Arusha, November 16, 2001 (FH) - Prosecutors in the so-called "Butare trial" on Friday asked the International Criminal Tribunal for Rwanda (ICTR) to take judicial notice of certain "facts" of Rwandan history and their legal conclusions, including that genocide was committed. "This would avoid wasting court time on the presentation of evidence concerning facts that have already been adjudicated," argued Italian prosecutor Silvana Arbia.

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Similarly, the Prosecutor's motion says that: "Judicial notice of the facts contained in (. . ) this Motion provides the benefit of judicial economy, is consistent with the rights of the Accused persons, and would significantly expedite their trial. "However, defence lawyers strongly opposed the motion. They said it should be declared inadmissible on procedural grounds, but that even if it were admitted, it should be dismissed on legal grounds. To take judicial notice of points that are still contested would be "contrary to the jurisprudence of the ICTR and ICTY (International Criminal Tribunal for former Yugoslavia), would prejudice the accused, and would deprive this Tribunal of the possibility of shedding light on the events (in Rwanda during the 1994 genocide)", said Nicole Bergevin, Canadian lawyer for former minister Pauline Nyiramasuhuko. Bergevin also argued, on behalf of all the defence teams, that "it would be extremely dangerous to take such judicial notice in this case where there are six accused, who were holding different positions in different places". However, the Prosecutor argues the opposite: "It is the Prosecutor's submission," says the motion, "that efficiency and economy are of real importance to the Butare cases given the large number of accused persons tried jointly. "The case groups six former leaders in Butare, southern Rwanda: former Minister of Women's Development Nyiramasuhuko, her son and former militia leader Arsène Shalom Ntahobali, former mayor of Ngoma Joseph Kanyabashi, former mayor of Muganza Elie Ndayambaje and two former prefects of Butare, Sylvain Nsabimana and Alphonse Nteziryayo. All have pleaded not guilty to charges of genocide and crimes against humanity for their alleged role in the 1994 genocide in Rwanda. This is the biggest trial currently before a court of the ICTR. Saving time?The Prosecutor argues that ICTR Rules not only allow but require a Chamber to take judicial notice of facts that are "common knowledge". "Furthermore," says the motion, "previous jurisprudence of both the ICTR and ICTY establishes that the definition of common knowledge extends to legal conclusions based on judicially noticed facts. ""The doctrine of judicial notice," says the Prosecutor, "was adopted in the charters of the international military tribunals that adjudicated crimes committed during World War II. " She quotes, for example, the Charter of the Nürnberg tribunal (set up to judge Nazi war crimes) as saying that: "The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations…"In her motion, the Prosecutor lists documents she claims constitute historical background to the 1994 events in Rwanda, facts about the events themselves and their "legal conclusions". She is asking the court to take judicial notice of all three. Legal conclusions include that "some Rwandan citizens committed genocide". They also include the statement that between January 1st and July 17th 1994, there was armed conflict in Rwanda, and that "this armed conflict was non-international in character". Defence lawyer Bergevin took the latter statement as an example of how such "facts" were not "common knowledge" but still contested. She said Uganda supplied "men and arms" to the pro-Tutsi Rwandan Patriotic Front (RPF), which was at war with the pro-Hutu government army (Forces Armées Rwandaises or FAR), and that the conflict was therefore international. Judges to deliberateWhile the UN has recognized that genocide occurred in Rwanda between April 6th, 1994 (when former president Juvénal Habyarimana's 'plane was shot down) and mid-July that year (when the RPF took power through a military victory), the ICTR was set up to judge "individual criminal responsibility" and must respect scrupulously the rights of the accused. There is only one notable example in ICTR case law of a similar Prosecutor's motion requesting judicial notice of historical facts and legal conclusions to be drawn. This was originally submitted in January 1999, in the case of former Rwandan mayor Laurent Semanza, currently before the ICTR's Trial Chamber Three. In its decision of November 3rd last year, that Chamber took judicial notice of "facts and documents" submitted by the Prosecutor but denied her requests to "create evidentiary presumptions on the basis of the facts" and "to take judicial notice of inferences that may be drawn from the judicially noticed facts". Judges in the Butare case are to deliberate before handing down a decision. The case is before Trial Chamber Two, composed of judges William Sekule of Tanzania (presiding), Arlette Romaroson of Madagascar and Winston Churchill Matanzima Maqutu of Lesotho. JC/PHD/FH (BT1116e)