Evidence in the procedure of the International Court of Justice: conceptual aspects

          Any proceeding in an international judicial process ^[8] is, ultimately, the application of the norms of international law to the facts, therefore the accuracy and reliability of the facts are of particular importance. As J. Fitzmaurice, who was a member of the International Court of Justice for many years, rightly noted, the outcome of an international trial may actually “depend on accidents arising during the process or compliance with formalities” ^{[26, p. 575-578]}.   

The issue of evidence in international legal proceedings is of particular importance, since these proceedings are designed to ensure the rule of law, as well as lead to a decision that will be regarded by sovereign States as fair ^{[10; 11]}. The basic position of the International Court of Justice has been preserved since 1932, when its predecessor, the Permanent Court of International Justice, in a decision on the case of the Free Zone of the Upper Savoy, stated that "the resolution of an international dispute should not depend solely on procedural subtleties" ^[28].

          In the past, proving facts was not as important for the resolution of international disputes as it is now: usually the parties agreed with the facts presented, and the Court had only to apply the law. Cases such as the case of the Strait of Corfu ^[21], which required an authoritative examination and a precise determination of the facts, were generally exceptions.  Now the situation has changed. For example, in the Genocide case ^[15], the International Court of Justice had to deal with complex documentary and oral evidence, and in the whaling case ^[50] - with numerous expert evidence. It is unlikely that the number of complex and controversial cases will decrease in the future. The same problem is faced by other international courts, such as the WTO Dispute Resolution Body or human rights courts (African, European or Inter-American) and other regional international judicial institutions ^{[6; 5; 4; 9; 7]}.

          Former President of the International Court of Justice R. Higgins, speaking at the 58th session of the International Law Commission, said: "The inclusion in the Court's agenda of an increasing number of cases containing a huge amount of contradictory data does not allow it, as before, to focus exclusively on legal issues. The Court faces a number of new procedural problems" ^[47].

The importance of this problem has also been noted in the literature. According to the well-known scientist T. Frank, the problem arises from the fact that the International Court of Justice is both a court of first instance and a court of last instance, and therefore its decisions should be made on the basis of the most reliable factual data and it should avoid the temptation to mitigate the lack of factual evidence by its own discretion as much as possible ^{[27, p. 32]}.

          There are two parts to the whole problem of evidence in international judicial proceedings: the question of the powers of the court itself and the parties to determine the evidence required for submission; the question of the admissibility of evidence, that is, the court's authority to determine the evidentiary value of each evidence and the legality of relying on this evidence in determining the legal position of the court and making a decision.

a) selection of evidence

From a formal point of view, the constituent documents and regulations of international courts and tribunals, as a rule, do not contain detailed regulations for the search and evaluation of evidence in the judicial process. As a rule, they contain only a general reference to the evidence with an indication of the timing of submission. This gap is filled by the judicial practice of the courts and tribunals themselves, which gives flexibility to the judicial body, but introduces uncertainty and inconsistency in the rules that apply or will be applied.

It should be noted that the Court is not the absolute master of the procedural provisions regarding evidence. The parties to the proceedings are given a significant degree of freedom in the selection and presentation of evidence, provided that they are presented during the written stage and in the forms prescribed by the Rules of Court. The court has no right to force the parties to provide evidence.  He has no right to punish for contempt of court.

          Organizations of scientists paid some attention to the issue of evidence. Thus, the Institute of International Law prepared a report "Rules of Evidence in international judicial proceedings" in 2004 ^[40].  The International Bar Association has developed "Rules of Evidence" ^[30], which, however, are used more in arbitration proceedings on investment disputes and in international commercial arbitration. The World Association of International Law has established  Committee on the Procedure of International Courts and Tribunals ^[31]. This Committee examines the rules of procedure as a whole, and evidence is one of the sub-topics under consideration.

          In the constituent documents of the International Court of Justice, there are no strict restrictions on the powers in terms of collecting and evaluating evidence ^{[1; 2]}. Speaking at the UN General Assembly, the Chairman of the Court, R. Shwebel, qualified the Court's position in relation to the problem of evidence as very flexible ^[39]. One of the manifestations of this flexibility, the well-known scientist M. Shaw considers the use of "illegally obtained evidence" in the case of the Corfu Strait ^{[46, p. 32-36]}.

          The powers of the International Court of Justice to determine the procedure for presenting and evaluating evidence are based on its competence to establish the existence of a fact that, if established, would constitute a violation of an international obligation (paragraph "c" of Article 36 of the Statute of the International Court of Justice ^[2]) ^{[3, p. 27]}. In Article 62 of the Rules ^[1], the Court is given the authority to summon witnesses and send requests to the parties for additional evidence or such explanations as the Court may deem necessary to clarify any aspect of the issues under consideration, or any other information.

          The court has the opportunity to ensure the presence of a witness or expert to testify during the proceedings (Articles 57 and 58 of the Rules); to influence the content and duration of oral statements (Articles 60 and 61) ^[1].

          By virtue of Article 49 of the Statute, the Court may, even before the hearing, call on the representatives of the parties to submit certain documents or explanations ^[2]. The Court has used the powers granted to it by these provisions several times ^{[22; 36; 13]}.  In addition, Article 50 of the Statute gives the Court broad powers to establish facts, which allows it at any time to entrust the investigation or examination to any person, board, bureau, commission or other organization of its choice ^[2]. 

          It should also be mentioned that the legislative and procedural framework governing the proceedings in Court allows the parties to call witnesses, including expert witnesses, who, in turn, can be cross–examined (Article 43). In fact, the testimony, including from expert witnesses, was largely part of two oral proceedings in Court: first, in the dispute over whaling in Antarctica; and, secondly, in the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia). Moreover, these two proceedings included whole complex sets of issues – in one case, the need to delve into the consideration of purely scientific evidence, and in the other, to practically develop criteria for interpreting alleged violations of the Genocide Convention during the conflict in the Balkans and assessing damage to the environment and the conservation of living resources.

          In many ways, the first case shows the willingness of a sovereign State to submit to Court a dispute centered on purely scientific data disputed by both sides and trusted for resolution by the Court; this fact resembles another scientifically complex case – about pulp mills on the Uruguay River ^[42]. The Court's approach to the use of scientific data in the whaling case has been widely approved in the literature. A. Riddel writes, for example: "The Whaling case shows that the Court can deal with a large amount of technical and scientific data, using them convincingly and methodically, leading to analytically clear and convincing results" ^{[45, p. 229]}. The Court's positions in the consideration of the Genocide Convention case were approved from a slightly different point of view: "The Court assessed the voluminous testimony, written and oral, including some testimony of witnesses in private during oral hearings" ^{[44, p. 47-52]}.

The use of experts as such is relatively rare, except, perhaps, the case of the Corfu Strait ^[21]. The appeal to witnesses is noted in several cases: in the dispute between Tunisia and Libya ^[19], between Libya and Malta ^[20] and in the case ofNicaragua v. the United States ^[34].

The Court may organize a field visit after agreement with the Government of the relevant State, when it is necessary to take measures to obtain evidence on the spot (Article 44 of the Statute and Article 66 of the Rules of Court).  So far, there have been only two field trips: in the case of the Meuse River flow ^[23] and in the case of Gabchikovo-Nadmarosh ^[29].

b) the question of the admissibility of evidence

Let's focus on such an important element of the process of presenting evidence as the question of their admissibility ^{[12, p. 275]}. The Court independently establishes the facts, and then applies the relevant rules of international law to those facts that it has established exist and which are necessary in order to respond to the submissions of the parties, including objections and counterclaims. The proper application of the norms of international law to facts requires an assessment of evidence, therefore, the Court needs to determine which of the submitted materials is relevant to the case and has evidentiary value in relation to the alleged facts. At the same time, the Court independently assesses the weight, reliability and value of the evidence presented by the parties. The Statute and Rules of the Court ^{[2; 1]} do not impose any serious restrictions. In principle, the permissive nature of the evidence base governing the proceedings in Court allows the parties to present virtually any forms or types of evidence that they consider appropriate, with the proviso that the Court enjoys unlimited freedom when comparing them with the circumstances of each case and with reference to relevant international legal norms.

The question of the permissibility of relying on evidence obtained illegally arose at the very beginning of the activities of the International Court of Justice. This was the decision in the case of the Corfu Strait ^[21]. At the center of this dispute was the issue of the State's obligation to take care of the safety of navigation in the areas of its jurisdiction. In 1946, two British warships, while passing through the Strait of Corfu between Albania and Greece, were blown up by mines left over from the Second World War. This led to the destruction of ships and significant loss of life. The United Kingdom referred the dispute to the Court against Albania and argued that Albania was internationally responsible for mines laid in the Strait, mainly because it had failed to warn passing ships of the presence of these mines. Already during the dispute, British minesweepers combed the Strait of Corfu without the consent of Albania in order to collect the mines still there and present them to the Court as proof of Albania's responsibility.

At the same time, Great Britain justified its actions as "a special application of the theory of interference, by which the intervening State obtained evidence on the territory of another State necessary for submission to the International Court of Justice" ^{[21, p. 34]}. The Court rejected this argument and characterized the actions of England as "a manifestation of the policy of force, which in the past led to the most serious abuses", which leads to distortion of the process of international justice itself ^{[21, p. 13]}. The Court also rejected attempts by the United Kingdom to qualify its behavior as falling under the category of self-defense or self-help. In this regard, the Court stressed that "respect for territorial sovereignty between independent States is the most important basis of international relations." While acknowledging that Albania had not fully fulfilled its duties after the explosions and had used delaying tactics in this regard, the Court nevertheless stated that its main task was to ensure compliance with international law and that the actions of the British Navy to collect mines during the consideration of the case in Court constituted a violation of sovereignty. Albania. However, the Court did not actually object to the admissibility of the evidence itself, justifying this by the fact that no objections were raised by Albania.

This Court decision has generated mixed opinions among scientists. For example, H. Terlvey actually approved it: "The approach chosen by the Court in the Corfu Strait case was quite rational and corresponded to the fundamental nature and powers of international judicial institutions" ^{[49, p. 621]}. Other scholars were inclined to explain the Court's actions by exceptional circumstances ^{[17, p. 1243]}.

In the future, by adopting a second decision on interim measures during the proceedings of the case onThe Genocide Convention (Bosnia v. Yugoslavia), when the Court again faced the question of evidence obtained in an irregular way, the Court made a reservation: such evidence can be taken into account, although in this case their evidentiary value will not be entirely reliable and their confirmation from other sources will be required.

Thus, the Court is not guided by some kind of preliminary filter to filter out inadmissible evidence from the very beginning; the Court enjoys broad discretion in assessing the admissibility of evidence. It follows from this that forms of evidence usually excluded in national court proceedings, such as hearsay evidence (preuve par ou?-dire), are not inadmissible, although the Court attaches little or no importance to such elements of evidence. As for the hearsay evidence, for example, the Court indicated in its oft-quoted decision on the activities of military and paramilitary formations in and against Nicaragua that evidence that is not directly within the competence of the witness, but is known to him only by hearsay, does not have much weight ^[34]. Recall that even in the decision on the case of the Strait of CorfuThe Court rejected the hearsay evidence on the grounds that it amounted to statements that did not have convincing evidence ^[21].

The Court considers itself not limited in its ability to determine the evidentiary value of any type of evidence presented to it, and the evidence presented is in no way limited to documentary. At the same time, no distinction is made between public and private documents and the so-called "best rules of proof" are not established, according to which, if possible, original documents should be submitted instead of photocopies or certified copies. Therefore, the Court often has to assess the evidentiary value of reports prepared by official bodies, as well as unofficial organizations. This is especially often the case during the proceedings of such sensitive disputes that arise, for example, against the background of an armed conflict, as was the case in the genocide cases in Bosnia, or in the Bosnia-and-Herzegovina lawsuit against Serbia and Montenegro. A similar situation has developed around the dispute over armed actions on the territory of the Congo ^[14].

It should be noted that the Court tries to assess the positions of the parties primarily on the basis of the submitted written evidence. The Court has repeatedly stated its position: its decision should be based on the facts that take place until the completion of the oral proceedings on the merits of the case ^{[35; 41]}. However, it should be noted that in the decision on the Lockerbie case The Court actively used the text of the UN Security Council Resolution adopted three days after the end of the oral hearings ^[33]. In addition, there were cases when the Court was ready to recognize a number of documents submitted after the written stage, during oral hearings, despite the fact that, according to Article 56 of the Rules ^[1], after the completion of the written proceedings, neither party can submit additional documents to the Court, except with the consent of the other party, or, in the absence of consent, if the Court itself, after hearing the parties, permits such representation, finding it necessary

An attempt to generalize the rules of admissibility was made by the International Court of Justice in the case of the Genocide in Bosnia. The Court pointed out that the evidentiary value depends, in particular, on:

- the source of evidence (for example, from one of the interested parties or a neutral origin); the Court also considers it necessary to attach special weight to information whose correctness is not disputed by independent witnesses, as well as evidence obtained during professional judicial investigation and interrogations of persons directly involved in the case ^[15]. In the same decision, the Court also stated that, in principle, it considers the facts established during the trial by the International Criminal Tribunal for the Former Yugoslavia to be very convincing, if they are not challenged by the parties.

- the method of obtaining it (for example, from publications in the media or specially prepared); in the decision in the case of Congo v. Uganda ^[14], the Court noted that it would treat with caution materials specially prepared for the case in question. However, the Court also noted that such materials can be taken into account even if the information contained in them is based on the knowledge of a particular individual ^[48].

- quality or character (for example, well-known facts or facts recognized to the detriment of their own interests) ^[15]. Here we can cite the case of American hostages in Tehran ^[32] or in the territorial dispute between El Salvador and Honduras ^[24]. In this regard, the case of military and paramilitary formations against Nicaragua should be particularly noted ^[34].

The Court considered it necessary to take the testimony of representatives of state and military bodies in court proceedings with caution ^[14]. The Court considers it necessary to show a differentiated attitude with regard to sworn testimony, taking into account such factors as: whether these statements are given by public officials or simply by private individuals who are not interested in the outcome of the case, and whether they contain a statement of facts or only the opinion of a witness regarding certain events ^[48]. Statements regarding border lines are more convincing on the part of an official than an ordinary person ^[48].

          The court may formulate and publish a statement of facts in the mass media for public awareness, provided they are carefully selected, in particular, on the basis of selection from a variety of sources ^[35]. In the decision in the case of Congo v. Uganda, the Court noted the particular importance of consistency and consistency in assessing information in the press ^{[14; 25; 16]}.

Deviating a little to the side, we emphasize that the arbitration tribunal that considered the border dispute in the Brcko area in its decision of February 14, 1997 adopted an entire annex on the principles of evidence selection; it states that each party bears the burden of proving its own position, in particular, the facts it claims. The party bearing the burden of proof must not only provide evidence to support their claims, but must also convince the Tribunal of their authenticity. The Tribunal is not obliged to adhere strictly to the judicial rules for the selection of evidence, since the Tribunal itself determines their evidentiary value. If proving a fact seems particularly difficult, the Tribunal may be satisfied with less rigorous proof, so to speak, prima facie proof^[18].

The Court also focused on such an important issue as the burden of proof. In his opinion, the burden of proof lies with the party that seeks to confirm a specific fact or facts. This statement is contained in the decision on whether the Court has jurisdiction, although the Court itself stated that the issue of the burden of proof does not arise at the jurisdictional stage ^{[35; 25]}.

However, it must be admitted that the burden of proof, and quite substantial, lies on the State that considers it necessary to enter into the case. Such a state must convincingly confirm its positions, and this is the essence of the burden of proof, although in fact it just needs to show that its interests can be affected, and not what it will be expressed in. Evidence of the interest of this State should be of a legal nature. It is necessary to formulate a legal interest and show how this interest can be affected ^[24]. Therefore, in the case of entry into the case, the standard of required evidence will vary depending on the specific fact. The then Chairman of the Court, R. Higgins, noted in a separate opinion in the Oil Platforms case: "It seems that the primary goal of the Court is to preserve freedom in assessing evidence based on the facts and circumstances of each case" ^[38].  He expressed the same opinion in his dissenting opinion in the caseQatar v. Bahrain Judge Shahabuddin ^[43].

The Court considered it especially necessary to prove and substantiate facts and evidence in those cases where charges of exceptional gravity are brought against the State. In the Decision on the Genocide Convention case (Bosnia v. Serbia) The Court stated that it must be fully convinced that the statements of the parties in the process about the actual commission of the acts listed in Article III of the Genocide Convention were indeed committed; such a standard of evidence should be applied in the case of attribution of any such facts ^[15]. Judge R. Higgins, in her separate opinion on the Oil platforms case, noted that "the heavier the charge, the more reliable the evidence on which it is based should be" ^[38].

Thus, in selecting evidence and assessing its admissibility, the International Court of Justice is guided by the general provisions of its constituent documents. There are no clear indications regarding the problem under consideration in these documents, and the Court is guided mainly by the rules developed in the course of its own practice. But even in this part it is impossible to single out and clearly formulate the existing prescriptions. As the Court itself formulated, it considers it necessary to limit its decision to those legal provisions that are essential for the settlement of the dispute under consideration by it ^[34] on the basis of its establishment of the true subject of the dispute, taking into account the submissions, statements and oral arguments of the parties ^[37].