New Essay on SSRN

I have just posted a short essay on SSRN critiquing the ICTR’s recent decision in Prosecutor v. Karemera et al. Here is the abstract:

The Appeals Chamber of the ICTR recently held in Prosecutor v. Karemera et al. that the existence of a nationwide campaign of genocide in Rwanda in 1994 is a “fact of common knowledge” of which Trial Chambers must take judicial notice. This short essay, which is forthcoming in the International Decision section of the American Journal of International Law, critiques that decision from an evidentiary perspective. It begins by arguing that the nationwide campaign is logically irrelevant to the responsibility of a defendant for particular genocidal acts, because proof of the campaign is not a formal element of genocide and viewing the campaign as “context” for a genocide charge does not make it more likely that the defendant is guilty. It then argues that even if proof of the nationwide campaign does have some probative value, the possibility that a Trial Chamber will infer the defendant’s specific intent to commit genocide from that campaign – even in the absence of any other evidence – is so prejudicial that exclusion is still warranted.

The Appeals Chamber rejected a request for reconsideration earlier this month, so the decision now stands.

The essay can be downloaded from SSRN here. As always, comments would be most appreciated.