PROSECUTOR v SAM HINGA NORMAN & ORS - JUSTICE AYOOLA'S SEPARATE OPINION - FOFANA JUDICIAL NOTICE (SCSL-04-14-AR73)  SCSL 70 (16 May 2005);
JUSTICE AYOOLA’S SEPARATE OPINION
- I am in agreement with the Judgement of this Court. In view of the importance of the general issues that have arisen I append this Concurring Opinion to highlight a few individual perspectives.
I. PROCEDURAL BACKGROUND
- On 5 March 2004, in the case of the Prosecutor v. Samuel Hinga Norman et al., the Prosecution filed a Request for the Defence to admit/refuse/deny/dispute certain statements contained in that request. On 15, 17 and 18 March 2004, Defence for Fofana, Kondewa and Norman respectively, indicated their unwillingness to accede to the Prosecution Request unless the Prosecution satisfied its full disclosure obligations. The Prosecution then filed an application on 1 April 2004, pursuant to Rules 73, 89 and 92bis, requesting the Trial Chamber to take Judicial Notice of certain factual statements and documents (“Motion for Judicial Notice”).
- On 19 April 2004, Defence for Norman filed a response to the Motion for Judicial Notice and on 26 April 2004, the Prosecution filed its Reply thereto. On 23 April 2004, Counsel for the third Accused (Kondewa) filed a motion requesting an extension of time within which to respond to the Prosecution Motion for Judicial Notice. This Motion was dismissed in a Decision by the Trial Chamber on 30 April 2004 pursuant to Rule 7(C) of the Rules. Despite the Trial Chamber’s dismissal of Kondewa’s motion for an extension of time, the Kondewa Defence, on 4 May 2004, filed an objection to the Prosecution Motion for Judicial Notice which was rejected by the Trial Chamber on 6 May 2004.
- At the Pre-Trial Conference of 28 April 2004, Defence Counsel for Fofana stated orally that it accepted some propositions of the Prosecution as facts of common knowledge and it wished this statement to be considered as the response to the Motion. The Fofana Defence, however, failed to submit a written response to the Prosecution Motion.
The Trial Chamber in its Decision on the Prosecution Motion found as follows:
- (a) That alleged facts (A), (B), (D), (E) and (W) qualify for judicial notice.
- (b) That alleged facts (H), (K), (L), (M), and (U) qualify for judicial notice in a judicially modified form.
- (c) That all other facts of common knowledge listed in Annex A do not qualify for judicial notice because they are not beyond reasonable dispute.
- (d) That the facts found to qualify as judicial notice satisfy the tests for them to be judicially noticed.
- (e) That documents 9 - 21 and 31 - 32 in Annex B of the Decision qualify for judicial notice as to their existence and authenticity.
- (f) That documents 22 - 30 and 34 - 40 qualify for judicial notice as to their existence, authenticity and contents.
- (g) That the rest of the documents in Annex B were not found to qualify for judicial notice because their existence and authenticity or their existence, authenticity and contents are not beyond reasonable dispute.
- (h) That the documents judicially noticed were deemed by the Chamber to be conclusively proven as to their existence and authenticity.
II. THE APPEAL
From the decision the Accused Fofana, pursuant to leave granted by the Trial Chamber, has appealed on two grounds, the substance of which are:
- (a) That although the Trial Chamber correctly stated the legal criteria for determining facts of common knowledge it erred in applying those criteria in determining the facts it took judicial notice of.
- (b) That the Trial Chamber failed to take into consideration the oral response to the Prosecution Motion for Judicial Notice on behalf of Fofana on 28 April 2004 whereby the Accused Fofana accepted only some propositions of the Prosecutions as fact of common knowledge and had stated that none of the documents were accepted except from their existence and authenticity.
- The Defence by its Notice of Appeal sought an annulment of the Decision of the Trial Chamber. It also sought that the Appeals Chamber take judicial notice of facts B, P, and W as specified in Annex 1 of the Decision and judicial notice of the existence and authenticity of the resolutions of the Security Council as contained in Annex II of the decision.
- The issues on this appeal are (i) whether facts A and D, without modification, and facts H, K, L, M and U in their modified form, all listed in Annex 1 to the decision of the Trial Chamber rightly qualify for judicial notice; (ii) whether the Trial Chamber was correct when it held that the resolutions of the Security Council specified in the decision qualified for judicial notice as to contents and (iii) whether the decision of the Trial Chamber should be annulled by reason of its failing to make proper consideration of the oral response of the accused Fofana.
III. SUBMISSIONS OF THE PARTIES
A. Defence Submissions
- The Fofana Defence argues that all the facts which the Trial Chamber took judicial notice of, namely facts A, D, H, K, L, M and U in Annex I to the Decision on Judicial Notice are facts of common knowledge because they do not fulfill the criteria for determining facts of common knowledge set out by the Trial Chamber as follows: (a) the facts are relevant to the case of the accused person; (b) the facts are not subject to reasonable dispute; (c) the facts do not include legal findings; and (d) the facts do not attest to the criminal responsibility of the accused.
It was submitted, generally, that the facts were subject to more than reasonable dispute and in particular, that:
- (a) Facts A, D, and H include legal findings or characterizations and therefore cannot be considered as facts of common knowledge.
- (b) The expression “armed conflict” is a necessary condition for criminal responsibility under Article 4(C) of the statute and fact “A” which states that an armed conflict occurred in Sierra Leone from March 1991 until January 2002, includes legal findings of which no judicial notice can be taken.
- The Fofana Defence argued that the Trial Chambers at the International Criminal Tribunals for the former Yugoslavia and Rwanda (respectively “ICTY” and “ICTR”) do not take judicial notice of facts which are elements of the crimes charged, unless such facts have already been adduced in prior proceedings before the Tribunal. It was submitted that fact L is one such fact as judicial notice of the fact that the accused Fofana was the National Director of War of the Civil Defence Forces (“CDF”) would make it impossible for him to disprove that fact which, it was argued, is a central question in the trial in regard to the question whether or not he can be held responsible, by virtue of his position in the group, as a superior or co-perpetrator in a joint criminal enterprise for crimes allegedly committed by the CDF.
- In regard to the resolutions of the Security Council referred to in Annex II of the Decision it was submitted they include facts that are subject to reasonable dispute as well as legal findings or characterizations and, that the contents of the resolutions of the Security Council reflect political compromise and therefore the statements of facts contained therein are not neutral and are subject to reasonable dispute.
B. Prosecution Response
- The Prosecution prefaced its submissions with the general submission that the Fofana Defence fails to support its arguments with any legal authority or sound application of the criteria established in the Decision. It went on to submit first, that the Fofana Defence did not substantiate its claim that the facts listed under A, D, H, L, M and U of Annex I to the decision are contestable or disputable; secondly, that fact D is not subject to dispute since it arises out of the provisions of the Geneva Conventions and Protocol II additional to the Geneva Conventions; thirdly, that fact “L” does not attest to the criminal responsibility of Fofana, and taking judicial notice of this fact does not relieve the Prosecution of the task of proving that the accused, in his capacity at National Director of War, was also responsible for the crimes as alleged; fourthly, that the Trial Chamber properly took judicial notice of the contents of the Security Council Resolutions; fifthly, that international criminal tribunals do take judicial notice of facts contained in authoritative documents such as those of the United Nations and its affiliated bodies; sixthly, the facts taken judicial notice of meet the test as stated in the Semanza case; seventhly, that the term “armed conflict” in facts A and H and “organized armed faction” in fact D are mere facts of common knowledge which qualify for judicial notice and are not legal findings or characterizations.
- The Prosecution referred, in support of its submissions, to the Semanza decision, in which the Trial Chamber of the ICTR took judicial notice, not only of the existence and authenticity of pertinent resolutions of the Security Council but also of their contents and finally submitted that none of the facts listed under A, D, H, K, L, M and U of Annex I to the Decision are reasonably disputable, applying the Semanza test.
C. Fofana Defence Reply
- In its Reply the Fofana Defence reiterates some of its earlier arguments and submits that the Prosecution Response was filed out of time. It went further to make submissions in further elaboration of its earlier submissions in the following terms: Items A, D, and H amount to legal findings which directly concern the criminal responsibility of the accused, and, contrary to what the Prosecution says, the terms “armed conflict” and “organized armed faction” are not mere factual elements; items K, L, and M are not only contentious, they also make no limitation as to the time the alleged positions were held; item U is a fact subject to reasonable dispute since the Prosecution is unable to state with certainty when the alleged event took place and it includes legal findings or attests to the criminal responsibility of the Accused, and items A, D and H are subject to reasonable dispute in so far as they make assertions as to when, where and to what extent particular factual events are said to have transpired, as well as the involvement of particular persons in such events.
- With regard to resolutions of the Security Council, the Fofana Defence submits that taking judicial notice of them is at odds with the inherent power of the court as an independent finder of fact.
IV. APPLICABLE LAW
- Rule 89 of the Rules provides that:
(A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.
(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.
(C) A Chamber may admit any relevant evidence.
- Rule 94 of the Rules provides as follows:
(A) A Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.
(B) At the request of a party or of its own motion, a Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Special Court relating to the matter at issue in the current proceedings.
V. MERITS OF THE MOTION
- The Trial Chamber with sufficient clarity set out and discussed the core principles of the doctrine of judicial notice in the international criminal law system, describing the doctrine as one of ‘law’s oldest doctrine’. So, indeed it is. The Charter of the International Military Tribunal at Nuremberg (“the Nuremberg Charter”) provided that the tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. The Nuremberg Charter specifically provided for judicial notice of “official governmental documents and reports of the United Nations” etc, whereas no such specific reference is made to such materials in Rules of several of the modern international criminal tribunals. Without undue speculation as to the reason for absence of such specific reference, it can be reasoned that judicial notice of such materials can still be taken on the strength of provisions such as Rule 89 (B) of our Rules. That the doctrine of judicial notice in all its ramification is now part of the international criminal justice system is indisputable.
- The Fofana defence and the Prosecution have both referred at the Trial Chamber and before this Chamber to the Semanza case in which the Trial Chamber of the ICTR considered to a considerable extent the doctrine of judicial notice. In that decision the ICTR noted the two policy reasons for the doctrine, usually recited by legal scholars as: expedition of trial by dispensing with the need to submit to proof facts that are patently indisputable and the value of fostering consistency and uniformity of decisions on factual issues where diversity in factual findings would be unfair. These views are useful in understanding the rational basis of the doctrine of judicial notice. However, they do not count as factors in determining the test applicable in identifying facts that qualify for judicial notice on the basis of ‘common knowledge’ nor, indeed, the limits of judicial notice. Notwithstanding, these factors may be useful to bear in mind in the exercise of discretion in cases where the facts for which judicial notice is requested fall in the borderline of judicially noticeable facts but judicial economy and uniformity tilts the balance in favour of noticing such facts, provided the fairness of the trial will not thereby be impaired. It is emphasized that facts apart, perhaps from adjudicated facts, are not judicially noticed merely by reason of need for judicial economy and consistency even though those ends are achieved by the application of the doctrine of judicial notice.
- The foundations of judicial notice as set out in Rule 94 of the Rules are: common knowledge [Rule 94(A)]; adjudication of facts from other proceedings before the Court [Rule 94(B)]; and documentary evidence from other proceedings before the Court [Rule 94(B)]. In this appeal this Chamber is concerned only with the first of those.
Determining Common Knowledge
- What then are facts of common knowledge? It is generally accepted that they are ‘those facts which are not subject to reasonable dispute, including common or universally known facts such as general facts of history, generally known geographical facts and the laws of nature.’ That definition describes the nature of the ‘facts’ but not ‘common knowledge’, the appreciation of which is at the heart of the problem. It has been said that:
Judicial notice of matters of fact is founded upon that fund of knowledge and experience which is common to both judges and jurors, and is not confined to the Bench. [Italics supplied.]
Two broad approaches to determining ‘common knowledge’ can be attempted. The first is ‘common knowledge’ described by the source of such knowledge. The second is ‘common knowledge’ described by characteristics that make knowledge ‘uncommon’.
(i) Knowledge through the experience of mankind.
- Knowledge through the common experience of mankind or which had been acquired imperceptibly by mankind or by a great majority of a particular community, though not universal, is common knowledge. Generally known geographical facts, the laws of nature and historical facts will fall in this category. Communication and reasoning will be tedious and almost impossible if they do not proceed on the footing of such pool of knowledge. There is an abundance of matters and facts which are silently noticed without controversy in the course of judicial proceedings and which in some legal systems would have been removed from the category of facts capable of being pleaded. Knowledge not obviously proceeding from the common experience of mankind and not proceeding from common fund of knowledge and experience of mankind form a different category of ‘common knowledge’. It is in regard to this category of ‘common knowledge’ that Nokes had this to say:
But when a fact less obviously forms part of mankind’s fund of common knowledge, it may be necessary for counsel to request the judge to take judicial notice; and in such cases the judge must exercise discretion whether to do so, which is merely another way of saying that he must decide whether the fact falls within the rule as being notorious.
- It is not difficult to accept as valid, and adopt the statement by Nokes, that three considerations which appear to affect the determination of whether a fact is notorious or not are:
First, a common knowledge differs with time and place; so a fact which was notorious a century ago may no longer be the appropriate subject of notice, and a fact commonly known in one locality may be unknown in another. Secondly, a fact may be common knowledge only among a class of the community, such as those intended in a particular sport; and the judge who provides lay ribaldry by inquiring ‘Who is So-and-so? may be merely indicating that the name of a popular footballer is not the proper subject of notice. Thirdly, though a judge may consider a fact to be appropriate subject of notice, he may not himself remember or profess to know it, and therefore he may take steps to acquire the necessary knowledge.
- The last consideration leaves room for a further sub-division of judicial notice into judicial notice without enquiry and judicial notice after enquiry or acquired notice. In the English case of Commonwealth Shipping Representative v. Peninsular and Oriental Branch Service it was stated that:
Judicial notice refers to facts, which a judge can be called upon, either from his general knowledge of them, or from enquiries to be made by himself for his own information from sources to which it is proper for him to refer.
- In Blackstone’s Criminal Practice it was stated:
The justification for judicial notice after enquiry, is that some facts, although not sufficiently notorious are demonstrable by reference to sources of virtually indisputable authority, or arise so frequently that proof in the normal way is undesirable because of the cost and the need for uniformity of decision. [emphasis added.]
Authoritativeness of the source and the generality of the nature of the information are some of the factors that account for the validity of acquired knowledge as source of judicial notice. However, acquired knowledge of specialized information will best be derived from evidential source and utilized as evidence than as foundation for judicial notice.
(ii) ‘Uncommon Knowledge’
- Uncommon knowledge’ is identified by factors which negate ‘common knowledge’.
- The first is reasonable disputability. A fact cannot be said to be of ‘common knowledge’ if it is reasonably disputable or rebuttable. The court will not take judicial notice of a fact that is not final in the sense that it is subject to rebuttal. Where a fact is disputable or capable of rebuttal there would be as numerous probable versions as there are diverse probable versions as to make it impossible to fix a single one with notoriety or an attribute of commonality. It may be observed, albeit in passing, that the Trial Chamber seemed to have favoured a two-level enquiry in which the factor of common knowledge must be inquired into first, before an inquiry into the reasonable indisputability of the fact. Fidelity to the express provisions of Rule 94(A) which provides that ‘A Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof’ does not seem to permit any further enquiry after a finding that a fact is of common knowledge. The essence of judicial notice is that the court is acting on an indisputable fact of which he shares common knowledge with society or community at large and not subject to rebuttal by evidence – a conclusive fact. Once a court finds that a fact is a fact of common knowledge, it has subsumed in such finding a character of indisputability of that fact.
- The second is lack of factuality. Although the court may take judicial notice of facts or propositions of fact and is expected to take judicial notice of law of the forum, the court cannot take judicial notice of propositions which in substance and effect are legal conclusions nor can the court take judicial notice of propositions of law, as distinguished from principles and elements of the law of the forum which it takes judicial notice of. Legal conclusions cannot be said to be matters of knowledge but of opinion of the tribunal, however accurate or acceptable it may be. In regard to propositions of law they are formulations from the knowledge of the maker. To approve of a tribunal shutting the door against a challenge of such opinion and conclusions strikes at the root of the fairness of the judicial process.
- The third is lack of generality. Judicial notice will not be taken of facts which are not general. Judicial notice does not generally extend to the particular. It is in light of this that judicial notice does not extend to facts which tend to attest the liability or criminal responsibility of a particular person or persons.
The Law applied to this case.
- It is now convenient to turn to a consideration of the facts that were judicially notice and challenged.
A. The armed conflict in Sierra Leone occurred from March 1991 until January 2002.
H. Groups commonly referred to as the RUF, AFRC and CDF were involved in the armed conflict in the armed conflict in Sierra Leone.
D. The accused and all members of the organized armed factions engaged in fighting within Sierra Leone were required to comply with international humanitarian Law and the laws and customs governing the conduct of armed conflicts, including the Geneva conventions of 12 August 1949, and Additional Protocol II to the Geneva Convention.
In regard to these facts the first question that arises from the submission of the Fofana Defence is whether these facts or any one of them are legal findings and characterisations.
- The two phrases highlighted by the Fofana Defence are: ‘armed conflict’ and ‘organised armed factions’. International humanitarian law operates in the sphere of hostilities and armed conflict. Its substantial purpose is to regulate the conduct of conflicts so as to protect victims and civilians. The rules of international humanitarian law apply to armed conflict. Armed conflict, it has been held, ‘exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups within a state.’ Whether there is, in a given situation resort to armed force or armed violence or not is, indisputably, a question of fact. Whether that act was by governmental authorities or by organized armed groups or both are questions of fact. It should not take a lawyer to describe, in ordinary language, a violent conflict between armed groups as armed conflict. To describe a situation as a situation of armed conflict is a factual description. The legal consequence of that factual situation is a question of law.
- The Fofana defence argues that facts A and H are “legal findings and characterizations.” Description of a factual situation is not a legal finding. Characterization in the general sense is not peculiar to legal reasoning or thought. In every day life ‘characterization’ goes on as an automatic process. For instance, a situation of fact may be described as ‘chaotic’ without having to spell out each fact that leads to such characterization. So also is a situation of ‘armed conflict’. The court may be of the view that existence of the factual situation is so notorious that it is futile and a waste of time to dispute it and so take judicial notice of the factual situation. In the present case it is a misconceived to argue that because Article 3 common to the Geneva Conventions mentioned ‘armed conflict’ as the factual situation in which obligations of the Conventions may arise the words ‘armed conflict’ had assumed a technical meaning. If that had been intended the Conventions would have defined the words. It is clear that facts A and H are not legal findings or legal characterization.
- It is not difficult to agree with the Trial Chamber that the fact that there was a factual situation of armed conflict in Sierra Leone is a notorious fact not subject to any reasonable dispute.
Still in respect of facts A and H the submission was made by the Fofana Defence that those facts constitute ‘both requirements for and elements of, crimes under Article 3 of the Statute; violations of Article 3 common to the Geneva Conventions and of Additional Protocol II’ (“APII”) and that “armed conflict” is a necessary condition to criminal responsibility under Article 4(C) of the Statute. It was argued that by those reasons they do not qualify for judicial notice. As has been noticed the factual situation in which common Article 3 of the Geneva Conventions and APII apply is one in which there is armed conflict. To that extent the existence of ‘an armed conflict not of an international character’ is a jurisdictional pre-requirement and an external element of the crime in the sense that the conduct must have been in the context of and associated with the armed conflict. A persuasive guide to the elements of the crime is contained in the Elements of Crime made pursuant to Article 9 of the Statute of the International Criminal Court (‘ICC Statute’). Two of the elements of a war crime are:
- The conduct took place in the context of and was associated with an armed conflict; and
- The perpetrator was aware of the factual circumstances that established the existence of an armed conflict. [emphasis added]
In regard to these two it was stated in the ICC Elements of Crimes:
“There is only a requirement for the awareness [of the perpetrator] of the factual circumstances that established the existence of an armed conflict that is implicit in the terms ‘took place in the context of and was associated with an armed conflict’”
- In this case judicial notice can be taken of the ‘factual circumstances that establish the existence of an armed conflict’. The Court cannot take, and has not taken, judicial notice of the awareness of the accused of such factual circumstances or of the legal character of the armed conflict as internal or international.
- In regard to fact H this appeal is concerned with the fact as judicially modified. In the modified version instead of: ‘The organized Armed factions involved in the armed conflict included the Revolutionary Armed Front (RUF),the Civil Defence Force (CDF) and the Armed Forces Revolutionary Council (AFRC)’, the judicially modified form read as earlier stated in this decision. In regard to facts A, D and H the Fofana Defence submitted as follows:
“... items A, D and H are subject to reasonable dispute in so far as they make assertions as to when, where, and to what extent factual events are said to have transpired, as well as to particular individual’s involvement in such events. These “facts” are by no means generally known, even within this court’s jurisdiction”
In regard to facts A and H, these submissions are patently untenable. There is no principle that prohibits judicial notice being taken of time, place and extent of an event or factual situation or circumstances. Indeed, historical facts usually include such things and may be incomplete without them.
- In regard to fact D, there is nothing I could usefully add to what has been stated in the Decision of the Chamber.
- Facts K, L, M are as follows:
K The Accused, SAMUEL HINGA NORMAN, was the National Coordinator of the CDF.
L. The Accused, Moinina Fofana was the National Director of War of the CDF.
M. The Accused, Allieu Kondewa was the High Priest of the CDF.
- The Trial Chamber judicially noticed these facts after a global determination of applicable jurisprudence without specifying which aspect of the applicable jurisprudence was applicable to these facts. It cannot be said that these facts are so obviously founded on a common fund of knowledge as to make them capable of being judicially noticed without enquiry. The Prosecution provided several documentary source materials as foundation of judicial notice of these facts. Several of the documents were published after the Accused had been indicted. The Fofana Defence submitted that these facts are subject to more than reasonable dispute and cannot be facts of common knowledge. Besides, it was submitted, fact L attested to the criminal responsibility of the accused Fofana as a ‘superior and co-perpetrator in a joint criminal enterprise’. The Prosecutor argued that there was no criminal connotation in the fact that Accused Fofana held the office of National Director of War. It submitted that judicial notice of this fact does not relieve the Prosecution of its burden to demonstrate for the crimes that are alleged.
- Article 6 – 1 of the Statute of the Special Court provided for individual criminal responsibility in the following terms:
A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in subsection 2 to 4 of the present Statute shall be individually responsible for the crime.
Article 6 – 3 provided that:
The fact that any of the acts referred to in article 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior had failed to take the necessary and or reasonable measures to prevent such acts or to punish the perpetrators thereof.
In the light of these provisions the Prosecution was right in its submissions that the mere fact that the Accused Fofana held the office stated in fact L does not connote criminal responsibility.
- Although the second leg of the Fofana Defence submission must fail, the first leg must succeed. It cannot be said that the office held by any of these accused in a fighting group was so notorious as not to be subject to reasonable dispute. Fact K, L, M cannot be said to be subject of common knowledge and therefore a notorious fact.
- Fact U as judicially modified is that “In or about November and/or December 1997, the CDF, including Kamajors, launched an operation called “Black December”. The original version included at the end of the sentence the words: “intended to block off the movements of people and food on the highways so as to starve the junta of supplies and support in towns under their control.” The fact evidently lacks the quality of indisputability. Without any indication what ‘Black December’ was supposed to represent its relevance or quality of indisputability becomes problematic.
- Fact U should not have been judicially noticed, even in the modified form.
Resolutions of the Security Council.
- The Trial Chamber judicially noticed a number of resolutions of the Security Council.
- The Fofana Defence concedes that the Trial Chamber could take judicial notice of the existence and authenticity of resolutions of the Security Council. However, it did not concede that judicial notice could be taken of their contents. It was argued that those resolutions which the Trial Chamber had taken judicial notice of contained legal findings and characterizations, example of which was Resolution 1181 which had used the term ‘armed conflict’, to describe the situation in Sierra Leone and Resolution 1346 which had referred to ‘forced recruitment’ of children which, it was argued, were matters to be proved at the trial. It was further argued that the contents of Security Council resolutions reflect political compromise, and cannot be characterized as neutral and are, therefore, subject to reasonable dispute.
- The Prosecution responded that the Trial Chamber correctly took judicial notice of the Security Council resolutions in question. It referred to the Semanza case in which the Trial Chamber of the ICTR took judicial notice not only of the existence of Security Council resolutions but also of their contents.
- In Semanza the ICTR Trial Chamber took judicial notice of contents of the resolutions of the Security Council without much discussion and merely stated:
The Chamber shall take judicial notice of the contents of resolutions of the Security Council and of statements made by the President of the Security Council because it is an organ of the United Nations which established the Tribunal.
- To put the question that arises as to the propriety of taking judicial notice of the contents of resolutions of the Security Council in proper perspective, it is expedient to note that the primary responsibilities of the Security Council in pursuance of which it would likely make resolutions include responsibility under Chapter VII of the Charter in respect to threat to the peace, breaches of the peace, and acts of aggression is more relevant. In pursuance of its responsibility under Chapter VII, the Security Council is empowered by article 39 ‘to determine the existence of any threat to peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Article 41 and 42, to maintain or restore international peace and security’. Pursuant to its responsibility under Chapter VII, the Security Council can make binding decisions.
- Resolutions of the Security Council are the machinery by which it manifests its decisions. It will be a strange thing if an international tribunal refuses to take judicial notice of the contents of such instrument, which would embody the Security Council decision. Any argument that the Court cannot take judicial notice of the contents of resolutions of the Security Council, generally, will be too wide. The question should not be whether judicial notice can be taken of the contents of a resolution of the Security Council but how much of such contents can be subject of judicial notice.
- Usually, a resolution of the Security Council contains the operative part and the preambular part. The operative part contains the decision of the Security Council and the preambular part usually contains several matters such as, the factors that have been taken into consideration or noted in coming to a decision, matters preceding and relevant to the resolution, the reason why the Security Council had taken the decision in the resolution and all such prefatory matters. The preambular part may contain facts, but they will seldom contain more than statements, for instance, that the Security Council, had taken note of, or considered, certain facts or appreciated or concerned about certain factual situations. For instance, where in the preambular part of a resolution the Security Council states that it is ‘deeply concerned’ about a particular situation, judicial notice should be confined to the fact that it was so deeply concerned, if such is relevant and in issue, but should not extend to judicial notice of the situation which the Security Council is concerned about. The statement that it was concerned about a situation may be foundational material for judicial notice of the situation, the usefulness of which falls to be considered along with other available foundational material, where the Court is requested to take judicial notice of the situation, as distinguished from evidence of the situation.
- In regard to judicial notice of the contents of resolutions of the Security Council, while in appropriate cases the court will, as has been seen, be competent to take judicial notice of their contents, this will depend on the relevance of the facts so noticed in the contents and the limitation pointed out in regard to judicial notice of facts in the preambular part. Without deciding that the Trial Chamber is wrong to have taken judicial notice of the contents of the pertinent resolutions of the Security Council, the Trial Chamber should permit further arguments in the course of the trial as to the particular facts it has taken judicial notice of in the contents and the relevance of such facts to the case in the light of the guidelines given above.
In conclusion, my findings are as follows:
- The Trial Chamber is correct in finding that facts (A) and (H) qualify for judicial notice;
- The Trial Chamber was in error in finding that facts (D), (K), (L), (M) and (U) qualify to judicial notice;
- Subject to the guidelines given, the Trial Chamber was competent to take judicial notice of the contents of resolutions of the Security Council.
The Annulment Question.
- The Fofana Defence prayed that the decision of the Trial Chamber be annulled because it did not take into consideration its oral response to the Prosecution’s motion for Judicial Notice and Admission of Evidence. The short answer to that submission is that having regard to the contents of the oral submission that facts B, P, and W were facts of common knowledge and that the defence might be able to agree to facts E, Q, F, G, L and U if the wording were amended; the issues considered by the Trial Chamber, which had apparently proceeded on the basis that the Fofana defence was challenging all the facts as capable of judicial notice; and, the findings of the Trial Chamber, no miscarriage of justice has been occasioned by the failure of the Trial Chamber to take into consideration the oral submissions. In the result the decision of the Trial Chamber cannot be annulled on that ground.
Justice Emmanuel Ayoola
 “Prosecution’s Request to Admit”
 “Prosecution’s Motion for Judicial Notice and Admission of Evidence”
 “Defence Motion Requesting an Extension of Time within which to respond to Prosecution Motion”
 “Kondewa – Order rejecting the filing of the Defence Objection to Prosecution Motion for Judicial Notice and Admission of Facts”
 These are facts B, P, and W in Annex A to the Prosecution Motion for Judicial Notice.
 See Annex 1 to the Trial Chamber Decision on Judicial Notice for the relevant factual details
 See Annex II to the Trial Chamber Decision on Judicial Notice for the relevant resolutions of the Security Council.
 The Geneva Conventions of 12 August 1949 and the Second Additional Protocol of 8 June 1977.
 Prosecutor v Semanza, Case No. ICTR-97-20-T, Decision on the Prosecutor’s Motion for Judicial Notice and Presumption of Facts Pursuant to Rules 94 and 54, 3 November 2000 (“Semanza Decision”).
 Judicial notice of matters of fact has been familiar to English lawyers for over 650 years: G. D. Nokes “The Limits of Judicial Notice” (1958) 74 LQR 59, 61
 Article 21 of the Nuremberg Charter which provided:
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, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and of records and findings of military or other Tribunals of any of the United Nations.
 Rule 89(B) provides:
In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.
 The Rules of Evidence and Procedure of the ICTY and ICTR, and now of the ICC, contain judicial notice provisions as in Rule 94(A) of our Rules.
 See Semanza decision, paras 19 28
 See Bassiouni & Manikas, The Law of the International Tribunal for the Former Yugoslavia. P.952 quoted in paragraph 23 of Semanza decision.
 Nokes, “Limits of Judicial Notice” 74 (1958) LQR 59, p66.
 Ibid, p. 66
 Nokes: Op. Cit pp. 66 -67
  AC 191 at p. 212
 Blackstone’s Criminal Practice  para. F1.3
 In Prosecutor v. Tadic Case No. IT-94-1-AR72, Decision on the Defence Motion For
Interlocutory Appeal on Jurisdiction, 2 October 1995.
 Ibid, para. 70
 As was succinctly put by a legal writer. “As opposed to the facts which describe what happened, law deals with the question of what ought to be done about those facts.” See Paton: Jurisprudence 2nd Ed. (1951) p. 156.
 UN Doc PCNICC/200/1/Add.2, 2 November 2000, at page 18.
 Para 27.
 Fofana Reply, para. 15
 For instance, Mazurana, Dyan and Khristopher Carlson, From Combat to Community: Women and Girls of Sierra Leone, The Women Waging Peace Policy Commission, ( January, 2004) page 11; No Peace Without Justice, Sierra Leone Conflict Mapping Programme 9 March 2004.
 Fofana Notice of Appeal and Submissions, para16
 Prosecution’s Response to Fofana’s Notice of Appeal and Submissions, para. 23
 Fofana Reply, para 22
 Fofana Reply, para 24
 Semanza Decision, para. 38