Taking Judicial Notice of Genocide? The Problematic Law and Policy of the Karemera Decision


Ralph Mamiya


On June 16, 2006, the Appeals Chamber of the International Criminal Tribunal for Rwanda issued a decision in Prosecutor v. Karemera taking judicial notice of the fact that genocide occurred in Rwanda in 1994. This decision startled many court observers. While no internationally respected commentator would today question whether the Rwanda genocide took place, should such an event be judicially noticed without evidence? This paper examines that question, arguing that the ICTR Appeals Chamber’s expansive use of judicial notice in Karemera was both illogical and unwise. Genocide, whether as an historical fact or legal charge, fails to meet the “common knowledge” standard of judicial notice. Further, taking such notice hinders the creation of an historical record and risks violating the rights of defendants. This paper proposes a solution: acknowledging genocide as a “previously adjudicated fact” under Rule 94(B).

This article—the first to critique Karemera—reviews the jurisprudence of judicial notice in the tribunals, examines the modern concept of genocide, critiques the ICTR’s reasoning and proposes a practical solution that may be relevant to future international courts. This paper is particularly relevant to scholars and practitioners of international criminal law, and may be of interest to scholars of genocide and conflict studies.


Comparative and Foreign Law | Criminal Law | Criminal Procedure | Human Rights Law | International Law | Litigation

Date of this Version

December 2006