judges that the prosecution was seeking to « convict a person by judicial notice. » And he pointed out the unfairness of binding the Ntakirutimanas to « facts adjudicated in other cases in which the accused did not participate or defend himself. » And, most pertinently, he questioned, « Do you really need these sweeping findings? Doesn\'t the Genocide Convention say \'in whole or in part\' »? Indeed, as Akayesu and subsequent judgments recognize, genocide can be committed against one individual.
Judge Mose pressed Clark, asking whether he was planning to argue that no genocide occurred in Rwanda or Kibuye. Clark hemmed and hawed a bit: « We will argue ... a tragedy of violence that involved some hundreds of thousands of deaths... But there was not one general genocide in which only Hutus killed only Tutsis. This is one of the most harmful notions this Tribunal could make ... that Hutus are genetically murderous racist killers. » He further argued, « Hundreds of thousands of Hutus were killed in Rwanda. »

Writing History
« What\'s a court doing finding history anyway - that\'s not relevant to what you do. » Clark reminded the judges their role is to find facts in discrete cases. Or as Edward Medvene, Gerard Ntakirutimana\'s defense lawyer, more diplomatically stated, « You don\'t have to go there, it\'s not necessary, *the only issues are+ were these defendants at Mugonero, were they at Bisesero? »
In the Akayesu judgment, the Tribunal\'s first, the judges couldn\'t resist the temptation to both make and write history: they spent 12 pages sketching a history of Rwanda from the pre-colonial era to 1994 and then another 8 pages detailing the 1994 events. Then, they went on to make sweeping, historical pronouncements: « genocide was, indeed, committed in Rwanda in 1994 against the Tutsi as a group, » the genocide « was fundamentally different from the *military+ conflict » between the RAF and RPF, and « the genocide was organized and planned. » Similarly, in the Kayishema/Ruzindana judgment, the judges went out of their way to find that genocide occurred in Rwanda and Kibuye prefecture: « Considering the plethora of official reports, including United Nations documents, which confirm that genocide occurred in Rwanda and the absence of any Defence argument to the contrary, one could consider this point settled. Nevertheless, the question is so fundamental to the case against the accused that the Trial Chamber feels obliged to make a finding of fact on this issue. »
At least, in Akayesu, the judges acknowledged briefly - albeit in a footnote - that the issue of the Rwandan genocide, to which they devoted so many pages, should have been legally irrelevant to Akayesu\'s guilt or innocence: « it is not only obvious that an accused person could be declared innocent of the crime of genocide even when it is established that genocide had indeed taken place, but also, in a case other than that of Rwanda, a person could be found guilty of genocide without necessarily having to establish that genocide had taken place throughout the country concerned. » Indeed, in Bagilishema, Judge Mose (writing for the majority) found the accused innocent without feeling the need to find genocide in Rwanda.
In the face of Ramsey Clark\'s historical revisionism, it\'s tempting to declare the Rwandan genocide a legal fact. But, for the sake of its own tattered legitimacy, the Tribunal is better off leaving history to the historians and focusing on the Ntakirutimanas\' guilt or innocence. Strike Two

On October 10, the Ntakirutimanas\' defense lawyers asked the judges to strike YY\'s testimony, arguing they were unfairly surprised by it. Eight days earlier, YY testified that he saw Pastor Elizaphan Ntakirutimana and his son, Dr. Gerard Ntakirutimana, shoot and kill approximately ten Tutsi refugees inside Murambi church, including a pregnant woman and a child. From where he was hiding in the woods, some 15 or 30 meters away, YY claimed, « I was able to see both of them shooting inside the church. » By contrast, in his October 25, 1999 witness statement, YY never mentioned Dr. Ntakirutimana in connection with Murambi Church and he only mentioned Pastor Ntakirutimana « supervising Interahamwe to take off the iron sheets of Murambi Adventist Church. »
Noting the absence of any reconfirmation statement, Edward Medvene, Gerard Ntakirutimana\'s lawyer, asked, « Does discovery mean anything? » He argued that it was a violation of due process for the prosecution to add 10 new murder victims in the middle of trial given the difficulty for the defense « to get into Rwanda in a meaningful sense and freely talk to people. »

African Rights
Lead prosecutor Charles Adeogun-Phillips, who had examined YY on the stand, argued that the defense hadn\'t suffered any prejudice because they « had every opportunity to cross-examine this witness and impeach his credibility. » He further stated that the witness statement should not be treated as sworn testimony, and he laid much of the blame on prosecution investigators for failing to ask YY the right questions at the time of his witness statement. Adeogun-Phillips then produced an African Rights report recounting an earlier interview with YY, in which he testified that the Pastor had shot refugees at Murambi Church. With some embarrassment, Adeogun-Phillips admitted « we had no idea of this document when the witness was testifying. » Rather, the prosecution only found it in the library when confronted with the defense motion. This prompted a tart observation from Ramsey Clark, the Pastor\'s defense lawyer: « It\'s too bad the prosecutor didn\'t have the same investigator as African Rights - then we\'d know what the witnesses would have to say. » And Medvene pointed out that African Rights was « in the forefront of accusing Bishop Misago who, of course, was acquitted. »

The First Strike
The defense probably chose not to object to YY\'s testimony when he was on the stand because, a day earlier, the judges had rejected their request to disallow testimony from upcoming witness DD. DD first mentioned the Pastor shot his wife and two children at Mubuga primary school in his July reconfirmation statement, almost two years after his original November 1999 witness statement. As the defense argued, people don\'t normally forget to mention the killing of their wife and children. However, Presiding Judge Erik Mose ruled that witness testimony should not be limited to witness statements and that the judges would examine discrepancies between the two. He further observed that the defense would have an opportunity to cross-examine the witness. Unlike the situation with YY, however, the prosecutor gave notice of DD\'s new testimony to the defense before trial and reordered their witness line-up so the defense would have more time to prepare their cross-examination. Nonetheless, it\'s hard to imagine the judges striking YY\'s testimony.
In fact, the defense may be better off with YY\'s testimony in the record because it seems to contradict GG\'s testimony. Whereas YY places the Pastor at Murambi Church, GG testified that Dr. Ntakirutimana chased a refugee down Murambi Hill and killed him in a small forest.

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