Revisiting the Standard of Proof for Charges of Exceptional Gravity before the International Court of Justice

Abstract

Abstract The International Court of Justice has consistently required a stricter standard of proof for ‘charges of exceptional gravity’. The Bosnia Genocide and Croatia Genocide cases saw the Court require the high standard of ‘fully conclusive’ evidence across all elements of the allegations of genocide. Despite the difficulties associated with obtaining the necessary evidence of the intent of the perpetrators to destroy, in whole or in part, a protected group to establish the commission of genocide, the Court allowed little flexibility in the application of that standard in what may have been a departure from its previous cases relating to grave charges. The Court emphasized the gravity of the allegations and the high stigmatization attached to a finding of responsibility for genocide, suggesting a strong emphasis on the consequences of a finding of responsibility for the wrongdoing State over other interests that may also have been present in the proceedings. The Court has yet to explain the rationale for the high standard of proof applied to charges of exceptional gravity in international judicial proceedings, or why it required a particularly stringent standard of proof in the Genocide cases. This raises questions about the Court’s approaches to the standard of proof and the process by which it balances different interests in judicial proceedings. As States seek out the Court’s jurisdiction for serious breaches of international law – including, for example, the pending Rohingya Genocide case – the Court’s strict approach to the standard of proof risks imposing a high bar to the enforcement of these obligations.