O
SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA ROAD • FREETOWN • SIERRA LEONE
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THE APPEALS CHAMBER

FOFANA – DECISION ON APPEAL AGAINST “DECISION ON PROSECUTION’S MOTION FOR JUDICIAL NOTICE AND ADMISSION OF EVIDENCE”

THE APPEALS CHAMBER (“Appeals Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Justice Emmanuel Ayoola, Presiding Judge, Justice George Gelaga-King, Justice Renate Winter, Justice Geoffrey Robertson and Justice Raja Fernando;

BEING SEIZED OF the Notice of Appeal and Submissions against the Decision on Prosecution Motion for Judicial Notice and Admission of Evidence filed on 28 October 2004 on behalf of Moinina Fofana (“Appeal”) pursuant to Rule 73(B) of the Rules of Procedure and Evidence of the Special Court (“Rules”);

NOTING the Trial Chamber’s Decision on Prosecution Motion for Judicial Notice of 2 June 2004 (“Trial Chamber Decision”) granting the Prosecution Motion for Judicial Notice[1] in part, and the Corrigendum to that Decision of 23 June 2004;

NOTING the Trial Chamber’s Decision on Joint Request for Leave to Appeal against Prosecution Motion for Judicial Notice (“Decision on Leave to Appeal”) of 20 October 2004, in which it granted leave to appeal in respect of Fofana, but rejected Kondewa’s application;

NOTING the Order of the President on 12 November 2004 assigning this matter to Justices Renate Winter, Geoffrey Robertson and himself, declaring that there would be no oral hearing on this matter and granting the Prosecution’s belated Request of 8 November 2004 for one day’s extension of time to file its Response and deeming the Response properly filed;

NOTING the Order of the President on 18 March 2005 assigning the matter to the full bench of the Appeals Chamber;

CONSIDERING the Prosecution’s Response to the Appeal filed on 5 November 2004 (“Prosecution response”) , which was one day outside the period stipulated by the “Practice Direction for Certain Appeals before the Appeals Chamber” of 30 September 2004;

CONSIDERING the Defence Reply to the Prosecution Response filed on 9 November 2004 (“Defence reply”);

DECIDES AS FOLLOWS:

1. PROCEDURAL BACKGROUND

1. 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. [2] On 15, 17 and 18 March 2004, the 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[3] 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”).
2. On 19 April 2004, the 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. [4] 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[5].
3. 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[6]. The Fofana Defence, however, failed to submit a written response to the Prosecution Motion.
4. The Trial Chamber in its Decision on the Prosecution Motion found as follows:
   1. That alleged facts (A), (B), (D), (E), and (W) qualify for judicial notice.[7]
   2. That alleged facts (H), (K), (L), (M), and (U) qualify for judicial notice in a judicially modified form.
   100. That all other facts of common knowledge listed in Annex A of the Motion do not qualify for judicial notice because they are not beyond reasonable dispute.
   4. That the facts found to qualify as judicial notice satisfy the tests for them to be judicially noticed.
   5. That documents 9 -21 and 31 – 32 in Annex B of the Motion qualify for judicial notice as to their existence and authenticity;
   6. That documents 22 – 30[8] and 34 – 40 qualify for judicial notice as to their existence, authenticity and contents.
   7. 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.
   8. That the documents judicially noticed were deemed by the Chamber to be conclusively proven as to their existence and authenticity.

2. SUBMISSIONS OF THE PARTIES

A. Defence Submissions

5. The Defence grounds of appeal can be summarised as follows:
   1. That the Trial Chamber wrongly applied the legal criteria for determining facts of common knowledge.
   2. 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.
6. The Defence disagrees that 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 fulfil the criteria for determining facts of common knowledge set out by the Trial Chamber which are:
   1. the facts are relevant to the case of the accused person;
   2. the facts are not subject to reasonable dispute;
   100. the facts do not include legal findings; and
   4. the facts do not attest to the criminal responsibility of the accused.
7. Disputing in particular fact “L”, which states that Fofana was the National Director of War of the CDF, the Defence submits that if this fact is judicially noticed, it would make it impossible to disprove, being a central question in the trial, and that any answer to the question whether the Accused can be held responsible as a superior or co-perpetrator in a joint criminal enterprise for crimes committed by the CDF members would directly reflect his position in the group.
8. The Defence argues further that:
   1. Facts A, D and H include legal findings or characterisations and therefore cannot be considered as facts of common knowledge.
   2. 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.
   100. 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.
   4. The Security Council Resolutions referred to in Annex II of the Decision on Judicial Notice include facts that are subject to reasonable dispute as well as legal findings or characterisations and, moreover, Security Council Resolutions reflect political compromise.
9. The Defence seeks an annulment by the Appeals Chamber of the Decision of the Trial Chamber and suggests that the Appeals Chamber could take judicial notice of facts B, P, and W as specified in Annex I of the Decision and of the existence and authenticity of the UN Security Council Resolutions as contained in Annex II of the decision.

B. Prosecution Response

10. The Prosecution submits that:
    1. The Defence fails to support its arguments with any legal authority or sound application of the criteria established in the Decision.
    2. The Defence does 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.
    100. Fact D is not subject to dispute since it arises out of the provisions of the Geneva Conventions (Article3 (1) of Convention IV, and Protocol II Additional to the Geneva Conventions.
    4. 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 as National Director of war, was also responsible for the crimes as alleged.
    5. The Trial Chamber properly took judicial notice of the contents of the Security Council Resolutions, and in the case of Semanza, the Trial Chamber of the ICTR took judicial notice not only of the existence and authenticity of the pertaining Security Council Resolutions but also their contents.
    6. International Criminal Tribunals do take judicial notice of facts contained in authoritative documents such as those of the UN and its affiliated bodies, and the facts listed under A, H, K and U meet the requirements as stated in the Semanza case.
    7. The term “armed conflict” in facts A and H and “organised armed faction” in fact D are mere facts of common knowledge which qualify for judicial notice and are not legal findings or characterizations.
    8. 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. Defence Reply

11. In its Reply the Defence reiterates some of its earlier arguments and submits that:
    1. The Prosecution Response was filed out of time.[9]
    2. 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 “organised armed faction” are not mere factual elements.
    100. Items K, L and M are not only contentious, they also make no limitation as to the time the alleged positions were held.
    4. 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.
    5. 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.
12. Disputing the Prosecution’s claim that the Defence claims were unsubstantiated, the Defence refers to paragraphs 15 -22 of its submissions on appeal where it claims to have methodically applied the criteria adopted by the Trial Chamber, and accepted by both Prosecution and Defence, to each disputed item. The Defence argues further that the Prosecution’s reliance solely on the Semanza case does not serve to disprove the Defence submissions.
13. The Defence reiterates its contention that facts A, D, H, K, L and U in Annex I to the Decision are not facts of common knowledge under Rule 94 of the Rules and that “armed conflict” is a necessary pre-condition for criminal responsibility under Article 4(c) of the Statute, and so cannot be judicially noticed.
14. With regard to Security Council resolutions, the Defence submits that taking judicial notice of them is at odds with the inherent power of the Court as an independent finder of fact.
    3. PRELIMINARY ISSUE
15. Before addressing the main issue at stake in the present appeal, the Appeals Chamber notes that the Trial Chamber failed to take account of the oral response given by Fofana to the Prosecution Motion for Judicial Notice. The Trial Chamber found in its Decision on Leave to Appeal that “it may not have given proper consideration to the oral Response of the Second Accused”.[10] In its oral response, the Defence accepted facts B, P and W as facts of common knowledge and indicated that it might be able to agree to E, Q, F, G, L, U, if the wording were amended somewhat after discussions with the Prosecution. In its response to the Joint Request of the Second and Third Accused for Leave to Appeal against Decision on Prosecutor’s motion for Judicial Notice, the Prosecution argued that taking into consideration the oral response of the second Accused at the Pre-trial conference would not have affected the outcome of the Decision, so that the decision could stand.[11] As an Oral Response has to be accepted the same way as a written one, it is the view of the Appeals Chamber that the oral response of the Defence was valid and directly relevant to the issue at stake and that the Trial Chamber erred in not taking it into account. However, the Appeals Chamber has now taken it fully into account, so the granting of leave did repair any miscarriage of justice. We note that the Trial Chamber could simply have reconsidered its decision and taken the oral submissions into account, rather than using its own failure as a reason to give leave to appeal.
    4. APPLICABLE LAW
16. The general rules of evidence that this Court must apply are contained in Rule 89 of the Rules, which 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.

17. Rule 94 of the Rules provides as follows:

Judicial Notice

(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.

18. Rule 94 permits judicial notice of three categories of fact:
    1. facts of common knowledge (94(A));
    2. adjudicated facts from other proceedings before the Court (94(B)); and
    100. documentary evidence from other proceedings before the Court (94(B))
19. At this stage in the life of the Court, no adjudicated fact from other proceedings before this Court or documentary documents from other proceedings before this Court exist, the Appeals Chamber therefore limits its considerations to Rule 94(A).
20. In order to establish the meaning of “facts of common knowledge”, the Trial Chamber relied on the ICTR decision in Semanza, which dealt extensively with facts of common knowledge following a Prosecution request that the Trial Chamber take judicial notice of:

“a panoply of facts, which collectively may fairly be characterized as socio-political historical background facts relating to the existence of ‘genocide’, ‘armed conflict’, and ‘widespread and systematic attacks’ against the Tutsi civilian population in Rwanda during the months of April through July, 1994.”[12]

21. In the Semanza Decision, relied upon by both Prosecution and Defence in this Appeal, ‘facts of common knowledge’ were interpreted to mean “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 law of nature”.[13] The Trial Chamber also held that common knowledge encompassed “those facts that are generally known within a tribunal’s territorial jurisdiction”.[14] Therefore, “[u]nder the rubric of matters of common knowledge, a court may generally take judicial notice of matters so notorious, or clearly established or susceptible to determination by reference to readily obtainable and authoritative sources that evidence of their existence is unnecessary.”[15]
22. The doctrine of judicial notice has been said to serve two main purposes:[16]
    1. to expedite the trial by dispensing with the need to submit formal proof on issues that are patently indisputable; and
    2. to foster consistency and uniformity of decisions on factual issues where diversity in factual findings would be unfair.
23. It was stated in Semanza that:

“It is appropriate to apply the doctrine of judicial notice in the context of this case in some of the instances requested by the Prosecutor because to do so will ensure the Accused a fair trial without undue delay rather than one unnecessarily drawn out by the introduction of evidence on matters which are patently of common knowledge in the territorial area of the Tribunal and reasonably indisputable.”[17]

It has also been stated by an ICTY Trial Chamber that: “The purpose of judicial notice under Rule 94 is judicial economy...and...a balance should be struck between judicial economy and the right of the accused to a fair trial”.[18]

24. The Charter of the International Military Tribunal at Nuremberg as well contained a provision on judicial notice in Article 21 which reads as follows:

Article 21: 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.

25. Judicial notice under Rule 94 must be distinguished from the court’s reception of information under Rule 92bis, which the prosecution relies upon as an alternative mode of proof. Rule 92bis(A) and (B) provide:

Alternative Proof of Facts

(A) A Chamber may admit as evidence, in whole or in part, information in lieu of oral testimony.

(B) The information submitted may be received in evidence if, in the view of the Trial Chamber, it is relevant to the purpose for which it is submitted and if its reliability is susceptible of confirmation.

[...]

26. SCSL Rule 92bis is different to the equivalent Rule in the ICTY and ICTR and deliberately so. The judges of this Court, at one of their first plenary meetings, recognised a need to amend ICTR Rule 92bis in order to simplify this provision for a court operating in what was hoped would be a short time-span in the country where the crimes had been committed and where a Truth and Reconciliation Commission and other authoritative bodies were generating testimony and other information about the recently concluded hostilities.[19] The effect of the SCSL Rule is to permit the reception of “information” - assertions of fact (but not opinion) made in documents or electronic communications - if such facts are relevant and their reliability is “susceptible of confirmation”. This phraseology was chosen to make clear that proof of reliability is not a condition of admission: all that is required is that the information should be capable of corroboration in due course. It is for the trial chamber to decide whether the information comes in a form, or is of a kind, that is “susceptible to confirmation”. It follows, of course, from the fact that its reliability is “susceptible of confirmation”, that it is also susceptible of being disproved, or so seriously called into question that the court will place no reliance upon it.
27. Rule 92bis permits facts that are not beyond dispute to be presented to the court in a written or visual form that will require evaluation in due course. A party which fails in an application to have a fact judicially noticed under Rule 94(A) may nonetheless be able to introduce into evidence the sources upon which it has relied under 92bis and at the end of the trial the court may well conclude that the fact has been proved beyond reasonable doubt. The weight and reliability of such “information” admitted via Rule 92bis will have to be assessed in light of all the evidence in the case.
    5. MERITS OF THE MOTION
28. Whereas the Defence as well as the Prosecution agree that the Trial Chamber used the correct legal criteria in determining of which facts it would take judicial notice as facts of common knowledge, the central claim of the Defence consists in stating that the Trial Chamber erred in the application and interpretation of these criteria. It is accepted though that the Trial Chamber correctly identified the criteria for facts of common knowledge as follows:
    1. the facts are relevant to the case of the accused person;
    2. the facts are not subject to reasonable dispute;
    100. the facts do not include legal findings; and
    4. the facts do not attest to the criminal responsibility of the accused.

Before turning to the interpretation of the criteria, it is of assistance to set out the facts that are in dispute.

29. The seven facts as found by the Trial Chamber that the Defence disputes are as follows:

A The armed conflict in Sierra Leone occurred from March 1991 until January 2002.

4. 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 Conventions.
8. Groups commonly referred to as the RUF, AFRC and CDF were involved in armed conflict in Sierra Leone.
11. The Accused, SAMUEL HINGA NORMAN, was the National Coordinator of the CDF.

50. The Accused Moinina Fofana was the National Director of War of the CDF.

13. The Accused, Allieu Kondewa was the High Priest of the CDF.
21. In or about November and/or December 1997, the CDF, including Kamajors, launched an operation called “Black December”.

Furthermore, the Defence argues that the Trial Chamber erred in taking judicial notice of the contents of certain Security Council Resolutions.

30. It is helpful at this point to examine the legal implications of judicial notice. The ICTR Trial Chamber in Semanza stated that judicially noticed facts serve as conclusive proof of those facts and the taking of judicial notice “ends the evidentiary inquiry.” The Chamber went on to say that:

To permit the Defence to submit evidence in rebuttal of the judicially noticed facts would undermine the very nature of the doctrine which is aimed at dispensing with formal proofs for matters that are of common knowledge and are reasonably indisputable.[20]

As a result, the Chamber held that it did not need to determine the question of whether it would accept presumptions of the same facts, which had been pleaded as an alternative by the Prosecution in that case.

31. The Appeals Chamber notes that ICTY trial chambers have taken two approaches. The first is that once a fact has been judicially noticed this ends the evidentiary inquiry and the fact is taken as conclusively proven. The second is that taking judicial notice of a fact means that the moving party does not have to present formal proof of that fact at trial, and shifts the burden of proof to the opposing party to disprove the fact. The ‘burden shifting approach’ has been adopted specifically in relation to Rule 94(B) as opposed to Rule 94(A). Indeed, it does not seem to be compatible with the concept that facts capable of being judicially noticed are beyond reasonable dispute. If the possibility of a reasonable dispute exists then the fact should not be judicially noticed. In the Krajisnik decision, the Trial Chamber stated that judicial notice of “facts of common knowledge” under Rule 94(A) normally implies that such facts cannot be challenged during trial.[21]
32. This Chamber comes to the conclusion that facts of common knowledge under Rule 94(A) cannot be challenged during trial and that legal conclusions as well as facts which constitute legal findings cannot be judicially noticed.
33. This Chamber will now consider the application and interpretation of the criteria to each of the facts that were judicially noticed by the Trial Chamber.

(i) The armed conflict in Sierra Leone occurred from March 1991 until January 2002 and Groups commonly referred to as the RUF, AFRC and CDF were involved in the armed conflict in Sierra Leone (Facts A and H)

34. The Defence alleges that the fact that there was an armed conflict in Sierra Leone is both subject to reasonable dispute and amounts to a legal finding that directly concerns the criminal responsibility of the Accused as it is an element of the crimes under Articles 3 and 4(c) of the Statute with which the Accused is charged. The basis of the Defence objection is neither to the time period nor to the reference to the involvement of the RUF, AFRC and CDF in the armed conflict, but to the assertion that an armed conflict existed at all during the period relevant to the indictment.
35. The existence of an armed conflict is an important factual or contextual element in all war crimes by definition. This is reflected in the wording of Articles 3 and 4 of the Statute, as it is in the equivalent provisions in the Statutes of the ICTY and ICTR. In the Simic case, the Trial Chamber found that Rule 94 was intended to cover facts and not legal consequences inferred from them so that the trial chamber could take only judicial notice of factual findings and not of a legal characterisation as such.[22]
36. The relevant test therefore comes back first to the question of whether these facts are beyond reasonable dispute and can be described as facts of common knowledge. According to principle, this requires an examination of whether the fact is generally known within the territorial jurisdiction of this Court or whether it is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be called into question.[23] A judge may rely on his own local knowledge, which is the case here, especially, as the SCSL is located in Sierra Leone.[24] The fact that there was an armed conflict in Sierra Leone is a ‘notorious fact of history’. Furthermore, in the context of Sierra Leone these facts cannot be subject to reasonable dispute taking into consideration the general knowledge of the population. A multitude of victims with mutilations which cannot stem from anything other than an armed conflict allows for an accurate and ready determination of this fact by immediately obtainable evidence. To contest the fact that there was an armed conflict is frivolous. The armed conflict even provided the context in which the Special Court was created to try those who bear the greatest responsibility for crimes committed.
37. Furthermore, the fact that an armed conflict existed is capable of accurate and ready determination by a wide range of other authoritative sources, as for example, the existence of the United Nations peacekeeping mission established by Security Council resolution.
38. In addition, the appellant in this case has already approached this Chamber on a previous occasion, arguing that there was an international armed conflict in Sierra Leone, thus acknowledging the existence of an armed conflict as such and challenging the jurisdiction of the Court to proceed.[25] Finally, the very existence of the Lomé Peace Accord also confirms that an armed conflict existed, as has been recognised by this Chamber.[26]
39. This Chamber now turns to the question of whether the factual finding that an armed conflict existed amounts to a legal finding. Even if the existence of an armed conflict is a general prerequisite or precondition for the crimes under Articles 3 and 4 of the Statute, acknowledging that such a conflict exists does not of itself draw any legal conclusion regarding the individual criminal responsibility of the Accused, not even of him taking part in that conflict. In the case of Simic, conclusions about the nature of the armed conflict (a prerequisite for the competence of the court) were not judicially noticed. The fact that an armed conflict had occurred was judicially noticed.
40. However, as the Facts A and H do not contain such assertions, (and the Trial Chamber took care to modify Fact H from the original form submitted by the Prosecution to avoid this risk) this Chamber finds no error in the Trial Chamber judicially noticing Facts A and H.

(ii) 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 Conventions (Fact D)

41. In regard to fact D, it is clear that the statement is a proposition. It is not even a proposition of fact but of law. That 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 Conventions exist is a fact. That organized armed factions were engaged in fighting within Sierra Leone is a statement of fact as well. However, whether they were required to comply with International Humanitarian Law and the laws and custom governing the conduct of armed conflicts is a matter of legal conclusion to be drawn on application of law to the facts which would include the factual situation of armed conflict that had been rightly judicially noticed. The Trial Chamber was in error in taking judicial notice of fact D.

(iii) The three accused each held particular positions within the CDF (Facts K, L and M)

42. According to the Defence, the offices alleged to have been held by the Accused suggest positions of authority, which will be relevant to the establishment of superior criminal responsibility and individual responsibility as a co-perpetrator in a joint criminal enterprise. Although the Defence focuses on Fact L, which relates to Moinina Fofana who is the appellant in this case, Facts K and M relate to the other two co-accused who are jointly charged in the consolidated indictment. In particular, the Defence objects to the lack of specificity in the relevant period in which any such positions were held, and submits that factual findings on this point must be determined at trial on evidence that is subject to dispute.
43. Each of the Accused is charged with superior criminal responsibility under Article 6(3) of the Statute. The elements required to establish this responsibility include an assessment of whether an accused is in a position of superiority with effective command and control over subordinates, and knew or had reason to know of their acts, thus establishing the chain of command. Evidence regarding the specific position held by an accused during the relevant period is likely to be relevant to each of these elements and the Prosecution should be expected to prove this at trial, especially since the Second Accused does dispute it. As a result, the Appeals Chamber finds that the Trial Chamber erred in taking judicial notice of Facts K, L and M.

(iv) In or about November and/or December 1997, the CDF, including Kamajors, launched an operation called “Black December” (Fact U).

44. This fact was judicially noticed by the Trial Chamber in a modified form from that originally sought by the Prosecution, which included the additional words at the end of the sentence “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”. In seeking judicial notice of this fact the Prosecution referred the Trial Chamber to five documents in support, listed on page 9 of Annex A to its Motion. The first document referred to is one paragraph of the Third Report of the Secretary-General on the Situation in Sierra Leone 5 February 1998.[27] This paragraph makes no reference to any operation called “Black December”. The relevant lines refer to the findings of a UN technical survey team that visited Sierra Leone between 10 and 17 January 1998 as follows:

Intensified guerrilla-style actions against the junta forces were being conducted by an organization called the Civil Defence Unit (CDU). CDU, which apparently comprises the Kamajors and similar groupings of traditional village-based hunters in the north and centre of the country, claims to control all major roads in Sierra Leone.

45. It should be noted that this is the only one of the five documents the existence and authenticity of which was judicially noticed by the Trial Chamber. Nevertheless, this finding did not extend to the contents of the document; the question of the document itself is considered in the following section. The remaining four documents included apparent statements of the CDF or Kamajors and a report produced by the organisation No Peace Without Justice. Although the Trial Chamber correctly declined to judicially notice the second part of Fact U as proposed by the Prosecution, it erred in judicially noticing Fact U at all. Whether any operation called “Black December” was conducted by the CDF and during what time period cannot be said to be a notorious historical fact nor can it be readily verified. This Chamber finds that it is not a fact of common knowledge and would appear to be a disputable fact that needs to be proved at trial.
46. The source information to support facts D, K, L, M and U, however, may be submitted by the Prosecution as evidence under Rule 92bis, subject to the assessment of their relevance and reliability by the Trial Chamber.

(v) Judicial Notice of the contents of Security Council Resolutions

47. Finally, the Defence submits that judicial notice cannot be taken of the contents of the various Security Council resolutions listed in paragraphs 22-30 of Annex II to the Trial Chamber Decision because these resolutions contain both legal findings and are subject to more than reasonable dispute. The Defence argues that the political nature of the Security Council means that the contents of its resolutions are the result of political compromise but is not disputing the authenticity of those documents (in other words, the reliability of the documentary source) for the purposes of judicial notice.
48. The Trial Chamber states in relation to the documents of which it took judicial notice in Annex II of its Decision, that they “are also deemed conclusively proven as to their existence and authenticity”[28], notwithstanding the fact that Annex II includes some documents of which judicial notice was also taken of their contents. The Chamber’s finding on conclusiveness goes on to state that it concludes the evidentiary inquiry and they “cannot be challenged at the trial of the Accused herein predicated upon our prior finding that they are beyond reasonable dispute”.[29] It seems that the Trial Chamber made a distinction in the implications of judicial notice between documents and the facts that documents assert: In the case of documents the contents of which were judicially noticed, only the existence and authenticity are conclusive evidence that is not subject to subsequent challenge. The Trial Chamber appears to be inferring that the contents of the judicially noticed documents in part (II) of Annex II are still subject to challenge at trial through the admission of evidence in the normal way pursuant to Rule 89(C) of the Rules. The Trial Chamber does not appear to have applied the test for facts of common knowledge to the contents of the nine Security Council Resolutions between 1997 and 2001 that are disputed by the Defence, which on its face is an appealable error, were it not be seen in the above mentioned context of the possibility of challenge during trial.
49. Whether or not the source of a document is a political body, and more particularly whether that body was party to the establishment of the Special Court, is of no relevance. There is no legal reason for any difference in applying the same test to all documents. It must be up to the Trial Chamber to determine whether the content satisfies the test of “beyond reasonable dispute”. It therefore might be possible that some factual assertions in a UN Security Council Resolution can be judicially noticed and others cannot. The question of whether a fact stated in a Security Council resolution is to be judicially noticed will ultimately depend on whether it is capable of reasonable dispute. It follows that there is no point in judicially noticing the contents of a document as such. Facts asserted within Security Council Resolutions, Secretary General Reports and other reports by reputable organizations may be the subject of judicial notice. However, this cannot be achieved by noticing the contents of the whole resolution or report, which may contain hundreds of factual assertions, mostly irrelevant. The proper procedure would be to extract from the resolutions or reports the factual propositions which a party wants the Court to notice. It will then be for the Trial Chamber, after considering any defence material, to decide whether the extracted proposition really is incontrovertible.

FOR THE FOREGOING REASONS,

THE APPEALS CHAMBER

PARTIALLY ALLOWS the Appeal,

DECIDES that alleged facts (D), (K), (L), (M) and (U) do not qualify for judicial notice,

DECIDES that the Security Council Resolutions annexed to the Prosecution Motion for Judicial Notice do qualify for judicial notice, once the facts contained therein are extrapolated from each of the Resolutions and recognised as incapable of reasonable dispute,

DISMISSES the Appeal in all other aspects.

Justice Ayoola and Justice Robertson each append a Separate Opinion concurring with this Decision.

Done in Freetown this sixteenth day of May 2005.

[Seal of the Special Court for Sierra Leone]

[1] Prosecution’s Motion for Judicial Notice and Admission of Evidence, filed on 1 April 2004 (“Prosecution Motion for Judicial Notice”).
[2] “Prosecutor’s Request to Admit”.
[3] “Prosecution’s Motion for Judicial Notice and Admission of Evidence”.
[4] “Defence Motion Requesting an Extension of time within which to respond to Prosecution Motion.”
[5] “Kondewa – Order rejecting the filing of the Defence Objection to Prosecution Motion for Judicial Notice and Admission of Facts”.
[6]. These are Facts B, P, and W in Annex A to the Prosecution Motion for Judicial Notice.
[7] See Annex I to the Trial Chamber Decision on Judicial Notice for the relevant factual statements.
[8] See Annex II to the Trial Chamber Decision on Judicial Notice for the relevant Security Council resolutions.
[9] This point has been disposed of by the Order of President Ayoola of 12 November 2004 deeming the Response to have been properly filed.
[10] Decision on Leave to Appeal, para. 20.
[11] Prosecution Response, 16 June 2004, at para 7.
[12] 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, para. 4 (“Semanza Decision”).
[13] Semanza Decision, para. 23.
[14] Semanza Decision.
[15] Semanza Decision, para. 25.
[16] Semanza Decision, para. 20.
[17] Semanza Decision, para. 46.
[18] Prosecutor v Simic et al., Case No IT-95-9-PT, Decision on the Pre-trial Motion by the Prosecution Requesting the Trial Chamber to take judicial notice of the international character of the conflict in Bosnia-Herzegovina, 25 March 1999, p. 3.
[19] The amendment was adopted on 7 March 2003.
[20] Semanza para 41.
[21] Krajisnik Decision, para. 16.
[22] Prosecutor v Simic, Case No. IT-95-9-PT, Decision on Pre-Trial Motion by the Prosecution Requesting the Trial Chamber to take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, 25 March 1999, p. 5.
[23] Semanza Decisión, Para 24
[24] Mullen v Hackney Borough Council , [1997] 2 All ER 906
[25] Prosecutor v. Fofana, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion on Lack of Jurisdiction – Nature of the Armed Conflict, 25 May 2004. The existence of an armed conflict was acknowledged in that Motion.
[26] On various occasions this Chamber has acknowledged that an armed conflict occurred in Sierra Leone, without making any factual or legal finding as to the nature of that conflict. See e.g Prosecutor v. Norman, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion based on Lack of Jurisdiction (Child Recruitment), A. Ch., 31 May 2004 at para 22; Prosecutor v Kallon SCSL 2004-15 and Prosecutor v Kamara SCSL-2004-16, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Appeals Chamber,13 March 2004,. At para 41 this Chamber found that “the parties to the conflict are the lawful authority of the State and the RUF”. In para 42 reference is made to the Lomé Agreement bringing to an end an internal armed conflict. In paragraph 48, while the Chamber notes that “a degree of organisation of the insurgents may be a factor in determining whether the factual situation of internal armed conflict existed”, it declines to determine that point as it was not the basis of the appeal. In his separate opinion to the Decision on Lack of Jurisdiction / Abuse of Process: Amnesty provided by the Lomé Accord, Prosecutor v. Kondewa, Case No. SCSL-2004-14-AR72(E), A. Ch., 25 May 2004, Justice Robertson also noted that “It is unnecessary to make any findings as to the facts of the internecine conflict which raged in Sierra Leone between 1991 and 2001, alleged to involve a number of armed factions which fought in various combinations against the government and its supportive militias”: para 5.
[27] S/1998/103, paragraph 10.
[28] Trial Chamber Decision, para. 33.
[29] Trial Chamber Decision, para 34.