Evidentiary issues in the ICJ's Genocide judgment

Journal of International Criminal Justice

Volumn 5, Issue 4, 2007, Pages 889-904

  Gattini, Andrea ^a  

^a UNIVERSITY OF PADOVA   (Italy)

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EID: 35248814433     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqm058     Document Type: Conference Paper

References (96)

1. This is also the conclusion reached in a recent and well-documented study on the subject, G. Niyungeko, La preuve devant les jurisdictions internationales (Bruxelles: Bruylant, 2005), at 413
2. for a less pessimistic view cf. C.F. Amerasinghe, Evidence in International Litigation (Leiden-Boston: Nijhoff, 2005), at 47.
3. Cf. the separate opinion of Judge Higgins in the previous Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November 2003, ICJ Reports (2003) 161, at 235, in which she deplored the failure to identify the standard of proof required and chastised the ICJ methodology (or lack of it) as 'flawed'.
4. Actually the new trend was already perceptible in the recent Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, ICJ Reports (2005), §59 et seq., in which the Court took care to expose the principles that informed its fact-finding ('in so doing, it will identify the documents relied on and make its own clear assessment of their weight, reliability and value') (emphasis added);
5. for an assessment of recent ICJ jurisprudence cf. M. Kamto, 'Les Moyens de Preuve devant la Cour internationale de justice à la lumière de quelques affaires récentes portées devant elle,' 49 German Yearbook of International Law (2006), 259.
6. The mind naturally goes to the case concerning Armed Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports (1986) 14, at 42, §67.
7. Cf. K. Highet, 'Evidence, the Court, and the Nicaragua Case', 81 American Journal of International Law (1987) 1, especially at 30 et seq.
8. Corfu Channel (United Kingdom v. Albania), ICJ Reports (1949) 4, at 18.
9. Cf. M. Kazazi, Burden of Proof and Related Issues. A Study of Evidence before International Tribunals (The Hague: Kluwer Law International, 1996), at 230, who rightly underlines how the rule on the duty to cooperate 'does not generally affect the applicability of the rule actori incumbit probatio as a primary rule for allocating the burden of proof";
10. Niyungeko, supra note 1, at 183 et seq.;
11. C. Santulli, Droit du contentieux international (Paris: Montchrestien, 2005), at 513, 523.
12. Corfu Channel, supra note 4, at 32.
13. Cf. Pope & Talbot Inc. v. Canada (Ruling on Claim of Crown's Privilege), NAFTA Arbitration Tribunal, Order of 6 September 2000, ILR Vol. 122, 349, in which the Tribunal asked itself which inferences were to be drawn from the non-production of documents. The Arbitral Tribunal referred back to Art. 28(3) of the UNCITRAL rules, and closed with the remark that 'the Arbitral Tribunal may make the award on the evidence before it, without explicitly saying whether a negative inference for the non-complying party was meant.
14. Cf. Judgment, Blaškić (IT-95-14-A), Appeals Chamber, 29 October 1997, §§ 61-69. In the ICTY and ICTR Statutes the duty of states to cooperate has been expressly codified, in Arts 28 and 29 respectively (with express reference to 'the taking of testimony and the production of evidence'. Art. 29(2)(b) of the ICTY Statute), albeit permitting in camera, ex parte proceedings on the grounds of state security concerns, according to Rule 54bis (on which see infra note 10).
15. On the whole cf. G.K. Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Antwerpen: Intersentia, 2002), at 139
16. P. Malanczuk, 'Protection of National Security Interests,' in A. Cassese et al. (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol II (Oxford: Oxford University Press, 2002) 1371-1386.
17. In particular Art. 49 of the Statute limits itself to saying that 'the Court may, even before the hearing begins, call upon the agents to produce any document or to supply any explanations. Formal note shall be taken of any refusal.'Also Art. 62 of the 1978 Rules of Procedure is couched in general terms: '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 matter in issue...'. Cf. C.J. Tams, 'Commentary to Article 49, in A. Zimmermann et al. (eds), The Statute of the International Court of Justice: A Commentary (Oxford: Oxford University Press, 2006) 1099, at 1105 maintains that the real sanction of non-compliance, namely the fact that the Court may be inclined to draw adverse inferences from a party's refusal, is implicit.
18. In the same sense K. Highet, 'Evidence and Proofs of Facts', in L.F. Damrosch (ed), The International Court of Justice at a Crossroads (Dobbs Ferry, NY: Transnational Publishers, 1987) 355, at 363
19. J.-F. Lalive, 'Quelques remarques sur la preuve devant la Cour permanente et la Cour internationale de justice, 7 Schweizerisches Jahrbuch für internationales Recht (1950) 77, at 98.
20. Cf. ICJ CR 2006/3, at 26 et seq. for Bosnia's request, and CR 2006/43, at 27 et seq. for Serbia's justification. Rule 54bis of the ICTY Rules of Procedure provides that the state requested to produce documents or information may raise an objection on the ground that disclosure would prejudice its national security interests. In its notice of objection the state 'may request the Judge or Trial Chamber to direct that appropriate protective measures be made for the hearing of the objection, including in particular: (a) hearing the objection in camera and ex parte; (b) allowing documents to be submitted in redacted form, accompanied by an affidavit signed by a senior State official explaining the reasons for the redaction; (c) ordering that no transcripts be made of the hearing . ...' (Rule 54bis(F)(ii)).(...)
21. Judgment, §297.
22. Ibid., §295. Cf. infra text to notes 33-36.
23. Judgment §44: 'By letters dated 2 February 2006, the Registrar informed the Parties that the Court had decided, at this stage of the proceedings not to call upon Serbia and Montenegro to produce the documents in question. However, the Court reserved the right to exercise subsequently, if necessary, its powers under Article 49 of the Statute and Article 62, paragraph 1 of the Rules of the Court, to request, proprio motu, the production by Serbia and Montenegro of the documents in question.' (emphasis added).
24. Ibid., §206. The conduct of the Court is a typical example of what Kazazi, supra note 5, at 357, wrote on this subject: '[W]henever faced with such situations, international tribunals have usually refrained from getting involved in such issues in the first place unless it is absolutely necessary and, in any event, have endeavoured to avoid basing their awards and judgments on the consequences resulting from such difficulties.'
25. The rumours go so far as to accuse ICTY Chief Prosecutor Carla del Ponte of having struck a deal with the Serbian Government during the Milošević trial, in order to keep the SDC minutes confidential, and thereby to conceal them from the ICJ. The accusations had been fuelled by the former Counsel for the Prosecution in the Miloševií case, Mr Nice, who publicly accused Prosecutor del Ponte of compelling him to acquiesce to Serbia's request for protective measures, instead of allowing him to bring a subpoena proceedings against Serbia in order to produce those documents. Cf. Statement of the Office of the Prosecutor, 16 April 2007, available on the website of the ICTY, for the firm denial of the Chief Prosecutor of any such deal. The relevance of this internal dispute at the ICTY cannot be overstated because this is the real question why the ICJ did not ask proprio motu for the disclosure of the unredacted SDC documents.
26. Cf. Prof Franck, ICJ CR 2006/3, at 23, with regard to judicial notice, inferences and presumptions.
27. Cf. for instance Art. 66(3) of the ICC Statute.
28. Cf. for instance the Kelly case, UK-Venezuela Claims Commission 1903, Reports of International Arbitral Awards, Vol. IX, at 400: 'As this charge is a very grave one ..., justice and equity require that even in a civil matter the facts themselves and the deductions to be made there from should be rest upon indubitable proof and so strong and forceful as to practically do away with all doubt concerning the charge made.'
29. Cf. Eire v. United Kingdom, ECHR (1978) Series A, No. 25, at 65, §161
30. Cyprus v. Turkey, ECHR (2001-IV), at 36, §115.
31. Cf. Niyungeko, supra note 1, at 437, quoting relevant judicial precedents. It must be noted that Rule 42(4) states that both the Applicant and the Respondent must assist the Court in its measures for taking evidence. A refusal by the state to cooperate, and obtrusive or passive conduct can therefore lead the Court to rely on inferential evidence, as it was made clear in the Tomasi v. France, ECHR (1992) Series A, No. 241A, at 51 et seq., §§ 96-100, or even prima facie evidence, cf. Artico v. Italy, ECHR (1980 , Series A, No. 37, at 14, §29).
32. The standard of 'beyond a reasonable doubt' has been from time to time criticized in legal literature, cf. S. Trechsel, 'Commentaire à l'article 28, §1-a', in L.-E. Pettiti et al. (eds), La Convention européenne des droits de l'homme: Commentaire article par article (Paris: Economica, 1995), 649, at 658
33. J. Kokott, The Burden of Proof in Comparative and International Human Rights Law (The Hague: Kluwer Law International, 1998), at 200.
34. But see J. Frowein, 'Fact-Finding by the European Commission on Human Rights, in R.B. Lillich (ed.), Fact-Finding before International Tribunals (Ardsley-on-Hudson, NY: Transnational Publishers, 1991), 237, at 248, for whom 'the formula "beyond reasonable doubt" should not be seen as referring to the Anglo-Saxon standard for criminal cases combined with the special rules of evidence prevailing there', but as an autonomous standard.
35. On the whole issue see also K. Rogge, 'Fact-Finding', in R.St.J. Macdonald et al. (eds), The European System for the Protection of Human Rights (Dordrecht: Nijhoff, 1993), 667.
36. See Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, ICJ Reports (2006), at 52-53, §127, for the classification of genocide as a jus cogens violation.
37. Cf. Art. 4(3) ICTYst., Art. 2(3) ICTRSt., Art. 6 ICCSt.
38. Similarly W.A. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), at 443
39. M. Milanović, 'State Responsibility for Genocide', 17 European Journal of International Law (2006) 553, at 595.
40. On evidentiary questions in the procedure of international criminal tribunals, cf. H. Friman, 'Inspiration from the International Criminal Tribunals when Developing Law on Evidence for the International Criminal Court, 2 The Law and Practice of International Courts and Tribunals (2003), 373
41. M. Wierda, 'International Criminal Evidence: New Directions', ibid. at 401
42. C. Van den Wyngaert, 'International Criminal Courts as Fact (and Truth) Finders in Post Conflict Societies: Can Disparities with Ordinary International Courts Be Avoided?', 100 Proceedings of the 100th Annual Meeting of the American Society of International Law (2006) 63.
43. See, however, the Eritrea-Ethiopia Claims Commission decisions on the Prisoners of War Claims of 1 July 2003: 'The Commission does not accept any suggestion that, because some claims may involve allegations of potentially criminal individual conduct, it should apply an even higher standard of proof corresponding to that in individual criminal proceedings... . The possibility that particular findings may involve very serious matters does not change the international law rules to be applied or fundamentally transform the quantum of evidence required, Eritrea-Ethiopia Claims Commission, Partial Award on Prisoners of War Ethiopia's Claim No. 4, §38 (reproduced in 42 International Legal Materials (2003) 1056, at 1063
44. Eritrea's Claim No. 17, §47.
45. (ibid., 1083, at 1092).
46. Judgment, §209.
47. Cf. Vélasquez Rodriguez v. Honduras, IACHR (1988) Series C, No. 4, at 135, §129.
48. Cf. T. Buergenthal, 'Judicial Fact-Finding: The Inter-American Human Rights Court, in Lillich, supra note 20, 261, at 272.
49. Cf. Amerasinghe, supra note 1, at 240. For instance, the Eritrea-Ethiopia Claims Commission in the Prisoners of War Claims, required 'clear and convincing evidence, but at the same time expressly refused to apply a standard of proof 'corresponding to that of individual criminal proceedings' (cf. supra note 25).
50. Corfu Channel, supra note 4, at 17.
51. Cf. Amerasinghe, supra note 1, at 236
52. Niyungeko, supra note 1, at 430.
53. Corfu Channel, supra note 4, at 17.
54. The Court started with a discussion of Art. 16 of the ILCs Articles on State Responsibility concerning aid or assistance in the commission of an internationally wrongful act, assuming that there is no distinction of substance between that concept and that of complicity within the meaning of Art. III(e) of the Genocide Convention. This assumption would have deserved a more in-depth elaboration, and not only because of the formalistic reason that it concerns a relationship between two states, whereas Art. III does not. Actually, the ICJ did not need to discuss Art. 16 at all. Indeed Art. 16 was relied upon by Bosnia's counsel exactly in order to demonstrate that the 'aid or assistance' given by Serbia to the commission of genocide did not require the specific intent, the dolus specialis which characterizes genocide. The reason for Bosnia's diversion of the Court's attention away from the notion of 'complicity' of Art. III(e) of the Genocide Convention to that of 'aid or assistance' of ILC Art. 16 was therefore quite obvious. It is a fact that the ICTY jurisprudence is still unsettled whether the notion of 'complicity', as distinguished from that of 'aiding and abetting', presupposes that the accomplice shares the specific intent of the principal perpetrator or it suffices that he is aware of the specific intent of the latter. It will be recalled that the Krstić case was eventually decided on the basis of Art. 7 (Individual Criminal Responsibility) of the Statute, stating general principles of international criminal law, among which that of 'aiding and abetting', and not on the arguably narrower basis of Art. 4(3)(e) (Complicity in Genocide). Cf. Krstić (IT 98-33-A), Appeals Chamber, judgment of 19 April 2004, §140: 'an individual who aids and abets a specific intent offense may be held responsible if he assists the commission of the crime knowing the intent behind the crime'.
55. See, however, the Partial Dissenting Opinion of Judge Shahabuddeen, § 59 et seq., forcefully making the point that the reference in Art. 4(3)(e) of the Statute to 'complicity in genocide' can and does include 'aiding and abetting'. The point was left open in note 247 of the judgment: 'As it is not at issue in this case, the Appeals Chamber takes no position on the mens rea requirement for the conviction for the offense of complicity in genocide under Art. 4(3) of the Statute where this offense strikes broader than the prohibition of aiding and abetting'. On this issue cf. Schabas, supra note 23, at 293, and at 300 et seq. Bosnia's strategy before the ICJ did not eventually prove to be of much use. Without taking a position on the appropriate requirement of mens rea of the accomplice, the Court noted that at any event a minimum requirement would be that the organ or person acted 'knowingly', i.e. that he was aware of the specific intent of the principal perpetrator (§421).
56. Judgment, §422.
57. Without saying it, on this specific and relevant aspect, the Court parted ways with the ICTY jurisprudence. It will be recalled that in the Krstić case, the awareness of the accused of the existence of the mass killings was deemed relevant by the Appeals Chamber in order to determine that he had knowledge of the genocidal intent of the principal perpetrators (cf. Krstić, supra note 33, §§ 104, 106, 122, 137).
58. See also the recent reversal of Blagojevic's conviction for complicity in genocide made by the Appeals Chamber (Judgment, Blagojević (IT-02-60-A), Appeals Chamber, 9 May 2007, §123), because the Trial Chamber had not proven the accused's actual knowledge of the mass killings, and his awareness of other facts related to the forcible transfer operation was not a proof beyond a reasonable doubt that he had knowledge of the principal perpetrators' genocidal intent.
59. Judge Bennouna and Judge Keith, who each appended a declaration.
60. Judgment, §209 in fine.
61. Cf. Milanovic, 'State Responsibility for Genocide', supra note 23, at 597.
62. Cf. Yearbook of the International Law Commission, 1974, Vol. II, Part One, at 285, §8.
63. On this matter cf. L. Condorelli, Imputation à l'Etat d'un fait internationalement illicite, 189 Recueil des Cours de l'Académie de droit international de la Haye (1984) 9, at 56-57.
64. Judgment, §389, whereby the Court limited itself to saying that the status of the 'Scorpions' as de jure organs had not been proved, without specifying the standard of evidence requested. As it is well known, at the oral proceedings Bosnia produced a videotape showing members of the 'Scorpions' executing six Muslim boys in Trnovo, a locality some miles away from Srebrenica, on a date around middle of July 1995. Bosnia maintained that the killings in Trnovo were related to the genocide of Srebrenica and that the 'Scorpions' were a unit of the Ministry of the Interior of Serbia - allegations which Serbia denied. In fact the Trnovo case raises some yet unanswered questions. First, it is not clear to what extent this event belongs to the Srebrenica complex. It is noteworthy that in the Prosecutor's Indictment against two senior officials of the Serbian State Security Police, Jovica Stanišić and Franko Simatović, the killings in Trnovo are not listed under the heading of 'genocide', but under those of crimes against humanity (cf. Second Amended Indictment of 20 December 2005, Stanišić and Simatović (IT-03-69)). Second, it is not clear whether the 'Scorpions', even if it were proven that they depended on Serbia's Ministry of the Interior, were placed at the disposal of the RS authorities. In fact, the killings at Trnovo were brought up in relation to the genocide at Srebrenica in the more recent Indictment against Tolimir (Second Consolidated Amended Indictment of 14 June 2006, Tolimir et al. (IT-05-88), Count 1 'Genocide, §30.16), but the difficulties here lie in the fact that all the indictees are organs of the VRS. This leads to the further question of whether the 'Scorpions' had actually been put at the disposal of the VRS, a circumstance which would configure, mutatis mutandis, a case for Art. 6 of the ILC Articles on State Responsibility ('Conduct of organs placed at the disposal of a State by another State'), as the same Court suggests in §389 of the Judgment.
65. Judgment, §210.
66. Judgment, §432.
67. Cf. A. Gattini, 'Breach of the Obligation to Prevent and Reparation Thereof in the ICJ's Genocide Judgment', 18 European Journal of International Law (2007), in print.
68. Cf. Mexico City Bombardment Claims, United Kingdom-Mexico Claims Commission, 1930, Reports of International Arbitral Awards, Vol. V, 80: 'In a great many cases it will be extremely difficult to establish beyond any doubt the omission or the absence of suppressive or punitive measures. The Commission realizes that the evidence of negative facts can hardly ever be given in an absolutely convincing manner.'
69. On the role of presumptions in the jurisprudence of the ICJ, cf. T.M. Franck and P. Prows, 'The Role of Presumptions in International Tribunals', 4 The Law and Practice of International Courts and Tribunals (2005), 197, at 226 et seq.;
70. in relation to the burden and standard of proof cf. Kazazi, supra note 5, at 239 et seq.
71. Judgment, §438.
72. Ibid., §212.
73. That that would have been the position of the Court with regard to the findings of fact was already made clear in the recent Armed Activities on the Territory of the Congo judgment, in which the Court, with regard to the Porter Commission established in Uganda to inquire into the role played by Ugandan forces in the military events in the Congo, had expressly said that 'evidence obtained by examination of persons directly involved, and who were subsequently cross-examined by judges skilled in examination and experienced in assessing large amounts of factual information, some of it of a technical nature, merits special attention'. Cf. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), supra note 2, at 35, §61.
74. Cf. S. Zappalà, Human Rights in International Criminal Proceedings (Oxford: Oxford University Press, 2003), 129 et seq., for some problematic issues in the ICTY concerning rules of evidence and the right of defence of the accused.
75. Judgment, §223.
76. Ibid., §224.
77. Beside the work quoted in the previous footnotes, cf. C. Dominicé, 'La question de la double responsabilité de l'Etat et du son agent, E. Yakpo et al. (eds), Liber Amicorum Judge Mohammed Bedjaoui (The Hague: Kluwer Law International, 1999) 143
78. A. Nolikaemper, 'Concurrence between Individual Responsibility and State Responsibility in International Law', 52 International and Comparative Law Quarterly (2002), 615
79. H. Gros Espiell, 'International Responsibility of the State and Individual Criminal Responsibility in the International Protection of Human Rights', in M. Ragazzi (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter (Leiden: Brill, 2005) 151
80. A.A. Cançado Trindade,'Complementarity between State Responsibility and Individual Responsibility for Grave Violations of Human Rights: The Crime of State Revisited', ibid., 253
81. P. Fois, 'Sul rapporto fra i crimini internazionali dello Stato e i crimini internazionali dell'individuo', 87 Rivista di diritto internazionale (2004) 940
82. B.I. Bonafé,'Responsabilità dello Stato per fatti illeciti particolarmente gravi e responsabilità penale dell'individuo: Due approcci a confronto', in M. Spinedi et al. (eds), La codificazione della responsabilità internazionale degli Stati alla prova dei fatti (Milano: Giuffré, 2006), 501.
83. Cf. Judgment, Krstić (IT 98-33-T), Trial Chamber, 2 August 2001, §560, and Appeals Chamber Judgment of 19 April 2004, §23.
84. See also judgment, Blagojević and Jokić (IT-02-60-T , Trial Chamber, 17 January 2005, for the qualification of Bosnian Muslim men of Srebrenica as a substantial part of the targeted group under Art. 4 ICTYSt.
85. Cf. in particular Judgment, Stakić (IT-97-24-T), Trial Chamber, 31 July 2003 (Prijedor detention camps);
86. Judgment, Galić (IT-98-29-T), Trial Chamber, 5 December 2003 and Appeals Chamber Judgment of November 2006 (siege of Sarajevo);
87. Judgment, Krajisnik (IT-00-39-T), Trial Chamber, 27 September 2006 (Bosnia-Herzegovina).
88. Cf. the pleadings of the counsel for Bosnia, Prof. Franck, CR 2006/5,19 CR 2006/6, at 30 et seq.; CR 2006/7, at 44 et seq.). With regard to attribution, Bosnia's counsel tried to convince the Court to attribute to Serbia the whole of the acts of the Republika Srpska, as its 'de facto organs', meaning individuals acting under the complete control of Serbia.
89. Cf. Judgment, Jelisić (IT-95-1O-T), Trial Chamber, 14 December 1999, §100. See also the Report of the International Commission of Inquiry on Darfur to the Secretary-General Pursuant to Security Council resolution 1564 (2004) of 18 September 2004, UN Doc. S/2005/60, 1 February 2005, §520.
90. The concept of JCE has been fully articulated in the Tadić judgment of the ICTY Appeals Chamber. The actus reus requires three elements: 'a plurality of persons', 'common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute' and 'the participation of the accused in the common design, cf. Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999, §227. As for the mens rea, the criminal intent must be shared with the other members, but in a case of 'extended JCE', i.e. when the crime occurred outside the JCE's objective but nonetheless resulting from the JCE's execution, dolus eventualis suffices. The concept of JCE is particularly apt to capture the essence of mass atrocities, which are as a rule the result of a complex net of connivances, and has been largely utilized by the ICTY Prosecutors. It is noticeable that all three indictments against Milošević were based on the JCE doctrine, cf. Second Amended Indictment, Milošević (IT-02-54-T), 22 November 2002, at 6. In the Brdanin judgment of 1 September 2004, the Trial Chamber substantially narrowed the scope of JCE and brought it nearer to the traditional category of conspiracy, because it demanded from the Prosecutor the proof of a direct understanding or agreement between the accused and the 'relevant physical perpetrators' (i.e. those materially committing the crime), in order to satisfy the above mentioned requirement of acommon plarf, cf. Judgment, Brdanin (IT-99-36-T), Trial Chamber, 1 September 2004 (Krajina), §264. However, the Appeals Chamber with its Judgment of 3 April 2007 granted Grounds 1 and 2 (relating to the doctrine of JCE) of the Prosecutions Appeal with regard to the questions of law presented, albeit without modifying Brdanin's conviction in relation thereto.
91. Cf. Judgment, §277 with regard to massive killings, §334 with regard to deportations and expulsions, §354 with regard to conditions of life in the detention camps.
92. Cf. Judgment, §187.
93. Cf. the Report of the International Commission of Inquiry on Darfur, supra note 56, §518.
94. Cf. Judgment, §373.
95. Cf. Judgment, §§ 202-230.
96. For a procedural approach on the subject of fragmentation of international law cf. A. Gattini, 'Un régard procédural sur la fragmentation du droit international', 11. Revue générale du droit international public (2006) 303.