¹ ‘Debate: Adjudicating Operation Iraqi Freedom’ (2006) 100 Am Soc'y Int'l L Proc 179.

² Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Merits) [2005], http://www.icj-cij.org/docket/files/116/10455.pdf.

³ ‘Debate: Adjudicating Operation Iraqi Freedom’ 190. The speaker in question was Professor Philippe Sands, who actually appeared on behalf of the DRC in the oral round of proceedings in the DRC v Uganda case, and, notably (and correctly), argued before the Court that there was no set practice with regard to the standard of evidence to be applied by the ICJ. See DRC v Uganda (Merits) CR 2005/3, paras 19–20.

⁴ Milanović, M, ‘State Responsibility for Genocide’ (2006) 17 Eur Int'l L 533, 594.Google Scholar

⁵ Corfu Channel (United Kingdom v. Albania) (Merits) [1949] ICJ Rep 4.

⁶ M. Jacobsson, ‘Evidence as an Issue in International Legal Practice’ (2006) 100 Am Soc'y Int'l L Proc 40, 42.

⁷ Article 51 of the UN Charter states that there may be a resort to ‘individual or collective self-defence if an armed attack occurs’ (emphasis supplied). The ICJ has since held this criterion to be ‘the condition sine qua non for the exercise of the right of collective self-defence.’ Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 para 237.

⁸ ME O'Connell, ‘Rules of Evidence for the Use of Force in International Law's New Era’ (2006) 100 Am Soc'y Int'l L Proc 44, 46.

⁹ There are few clear ‘rules of evidence’ with regard to proceedings before the ICJ. The provisions that do exist are contained within the ICJ's Statute and the Rules of the Court (notably Articles 48–53 and Articles 57–72, respectively). The basis of evidentiary assessment in the ICJ is clearly premised upon a principle of ‘freedom of evidence’ (although this is not made explicit in the Rules of the Court). As such, the relevant provisions are extremely general, and allow the Court sweeping powers with regard to the acceptance and evaluation of anything that it determines may have evidential value. Article 58(2) of the Rules of the Court neatly demonstrates this: ‘the method of handling the evidence and the examination of any witnesses and experts … shall be settled by the Court.’ See E Valencia-Ospina ‘Evidence Before the International Court of Justice’ (1999) 1 Int'l L F D Int'l 202; J Evensen, ‘Evidence Before International Courts’ (1955) 25 Nordisk Tidsskrift Int'l Ret 44, particularly at 46 and K Highet, ‘Evidence, the Court and the Nicaragua Case’ (1987) 81 Am J Int'l L 1, 6–13.

¹⁰ See TM Franck, ‘Fact-Finding in the ICJ’ in RB Lillich (ed) Fact-Finding Before International Tribunals (Transnational, New York 1991) 21.

¹¹ RN Gardner, ‘Commentary on the Law of Self-Defence’ in LF Damrosch and DJ Scheffer (eds) Law and Force in the New International Order (Westview Press, Oxford, 1991) 52–53.

¹² Nicaragua (Merits).

¹³ Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) (Merits) [2003] ICJ Rep 161.

¹⁴ DV Sandifer, Evidence Before International Tribunals (University Press of Virginia, Charlottesville, revised ed, 1975) 123.

¹⁵ ibid.

¹⁶ ibid 123–132; R Wolfrum, ‘Taking and Assessing Evidence in International Adjudication’ in TM Ndiaye and R Wolfrum (eds) Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A Mensah (Martinus Nijhoff, Leiden, 2007) 344–345; CN Brower, ‘Evidence Before International Tribunals: The Need for Some Standardised Rules’ (1994) 28 Int'l L 47, 49; M Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals (Kluwer Law International, The Hague, 1996) 221–223 and Valencia-Ospina (n 9) 203.

¹⁷ Brower, ibid, in general, but particularly at 47 and 49; C Brown, A Common Law of International Adjudication (Oxford University Press, Oxford, 2007) 98; M Kazazi and BE Shifman, ‘Evidence Before International Tribunals: Introduction’ (1999) 1, Int'l L F D Int'l 193; T Buergenthal, ‘Judicial Fact-Finding: Inter-American Human Rights Court’ in Lillich (ed) Fact-Finding Before International Tribunals 261, at 271; Sandifer (n 14) 123–125 and Valencia-Ospina ibid 203.

¹⁸ See, for example, the statements concerning evidentiary standards made in the Inter-American Court of Human Rights, in the Velasquez Rodriquez case (1988) Inter-Am Ct HR 1, paras 127–129. For discussion, see A Philip, ‘Description in the Award of the Standard of Proof Sought and Supplied’ (1994) 10 Arbitration Int'l 361; Brown, A Common Law of International Adjudication 98; Wolfrum (n 16) 342; Kazazi (n 16) 350–352 and C Reymond, ‘The Practical Distinction Between the Burden of Proof and Taking of Evidence—A Further Perspective’ (1994) 10 Arbitration Int'l 323, 326–327.

¹⁹ J Evensen, ‘Evidence Before International Courts’ (1955) 25 Nordisk Tidsskrift Int'l Ret 44.

²⁰ T O'Donnell, ‘Security Council Resolution 1530, Evidence and the United Nations Security Council’ (2006) 100 Am Soc'y Int'l L Proc 47, 49.

²¹ As the Court itself pointed out in the Nicaragua case: ‘within the limits of its Statute and Rules, it [the Court] has freedom in estimating the value of the various elements of evidence.’ Nicaragua (Merits) para 60. It has already been noted that Article 58(2) of the Rules of the Court gives the ICJ the power to determine its own ‘method of handling evidence.’ The only mention of any kind of a ‘standard’ for evidentiary assessment in the Statute or Rules of the Court is of an extremely general nature: Article 53 of the Statute of the ICJ provides that in instances where a party has failed to appear, the Court's decision must nonetheless be ‘well-founded in fact and law’, emphasis supplied. See K Highet, ‘Evidence and Proof of Facts’ in LF Damrosch (ed) The International Court of Justice at a Crossroads (Transnational, New York, 1987) 355–356 and Valencia-Ospina (n 9) 203–204.

²² See Sandifer (n 14) 132–141, who sets out the references made to the standard of proof that appeared in the jurisprudence of the ICJ (and the Permanent Court of International Justice before it) up to 1975. This textual examination of the decisions ultimately offers little insight into the evidentiary standard(s) that were applied by the Court, even implicitly.

²³ O'Connell (n 8) 44.

²⁴ A number of writers have identified these standards as they have appeared in the decisions of international courts and tribunals, including the ICJ. The analysis in this section therefore represents an amalgamation of the conclusions reached by the following: Kazazi (n 16) 326–350; Buergenthal (n 17) 271–272; Brown (n 17) 98–101 and A Reiner, ‘Burden and General Standards of Proof’ (1994) 10 Arbitration Int'l 328, 335–337. Most notably, in 2006, Mary Ellen O'Connell referred to the evidentiary standards discussed in this section with specific regard to the possible application of these standards in the context of the use of force in international law in O'Connell, ‘Rules of Evidence for the Use of Force in International Law's New Era’ 44.

²⁵ Brown (n 17) 99–100.

²⁶ Kazazi and Shifman (n 17) 195. This point was previously made by Kazazi in (n 16) 347–350 and 377. See also Redfern, A, ‘The Practical Distinction Between the Burden of Proof and the Taking of Evidence—An English Perspective’ (1994) 10 Arbitration Int'l 317, 321Google Scholar.

²⁷ Especially when one considers that this system is, in relation to the majority of municipal law systems, a comparatively underdeveloped and indeterminate one.

²⁸ Reiner (n 24) 331–332. See also, T Becker, Terrorism and the State: Rethinking the Rules of State Responsibility (Hart Publishing, Oxford, 2006) 147, commending the decision of the International Law Commission in making almost no reference to evidentiary standards in its Articles on State Responsibility (Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its fifty-third session, November 2001).

²⁹ As Judge Higgins stated in her separate opinion to the Oil Platforms case, there is ‘a general agreement that the graver the charge the more confidence there must be upon the evidence relied on.’ Oil Platforms, (Merits), separate opinion of Judge Higgins, para 33.

³⁰ For example, in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] http://www.icj-cij.org/docket/files/91/13685.pdf, the ICJ indicated with regard to State responsibility for the commission of genocide that evidence that avowedly established this must meet a test approximating that of the ‘beyond a reasonable doubt’ standard (see paras 209–210). The standard of proof employed in that decision was explicitly of a higher degree than the more commonly employed ‘preponderance’ standard. Given the gravity of levelling a charge—albeit in this context not a criminal one—of genocide, it would seem desirable that the factual basis of the claim must be virtually certain. Indeed, the Court explicitly stated at paragraph 209 that ‘claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive.’ (emphasis supplied). See S Sivakumaran, ‘Decisions of International Tribunals: Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007’ (2007) 56 Int'l & Comp L Q 695, particularly at 698–699 and 706–708. This policy argument will perhaps not be suitable in regard to most international legal disputes, however.

³¹ O'Connell (n 8) 43.

³² Nicaragua (Merits) paras 54, 110, 159 and 216.

³³ ibid para 159.

³⁴ Oil Platforms (Merits) para 57.

³⁵ See Section V.

³⁶ See Section II.

³⁷ To borrow the phrase used by the Court, Nicaragua (Merits) para 237.

³⁸ Lobel, J, ‘Use of Force to Respond to Terrorist Attacks: The Bombing of Sudan and Afghanistan’ (1999) 24 Yale J Int'l L 537, 547.Google Scholar

³⁹ A point made by Wolfrum, but with regard to any comparable factual determination, not specifically with regard to the use of force, Wolfrum (n 16) 355.

⁴⁰ See Section II.

⁴¹ This is the legal test employed by the ICJ for identifying an armed attack. See Nicaragua, (Merits), para 191, and also Oil Platforms (Merits) para 51.

⁴² For example, see the view taken by Gray, in the context of the Eritrea/Ethiopia Claims Commission's decision on the jus ad bellum aspects of that dispute. In that decision, the Claims Commission emphatically stated: ‘Localised border encounters between small infantry units, even those involving the loss of life, do not constitute an armed attack for the purposes of the Charter.’ Eritrea/Ethiopia Claims Commission, Partial Award, Jus ad Bellum (Ethiopia claims 1–8), available at http://www.pca-cpa.org/ENGLISH/RPC/EECC/FINAL%20ET%20JAB.pdf, para 11, emphasis supplied. Gray has argued, first, that the Claims Commission should have elaborated upon what an armed attack did in fact entail (not merely upon what did not equate to an armed attack), and, second, that the Claim Commission's view that frontier incidents can never constitute armed attacks may be erroneous. Instead, she takes the position that the jurisprudence of the ICJ in cases such as Nicaragua and Oil Platforms should be taken in the context of those cases (collective self-defence and third State intervention during an ongoing conflict respectively). Thus, in the right context, a border incident may be sufficiently severe to constitute an armed attack. C Gray, ‘The Eritrea/Ethiopia Claims Commission Oversteps its Boundaries: A Partial Award?’ (2006) 17 Eur J Int'l L 699, particularly 717–720.

⁴³ R Higgins, Problems and Process: International Law and How We Use It (Oxford University Press, Oxford, 1994) 250.

⁴⁴ Oil Platforms (Merits) separate opinion of Judge Higgins, para 33.

⁴⁵ Wolfrum (n 16) 355.

⁴⁶ JA Green, ‘The Oil Platforms Case: An Error in Judgment?’ (2004) 9 J Conflict & Sec L 357, 382–384.

⁴⁷ Oil Platforms (Merits) separate opinion of Judge Higgins, paras 30–36, separate opinion of Judge Owada, paras 41–52 (particularly at para 48) and separate opinion of Judge Buergenthal, para 41.

⁴⁸ ibid separate opinion of Judge Buergenthal, para 41.

⁴⁹ ibid separate opinion of Judge Higgins, para 32.

⁵⁰ ibid para 33, emphasis supplied.

⁵¹ Wolfrum (n 16) 342.

⁵² Nicaragua (Merits) para 207. This is an expression of the so-called ‘non ultra petita’ rule, which aims to preserve the consensual nature of the Court's jurisdiction, and provides that the ICJ cannot examine aspects of a dispute not raised by the parties.

⁵³ See ME O'Connell, ‘Evidence of Terror’ (2002) 7 J Conflict & Sec L 19, 23–25; Highet (n 9) 40–41 and Brown (n 17) 100, though all three make this point with regard to Nicaragua only.

⁵⁴ Nicaragua (Merits) para 29, emphasis supplied.

⁵⁵ ibid para 109.

⁵⁶ ibid para 231.

⁵⁷ In addition to the examples already cited, see ibid paras 106, 115 and 135.

⁵⁸ Oil Platforms (Merits) para 71.

⁵⁹ ibid para 61. The Court similarly indicated at para 59 that evidence that was ‘suggestive but no more’ was not sufficient.

⁶⁰ O'Connell (n 8) 44.

⁶¹ In the Oil Platforms decision, the Court makes a reference to the attribution of responsibility between either Iran or Iraq based upon ‘a balance of evidence’—apparently, and anomalously, referring to a preponderance standard Oil Platforms (Merits) para 7.

⁶² As Judge Sir Hersch Lauterpacht stated in 1957, in the context of the standard of proof before the Court more generally: ‘the degree of burden of proof adduced ought not to be so stringent as to render the proof unduly exacting.’ Case of Certain Norwegian Loans (France v Norway) (Merits) [1957] ICJ Rep 9, separate opinion of Judge Sir Hersch Lauterpacht 39.

⁶³ O'Connell (n 53) 25–28.

⁶⁴ ibid.

⁶⁵ As O'Connell points out, as the United States is one of the few States that is capable of employing force in self-defence on any significant scale, its position in this context has particular weight, ibid 25.

⁶⁶ Wolfrum (n 16) 354.

⁶⁷ DRC v Uganda (Merits) para 298.

⁶⁸ ibid para 75.

⁶⁹ ibid para 72, emphasis supplied.

⁷⁰ ibid para 91.

⁷¹ ibid paras 73 and 133.

⁷² ibid para 136.

⁷³ ibid para 134.

⁷⁴ ibid paras 159–160.

⁷⁵ ibid para 161.

⁷⁶ See ibid paras 55–71, particularly 62 and 71.

⁷⁷ O'Connell (n 8) 45.

⁷⁸ See particularly Section III.

⁷⁹ A point made more generally by Kazazi (n 16) 323.

⁸⁰ Corfu Channel, reply of the United Kingdom (1948) ICJ Pleadings Vol, II 241, 284.

⁸¹ Corfu Channel (Merits) 17.

⁸² Wolfrum (n 16) 354–355.

⁸³ ibid 18 (emphasis in original).

⁸⁴ ibid.

⁸⁵ ibid.

⁸⁶ See, for example, Oil Platforms (Merits) separate opinion of Judge Owada, paras 50–52.

⁸⁷ Bekker, PHF, ‘The 2005 Record of the International Court of Justice’ (2006) 5 Chinese J Int'l L 371, 378.Google Scholar