194. At the time of the Decision on Judicial Notice, Rule 94 provided that “[a] Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof.”[1]  The Rule was later amended[2] to provide, in addition, for the taking of judicial notice of adjudicated facts or documentary evidence.[3]  The provision relating to facts of common knowledge, provided under paragraph (A) of Rule 94, remained the same.[4]  As the ICTY Appeals Chamber explained in Prosecution v. Milošević, Rule 94(A) “commands the taking of judicial notice” of material that is “notorious.”[5]  The term “common knowledge” encompasses facts that are not reasonably subject to dispute: in other words, commonly accepted or universally known facts, such as general facts of history or geography, or the laws of nature.[6]  Such facts are not only widely known but also beyond reasonable dispute.[7]  As stated above, the fact that the Appellant did dispute some of the facts judicially noticed before the Trial Chamber did not prevent the Trial Chamber from qualifying the facts as facts of common knowledge since, as explained by the Trial Chamber, “[h]aving entered a plea of not guilty to all the counts in the indictment, the Accused has placed even the most patent of facts in dispute. However, this alone cannot rob the Chamber of its discretion to take judicial notice of those facts not subject to dispute among reasonable persons.”[8]  Having regard to the arguments submitted by the Appellant before the Trial Chamber to challenge the nature of the facts adduced by the Prosecution and to the facts themselves, the Appeals Chamber considers that the said facts were not the subject of a “reasonable” dispute. Therefore, the Appeals Chamber finds that the Trial Chamber did not err in considering that the facts enumerated in the Decision on Judicial Notice were “facts of common knowledge” within the meaning of Rule 94 of the Rules.

192. […] Instead, the Chamber took notice only of general notorious facts not subject to reasonable dispute, including, inter alia: […] that there was an armed conflict not of an international character in Rwanda between 1 January 1994 and 17 July 1994; […]

398. The Appeals Chamber is of the view that it was within the Trial Chamber’s discretion to take into account as mitigation in sentencing the Appellant’s previous good character and accomplishments as bourgmestre. Precedent does not support the Prosecution’s position that “being a successful academic, politician or administrator is irrelevant” as a mitigating factor in crimes of genocide and crimes against humanity. Notwithstanding, the Appeals Chamber notes that in most cases the accused’s previous good character is accorded little weight in the final determination of determining the sentence.[1] […]

394. In relation to the submission that the sentences imposed by the Trial Chamber are disproportionate to those imposed in other cases before the International Tribunals and do not reflect the gravity of the crimes, the Appeals Chamber recalls that, as a general principle, comparison to other cases in support of a move to have the sentence increased may indeed provide guidance if it relates to the same offence, in particular if the crimes were committed in substantially similar circumstances. However, such comparison may be of limited value given that each case has its own particular circumstances and that the aggravating and mitigating factors may dictate different results.[1] Ultimately, the decision as to the length of sentence is a discretionary one, turning on the circumstances of the case.[2]

Transcript of 19 May 2005, pp. 49-50:

Over the past two days, we have heard from two Defence witnesses under Rule 115, provisions for hearing additional evidence on appeal.  We have also heard from two Prosecution witnesses who were presented in the rebuttal to the Appellant's additional evidence, and we are now presented with a new motion by the Appellant to call yet two more witnesses who, the Appellant alleges, will challenge the testimony of one of the Prosecution's rebuttal witnesses. […]

At today's Rule 115 hearing a Prosecution witness alleged that two Tribunal employees approached her at the United Nations safe house where she was staying while testifying before this Tribunal in another case.  She further alleged that these two Tribunal employees offered to pay her money and give her substantial assistance in other ways if she would come back to this Court and recant her trial testimony in the Kamuhanda case.  The Appellant would now like to call these two Tribunal employees, presumably, for the purpose of getting them to deny having offered any bribes to the Prosecution witness in question.

For two reasons, the Appeals Chamber is not persuaded that this is appropriate.  First, this is a Rule 115 hearing, which is intended to be a sharply delimited proceeding for entering discrete, specific evidence into the record; it is not intended to be a trial within a trial that opens the door to the exploration of every issue that might be raised during the hearing.  Presenting these two witnesses would be a rejoinder to a rebuttal to the Defence's original Rule 115 evidence, and there is no guarantee that it would end there.

Second, the Appeals Chamber is not convinced that the witness's testimony will make a material difference to the Defence's case.  The Appeals Chamber simply does not believe that such evidence on the record would be at all helpful in assessing the credibility of the Prosecution's rebuttal witnesses.  The Appeals Chamber does not foreclose the possibility that if sufficiently compelling or unexpected evidence surfaces during a Rule 115 hearing, it might be required in the interests of justice to expand the hearing beyond its original scope.  But under the circumstances of this case the Appellant has failed to convince the Chamber that such truly exceptional circumstances exist.  The Appellant's motion is denied.

The Appeals Chamber decided to refer the allegations of contempt and false testimony, which arose during the course of the Rule 115 proceedings, to the Prosecution for general investigation. See pp. 50-51.

22. […] While confirming the principle that to avoid prejudice to an accused in the preparation of the defence case the Prosecution must plead the material facts in the indictment, it does not follow that a Trial Chamber must allow a Prosecution application to amend an indictment to expand the material facts alleged pre-trial if in all the circumstances prejudice would accrue to the accused by those amendments.  The fact that the expansion of counts charged may be derived from material already disclosed to the Accused also does not automatically nullify prejudice to the Accused.  It is to be assumed that an Accused will prepare his defence on the basis of material facts contained in the indictment, not on the basis of all the material disclosed to him that may support any number of additional charges, or expand the scope of existing charges.  In either circumstance, when a complaint is made on appeal about a failure to plead material facts, or objection is made to a Prosecution application to amend to add material facts or new charges, the issue is whether the accused has been or will be prejudiced.

38. While the Appeals Chamber has determined that the Trial Chamber erred in classifying some of the proposed amendments as new charges, this does not necessarily mean that the Trial Chamber erred in the decision that it reached to reject the proposed amendments.  As the Trial Chamber acknowledged in its decision, new charges do not prohibit a Chamber from granting the Prosecution leave to amend an indictment.  Conversely, the fact that an amendment to an indictment does not amount to a new charge does not automatically obligate the Trial Chamber to permit it.  Rule 50 (A), which governs the permissibility of amendments to indictments, does not distinguish between amendments that add new charges and those that merely add or clarify material facts.  Rather, whether to permit either kind of indictment is a multi-factor discretionary decision for the Trial Chamber.  In this case, the Trial Chamber’s decision did not turn principally on the fact that new charges were involved, but rather on the prejudice to the Accused that would result from permitting the amendments and on the Prosecution’s failure to request the amendments at a date consistent with due diligence.  Thus, the Appeals Chamber’s conclusion that the Trial Chamber incorrectly categorised some of the amendments as new charges does not require setting aside the Trial Chamber’s decision; instead, the Appeals Chamber must assess the issues of prejudice and prosecutorial diligence.

51. […] As the Appeals Chamber held in the Karemera case, “although Rule 50 does not require the Prosecution to amend the indictment as soon as it discovers evidence supporting the amendment, neither may it delay giving notice of the changes to the Defence without any reason”.[1]  Under some circumstances, the Prosecution might justifiably wait to file an amendment while it continues its investigation so as to determine whether further evidence either strengthens its case or weakens it.  […] Where the Prosecution has delayed unnecessarily in bringing particular allegations, and this delay has caused prejudice to the defendant, it is within the Trial Chamber’s discretion to find that this delay constitutes sufficient ground to refuse an amendment to an indictment.[2]

CONSIDERING that although the principal mandate of the Appeals Chamber is to consider legal errors invalidating the Trial Chamber’s Judgement or factual errors occasioning a miscarriage of justice,[1] it has repeatedly held that it may also consider legal issues that are “of general significance to the Tribunal’s jurisprudence,”[2] even if they do not affect the verdict, so long as they have a “nexus with the case at hand,”[3] and that such determinations do not constitute impermissible “advisory opinions,”[4] but are instead necessary means of moving forward this ad hoc International Tribunal’s jurisprudence within the limited time in which it operates and contributing meaningfully to the overall development of international criminal law;[5]

17. The Appeals Chamber emphasizes that Rule 94 of the Rules is not a mechanism that may be employed to circumvent the general Rules governing the admissibility of evidence and litter the record with matters which would not be admitted otherwise. Accordingly, on appeal, a fact qualifying for judicial notice under Rule 94 of the Rules is not automatically admitted.  For a fact capable of judicial notice to be admitted on appeal, the requirements provided for by Rule 115 of the Rules need to be satisfied.

18. Accordingly, the Appeals Chamber finds that a motion filed solely under Rule 94 of the Rules, without addressing the requirements of Rule 115 of the Rules, is an incorrect way to seek to have facts or documentary evidence admitted on appeal. Contrary to the argument of the Appellant, the Appeals Chamber finds that this will not “eviscerate” Rule 94 of the Rules in relation to all appellate proceedings, since the legal consequences attached to the taking of judicial notice remain the same. In this respect, the Appeals Chamber recalls that the taking of judicial notice under Rule 94(A) or 94(B) of the Rules entails specific consequences for the moving party.

A. Pleading Practices of the Prosecution

9. The interlocutory appeal of the Appellants does relate to issues that should have been raised in a preliminary motion filed pursuant to Rule 72 of the Rules. The first complaint is directed to the pleading practices of the Prosecution. In relation to each of the Counts challenged on this Appeal, the Appellants argue that the Prosecution failed to satisfy the first requirement of the Tadić Jurisdiction Decision by not identifying the rule of international humanitarian law alleged to have been breached, or indicating whether the legal basis for that count was the laws of war (conventional) or customary international law (customs of war).[1]

10. While the Appeals Chamber agrees that an accused is entitled to know the jurisdictional basis for the charge against him, the Appellants in this case did not complain of the Prosecution’s pleading prior to the commencement of this trial pursuant to Rule  72 of the Rules.[2] Given that it was clear at that time that the Prosecution was not expressly pleading the nature of the armed conflict, and that the Prosecution was proceeding on the basis that Article 3 applied to both international and non-international conflicts, it might be inferred that the Appellants saw a tactical advantage in waiting until this time. While the Appellants say that, during the pre-trial stage, they made no challenge to the pleading because of the holding of the Tadić Jurisdiction Decision regarding the application of Article 3 offences to both types of conflict, they also say that the Tadić Jurisdiction Decision did not establish the applicability of all Article 3 offences to non-international armed conflicts, because Tadić was not charged with any property offences under Article 3.[3] Hence, the Appellants’ reliance on the Tadić Jurisdiction Decision as a reason for not bringing a pre-trial motion challenging the Prosecution’s pleading is not persuasive. The Appellants knew at the time of the issuing of the Indictment that their argument would be that the Tadić Jurisdiction Decision did not establish the application of the Article 3 offences subject of Counts 5, 6 and 7 to non-international armed conflicts, and that complaint should have been made pre-trial.

11. The Appellants further complain that the Prosecution did not identify the legal basis for the Counts charged because it did not want to commit itself to proving that the armed conflict was either international or non-international.[4] This is also a complaint about the pleading practice of the Prosecution that should have been brought by the Appellants during the pre-trial stage. By not pleading the nature of the armed conflict in the Indictment, the Prosecution left the issue to the Trial Chamber to determine. The Prosecution also made it clear to the Appellants that it did not consider the Tribunal’s jurisdiction over Counts 5, 6, and 7 to be dependent on a finding that an international armed conflict occurred. If the Appellants required greater clarification than this, they should have filed a pre -trial motion pursuant to Rule 72.

1. Scope of Article 3

13. The Appellants’ challenge to the Tribunal’s jurisdiction over Counts 5, 6 and 7 of the Indictment stems from the Appellants’ interpretation of the Tadić Jurisdiction Decision regarding the scope of jurisdiction under Article 3 of the Statute. In the Tadić Jurisdiction Decision, the Appeals Chamber held that Article 3 confers jurisdiction over any serious offence against international humanitarian law committed in non-international or international armed conflict not covered by Articles 2, 4, or 5.[1] The Appeals Chamber prescribed a four-prong test to ensure that offences charged under Article 3 lie within the International Tribunal’s jurisdiction.[2] On appeal the Appellants argue that the jurisdictional grant embodied in the enumerated provisions of Article 3 only refers to the conventional law from which that text is derived. The Appellants claim that as that conventional law underpinning Articles 3(b), (d) and (e), charged in Counts 5, 6 and 7 of the Indictment respectively, relates to international armed conflicts and situations in occupied territory, the Tribunal does not have jurisdiction over these offences in non-international armed conflicts.[3]

14. The Appellants’ position is an unnecessarily narrow reading of the Appeals Chamber’s jurisprudence with respect to the scope of the enumerated provisions in Article 3. In the Tadić Jurisdiction Decision, the Appeals Chamber stated, with respect to the list of enumerated violations, that “this list may be construed to include other infringements of international humanitarian law”,[4] demonstrating that the enumerated crimes of the list itself should be considered to encompass rules in addition to the conventional law from which their text originates.[5] Accordingly, properly understood, Article 3 confers jurisdiction over violations of rules that are expressed by the provisions of the Article, but which are not limited to the conditions of the rule’s origin in conventional instruments applicable to international armed conflicts only.[6]

See also para. 45.