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From the SelectedWorks of Michael P Scharf

March 2010

Reconcilable Difference: A Critical Assessment of
the International Court of Justice’s Treatment of
Circumstantial Evidence

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ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE

SCHARF AND DAY

Reconcilable Difference:
A Critical Assessment of the International Court of Justice’s
Treatment of Circumstantial Evidence
Michael P. Scharf1 and Margaux Day2

Abstract
This article examines a vexing evidentiary question that the International Court of Justice
has struggled with in several cases over the years, namely: what should the Court do
when one of the parties has exclusive access to critical evidence and refuses to produce it
for security or other reasons? In its first case, Corfu Channel, the Court decided to apply
liberal inferences of fact against the non-producing party, but in the more recent Bosnia
Genocide case, the Court declined to do so under seemingly similar circumstances. By
carefully examining the treatment of evidence in these and other international cases in
which this situation has arisen, this article seeks to illuminate the nuances in the Court’s
approach to circumstantial evidence. Because International Court of Justice cases
significantly impact the practice of States and international organizations and are
frequently cited as authority by national courts, a better understanding of the Court’s
application of evidentiary standards has broad scholarly and practical utility.

I. Introduction
While the International Court of Justice differs greatly from an ordinary trial court, there
is one thing the two have in common: evidence often plays a key role in the outcome of
litigation. The World Court, however, has limited ability to compel production of evidence and
instead generally relies on a “Compromis” containing agreed factual stipulations. The Court
must therefore depend on cooperation of the parties to submit a sufficient evidentiary basis from
which to make critical factual determinations. This article focuses on the question of what
happens when one of the parties has exclusive access to critical evidence and refuses to produce
it for security or other reasons.
In the International Court of Justice’s first contentious case, Corfu Channel, the Court
delineated procedural, evidentiary, and equitable rules that have shaped many of the Court’s
decisions since then. Specifically, the Court addressed two significant evidentiary issues in the
1

Michael P. Scharf is the John Deaver Drinko – Baker & Hostetler Professor of Law and Director of the
Frederick K. Cox International Law Center at Case Western Reserve University School of Law; formerly
Attorney-Adviser for U.N. Affairs at the U.S. Department of State.
2

Margaux Day is a federal judicial clerk for Judge Solomon Oliver, Jr., Federal District Court for the
Northern District of Ohio, and is an Adjunct Professor at Case Western Reserve University School of
Law. She was an intern for the Office of the Co-Prosecutors of the Extraordinary Chambers in the Courts
of Cambodia in 2008, and was a member of the 2008 Philip C. Jessup International Moot Court World
Champion Team and won the award of Best Oralist in the World Championship Final Round.

1

therefore. 205 (1999). permits the Parties to submit many types of direct and circumstantial evidence. Evidence Before the International Court of Justice.K.3 In 2007.8 3 The World Court does not explicitly define “circumstantial evidence” in its judgments.).5 This decision by the Court in 2007 to reevaluate evidentiary principles will have a profound impact on future cases. v. The Court evaluates the authenticity.). the Court permitted a Party to keep evidence secret.J. 7 Corfu Channel (U. The Court was quite candid about its decision to use the Crime of Genocide case to clarify the Court’s evidentiary standards. 2 . At first glance. 9). The Court found solely circumstantial evidence persuasive enough to find that Albania incurred legal responsibility in Corfu Channel but did not find it persuasive enough alone to hold Serbia legally responsible for Bosnia and Herzegovina’s allegations in Crime of Genocide.C. 6 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. 2008 I. The International Court of Justice takes a flexible approach to the admissibility of evidence. distinguished circumstantial evidence from “direct proof” and stated that “indirect evidence” could be drawn from “inferences of fact. 4 Eduardo Valencia-Ospina. 118 (Nov. Alb. 18 (Apr. 4 (Apr. 5 Andrea Gattini. The Judgment is particularly poignant given the fact that a case currently on the Court’s docket is a case brought by Croatia against Serbia dealing with largely the same issues and allegations as the 2007 Crime of Genocide case. However. the Court classified circumstantial evidence as a type of indirect evidence. reveals that the Court’s treatment of circumstantial evidence is not as contradictory as most commentators have assumed. as well as other cases in which the Court had to determine how much weight to give to circumstantial evidence. Perhaps in part because of this flexible approach. a closer evaluation of these two cases.K. is the Court’s perceived ability to “ascertain the weight and relevance of particular evidence” due to the Judges’ qualifications and experience. the Court has not articulated its evidence policy in many cases. 18).4 The Court.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY Corfu Channel case: (1) the Court’s attitude towards secret evidence. the Court readdressed these same evidentiary issues in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide [“Crime of Genocide”]. International Law FORUM du droit international 1: 202.6 The Crime of Genocide decision is similar to Corfu Channel in that in Crime of Genocide.C. 5 J. and (2) the rules surrounding the use of circumstantial evidence. 58 years after its first contentious case. reliability. However. according to Eduardo Valencia-Ospina. and persuasiveness of the materials the Parties submit to it. Gen.” In this case.7 South West Africa. 1949 I. v. of Int’l Crim.). 9) [hereinafter Corfu Channel]. 889. The Judges on the Court addressed circumstantial evidence in Corfu Channel. it appears that the International Court of Justice drastically altered its treatment of circumstantial evidence in the Crime of Genocide case from its treatment in Corfu Channel. the International Court of Justices in Corfu Channel (U. 890 (2007). but it is different in that the Court was not as willing to rely on circumstantial evidence to reach its legal conclusions. 4.J. Just. Alb. v. One possible reason for the Court’s flexible approach. List No. Ser. 1949 I.C. Evidentiary Issues in the ICJ’s Genocide Judgment.J.

2007). 17 Jordan Paust.). While the ICJ issues only a handful of opinions each year.. Liberia v.C. 26) [hereinafter Crime of Genocide]. has broad scholarly and practical utility. No. 59. Mar. 91. DRC v. 1516/2006. Sir Robert Jennings.15 and thus they do not statutorily have precedential value.10 Oil Platforms. 19) [hereinafter DRC v. 126 n. 15 Statute of the International Court of Justice. para. No. 1991). South Africa). Rep. See also ASIL Plenary: International Law as Law at the International Court of Justice.com/law/index. para.php/intl/2009/04/07/asil_annual_mtg_icj (Statement by Judge Thomas Buergenthal). 132. U. 68 (Dec. Serb. 13 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. Background: Seven Key Cases Although International Court of Justice cases are only binding on the parties to the particular dispute. 127 (Feb.11 and D.). 6 (Jul. 1966 I. Jamaica. Coplin v. 4. v. art. http://www. 127 (Feb. 3 . (Nov. 2007 I. & Mont.S.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY Military and Paramilitary Activities in and against Nicaragua. By examining the discussion of evidence in these seven cases.J. para. Crime of Genocide. J. 10 Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan. 2005 I. 161 (Nov.17 Therefore. 14 A better understanding of the Court’s application of evidentiary standards.4 (Oct.16 In fact.R.C. in MOHAMED SHAHABUDDEEN. 3). PRECEDENT IN THE WORLD COURT 107-108 (1996).C. para. 9 Military and Paramilitary Activities in and against Nicaragua (Nic. Aston Little v.C.C.J. 2009. the Court often cites its previous decisions in its judgments. 6 Cl. 14 See e.C. 26)..insidejustice.. Herbert Schmidl v. v.J. 6) [hereinafter Oil Platforms]. Domestic influence of the International Court of Justice. H. 625 (Dec. II. 17).C. the International Court of Justice’s treatment of evidentiary 8 South West Africa (Ethiopia v. Ukr.) 2009 I. 2002 I. Uganda]. Maritime Delimitation in the Black Sea (Rom v.C. 2003 I.g.9 Sovereignty Over Pulau Ligitan and Pulau Sipadan.J. 16 See e. 68 (Feb. Comm. 14 (June 27) [hereinafter Nicaragua].12 before its Crime of Genocide13 decision. 26 Denv. United States. 19). many studies and evaluations of International Court of Justice cases contend that the international community views ICJ decisions as having precedential value.R. 31. para.g. 116 (Dec. 115. 27.).C. South Africa.R. Ct. Congo v. 12 Armed Activities on the Territory of the Congo (Dem.12 (1984).J. Uganda. Foreward. & Pol'y 787 (1998). H. Germany. 1986 I. Comm.J. Uganda). this article seeks to illuminate the nuances in the Court’s approach to circumstantial evidence. therefore. 1. Uganda. 283/1988. v.S. U.C. they significantly impact the practice of States and international organizations and are frequently cited as authority by national courts. 18).J. Int'l L. 11 Oil Platforms (Iran v.

lack of defensive evidence. pp.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY issues in one case has significant bearing on how it (and other international courts) will treat similar issues in the future. On October 22. the Court permitted the United Kingdom to take “more liberal recourse to inferences of fact and circumstantial evidence. 13-14. the Court noted 18 Corfu Channel. British warships went through the channel. The case was brought by the United Kingdom against Albania and raised the issue of state responsibility for mines present in the North Corfu Channel. A. a strait between Albania and Greece. 18. Corfu Channel.. and circumstantial evidence. 4 .. struck mines while in Albanian territorial waters and were damaged.. messages to the Secretary-General.23 Thus.25 The Court further found that a declaration by the Albanian Delegate in the Security Council. In this regard.18 Two ships. Legal Responsibility of Albania To hold Albania responsible for the mines in its territorial waters. diplomatic notes from Albania regarding the passage of ships through its territorial waters. however. 19 Id. 12-13.”21 To solve this dilemma.. the Saumarez and the Volage. that proof may only be drawn from inferences of fact if the facts leave no room for reasonable doubt. 22 Id. the United Kingdom attempted to prove that Albania had knowledge of the mines. The Court recognized that the fact that the minefield was discovered in Albanian territorial waters is not enough to prove that Albania had such knowledge. 23 Id. Corfu Channel.19 1. and evidence of past mine sweeps conducted by Albania together revealed that Albania was vigilant in controlling its waters. The Corfu Channel Case In the International Court of Justice’s first contentious case. the United Kingdom and the Court found it persuasive that evidence revealed that Albania kept a close watch over the waters of North Corfu Channel24 and that Albania had the ability to observe mine laying from the Albanian Coast.. the Court also recognized that the fact that Albania had exclusive territorial control over its waters could make it impossible for the United Kingdom to “furnish direct proof of facts giving rise to responsibility. 25 Id. 18. p. 24 Id.20 However.. pp. Moreover. p. pp. 18-19. p. 18. p. 20. 1946. 20 21 Id. the United Kingdom relied on indirect evidence to prove that Albania knew of the mines in its territorial waters. p.”22 The Court included the caveat. 18. it faced burden of proof issues involving secret evidence.

22-23. 29 Id. 28. p.27 Thus. and as a result.29 Albania further contended that the United Kingdom violated international law because the British warships’ navigation through North Corfu Channel on October 22. 31.32 Citing naval secrecy.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY that there were many observation points along the coast. in turn. 32 Id.”33 Various other direct evidence produced by the United Kingdom contradicted Albania’s claim. In contrast to the language the Court used in regards to the issue of Albania’s legal responsibility.. 5 . and the number of soldiers on board all showed an intention not to merely pass through the waterway. p. 32. 32.. p. contended that the United Kingdom violated Albanian sovereignty by sending warships through the North Corfu Channel without obtaining authorization from the Albanian Government. Volage. 2. 34 Id.. 1946 was not an innocent passage. Albania consequently violated international law by failing to warn the British ships about the mines. which the commander of the ship.. and a minelayer placing the closest mine would have had to be within 500 meters of the Albanian coast. the Court read inferences from the fact that Albania patrols and monitors its territorial waters to conclude that Albania had acquired legal responsibility for the damage to the British ships. 20. p.34 26 Id.. 28 Id.31 The Court requested that the United Kingdom produce documents.. the Agent for the United Kingdom refused to produce the documents. made reference to on October 23. the position of the ships’ guns. 28. 30. 1946. 30 Id.. pp. the Court observed that it could not draw from the United Kingdom’s refusal to produce “any conclusions differing from those to which the actual events gave rise. the Court found that the United Kingdom did not violate the sovereignty of Albania. 33 Id. Legal Responsibility of the United Kingdom Albania. 27 Corfu Channel.30 Albania alleged that the formation of the ships. p. 31 Id. titled XCU. p. p.26 This circumstantial evidence adequately proved that Albania knew of the mines in the Corfu Channel. 30. the presence of soldiers on board..28 The Court determined that the United Kingdom did not violate international law because all States have a right to send warships through international waterways. p.

For example. the Court’s treatment of circumstantial evidence for Albania and the United Kingdom is actually in harmony. Albania had the ability to gather evidence on the nature of the British warships’ passage through the strait. and whether South Africa violated the Mandate when it tried to modify it without General Assembly approval. South Africa).C. 19(h). 18). did not have the ability to gather evidence to determine whether or not Albania knew of the mines in its territorial waters. The Court refuses in all circumstances to infer conclusions that contradict evidence of actual events. 39 Id. 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.37 He recognized that although direct statements could prove improper purpose or motive. 30. South Africa had promoted the well-being and social progress of the peoples in South West Africa. South Africa. B. South Africa). briefly addressed the relevance of circumstantial evidence in relation to determining whether or not someone with discretionary power acted with an improper purpose or motive.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY 3. para. in his Separate Opinion. Judge Van Wyk. regardless of whether or not a Party is producing all of its evidence on the subject. 6 (Jul. 1966 I. 37 South West Africa (Ethiopia v. Liberia v. Analysis of Evidentiary Principles How can we reconcile the fact that the ICJ permitted the United Kingdom “liberal recourse to inferences of fact” regarding Albania’s knowledge of the mines but did not allow Albania to rely on liberal inferences in response to the United Kingdom’s refusal to produce secret evidence? The difference between Albania’s and the United Kingdom’s evidentiary situations is the ability to furnish direct proof of a claim.39 35 Id. which were members of the former League of Nations.35 The United Kingdom. of Judge Van Wyk. on the other hand.38 His opinion stands for the proposition that one may deduce that an act was motivated by an improper motive if that act is so unreasonable that no reasonable person with that same discretionary power would have performed it..36 Some of the issues were whether: the Mandate was still in force. South Africa violated the Mandate by engaging in military actions. 19(f)-(h) (Jul. Liberia v. para. 6. it is more frequently proven by circumstantial evidence. Op. 38 Id. alleged that the Republic of South Africa contravened the League of Nations Mandate for South West Africa. 36 South West Africa (Ethiopia v.C. Albania had eyewitness accounts of the ships’ movements. and (2) the circumstantial evidence does not contradict direct evidence and accepted facts.J. p. South Africa had to produce annual reports to the General Assembly. South West Africa Ethiopia and Liberia.J. This information was in the exclusive control of Albania. 18). South Africa. 6 .. Therefore. Sep. 1966 I.

13 (May 24).ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY C. Therefore. 7 . 111. 12. 1980 I. Iran). 1986 I.41 These documents included reports in press articles and extracts from books. events extensively reported in the world press. the Court found that wide reports of a fact. 112.45 The Court relied on inferences from the United States’ role in selecting the leaders of the contra force. equipping.46 However. 63.S.C. although not primary evidence of that fact. Nicaragua v. The Court recognized that it had to be careful in its treatment of these documents because they are merely material which can contribute to corroborating the existence of a fact.A. 111.J. 42 Id. 62.. can be relied upon to establish the existence of that fact. para. para. para. and planning of the contra force.43 the Court determined that it could use public knowledge “to declare that it was satisfied that the allegations of fact were well-founded”44 so long as the court kept in mind the possibility that widespread reports might all derive from one source.40 In that case. United States The Court also wrestled with how much weight to accord circumstantial evidence in the Military and Paramilitary Activities in and against Nicaragua case. v. 47 Id. 43 United States Diplomatic and Consular Staff in Tehran (U. in organizing. 41 Id. and the circumstantial evidence alone could not answer this issue. 3. a determination the Court viewed as fundamental to the case. The Court also relied on inferences from circumstantial evidence when determining to what extent. 45 Nicaragua. the Court refused to draw any clear 40 Nicaragua. the Court concluded that it could not determine that the majority of contra force activities were supported by the United States because it did not have adequate direct proof. paras. the materials were not alone capable of proving facts.C.. that is. 14. para. the contra force was dependent on the United States.42 The Could also expressed concern about how much weight it should give to public knowledge. training. the Parties submitted various types of documents from various sources as evidence.. and in choosing targets and providing operational support to determine that the contra force partially depended on the United States. 46 Id. para. Relying on the Diplomatic and Consular Staff in Tehran case. 44 Nicaragua.47 D.J. Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan In the Pulau Ligitan and Pulau Sipadan Islands case. if any.

para. para. had sovereignty over two islands. 1986 I. they meant it to cover all potential points of conflict. paras. 85.C. sitting as an ad hoc judge.56 Using this circumstantial evidence. 50 Id.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY and final conclusion from circumstantial evidence.52 Rather. 49 Id. 87. 2002 I. in the form of maps relied upon by Malaysia. 2002 I. para. Kasikili/Sedudu Island (Botswana v. 22). para. 1999 I. 625.J. para. which all the maps except one were in this case.J. 53 Sovereignty Over Pulau Ligitan and Pulau Sipadan. 8 . 84 (Dec. 86 (Dec. 13).J. and interpretation of the maps. 56 Id. Malaysia contended that the maps clearly demonstrated that the line between the Dutch and British possessions did not extend into the sea east of Sebatik and that the two islands in dispute were considered to be British or Malaysian islands. 554. Franck determined that the islands were the sovereign territory of Indonesia. it still permits the invocation of the rebuttable presumption that the States intended to resolve all potential disputes in the geographical area surrounding Litigan and Sipadan.49 Indonesia protested the accuracy. 90 (Dec. 45.53 Judge Frank wrote that when Britain and the Netherlands negotiated their 1891 Convention. The dissenting opinion by Judge Franck. 55 Id.. the Court opined that unattached maps. relevance. 54 Id. 17).. not direct evidence.48 The Court was asked to determine what country.C.54 In addition to this presumption. may also help shape our understanding of the Court’s future treatment of the role and weight to be accorded to circumstantial evidence. 17).. 5. para.J.C. 1045. 1. 17). Judge Kooijmans. of Judge Franck. 2002 I. 51 Frontier Dispute (Burkina Faso v. para.. Dissenting Op. 625. 54 (Dec.. which could be used to either establish or reconstitute the facts. Republic of Mali).55 Even if the circumstantial evidence was inconclusive.51 the Court decided that except when maps are “annexed to an official text of which they form an integral part. Namibia). in his Separate Opinion in the Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain. 52 Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan. paras. adopted a dismissive approach to the use 48 Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan.50 Relying on its treatment of maps in the past. wrote Franck. 45. were merely extrinsic evidence.C.C. The Court ultimately determined that the two islands are the sovereign territory of Malaysia. Franck notes that there is also circumstantial evidence that Britain and the Netherlands believed they were resolving all territorial problems with the 1891 Convention. Litigan and Sipadan. Malaysia or Indonesia.J. 86. 625 (Dec.” maps do not establish territorial title.

The United States. 63 Oil Platforms. II.J.” that Arbitrator cannot attach weight to the maps. Bahrain). such as Nicaragua. portions of a report by the United Nations Secretary-General that relied on second-hand reports. and a statement by a person who was cooperating with the Congolese military. 16). Op. Sep. 161. 40. the Human Rights Watch Report of March 2001. Republic of Mali). paras. Sep. the court refused to rely on the International Crisis Group report of November 17th. para. 40. citing Nicaragua. para. all submitted by the Democratic Republic of the Congo. Democratic Republic of the Congo v. Uganda. 60. 67-69. 71. of Judge Kooijmans. F. citing Island of Palmas Case.62 The Court explained that its decision to disregard this secondary evidence was because the Court had no knowledge of the original source. v.J. in an attempt to prove that Uganda had both created and controlled the Congo 57 Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. para. The Democratic Republic of the Congo submitted these documents. 9 . Relying on the Frontier Dispute case. and these reports cannot substitute for direct evidence. 68 (Mar. rather they are merely extrinsic evidence.C. 58 Frontier Dispute (Burkina Faso v.R.C. 71 (Mar. concluded the Court. 1986 I. Kooijmans discarded the maps because there was no direct evidence showing that Qatar had sovereignty over the islands59 and because if an Arbitrator knows of legally relevant facts that contradict cartographers “whose sources of information are not known.C. para. 112. of Judge Kooijmans.J. relied on an announcement by President Ali Khameini months earlier saying that Iran would attack the United States and on public sources that reported that Iran was responsible for an armed attack.60 E. 159.J. Uganda In D. Bahrain). Oil Platforms The Court was far more dismissive of public reports in the Oil Platforms case61 than in prior cases. articles in the IRIN bulletin.C. in an attempt to prove that the Sea Isle City was attacked by Iran. 54 (Dec. articles in Jeune Afrique. 554. 853. 2001 I.. RIAA. para. 829.58 Judge Kooijmans recalled that maps do not constitute a territorial title. Op. 62 Oil Platforms. 2001 I. 2003 I. Vol. 16).C. 60 Id. 64 DRC v. para. 61 Oil Platforms. 22).64 Specifically. the Court chose not to rely on various items offered as evidence because of their circumstantial nature. and that it is possible that “widespread reports of a fact” may in actuality “derive from a single source. 59 Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v.57 Qatar relied upon many maps that the Hawar Islands belonged to the State of Qatar. Uganda. numerous reports have no greater value than the original source. along with other evidence.”63 Thus.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY of maps similar to the Court in the Pulau Ligitan and Pulau Sipadan Islands case.

The International Court of Justice found no direct evidence that Uganda had created the Congo Liberation Movement. non-governmental organization reports. The Crime of Genocide Case 65 Id. the Court had the opportunity to discuss particular types of circumstantial evidence.R.R. they were indirect evidence in the cases analyzed. non-governmental organization reports. United Nations reports. Judge Van Wyk permitted use of circumstantial evidence to prove improper motive in the South West Africa case. 10 . Again. the Corfu Channel case continued to be the most controlling case on the issues of how the Court should rely on circumstantial evidence. such as maps. The Court was also critical of evidence that is based on secondhand. However. The Court also evaluated the use of circumstantial evidence to prove different elements. v. and information that is public knowledge. It was not until 2007 that the Court faced a similar request by a State to resort to liberal inferences and circumstantial evidence. biased. Each piece of evidence required the court to make an inference and did not directly stand for the principle purported. the Court reaffirmed that it would not readily rely on circumstantial evidence presented by Parties. maps alone cannot establish territorial boundaries.C. instead.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY Liberation Movement (Mouvement de libération du Congo) from September 1998 onwards. and information that is public knowledge” could all be direct evidence in certain circumstances. but it accepted it as valid evidence and ultimately found it persuasive enough to find that Albania incurred legal responsibility. the Court permitted the United Kingdom to rely on inferences of fact and circumstantial evidence. Analysis of the Court’s Treatment of Circumstantial Evidence as of 2005 In the cases described above. factually incorrect. the Court critically examines circumstantial evidence and compares it to any direct evidence on the issue to see if it can be corroborated. the Court in Oil Platforms. Judge Franck. The Court used circumstantial evidence to find that the United States was involved with the contra force in Nicaragua.C. based on second-hand reports. 155. and/or partisan. newspaper articles. the Court gave far less weight to the circumstantial evidence. 66 Although “maps. para. Pulau Ligitan. According to the Court in Sovereignty Over Pulau Ligitan and Pulau Sipadan.. and D. IV.65 The Court deemed these sources to be uncorroborated. III.66 Although the Court consistently permitted Parties to submit circumstantial evidence. The Court would still assess the weight of circumstantial evidence. relied on circumstantial evidence to invoke a rebuttable presumption. in that case. newspaper articles. Uganda realized that widespread reports of a fact should be evaluated with a critical eye because they could be based on one source. United Nations reports. but it did not find that circumstantial evidence could prove the level of its involvement. Thus. v. it critically evaluated this evidence. this time. in that case. The Court refused to simply accept the authenticity of maps without further investigation into the sources used to create those maps. or uncorroborated reports in the D. Nonetheless. For example. Uganda case. after 56 years of cases.

70 Application of the Convention on the Prevention and Punishment of the Crime of Genocide. 11 . 42.. 13). Order. & Herz. but immediate and effective implementation of those measures. Order of 8 April 1993.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY In this seminal case. Lauterpacht wrote that “there is no reason why the Court should not take both such categories of evidence into account. 13). & Mont. Provisional Measures. & Mont. 69 Id. the Republic of Bosnia and Herzegovina.C. alleged that the Respondent. facts 67 Originally the Federal Republic of Yugoslavia. 68 Crime of Genocide. para.68 As a remedy. Op.C. he discussed how the Court should have considered circumstantial evidence in its Order. Serbia. 1993 I. he opined that the Court should have been more detailed in its measures and in its statement of material facts. 1993 I. restore the situation that existed before the violations of the Convention occurred. (Bosn. para. 325 (Sept. v. Sep.67 violated the Convention on the Prevention and Punishment of the Crime of Genocide. 71 Application of the Convention on the Prevention and Punishment of the Crime of Genocide. 65. para. Yugo. & Herz. the Applicant. in which he concurred with the Court’s Order.73 Judge Lauterpacht described the evidence Bosnia and Herzegovina put forward as falling into two categories: written primary evidence and written secondary evidence. (Serb.)). Order for Additional Provisional Measures Both Bosnia and Herzegovina and Yugoslavia proposed additional provisional measures to those ordered on 8 April 1993.J.74 The secondary evidence included statements of fact adopted by organs of the United Nations. 73 Id.72 In particular. 325.”75 He then went on to discuss a particular type of circumstantial evidence. of Judge Lauterpacht. 75 Id.69 A. (Bosn. 8.J. by contributing to acts of genocide and failing to prevent and punish acts of genocide. Order. take immediate and effective steps to ensure compliance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. 8).70 The Court held that "the present perilous situation demands. 3 (Apr. 72 Application of the Convention on the Prevention and Punishment of the Crime of Genocide.)). not an indication of provisional measures additional to those indicated by the Court's Order of 8 April 1993. 59 (Sept. v. 1993 I. 74 Id. Bosnia and Herzegovina asked the Court to Order Serbia and Montenegro to cease its illegal conduct. Yugo. (Serb.. and pay Bosnia and Herzegovina compensation.”71 In Judge Lauterpacht’s Separate Opinion. para.J.C.

C. 12 (May 24)..). (Serb. 64. 67. para. took a different view. 63. paras. indicated Yugoslav involvement in Serbian activity in Bosnia and Herzegovina and at the very least. shifted the burden of proof to Yugoslavia. para.. He found that the circumstantial evidence comported with the primary evidence. 57. This circumstantial evidence must still be wholly consistent with the main facts and circumstances of the case. Sep. and he found it notable that Yugoslavia did not rebut any of Bosnia and Herzegovina’s circumstantial evidence.J. Fisheries (U.K. 78 Id. & Mont.76 Lauterpacht championed the doctrine of judicial notice for facts that are public knowledge. United States Diplomatic and Consular Staff in Tehran 1980 I. he relied on circumstantial evidence from Bosnia and Herzegovina.77 and in this case Lauterpacht viewed the public evidence and primary evidence as being conclusive of the existence of atrocities. 80 Id. para.)). Bosnia and Herzegovina submitted that the typical burden of proof (actori incumbit probatio) should be reversed in respect to the attribution of acts of genocide to Serbia because Serbia refused to produce the full text of particular documents. Order. 45. Judge Lauterpacht. B. however.80 Yugoslavia made no attempt to meet this burden and did not rebut Bosnia and Herzegovina’s material in circumstantial detail. of Judge Lauterpacht. 18). 81 Id. 64. 3. 1951 I. Op. 138-139 (Dec. v. using Corfu Channel. Lauterpacht cited the Court’s reliance on circumstantial evidence in Corfu Channel when discussing the question of the complicity of Yugoslavia in assisting the Serbian forces in Bosnia and Herzegovina.C.79 This evidence. v.81 Therefore.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY that are “public knowledge. & Herz. 67. 325. para. (Bosn. in that Bosnia and Herzegovina could obtain absolute proof of Yugoslavia’s complicity because the bulk of the conduct originated within the territory of Yugoslavia. 116. 82 Crime of Genocide.78 Therefore. 204.82 Serbia and Montenegro failed to produce 76 Nicaragua. 1993 I.” Relying on past ICJ cases. 13). Secret Evidence In addition to requesting the Court to allow it to rely on circumstantial evidence. was willing to rely on circumstantial evidence.J. para. 43 (Sept. Judgment 1.. 77 Application of the Convention on the Prevention and Punishment of the Crime of Genocide.. in Lauterpacht’s view. paras. 79 Id. including secondary reports derived from sources that are not sufficiently identified. Lauterpacht likened Bosnia and Herzegovina’s situation to that of the United Kingdom. para.J. The Court in its Judgment on the Merits. Yugo.C. 12 . Nor.

One reason the Court cites for this decision is that Bosnia and Herzegovina already had access to extensive evidence. 15. Apr 23. v. para. Apr. 1994. 87 Id. the Court did not call upon Serbia and Montenegro to provide these documents to Bosnia. Serb.8. 89 Id. 1998. 5. para. & Mont.7. & Herz.3..7.”84 Moreover. v. Serb. to bring to trial and punish persons guilty of violating the Genocide Convention would exist solely within Serbia. 85 Id. that it has the power to draw its own conclusions.9. The Court did note.87 2. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn.83 Instead. 86 Id.86 Thus. para. v. 13 . prosecute. 205.3.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY complete copies of documents of the Supreme Defence Council of Serbia.88 Bosnia contended that evidence of Serbia’s efforts. 206. 15. Bosnia submitted that the Court should prohibit Serbia from discussing or relying on these redacted documents because it would provide Serbia and Montenegro an “overriding advantage. in particular from the International Criminal Tribunal for the Former Yugoslavia. Memorial of the Government of The Republic of Bosnia and Herzegovina. & Herz. Apr. paras. 5. Bosnia and the Court had access to redacted copies of these documents. it cited Corfu Channel to justify its request that the Court recognize how difficult it was for Bosnia to furnish direct proof of facts given that Serbia had exclusive territorial control of the evidence.). 90 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn.3..).3. Serb.89 Bosnia and Herzegovina asked the Court to make inferential deductions from patterns of evidence regarding both the Genocide Convention’s requirement to investigate. & Herz. 1994. para.3.85 The International Court of Justice denied Bosnia’s request for the Court to prohibit Serbia from using these redacted documents.3. & Mont.3. and punish genocide and the intent of Serbia to commit proven acts.. 5. Memorial of the Government of The Republic of Bosnia and Herzegovina. assuming they exist. 84 Id. 5. Bosnia and Herzegovina asked the Court to draw its own conclusions from the failure of Serbia and Montenegro to produce complete copies of these documents and to call for the full production of the documents.90 Bosnia alleged that Serbia had 83 Id.). Recourse to Liberal Findings of Fact In Bosnia and Herzegovina’s Memorial submitted to the International Court of Justice. 88 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. which had been classified as a military secret by the Council of Ministers of Serbia and Montenegro. & Mont. Reply of Bosnia and Herzegovina. however.3.

The Court reaffirmed that it paras. Specific Intent to Commit Genocide In the decision on the Merits.95 The Court determined that for a pattern of conduct to be evidence of specific intent.. para. excluding the crimes committed at Srebrenica. para. 450.93 Bosnia contended that the required specific intent is thus shown by the consistency of practices and the pattern of the acts.3. 1994. Memorial of the Government of The Republic of Bosnia and Herzegovina.”96 Relying on decisions by the International Criminal Tribunal for the Former Yugoslavia. Apr. para.. Serb. 374. 96 Id. 91 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. the Court determined Bosnia and Herzegovina was unable to prove that Serbia had the specific intent required by the Genocide Convention. v. 14 . 92 Crime of Genocide.. 97 Crime of Genocide. the Court noted that the pattern of atrocity crimes cannot only point to the specific intent to destroy the group in whole or in part. 22. the Court addressed Bosnia and Herzegovina’s request to have the Court draw inferences from established facts involving the specific intent required for the crime of genocide. 438. & Herz. 93 Id..99 Although the Court makes no specific mention of relying on inferences of circumstantial evidence.). Duty to Prevent and Punish The International Court of Justice found Serbia legally responsible for failing to prevent and punish the atrocities that occurred at the Muslim Community of Srebrenica.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY the burden to rebut these inferences. para.8. 5.3. 95 Id.98 4. it appeared to do so with regard to Serbia’s duty to prevent acts of genocide. 376.. 370.92 Bosnia relied on an alleged overall plan to commit genocide and a pattern of genocidal or potentially genocidal acts to prove the necessary intent to constitute genocide. 98 Id. 373.94 The Court refused to find that the pattern of atrocities demonstrated the required intent. para. which the Court discussed later in its decision. para. para. 371. 21. paras. 99 Id. 94 Id. 207. & Mont.91 3.97 Thus. the pattern would have to “be such that it could only point to the existence of such intent. 15.

the Court chose to rely on circumstantial evidence for one significant issue but not for another. 438.100 Nonetheless. 102 Id. and given Milošević’s own observations. using circumstantial evidence to prove specific intent of high-level government officials is particularly difficult in that the Court requires the intent to be “convincingly shown.102 Therefore.. 103 Id. the Court found direct evidence that Serbia failed to cooperate fully with the International Criminal Tribunal for the Former Yugoslavia..ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY had not found evidence that the Belgrade authorities knew of the decision to eliminate the adult male population of Srebrenica. The Court did not explicitly rely on inferences to reach its finding that Serbia failed to punish perpetrators of genocide. Serbia presented direct evidence to the contrary.101 Serbia did not show that it tried to prevent or avert the genocide at Srebrenica. this appears to be a case where the Court should have been highly concerned with equality between the Parties and may have achieved that equality by liberally construing Bosnia and Herzegovina’s circumstantial evidence. the Court relied on indirect evidence to determine that Serbia knew of the possibility of genocidal acts at Srebrenica and did not adequately prevent those acts.103 5. Instead. 15 .” The Court did not find direct evidence to support Bosnia and Herzegovina’s submission that the pattern shown by circumstantial evidence proved that Serbia had intent to commit acts of genocide. Instead. the Court observes that it must have been clear to Belgrade authorities that there was a serious risk that genocide would occur in Srebrenica. and the opposing party used redacted documents. 373. para. One reason the Court may have relied on certain circumstantial evidence but not other circumstantial evidence is that it found the evidence of public concern more reliable and consistent with direct evidence.”104 For a pattern of conduct to be accepted as 100 Id. 449. 101 Id. 104 Id. On its face. The court relied on some of Milošević’s own observations to corroborate the circumstantial evidence showing “international concern. However. In fact. The Court relied on evidence of international concern to find that Serbia failed in its duty to prevent acts of genocide. Bosnia and Herzegovina was trying to prove a case in which the direct evidence was under the territorial control of the opposing party. Why Didn’t the Court Rely More Heavily on Circumstantial Evidence? It certainly seems at first glance that the Court should have placed reliance on Bosnia and Herzegovina’s circumstantial evidence to be consistent with its past rulings. para.. the Court did not rely on Bosnia and Herzegovina’s circumstantial evidence that it alleged proved Serbia had the intent to commit acts of genocide. para. In addition. given all of the “international concern” about what appeared likely to occur at Srebrenica.

107 Id. 44. C. The Court determined that trial decisions by the ICTY merit special attention because the fact-finding process of the ICTY tests evidence through cross-examination. one possible reason why the Court did not grant Bosnia and Herzegovina an evidentiary benefit in response to Serbia’s refusal to disclose secret documents is that the Agent for Bosnia and Herzegovina did not raise this issue of the necessity of disclosure until the eve before oral arguments.111 This may or may not have had an effect on the Court’s reasoning.105 Moreover. it is significant that the Crime of Genocide case is unique from past cases because such an overwhelming amount of direct evidence existed for the Court to assess.109 The ICTY decisions were highly persuasive to the Court. and who were subsequently cross-examined by judges skilled in examination and experienced in assessing large amounts of factual information. 110 Andrea Gattini. and they made it difficult for Bosnia and Herzegovina to rely on any circumstantial evidence that contradicts these decisions. of Int’l Crim. the Agent for Bosnia did not renew its request.R. after the Court had decided not to call upon Serbia to produce those documents at that state of the proceedings. The Court had the option to rely on multiple decisions from the International Criminal Tribunal for the Former Yugoslavia (“ICTY”). but it does show that Bosnia and Herzegovina did not seem to firmly or repeatedly press the issue. v.C.R. Uganda. 106 Andrea Gattini. Evidentiary Issues in the ICJ’s Genocide Judgment. Evidentiary Issues in the ICJ’s Genocide Judgment.C. of Int’l Crim.106 This is in stark contrast to many past cases were a paucity of direct evidence existed. Just.”). 889. 67. it naturally was explicit about its preference for direct evidence. 111 Id. 108 Crime of Genocide.110 In addition.. Just. 5 J. 61 (“The Court moreover notes that evidence obtained by examination of persons directly involved. v. the Court was more or less forced to explain how much it could rely on the different types of evidence. Thus. 214. merits special attention. Reconciling Corfu Channel with Crime of Genocide 105 Id. 16 . 892 (2007). para.107 Because the Parties presented so many different documents and pieces of evidence to the Court. para. Uganda. citing Nicaragua.108 This comports with the Court’s decision in D. In addition. para. 889. Crime of Genocide. 890 (2007). it was extremely difficult for Bosnia and Herzegovina to mount a case based on circumstantial evidence. para. it would have to be so that it could only point to the existence of such intent.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY evidence of specific intent. Since Serbia could produce so much direct evidence in its favor. 5 J. some of it of a technical nature. 109 D.

the Court evaluated the reliability of this evidence by comparing it to direct evidence.113 A. 18. 115 Id. 38(1)(d). Other international courts’ treatment of these evidentiary issues can affect the International Court of Justice’s future decisions because judicial decisions are a source of law on which the Court can and has relied. 829-871 (Apr. 17 . The Court permitted both the United Kingdom and Bosnia and Herzegovina to present circumstantial evidence. II.. however.114 The Arbitrator. Vol. Circumstantial Evidence and Other International Tribunals The International Court of Justice is not the only international judicial body to evaluate a party’s recourse to circumstantial evidence to make its decisions. Upon further examination. art. In addition. Serbia presented numerous documents that included direct evidence that Serbia did not intend to and did not commit genocide. RIAA. Therefore.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY The Court’s treatment of circumstantial evidence in Corfu Channel and Crime of Genocide cases seems partially incompatible. In both cases.115 Huber wrote that if the Arbitrator finds that there are legally relevant facts that contradicted the maps of cartographers that relied on unknown sources. Huber also recognized the problem that many cartographers make maps by referring to already existing maps instead of collecting their own information. the Court in Crime of Genocide had direct evidence that contradicted Bosnia and Herzegovina’s circumstantial evidence. 116 Id. IV. In Crime of Genocide. 852. the Court was explicit about permitting the United Kingdom to take “more liberal recourse to inferences of fact and circumstantial evidence”112 but never explicitly permitted Bosnia and Herzegovina to do the same. p. 113 Statute of the International Court of Justice. Albania did not present adequate direct evidence to call into question the authenticity of the United Kingdom’s circumstantial evidence. the two Judgments’ treatment of circumstantial evidence reveals similarities. to determine sovereignty. Permanent Court of Arbitration at The Hague Before the creation of the International Court of Justice. Max Huber. a type of circumstantial evidence. 114 Island of Las Palmas (Netherlands/United States). p. the Netherlands and the United States of America agreed to submit a dispute over which country had sovereign control over the Island of Palmas to the Permanent Court of Arbitration at The Hague.116 112 Corfu Channel. 853. In Corfu Channel.. p. Huber rejected any maps that did not “precisely indicate” the political distribution of territories unless the maps helped show the location of geographical names. The Court found circumstantial evidence from the United Kingdom reliable enough to hold Albania legally responsible but did not find Bosnia and Herzegovina’s circumstantial evidence reliable enough to decide that Serbia intended to commit genocide. expressed concern about relying on maps. 1928). Huber determined that the tribunal must exercise great caution when using maps to decide a question of sovereignty. 4. then the Court could not attach any weight to the maps.

2004). 17). Diss. Malaysia). led the Commission to conclude that Ethiopia is liable for seventy-five percent of the damage caused to the cemetery.g. para.org/showpage. 7.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY More important than the Island of Palmas case’s direct implication for a state’s ability to rely on maps. 18 .. Permanent Court of Arbitration. The Temple of Preah Vihear (Camb.pcacpa. 254 (Jun.121 Ethiopia requested monetary compensation. Sovereignty over Certain Frontier Land..122 Thus. 5. 6.asp?pag_id=1151.org/upload/files/Algiers%20Agreement. 122 Id. it had been destroyed. of Judge Moreno Quintana. 6. damage and injury suffered” by Ethiopian nationals during the period of 1998-2000 on the Central Front. 205 (Oct. Eritrea Ethiopia Claims Commission (Apr.). 120 Partial Award. This failure to produce evidence coupled with the fact that Ethiopia was the Occupying Power from May 2000 through February 2001. When he returned. Eritrea presented witness testimony that the cemetery was undamaged at the time that he fled. the Court is willing to adopt other judicial bodies’ attitudes towards circumstantial evidence.C. v. One claim by Eritrea was that Ethiopian troops looted and stripped a cemetery in the town of Tserona. (Belg. 1959 I. Eritrea’s Claims 2. the Commission read negative inferences of fact against Ethiopia because it failed to produce evidence. http://www. para. 8 & 22. Dissenting Opinion of Judge Moreno Quintana. is a binding arbitration tribunal for claims brought by the Governments of Eritrea and Ethiopia against the other and by the nationals of one government against the other. 303.pdf. 10). 83 (Dec. 28. 20). Judges of the International Court of Justice has relied on the Island of Palmas case in seventeen of its own decisions. set in The Hague. 118 Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea.J. 1.C.C. 625. 119 Id. 2002 I. Thai. which was shortly before the Ethiopian troops arrived. Ethiopia presented no evidence to rebut Eritrea’s circumstantial evidence. 209. Eritrea-Ethiopia Claims Commission. involving Eritrea’s Claims 2.C. 15). 2002 I. Nigeria: Equatorial Guinea intervening).J.J. Central Front. Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia v. 121 Id.119 In the Commission’s Partial Award for the Central Front. para. Neth. v.117 Thus. 71.. B. art.118 the Eritrea Ethiopia Claims Commission. 8. Op.pcacpa.). The Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. and 22. 69 (Jun.J. this decision shows how an international judge must critically examine circumstantial evidence and compare it with direct evidence. para. 2000. 6. 4.120 The case involved claims by Eritrea against Ethiopia for “loss. Eritrea Ethiopia Claims Commission Established by Article 5 of the Agreement signed in Algiers on December 12. 4. http://www. 7.. the Court relied on 117 See e. 1962 I.

Central Front. 3. (2) international custom (3) general principles of law recognized by civilized nations.. Eritrea also claimed that Ethiopian troops were responsible for damage to the Electrical Authority buildings in Senafe Town. 8 & 22. Rules of Procedure. 19. 95. United States of America.127 Methanex Corporation requested $970 million in compensation from the United States due to losses caused by the State of California’s ban on the sale and use of the gasoline additive 123 Id. 6. chap. para. 19. 4. 38(1).123 An expert witness testified for Eritrea about the damage done to the Electrical Authority buildings. Partial Award. Because the Commission had credible evidence that the town had electrical lighting before the Ethiopian forces entered. See also ICJ Statute art. B.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY circumstantial evidence to formulate the presumption that Ethiopia is partially responsible for the property damage. United States of America. para. and (4) judicial and arbitral decisions and the teachings of the most highly qualified publicists. art. Although the NAFTA Tribunal applies a set of procedural and evidentiary rules different from that of the International Court of Justice. 2005.124 The Commission is directed to look to: (1) international conventions. 126 Methanex Corporation v. 7. Again. Eritrea Ethiopia Claims Commission. the Commission could presume that the damage occurred during Ethiopia’s occupation. Eritrea’s Claims 2. 124 Eritrea – Ethiopia Claims Commission. The Eritrea Ethiopia Claims Commission’s decision to read negative inferences of fact against Ethiopia when it did not produce defensive evidence is particularly poignant within a discussion of the International Court of Justice’s treatment of the burden of proof because the Eritrea Ethiopia Claims Commission relies on the same sources of international law as the ICJ. Aug.126 despite the fact that it ultimately found the circumstantial evidence unpersuasive. 127 Id.125 C. and Ethiopia presented no defensive evidence. In the Matter of An Arbitration under Chapter 11 of the North American Free Trade Agreement and the UNCITRAL Arbitration Rules. 3. it relies on “applicable rules of international law. 125 Id. Final Award of the Tribunal. para. NAFTA Claims Tribunal The NAFTA Claims Tribunal displayed no reluctance in relying on inferences and circumstantial evidence in the case of Methanex Corporation v. The burden of proof shifted to Ethiopia to prove non-attribution.” which the Tribunal interpreted to mean the same sources of law the International Court of Justice relies on in Article 38(1) of its Statute. the Commission relied on circumstantial evidence. The Commission consequently found Ethiopia liable for the damage to the Electrical Authority buildings. 19 .. part II.

part III. and 1110 of NAFTA. Instead. the Eritrea Ethiopia Claims Commission’s Partial Award for the Central Front. part III.”135 The Court did not find this circumstantial evidence of secrecy to be accurate because direct evidence. B. 46. para. by way of inference. B. involving Eritrea’s Claims 2. para. part III. 39. 40.137 The analysis of circumstantial evidence in Islands of Las Palmas. para.132 The Court assumed.. para. 2..129 In fact.. 136 Id.133 Methanex could not offer direct proof that Davis and ADM officials entered into an illegal agreement during that dinner. 134 Id. contradicted Methanex’s claim. B. part III. 135 Id. it found that the circumstances did not support an inference that there was a violation by the United States of Articles 1101. para. that this meeting permitted Davis to present himself to potential contributors and for them to present to him. chap. B. and 22. para..136 Therefore. 38. Although circumstantial evidence must be critically 128 Id. para. the use of a traffic escort. part III. 131 Id. chap. para. 7. 36.”128 The Tribunal noted that many of Methanex’s arguments were not based on facts but rather are based on factual inferences. it literally adopted a “connect the dots” strategy that permitted the use of circumstantial evidence and inferences to connect different factual allegations. chap. part III. B. chap. 137 Id. 6. part III. Methanex invited the Tribunal to draw inferences from the unreasonableness of the justifications the State of California put forth for why it imposed the ban of MTBE. and the Methanex case before the NAFTA Tribunal. in the absence of contrary evidence.. part III. reveal a general acceptance of the use of circumstantial evidence in international law. 34. such as Davis reporting the trip on his campaign donation forms. B. although the Tribunal expressed no qualms about using circumstantial evidence in general.134 The Court evaluated Methanex’s circumstantial evidence for this claim.. 20 .130 The Tribunal did not question whether or not this is an appropriate way to interpret evidence. 4. 1102.. part I. and reports of the meeting in the press. 8. 1105. one piece of evidence being that the meeting was “secret. 1. chap. 129 Id. para. Methanex’s claim they formed an illegal agreement. so the Tribunal needed to determine if evidence could support. chap. 1.131 The Tribunal addressed circumstantial evidence specifically when discussing “Dot 5..” namely the emphasis Methanex placed on a dinner hosted by ADM (the largest United States producer of ethanol) for Governor Davis (Lieutenant Governor then Governor of California).. 130 Id. B. 132 Id. chap. chap.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY known as “MTBE. B. 133 Id.

Case Concerning Sovereignty Over Pulau Ligitan and Pulau Sipadan. v. 83.143 In the Court’s decision regarding preliminary objections. para. it is generally permissible. the International Court of Justice has used Max Huber’s reasoning in the Island of Las Palmas on many occasions. para.C. para. Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v.C. the Court could use these decisions in the future to show customary international law standards on the use of circumstantial evidence. 100 (Mar.J.C. 4 (Dec. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herz. 303..C. of Vice-Pres.C. Bahrain). 625.J. the World Court has referred to NAFTA decisions and agreements.C.. What this means for the Current Crime of Genocide Case On July 2. 1 (Jul. 17).J. Statute. 144 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. 143 Id. 205 (Oct. 43 (Apr.g. Namibia). the International Court of Justice can rely on these cases when deciding how to value circumstantial evidence. Slovakia). 18). 2). Belg. Article 38(1)(d). 3 (Dec. 3. Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v.C. Chad). Diss. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat.C.) 1999 I. Diss. Op. As judicial decisions. 13). 1045. Case Concerning Kasikili/Sedudu Island (Botswana v. 3. para.). Ser. and various paramilitary detachments” in various regions of Croatia.J. Order. v. para. Gabcikovo-Nagymaros Project (Hungary v. 10).A. 142 Id. 2008 I. Op.142 Croatia maintained that this ethnic cleansing resulted in the deaths.J. 21 .. Decl. U. Guillaume. 1997 I. 118.). para. para. 2002 I. Croatia then alleged a “second round” of ethnic cleansing by Serbia in 1995. 13).J. 2001 I.144 the Court (1) found that the 138 I. Namibia). 7. Sep. of Vice-Pres. intelligence agents. displacement. 2002 I. 1999 I. Gen. 114. Nigeria. 2002 I. List No. V. 141 Application Instituting Proceedings.138 In fact. Decl.C.J. 243.J. and illegal detainment of Croatian citizens as well as property destruction. of Pres. 1994 I. para.139 In addition.J. 109 (Feb. of Judge El-Kosheri. Case Concerning Kasikili/Sedudu Island (Botswana v. 40. para. para. of Judge Kreca. 14).J. 118 (Nov. 109 (Dec. 4 (Feb. Case Concerning the Arrest Warrant of 11 April 2000 (D. Croatia filed an Application against the Federal Republic of Yugoslavia (now Serbia) alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide. 1997 I.S.g. 25).J. 18 (Dec. Gen. Ser. Weeramantry.J. No. Op. 1999 I. Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. 139 E.141 Croatia alleged specifically that Serbia is liable for ethnic cleansing of Croatian citizens because it directly controlled “the activity of its armed forces. Weeramantry.C. 17). Guinea intervening). of Judge Higgins.C.C.C. 1999. Sep. 16). Yugoslavia). Op. 140 E. 93 (Sept.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY examined. 1045.C.). 3). v. Decl. of Judge Ago. torture. Croatia requested reparations for these damages. 1992 I.R. v. Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.J. para.140 In addition. Eq. Order. 14). List.

It remains to be seen whether or not the Court would liberally construe circumstantial evidence from a party if the opposing party kept evidence confidential and still materially relied on it. it must be convinced that the circumstantial evidence proves an issue beyond reasonable doubt. The United Kingdom kept information confidential in Corfu Channel. it seems inevitable that the Court will rely on evidence from the International Criminal Tribunal for the Former Yugoslavia.ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY Court had jurisdiction over the case. second.147 There are lessons from Bosnia and Herzegovina’s experience before the International Court of Justice that Croatia can use in its preparation for the upcoming proceedings. Finally. Paradoxically. p. 50. The United Kingdom did not rely on documents that it kept secret from Albania and the Court in Corfu Channel. but it did not heavily or arguably even directly rely on these redacted documents to state its case. the analysis of the International Court of Justice’s opinions related to evidentiary standards indicates that the Court perceives a hierarchy of evidence. Croatia needs to obtain direct evidence for its case. In order for the Court to rely substantially on circumstantial evidence. 22 . 146 Id. 145.145 (2) rejected the first. At the very least. Croatia needs to be able to discredit any direct evidence Serbia submits that contradicts circumstantial evidence Croatia submits. 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. and third preliminary objections of Serbia.146 and (3) determined that the preliminary objections were not of an exclusively preliminary character during its determination of the merits of the case. Simply submitting that the other party has territorial control is insufficient to earn the right to resort to circumstantial evidence. Serbia therefore used these redacted documents.. First. Conclusion This article has shown that the International Court of Justice will rely on circumstantial evidence to determine legal issues but only in certain circumstances. The Court favors direct evidence over circumstantial evidence. the Court will not permit a party to rely on circumstantial evidence just because the other party is keeping evidence confidential. in Crime of Genocide. and Serbia was permitted to respond.. In addition. Croatia cannot expect to prevail if it solely relies on circumstantial evidence and inferences to prove Serbia’s intent to commit alleged crimes. Despite the difficulty of obtaining some of the evidence that was and is in the territorial control of Serbia. VI. para. The Court finds factual evidence that has been put 145 Id. The Court does not find a party’s decision to keep information secret sufficient in and of itself warrant liberal reliance on circumstantial evidence. and Serbia kept information confidential in the Crime of Genocide. 147 Id. it was Bosnia and Herzegovina that referred to the redacted documents. so both Parties need to understand how this will affect their cases. In this regard.

g.. Justice Owada explained that the “procedures and rules on evidence [in an international court] seem to be much less developed.pdf (explaining how Australian law allows for compelling the production of evidence. Serbia was able to furnish reliable direct evidence in its favor. Edwards v. Richard Norton-Taylor.” (citing Statute of Elizabeth. 151 Statute of the International Court of Justice . or may itself seek other information for this purpose.S.Tr. 18 (stating that “[t]his indirect evidence is admitted in all systems of law. can merely “call upon the agents to produce any document or to supply any explanations. art. available at: http://www.”152 but production cannot be compelled. the Court may only have before it circumstantial evidence of a claim or may be confined to limited direct evidence.148 the Court’s use of circumstantial evidence differs from domestic courts in some ways. of Judge Owada. Jul. Kastigar v. 49. “Binyam Mohamed torture evidence must be revealed.uk/world/2010/feb/10/binyam-mohamedtorture-ruling-evidence (explaining how United Kingdom Court of Appeals required British government to disclose information about Binyam Mohamed’s treatment in Guantanamo Bay). These insights should help both litigants before the International Court of Justice and scholars and practitioners who strive to fully comprehend the Court’s judgments. 9. 150 E. See also. http://www. Civ.St.” The Guardian (Feb. 769.”). Australia (New South Wales).”151 If the parties do not comply. 149 Sep. Although the International Court of Justice adopted the evidentiary principle of permitting a state “more liberal recourse to inferences of fact and circumstantial evidence” from other international decisions and domestic legal systems. 10. R. It has therefore carefully chosen when to rely on circumstantial evidence. A Project of the International Litigation Committee.). 2010). c. but Albania was not. the Court is unlikely to rely on the circumstantial evidence. 5 Eliz. Obtaining Evidence Abroad.abanet. Rules of Court.150 The International Court of Justice. para. Mar. 2003 I. judges rule. 2002 (The fact that an investigation into the death of a prisoner violated Article 2 of the European Convention on Human Rights in part because the inquiry did not have the power to compel witnesses.J. Countess of Shrewsbury's Case. Proc. if reliable direct evidence contradicts circumstantial evidence. p. Eur.org/intlaw/committees/disputes/litigation/ausnswales. 161. a party’s ability to rely on circumstantial evidence may depend on the strength of its opponent’s case. Fed. H. United Kingdom (App. International Court of Justice.C. Ct. Therefore. than in the case of the national courts. s 12 (1562). 2 How. then “[f]ormal note shall be taken of any refusal. 23 . 26(b)(2)(B) (2009) (A United States court has the power to compel production of discovery evidence). No 4647/99). and its use is recognized by international decisions.”149 This may be in part because of domestic courts’ power to compel production of evidence. See also. 14. 52 (Nov. Op.. and the task of the Court for fact finding much more demanding. 441.R. 6). 443 (1972) (“The power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in AngloAmerican jurisprudence. United States. ABA Section of International Law.). 406 U. 1.). 152 Id.guardian.. on the other hand. 1. 1979 (“The Court may at any time call upon the parties to produce such evidence or to give such explanations as the Court may consider to be necessary for the elucidation of any aspect of the matters in issue. 778 (1612). art. Thus. Thus. 148 Corfu Channel.co.”).ICJ’S TREATMENT OF CIRCUMSTANTIAL EVIDENCE SCHARF AND DAY through the trial process more persuasive than factual evidence that has not withstood crossexamination. 62(1).