FLUCTUATING EVIDENTIARY STANDARDS FOR SELF-DEFENCE IN THE INTERNATIONAL COURT OF JUSTICE

Abstract

During a debate at the 100th annual meeting of the American Society of International Law in 2006,1 passing reference was made by one of the participants to the 2005 Democratic Republic of the Congo v Uganda merits judgment of the International Court of Justice (ICJ).2 Specifically, this decision was cited with regard to the evi dentiary standards employed in determining international legal questions, parti cularly those involving the use of force. The claim was briefly made that, in the view of the speaker, the DRC v Uganda decision 'set out' such evidentiary standards in this context 'in accordance with normal practices.'3 In the same year, it was noted in an article in the European Journal of International Law that the DRC v Uganda deci sion offered a 'ray of hope' with regard to understanding evidentiary standards in the ICJ.4 At first glance, these high profile comments are understandable, given that the ICJ allocated a large amount of the DRC v Uganda judgment to evidentiary issues relating to the use of force. Indeed, more of the judgment was devoted to evidentiary questions than in any use of force decision since the Corfu Channel case of 1949.5 However, the evidentiary standards applicable to the law on the use of force, as with international law more generally, remain extremely unclear. It is manifestly incorrect to say that the DRC v Uganda decision 'set out' an evidentiary standard for legal assessment. Moreover, in the important context of the law governing self-defence, not only did the DRC v Uganda decision fail to clarify the existing situation with regard to evidentiary standards in the ICJ, in several passages, it contradicted the standard that