| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.7. | Evidence |
¤
Application of the Convention
on the Prevention and Punishment
of the Crime of Genocide,
Provisional Measures,
Order of 13 September 1993,
I.C.J. Reports 1993, p. 325
[p. 358 S.O. Shahabuddeen] If media material is admissible at the
merits stage, as in the United States Diplomatic and Consular Staff in
Tehran case, it should be no less admissible at the provisional measures
stage, as in this case. In fact, media material was also presented to the Court
at the provisional measures stage in that case (I.C.J. Pleadings, United
States Diplomatic and Consular Staff in Tehran, p. 45, and p. 67, Appendix C,
and I.C.J. Reports 1979, p. 10, para. 7).
[pp. 422-423 S.O. Lauterpacht] 40. In most of the previous requests
for provisional measures there has been relatively little disagreement about the
facts, the principal issue (the question of jurisdiction apart) being whether,
on the facts as known, an indication of such measures was required. Questions of
evidence were, therefore, not in the forefront of the discussion. In the present
case, Bosnia-Herzegovina has produced much evidence of the events which it
alleges, all of it in writing and most of it in secondary form. Yugoslavia has
produced no evidence to rebut it.
41. The question is how much account should be taken of this evidence. There
is no fundamental legal difference in the rules of evidence applicable
to the consideration of the merits of a case and those applicable in proceedings
relating to provisional measures. There is, however, a practical difference
in that in the latter there may be less time for the applicant to prepare its
evidence in the most cogent form, or for critical scrutiny of that evidence by
the respondent and the Court, than there is in the extended merits stage of a
case. But it does not follow that evidence produced at the provisional measures
stage is a priori to be treated as less adequate or less acceptable than
evidence produced at the merits stage or that it is incapable of sustaining more
than the most generalized findings of fact.
42. In the present case, the written evidence adduced by Bosnia-Herzegovina
falls into the following categories: written primary evidence, such statements
directly attributable to the Yugoslavia authorities, statements by United
Nations, UNHCR or EC officials who have themselves been in the area, or
newspaper reports by journalists who were eye-witnesses of events; and written
secondary evidence, such as statements of fact adopted by organs of the United
Nations, for example, in the form of preambular paragraphs to resolutions of the
General Assembly or the Security Council. There is no reason why the Court
should not take both such categories of evidence into account, giving more or
less weight to particular items, according to the particular circumstances. The
doctrine of judicial notice is known in many legal systems. Tribunals may not
and do not close their eyes to facts that stare them in the face.
[pp.457-458 D.O. Kreèa] If the examination of facts is of
crucial importance in court proceedings, and there can be no doubt it is, then
it is a fortiori important in the process of indication of provisional
measures. In a procedure that is characterized by urgency, the Court's
possibilities for making an unbiased and critical assessment of the factual
situation are necessarily limited. In each particular case, the Court is in
actual fact seeking to strike a fine and delicate balance between Scylla - the
need to respond to the urgency of the provisional measures - and Charybdis - the
imperative requirement not to distort the facts in doing so. The procedure of
indication of provisional measures relies heavily on refutable assumptions (presumptio
juris tantum), e.g., the refutable assumption that the Court has
jurisdiction in the merits of the case in which provisional measures are
adopted. The logic of presumption is also expressed in the terminology used,
since Article 4l of the Statute uses the term "parties", although
strictly speaking the parties affected by provisional measures need not be the
actual parties to the dispute which is to be resolved by a judgment concerning
the rights which the provisional measures are supposed to protect (exempli
causa, the Anglo-Iranian Oil Co. case).
Prima facie, an assessment is justified in cases when the Court establishes
its competence in the procedure of indicating provisional measures. And that, in
my view, is the absolute limit for the application prima facie of presumption in
the incidental procedure of provisional measures. For even an incorrect
assessment of jurisdiction, in the final analysis, does not affect legal
security, in fact it enhances it in view of the inherent advantages of the
judicial settlement of disputes over other modes of resolving disputes.
However, an incorrect assessment of facts necessarily leads to the erroneous
application of law which is the ontological antipode of the ideal of judicial
proceedings. And a prima facie assessment of facts necessarily entails a very
high risk of mistake.
There is not, nor should there be, any substantial difference between the
establishment of facts in an incidental procedure, regardless of the particular
incidental procedure involved, and the establishment of facts in the merits of
the case. Being established by decision of the Court, orders indicating
provisional measures have a real and objective value, although orders do not
create res judicata - in other words, the differentia specifica between
these two kinds of Court decisions being that provisional measures may be
re-examined in the merits of the case.
[p. 459 D.O. Kreèa] By the nature of its function, in
searching for the material truth, the court naturally cannot and may not a
priori exclude any source of information but, at the same time, it is duty
bound to subject each and every report to critical scrutiny as that is the only
way to avoid it becoming anybody's hostage except the hostage of facts and the
truth.
The term "evidence" covers "real evidence, documentary proofs
and the testimony of witnesses and experts, advanced by a party either on its
own motion or at the invitation of the Court" (M. Hudson, The Permanent
Court of International Justice, 1920-1942, 1972, p. 565).
If we abide by this definition of the term "evidence", it is my
impression that the Court has not devoted due attention to those proofs which
contain names, testimony of witnesses, research findings, etc., as stipulated by
the provisions of the Rules of Court (exempli causa, Arts. 65, 66 and
67).
Media information may not per se, in my opinion, be taken as
evidence and still less as irrefutable, hard proof of the existence of the
relevant fact. At best it can be taken as evidence tending to establish fact.
[pp. 460-461 D.O. Kreæa] In the absence of conclusive evidence
and on the grounds of what I have said, it is my view that the Court should move
away from the uncertain terrain of offered evidences to the hard, precise
concept of notoriety. The concept of notoriety in concreto is in full
harmony with what Judge Bedjaoui pointed out in his dissenting opinion in the
Lockerbie case:
"The present phase allows [the Court] only to entertain a provisional
and merely prima facie idea of the case, pending later consideration of the
merits in a fully comprehensive way." (Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United Kingdom, Provisional
Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 33.)
The principal elements of the concept of notoriety, logically and
empirically irrefutable, would in this particular case imply:
| (a) | | the places where mass destruction of people occurs;
|
| (b) | | under whose jurisdiction those places are; and
|
| (c) | | who is prima facie responsible in the light of obligations
imposed by relevant Articles of the Genocide Convention.
|
| I hold that in the interest of justice, effective jurisdiction should be
taken as a second element of notoriety in spite of the fact that before the
Human Rights Committee the Applicant confirmed that
|
"the Republic of Bosnia-Herzegovina considers itself legally
responsible for whatever has taken place not only in that part of its territory
on which it has factual and effective control but also in other parts of its
territory" (United Nations, Human Rights Committee, International
Covenant on Civil and Political Rights, CCPR/C/79/Add.14, 28 December 1992).
It seems almost superfluous to note that the concept of notoriety is not
ideal. The shortcomings of this concept are evident. Basically, they are the
antipodes of its inherent advantages. While its constituent elements rest on
firm logical and empirical grounds, they are at the same time generalized and
relatively ill-adapted to specific events and cases. That is precisely why
notoriety constitutes a kind of reserve reliance for the Court in cases when it
is not in possession of irrefutable evidence.
This very defect of notoriety, in cases such as this one, turns into an
invaluable advantage. A dominant characteristic of this case is that
humanitarian reasons require the Court's reaction even though, in terms of law,
the fundamental identity between the proposed provisional measures, on the one
hand, and the subject-matter of the case, on the other, would suggest extreme
restraint in the reaction because of the danger of falling into the trap of an
interim judgment.
Notoriety, as a basis of the Court in the indication of provisional
measures, provides a chance for those measures to be tailored to the
characteristics of this case as I have described them. In other words, to be
worded in the form of general measures or, alternatively, as specific measures
designed to remove or at least mitigate the effects of the causes, i.e., the
facts which have resulted in the tragedy of civil war in Bosnia-Herzegovina.
