Existence of a plan or policy for genocide
|Decision on Clarification - 08.12.2006||
NAHIMANA et al. (Media case)
11. […] The Appeals Chamber […] stresses the need for a clear distinction between the issue of the existence of genocide in Rwanda in 1994, a fact judicially noticed by the Appeals Chamber in the Karemera Decision, from the separate questions regarding the existence of a conspiracy to commit genocide between the three co-appellants in the present case, and the Appellant’s participation in such a conspiracy. The Appeals Chamber finds that there is nothing in the Appellant’s arguments to suggest that the judicially noticed facts in the Karemera Decision would prevent him either from challenging the existence of a conspiracy to commit genocide or from disputing his participation therein. The Karemera Decision is clear in that its direction to the Trial Chamber to take judicial notice of facts of common knowledge does not shift the ultimate burden of persuasion, which remains on the Prosecution, with respect to the personal responsibility of each accused. It has been subsequently specified by the Appeals Chamber that with regard to the Karemera Decision, “taking of judicial notice of this fact does not imply the existence of a plan to commit genocide”. Therefore, the Appeals Chamber, noting that the Appellant indeed challenges the Trial Chamber’s findings of conspiracy, both in his Notice of Appeal and in his Appeal Brief, considers that he has failed to demonstrate how the Karemera Decision, if applicable to his case, could impact on his ability to dispute that “he was party to a plan to commit genocide”.
12. […] The Appeals Chamber, finding that the Appellant has failed to raise on appeal any argument challenging the occurrence of genocide, considers therefore that he has not shown how the judicially noticed facts in the Karemera Decision, if applicable to his case, could adversely affect his appeal. His request for clarification in this regard is therefore denied as unfounded.
 [The Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006], para. 35.
 [The Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006], paras 30 and 42; see also Prosecutor v. Semanza, Case No. ICTR-97-20-A, Judgement, 20 May 2005, para. 192.
 [Edouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73(C), Decision on Motions for Reconsideration, 1 December 2006], para. 21.
 Notice of Appeal, Ground 30 and Appeal Brief paras 243-249.
|ICTR Rule Rule 94 ICTY Rule Rule 94|
|Decision on Reconsideration - 01.12.2006||
KAREMERA et al.
At para. 21, the Appeals Chamber recalled that:
[T]he existence of a plan or policy is not a legal ingredient of the crime of genocide. While the existence of such plan may help to establish that the accused possessed the requisite genocidal intent, it remains only evidence supporting the inference of intent and does not become the legal ingredient of the offence.
As a result it held that “if the existence of a plan to commit genocide is vital to the Prosecution’s case, this must be proved by evidence.” (para. 21).
 The Prosecutor v. Radislav Krstic, Case No. IT-98-33-A, Judgment, 19 April 2004,para.225 which refers to The Prosecutor V. Goran Jelisic, Case No. IT-95-10-A,Judgment , 5 July 2001, para.48
|ICTR Statute Article 2(2) ICTY Statute Article 4(2)|