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Evidentiary practice in ICJ


Quite the contrary, the rule of thumb for evidentiary matters before the Court is flexibility.

In principle, there are no highly formalised rules of procedure


governing the submission and administration of evidence before the
Court, nor are there any restrictions about the types of evidentiary
materials that may be produced by parties appearing before it.
In this regard, the Court emphasized that [b]etween independent
States, respect for territorial sovereignty is an essential foundation of
international relations.1
It follows that no official hierarchy is established in the Courts
evidentiary framework between different types of evidence.
In the Bosnian Genocide case, the Court indicated that the probative
value of this type of evidence will hinge among other things, on (1)
the source of the item of evidence (for instance partisan, or neutral),
(2) the process by which it has been generated (for instance an
anonymous press report or the product of a careful court or court-like
process), and (3) the quality or character of the item (such as
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statements against interest, and agreed or uncontested facts).2

A party alleging a fact typically bears the burden of proving it, while
the usual standard of proof tends to align with proof by a
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preponderance of the evidence.

1 Corfu Channel Case, Judgment of April 9th, 1949, I.C.J. Reports 1949, p 4 at 35

2Application of the Convention on the Prevention and Punishment of the Crime of


Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, I.C.J.
Reports 2007 (I), p 43 at 135, para 227.

3In its jurisprudence, the Court has often reiterated the general rule according to
which a party that alleges a fact in support of its claims is expected to prove the
the subject-matter and the nature of each dispute submitted to the
Court will inform and ultimately dictate the determination of the
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burden of proof in any given case.
For instance, in the seminal Corfu Channel case, the Court resolved
this dilemma by having recourse to flexible inferences of fact against
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the State which had refused to produce the evidence in question; by
contrast, in the Bosnian Genocide case the Court declined to do so,
thereby confirming that its approach to circumstantial evidence and
adverse inferences will vary depending on the subject-matter and
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circumstances of each dispute brought to it.

The Court will resort to using circumstantial evidence in favor of one party
when the other party has exclusive control of the evidence and when the other
party or the Court cannot furnish any contradictory direct evidence.

existence of that fact. See eg, Ahmadou Sadio Diallo (Republic of Guinea v
Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, p 639 at
660, para 54; Application of the Interim Accord of 13 September 1995 (the former
Yugoslav Republic of Macedonia v Greece), Judgment of 5 December 2011, I.C.J.
Reports 2011, p 644 at 668, para 72; Pulp Mills on the River Uruguay (Argentina v
Uruguay), Judgment, I.C.J. Reports 2010 (I), p 14 at 71, para 162; Maritime
Delimitation in the Black Sea (Romania v Ukraine), Judgment, I.C.J. Reports 2009, p
61 at 86, para 68. On the burden of proof and the evidentiary practice of the Court, see
also Sir Arthur Watts, Burden of Proof, and Evidence before the ICJ in Freidl Weiss
(ed), Improving WTO Dispute Settlement Procedures: Issues and Lessons from the
Practice of other International Courts and Tribunals (London, Cameron May, 2000)
289-301.

4 Ahmadou Sadio Diallo, above note 46 at 660-61, para 54.


International Court of Justice's Treatment of Circumstantial
Evidence and Adverse Inferences

the ICJ could "infer" that the non- produced evidence "would be adverse to
the interests" of the non-producing party.20 This approach constitutes, in
essence, a reversal of the burden of proof on the factual issue in question.

Corfu channel : To
solve this dilemma, the Court permitted the UK to take
"more liberal recourse to inferences of fact and circumstantial evidence."32
The Court included the caveat, however, that proof may only be drawn from
such inferences of fact and circumstantial evidence where doing so leaves no
room for reasonable doubt.33
The Court will permit liberal reliance on circumstantial evidence so long as
two conditions are met: (1) the direct evidence is under the exclusive control
of the opposing party; and (2) the circumstantial evidence does not contradict
any available direct evidence or accepted facts.

In Corfu Channel, Albania did not present adequate direct evidence to call
into question the authenticity of the UK's circumstantial evidence. In Crime
of Genocide, Serbia presented numerous documents that included direct
evidence that Serbia did not intend to and did not commit genocide.
Therefore, the Court in Crime of Genocide had direct evidence that
contradicted Bosnia's circumstantial evidence.

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