Evidentiary Issues in the ICJ's Genocide Judgment

Abstract

Despite the commitment by the International Court of Justice (ICJ or the Court) in clarifying underlying methods and guidelines of its approach to fact-finding and evidence, it can be doubted whether the judgment delivered in the Bosnia and Herzegovina v. Serbia case genuinely marked a decisive step towards a more transparent and reliable methodology for evidentiary matters. Behind the formula of ‘fully conclusive evidence’, when dealing with Articles II and III of the Genocide Convention the Court adopted for all practical purposes a typical criminal law ‘beyond any reasonable doubt’ standard of proof. By this choice the Court upheld in substance the argument put forward by Serbia that even if the questions of state responsibility for acts of genocide are not excluded by the scope of the Convention, they must nevertheless be judged by the same parameters of individual criminal responsibility. In reaching its conclusions the Court relied heavily on the jurisprudence of the ICTY, both as regards the ascertainment of facts and their legal qualification. It remains to be seen whether in future cases the Court will be able to adopt a similar criminal court posture, and whether it will be similarly prepared to rely on the findings of other international tribunals such as the International Criminal Court, which is not established by the Security Council.