Evidence in International Litigation

EVIDENCE IN INTERNATIONAL LITIGATION EVIDENCE IN INTERNATIONAL LITIGATION by CHITTHARANJAN F. AMERASINGHE MARTINUS ...

Author: Chittharanjan F. Amerasinghe

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EVIDENCE IN INTERNATIONAL LITIGATION

EVIDENCE IN INTERNATIONAL LITIGATION

by CHITTHARANJAN F. AMERASINGHE

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

A C.I.P. Catalogue record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISBN 90 04 14449 8 © 2005 by Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

CONTENTS Acknowledgement Preface Abbreviations Table of Cases

xi xiii xv xix

Part I Introductory CHAPTER 1 SCOPE OF THE WORK, METHODOLOGY, THE BASIC PRINCIPLE Scope of the Work (a) International disputes (b) International tribunals Methodology The Basic General Principle: A Fair Trial International Criminal and Human Rights Tribunals CHAPTER 2 SOURCES OF THE LAW AND AREAS APPLICATION OF GENERAL PRINCIPLES CHAPTER 3 BASIC ELEMENTS JUDICIAL PROCEEDING

OF AN

PROOF: FACT

AND

3 3 8 10 13 19

OF

21

INTERNATIONAL 31

Evidence, Pleadings and Indictments Burden of Proof The Burden of Evidence The Relationship among the Components Rules of Evidence CHAPTER 4

3

LAW

31 34 37 42 47 50

vi

Contents

Part II General Principles CHAPTER 5 THE PRINCIPLE ACTORI INCUMBIT ONUS PROBANDI

61

The Established Principle (a) World Court cases (b) Other international tribunal cases Incidence of the Burden of Proof in General Division of the Burden of Proof Conclusions Regarding the Burden of Proof Policy Arguments against the Principle Actori Incumbit Onus Probandi as a Rule of Evidence CHAPTER 6

OBLIGATION

OF

PARTIES

TO

CO-OPERATE

Conventions, Statutes and Rules Precedents Consequences of the Principle Conclusions CHAPTER 7 MEASURES TAKEN EFFECT CO-OPERATION

BY

TRIBUNALS

61 67 72 75 78 88 90 96 98 101 109 114

TO

Facilitation without Further Action by the Tribunal Facilitation Resulting in Subsequent Action by the Tribunal Inflicting Penalties Treatment of Specific Problems Relating to Evidentiary Co-operation (a) Difficulties in securing evidence in general (b) Documents in the possession of the other party (c) Voluminous evidence (d) Absence of a party

118 118 126 130 138 138 141 143 144

Contents

vii

CHAPTER 8 MECHANICS TRIBUNALS

OF

PROOF: POWERS

OF

147

Presentation of Pleadings and Evidence Oral Proceedings Acceptance or Refusal of Further Pleadings and Evidence Measures Applied to Find Facts CHAPTER 9 ADMISSIBILITY POWERS OF TRIBUNALS

OF

EVALUATION

151 152

EVIDENCE: 163

Inadmissible Evidence (a) Late-filed evidence (b) Evidence obtained through settlement negotiations (c) Evidence obtained by violation of international law (d) Questionable reliability and damage to the integrity of the proceedings (e) Time-barred evidence (f) Irrelevant evidence (g) Documents lacking authenticity CHAPTER 10

148 150

OF

EVIDENCE

Further Evidence not Required Statements and Affidavits Sworn Statements by Witnesses and Affidavits Documentary Evidence Best Evidence and Circumstantial Evidence Conclusion

167 167 174 177 180 180 182 183 185 188 189 195 203 204 208

viii

Contents

CHAPTER 11

PRESUMPTIONS

AND

INFERENCES

211

Legal Presumptions Inferences or Judicial Presumptions CHAPTER 12

STANDARD

OF

212 223

PROOF

232

Proof beyond a Reasonable Doubt Proof in a Convincing Manner Preponderance of Evidence The Reasonable Conclusion Other Standards The Prima Facie Case Jurisdictional Issues and Prima Facie Evidence

235 239 241 243 245 246 258

Part III Special Issues in Specific Tribunals CHAPTER 13 PROOF AND EVIDENCE A SPECIAL PROBLEM CHAPTER 14 SPECIAL PROBLEMS ADMINISTRATIVE TRIBUNALS

BEFORE THE

BEFORE

ICJ: 265

INTERNATIONAL

Calling of Witnesses Production of Documents and Information (a) General (b) The treatment of claims of confidentiality The Use of Experts Conclusion

280 284 288 288 292 305 313

Contents

ix

CHAPTER 15 SPECIAL ASPECTS THE ICTY

OF

EVIDENCE

BEFORE

Admissibility and Weight of Evidence: General (a) Direct evidence (b) Indirect evidence (c) Specific exclusions Admissibility and Weight of Evidence: Hearsay (a) Admission and exclusion of hearsay: different kinds of hearsay (b) The tribunal’s treatment of hearsay evidence: admissibility and weight Protection of Victims and Witnesses (a) Anonymity (b) Closed sessions (c) Measures to protect witnesses from retraumatization Discovery and Disclosure of Evidence (a) Prior statements of the accused (b) Exculpatory material (c) Notification obligations for witness testimony (d) Additional disclosure obligations

315 316 323 325 326 328 330 334 341 347 351 353 354 357 358 361 363

CHAPTER 16

SPECIAL ASPECTS OF EVIDENCE THE IRAN-US CLAIMS TRIBUNAL

365

The Burden of Proof and the Burden of Evidence The Standard of Proof Presumptions and Inferences Admissibility and Evaluation of Evidence (a) Categories of facts to be proved (b) Categories of evidence adduced (i) Oral testimony at hearings (ii) Hearsay evidence (iii) Affidavits

369 373 375 381 381 386 386 389 390

BEFORE

x

Contents (iv) Photographs (v) Technical reports (vi) Experts appointed by the tribunal

394 395 396

Appendix Provisions Relating to Evidence I. PROVISIONS PERTAINING

TO THE

ICJ

(a) Statute of the ICJ (b) Rules of Court of the ICJ, 1978 II. RULES

OF THE

UNAT, 1998

III. RULES

OF

PROCEDURE

IV. RULES

OF

COURT

V. RULES PERTAINING

OF THE

OF THE

TO

401 403 409

CJEC, 1991

ECHR, 2002

ARBITRATION

(a) Final Draft Articles on Arbitral Procedure of the ILC, 1958 (b) Rules on Arbitration of the PCA (i) Hague Convention for the Pacific Settlement of Disputes, 1907 (ii) Optional Rules for Arbitrating Disputes between Two States, 1992 (c) Arbitration Rules of the ICSID, 1984 (d) Final Rules of the Iran-US Claims Tribunal, 1983 VI. PROVISIONS PERTAINING

401

TO THE

ICTY

(a) Statute of the ICTY, 1993 (b) Rules of Procedure and Evidence of the ICTY, 2002

414 424 429

429 431 431 434 436 441 446 446 447

ACKNOWLEDGEMENT I should like to thank my friends, Laura and Emily Crow, who assiduously undertook the task of reading my handwriting in, and typing, the manuscript. Bethesda, Maryland USA December 2004

C.F. Amerasinghe

PREFACE The idea of writing a treatise on evidentiary principles in international litigation was engendered in part by the work I did for the Institut de Droit international as Chairman and Rapporteur of the XVth Commission of the Institut on “Principles of Evidence in International Litigation”. That work was spread over, and completed in, 3 biennial sessions of the Institut. But apart from that my interest in dispute settlement in international law and international relations led me to think about the subject. I had already published treatises entitled Jurisdiction of International Tribunals (2003) and Local Remedies in International Law (2nd edition, 2004) both of which clearly dealt with aspects of such dispute settlement. There are also chapters on dispute settlement and the judicial function of judicial organs in a third treatise by me on Principles of the Institutional Law of International Organizations (2nd edition, 2005). Consequently, it is no surprise that I should be interested in the principles of evidence. There are other books on evidence before international tribunals and there has been some writing in international law journals on the subject.1 What justifies my work in this treatise, however, is not only the interest in principles, apart from practice and specific rules, but also the analytical scheme which is presented in it in such a way that the reader is able clearly to see the whole canvas, while looking at detail, and not lose sight of the wood for the trees. In addition there is a section on specific tribunals in the international legal system – a new aspect of the subject which has generated some interest. In sum, it is my view that a treatise of this nature is a useful addition to the literature on the subject. C.F. Amerasinghe

1

See, e.g., the works referred to in Chapter 1.

ABBREVIATIONS A.C. A.Ch. AD AFDI AIDI AJIL B.F.S.P. BYIL Cd. CERN CJEC Columbia JTL Cornell LQ ECHR EComHR ECSC EEC EMBL ESA ESRO Euratom Eurocontrol

Appeals Chamber Appeals Chamber Annual Digest of Public International Law Cases Annuaire française de droit international Annuaire de l’Institut de Droit international American Journal of International Law British Foreign and State Papers British Yearbook of International Law Command Paper (UK) European Centre for Nuclear Research Court of Justice of the European Communities Columbia Journal of Transnational Law Cornell Law Quarterly European Court of Human Rights European Commission on Human Rights European Coal and Steel Community European Economic Community European Molecular Biology Laboratory European Space Agency European Space Research Organization European Atomic Energy Community European Organization for the Safety of Air Navigation Fed.R.Civ Federal Rules of Civil Procedure (US) FAO Food and Agriculture Organization GA see UNGA Hague Receuil Receuil des cours, Académie de Droit International de la Haye H.C.R. Hague Court Reports Hastings LJ Hastings Law Journal I.C.J. see ICJ I.L.O. International Labour Organization I.M.T. International Military Tribunal IACHR Inter-American Court for Human Rights IAEA International Atomic Energy Agency

xvi IAT ICAO ICC ICCA ICCPR

Abbreviations

International Administrative Tribunal International Civil Aviation Organization International Criminal Court International Council of Commercial Arbitration International Covenant for Civil and Political Rights ICJ International Court of Justice ICLQ International and Comparative Law Quarterly ICSID International Centre for Settlement of Investment Disputes ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia IDB Inter-American Development Bank IDBAT Administrative Tribunal of the IDB ILC International Law Commission ILM International Legal Materials ILO see I.L.O. ILOAT International Labour Organization Administrative Tribunal ILR International Law Reports IMO International Maritime Organization Iran-U.S. CTR see Iran-US CTR Iran-US CTR Iran-US Claims Tribunal Reports ITLOS International Tribunal for the Law of the Sea JIA Journal of International Arbitration JUNAT Judgments of UNAT La Fontaine H. La Fontaine, Pasicrisie Internationale 1794–1900 (1902) Leiden JIL Leiden Journal of International Law MCC Mixed Claims Commission Michigan JIL Michigan Journal of International Law NAFTA North American Free Trade Agreement NATO North Atlantic Treaty Organization OAS Organization of American States OASAT Administrative Tribunal of the OAS

Abbreviations OECD

xvii

Organization for Economic Cooperation and Development PAHO Pan-American Health Organization PCA Permanent Court of Arbitration PCIJ Permanent Court of International Justice RAI Receuils des arbitrages internationaux (LapradellePolitis) RGDIP Revue generale de droit international public T.A.M. Tribunals Arbitrales Mixtes (Reports) U.N. see UN UN United Nations Organization UNAT United Nations Administrative Tribunal UNCITRAL United Nations Conference on International Trade Law UNESCO United Nations Education, Scientific and Cultural Organization UNGA United Nations General Assembly UNJSPF UN Joint Staff Pension Fund UNRIAA United Nations Reports of International Arbitral Awards UNTS United Nations Treaty Series WBAT World Bank Administrative Tribunal WHO World Health Organization

TABLE OF CASES Abu Dhabi Arbitration 201 Administrative Decision No. II 53 Aerial Incident Case 80 AHFI Planning Associates Case 107, 389, 393–4 Aleksovski Case (A.Ch.) 317, 320, 324, 329, 331, 336–8, 340 Aleksovski Decision: see Aleksovski Case (A.Ch.) Alfred Haber, P.A. Case: see Haber, P.A. Case Algera and Others v. The Common Assembly of the European Coal and Steel Community 214 Ali Khan 297–8 Ali Khan (No. 2) 298 Ali Khan (No. 3) 292 Alonzo Franci Case 24 Amabile Case (No. 12) 24, 165 Amas 258 Ambatielos Case 12, 259 Ambatielos Claim 72–3, 80 American Housing International Inc. Case 226 Amman & Whitney Case 380, 382 Anglo-French Continental Shelf Case 267 Anglo-Iranian Oil Case 168 Anglo-Iranian Oil Co. Case: see Anglo-Iranian Oil Case Application for Revision (Tunisia/Libya) Case 266 Application No. 89/55 (X. v. German Federal Republic) 246 Application No. 107/55 (X. v. Belgium) 246 Application No. 299/57 73 Araba 287 Arakel Khajetoorians et al. Case 134–5, 229 Arbitral Award of 31 July 1989 Case 267 Arbitral Award of the King of Spain Case 70 Arco Exploration, Inc. Case 157 Arthur J. Fritz & Co. Case: see Fritz and Co. Case Aryeh Case (O & E): see O & E Aryeh Case Aryeh Case (V., L., and J.): see V., L., and J. Aryeh Case Asylum Case 52, 55, 56, 69–70 Atlantic Richfield Co. Case 397 August F. Bendix, Jr., et al. v. Iran: see Bendix, Jr., et al. Case Austin Co. Case 379 Avco Corp. Case 382–3, 388

xx

Table of Cases

Avena Case 38–40, 71–2, 88, 107–8, 110 Award No. 105-B16-1 124 Award No. 127-B3-3 124 Award No. 267-B18-2 124 Award No. 447-B4-2 125 Award No. 465-B44-22 125 Azzu 286 Ballo 296–7 Bang-Jensen 289, 291, 304–5 Barcelona Traction Case (Preliminary Objections) 70–1, 154–5, 228 Barcelona Traction Case (Second Phase) 154, 190, 204 Barcelona Traction Co. Case: see Barcelona Traction Case (Second Phase) Barrett 286 Bartel 305 Bartlett Case 197 Batchelder Claim 72, 246 Bauta 286 Beagle Channel Arbitration 76, 267 Beagle Channel Case: see Beagle Channel Arbitration Behring International Inc. Case 397 Bendix, Jr., et al. Case 151, 170 Benvenuti and Bonfant Case 75 Benjamin R. Isaiah Case 252 Beynoussef 303–4 Bidoli 287 Birnbaum Case 388 Bla·kic´ Case (Trial Chamber) 322, 329–31, 334–5, 338–41 Bla·kic´ Decision 335, 336, 338, 359 Bla·kic´ Judgement: see Bla·kic´ Case (Trial Chamber) Blount Brothers Corporation Case 225–6 Boita 286 Borsody 287, 296 Bowerman and Messrs. Burberry (Ltd.) Case 196, 240 Brazilian Loans Case 50, 54, 216 Broemser 282, 284 Brun Case 247–8 Brunetti et al. 291 Bryant Case 196 Buckamier Case 391–3, 394 Buranavanichkit 282 Burey 288 Burkina Faso/Republic of Mali: see Frontier Dispute Case Cachelin 291

Table of Cases

xxi

Cal-Maine Foods Inc. Case 252 Cameron Case 23, 165, 186, 19, 197, 199 Cameron Case (Demurrer) 203, 247 Campo 291 Carlson Case 383 Case Concerning Sovereignty over Certain Frontier Land 76 Case Concerning the Frontier Dispute: see Frontier Dispute Case Case Concerning the Indo-Pakistan Western Boundary (Rann of Kutch): see Indo-Pakistan Western Boundary Case Case No. 45 170 Case No. A-25 106–7 Case No. B-4 124 Case No. B-44 124 Case No. B-74 170 Castro [1985] 288 Castro [1986] 288 Cattoor Case 201 CBS Case 250, 252 CBS Incorporated Case: see CBS Case Charles P. Stewart Case: see Stewart Case Chas. T. Main International, Inc. Case 397 Châtelain 291 Chattin Case 195, 198 Chevreau Case 186 Chorzów Factory Case: see Chorzów Factory Case (Merits) Chorzów Factory Case (Interpretation) 181 Chorzów Factory Case (Merits) 175, 176, 181, 277–8 Cie pour la Construction du Chemin de Fer O’gulin à la Frontière, S.A., Case 257 Claims for Losses Suffered in Belgium 209 Clapham Case 201 Clark Case 200 CMI International, Inc. et al. Case 74 Colleance Case 51 Collins Systems International, Inc. Case 380, 383 Combustion Engineering Case 242 Comolli 286 Component Builders Case 260 Computer Sciences Corporation Case 370–1 Comte du Dundonald Case 75 Continental Shelf (Tunisia/Libya) Case 266 Control Data Corporation Case 170 Conway 293–4

xxii

Table of Cases

Cook et al. 288 Cooperman 291 Corfu Channel Case 156 Corfu Channel Case (Merits) 51, 53, 70, 105, 131–2, 139, 156, 164, 177–8, 186, 188, 194, 200, 201, 205–6, 207, 208, 210, 215, 216, 217, 219–20, 221–2, 224–5, 228, 236, 237, 249, 250 Cortello Claim 72 Cortina 286 Cramer Case 200 Creditcorp International, Inc. et al. Case 74 Croft Case 190 Cysne: see The Cysne Dadras International, et al. Case 240, 373–4 Daley Case 230–1 Dallal Case 140–1, 369–70, 371 Dames and Moore Case 381 Daniel Dillon Case: see Dillon Case Davis et al. Case 41 Danjean (Nos. 1 & 2) 286 de Andrade 288 de Jong, Order 290 de Merode 6 de Raet 283, 290–1 De Sabla Case 200 de Vuyst, Order 290 Decision No. 59(a) 291 Decision No. 203a 291 Decision No. DEC. 45-A20-FT 74 Decisions of the Tribunal in Iran/United States, Case A/1 (1982) 91 Delalic´ and Others Case: see Delalic´ Case Delalic´ Case 317, 325, 327–8, 329 Delamin Case (Merits) 201 Determination of the Maritime Boundary Case (Guinea-Bissau/Senegal): see Guinea Bissau and Senegal Case Development and Resources Corporation Case 250 DIC of Delaware, Inc., et al. Case 379, 394–5, 396 Dicancro (No. 2) 309 Dicancro (No. 3) 309–10 Dillon Case 195, 200, 249–50 Diverted Cargoes Case 72 Douwes 291, 301 Drielsma Case 75 Dubai-Sharjah Border Case 267

Table of Cases

xxiii

Duval 288 E.C. Murphy Case 198 Eastern Greenland Case 67–8, 92, 217 Ebrahimi, et al. Case 398 Economy Forms Corp. and Government of the Islamic Republic of Iran 387 Edgar Protiva et al. Case: see Protiva et al. Case Edongo 254 Edwards Case 137–8, 142, 378 Einthoven 283, 290 El Chamizal Case 176–7 Elle 291 Elletronica Sicula S.p.A. (ELSI) Case 80 Embassy Cases 122–25, 135 Engleheart Case 196–7 Eritrea and Yemen Case 267 Evertsz Case 198 Fabara-Nuñez, Order 290, 299 Faber Case 31, 185 Fabiani Case 24, 161 Faulkner Case 195 Fernandes, Order 290, 291 Fisheries Jurisdiction Cases (1974) 52, 56, 161 Fisheries Jurisdiction Case (1972) 32, 44 Flexi-Van Case 205, 394 Flexi-Van Leasing, Inc. Case, Order 143–4, 233, 259–60 Flexi-Van Leasing, Inc. Case: see Flexi-Van Case Fluor Corporation Case 107, 110, 260 Fonck 288 Ford Aerospace and Communications Corp. Case: see Ford Aerospace Case Ford Aerospace Case 376, 379 Foremost Tehran, Inc., et al. Case 372–3, 378 Foullioux Case 198 France v. Greece 142 Francesi and Guastavi 291 Free Zones Case 51–2 French State Railway Claim 72 Fritz & Co. Case 227 Froma 287 Frontier Dispute Case 71, 76, 175–6, 266, 267–78 Frontier Land Case 70 Frontiers of the French Guyana Case 24 Furundzˇ ija Case Futura Trading, Inc. Case 372

xxiv

Table of Cases

Gabay Case 389 Gabcˇ íkovo-Nagymaros Project Case 159 Gage Case 207, 210 Garcin 287 General Motors Case 283 General Motors Corporation Case, Order 144, 233 George Edwards Case: see Edwards Case George W. Cook Case 54–5 George W. Drucker Jr. Case 74 Georges Pinson Case 66. 90, 102, 103–4, 165 German Interest in Polish Upper Silesia Case (Merits): see German Interests in Upper Silesia Cases German Interests in Upper Silesia Cases 54, 186, 214–15 Gill Case 207 Godchot 287 Golshani Case 246, 254, 371–2 Gould Marketing, Inc. Case 372 “Grand Prince” Case 57, 150, 153, 163, 169 Graneiro Claim 72 Granger Associates Case 171 Grant-Smith Claim 72, 87 Greenham 286 Grenier Claim 228 Grisbadarna Case 267 Gubin and Nemo 301–2 Gulf of Maine Case 76, 174, 179, 266 Guinea and Guinea-Bissau Case 267 Guinea-Bissau and Senegal Case 88, 267 H.A. Spaulding, Inc. Case: see Spaulding, Inc. Case Haber, P.A. Case 250 Haj Mohammed Harrej (Tanger, Horses) Case 215 Harold Birnbaum Case: see Birnbaum Case Harris Case 376 Harris International Telecommunications, Inc. Case 16–17, 169, 387–8 Harrison (No. 2), Order 290, 291 Harry Roberts Case: see Roberts Case Harza, et al. Case 157, 397 Hatton Case 153, 188, 201 Heathrow User Charges Case 63, 107, 113, 125, 169 Heim and Chamant Case 54 Hidetomo Shinto Case 173–4 Hilt Case 378 Ho 286

Table of Cases

xxv

Housing and Urban Services International, Inc. Case 57 Houston Contracting Company Case 229–30, 380, 398 Howard Needles Tammen and Bergendorff Case 171 Hunt’s Case 172 I.R. Clark Case: see Clark Case Ignacias Torres Case 200, 201 In re Odell 140 INA Corp. Case 128–30, 134, 181, 376–7, 396 INA Corporation Case: see INA Corp. Case Indo-Pakistan Western Boundary Case 105–6, 111–12, 113–14, 189–90, 274 Industrie Vincentine Elettro-Mecchaniche Case 157 Interhandel Case 80 International Commission of the River Oder Case 50–1 International Ore and Fertilizer Corporation Case 144 International Technical Products Case 252, 385–6 International Technical Products Corp., et al. Case: see International Technical Products Case Interpretation of the Treaty of Lausanne Case 267 Iran National Airlines Co. Case 220–1, 380, 386 Irish Case 61, 77, 164, 187–8, 192–3, 227, 236 Islamic Republic of Iran v. United States of America (1986) 42, 151, 223, 383–5 Islamic Republic of Iran v. United States of America, Case No. A-25: see Case No. A-25 Islamic Republic of Iran v. United States of America: see Islamic Republic of Iran v. United States of America (1986) Island of Palmas Case 36, 45, 66, 104, 153, 161, 182, 185, 186–7, 189, 190, 191, 203, 217, 275 ISS Case 176 J.I. Case Company Case 252 Jack Buckamier Case: see Buckamier Case Jacqueline M. Kiaie et al. Case: see Kiaie et al. Case Jalal Moin case: see Moin Case Jan Mayen Case 266 Jassal 290, 299 Jassal, Order 290, 299 Jaworzina Case 267 Jazairi 292 Johnson 286 Judgments of the I.L.O. Administrative Tribunal Opinion 5 Justin 282, 287, 290 Kalklosch Case 374 Kassab 306–7

xxvi

Table of Cases

Katherine Faye Hilt Case: see Hilt Case Kem International Company Case 170 Kenneth P. Yeager Case: see Yeager Case Khan 291 Khederian 291, 297 Kiaie et al. Case 170 Kidd Case 198 Klaus Berg (No. 2) 291 Kling Case 28, 103, 133, 203, 247, 248 Kling Claim: see Kling Case Kordic´ and Cˇ erkez Case 331–2, 334, 339, 340 Kostovski v. The Netherlands 350 Kupre·kic´ and Others Case 317, 322–3, 324–5 L.J. Kalklosch Case: see Kalklosch Case L’Evêque 287 Laguna del Desierto Case 267 Land and Maritime Boundary between Cameroon and Nigeria Case 266 Land, Island and Maritime Frontier Case 267 Lasry Case 197 Lavender 287 Lebaga 292, 297 Legal Status of Eastern Greenland Case: see Eastern Greenland Case Lehigh Valley Railroad Co. Case (1933) 207 Lehigh Valley Railroad Co. Case (1939) 199 Lehigh Valley Railroad Co. Case (No. 1) 104 Lehigh Valley Railroad Co. Case (No. 2) 22, 156 Lehigh Valley Railroad Company Case (No. 3) 158 Lehigh Valley Railroad Co. Case (No. 4) 22–3 Leigh Case 196 Leli Tour Case 74 Lena Goldfields Case 206 Leprince 291 Levis and Levis Case 87, 140, 250–1 Levis and Levis v. Federal Republic of Germany (Merits): see Levis and Levis Case Levitt Case 126–8, 134, 378–9, 383 LIAMCO Case: see LIAMCO v. Libyan Arab Republic LIAMCO v. Libyan Arab Republic 8, 146 Libya/Chad Case 266 Libya/Malta Continental Shelf Case 266 Lighthouses Arbitration 66, 142, 181, 182, 220 Lindemann 287 Lockheed Case 228, 251–2

Table of Cases

xxvii

Lockheed Corporation Case: see Lockheed Case Lotus Case 51, 53, 56, 215 Lynch Case 196, 247, 256–7 M/V Saiga (No. 2) Case 153, 156, 183, 188 Malek Case 394 Mallén Case 26–7, 195 Marias v. Madagascar 105 Mary Ann Turner Case: see Turner Case Matta 290, 292 Mavrommatis Concessions Case 68–9 McCurdy Case 165, 196, 200, 206, 209, 241 McIntire 300–1 Melczer Mining Co. Case: see Melczer Mining Co. Claim Melczer Mining Co. Claim 72, 249 Mendaro 282, 290 Mendel Case 189 Mengia 310–11 Meuse Case 159 Mexico City Bombardment Claims 72, 195–6, 197, 198, 202, 206, 207, 210, 240, 249 Michl 291 Miele 307 Mila 292, 295 Military and Paramilitary Activities in and against Nicaragua (1984) 115 Miller v. Minister of Pensions 233 Minquiers and Ecréhos Case 66, 70, 78, 98, 168, 217, 266, 267, 274 Minutes of the Tribunal’s 89th Meeting of the Full Tribunal 93 Mirossevich 311–12 Miss M 302–3 Miss M v. Commission of the European Communities: see Miss M Mobil Oil Iran Inc. et al. Case 217–18, 225 Mohsen Nazari Case: see Nazari Case Mohtadi Case 395 Moin Case 141, 367, 389–90 Molina 297 Montana 288 “Monte Confuoco” Case 107 Montigo Case 200 Morán 286 Mr. X 283 Mr. X, Order 290 Mr. Y 290 Najman (No. 2) 287

xxviii

Table of Cases

Najman (No. 5) 291 Namibia Case 222 Naomi Russell Case: see Russell Case Nath 286 National Paper and Type Co. Case 195 Naulilaa 200 Nazari Case 136, 170, 193, 394 Nicaragua Case (Merits) 33, 42, 52–3, 57, 71, 115, 144–6, 154, 164, 166, 168–9, 180–1, 190, 191–2, 193, 226, 240–1 Norman Gabay Case: see Gabay Case North Sea Continental Shelf Case 266 Norwegian Fisheries Case 266, 267 Norwegian Loans Case 80, 81–4, 241 Nottebohm Case (Second Phase) 70 Nuclear Tests Cases 161, 181 Nuclear Weapons Case 156–7 In re Odell: see Odell Claim O & E Aryeh Case 394 Odell Case: see Odell Claim Odell Claim 44, 140, 165, 194, 207 Office Belge de Verification Case 197 Oil Field of Texas, Inc. and Government of the Islamic Republic of Iran, et al.: see Oil Field of Texas, Inc. Case Oil Field of Texas, Inc. Case 374, 375, 379 On a Matter of Diverted Cargoes (Greece v. GB): see Diverted Cargoes Case 62 Oscar Chinn Case 165 Osman 286 Otis Elevator Company v. The Islamic Republic of Iran: see Otis Elevator Company Case Otis Elevator Company Case 151, 171 Pablo Najera (of the Lebanon) Case 104 Panavezys-Saldutiskis Railway Case 80 Pankey 287 Paraguay Navigation Company Case 191 Parker Case 41, 42, 63–5, 66, 72, 90, 94, 95, 102–3, 104–5, 133, 165, 185–6, 187, 197, 202, 253 Pepsico Case 176 Petrolane, Inc., et al. case 388–9 Phillips Case 106, 396 Phillips Petroleum Co. of Iran Case: see Phillips Case Pizziolo 309 Pizziolo v. Commission of the European Communities: see Pizziolo

Table of Cases

xxix

Pomeroy Case 74, 225–6, 246, 250 Pomeroy’s El Paso Transfer Co. Claim 72, 200, 206 Prosecutor v. Aleksovski, Decision Granting for the Admission of Evidence 337 Prosecutor v. Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence 320 Prosecutor v. Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence (A. Ch.): see Aleksovski Decision Prosecutor v. Barayagwiza, Decision 327 Prosecutor v. Bla·kic´, Decision (April 1998): see Bla·kic´ Decision Prosecutor v. Bla·kic´, Decision of Trial Chamber I on the Prosecutor’s Motion for Clarification of Order Requiring Advance Disclosure of Witnesses and for Order Requiring Reciprocal Advance Disclosure by the Defence 362 Prosecutor v. Bla·kic´, Decision on Standing Objection of the Defence to the Admission of Hearsay with no Inquiry as to its Reliability: see Bla·kic Decision Prosecutor v. Bla·kic´, Decision on the Appellant’s Motion for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings (A. Ch.) 360–1 Prosecutor v. Bla·kic´, Decision on the Application of the Prosecutor dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses 348–50 Prosecutor v. Bla·kic´, Decision on the Defence Motion for Sanctions for the Prosecutor’s Failure to Comply with Sub-rule 66(a) of the Rules and the Decision of 27 January 1997 Compelling the Production of All Statements of the Accused 358 Prosecutor v. Bla·kic´, Decision on the Defence Motion for Sanctions for the Prosecutor’s Continuing Violation of Rule 68 364 Prosecutor v. Bla·kic´, Decision on the Production of Discovery Materials 357, 358–9, 360, 361 Prosecutor v. Bla·kic´, Judgement: see Bla·kic´ Case Prosecutor v. Delalic´ and Others, Decision on Motion by the Accused Zejnil Delalic´ for the Disclosure of Evidence 357, 359 Prosecutor v. Delalic´ and Others, Decision on Motion of Prosecution for Admissibility of Evidence 329 Prosecutor v. Delalic´ and Others, Decision on Request of Accused Hazim Delic´ Pursuant to Rule 68 for Exculpatory Information 322 Prosecutor v. Delalic´ and Others, Decision on the Applications Filed by the Defence for the Accused Zejnil Delalic´ and Esad Landzˇo on 14 February 1997 and 18 February 1997 Respectively 362 Prosecutor v. Delalic´ and Others, Decision on the Motion for the Exclusion of Evidence and Restitution of Evidence by the Accused Zejnil Delalic´ 326 Prosecutor v. Delalic´ and Others, Decision on the Motion to Compel the Disclosure of the Addresses of the Witnesses 362–3

xxx

Table of Cases

Prosecutor v. Delalic´ and Others, Decision on the Motions by the Prosecutor for Protective Measures for the Protection of the Witnesses Pseudonymed “B” through “M” 345, 348 Prosecutor v. Delalic´ and Others, Decision on the Prosecutor’s Motion for an Order Requiring Advance Disclosure of Witnesses by the Defence 362 Prosecutor v. Delalic´ and Others, Decision on the Tendering of Prosecution Exhibits 104–108 326 Prosecutor v. Delalic´ and Others, Decision on Zdravko Mucic´’s Motion for the Exclusion of Evidence 327, 328 Prosecutor v. Furundzˇ ija, Decision (1998) 364 Prosecutor v. Furundzˇija, Decision on Prosecutor’s Motion Requesting Protective Measures for Witnesses “A” and “D” at Trial 352 Prosecutor v. Furundzˇ ija, Scheduling Order 364 Prosecutor v. Furundzˇ ija, Scheduling Order and Decision on Motion of Defendant Anto Furundzˇija to Preclude Testimony of Certain Prosecution Witnesses 363–4 Prosecutor v. Jelisic´, Decision on the Motion Concerning Identification Evidence 324 Prosecutor v. Karadzˇ ic´, Decision Partially Rejecting the Request Submitted by Mr. Igor Pantelic´, Counsel for Radovan Karadzˇic´ 363 Prosecutor v. Kordic´ and Cˇ erkez: see Kordic´ and Cˇerkez Case Prosecutor v. Kordic´ and Cˇerkez, Decision on the Prosecution Application to Admit the Tulicá Report and Dossier into Evidence 320, 330–1, 339 Prosecutor v. Kordic´ and Cˇerkez, Decision Stating Reasons for Trail Chamber’s Ruling of 1 June 1999 Rejecting Defence Motion to Suppress Evidence 326 Prosecutor v. Kovacˇ ekic´ 334 Prosecutor v. Kupresˇkic´ and Others, Decision on Appeal by Dragan Papic´ against Ruling to Proceed by Deposition 332 Prosecutor v. Kupresˇkic´ and Others, Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque 322 Prosecutor v. Kvocˇka and Others, Decision to Proceed by Way of Deposition Pursuant to Rule 71 332–3 Prosecutor v. Tadic´, Decision on Apellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence 342, 349, 350, 351 Prosecutor v. Tadic´, Decision on Defence Motions to Summon and Protect Witnesses and on the Giving of Evidence by Video-Link 323 Prosecutor v. Tadic´, Decision on the Defence Motion on Hearsay: see Tadic´ Decision Prosecutor v. Tadic´, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses 14–15, 25, 27, 342, 343, 344–5, 348, 349, 352–3

Table of Cases

xxxi

Prosecutor v. Tadic´, Decision on the Prosecutor’s Motion Requesting Protective Measures for Witness “R” 351–2 Prosecutor v. Tadic´, Separate Opinion of Judge Stephen on Prosecution Motion for Production of Defense Witness Statements 319 Protiva Case 395 Pulan Litigan and Pulan Sipadan Case 266 Qatar v. Bahrain 81, 94, 183, 193, 266, 267 Qatar and Bahrain Case: see Qatar v. Bahrain “Queen” Case 62, 75 Questech, Inc. Case 376, 383 Questech: see Questech, Inc. Case R.J. Reynolds Tobacco Company Case 74, 375–6 R.N. Pomeroy Case: see Pomeroy Case R.N. Pomeroy et al. Case: see Pomeroy Case Rajan 292, 296 Rann of Kutch Case: see Indo-Pakistan Western Boundary Case Rau 286 Ravage 287 Raygo Wagner Equipment Co. Case 225–6 Read Case 196 Request for Revision and Interpretation of the 1994 Judgment 267 Responsibility of Germany Case 196, 197 Reynolds Tobacco Company Case: see R.J. Reynolds Tobacco Company Case Reza Said Malek Case: see Malek Case Richard D. Harza Case: see Harza, et al. Case Richard D. Harza, et al. Case: see Harza, et al. Case Right of Passage over Indian Territory Case (Merits) 215 Rights of Nationals of the USA in Morocco Case 56, 65, 67 Roberts Case 198 Robinson (UNAT) 300 Robinson (WBAT) 290 Rockwell Case 139–40, 375, 376, 379–80, 389 Rockwell International Systems, Inc. Case: see Rockwell Case Ronald Stuart Koehler Case 17, 74 Rosescu 294–5 Roy 291 Roy P.M. Carlson Case: see Carlson Case Russell Case 201, 203, 248 Saberi 307 Salem Case 156, 165 Salle Case 46, 63, 77–8 Salle: see Salle Case

xxxii

Table of Cases

Sambaggio Case 218, 221 Sandrini 287 Saudi Arabia v. Aramco 8 Schering Corporation Case 233, 242 Schofield 287 Schooner “James Hamilton Lewis” Case 191 Scrope Case (Merits) 200 Sea-Land Service Inc. Case 242 Sebastian (No. 2) 290 Sedco, Inc. Case 378 Segers 293 Sehgal 286 Seismograph Service Corporation Case 229 Serbian Loans Case 216 Shahin Shaine Ebrahimi, et al. Case: see Ebrahimi, et al. Case Shashoua Case 119–22, 135–6 Sherif 287 Shone Case 201 Shufeldt Case 165, 187 Sola Tiles, Inc. Case 17, 139 South West Africa Case (1966) 36 South West Africa Cases (Preliminary Objections) 57, 70 South West Africa Cases 237, 258 Southern Bluefin Tuna Case 153 Sovereignty over Certain Frontier Land Case 274 Spanish Zone of Morocco Claims Case 200 Spaulding, Inc. Case 74, 142, 378, 381–2 St. Pierre and Miquelon Case 267 Stacpoole Case 198 Starrett Case 159, 171–3, 398 Starrett Housing Corporation Case: see Starrett Case Starrett Housing Corporation Case (1983) 181, 226 Starret Housing Corporation, et al. v. Iran, Order 152–3, 157–8, 226 Starrett Housing Corp. et al. Case: see Starret Case Steamer “Montijo” Case 196 Stewart Case 390 Strausfeld 287 Studer Case 194, 201 Sukkar 290 Sun Company, Inc. Case 157, 397 Suntharalingam 287–8, 307 Suntharalingam, Order 288, 290 Sylvania 376

Table of Cases

xxxiii

T.C.S.B., Inc. Case 388 Taba Case 107, 111, 274 Tadic´ Case (Appeals Chamber) 238–9, 243–4, 320 Tadic´ Case (Trial Chamber) 237–8, 320, 324, 343 Tadic´ Decision 334–5, 336, 339 Tadic´, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses: see Prosecutor v. Tadic´ , Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses Taft Case 62–3 Tarrab 294 Temple of Preah Vihear Case: see Temple of Preah Vihear Case (Merits) Temple of Preah Vihear Case (Merits) 213–14, 217, 227, 266, 274 The Cysne 189 The Naulilaa: see Naulilaa The Neptune 215 The Tubantia 199, 201, 202 Thorndike Case 199 Tillett Case 159 Time, Inc. Case 252, 375 Tippets, Abbett, McCarthy, Stratton Case 178 Tong 292, 295–6 Toti (No. 2) 291 Touche Ross 376 Tracy Case 196, 200, 201 Trenner 291 Trustees of Columbia University v. Islamic Republic of Iran 17 Turner Case 141 Uiterwyck Corp., et al. Case 389 Ultrasystems Case 205 United States Diplomatic and Consular Staff in Tehran Case 115, 178 United States Nationals in Morocco Case: see Rights of Nationals of the USA in Morocco Case V., L., and J. Aryeh Case 374–5 Valentiner Case 26, 214 van Gent 287 van Gent, Order 290 Vassiliou 292, 305 Velásquez Rodríguez Case 164, 192, 213, 223, 226–7, 228, 239–40, 245 Vera-Jo Miller Aryeh v. Iran 151 Verron 287 W. Jack Bukamier Case: see Buckamier Case Walfish Bay Case 166, 191, 198–9, 202, 226 Walter McCurdy Case: see McCurdy Case

xxxiv

Table of Cases

Ward Case 198 Westinghouse Case 151, 176 Westinghouse Electric Corporation v. the Islamic Republic of Iran Air Force et al.: see Westinghouse Case White Case 199 WHO Nuclear Weapons Case 157 William J. Levitt Case: see Levitt Case William Shashoua Case: see Shashoua Case Woodward-Clyde Consultants Case 191, 225–6 X 308 X v. Commission de controle des Communautés Européennes: see X Yeager Case 241–2 Zaldivar Case 210

I INTRODUCTORY

1 SCOPE OF THE WORK, METHODOLOGY, THE BASIC PRINCIPLE

SCOPE

OF THE

WORK

This work concerns itself with evidence and proof in international disputes decided by international tribunals.1 (a) International disputes Dispute settlement which is “international”, strictly could be described as such only in disputes between “nations” which means that international dispute settlement is a post-nation State phenomenon. But, in the modern world of international relations other disputes than these have been described as “international”. For the purpose of this work, whether a dispute is characterized as international depends on two considerations. The first 1

For further discussion of these concepts see C.F. Amerasinghe, Jurisdiction of International Tribunals (2003), pp. 3–12, on which this section of the present chapter is based.

4

Chapter 1. Scope of the Work, Methodology

relates to the parties to the dispute, the second relates to the law alleged to have been violated. In terms of parties to a dispute, generally today for a dispute to be international in public international relations there must be at least one State or inter-governmental organization involved in the dispute. However, certain other subjects of international law, less than States, could qualify as one of the parties. The other party is normally also a State or inter-governmental organization or other subject of international law less than a State but like a State. Certainly disputes between individuals, even nationals of different States, are as such not to be included in the concept of international disputes, because they are not the subject of public international relations and are not considered as disputes which are to be resolved in the context of the public international legal system. On the other hand, disputes between States and individuals (natural or legal persons) or groups as such, including their own nationals, may certainly be characterized as “international” and in the public realm insofar as there are rights and obligations involved which flow from legal relations between States. Though international disputes are primarily disputes the parties to which are all States or inter-governmental organizations or certain entities less than States, other entities than States, including individuals or groups that are not even aliens, may be parties to such disputes by virtue of the operation or rules and norms which are established, in whatever manner, as between two or more States in their public international relations. Generally these norms are created by conventions or treaties but customary law or general principles of law may be their source. Thus, a dispute concerning the violation of human rights by a State, or a violation of humanitarian law or of the law of genocide by an individual have come to be in the public international legal realm. Peaceful settlement of international disputes in modern public international relations, therefore, covers a wide range of disputes beyond purely “inter-State” disputes but excludes the settlement of some disputes, numerous though they may be, which common usage describes as international on the ground that they have what may be described as “international” features.

Scope of the Work

5

There have been disputes between States (or international organizations) and individuals (whether natural or juridical persons) per se which have been settled by arbitration. These are not “international” disputes in the true sense. They can only become “international”, in the true sense, for example, when two or more States (or international organizations) become “involved” in them (and their solution), when the dispute is in reality one between States (or international organizations). Disputes which are not “international” in the sense defined can at best be “transnational”, even if they involve a State as one of the parties, while the other is not a State. The resolution of the dispute by arbitration, for example, is not within the international system but at best is within the “transnational” system – a system which is within and at the level of national systems of law. The fact that, for example, (public) international law is chosen as the law to govern a “transnational” contract between a State or international organization and a private party does not have significance in determining whether a dispute which arises is international. That is a choice of law and does not affect the legal system to which the contract belongs or make the dispute an international dispute. Disputes between international organizations and their staff concerning employment matters are on a special footing. Because international organizations are made up of States as members, even though they have their own separate international personalities, the internal legal regime of the organization acquires an international status and becomes a part of true international law. Employment disputes between staff and their organizations are international disputes which may be settled by international tribunals, namely international administrative tribunals (IATs). In the Judgments of the I.L.O. Administrative Tribunal Opinion the ICJ categorically stated that it accepted the position that the ILOAT “is an international tribunal”.2 The WBAT, following the precedent set by the ICJ, said that the WBAT “is an international tribunal” whose function was “to decide internal disputes between

2 1956 ICJ Reports at p. 97. See the discussion of the subject in C.F. Amerasinghe, 1 Law of the International Civil Service (1994) pp. 22–5.

6


the Bank and its staff within the organized legal system of the World Bank”, while applying the internal law of the Bank.3 That internal legal system is within the international legal system as such. The short point is that individuals (natural or juridical persons) or groups are normally not subjects of international law so that their being involved in disputes per se cannot generate an “international” dispute. There are situations, however, where such persons may become subjects of international law either directly or indirectly or be given an international status so that their being a party to a dispute could give rise to an “international” dispute. It must be noted that, as a result of the rise of inter-State (international) organizations as a phenomenon of international life in the 20th century, international disputes have come to include disputes in which international organizations are involved. Such disputes may be between such organizations, between such organizations and States or even between such organizations and individuals. Further, the fact that a dispute involving States or international organizations may be settled by national courts, for instance, does not make the dispute any less international. The conclusion to be drawn is that disputes involving a State or international organizations are as a rule to be characterized as international, whatever the means of settlement adopted, the other party to the dispute being a State or an organization or even, in certain circumstances, individuals or groups of individuals. Generally, disputes not involving States or organizations are not international. Further, not all disputes in which only one party is a State or an international organization, such as certain disputes arising from contracts intended purely to be within a national (or transnational) legal system, are necessarily international. A second element which is relevant to the concept of “international dispute” concerns the requirement that the dispute must be about an alleged violation of public international law. The require-

3

de Merode, WBAT Reports [1981], Decision No. 1 at pp. 12–13.

Scope of the Work

7

ment of parties having been satisfied, the law allegedly violated must be public international law. Thus, if the dispute is between two private parties, whether of the same nationality or not, the dispute, not being about a violation of public international law, would not qualify as an international dispute. Employment disputes in international organizations are about the violation of public international law, because the internal law governing such disputes is part of public international law. Disputes involving only contraventions of private international law provisions, which are in fact provisions recognized by and within national legal systems, are characterized often as international disputes but for purposes of this study and in generic terms these are different from the disputes in which the violation alleged is of public international law. They, therefore, are not covered by the concept of international dispute. This is so, even if the governing law of contract, for example, is partially or fully public international law or general principles of law as the chosen law. There cannot be a private or public contract which is not placed broadly in a national legal context. The contract may be described as a “transnational” contract but alleged violations of it per se are not violations of public international law. There are other descriptions of international disputes which are current, especially among authors who are more involved with private international legal matters and in the practice which is concerned with private international legal disputes. These descriptions cover a broader canvas than the concept of international disputes which has been outlined above.4 While such descriptions may be serviceable for private international law and its practice, it is a fundamental necessity that generally, and particularly for the purposes of the present study, the distinctions made herein should be recognized, acknowledged, and kept in mind.

4

See, e.g. Redfern and Hunter, International Commercial Arbitration (1999) pp. 14 ff.

8


(b) International tribunals The concept of international dispute described above is very relevant to the identification of international tribunals as such. There is a view that arbitral tribunals which settle disputes between parties of different nationalities (neither of whom are States or international organizations) are international tribunals.5 Somehow, according to this view, a national court which settles the same kind of dispute is not an “international tribunal” in any sense nor does it perform a function in the international legal system, but an arbitral tribunal which does is an “international tribunal”, which is a strange situation. Then again, an arbitral tribunal which settles disputes between a State (or an international organization) and an individual who is of a different nationality from that of the State, as such, is described as an “international tribunal”.6 The use of the term “international tribunal” for any tribunal which settles a dispute involving the nationalities of two different States in any sense may be a matter of taste but its scientific accuracy is questionable, when there are substantive and material differences between the different kinds of tribunals which settle the variety of disputes which have connections with more than one nationality. These distinctions arise from the source from which tribunals come into existence or are created. It is clear that by reference to this quality the tribunals which deal with disputes with multinational features may be more accurately distinguished and characterized for functional and practical purposes. 5

See, e.g., the content of, and the terminology used, by writers, in such works as Redfern and Hunter, ibid., Lew (ed.), Contemporary Problems in International Arbitration (1987), Sornarajah, International Commercial Arbitration (1980), Lillich and Brower (eds.), International Arbitration in the 21st Century (1993), Carbonneau, “Darkness and Light in the Shadows of International Arbitral Adjudication”, In Lillich (ed.), Fact-Finding before the International Tribunals (1991) p. 153, and in French, Fouchard, L’Arbitrage Commercial International (1965), David, L’Arbitrage dans le commerce internationale (1982). 6 See such tribunals as that in Saudi Arabia v. Aramco (1958), 27 ILR p. 117, and in LIAMCO v. Libyan Arab Republic (1977), 62 ILR p. 141.

Scope of the Work

9

In order that a tribunal may be characterized as an international tribunal, it must be created by some kind of agreement involving, directly or indirectly, States or international organizations which, though they may have international legal personalities of their own, are, nevertheless, composed principally of States. Tribunals created by international organizations may be regarded as derivatively created by States. The creators must be States or international organizations or both, as parties to the act of creation. As a consequence, arbitral tribunals created by the consensual acts of a State, on the one hand, and a foreign private individual (or even a national of the State), on the other, are not international tribunals, though they may conveniently be described as “transnational” tribunals. On the other hand, that private individuals, whether national or legal persons, may appear, because of the agreement of the creators, before what are international tribunals, does not make them any the less international tribunals. Such persons may be claimants (as before the human rights courts or claims tribunals) or defendants (as in war crimes or humanitarian crimes tribunals), the disputes in which they are involved being international also. That certain arbitrations are described as “mixed international arbitrations”, because private individuals are involved in them in some way, as creators of tribunals or otherwise, is not of consequence. The term is often used to cover both tribunals which are genuinely international and those that are not. The important factor for the characterization of an international tribunal is the source of the creation of the tribunal which must be as described above. There are, and have been, standing courts which, by virtue of the source of their creation, are or have been genuine international tribunals. Such courts are the PCIJ, the ICJ, the IATs, the ITLOS, the CJEC, the ECHR, and the IACHR. Ad hoc tribunals such as the ICTY, the ICTR and the Iran-US Claims Tribunal would also qualify as international tribunals. International arbitration tribunals are those created by States or international organizations or both or emanate from the latter derivatively as those

10


responsible for the creation of the tribunals. Thus, the ICSID tribunals or those created under the NAFTA would qualify as international tribunals. Needless to say, ad hoc arbitral tribunals created by two or more States would fall into the same category, whether they are long-standing or not. In principle that a tribunal adjudicates on disputes which are based on violations of national laws as contrasted with public international law does not make it any less an international tribunal, if it falls into that category, because it satisfies the requirements. Thus, ICSID or NAFTA tribunals and the Iran-US Claims Tribunal are international, although in a given case they may deal with what are purely alleged violations of national laws. In this respect international tribunals may sometimes deal with disputes that are not “international” in the true sense. To the extent that an international dispute as described in the previous section is presented for settlement to a national court, the national court becomes an instrument of the international legal system. However, this does not mean that it is an international tribunal, because it does not satisfy the definition which requires a particular mode of creation.

METHODOLOGY Part I of the work consists of this chapter and Chapters 2 to 4 dealing with the sources of the law and some other preliminary matters. Part II of the work which follows the first four chapters constituting Part I examines general principles which have been applied generally by international tribunals deciding international disputes. These principles may now (at this point in the development of international law) be extracted from the law, decisions and practice of such tribunals deciding such disputes. An attempt has been made to point out differences specifically in criminal and human rights tribunals. In Part III some problems which have occurred and some special features of implementation in certain tribunals will be discussed. The tribunals selected for treatment are the ICJ, IATs, the

Methodology

11

ICTY, as the best example of international criminal tribunals, and the Iran-United States Claims Tribunal, an example of a longstanding claims arbitral tribunal. Attached as an appendix are relevant extracts from the Statutes and Rules of Procedure of the ICJ and of several other standing and ad hoc tribunals. Also attached are Rules of or for arbitral tribunals. These written provisions, it is apparent, are generally confined to specific matters such as documentation and its production, witnesses (whether they give evidence in writing or orally), use of experts and inquiry. They do not, as a rule, deal with such fundamental matters as the burden of proof (or, if relevant, the burden of evidence). While principles relating to matters such as witnesses and documentation which appear in written provisions must be included for a measure of consideration, equally important are the more general principles which will be discussed and explained. These principles have emerged almost entirely from the decisions and practice of tribunals. More will be said in this chapter and the chapters which follow on these general principles and their place in the settlement by international tribunals7 of 7

I have discussed most of these general principles in a report on evidence to the XVth Commission of the Institut de droit international: see 70-1 AIDI (2002–2003) pp. 156 ff. The treatment of them is fuller here and some other principles are also discussed. The subject of evidence has been examined before but more often either not fully or systematically. The more important relevant works are C.F. Amerasinghe, Local Remedies in International Law (1990) pp. 277–297; C.F. Amerasinghe, “Problems of Evidence before International Administrative Tribunals,” in Lillich (ed.), Fact Finding by International Tribunals (1991) pp. 205–233; C.F. Amerasinghe, 1 Law of the International Civil Service (1994) pp. 611–616; Kazazi, Burden of Proof and Related Issues (1996) passim, Chang, “Legal Presumptions and Admissibility of Evidence in International Adjudication,” 3 The Annals of the Chinese Society of International Law (1966) pp. 1–17; P.-M. Dupuy, “Fact Finding in the Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali),” in Lillich (ed.), op. cit. above pp. 81–92; Gillis Welter 4 The International Arbitral Process: Public and Private (1979) passim; Phillip, “Description in the Award of the Standard of Proof Sought and Satisfied,” 10 Arbitration International, (1994) pp. 361–363; Reymond, “The Practical Distinction

12


international disputes. The general principles which are examined, analysed and discussed in Part II are the result of conceptual development of the basic general principle referred to and discussed in the next section of this chapter. A word needs to be said about the purpose of this work in the context of the manner in which the material included is used and presented. It is not my object in this work to produce new material from research for the sake of doing so or to be “original” for the sake of being so. Nor is it my intention not to use material already produced and presented in other works many of which are referred to in footnote 7 to this chapter and in subsequent chapters. An intellectual and practical contribution to the literature, which is not extensive, on the subject of evidence in international litigation would be justified, not because it is exhaustive in terms of material included but because it presents

between the Burden of Proof and Taking of Evidence – A Further Perspective,” 10 ibid. (1994) pp. 323–327; Sandifer, Evidence before International Tribunals (1975) passim, Thirlway, “Evidence before International Courts and Tribunals,” in Bernhardt et al. (eds.), 2 Encyclopedia of Public International Law (1995) pp. 302 ff.; Witenberg, L’Organisation Judiciaire, La Procédure, et La Sentence Internationales (1937); Witenberg, “La théorie des preuves devant les jurisdictions internationales,” 56 Hague Recueil (1936) pp. 5–102; Witenberg, “Onus Probandi devant les jurisdictions arbitrales,” 55 RGDIP (1951) pp. 321–342; Wühler, “Ambatielos Case,” in Bernhardt et al. (eds.), 1 op. cit. above (1992) pp. 122–125. On human rights bodies, apart from general books on international human rights tribunals, reference may be made to Frowein, “Fact-Finding by the European Commission of Human Rights” in Lillich (ed.), op. cit. above pp. 291–297. On the CJEC see Ress, “Fact-Finding at the European Court of Justice,” in Lillich (ed.), ibid. pp. 177–203. There are several permanent international tribunals as defined herein, mainly regional, however, such as the European Nuclear Energy Tribunal, the Benelux Arbitral College and the Arbitration Tribunal of the Central American Common Market, which have no published or other jurisprudence: see Tomuschat, “International Courts and Tribunals,” in Bernhardt et al. (eds.), 2 op. cit. above (1995) at pp. 1109 ff. Kazazi’s book referred to above is the only recent general work on evidence before international civil tribunals and is very useful. The published material on international criminal tribunals is referred to in Chapter 15 in Part III of this work.

The Basic General Principle

13

relevant material, whatever the source, though, perhaps, not all the material, and more importantly both makes a clear and useful analysis of that material and includes a penetrating discussion of the issues of significance involved and the policies behind the law, where the latter is necessary. Moreover, new material is limited, though, indeed, it will be referred to when it is useful. Surely there is an element of subjectivity in the choice of material. But provided the material is presented methodically and systematically, granted that it is relevant, and so as to illuminate the analysis and the discussion of issues and policies, subjectivity in this respect should not be an obstacle to clarity, understanding and usefulness. An attempt has been made not to exclude relevant and important material. On the other hand, I set out to be objective in the analysis and the discussion of issues and policies, which should make the work not only more readable but more of a contribution.

THE BASIC GENERAL PRINCIPLE The broad basic general principle in respect of establishing facts, i.e., evidence, applied implicitly by international tribunals of whatever kind, is that the parties are entitled to a “fair” trial. That principle which contains a largely indeterminate concept undergoes conceptual development and concretization in its application to specific aspects of the procedure of these tribunals relating to evidence and proof of facts and in relation to the specific kinds of tribunals.8 Although it is customary to emphasize fair trial in criminal cases, it is a truth generally accepted that any international tribunal deciding cases of any kind must ensure fairness in relation to evidence and proof of facts, even if the relevant governing instruments do not explicitly and generally refer to it. 8

The process of development or concretization of broad vacuous or indeterminate concepts in regard to the judicial function of international tribunals is discussed by me in C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (2005), Chapter 8.

14


With this general notion of fairness are associated impartiality of the tribunal and equality of arms of the parties which means that each party must have an equal opportunity to make its case in regard to facts and evidence. The concept of “fairness”, specifically in regard to evidence and proof was, for example, expressly referred to by the ICTY in Tadic´ , Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, when it said As such, the Trial Chamber agrees with the Prosecutor that the International Tribunal must interpret its provisions within its own context and determine where the balance lies between the accused’s right to a fair and public trial and the protection of victims and witnesses within its unique legal framework. While the jurisprudence of other international judicial bodies is relevant when examining the meaning of concepts such as “fair trial”, whether or not the proper balance is met depends on the context of the legal system in which the concepts are being applied.9

It is noted that the tribunal emphasized the right of the accused to a fair trial. This was because the issue in the case allegedly concerned inroads into the accused’s right. It is clear, however, that the tribunal did not intend to exclude the right of the other party, i.e. the prosecutor in this case, to fairness in the trial of the case in regard to evidence and proof. In a sense fairness in respect of one party implies fairness to the other, when fairness is considered a matter of basic importance in a case. The tribunal, moreover, referred to respect for “recognized standards of fundamental human rights” in its judgment, while stating that there had been concern in the drafting of the Statute of the ICTY for ensuring that the proceedings were conducted in accordance with international standards of fair trial and due process was important not only to ensure respect for the individual rights of the accused, but also to ensure the legitimacy of the proceedings . . .10 9 10

(1995), ICTY, Judicial Reports 1994–1995 at p. 15. Ibid. at p. 149.


15

Again, here the emphasis is on the rights of the accused. Yet, no implication was intended that the prosecution did not have a right to a fair trial in respect of evidence in order to prove its case. The reference to legitimacy of proceedings clearly indicates that this was not implied but that the contrary was the case, because the trial could not be legitimate otherwise. It is always a case of achieving a balance among the interests of the parties in respect of evidence and proof, and, perhaps, not least, those of the tribunal in establishing the truth. The three principal human rights conventions refer in one way or another to a fair trial in criminal cases as a basic human right.11 Two of them specifically refer as well to fairness in civil (non-criminal) cases as a basic human right.12 The conventions, though dealing with the rights of individuals vis-à-vis the State, reflect a generally accepted norm for judicial courts or tribunals. This norm requires fairness of proceedings in trying cases which clearly covers matters pertaining to evidence and proof. It is not difficult in any case to extend the concept of a fair trial in regard to evidence and proof to any international judicial organ or institution settling international disputes. It is of critical importance that it be recognized that it is in the very nature of a judicial body in dealing, inter alia, with evidence and proof of facts, to ensure fairness to both parties, and also protect its own interests in dispensing justice. While the interests of the two parties are the most relevant, strictly all three interests, those of the two parties and that of the tribunal as a judicial organ, need to be considered in establishing fairness in a given situation. Which one predominates, when choices must be made, depends on the nature of the case. For this purpose whether the proceeding is “civil,” “criminal” or “quasi-criminal” is sometimes perhaps a relevant consideration. While, apart from international criminal courts, international human rights courts and international courts and tribunals, which 11

ICCPR, Article 14; European Convention on Human Rights, Article 6; American Convention on Human Rights, Article 8. 12 European Convention on Human Rights, Article 6; American Convention on Human Rights, Article 8.

16


may be compared to civil courts or tribunals in national legal systems, may not generally and in explicit terms have referred to the requirements of fairness in trying cases as the fundamental principle governing their approach to the principles and rules of evidence applied, it is clear that the meticulous manner in which evidentiary problems are discussed and solved and the evidentiary principles applied are established in all such tribunals and courts reveals their concern for giving a fair trail in dealing with such problems and establishing such principles. This emerges whether the jurisprudence of the two established human rights courts and the work of the international criminal courts are examined or the practice in judicial settlement of disputes of standing “civil” courts, such as the ICJ and ITLOS, or of international arbitral tribunals is considered.13 There can be no doubt that providing a fair proceeding in terms of evidentiary principles is the basic principle applied by all international tribunals. Moreover, as has been pointed out by the Iran-US Claims Tribunal, though specifically in dealing with late-filed evidence, as a general principle the probability of prejudice to the other party, the equality of treatment of the parties and the disruption of the judicial process are important considerations taken into account by the tribunal. The tribunal made it clear that 61. In determining whether to admit a late submission, the Tribunal has frequently referred to these fundamental requirements of equality between, and fairness to, the Parties, and the possible prejudice to either Party. Further, the orderly conduct of the proceedings also requires that time limits be established and enforced. See Middle East Management and Construction Corp. v. The Islamic Republic of Iran, Award No. 202–292–2, pp. 3–4 (25 Nov. 1985).

13

The cases decided by such courts and tribunals which are the subject of discussion throughout this work demonstrate this regard for the principle that in determining and applying principles or rules of evidence tribunals must respect the fundamental principle of fairness in trying cases.


17

62. In applying these principles to the specific facts of a case, however, the Tribunal considers the character and contents of late-filed documents and the length and cause of the delay. See, e.g., Trustees of Columbia University v. Islamic Republic of Iran, Award No. 222–10517–1, para. 23 (16 Apr. 1986); Ronald Stuart Koehler v. Islamic Republic of Iran, Award No. 223–11713–1, paras. 7, 27 (16 Apr. 1986); Sola Tiles, Inc. v. Government of the Islamic Republic of Iran, Award No. 298–317–1, para. 8 (22 Apr. 1987). These factors affect the probability of prejudice, the equality of treatment of the Parties, and the disruption of the arbitral process by the delay. 63. Filings containing facts and evidence are the most likely to cause prejudice to the other Party and to disrupt the arbitral process if filed late. . . . Even when no or little prejudice would result, the orderly conduct of the arbitral proceedings require that deadlines be enforced, absent some explanation for the delay. 67. These same considerations of equality of treatment, prejudice, and disruption of the arbitral process have led the Tribunal to refuse to admit unauthorized post-hearing submissions.14

The considerations referred to by the tribunal are inherent in the concept of a fair trial or proceeding and illustrate the content of some of the narrower and more refined principles developed from that requirement of the basic principle. How these principles have been elaborated when applied to areas such as late-filed evidence will be discussed later in, and throughout, this work. Suffice it here to note that it is the basic principle of fairness of the trail or proceeding which in effect finds conceptual development and contextual application in various other principles. The broad principle requiring respect for the equality of treatment of the parties,

14

The Harris International Telecommunications, Inc. Case (1987), 17 Iran-US CTR at pp. 47ff. Footnote numbers and footnotes have been omitted. The tribunal began by referring to “possible” prejudice but later described the prejudice as “probable”. It is not clear which description it preferred. For its purposes as a “civil” tribunal, it may very well be that “probable” prejudice is required. For criminal and “quasi-criminal” cases, the required prejudice may be “possible”.

18


avoidance of prejudice to either party, and avoidance of disrupting the proceedings and its orderly conduct, all of which, it may be added, involve respect for the integrity of the proceedings is a broad principle which flows from the basic principle and is without exception applied explicitly or implicitly by tribunals. The source of the basic principle of a fair trial is the general principles of law. That principle is, moreover, because it is a human right, a fundamental principle of law which pertains to the judicial character of the international courts and tribunals of all kinds. The general principles considered in Part II are important principles which generally have in one way or another been applied by international tribunals in settling international disputes, whatever the nature or subject matter of the cases being decided. These principles have been evolved implicitly in the implementation of the basic principle that there must be a fair trial and, while being conceptually developed or concretizations, are also fairly general, thus, resulting in particularity only when contextually applied or further developed conceptually. The basic principle that there must be a fair trial is relevant to explain the written law, whether constitutional or in rules of procedure. It is also relevant to fill in what may be termed “gaps” in the written law and to interpret it. It has never happened that express constitutional provisions on evidence and proof have been considered to be unfair to one party or another or have been challenged on that ground. But, if such provisions are not fair, clearly they cannot be applied, because they violate a fundamental general principle of law.15 The judicial function is sacrosanct and has certain basic qualities of which dispensing a fair trial or proceeding is one. By the same token, but more easily, if express rules of procedure or other rules on evidence and proof violate the fundamental principle of dispensing a fair trial, they cannot be applied.

15

On fundamental general principles and the judicial function see C.F. Amerasinghe, op. cit. note 8, Chapter 8.

International Criminal and Human Rights Tribunals

19

Furthermore, where agreement of the parties in formulating rules of evidence is permitted and relevant, because dispensing a fair trail is a fundamental principle (ius cogens), if their agreement is to a rule or rules of evidence which violate in the particular context that principle, that rule or those rules of evidence must not be applied by the tribunal. Because that basic principle of evidence is fundamental and crucial to the judicial character of an international tribunal, consent of the parties cannot cure its disregard or its potential violation.

INTERNATIONAL CRIMINAL

AND

HUMAN RIGHTS TRIBUNALS

As seen above, international criminal tribunals and human rights tribunals are, in accordance with the definitions above, international tribunals deciding international disputes. It may also appear that these kinds of tribunals, both of which deal either with criminal cases (e.g., the ICTY and ICTR) or quasi-criminal cases (e.g., the ECHR and IACHR), should not be covered in a work dealing with other kinds of international tribunals which concern themselves with disputes which resemble more the civil disputes in national legal systems rather than legal disputes relating to crimes. It may be contended that some of the specific rules of evidence applicable by international tribunals in criminal or quasicriminal cases are somewhat more detailed in certain areas and may even be somewhat different in their detailed application than the rules applied in other kinds of cases. However, this does not mean that many of the general principles discussed in this work flowing from the basic principle requiring a fair trial do not apply to the former kinds of cases. These principles which are logically and practically applicable to all kinds of international disputes merely undergo in respect of criminal or quasi-criminal litigation a particular and often narrower conceptual development or contextual application to facts, as the case may be, which is necessary and reasonable, given the nature of the dispute, and also may result, though rarely, perhaps, in a different specific rule

20


or different specific rules. It is generally the context of the criminal or quasi-criminal cases which determines this result. As will be seen, a good example is the standard of proof which generally differs in criminal and quasi-criminal cases from that applied in other kinds of litigation. The specific rules relating to witnesses may also be different in the two cases. Because of the differing nature of the kinds of cases, such differences in specific rules are warranted, though the basic principle applicable, of a fair trial, discussed earlier in this chapter, and some of the other narrower general principles flowing from that basic principle discussed in Part II are still viable and relevant to international criminal and quasi-criminal litigation. Indeed, the application of the general principles elucidated in this work may result in different rules, when applied contextually in detail, even in relation to different cases in different tribunals which are not dealing with criminal or quasi-criminal cases. It does not follow for this reason that the general principle concerned is not sustainable.

2 SOURCES OF THE LAW AND AREAS OF APPLICATION OF GENERAL PRINCIPLES

Some general remarks are required on the matter of sources of the law of evidence and proof. Obviously, an international tribunal would apply the rules relating to evidence, if any, which are incorporated in the instruments creating it. In the case of international criminal tribunals and, perhaps, international tribunals dealing with human rights, such incorporation is more common and done in greater detail than in the case of other tribunals. But, as pointed out in Chapter 1, the written rules are confined to certain areas. Further, tribunals may enact their own rules of procedure which would have provisions on evidence. These provisions are also, however, confined to certain areas. Clearly, then, written sources are important ones. These written sources are, of course, subject for their validity to non-violation of fundamental principles of law, sometimes referred to as ius cogens, and applicable to judicial organs.1 1

See on such fundamental principles C.F. Amerasinghe, Principles of the

22

Chapter 2. Sources of the Law and Areas of Application

Given that the express written law of evidence and proof applicable to a tribunal governs the tribunal’s adjudicatory process, a question that arises it to what sources should reference be made (i) in interpreting the written law and (ii) in the event that there is no written law which does occur and happens perhaps most often in the case of “civil”, i.e., non-criminal and non-human rights, tribunals. The first point of importance is that international tribunals have taken the position in general that they are not bound, whether it be on the production of evidence or in any other areas, by national laws, unless national laws are invoked or incorporated in the constituent instrument of the particular tribunal.2 For example, in the Lehigh Valley Railroad Co. Case (No. 2) 3 the tribunal took the view that, even though the national State of the claimant (the U.S.A.) in a case of diplomatic protection had laws permitting the issuance of subpoenas to enforce the appearance of witnesses, the tribunal could not apply those laws. In the Lehigh Valley Railroad Co. Case (No. 4) the tribunal pointed out that unlike in some national legal systems the plaintiff did not have to specify on which evidence filed he intended to rely. The tribunal said: the German Agent asserts. . . . that the German Agent is unnecessarily handicapped and confused by the admixture of that which may be relevant and that which may not; and that therefore the American Agent ought to be required now to specify on which of

Institutional Law of International Organizations (2004) Chapter 8. On the constitutive instruments and tribunal documents as sources see the Chevreau Case (1931), 2 UNRIAA at pp. 1124–5, and the decision in the Amabile Case (No. 12) (1952), 14 UNRIAA at p. 125 (this is a Conciliation Commission decision but reflects judicial practice). 2 See the Frontiers of the French Guyana Case (1900), La Fontaine at p. 570; the Faber Case (1903), 10 UNRIAA at pp. 458–9; the Alonzo Franqui Case (1903), ibid. at p. 751; the Parker Case (1926), 4 UNRIAA at pp. 39–40; the Georges Pinson Case (1928), 5 UNRIAA at p. 329; the Shufeldt Case (1930), 2 UNRIAA at p. 1083. 3 (1931), 8 UNRIAA at p. 103.

Sources of the Law and Areas of Application

23

the evidence heretofore filed he intends to rely. No doubt such a specification on the part of the American Agent would not only be helpful to his adversary but in the end would be an aid to the Commission in deciding upon the motion. The question is, however, whether the Commission can or ought to impose such a requirement upon the moving party. The agreement under which the Commission is organized is silent as to the method of procedure which should be followed in a matter of this sort. The parties to the controversy are sovereigns. The agreement requires the Commission to receive any writing either party may tender. The practice of the Commission has not been in accordance with civil law procedure in ordinary municipal tribunals. If it had been, the issues would have been nicely defined in formal pleadings, and the evidence as offered would have been tested as to its relevancy by the issues made up on the pleadings. Evidence as tendered would then have been admitted or ruled out of the cause, and when the time arrived for decision the Commission would have had before it only that body of evidence which had been formally admitted and would of course ignore that which had been by its ruling excluded from the record. The Commission has always been of the view that the terms of the agreement under which it sat prevented preliminary rulings upon the relevancy of evidence. The result has been that whatever was offered on behalf of either sovereign was accepted and filed, and when the time arrived for a decision the relevancy of each item of evidence had to be determined as part of the process of arriving at a conclusion. This method of procedure necessarily puts a somewhat heavier burden upon the Agents and upon the members of the Commission than if a strict method of pleading and ruling upon evidence under the pleadings had been adopted. I do not think that the Commission either can or ought now to alter the method which has been pursued throughout its work from the beginning.4

In the Cameron Case the tribunal made it clear that Mexican law applied to the examination of Mexican witnesses, only because the relevant treaty provided for its application.5 4 5

(1934), 8 ibid. at p. 210 (My emphasis). (1929), 5 ibid. at pp. 29–30.

24


In the same breath tribunals have asserted that, in certain areas at any rate, they have a great deal of freedom in regard to the treatment of evidence and consequent proof. In the Fabiani Case the tribunal referred to the freedom of arbitrators to take into account whether evidence is available, however proof may be attempted.6 In the Frontiers of the French Guyana Case the tribunal made it clear that proof may be attempted by whatever resources were at the disposal of the parties and that the judge could take into account whatever evidence satisfies his mind as to the actual facts.7 In the Alonzo Franqui Case the tribunal stated that in the absence of express provision in the Compromis concerning the determination of the means of proof the tribunal was free to refer to “tous les genres de preuve qu’il croira necessaires.” 8 In the Amabile Case (No. 12) the Conciliation Commission invoked the freedom and latitude of tribunals in admitting and evaluating evidence as inherent in arbitral claims procedure.9 However, this does not mean that sources of the law cannot usefully be identified. Clearly general principles of law, which are usually found in national legal systems, as an accepted source of international law would qualify as an important source for this purpose, as would any customary law which exists.10 This is not to say that in a specific case written texts are not to be interpreted in accordance with generally accepted principles of interpretation applied in the interpretation of written treaties and 6

(1896), La Fontaine at p. 344. (1900), ibid. at p. 570. 8 (1903), 10 UNRIAA at p. 751. 9 (1952), 14 ibid. at p. 125. This case was before a Conciliation Commission but the principle is applicable to tribunals and courts. 10 Sandifer, Evidence before International Tribunals (1975), refers only to customary law in general as a source. Cheng cites several rules of evidence applied by international tribunals which flow from general principles of law: General Principles of Law as Applied by International Courts and Tribunals (1953) pp. 302 ff. As already pointed out in Chapter 1, the basic principle of a fair trial flows from a general principle of law and, further, is a fundamental principle pertaining to the judicial character of international tribunals. 7


25

conventions, which the instruments are either directly or derivatively (as when an international organ or organization composed of State representatives enacts a Statute or written instrument for a tribunal). The ICTY, while stating that the Statute of the ICTY was not a treaty, conceded that the principles of interpretation of the 1969 Vienna Convention of the Law of Treaties were applicable to its interpretation.11 Clearly, this approach does not conflict with the view that the Statute adopted by the SC of the UN, which is composed of States, may be regarded as derivatively on the same plane as a treaty. Naturally, teleological principles of interpretation would also be relevant in this context. As was stated by the ICTY, its Statute was to be interpreted so as to comply with internationally recognized standards of fundamental human rights, taking into account the particular objects and purposes of the ICTY and the specific circumstances surrounding its creation.12 Consequently, it could very well be that the practice and law of other international tribunals are not blindly to be followed.13 Granted that there is a need to adhere to principles of interpretation of international conventional instruments, general principles of law and customary international law would otherwise be applicable where appropriate, if principles emerge from those sources and where those principles are not excluded. In establishing such general principles of law (or customary law, if any, for that matter), there could be situations in which the precedents from other international tribunals would constitute elements of the requirements for sources, though it is clear that the factors mentioned by the ICTY and referred to above would have priority in a given situation. In fact in the case of “civil” litigation, i.e., noncriminal and non-human rights litigation, international tribunals have freely invoked general principles of law as a source. 11

Tadic´, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, August 10, 1995, ICTY, Judicial Reports 1994–1995 at p. 141. 12 Ibid. 13 Ibid. at pp. 162 ff.

26


It may have been observed that some hesitation has been shown above in referring to customary law as a source of the law of evidence and proof. The reason is that, while theoretically custom, residing in the practice of States accompanied by an opinio iuris, qualifies as a source, it has never been the case that custom has been properly so invoked by international tribunals. This is understandable, because it is difficult to see how custom as the practice of States, as contrasted with general principles of law arising from applications by international and national tribunals, can give rise to evidentiary law which international tribunals can apply, unless the view is taken that the application by national tribunals of common principles of evidence is to be regarded as the practice of States resulting in customary principles of evidence. Suffice it, therefore, to deal with such applications of principles by national tribunals as creating general principles of law rather than as creating customary law. International tribunals have referred to general principles of the law of evidence and not to customary law, when they have applied principles of law recognized in national legal systems. In the Valentiner Case, for example, it was said that the principle omnia rite acta praesumuntur was an “universally accepted rule of law”.14 General principles of law relating to evidence and deriving from national legal systems cannot be regarded as a kind of mathematical highest common factor among the various systems of national law, including all their particularities introduced on account of special circumstances. On the contrary, in many senses a much broader approach has to be adopted in order to arrive at what may be treated as the common underlying principles, without regard to the particularities of individual systems. As was stated in a concurring opinion in the Mallén Case This Commission cannot apply strict rules of evidence such as are prescribed by domestic law, but it can and must give application to well-recognised principles underlying rules of evidence and of 14

(1903), Venezuelan Arbitrations 1903 at p. 564. See also for other examples Cheng, op. cit. note 10 pp. 304 ff.


27

course it must employ common-sense reasoning in considering the evidential value of the things which have been submitted to it as evidence.15

While strict rules of evidence in national systems may not be applied, on the one hand, where national systems reveal a common general principle, that will be applied, if it is relevant, on the other hand, the search for general principles may lead to the adoption of general principles applied in some systems rather than those applied in others. Thus, principles adopted in civil law systems may be applied rather than those adopted in common law systems and vice versa. This means that sometimes, in the case of evidence and proof, an unwritten source for the law applies, because there is no true general principle of law which emerges in the context. An example is the principle applied by international tribunals, especially criminal tribunals, that ‘hearsay’ evidence is admissible in principle rather than the converse. In national systems of law there is on this matter a conflict. The common law systems in principle reject as inadmissible such evidence, while civil law systems in principle accept it as admissible. Hence, it cannot be said that there is a general principle of law that hearsay evidence is inadmissible or, indeed, that it is admissible. However, international tribunals, particularly criminal tribunals, have generally applied the principle accepted by civil law systems that hearsay evidence is in principle admissible. As the ICTY stated in Tadic´, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, A further example of the more elastic rules of evidence permissible before those courts which have tried war criminals is found in the greater frequency with which hearsay evidence is admitted, when compared to proceedings before most courts dealing with offences purely under national law.16 15

(1927), Opinions of Commissioners, 1927 at p. 268. ICTY, Judicial Reports 1994–1995 at p. 151, referring to and supporting the statement made in an international war crimes case: 15 Law Reports of War Criminals (1949) at p. 198. 16

28


It cannot be said in such circumstances that a general principle of law or customary law was applied. What did happen was that the practice of some national tribunals was regarded as more appropriate in the context of an international criminal trial than the practice of other such tribunals. It may be concluded, therefore, that, where no general principle in the strict sense emerges, or where, if there is one, it is regarded as inappropriate for the purpose in hand, international tribunals are aware that they are not applying a general principle of law but have selected a principle which, indeed, may even not be applied by some national tribunals but is based on common sense flowing from other general principles and is appropriate for the purpose at hand.17 In the Kling Case, for example, the tribunal said, referring to international tribunals: With respect to matters of evidence they must give effect to common-sense principles underlying rules of evidence in domestic law.18

The tenor of the reasoning of the ICTY in the Tadic´ Decision, referred to above, is towards recognizing the role of common sense in the law of evidence as applied to criminal cases, taking into account all relevant factors, such as fundamental human rights. Common sense, which is referred to is not an abstraction which may be used wildly. It is clear from the statements made that its exercise is based on and related to a consideration of the principles of law which are to be derived from the other sources referred to above or to existing applications of principle in some national systems, if not in all or most national systems. The use of common sense is intended to result in an extraction of general principles of law or rules which are appropriate to the kind of 17

Cheng, op. cit. note 10 at p. 335 comes close to the statement, and the view taken above, when he refers to “general principles of law based on common sense” as being applicable in regard to evidence and proof. 18 (1930), Opinions of Commissioners, 1931 at p. 45.


29

litigation in issue, whether such principles or rules are to be found exactly replicated in national systems or not. To that extent the use of common sense is connected with general principles present in national legal systems, whether such principles are universal or not, and may be regarded as an extension of general principles of law as a source. Further, where a principle is applied in spite of a conflict with a principle in some national legal systems, it may be the case that the principle applied is a specific concretization or development of a broader general principle of law accepted by most national systems which is recognized and which the international tribunal is, nonetheless, in fact applying, such as the basic general principle of affording all the parties a fair trial. This broad basic general principle has been adverted to in Chapter 1 above, where it was shown that the principle is also a basic fundamental principle which cannot be changed and, therefore, must take precedence even over the written law. The narrower general principles to be considered and which have emerged in the jurisprudence and practice of international tribunals as concretizations or development of concepts relate principally to four matters. In theory the principles would apply both to “civil” litigation and in criminal and human rights litigation. What happens in the latter cases is that some of them are elaborated or even qualified specifically to suit the purposes in hand whether by the written law or by the tribunals themselves. For example, in criminal litigation the duty of the parties to cooperate with each other in the production of evidence takes the form, when elaborated, in rules relating to the discovery of evidence and in the protection of witnesses. These rules result in the tribunal’s more effectively having access to evidence. The important general principles implementing the fundamental principle of a fair trial which are discussed relate in one way or another to (i) the burden of proof, including the allocation of the burden of proof between the parties, the carrying forward of evidence, and legal presumptions and judicial presumptions (inferences) insofar as they affect the burden of proof; (ii) the duty of the parties to cooperate both with each other and

30


with the tribunal in the production of evidence, and in this connection the powers of discovery and sanctions for failure to produce relevant evidence which an international tribunal has at its disposal; (iii) the rights of parties and the powers of tribunals relating to such matters as witnesses, experts, documentary evidence etc., descente sur les lieux, taking of evidence from third parties, admissibility of evidence, and the evaluation of evidence; and (iv) the standard of proof required and the discretion of the tribunal in regard thereto. It is to be noted here that it is only matters arising under (iii) above which are generally covered by the written law, if at all. However, in the case of the existing international criminal tribunals much more is spelled out particularly in the area covered by (ii). At the end of the day the view may be espoused that what is said in the chapters in Part II of this work about the principles extracted by conceptual development of the fundamental basic principle that in regard to evidence and proof there must be a fair trial reflects the law of evidence applied by the tribunals. This is true in principle for all tribunals whether “civil” or criminal or concerned with human rights. It is only that in the concretization of the broad principles and in their contextual application there may be variation depending on the kind of tribunal. This variation may be considerable in that it could happen that a narrower principle or rule positively applied in one species of tribunal may negatively not be applied in another species of tribunal or vice versa.

3 BASIC ELEMENTS OF AN INTERNATIONAL JUDICIAL PROCEEDING

At the outset attention must be paid to some matters of a preliminary nature. These concern concepts, such as evidence, pleadings and indictments, and burden of proof. Their interrelationship must also be considered.

EVIDENCE, PLEADINGS

AND

INDICTMENTS

Evidence consists of elements which are presented to a tribunal in order to prove or disprove the existence of facts which are claimed to exist or to have existed. As was said, slightly differently, in the Faber Case, In its wider and universal sense it [evidence] embraces all means by which any alleged fact, the truth of which is submitted to examination, may be established or disproved.1 1

(Germany v. Venezuela, 1903), Venezuelan Arbitrations 1903 at p. 622.

32

Chapter 3. Basic Elements

Other legal definitions of the term “evidence” require “something (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact”,2 or “That which tends to prove the existence or non-existence of some fact”.3 The leading English dictionary defines “evidence” as “information indicating whether a belief or proposition is true or valid”.4 These explanations clearly connect evidence with proof of a fact or facts. Pleadings relate to non-criminal proceedings and usually contain a variety of matters such as statements of the relevant facts, statements of law, submissions, admissions or denials of facts alleged by an opponent, observations, arguments and contentions both on the facts and on the law.5 The filing of pleadings and adducing of evidence as a means of proof is a necessary part of non-criminal proceedings. While the filing of pleadings and adducing of evidence as a means of proof is known in both national and international proceedings, however, the approach taken by common law jurisdictions to the question of evidence has some special features. Pleadings in international litigation may contain elements of evidence such as documents. In criminal proceedings, indictments take the place of pleadings, are less extensive than pleadings and do not as such contain elements of evidence. They define clearly the charges against the accused and their limits. Here the discussion will focus on the filing of pleadings and adducing of evidence in non-criminal proceedings. But what is said of the production of evidence applies in a general way to criminal proceedings. 2

Black’s Law Dictionary (1999). Garner (ed.), A Concise Dictionary of Law (1990). 4 The Concise Oxford English Dictionary (2002). 5 See Article 49 of the current ICJ Rules of Court, ICJ Acts and Documents No. 4, p. 125 (1978); and Joint Dissenting Opinion of Judges Bengzon and Jimenez de Aréchaga to the Order of the Court (18 August 1972), Fisheries Jurisdiction Case, 1972 ICJ reports pp. 184–86. See also C. Schmithoff, Schmithoff’s Export Trade: The Law and Practice of International Trade (1980) p. 420, UNCITRAL Yearbooks (1975) and (1976), and Sanders, “Commentary on UNCITRAL Arbitration Rules,” 2 ICCA Yearbook (1977) pp. 172 ff. 3

Evidence, Pleadings and Indictments

33

International tribunals regulate and control the presentation of pleadings and the production of evidence in order to facilitate their task of evaluating evidence and deciding cases. While it is the parties who must prove their claims, requirements of justice and concern for truth require that this matter not be left to the parties’ discretion. Therefore, international tribunals supervise these activities of the parties in the proceedings not only by regulating, both under Rules and by decision, the time, order and other formalities related to the presentation of pleadings and production of evidence, but also sometimes by directing the parties to produce specific information and evidence which the tribunal deems it necessary to have. This intervention by international tribunals which is by way of supervision or assistance takes place in two ways. First, provisions relating to the subject may be included in the Statutes and Rules of international tribunals. These provisions lay down general guidelines with regard to the pleadings and evidence to be filed by the parties and the order thereof. They also provide the tribunal with authority to determine on the basis of the general guidelines such matters as time limits, extensions, the language of the proceedings, importantly the order in which the parties will file their pleadings and evidence will be heard, and related formalities. Second, international tribunals apply the general provisions of their Rules relating to pleadings and evidence, in relation to which the provisions give them a discretion, taking into account the circumstance of each case and, where possible, the wishes and capabilities of the parties. In this connection Article 44 of the ICJ Rules may be cited. It requires any agreement between the parties which does not cause unjustified delay to be taken into account. In the Nicaragua Case (Merits) the ICJ stated pertinently that the provisions of the Statute and Rules of Court concerning the presentation of pleadings and evidence are designed to secure a proper administration of justice, and a fair and equal opportunity for each party to comment on its opponent’s contention.6 6

1986 ICJ Reports at p. 26. The statement is applicable to all noncriminal international tribunals.

34


The same considerations apply mutatis mutandis to criminal proceedings. There is supervision and control by international criminal tribunals of indictments and the adducing of evidence in ways which achieve the same objectives as the supervision and control of non-criminal tribunals of the filing of pleadings and the production of evidence in non-criminal proceedings.

BURDEN

OF

PROOF

In English, the phrase “burden of proof” and, in French, the phrase “la charge de la preuve” or “le fardeau de la preuve” generally mean “obligation to prove.” In international legal practice these terms are used interchangeably with the same meaning and implications. In addition in international proceedings these terms and their Latin equivalent, onus probandi, have the same meaning and they reflect for international law the concept of the burden of proof. Further, the meaning of this concept in international law may be different in certain respects from its meaning in national legal systems, although these differences are minor.7 What is of concern here is the manner in which the concept of burden of proof is applied in international proceedings. In international proceedings the rules relating to the burden of proof before arbitral, ad hoc and standing tribunals of whatever kind are based on the simple assumption that the adjudicating body is impartial and has a duty to arrive at a decision.8 In order to preserve impartiality, generally the judge or arbitrator in international proceedings is neither permitted to take a position in favour of or against either of the parties before final judgment nor expected to acquire and adduce evidence for or against them. Exceptionally the judge or arbitrator may refer the technical issues of a case to an expert, invite the parties to provide the tribunal with the necessary information and documents, or take 7

For a discussion of the differences between the civil law and common law systems see Kazazi, Burden of Proof and Related Issues (1996) pp. 23 ff. 8 Dalloz, 2 Répertoire de Droit International (1969) p. 627, Art. 2.

Burden of Proof

35

judicial notice of notorious facts. These are exceptions which are permitted with a view to preserving the efficacy of the proceedings and enhancing their judicial character. They do not in fact obstruct the principle that the adjudicating body must be impartial which requires the judge or arbitrator not to take sides in the proof of allegations or claims of fact. That is to say, the exceptions may and must be used by the judge or arbitrator with impartiality. Further, there must be equality of arms between the parties. The principle is also recognized that the judge does not initiate a case proprio motu, it being for the parties only to institute the proceedings. This principle also is important in relation to the burden of proof. The principle of possible party control over the proceedings in non-criminal cases has a bearing on the burden of proof. While the principle applies in a limited way in international proceedings, because international tribunals are vested with broad rather than narrow authority, the involvement of States as parties to disputes before international tribunals conceivably requires the principle of party control over the proceedings to be tempered in the interests of preserving the judicial authority of international tribunals. In criminal proceedings before international criminal tribunals the principle of party control does not apply. Thus, tribunals control the proceedings. The proper function of judges or arbitrators, generally speaking, is to evaluate the evidence and come to a decision in the case before them. But the possibility of non liquet raises problems. In fact international tribunals are not expected to refrain from deciding a case by resorting to non liquet. Most text writers agree that non liquet is not a course open to international tribunals.9 Even where non liquet is not expressly prohibited in the relevant governing texts and rules, international tribunals have found it their duty to try to arrive at a decision which would dispose of 9

See Thirlway, “Evidence Before International Courts and Tribunals” in Bernhardt et al. (eds.), 2 Encyclopedia of Public International Law (1995) at p. 393, and Schlochauer, “Arbitration” in Bernhardt et al. (eds.), 1 Encyclopedia of Public International Law (1992) at p. 224.

36


the case. For instance, in the Island of Palmas Case, the reference in the arbitration agreement to the parties’ wish to “terminate” the dispute as well as the terms thereof presupposing that the Island of Palmas could belong to only one of the parties was taken to mean that the “parties intended the Arbitral Award not to conclude by a non liquet but to decide in any case that the island formed part of the territory of one or the other of the parties to the dispute.”10 Judge Tanaka was of the view that Article 38 (1)(c) of the Statute of the ICJ could play an important role “in filling in gaps in the positive sources in order to avoid non liquet decisions . . .”11 On the one hand, then, the tribunal is in principle prohibited from participating in establishing the truth of the parties’ allegations of fact, while, on the other, it is not allowed to render a non-liquet judgment. Thus, it is important that the parties convince the judge that they have genuine claims by proving their claims or allegations. The concept of burden of proof refers to the obligation arising from this feature. There will be no decision in favour of the party that bears the burden of proof of an essential issue, if he is unable to discharge the burden successfully. The burden of proof concerns the allocation of the duty to prove the disputed facts. The character and amount of evidence necessary for that purpose are also determined by the standard of proof required. The rules relating to the standard of proof will determine the outcome in cases, especially where the force of the evidence produced is evenly divided. This means that, if at the end of the proceeding the judge finds that evidence neither favours the plaintiff nor the respondent, according to the relevant standard of proof, the case will be decided against the party that bears the burden of proof, which may be either of them, depending on the incidence of the burden of proof in terms of the

10

(1928 – USA v. Holland), 4 ILR at pp. 492–3. South West Africa Case, 1966 ICJ Reports at p. 299. A small minority of writers, however, have voiced their disagreements with the proposition that the ICJ is absolutely prohibited from announcing non liquet: see, e.g., Verzijl, 2 The Jurisprudence of The World Court (1947–1965) p. 99. 11

The Burden of Evidence

37

claims made. While the duty of the parties in relation to the burden of proof always remains, international tribunals have sometimes intervened in regard to evidence in the interests of justice and without necessarily compromising their impartiality. International tribunals have discussed the rules for allocating the burden of proof and the consequences thereof. The basic concept which underlies the practice of international tribunals is that it is the obligation of each of the parties to a dispute before an international tribunal to prove its claims of fact to the satisfaction of, and in accordance with principles relating to proof acceptable to, the tribunal. This is also a reflection of “fairness” of trial in the litigation.

THE BURDEN

OF

EVIDENCE

Going forward with the evidence (the burden of evidence, sometimes also termed in the common law “burden of proof,” though different from burden of proof in its primary sense), while occasionally referred to in connection with international litigation is in general of little relevance and does not generate a distinct stage in the proceedings, even in criminal cases. While the statement has been made that “the Court (PCIJ) has referred to the burden of proof falling on a particular party, but without distinguishing it from the burden of going forward with the proof,”12 in fact an analogy with the common law practice in regard to the duty to go forward with the evidence is in international procedure inappropriate. The rules of international tribunals do not provide for this duty13 which is better described as the “burden of evidence” rather than “burden of proof”. International procedure seems to be free of such technical rules of evidence.14 In 12

Hudson, The Permanent Court of International Justice (1943) p. 565. See also Sandifer, Evidence Before International Tribunals (1975) p. 132. 13 See, e.g., generally, the International Court of Justice Rules of Court and Iran-U.S. Claims Tribunal Rules (1983). 14 For a discussion of the non-technical character of the rules of evidence of international tribunals in general, see, e.g., Sandifer, op. cit. note 12 pp. 8 ff.

38


any case, international proceedings, whether “civil” or “criminal,” never consist of two distinct parts as such whereby the court needs to take a decision to proceed to the second phase only on the basis that sufficient evidence had been produced in the first phase (i.e., a prima facie case had been made), or to dismiss the case, if the evidence is insufficient in this respect. In the Avena Case, where proof that certain individuals had the respondent’s nationality was in issue, the ICJ pointed out in effect that there was no “burden of evidence” in the above sense upon the claimant State as contrasted with a burden of proof which lay on the respondent, explaining the correct procedural situation as follows: “56. The United states accepts that in such cases it has the burden of proof to demonstrate United States nationality, but contends that nonetheless the “burden of evidence” as to this remains with Mexico. This distinction is explained by the United States as arising out of the fact that persons of Mexican nationality may also have acquired United States citizenship by operation of law, depending on their parents’ dates and places of birth, places of residency, marital status at time of their birth and so forth. In the view of the United States “virtually all such information is in the hands of Mexico through the now 52 individuals it represents”. The United States contends that it was the responsibility of Mexico to produce such information, which responsibility it has not discharged. 57. The Court finds that it is for Mexico to show that the 52 persons listed in paragraph 16 above held Mexican nationality at the time of their arrest. The Court notes that to this end Mexico has produced birth certificates and declarations of nationality, whose contents have not been challenged by the United States. The Court observes further that the United States has, however, questioned whether some of these individuals were not also United States nationals. Thus, the United States has informed the Court that, “in the case of defendant Ayala (case No. 2) we are close to certain that Ayala is a United States citizen”, and that this could be confirmed with absolute certainty if Mexico produced facts about this matter. Similarly Mr. Avena (case No. 1) was said to be “likely” to be a United States citizen, and there was “some possi-


39

bility” that some 16 other defendants were United States citizens. As to six others, the United States said it “cannot rule out the possibility” of United States nationality. The Court takes the view that it was for the United States to demonstrate that this was so and to furnish the Court with all information on the matter in its possession. In so far as relevant data on that matter are said by the United States to lie within the knowledge of Mexico, it was for the United States to have sought that information from the Mexican authorities. The Court cannot accept that, because such information may have been in part in the hands of Mexico, it was for Mexico to produce such information. It was for the United States to seek such information, with sufficient specificity, and to demonstrate both that this was done and that the Mexican authorities declined or failed to respond to such specific requests. At no stage, however, has the United States shown the Court that it made specific enquiries of those authorities about particular cases and that responses were not forthcoming. The Court accordingly concludes that the United States has not met its burden of proof in its attempt to show that persons of Mexican nationality were also United States nationals.”15

There was a clear affirmation that the notion of a “burden of evidence” was irrelevant and inappropriate. Indeed, Judge Ranjeva, in a declaration agreeing with the Court, interpreted the Court’s statement as affirming that that was the position and further explained that the specific concepts of American (common) law in this regard had not been adopted as such by international law, in stating: 2. L’arrêt refuse de reprendre à son compte la distinction présentée par les États-Unis d’Amérique entre le “burden of proof ” et le “burden of evidence” (par. 56), traduits respectivement par “charge de la preuve” et “[des] elements de preuve”, pour ne retenir que le concept classique de la charge de la preuve. Cette décision mérite d’être approuvée bien que l’arrêt ne consacre pas de développements idoines à ce point. La distinction, trop subtile, propose par la Partie défenderesse relève, peut-être, des categories propres au droit américain; toujours est-il qu’il s’agit d’institutions de droit interne 15

2004 ICJ Reports paras. 56–7: see <www.icj-cij.org>

40

Chapter 3. Basic Elements alors que la Cour a à appliquer le droit international et ses categories. Tout au plus, doit-on rappeler une vérité élémentaire que son les limites propres des categories de droit intérne; elles sont directement tributaries de l’histoire juridique et de celle des institutions de chaque système pour avoir une valeur universelle et être directement valable en droit international.16

The practice of international tribunals, both “civil” and “noncivil,” shows that they have followed the civil law in which there is technically no place for the duty to go forward with the evidence (burden of evidence), as understood in the common law, in contrast to the burden of proof in its true sense. The tribunal simply decides at the end of the proceedings whether or not the burden of proof, wherever it may lie, has been discharged. It has been said of the civil law: French law and doctrine make no sharp distinction between the burden of going forward – that is, the burden of providing sufficient evidence to permit the court to find in favour of the proponent of the evidence – and the burden of persuasion that is, the burden of actually persuading the court to find in favour of the proponent of evidence. Since the court must determine both the law and facts and as no procedural motion is available to test whether sufficient evidence had been introduced to permit the court to find a certain way before the court decides which way it will actually find, the distinction between the two burdens is of no practical significance.17

Here, there is no clear distinction made between the burden of going forward with evidence which is recognized as such in common law procedure and which generally leads to the procedural motion of whether or not there is a case for the respondent to answer, and the duty of the proponent to produce sufficient evidence, which is required in both common and civil law systems, in order to discharge the burden of proof in its real sense. Yet, in the civil law systems there may be situations in which, if 16 17

Ibid., Judge Ranjeva’s Declaration, para. 2. Herzog and Weser, Civil Procedure in France (1967) p. 310.


41

one party fails to produce evidence to counter the other party’s evidence, the decision will go against the former on the basis that the latter has discharged his burden of proof. While technically a burden of evidence does not exist in international litigation, there are occasions on which tribunals have pointed out in their judgments that it was for the defendant to have produced evidence in answer to the plaintiff’s actions in the case and that the failure to do so affected the defendant adversely.18 In international litigation, the presentation of pleadings (or filing of indictments) and production of evidence, however done, are necessary parts of the process of discharging the burden of proof. On the other hand, the presentation of pleadings (or filing of indictments) and the production of evidence are different from discharging the burden of proof. In international procedure the presentation of pleadings (or filing of indictments) and the production of evidence are dealt with separately from the burden of proof, while they have a bearing on the burden of proof.19

18

See, e.g., the Davis et al. Case (1947), Coussirat-Coustère and Eisemann, 3 Repertory of International Arbitral Jurisprudence (1991) pp. 1564–5, Entry no. 3810. 19 When the “presentation of pleadings and evidence” was in issue, some international tribunals have caused confusion by their use of terms. In the Parker Case, for instance, while discussing the irrelevance before international tribunals of technical rules of evidence found in national legal systems, the tribunal stated, inter alia, that “as an international tribunal, the Commission denies the existence in international procedure of rules governing the burden of proof borrowed from municipal procedure.” – (Emphasis added; (1926 – USA v. Mexico) 4 UNRIAA at p. 39). What the tribunal was describing by the use of the term, “burden of proof,” however, was the duty to present pleadings and evidence which in its opinion could not be governed by the technical rules of evidence of either the United States or Mexico. That the tribunal was aware that the reference was not to the burden of proof in its real sense appears from the explanation by the tribunal that: On the contrary, it holds that it is the duty of the respective Agencies to cooperate in searching out and presenting to this tribunal all facts throwing any light on the merits of the claim presented. (ibid.) This was clearly a reference to the duty to produce and disclose evidence (in agreement Cheng, General Principles of Law as Applied by International

42

Chapter 3. Basic Elements THE RELATIONSHIP

AMONG THE

COMPONENTS

The distinction between the burden of proof, on the one hand, and the presentation of pleadings (or indictments) and production of evidence, on the other, has an effect on how the case will be tried. Although the presentation of pleadings (or indictments) and the production of evidence are necessary steps in proving a claim, they do not necessarily result in the discharge of the burden of proof. In “civil” cases whether a tribunal is convinced of the truthfulness of a claim depends on the contents of the pleadings and the evidence produced rather than on the mere presentation of pleadings, but more importantly on the tribunal’s own judgment. Even though a party has submitted all the evidence possible, it is open to the tribunal to conclude that the burden of proof has not been discharged and the assertion of fact or facts not substantiated. Moreover, the presentation of pleadings and the production of evidence are strictly procedural matters. The rules governing them may, therefore, vary from one tribunal to another, in accordance principally with the provisions of its Rules of Procedure (or Rules). The rules governing the burden of proof, on the other

Courts and Tribunals (1953) p. 328). Therefore, the tribunal’s statement about the “burden of proof” is not authority with respect to the true burden of proof, which is the burden of proof in its first sense. Sometimes the phrase “burden of going forward” or other terms used in the common law in a different sense from “burden of proof” proper has been used by writers in this connection (see, e.g., Hudson, op. cit. note 12 p. 565; Sandifer, op. cit. note 12 p. 140; Herzog and Weser, op. cit. note 15 p. 110). Also the phrase “burden of proof” has been used in international proceedings in reference to the presentation of pleadings and production of evidence, thereby causing some confusion (see, e.g., the Parker Case (1926, USA v. Mexico), 4 UNRIAA p. 39). The IranUnited States Claims Tribunal has occasionally used the phrase “burden of evidence” (see, e.g., Islamic Republic of Iran v. United States of America (1986), 11 Iran-US CTR at p. 274), which is a feature of the common law. But it is the phrase “presentation of pleadings and evidence,” which is more appropriate that has been used by the ICJ (see, e.g., the Nicaragua Case (Merits), 1986 ICJ Reports at p. 26).

The Relationship among the Components

43

hand, though belonging to international procedure, affect the substance of the case. Further, the parties may have to produce evidence during the proceedings, and, therefore, going forward with the evidence may in effect fall on one or the other while the burden of proof does not shift in regard to a claim and throughout the proceedings remains in reference to that claim on the party that bears it. These considerations apply mutatis mutandis in “criminal” cases. In fact the clear distinction between the burden of proof, on the one hand, and the presentation of pleadings (where pleadings are involved) and the production of evidence is not limited to international procedure, but exists equally in national court procedure, including that of common law courts. In common law systems generally, even in cases where there is a jury, it is always the judge who deals with the presentation of pleadings and the production of evidence with which the jury is not concerned.20 This situation that prevails in regard to the two aspects21 is similar to that which prevails in international litigation, even though an explicit burden of evidence (carrying forward the evidence) is not officially recognized in the latter. The distinction between the two aspects has further ramifications. For instance, sometimes the party who must present pleadings and produce evidence may be other than the party bearing the burden of proof. Thus, where, in order to prove its case the claimant relies on documents which are in the sole possession of the respondent, the claimant carries the burden of proof but the burden of producing evidence is on the respondent, even though the burden of proof does not shift to the respondent so that the latter carries the burden of proof. International tribunals have necessarily declined in international litigation to apply the restrictions which exist in certain national legal systems, because there is need for greater flexibility in international litigation. As a result of the liberal attitude of 20

On the practice in common law systems in general, see, e.g., Cross, Cross on Evidence (1979) p. 90. 21 See, e.g., ibid. pp. 87, 93.

44


international tribunals toward the issue of admissibility of evidence, the party which bears the burden of proof in international proceedings is provided with more opportunities to establish the facts on which its claim is based. The question then is what place the pleadings have in relation to the burden of proof. The first issue is whether or not the pleadings, including the assertions of the parties, are also to be accepted as evidence and the second is whether or not the pleadings affect the burden of proof. As to the first question, it is clear that international tribunals have refused to accept unsupported statements of the parties as evidence. As stated in the Odell Claim: if an international tribunal were to accept all . . . allegations without evidence, it would expose itself to the not unjustifiable criticism of placing jurisdiction as between nations below the level prevailing in all civilized States for jurisdiction as between citizens.22

The answer to the second question, whether pleadings affect the burden of proof, is more complicated. As pointed out earlier, the pleadings usually cover a broad spectrum of different matters. Therefore, while pleadings as a whole may not be considered as evidence, there is no reason to take the position that none of what appears in pleadings could be characterized as relating to evidence. Pleadings, like pure evidence, are presented by a party partly with the purpose of discharging its burden of proof. Its efforts to discharge its burden of proof cover both the presentation of evidence as well as pleadings. For example, pleadings may contain documents relevant to the proof of facts. Therefore, pleadings cannot be ignored in deciding whether a party has been able to discharge the burden of proof, though there is a distinction between the latter and pleadings. At the same time, because of the nature of each, evidence is more important than the pleadings in the context of the burden of proof, with the consequence that pleadings have not often been referred to in discussions 22

(1926, GB v. Mexico), Further Decisions and Opinions of Commissioners, at p. 63. See also the Fisheries Jurisdiction Case, 1972 ICJ Reports pp. 184–6.

The Relationship among the Components

45

about the burden of proof.23 Also, practically no useful distinction is to be made between the oral and written pleadings of the parties in regard to the evidence contained therein for the purpose of proof, i.e., for example, between a document presented as evidence and explanations provided concerning that document. It is true that international tribunals may apply different or separate rules for presentation of pleadings and of evidence by the parties. Both pleadings and evidence per se are, nevertheless, related mechanisms used by the parties to discharge the relevant burden of proof. Thus, the effect of those devices must be considered together and be evaluated by the tribunal. As Judge Huber stated in the Island of Palmas Case, the value and weight of “any assertion can only be estimated in the light of all evidence and all the assertions made on either side, and of facts which are notorious for the tribunal.”24 It is conceivable that the burden of proof in a given case may be discharged by the presentation of pleadings. Thus, many of the jurisdictional pleas of the parties are usually resolved by resorting in the pleadings to arguments, rules of interpretation and factual elements, without further presentation of evidence. A claim could also be proved by relying on facts which are of public knowledge and of which judicial notice may be taken. Further, while allegations of parties in their favour need to be proved, when a party admits a fact which is detrimental to its own position, this is usually considered as sufficient proof. Not taking pleadings into account in determining whether the burden of proof has been discharged would limit the means available for discharging the burden of proof to the presentation of evidence. This is unnecessary. It is also contrary to the practice of international tribunals. Moreover, such a limitation is not in the best interest of justice. The burden of proving facts to support a claim is to be distinguished from how evidence is secured and the evaluation of

23

E.g., Mani, International Adjudication: Procedural Aspects (1980) p. 202, associates the burden of proof solely with the presentation of evidence. 24 (1928 – USA v. Holland), 4 AD p. 480. Emphasis added.

46


the evidence to find out whether the evidence produced supports the factual element on which the claimant’s claim is based. This distinction was squarely emphasized in Salle, where the WBAT stated: “34. The applicant maintains that the Respondent carries the burden of proof to establish that proper action has been taken. The Respondent relies, so he argues, on self-serving statements of supervisors, without any corroboration or record whatsoever as to the particulars of the guidance given. 35. The Tribunal does not regard the problem as one of a burden of proof. It is incumbent upon both the Applicant and the Respondent to provide the Tribunal with all the available evidence in order to allow it to pass judgment upon the Applicant’s allegations of non-observance of his conditions of employment; and it is for the Tribunal to determine, in the light of the evidence made available to it, whether the Applicant’s conditions of employment have, or have not, been observed.”25

The tribunal was pointing out in this statement that production of evidence was a separate matter from the burden of proving the facts required to sustain a claim. Both parties were expected to cooperate with the court and each other in the production of evidence in their possession or control, regardless of who had the burden. It was the applicant’s factual allegations, relating to the breach of his conditions of employment, in this instance, on the other hand, that had to be proved. Thus, the burden of proof of these facts lay with the applicant. The tribunal was not denying this incidence of the burden of proof. In the case of indictments, they define the charges and their limits and, therefore, have an effect on what has to be proved. The burden of proof emerges from indictments as does the burden of producing evidence. The relationship among indictments and their function, the production of evidence and the burden of proof is clearer in criminal cases. 25

WBAT Reports [1983, Part II], Decision No. 10 at pp. 14–15.

Rules of Evidence

47 RULES

OF

EVIDENCE

There are really no detailed rules of evidence in international litigation which is not of a criminal nature. Generally, the parties to such proceedings, especially in arbitrations, may have some control over the rules of evidence, including those on the burden of proof, which are applicable. In general, in arbitrations States may agree to a large extent on the rules relating to the burden of proof and other matters, when establishing an international tribunal. However, no extensive rules regarding evidence are generally to be found in the agreements establishing arbitral tribunals, and parties usually empower, either explicitly or implicitly, the tribunal to determine its own rules of procedure and evidence. In the case of permanently established tribunals such as the ICJ (and ITLOS), and now tribunals dealing with criminal cases, on the other hand, there may not be such autonomy. Even when the parties to arbitrations agree on rules in the compromis or otherwise, their agreement is usually confined to general questions and the details of the procedure are left for the tribunal to formulate. For example, the Iran-US Claims Tribunal has adopted much of the UNCITRAL Rules as such in its own Rules.26 Whether arbitral tribunals are established permanently or ad hoc, they enjoy considerable freedom in adopting, interpreting and applying evidentiary rules. The existence of a certain freedom in the choice and application of rules of evidence in these circumstances has not in fact led to a diversity in the general characteristics of such rules and basic principles as applied by different international judicial and arbitral tribunals. Suffice it to note that, whether they are expressed or not, rules of evidence of all international courts and tribunals are usually based on general principles of law taken from national legal systems, or what appear to be such general principles without the detail found in any particular national legal system or, where

26

For the UNCITRAL Rules see the Annexes herein.

48


such principles cannot be extracted, common sense.27 It would also appear that generally the specific express rules of the two successive World Courts are used as a basis and model for the rules of many other international judicial fora, and those areas in which other tribunals deviate from the rules of these models are usually minimal, being confined to changes required by special circumstances.28 While basic principles may be common to tribunals in general the rules of criminal tribunals and even human rights tribunals spell out in some detail what must or may be done or not done in certain areas. When the general principles deduced here, particularly those which are not expressed, are considered as general principles, there is really no reason to suppose, for instance, that they are as such not applicable to, e.g., criminal or human rights tribunals, though they may be subject to some specific modification. If at all, what happens in such tribunals and particularly in criminal tribunals is that in practice there is greater explicit written elaboration of the mechanics of proof. There must also be mentioned the efforts of the ILC to codify arbitral procedure in inter-State arbitration which resulted in the Model Rules on Arbitral Procedure, adopted by the General Assembly in 1958.29 Those rules have for a variety of reasons not been applied wholesale by States in the settlement of international disputes. International arbitration, while different in some respects from international judicial proceedings before standing or established courts, does not differ significantly from the latter insofar as evidentiary rules are concerned, in respect of both written and unwritten principles. Moreover, the evidentiary procedures used by major arbitral institutions are usually similar. In

27

See Chapter 2 above for reference to this source. See Thirlway, loc. cit. note 9 at pp. 302 ff. 29 The ILC Model Rules on Arbitral Procedure were drafted with G. Scelle as Rapporteur of the ILC. For the text of the Rules see General Assembly Resolution, Doc. A/CN.4/113, 6 March 1958, and Report of the International Law Commission, GA Official Documents, 13th Session, Supplement No. 9 (A/3859). 28

Rules of Evidence

49

particular the Rules prepared by the United Nations Commission on International Trade Law (UNCITRAL) have been widely adopted and applied by many international arbitral tribunals and bodies.30 These Rules, which are principally intended for optional use in ad hoc arbitrations relating to international trade are applicable, only if the parties so choose.31 In respect of evidence these Rules are in fact based on principles and general rules of evidence relevant to international commercial arbitration which reflect general standards. The general rules of evidence in international law, because of the above situation, consist of those rules which have usually either been accepted by the parties in the settlement of their disputes, or in the absence or irrelevance of direct agreement on specific rules, those that have generally been adopted and applied in practice by international tribunals. This applies to rules which may be written or not. A further point to be noted is that State practice and the jurisprudence of international tribunals may include and reflect, wherever possible and relevant, the general principles of national law or they purport to do so. Further, the writings of international jurists and common sense per se have had an influence on the formulation of the rules applied, whether they are written or not.

30

See, e.g., Schlochauer, loc. cit. note 9 pp. 215–30. The UNCITRAL Arbitration Rules were adopted by UNCITRAL on April 28, 1976, and were recommended by the UNGA for use on December 15, 1976. 31 It may be noted that the later UNCITRAL Model Law was recommended for use by the GA of the UN in its Resolution 40/72 (11 December 1985). See generally, Sanders (ed.), UNCITRAL’s Project for a Model Law on Commercial International Arbitration, ICCA Congress Series No. 2, Interim Meeting Lausanne (1984).

4 PROOF: FACT AND LAW

A clear distinction is made between fact and law. A claim, whether relating to jurisdiction or merits, generally relies on facts and rules or principles of law in order to be sustained. The burden of proof is applicable only to the facts underlying a claim. The law is deemed to be known by the tribunal: iura novit curia. In the Brazilian Loans Case the PCIJ stated: The Court . . . is a tribunal of international law, and . . . in this capacity, is deemed to know what this law is.1

Recognition was given to a well-known principle of judicial procedure common to national systems of law. Questions of law, in contrast to questions of fact, need not be raised by the parties. The Court can and must examine them proprio motu. In the International Commission of the River Oder Case the Polish government did not raise the contention that the 1

[1929], PCIJ Series A, Nos. 20/21 at p. 124.

Proof: Fact and Law

51

Barcelona Convention had not been ratified by Poland until the oral proceedings. The six governments who were the adversary parties in the case argued that the Polish claim should be rejected in limine, because it had been submitted at such a late stage of the proceedings. The Court dismissed that objection as untenable stating that: The fact that Poland had not ratified the Barcelona Convention not being contested, it is evident that the matter is purely one of law such as the Court should examine ex officio.2

The tribunal must ascertain the law deriving from the legal system of which it is the organ (i.e., public international law) and apply it in settling the dispute. This is so whether the parties raise and address the issue of the applicable law. The tribunal is not limited in finding and applying the law by the contentions submitted by the parties. In the Lotus Case, in ascertaining whether there was a rule of international law precluding Turkey from instituting a prosecution against an officer of a French ship, the PCIJ expressly stated that “In the fulfillment of its task of itself ascertaining what the international law is, it has not confined itself to a consideration of the arguments put forward”.3 While the tribunal is without a doubt under an obligation to recognize and apply the law, it is not bound by the arguments of the parties in regard to it.4 In the Free Zones Case the PCIJ clearly stated on this issue: From a general point of view, it cannot lightly be admitted that the Court, whose function it is to declare the law, can be called upon to choose between two or more constructions determined beforehand by the Parties, none of which may correspond to the opinion

2

[1929], PCIJ Series A, No. 28 at pp. 18–19. [1927], PCIJ Series A, No. 10 at p. 31. 4 The Colleance Case (1929), 9 T.A.M. at p. 221. See also the dissenting opinion of Judge Winiarski in the Corfu Channel Case (Merits), 1949 ICJ Reports at pp. 51ff. The dissent was not on this point of law. 3

52

Chapter 4. Proof: Fact and Law at which it may arrive. Unless otherwise expressly provided, it must be presumed that the Court enjoys the freedom which normally appertains to it, and that it is able, if such is its opinion, not only to accept one or other of the two propositions, but also to reject them both.5

In the Asylum Case the parties, in the oral arguments, submitted views on the law differing from the views expressed in documents filed earlier. The ICJ said: The Court, whose duty it is to apply international law in deciding the present case, cannot attach decisive importance to any of these documents.6

The principle, iura novit curia, was more recently explained by the ICJ in the Fisheries Jurisdiction Cases. The Court said: The Court . . ., as an international judicial organ, is deemed to take judicial notice of international law, and is therefore required in a case falling under Article 53 of the Statute, as in any other case, to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court.7

The principle was again referred to and approved by the Court in the Nicaragua Case (Merits) where it stated: For the purpose of deciding whether the claim is well founded in law, the principle jura novit curia signifies that the Court is not

5

[1932], PCIJ Series A/B at p.138. See also the Chorzów Factory Case (Interpretation) [1927], PCIJ Series A at pp. 15–16. 6 1950 ICJ Reports at p. 278. 7 There were two cases, UK v. Iceland and FRG v. Iceland: 1974 ICJ Reports at p. 9 and 1974 ICJ Reports at p. 181.

Proof: Fact and Law

53

solely dependent on the argument of the parties before it with respect to the applicable law (cf. Lotus, PCIJ, Series A, No. 10, p. 31), so that the absence of one party has less impact.8

In a dissenting opinion in the Corfu Channel Case (Merits), but not dissenting on this point, Judge Azevedo stated that, while the parties may agree on the facts and, thus, determine them by agreement for the Court, an agreement on the law to be applied would be “quite inadmissible”. 9 On the other hand, express agreements between parties do in certain circumstances constitute the law between the parties, in so far as they are relevant to the case, and they form part of the law which the judge deciding a dispute between the parties will have to apply. For example, in the British Guiana-Venezuela Boundary Arbitration Treaty of 1897, Article IV stated that “In deciding the matters submitted, the Arbitrators shall . . . be governed by the following rules, which are agreed upon by the High Contracting Parties as Rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the Arbitrators shall determine to be applicable to the case.” Amongst the Rules were “(a) Adverse holding or prescription during a period of fifty years shall make a good title.” Also in the Alabama Arbitration treaty of 1871 Article VI contained an agreement on some rules of neutrality to be applied. Moreover, in general a court must always act in accordance with the terms of the instrument conferring jurisdiction upon it, which could be a direct agreement between the parties.10 However, this is not an exception to the principle iura novit curia. The tribunal must still decide the extent, meaning and effect of the agreement which will from part of the law to be applied. The principle that the tribunal is deemed to know the law applies only in respect of the law of the legal system of which 8

1986 ICJ Reports at 1949 ICJ Reports at 10 See Administrative Mixed Claims Commission 9

p. 24. p. 84. Decision No. II (1923), German-United States Decisions and Opinions at p. 5.

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Chapter 4. Proof: Fact and Law

the tribunal is an organ, i.e., public international law. An international tribunal may have to apply national laws, when circumstances require it to do so. In this case the situation is different. As the PCIJ said in the Brazilian Loans Case, an international tribunal or court is not obliged also to know the municipal law of the various countries. All that can be said in this respect is that the Court may possibly be obliged to obtain knowledge regarding the municipal law which has to be applied. And this it must do, either by means of evidence furnished it by the Parties or by means of any researches which the Court may think fit to undertake or to cause to be undertaken.11

In the German Interests in Polish Upper Silesia Case (Merits) the Court clarified this position further: From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States.12

In short, national laws are treated as facts which are subject to proof in the same way as any other fact.13 In the George W. Cook Case the tribunal, while agreeing with the views of the ICJ in the Brazilian Loans Case, went further, stating that “just as when a foreign law is invoked before a domestic court it must be proved as matters of fact, so domestic law must be proved before an international tribunal – although not necessarily in the form in which proof is made before domestic tribunals, and that an international tribunal receives evidence of the law furnished it by the parties and may itself undertake researches”.14 The tribunal correctly stated that it could itself conduct researches to establish national

11 12 13 14

[1929], PCIJ Series A, Nos. 20/21 at p. 124. [1926], PCIJ Series A, No. 7 at p. 19. See the Heim et Chamant Case (1922), 3 T.A.M. at p. 55. [1930], 4 UNRIAA at p. 663.

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laws and, thus, take judicial notice of them as facts. Moreover, it is not only national law that is treated as fact but the laws of any legal system other than public international law. The so-called “transnational” law, to the extent that it is recognized as existing, would qualify for this description.15 As regards customary international law, whether the customary rule contended for exists may have to be proved to the satisfaction of the tribunal by the particular claimant, although it is a question of law. Certainly in the case of local or regional custom of which judges of international tribunals may not have knowledge the accepted rule is that the party relying on such a custom must prove its existence. In the Asylum Case, where Columbia placed reliance on an alleged regional or local custom peculiar to Latin-American States, the ICJ did limit the application of the principle, iura novit curia, when it decided that the burden of proving the alleged regional custom lay on Columbia. The Court concluded that Columbia had not been able to prove the existence of such a custom, stating that: The party which relies upon a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. The Columbian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to international custom “as evidence of a general practice accepted as law.”16

15

On the subject iura novit curia see, e.g., Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) pp. 299–301; Fitzmaurice, 2 The Law and Procedure of the International Court of Justice (1986) at pp. 531 ff.; J.C. Witenberg, “La théorie des preuves devant les jurisdictions internationals” 56 Hague Recueil (1936) at p. 33. 16 1950 ICJ Reports at pp. 276–7.

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The Court took the same view in the United States Nationals in Morocco Case. There the US relied, inter alia, on custom and usage as a foundation for its consular jurisdiction. The Court held that: In the present case there has not been sufficient evidence to enable the Court to reach a conclusion that a right to exercise consular jurisdiction founded upon custom or usage has been established in such a manner that it has become binding on Morocco.17

But in regard to international custom, the principle, iura novit curia, does apply insofar as international tribunals must apply a general custom, even though it has not been referred to by the parties. As was explained by Judge De Castro in his Separate Opinion in the Fisheries Jurisdiction Cases: International customary law does not need to be proved; it is of a general nature and is based on a general conviction of its validity (opinio iuris). The Court must apply it ex officio; it is its duty to know it as quaestio iuris; iura novit curia.18

At the same time both the PCIJ and the ICJ have asserted that the burden of proving a custom, if necessary, lies on the party relying on its existence.19 This will be the case particularly, where there is some doubt about the existence of the custom. While it is true to say that public international law is for the tribunal to determine, this does not mean that the parties in a case do not have to argue their cases on matters of law and present by forensic means a justification for their views on the law to be applied. That is in the nature of the judicial process. In fact when a tribunal sees fit, it is perfectly in order for it to request a hearing on arguments by the parties on the law. Such argument

17

1952 ICJ Reports at p. 200. 1974 ICJ Reports at p. 79. 19 The Lotus Case (1927), PCIJ Series A, No. 10 at p. 18; the Asylum Case 1950 ICJ Reports at p. 276. 18

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will involve reference to the sources of law which may well include the opinions on legal norms of reputed scholars. In fact in the Housing and Urban Services International, Inc. Case 20 the Iran-US Tribunal did request comments from the parties on complicated questions of international law. Further, in the Nicaragua Case (Merits) the ICJ did state, on this feature of international proceedings, that the views of the parties to a case as to the law applicable to their dispute were very material, particularly when those views were concordant, even though, as the Court admitted, the maxim iura novit curia was applicable and the Court was not bound by the views of the parties.21 The fact that public international law is for the tribunal to determine is relevant to the burden of proof. What the claimant (actor) must prove in order to discharge the burden of proof are only the facts required to satisfy the law as determined and applied by the tribunal. However, the distinction between law and fact is sometimes not recognized even by judges of the ICJ, as in the joint dissenting opinion of Judges Spender and Fitzmaurice in the South-West Africa Cases (Preliminary Objections), where jurisdiction was in issue.22 The answer to the question whether a tribunal has jurisdiction involves questions of both fact and law. Only facts need be proved. The law is for the tribunal to determine. A situation presented to an international tribunal may consist, upon analysis, of both questions of fact and questions of law. In such a case the underlying facts are for the actor to prove, while the law is the province of the tribunal. For example, in the “Grand Prince” Case 23 the ITLOS raised proprio motu matters of jurisdiction. When the issue was raised, albeit by the tribunal, the facts forming the basis of jurisdiction were subject to proof by the relevant party, while what jurisdiction the law prescribed was a matter for the tribunal. 20 21 22 23

(1985), 9 Iran-US CTR at p. 313. 1986 ICJ Reports at p. 25. 1962 ICJ Reports at p. 473. ITLOS Case No. 8 (2001) paras. 62 ff.: see <www.itlos.org>.

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A typical legal question may be cited in a case involving diplomatic protection – is the plaintiff State included in the treaty which is the source of jurisdiction or are tortious claims by the plaintiff State covered by the terms of the treaty? An obvious question of fact also in a case of diplomatic protection is – was the individual who, it is claimed, has the nationality of the plaintiff State born in that State so that he could claim the nationality of that State by birth according to the law of that State? A mixed question of fact and law may arise when a plaintiff State claims that the treaty in issue before the tribunal is the source of jurisdiction applied to that State. Whether the terms of the treaty covered that State – a question of interpretation – would be a question of law for the tribunal. Whether the State had signed and ratified the treaty, so as to become a party to it, would be a question of fact to be proved in this instance by that State as the actor. There may be situations in which the separation of fact from law is difficult. However, the tribunal must make that separation as a judicial exercise. Then the law of evidence would apply to the proof of fact, while establishment of the applicable law would be treated differently.

II GENERAL PRINCIPLES

5 THE PRINCIPLE ACTORI INCUMBIT ONUS PROBANDI

THE ESTABLISHED PRINCIPLE The issue is not whether a burden of proof does or does not exist, because that it does exist is an elementary rule of justice required for a fair trial, but, primarily, who bears that burden and only then, how, the onus should be discharged.1 A general principle which has been recognized in international proceedings, including criminal proceedings, is that onus probandi actori incumbit: that it is for the claimant to prove his claim. As has also been pointed out, this does not mean that it is always for the plaintiff to bear the burden of proof, whether positive or negative, because it is sometimes possible for the burden 1

See, e.g., the Irish Case per Judge Zekia (ECHR), 58 ILR at p. 300. See also on this subject C.F. Amerasinghe, Local Remedies in International Law (2004) pp. 280–5. See also Kazazi, Burden of Proof and Related Issues (1996) pp. 66ff. for a detailed record of much of the international case law on the established principle, and particularly that of the Iran-US Claims Tribunal.

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Chapter 5. The Principle Actori Incumbit Onus Probandi

to rest on the defendant to prove relevant contentions, inter alia, in accordance with the maxim reus in exceptione fit actor. Hence, the general principle, if there is one, is that the burden of proof lies on him who asserts a proposition.2 Thus, since the party who makes the allegation must prove his case, it depends on how in a litigation the propositions of law are formulated, with the consequence that the procedural burden of proof may actually shift during the process of the trial.3 It is also important to realize that it is not how the plaintiff formulates his claim, or how the respondent formulates his claim, or how the respondent formulates his defence, that will determine how the burden of proof is divided, but that what matters is how the law interprets the claim and the defence or the exception; this will be the deciding factor. That the general principle of law onus probandi actori incumbit is recognized by international courts and tribunals is not to be doubted, because there are several decisions in which the principle has been applied. Thus, in the “Queen” Case it was held that: One must follow, as a general rule of solutions, the principle of jurisprudence, accepted by the law of all countries, that it is for the claimant to make the proof of his claim.4

This was further explained in the Taft Case as meaning that, on the basis of evidence taken as a whole, the burden rests on the 2

“Actor” is the Latin derived from the word “agere” which meant in regard to law “to make a case” or “to plead”, as in causam agere or rem agere: see Lewis and Short, Latin Dictionary (1948). See Ripert “Les règles du droit civil applicables aux rapports internationaux”, 44 Hague Recueil (1933–II) at pp. 646–7; Witenberg, “La théorie des preuves devant les juridictions internationales”, 56 Hague Recueil (1936–II) at pp. 41–2; Sandifer, Evidence before International Tribunals (1975), pp. 92–3, 97–8; Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) p. 332. See also On a Matter of Diverted Cargoes (1955) (Greece v. GB), 22 ILR at p. 825. Although criminal proceedings as such are not specifically referred to in this chapter what is stated there applies in general to them as well. 3 Sandifer, op. cit. note 2 p. 92. 4 [1872] (Brazil v. Sweden/Norway), de La Pradelle-Politis, 2 RAI at p. 708 (translation).

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claimant to prove to the satisfaction of the court or tribunal what he asserts, when the tribunal said: Weighing the evidence as a whole . . ., the claimants have failed to discharge the burden resting upon them to prove that the Avon was lost through an act of war.5

In the Heathrow User Charges Case the principle actori incumbit onus probandi was accepted for the arbitration without objection.6 In Salle the WBAT explained what was required of the parties in respect of the production of evidence and adverted to its function of determining whether the plaintiff’s allegations had been proved, while not denying that the burden of proof, therefore, lay on the plaintiff who made the allegations.7 Some doubt was cast upon the existence and application of the general principle of law derived from national law, by which the burden of proof was, in the sense described, laid upon the party who was the actor, by the statement made in the Parker Case by the Mexican-US General Claims Commission that: The Commission expressly decides that municipal restrictive rules of adjective law or of evidence cannot be here introduced and given effect by clothing them in such phrases as ‘universal principles of law’, or ‘the general theory of law’, and the like. On the contrary, the greatest liberality will obtain in the admission of evidence before this Commission with a view of discovering the whole truth with respect to each claim submitted . . . As an international tribunal, the Commission denies the existence in international procedure of rules governing the burden of proof borrowed from municipal procedure.8

5

[1926] (USA v. Germany), German-US MCC, Decisions and Opinions at p. 805. 6 [1992], 102 ILR p. 216. 7 [1983, Part I], Decision No. 10 at pp. 14–15. 8 [1926] (USA v. Mexico), 4 UNRIAA at p. 39.

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But, as is shown by another passage in the same judgment, the tribunal was referring to another aspect of proof than the principle onus probandi actori incumbit. Immediately after stating the above the tribunal said: On the contrary, it holds that it is the duty of the respective Agencies to co-operate in searching out and presenting to this tribunal all facts throwing any light on the merits of the claim presented.9

Thus, there was really no denial of the general principle onus probandi actori incumbit. From the context of this passage, it was clear that the Commission used the term “burden of proof” in the sense of a duty to produce evidence, and to disclose the facts of the case and that the term was used in a different sense when it was asked on whom the burden of proof fell, or when it was said that the burden of proof rested upon this or the other party.10 It appears that the tribunal not only subscribed to the general principle of law relating to the burden of proof stricto sensu but went further in interpreting the implications of the principle to mean that prima facie evidence adduced by the proponent may be sufficient in certain circumstances when the allegations, if unfounded, could easily be shown not to have been proved by the opposing party. Thus, the tribunal said: The Commission denies the ‘right’ of the respondent merely to wait in silence in cases where it is reasonable that it should speak . . . On the other hand, the Commission rejects the contention that evidence put forward by the claimant and not rebutted by the respondent must necessarily be considered as conclusive. But, when the claimant has established a prima facie case and the respondent has afforded no evidence in rebuttal the latter may not insist that the former pile up evidence to establish its allegations beyond a reasonable doubt without pointing out some reason for doubting. While ordinarily it is encumbent upon the party who alleges a fact to introduce evidence to establish it, yet before this 9 10

Ibid. at p. 40. See Cheng, op. cit. note 2, p. 328.


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Commission this rule does not relieve the respondent from its obligation to lay before the Commission all evidence within its possession to establish the truth, whatever it may be.11

Therefore, the tribunal recognized the general principle of law relating to the burden of proof, but also used the term in a sense different from its accepted meaning. It also went further in maintaining that prima facie evidence produced by the proponent could sometimes result in a decision in his favour. International courts have also implicitly made the point that the plaintiff in a case may not always be the party upon whom the burden of proof is laid. Thus, in the Rights of Nationals of the USA in Morocco Case 12 the USA was in reality in the position of the claimant, in that it claimed special rights and privileges in the French Zone of Morocco, alleging that the Moroccan authorities had violated those rights. France was in fact in the position of the defendant, in denying the existence of those rights and privileges and any violation of them. However, in order to bring the issue before the ICJ, France took the position of the plaintiff by filing an action with the Court. The USA consequently argued that the burden of proof was upon France to prove its case. This was not, however, the view of the Court. The Court examined each of the US claims made in response to the claims of the French government and rejected them to the extent to which they were not supported by treaties which the USA was entitled to invoke against Morocco. Further, because the USA also invoked custom and usage as a basis for some of its rights and privileges, the court specifically laid the burden of proof on the USA and rejected its allegations on the ground that it had failed to prove a custom binding upon Morocco. In regard to these allegations, which were intended to establish the special position of the USA, the Court treated the USA as the actor.13 11

[1926] (USA v. Mexico), 4 UNRIAA at pp. 39–40. 1952 ICJ Reports p. 176. 13 See also Cheng, “Rights of the United States Nationals in the French Zone of Morocco,” 2 ICLQ (1953) at p. 354. 12

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Thus, it is not the formal position of the parties in the litigation that necessarily determines the burden of proof. It is rather what the law requires to be proved that will ultimately determine who must prove it. The general principle prevails that each party is under the obligation to produce whatever evidence is accessible to it and under its control. As was said in the Parker Case, “The parties before this Commission are sovereign nations who are in honour bound to make full disclosures of the facts in each case so far as such facts are within their knowledge, or can reasonably be ascertained by them”.14 This does not really affect the incidence or distribution of the burden of proof. On the other hand, there may be circumstances, although only rarely, where the burden of proof lies on each party to establish the arguments upon which it bases its claim, if it wishes to succeed. This is usually the situation in cases concerning sovereignty over territory. Thus, in the Island of Palmas Case the issue was which of the parties had sovereignty over the island. The tribunal took the view that “Each party is called upon to establish the arguments on which it relies in support of its claim to sovereignty over the object in dispute”.15 In the Lighthouses Arbitration the PCA applied the principle that the burden of proof must be reasonably shared.16 Thus, it is possible not only that the respondent in an action may bear the burden of proof but that the burden may be appropriately divided.17 The conclusion to be reached is that, although the plaintiff in an action, as claimant, would generally bear the burden of proving his claims, the respondent may also have to share in that burden, depending on whether it is making a claim, in which case 14

[1926] (USA v. Mexico), 4 UNRIAA at p. 39. See also the Georges Pinson Case [1928] (France v. Mexico), 5 UNRIAA at p. 413. 15 [1928] (Netherlands v. USA), 2 UNRIAA at p. 837. See also the Minquiers and Ecréhos Case, 1953 ICJ Reports at pp. 52 and 67, and further below Chapter 13. 16 [1956] (France v. Greece), 23 ILR at p. 679. 17 For the approach of the ICJ in certain kinds of cases, see further below, Chapter 13.


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it assumes the position of actor, or is in the position of making an assertion which is intended to disprove the case of the plaintiff. The burden of proof may, thus, be divided.18 It will suffice to illustrate the principles referred to above by further reference to international cases. (a) World Court cases There are several cases of relevance decided by the PCIJ and ICJ. Apart from the Rights of Nationals of the USA in Morocco Case discussed above, there are a few important cases. In the Eastern Greenland Case 19 a claim was instituted by the Danish Government against the Norwegian government concerning the legal status of an area of Eastern Greenland which both Denmark and Norway claimed to be subject to their territorial sovereignty. The Norwegian Government contended that in the treaties relied upon by Denmark as evidence of the willingness of other States to recognize her sovereignty over Greenland, as well as in the legislative and administrative acts of Denmark in the 18th century relating to Greenland, the word “Greenland” had not been used in a geographical sense. The Court held that the burden of proof in regard to the matter was on Norway, regardless of the fact that Norway was in effect the respondent in the case. According to the Court: This is a point as to which the burden of proof lies on Norway. The geographical meaning of the word ‘Greenland,’ i.e., the name which is habitually used in maps to denominate the whole island,

18

On the burden of proof in the European Commission and Court of Human Rights see Frowein, “Fact-Finding by the European Commission of Human Rights” in Lillich (ed.), Fact-Finding by International Tribunals (1991) at pp. 291–7. See also for the IACHR Buergenthal, “Judicial FactFinding: the Inter-American Human Rights Court,” in Lillich (ed.), ibid. at pp. 267 ff. For IATS see C.F. Amerasinghe, 1 Law of the International Civil Service (1994) pp. 611 ff. The applicable principles in these institutions are basically the same as outlined here. 19 PCIJ Series A/B No. 53 (1933).

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Chapter 5. The Principle Actori Incumbit Onus Probandi must be regarded as the ordinary meaning of the word. If is alleged by one of the Parties that some unusual or exceptional meaning is to be attributed to it, it lies on that Party to establish its contention. In the opinion of the Court, Norway has not succeeded in establishing her contention.20

and again: The natural meaning of the term is its geographical meaning as shown in the maps. If it is argued on behalf of Norway that these treaties use the term ‘Greenland’ in some special sense, it is for her to establish it . . .21

The Mavrommatis Concessions Case 22 was a suit arising out of the alleged refusal on the part of the Government of Palestine and consequently also Great Britain, in its capacity as Mandatory Power for Palestine since the year 1921, to recognize to their full extent the rights acquired be Mavrommatis, a Greek subject, under contracts and agreements concluded by him with the Ottoman authorities, in regard to concessions for certain public works to be constructed in Palestine. The claimant, Greece, requested the Court, inter alia, to give judgment to the effect that the respondent, Great Britain, should make reparations for the loss. The main contention of the Greek Government on the merits was that expropriation had taken place but the compensation due thereof had not been paid to Mavrommatis. The Court examined the evidence produced by the parties and, while discussing the different issues in the case, indicated that the party who had raised an issue was the one on whom the burden of proof would fall. On the issue whether or not Mavrommatis’ concessions had been annulled, after denial thereof by the respondent, the Court concluded that there was no proof that such annulment had really taken place, and it thus rejected the plaintiff’s argument. On the

20 21 22

Ibid. at p. 49. Ibid. PCIJ Series A No. 5 (1925).


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questions whether, as alleged by the plaintiff, the execution of the concessions had already been rendered impossible for Mavrommatis and whether this was by reason of the concession promised to Rutenburg, the Court found the burden of proof to be on the plaintiff on both counts. The Court said: it would have been incumbent on the Greek Government to prove that, since that time, circumstances have changed and that that which would have been possible for M. Mavrommatis at the beginning of 1924 subsequently became impossible, and, moreover, did so in consequence of the concession promised to M. Rutenburg . . .23

On the other hand, in the same case, with respect to the issue of the validity of the concessions granted to Mavrommatis for certain works to be carried out in Jerusalem, which was raised by the respondent, the court found that the burden of proof was on the respondent in the case: It is not contended by the Respondent that the Ottoman authorities ever treated the Jerusalem concessions as null, or that they took any steps to annul them; on the contrary, the validity of the contracts was taken for granted in all that passed between the authorities and M. Mavrommatis after the grant of the concessions. In these circumstances, the Court considers that it is for the Respondent to prove that the concessions are not valid, though it is indisputable that the reference to the Ottoman nationality of the beneficiary in the concessions is incorrect.24

The ICJ also has consistently applied the principle, actori onus probandi incumbit, as explained above. This application has covered all cases whether brought by special agreement or by application.25 In the Asylum Case the applicant invoked a regional

23

Ibid. at p. 43. Ibid. at p. 29. See also the German Interests in Upper Silesia Cases, PCIJ Series A Nos. 7 and 13. 25 The US Nationals in Morocco Case has been discussed above. 24

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customary law. The Court said that “the Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party”.26 In the Nottebohm Case (Second Phase),27 where the respondent challenged the admissibility of the claim, the Court apparently regarded the applicant as being under the duty of proving that it has a title to seize the Court. While the respondent raised the objection, because the ICJ is a court of limited jurisdiction, the effect in the circumstances of the objection was to render the plaintiff the actor in regard to the claim that the Court had jurisdiction. In the Corfu Channel Case (Merits) 28 the UK was subjected to the burden of proof as the plaintiff. In the Minquiers and Ecrehos Case 29 both parties were subject to an equal burden of proof, the Court being called upon to appraise the relative strength of the opposing claims. Each one was regarded as asserting title. In the Frontier Land Case,30 the party alleging a mistake in a document was under the duty to establish the intention of those who drew up the document and that this intention was defeated in the transcription of the document. In the Arbitral Award of the King of Spain Case,31 the Court did not permit a distribution of the burden of proof that the person who had given the award was invested with the powers of an arbitrator, in fact establishing the situation by reference to the record. The implication was that the claimant bore the burden as the actor. In the South-West Africa Cases (Preliminary Objections) 32 the Court established the factual existence of the dispute and that it could not be settled by negotiations also by reference to the pleadings, without referring to the burden of proof, the assumption being that the claimant bore the burden. In the Barcelona Traction Case (Preliminary

26 27 28 29 30 31 32

1950 1955 1947 1953 1959 1960 1962

ICJ ICJ ICJ ICJ ICJ ICJ ICJ

Reports Reports Reports Reports Reports Reports Reports

p. p. p. p. p. p. p.

270. 4. 4. 47. 209. 183. 319.


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Objections) 33 the Court placed a heavy onus on Spain to establish the real meaning of some diplomatic exchanges which had preceded the withdrawal of the first proceedings in that case, and dismissed the preliminary objection when that burden of proof could not be discharged. Spain was the respondent but raised the objection and, therefore, became the actor. In the Frontier Dispute Case the Court said: In these circumstances, it is clear that the Court cannot resolve the problem by means of any of its powers in the matter of evidence under Articles 48, 49 and 50 of its Statute. Nor can the solution be looked for in a systematic application of the rule concerning the burden of proof. For example, in respect of certain villages of which it is necessary to determine the administrative situation between 1927 and 1935, Mali claims that it is for Burkina Faso to demonstrate the Voltan character of the villages during that period. While it is true that ‘ultimately . . . it is the litigant seeking to establish a fact who bears the burden of proving it’ (Military and Paramilitary Activities in and against Nicaragua, ICJ Reports 1984, p. 437, para. 101), it is also for Mali to establish the facts underlying its claims, that is, to demonstrate that the villages were Sudanese at that time.34

As pointed out in the above case, the Court had stated in the Nicaragua Case that the litigant who seeks to establish a fact bears the burden of proving it.35 33

1964 ICJ Reports p. 6. 1986 ICJ Reports at pp. 587 ff. See also on this case P.-M. Dupuy, “Fact-finding in the Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali)”, in Lillich (ed.), op. cit. note 18 p. 81. The practice of the ICJ is also discussed rather cursorily in Franck, “Fact-Finding in the I.C.J.”, in Lillich (ed.), ibid. p. 21, and Highet, “Evidence, The Chamber and the ELSI Case”, in Lillich (ed.), ibid. p. 33. Also see Kazazi, op. cit. note 1 pp. 83 ff. See further below, Chapter 13. 35 1984 ICJ Reports at p. 437. More recently, in the Avena Case the ICJ held that Mexico, claiming that the convicted individuals had Mexican nationality, had discharged its burden of proof as the actor, while the US which claimed that the convicted had US nationality had not discharged its burden 34

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The ICJ cases illustrate the application of the basic principle in relation to the circumstances of cases. While the approach of the court may be regarded as flexible and adapted to circumstances, that flexibility has not led to the corruption of the principle or the disregard of the principle. Even where the Court has confined itself to the record of the case, the basic principle was impliedly applied. (b) Other international tribunal cases There are also several cases decided by other international tribunals, such as claims commissions 36 and arbitral tribunals, which illustrate the application of the principle. The practice of some ad hoc arbitral tribunals may be addressed here. The two most significant individual arbitrations for this purpose are the Diverted Cargoes Case (Greece v. GB)37 and the Ambatielos Claim (Greece v. UK).38 In the former case the issue was the applicable exchange rate. The arbitrator stating, as regards the burden of proof, that it fell upon the state which claimed from another state the performance of an obligation to establish the existence and the amount of the claim, said: Specifically, when there is a contractual claim for a sum of money, the claimant State must satisfy the judge or international arbitrator of proof as the actor in regard to that claim: 2004 ICJ Reports para. 56: see <www.icj-cij.org>. It is clear, inter alia, that the Court implicitly approved the principle onus probandi actor incumbit. 36 For the practice of some twentieth century claims commissions see, e.g., the Batchelder Claim (USA v. Italy – 1954), 22 ILR p. 864, the Graneiro Claim (USA v. Italy – 1959), 30 ILR p. 451, the French State Railway Claim (France v. Italy – 1953), 20 ILR p. 481, the Grant-Smith Claim (GB v. Italy – 1952), 22 ILR p. 967, the Melczer Mining Co. Claim (USA v. Mexico – 1929), 4 UNRIAA p. 481, the Mexico City Bombardment Claims (GB v. Mexico – 1930), 5 UNRIAA p. 76, the Cortello Claim (USA v. Mexico – 1929), 4 UNRIAA p. 496, the Pomeroy’s El Paso Transfer Co. Claim (USA v. Mexico – 1930), 4 UNRIAA p. 551. The well-known Parker Case has been discussed above. See also Ralston, Law and Procedure of International Tribunals (1926) p. 220. 37 (1950), 22 ILR p. 820. 38 (Greece v. U.K. – 1956), 12 UNRIAA p. 83, and 23 ILR p. 334.


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that the currency in which it demands payment is really that which was provided for in the agreement and, also prove that a money of account, different from the money of payment, should by virtue of the agreement determine the amount of the claim, that is, the quantity of the currency of payment with which the debtor State must credit the creditor so as to discharge its debt.39

In the latter case the arbitrators were faced with a difficult situation, because the two parties made two separate assertions regarding local remedies. On the one hand, the tribunal held that in order to succeed in its contention that the proceedings were inadmissible because local remedies had not been exhausted, the respondent “must prove the existence, in its system of international law, of remedies which have not been used.”40 Thus, the respondent bore the burden of proof both in regard to the existence of remedies and their non-use. The applicant then contended that the existing local remedies were ineffective or futile. In regard to that contention the tribunal did not address the question of the burden of proof specifically because even on the assumption that its statement of facts was true it had failed to establish that the remedies were ineffective. In effect the tribunal cast the burden of proof on the party claiming the ineffectiveness of remedies because in the circumstances that party had to fail because it admitted facts which proved that its contention could not be upheld. The view that the onus probandi in a case where the applicant asserts that the remedy was ineffective is on the applicant to prove ineffectiveness and not on the respondent to prove effectiveness is supported by the decision of the ECHR in Application No. 299/57.41 There are some cases of significance which were decided by the Iran-US Claims Tribunal. It should be pointed out at the outset, that, unlike the case of other tribunals, the Rules of the

39

22 ILR at p. 825. The tribunal made it quite clear that a mere allegation of a breach of obligation by the claimant was inadequate, it being necessary that the existence and extent of the obligation be proved: ibid. 40 23 ILR at p. 334. 41 (Greece v. U.K. – 1957), 25 ILR p. 27 at p. 30.

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Tribunal in Article 24(1) state clearly the principle actori incumbit onus probandi: “Each party shall have the burden of proving the facts relied on to support his claim or his defence.” The tribunal in Decision No. DEC. 45–A20–FT pointed out that the rule conformed to “generally accepted principles of international arbitration practice” and contributed to “the effective resolution of cases”.42 In several cases the tribunal has applied the principle in respect of the claimant to conclude that the latter had not discharged its burden of proof.43 In regard to the nationality of claims rule the tribunal has held that, once the objection of nonnationality is raised by the respondent, it is for the claimant to establish its nationality because nationality is a required basis for the tribunal’s jurisdiction established by the basic Claims Settlement Declaration and the failure to prove nationality has resulted in the dismissal of the claim.44 There are circumstances in which the tribunal has found that the respondent bears the burden of proof in regard to claims made in its defence. Thus, in the R.N. Pomeroy et al. Case the tribunal rejected the claim made in defence stating: The Navy has not produced any evidence in support of its contention that Pomeroy Corporation breached its duties under the Contract by failing to supply qualified personnel or failing to point out defects in the work of other contractors. By failing to establish even a prima facie case for contract breach, the navy has not met its burden of proof on this defence, and it must be rejected.45

42

(1986), 11 Iran-US CTR at p. 274. See, e.g., the H.A. Spaulding, Inc. Case (1986), 10 ibid. p. 22, the CMI International Inc. Case (1983), 4 ibid. p. 263. 44 See, e.g., the Leli Tour Case (1989), 21 ibid. p. 25, the Creditcorp International, Inc. et al. Case (1989), 23 ibid. p. 265, George W. Drucker Jr. Case (1988), 19 ibid. p. 257. 45 (1983), 2 ibid. at p. 382. See also the Ronald Stuart Koehler Case (1986), 10 ibid. p. 337, R.J. Reynolds Tobacco Company Case (1984), 7 ibid. p. 181. Other cases in which tribunals other than the Iran-US Claims Tribunal required evidence to be produced by the actor, sometimes when such evidence was under his control, but in any case to support allegations or contentions, 43

Incidence of the Burden of Proof in General INCIDENCE

OF THE

BURDEN

OF

PROOF

75 IN

GENERAL

It is an accepted general rule that international tribunals have the power to determine which party has the burden of proof in a given situation, i.e., which party is the actor. This determination usually takes place at the end of the proceedings, in the process of evaluating the evidence, but it could happen, if necessary, earlier. This is an inherent power which is essential for the proper functioning of international tribunals. The power, being inherent, need not be mentioned in the Statute or Rules of a tribunal. The exercise of the power may result in the tribunal reformulating claims so as to identify the proper actor. Sometimes reference is made, generally but not always indirectly, to the power in Statutes and Rules. Then the question arises what effect such a mention has. For instance, Article 19 of the Rules of Arbitration and Conciliation for Settlement of International Disputes Between Two Parties of which Only One is a State (1962) of the PCA provided: The Tribunal shall determine the procedure and the duration of the proceedings. It shall be free to designate the party on which the burden of proof lies and likewise to evaluate the evidence produced.

Such provisions merely affirm the inherent power of the tribunals and do not take away from such power nor do they imply that tribunals are authorized to ignore established and widely recognized rules of the burden of proof and determine arbitrarily the actor in regard to the burden of proof. Technically, parties may agree freely on the rules for determination of the incidence of the burden of proof and sometimes they make specific reference to such determination in the compromis or their special agreement, but unless it is absolutely clear from are the Drielsma Case (1970), Entscheidungen und Gutachten (1970) at p. 5; the Benvenuti and Bonfant Case (1980), 67 ILR at p. 370; the “Queen” Case (1872), 2 RAI at p. 708 (“reclamant de faire la preuve de sa pretention”); the Comte du Dundonald Case (1873), La Fontaine at p. 189.

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the agreement it cannot be assumed that they authorize the tribunal to ignore the generally accepted rules of the burden of proof. The practice has been that, where the parties to an international litigation have included an agreement with respect to their pleadings in the compromis or in the rules of procedure of a tribunal, they have retained the normal rules of the incidence of the burden of proof. Rather than changing the rules of the burden of proof, the parties have usually emphasized that their agreement is without prejudice to the question of the burden of proof. Thus, Article V of the Special Agreement, dated 22 July 1971, between Argentina and Chile states, “The order in which the questions appear in this Agreement . . . shall be without prejudice to any burden of proof.”46 Article II of the Special Agreement, dated 7 March 1957, between the Government of Belgium and the Government of the Netherlands states, “Without prejudice to any question as to the burden of proof, the Contracting Parties agree . . .”47 Article VI of the Special Agreement, dated 29 March 1979, between the Government of the USA and the Government of Canada provides that the procedure with regard to the written pleadings is to be “without prejudice to any question as to the burden of proof.”48 In the Frontier Dispute Case, where the parties had agreed to a specific procedure for their pleadings “without prejudice to any question as to the burden of proof”, the ICJ (a Chamber) said with respect to the parties’ agreement: The Special Agreement of 20 October 1983 by which the case was brought before the Court deals with the question of the burden of proof only in order to make it clear that it is not prejudged by the written procedure there provided for (Art. 3, para. 2).49

46

See Beagle Channel Arbitration (1972), 52 ILR at p. 109. Case Concerning Sovereignty over Certain Frontier Land, 1959 ICJ Reports at p. 211. 48 Gulf of Maine Case, 1984 ICJ Reports at p. 254. 49 1986 ICJ Reports at p. 588. 47

Incidence of the Burden of Proof in General

77

Such provisions do not enlarge or limit the authority of tribunals with respect to allocating the burden of proof. If the parties want the issue of the incidence of the burden of proof to be treated in a different way, they must clearly indicate that desire. Failing that, a clause only emphasizes the inherent power and the duty of the tribunal to deal with the issue of the incidence of the burden of proof in accordance with generally accepted rules. While a general reference in the compromis to the power of the tribunal to determine the actor does not per se authorize the tribunal to deviate from the generally accepted rules, those rules would permit that factors, such as the circumstances of a case, the nature of the tribunal and the power of tribunals to acquire evidence proprio motu, affect the incidence of the burden of proof. It is in this sense that the ECHR stated in the Irish Case: The Court will not rely on the concept that the burden of proof is borne by one or other of the two governments concerned. In the case referred to it, the Court examines all the material before it, whether originating from the Commission, the Parties or other sources, and, if necessary, obtains material proprio motu.50

The Court clearly referred to the burden of proof as an element of providing evidence which both parties needed to do upon which evidence the case would be decided, presumably in terms of whether the case had been proved, on the basis that one party or the other had to prove its allegations. There was no denial that the burden of proof in its primary sense remained. In the Salle Case the WBAT similarly insisted on the presentation of evidence (by both parties) without denying the principle actori incumbit onus probandi. The tribunal said: 34. The applicant maintains that the Respondent carries the burden of proof to establish that proper action has been taken. The Respondent relies, so he argues, on self-serving statements of supervisors, without any corroboration or record whatsoever as to the particulars of the guidance given. 50

(1978), 58 ILR at pp. 263–4.

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Chapter 5. The Principle Actori Incumbit Onus Probandi 35. The Tribunal does not regard the problem as one of a burden of proof. It is incumbent upon both the Applicant and the Respondent to provide the Tribunal with all the available evidence in order to allow it to pass judgment upon the Applicant’s allegations of nonobservance of his conditions of employment; and it is for the Tribunal to determine, in the light of the evidence made available to it, whether the Applicant’s conditions of employment have, or have not, been observed.51

Such statements as this are not denials of the existence of a burden of proof or of the principle actori incumbit onus probandi. In the Minquiers and Ecrehos Case, where the parties had agreed upon the order of the written pleadings in the compromis but had expressly stated that this was “without prejudice to any question as to the burden of proof,” the ICJ held that the incidence of the burden of proof was clearly “a question . . . for the Court to decide” and concluded that “each party [had] to prove its alleged title and the facts upon which it [relied].”52 The realities and nature of the case are relevant to determining which party is the actor in respect of a particular allegation or claim or particular allegations or claims.53 An example of the allocation of the burden of proof as between parties, by dividing it, is discussed in the next section.

DIVISION

OF THE

BURDEN

OF

PROOF

There are circumstances in which the burden of proof may be divided in effect. One example is discussed here. In relation to the exhaustion of local remedies, the application of the principle onus probandi actori incumbit has resulted in the division of the burden of proof. The difficulty is to establish exactly how the

51

WBAT Reports [1983, Part 1], Decision No. 10 at pp. 14–15. 1953 ICJ Reports at p. 52. On this case see further Chapter 13 herein. 53 For support for the view see Fitzmaurice, 2 The Law and Procedure of the International Court of Justice (1986) pp. 575 ff. 52

Division of the Burden of Proof

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burden of proof is divided and consequently which party is to be regarded as the actor in respect of the claims made, which involves deciding what claims are being made by each party. It is not difficult to appreciate that, according to the basic principle, the burden of proof will be assumed by the respective parties depending on how their respective claims in regard to the exhaustion of local remedies are interpreted. Thus, for example, if the claim made by the respondent is regarded as being that effective local remedies had not been exhausted, when there was no direct injury and there was a jurisdictional connection, it will be for the respondent to prove not only that some local remedies existed but also that they were effective, and had not been exhausted in circumstances in which there was no direct injury and there was the appropriate jurisdictional connection. If, on the other hand, the claim of the respondent is regarded as being that there were some remedies which had not been exhausted, while the plaintiff counterclaims that such remedies were not effective, or that the circumstances revealed a direct injury or the absence of a jurisdictional connection, the burden of proof will clearly be divided. The plaintiff would have to prove to the satisfaction of the court or tribunal that remedies existed which had not been fully exhausted, while the respondent would bear the burden of proving that these remedies were not effective, or that there was a direct injury, or that there was no jurisdictional connection. What is important at this point, moreover, is to recognize also that it is not necessarily the party or parties that determine what the claims are by the manner in which the claims may be formulated. Rather, it is the law that attributes the particular claims made to the parties, so that the burden of proof laid upon each one will be identified accordingly. While there are not many decided cases which have faced the specific problems encountered in regard to the burden of proof in the application of the rule of local remedies, some do exist in which the problems have been at least adverted to, so that it is possible to discuss the trends which have been followed in respect of the burden of proof. In general, while it has been assumed that there is a prima facie distribution of the burden of proof, as was stated by Judge

80


Lauterpacht in the Norwegian Loans Case,54 there is an initial onus on the respondent who raises the objection that local remedies have not been exhausted to “prove the existence, in its system of internal law, of remedies which have not been used.”55 The division of the burden of proof was implicitly acknowledged in practice by the PCIJ in the Panavezys-Saldutiskis Railway Case.56 In that case the respondent, Lithuania, raised a preliminary objection based on the non-exhaustion of local remedies. The plaintiff, Estonia, replied that the Lithuanian courts could not entertain a suit and that in any case, on one particular point, the highest court of Lithuania had already given an adverse decision. The PCIJ took the view that, if either of those claims could be substantiated, the Lithuanian objection would fail,57 thus recognizing that the plaintiff was bound to prove that the remedies available were not effective. The Court made it quite clear in doing so that, until it had been clearly shown that the Lithuanian courts had no jurisdiction in the matter, the Court could not accept the Estonian contention that the local remedies rule did not apply in the case, because there were no effective remedies available.58 On the same lines, in the Aerial Incident Case, counsel for the respondent, Bulgaria, argued that once the respondent had shown that local Bulgarian courts were largely open and accessible to aliens, it was for the plaintiff to prove that the existing remedies were ineffective, or that they were non existent.59 In 54

1957 ICJ Reports at p. 39. See also the Interhandel Case, ICJ Pleadings (1959) at pp. 562–3, 565–6, the plaintiff’s argument. 55 Ambalielos Claim [1956] (Greece v. UK), 12 UNRIAA at p. 119. This view was endorsed by the ICJ (a Chamber) in the Elettronica Sicula S.p.A. (ELSI) Case, 1989 ICJ Reports at p. 46. 56 [1939], PCIJ Series A/B No. 76 at p. 18. 57 Ibid. 58 Ibid. at p. 19. 59 ICJ Pleadings (1959) at pp. 565–6. The argument was earlier raised that it was sufficient for the respondent to contend that local remedies had not been exhausted for it to be able to claim the benefit of the rule: ibid., at p. 559. However, this formulation cannot be interpreted too literally in the light of the argument made later, referred to above, that the respondent had proved


81

Qatar v. Bahrain the Court regarded the burden of proof as being divided.60 Further refinements in the distribution of the burden of proof were made by Judge Lauterpacht in the Norwegian Loans Case, although the ICJ itself did not deal with the objection raised by the respondent relating to the exhaustion of local remedies. Judge Lauterpacht’s expression of views was prompted by a more fundamental disagreement between the parties on the initial distribution of the burden of proof. The respondent, Norway, who lodged the objection, argued that, while it was the claimant (or actor) in the objection, sa demande est fondée sur une règle de droit international incontestée, en vertu de laquell les recours internes doivent avoir été préalablement épuisés pour que l’action du Gouvernement français devant la Cour soit recevable. Si le Gouvernment français soutient que le principe n’est pas applicable, c’est à lui d’établir la raison pour laquelle il en est ainsi.61

It further stated that: Ce n’est donc pas au Gouvernment norvégien qu’il appartient de prouver que les voies de recours ouvertes aux porteurs français par son droit interne offrent à ces derniers des possibilités suffisantes pour que la règle de l’épuisement préalable ne puisse pas être écartée. C’est au Gouvernment de la République qu’il incomberait de prouver le contraire.62

In the oral argument counsel for Norway emphatically stated: Une fois l’existence des recours internes établie, la règle de l’épuisement préalable devient applicable. Et si l’étât demandeur veut the existence of remedies which resulted in the onus being placed on the plaintiff to prove the non-existence of ineffectiveness of such remedies. 60 2001 ICJ Reports, <www.icj-cij.org>. 61 1 ICJ Pleadings (1957) at p. 280. 62 Ibid. at p. 281.

82

Chapter 5. The Principle Actori Incumbit Onus Probandi échapper aux conséquences de cette règle, c’est à lui qu’il incombe alors de prouver que la règle ne joue pas en raison de l’inefficacité des recours existants.63

The respondent French Government, on the other hand, argued that Ce n’est pas au Gouvernement de la République français de faire la preuve du caractère inutile du recours aux tribunaux norvégiens. Le Gouvernment norvégien est demandeur dans cette exception, il revendique une compétence nationale, et c’est à lui de prouver l’utilité d’un recours à son organisation judiciaire.64

Counsel for France further stated that it was not sufficient for Norway to allege that local tribunals were impartial but that it must prove, in the face of the legislation which had created the situation being complained of, “qu’il y a devant ses tribunaux une possibilité raisonnable de redresser la situation”,65 and that there should be constant cooperation by the parties in the presentation of evidence, because “l’un des principes essentiels est l’obligation des parties de collaborer à la preuve”.66 The principle that there must be cooperation by the parties in the presentation of evidence, as will be seen in the next chapter, has been accepted as a general principle of law. However, presentation of evidence is different from the burden of proof, as already pointed out. The French argument may have gone too far in placing on the respondent the total burden of proving that remedies which were effective had not been exhausted. On the other hand, in the context of the case, there may have been some legitimacy in the French claim that the burden was on the respondent to prove that, in the face of legislation such as was at issue in the case, there was still a reasonable possibility of redress

63 64 65 66

2 ICJ Pleadings (1957) at p. 162. 1 ICJ Pleadings (1957) at p. 184. 2 ICJ Pleadings (1957) at p. 188. Ibid.


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being granted. Judge Lauterpacht in fact supported the latter position, when, while also making some general statements on the burden of proof, he said: However, some prima facie distribution of the burden of proof there must be. This being so, the following seems to be the accurate principle on the subject: (1) as a rule, it is for the plaintiff State to prove that there are no effective remedies to which recourse can be had; (2) no such proof is required, if there exists legislation which on the face of it deprives the private claimant of a remedy; (3) in that case it is for the defendant State to show that, notwithstanding the absence of a remedy, its existence can nevertheless reasonably be assumed; (4) the degree of burden of proof thus to be adduced ought not to be so stringent as to render the proof unduly exacting.67

Judge Lauterpacht, in addition to asserting that, where there was legislation apparently depriving the alien of a remedy, the burden shifted to the respondent, made some points of a general nature, namely that (i) once the preliminary objection is raised, and the respondent has presumably shown that there were some remedies available to the alien, the plaintiff state must then, as a general rule, prove that those remedies were ineffective, although the degree of burden of proof to be adduced must not then be too stringent and (ii) this distribution of the burden of proof was only a prima facie one. It is clear that Judge Lauterpacht not only regarded the accepted division of the burden of proof as being subject to exceptions but was against laying too heavy a burden on the plaintiff state when the burden shifted to it. While the exact distribution of the burden of proof must, as Judge Lauterpacht implied, remain to some extent flexible, although it is certain that the burden is not entirely on one party and that, at least initially, the burden is on the respondent to prove certain facts, there are other elements in a litigation involving the rule of local remedies, which prima facie, at any rate, it 67

1957 ICJ Reports at p. 39.

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is clearly the function of the plaintiff to prove. These include the existence of a direct injury and the absence of a jurisdictional connection. The subject is, however, nebulous at present in certain of its aspects, because it has not been considered judicially with any completeness. Since the burden of proof is a matter pertaining particularly to litigation, the importance of judicial precedent relating to it cannot be underestimated. Significantly, therefore, although text writers agree that there is a distribution of the burden of proof,68 it is neither possible nor desirable to lay down any specific rules for such distribution beyond those already established and referred to above. Because of the special rules which may apply to the exhaustion of procedural remedies it may be useful to consider particularly how the burden of proof may be divided in regard to the exhaustion of discretionary procedural remedies. As has emerged from the earlier discussion, it is apparent that the distribution of the burden of proof in respect of the exhaustion of local remedies in general depends not only on fairness and justice but also to some extent on practical convenience, apart from the formal relevance and applicability of the maxim onus probandi actori incumbit. As regards discretionary procedural remedies, the law would appear to involve several issues. They relate to (i) the existence of the remedy, (ii) the effectiveness of the remedy, (iii) the reasonable conduct of counsel in regard to the use of the remedy, (iv) the comparative effectiveness of any alternative remedy which has been suppressed and (v) the reasonable conduct of counsel in regard to the alternative remedy. While it may be clear that the existence of the remedy must, according to accepted principles, be proved by the respondent, it is not readily appar68

See e.g., Guggenheim, 1 Traité de droit international public (1953) p. 81; Fawcett, “The Exhaustion of Local Remedies: Substance or Procedure?”, 31 BYIL (1954) at p. 458; Sereni, Principi Generali di Diritto e Processo Internzionale (1955) pp. 30, 40, 76–7 and 90; Law, The Local Remedies Rule in International Law (1961) pp. 54–61; Haesler, The Exhaustion of Local Remedies in the Case Law of International Courts and Tribunals (1968) pp. 54–5; Chappez, La Règle de l’épuisement des voies de recours internes (1972) pp. 234–7.


85

ent how the burden of proof should be divided beyond that. In regard to the question relating to the effectiveness of the procedural remedy, if the burden is on the respondent to prove the facts, it must prove that the procedural remedy in issue was an effective one, in other words one which would probably have resulted in a decision which would have satisfied the alien’s complaint. The burden would be on the respondent to adduce sufficient evidence to prove this effectiveness. If it fails to do so, the remedy must be pronounced ineffective. If it adduces evidence which is equally consistent with the effectiveness as with the ineffectiveness of the remedy, it has failed to discharge the onus. If the plaintiff State bears the burden of proof, it must show that the particular procedural element was ineffective in that it would probably not have affected the decision given by the local court. The burden would be on the plaintiff State to adduce sufficient evidence to prove the ineffectiveness of the remedy. If it fails to do so, or if it merely adduces evidence which is consistent with either the effectiveness or ineffectiveness of the remedy, the remedy will be deemed effective and the point will go against the plaintiff State. According to the principles generally established, taken literally, it is for the respondent, having raised the issue as a preliminary objection, merely to prove that the particular procedural measure was available. Then it is for the plaintiff State to adduce evidence and prove that the particular procedural measure was ineffective in so far as it would probably not have affected the local court decision. Although this approach may be satisfactory with reference to other aspects of the rule of exhaustion of local remedies, such as the exhaustion of substantive remedies or appeals, it is doubtful whether it should be rigidly applied to the question of the exhaustion of procedural remedies in the same court. In the case of the exhaustion of local remedies in general, the respondent points to something which by its very nature raises a presumption that it is effective, such as an appeal not resorted to, so that it is not entirely inconsistent to shift the burden of proving the ineffectiveness of the remedy to the plaintiff State.

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In the case of exhaustion of procedural remedies in the same court, however, the alien has already availed himself of proceedings before a judge in relation to a specific issue or specific issues of law and fact. There is no reason to presume, therefore, that, because the respondent points to a procedural measure in the same court which the alien has not used, the alien has failed to conduct his case in the best way possible. The principle omnia rite acta praesumuntur 69 would apply in favour of the alien. In that event the plaintiff State cannot be expected to prove that the remedy referred to was an ineffective one, since that would amount to a denial of that presumption. Hence the burden must lie on the respondent to show that the remedy was not only available but was also effective. Therefore, in the case of procedural measures (remedies), the prima facie distribution of the burden of proof outlined above should not apply to the issue whether the remedy is an effective one. The whole burden should rest on the respondent. The exception is explicable by the fact that the exhaustion of procedural remedies is somewhat different from the exhaustion of other remedies. In regard to the issue whether reasonable counsel could have foreseen that the remedy was an effective one, the same reasoning does not apply. Once it is proved that the remedy is effective, it can justly be said to give rise to a presumption that a reasonable counsel would have used it, so that it is for the party denying this proposition to prove its case, namely, that reasonable counsel could not have foreseen the effectiveness of the remedy. Thus, in respect of this issue, there should be a shift in the burden of proof. The claimant must prove that a reasonable counsel could not in all the circumstances of the case have foreseen the effectiveness of the remedy, effective though it in fact was. As for the other two issues that may arise in a litigation concerning procedural remedies, they relate to a situation where there are alternative remedies, one of which is being suppressed by the respondent, so that the alien is led not to use the other.

69

For this principle of international law see Cheng, op. cit. note 2 p. 305.


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Here the respondent has shown that there is an effective procedural remedy which has not been used, while the plaintiff alleges that there was an alternative which was more effective, which, however, was not available through the act of the respondent. It cannot reasonably be presumed that an alternative which is suppressed will always be more effective than the one available so as to lay the burden on the respondent to show that the alternative was of such a kind that the other should have been used. The plaintiff State raises the issue in replication to a defence of non-exhaustion and should be required to prove that both the factors necessary for the success of such a replication are present. Thus, it is the plaintiff State that must prove that the alternative remedy was of greater effectiveness and that reasonable counsel could have acted and did act on this basis. Briefly, to sum up on the burden of proof in respect of procedural remedies, it is for the respondent to prove that the procedural remedy alleged not to have been used was effective, while it is for the plaintiff State to show that counsel could not reasonably have known or foreseen this fact, and could not reasonably have used the remedy. In a case where the reply is made by the plaintiff State that there was an alternative remedy of which the alien was deprived by the respondent, it is for the plaintiff State to prove both that this alternative remedy was more effective than the other and that counsel could reasonably have, and did in fact, come to this conclusion.70 There are cases in which tribunals have referred to or acknowledged a “shift” of the burden of proof. In the Grant-Smith Claim71 the tribunal pointed out that the burden of proof shifted to the respondent to prove his special defence. In the Levis and Levis Case72 the tribunal referred to a reversal of the burden of

70

The above analysis and discussion of the division of the burden of proof in respect of the exhaustion of local remedies is based on C.F. Amerasinghe, op. cit. note 1 at pp. 285–92. 71 [1952], 14 UNRIAA at p. 18. 72 [1959], 28 ILR at p. 523.

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proof by reference to the fact that the respondent “held documents of evidential value which it refused to submit”. Such cases, whatever their merits, illustrate the principle that the tribunal determines who has the burden of proof and what is the burden. An example of a boundary dispute where the arbitral tribunal explained how the burden of proof in such a case was dealt with is the Determination of the Maritime Boundary Case (Guinea Bissau/Senegal).73 Clearly in such cases each party must prove its claims as actores. In the Avena Case, more recently, the ICJ pointed out in effect that the parties had correctly assumed that the burden of proof was divided. It observed that the claimant, Mexico, had discharged its burden of proof relating to possession by the convicted individuals of Mexican nationality, while the US had accepted that in such cases the US had “the burden of proof to demonstrate United States nationality.”74 The ICJ not only conceded implicitly that the burden of proof lay on the actor, as the party making the claim, and that the burden of proof was in the case divided, but determined how it was divided, by agreeing with the parties on that point.

CONCLUSIONS REGARDING

THE

BURDEN

OF

PROOF

The practice of tribunals permits the following conclusions on the burden of proof: (1) Clearly where facts are agreed upon by the parties or are undisputed, the question of burden of proof does not arise.75 (2) Other than that the first principle required for a fair trial is actori incumbit onus probandi. (3) The tribunal decides on whom lies the burden of proof. (4) In the application of this principle the tribunal may in the appropriate circumstances divide the burden of proof in rela-

73 74 75

[1989], 94 RGDIP (1990) at pp. 229–30. 2004 ICJ Reports para. 56: see <www.icj-cij.org>. A guilty plea in criminal cases includes an agreement on facts.

Conclusions Regarding the Burden of Proof

89

tion to the facts on a particular issue, as the example of the local remedies rule illustrates. (5) The allocation or division of the burden of proof in the appropriate circumstances does not depend on how one party or both parties frame the issue but on how the tribunal views the proper allocation or division of the burden, as the issue of the facts underlying jurisdiction in the cases discussed above relating to the nationality of claims rule illustrates. The above conclusions emerge from the decisions of international tribunals on issues which have faced them and from their practice. However, there are some other applicable particular principles which are also valid for such tribunals. It goes without saying that the party which opposes an assertion of fact by a claimant in the technical sense does not need to prove what he maintains as a denial. He must only show that the claimant has not proved the fact that the claimant asserts. Because international adjudication is basically based on the agreement of the parties, it would follow that the parties may prescribe a burden of proof which is not in keeping with the principle actori incumbit probatio. However, what is agreed to cannot infringe the essentially judicial character of the proceedings. This is a reality derived from common sense. The proposition is of particular importance in criminal and human rights cases. While there is a burden of proof, irrespective of who has that burden, it is not necessary to postulate a technical burden of producing or carrying forward evidence and such a burden does not exist in international proceedings. The essence of the evidentiary procedure is the function of the tribunal to use whatever means it has at its disposal, including the assistance of the parties, to ascertain the evidence required to establish the facts to be proved, while this function does not affect the burden of proof as such. In performing this function the tribunal must be impartial and give each party an equal opportunity to make its case in regard to the evidence and facts. For example, clearly, if in normal circumstances the actor does nothing or little and expects the tribunal to find the evidence or extract it, his claim must certainly fail.

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POSSIBLE POLICY ARGUMENTS AGAINST THE PRINCIPLE ACTORI INCUMBIT ONUS PROBANDI AS A RULE OF EVIDENCE Certain arguments have been advanced against the application of the first principle relating to the burden of proof discussed above.76 Although the principle is firmly established, the arguments will be addressed here very briefly. They arise ostensibly from the following alleged features of international litigation: (1) It is difficult to distinguish between parties as claimant and respondent in international procedure. (2) Simultaneous submission of pleadings by parties is permitted in international procedure. (3) The basic texts of international tribunals are silent as regards the burden of proof. (4) The rules of evidence in international procedure are nontechnical. (5) It is the duty of the parties to co-operate with international tribunals so as to establish the truth of a case. Arguments (1) to (3) above were identified as long ago as 1951. Arguments (4) and (5) are based on inferences from some of the decisions of mixed claims commissions in which the rule actori incumbit onus probandi has been discussed.77 Argument (1) The argument founded on the difficulty of distinguishing between claimant and respondent is to be referred to the fact that international proceedings are based on the consent of the parties and, therefore, unlike in national law where the distinction between

76

See Kazazi, op. cit. note 1 pp. 224–30. In this section I have relied, with some updating, on Kazazi’s presentation and discussion. I considered it more helpful to the reader to include the section rather than merely refer to Kazazi’s book. 77 See Witenberg, loc. cit. note 2 at p. 325 for arguments (a) to (c) and for arguments (d) and (e) see, e.g., the Parker Case (1926) 4 UNRIAA p. 39, and the Georges Pinson Case (1928) 5 UNRIAA at p. 413.

Possible Policy Arguments against the Principle

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claimant and respondent is usually clear, it is difficult or in some cases impossible to distinguish between claimant and respondent in an international proceeding. There are several reasons why this argument does not hold water. In fact both where the cases between States concern their own interests, as in disputes arising from alleged breaches of treaty, and where States espouse claims on behalf of their nationals, it is not difficult to determine which party is claimant and which is respondent. It is only in a very few cases between States essentially relating to their own interests that there may be some difficulty in identifying claimant and respondent clearly and even then the difficulty is not insurmountable. In the Iran-US Claims Tribunal, for example, with approximately 4,000 cases, only about 100 of the cases involved the rights of the two States themselves. In most of these cases the claimants and respondents were quite clearly identifiable. The question of the difficulty in distinguishing between claimant and respondent might need to be addressed only in some of the cases involving disputes concerning the interpretation or fulfillment of the requirements of the constituent instrument of the tribunal. In fact, since the tribunal commenced its functions in 1981, there has only been one case in which it was really difficult to draw a distinction between the parties. This was Case A1, through which four disputed issues were submitted to the tribunal by the Iran and the U.S.A. Even in that case no difficulty arose with regard to the burden of proof, as each party tried to prove its own position or claim with respect to the facts underlying each issue.78 Even where disputes may be complicated and there may be many claims and counterclaims with respect to each of which different alleged facts must be proved, the difficulties relating to determining where the burden of proof lies are not insurmountable. Such difficulties arise in national legal systems as well but national tribunals have not refrained from applying the rule actori

78

See generally, Decisions of the Tribunal in Iran/United States, Case A/1 (1982), 1 Iran-US CTR, pp. 144–153 and 189–197.

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incumbit onus probandi. There is no reason why it should be different with international tribunals. Further, even if in some cases there is no clear distinction made between claimant and respondent, as a result of the manner in which the parties frame their respective cases, in principle tribunals are not bound by the action of the parties. Each party who claims a fact is, apart from its formal position, the actor with respect to that fact and has the burden of proving it. This is precisely how international tribunals deal with the issues of fact in a single case. This practice not only facilitates the allocation of the burden of proof but makes sense. National tribunals are familiar with the tests developed to assist the trier of fact in order to decide on each occasion which party has the burden of proof. These tests are formulated in fairly simple questions such as: who will lose if the case is not proven and who benefits from a change in the normal state of affairs? The party who loses, if the issue before the tribunal is not proven, or the party who benefits from a change in the normal state of affairs, generally, is the party who bears the burden of proof. Such tests are not in the written law. International tribunals have applied whatever such formulae are necessary. In the Legal Status of Eastern Greenland Case the PCIJ allocated the burden of proof in the case in the terms using a test based on the ordinary meaning of words: The geographical meaning of the word ‘Greenland,’ i.e., the name which is habitually used in maps to denominate the whole island, must be regarded as the ordinary meaning of the word. If it is alleged by one of the Parties that some unusual or exceptional meaning is to be attributed to it, it lies on that Party to establish its contention.79

Argument (2) A second argument is that the simultaneous submission of pleadings in international proceedings precludes the application of the 79

PCIJ (1933), 6 ILR at p. 101.


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rule actori incumbit onus probandi.80 This argument is not wellfounded. First, simultaneous submission of the pleadings is neither an obligatory nor a common feature of international proceedings. Exchange of the memorials of the parties and production of evidence usually does not take place simultaneously. There are intervals between receipt of the submission of one party and that of the other. In fact, unless an order of a tribunal specifically refers to simultaneous filing, even the requirement that the parties file their submissions on the same date does not involve “simultaneous submission.”81 It is true that there are cases in which the parties to special agreements have agreed, or international tribunals have required them, to present their pleadings simultaneously; but that is not a settled rule of international procedure, and in many cases it has not been applied by international tribunals. The practice of international tribunals, including the more recent practice, shows that consecutive submissions are employed and favoured. Further, even assuming that simultaneous submission takes place in a particular international proceeding, it would still not prevent the application of the rule actori incumbit onus probandi. For,

80

See Witenberg, loc. cit. note 2, p. 325. In the Iran-United States Claims Tribunal an order of the tribunal for simultaneous filing of memorials has been interpreted, by the President of the tribunal, to mean that “the Co-Registrars had the authority to withhold a party’s memorial filed in time, until the other party’s memorial had also been received . . .” See Minutes of the Tribunal’s 89th Meeting of the Full Tribunal, paragraph 8. 81 In a letter, dated 4 December 1984, the Co-Registrars of the IranUnited States Claims Tribunal relied upon a memorandum from the SecretaryGeneral of the tribunal and the President’s observation reported in paragraph 8 of the Minutes of the 89th Meeting of the Full Tribunal, in order to inform the Agents of Iran and the US with regard to the “simultaneous filing” as follows: From time to time the parties to cases have raised the notion of ‘simultaneous filing’ of documents. This idea seems to stem from an inference regarding the language of many Orders which require the parties to submit similar documents on the same date . . . Please advise the parties that the inference referred to above should not be made absent in an order the specific language referred to in the memorandum.

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even in cases involving simultaneous submission of pleadings, international tribunals have applied and can apply that rule by resort to an appropriate procedure. In fact in Qatar v. Bahrain82 the ICJ allowed and ordered simultaneous filing of memorials but this did not create for the Court any problems connected with the burden of proof. Argument (3) It has also been argued that, because allocation of the burden of proof is an important issue, had it been a principle applicable in international proceedings, there would have been references to it in the fundamental texts of international tribunals such as constituent instruments and compromis. Particularly, the argument goes, the rule actori incumbit onus probandi is not referred to in the Statutes of the PCIJ and ICJ, or in the Hague Conventions relating to the pacific settlement of disputes.83 The answer to this argument is that, if constituent instruments of international tribunals are generally silent in this regard, it is because the application of the rule is a matter of adjective or procedural law and not because the rule does not exist.84 The practice of international tribunals has affirmed this, even though sometimes procedural texts incorporate the rule relating to the burden of proof.85 Argument (4) Another possible argument against the applicability of the rule actori incumbit onus probandi as a general principle of international procedure is that the non-technical nature of the rules of evidence in international litigation militates against the rule.86 However, while

82

2001 ICJ Reports, <www.icj-cij.org>. See Witenberg, loc. cit. note 2 at p. 325. 84 See Witenberg, ibid. at p. 327. 85 See, e.g., Article 24 of the Iran-United States Claims Tribunal Rules; Article 24 of UNCITRAL Rules; and Article 15 of the Rules of Procedure of the Inter-American Commercial Arbitration Commission (1 January 1987), reprinted in Gillis Wetter, 5 The International Arbitral Process: Public and Private (1979) p. 123. 86 See the Parker Case (1926), 4 UNRIAA p. 39. 83


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the rules of evidence in international litigation are non-technical, this does not affect the rule actori incumbit onus probandi. It is precisely because of this characteristic of the rules of evidence that that principle has been derived from the very basic and broader principle which requires fairness in the conduct of a trial by a tribunal. Argument (5) A possible inference to be drawn from the Parker Case, it may be argued, is that the requirement of co-operation of the parties in matters of evidence before an international tribunal was relied on as a reason for the irrelevance of the rule, onus probandi actori onus probandi, as a general principle of international procedure. In fact this was not the course taken by the tribunal. Both principles were recognized in that case. The need for co-operation of the parties in matters of evidence in international procedure is, as will be seen, another principle relating to proof of facts which deals with the production of evidence. It does not exclude the rule actori incumbit onus probandi. The two principles can and do coexist. Thus, even if in the circumstances of a given case the tribunal finds it necessary to rely on the rule of co-operation of the parties, that does not affect the applicability of the rule actori incumbit probatio as a primary rule for allocating the burden of proof. The former rule relates to the production of evidence, the latter to the issue of who should prove the fact or facts.

6 THE OBLIGATION OF PARTIES TO CO-OPERATE

An important principle of evidence in international litigation which complements the principle discussed in the previous chapter is that the parties must co-operate, always with the tribunal and sometimes even with each other, in producing evidence. In general the peaceful settlement of disputes by international tribunals requires to a considerable extent the co-operation of the litigating parties as a basis. The principle flows from the basic principle of affording a fair trial under the influence of another principle of international law requiring good faith. The parties may be expected to co-operate with each other at different stages of the proceedings and on numerous issues, e.g., matters concerning the compromis, choosing or setting up the tribunal, selection of judges and of procedure, including rules of evidence. As a result of this, it is an important principle of evidence that parties must co-operate particularly in placing all material facts before the tribunal. The flexible nature of international procedure, the absence of direct means of compulsion and

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the necessity and object of establishing the truth require that both parties do their best in good faith to shed light on the issues in dispute. As was stated in the rapporteur’s Report to the ILC on Arbitral Procedure, il est . . . un principe certain, c’est que les Etâts en litige ont l’obligation de collaborer de bonne foi à l’administration de la preuve.1

This principle applies as a general rule in international litigation. It applies in principle to both parties in what may be called “civil” litigation. In criminal litigation it cannot be said that there is a rule that the accused need not help the prosecution in this regard, while the converse does not hold true either. The discussion below is largely in terms of “civil” litigation but it is in principle applicable mutatis mutandis to international criminal litigation as well. Discharging the burden of proof is basically the claimant’s (actor’s) responsibility. But in international litigation sometimes the facts to be proved are within the sole cognisance of the other party or relate to events going back many years prior to the time of the proceedings which makes the claimant’s duty particularly difficult. Furthermore, in international litigation the interests and honour of nations may often be involved so that it would be unwise to permit the judgments of international tribunals to be based on the technical rules of evidence regardless of the necessity to seek the truth in the case. Thus, while the party who asserts a claim bears the burden of proving it, the other party as well has some obligations in regard to the evidence relating to that claim. Not only should the adversary not hide the truth, but he is expected to co-operate with the claimant in establishing the truth. Both parties, consequently, assist the tribunal. The principle of co-operation complements the principle actori incumbit onus probandi, and in cases where application of the latter principle may cause unreasonable consequences or

1

2 YBILC (1950) at p. 134. G. Scelle was the Rapporteur.

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Chapter 6. The Obligation of Paties to Co-operate

hamper due process in the proceedings, the principle of co-operation plays an important, helpful and balancing role. Further, where it is not clear who the claimant is or the cause of action may involve competing assertions required to be proved, as in the Minquiers and Ecréhos Case,2 or the parties provide in the compromis that their arrangements with respect to the written pleadings are without prejudice to the rules of the burden of proof, the principle becomes not only useful but indispensable. Because of the applicability of the rule of co-operation, the other party’s role cannot be satisfied by a mere general denial of the actor’s allegations. He must further provide explanations and produce before the tribunal documents which are within his sole possession. However, it is not only the respondent party to a claim that has the duty to co-operate. Just as the basic principle requires each party to prove what it asserts, the rule of co-operation places upon both parties the obligation to co-operate. Consequently, each party must assist the other in establishing or denying claims and above all must assist the tribunal in finding the truth. The principle is particularly important in international proceedings, where parties are required willingly to submit the documents at their disposal, because there is no procedure as such for enforcing such submission, unlike in national systems.

CONVENTIONS, STATUTES

AND

RULES

The duty of parties to co-operate in the presentation of evidence is reflected in many conventions and treaties concerning international arbitration as well as in the Statutes and Rules of Procedure of international tribunals. (i) In regard to commissions of inquiry provided for in the Conventions, the Hague Conventions of 1899 and 1907 require co-operation of 2

1953 ICJ Reports p. 47.

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parties in presenting evidence to them. According to Article 12 of the 1899 Convention, The Powers in dispute engage to supply the international commission of inquiry, as fully as they may think possible, with all means and facilities necessary to enable it to be completely acquainted with and to accurately understand the facts in question.

In 1907 some amendments were made to this Article in order to create a stronger obligation. In Article 23 of the 1907 Convention the word “Powers” at the beginning of the phrase was changed to “Parties,” and an additional sentence was included: They undertake to make use of the means at their disposal, under their municipal law, to insure the appearance of the witnesses or experts who are in their territory and have been summoned before the commission.3

(ii) The Rules of Procedure of the Permanent Court of Arbitration4 are included in the Hague Conventions of 1899 and 1907. The Court’s Rules of 1899 do not refer to the co-operation of parties. Article 75 of the 1907 Convention provides for the arbitrating parties “to supply the tribunal, as fully as they consider possible, with all the information required for deciding the case.” In 1992 and 1993 two new sets of optional procedural rules were elaborated for the PCA: one set for arbitrating disputes between two States, and another set for arbitrating disputes between two parties of which one is a State. Both sets of Rules are based on the UNCITRAL Arbitration Rules and both include, as paragraph 3 to their common Article 24, the following:

3

See also Article IV(3) of the Alabama Claims Treaty (USA and GB – 1871). For the text of the Rules see, e.g., The Permanent Court of Arbitration – New Directions (PCA’s International Bureau, 1991), pp. 45–55. 4

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At any time during the arbitral proceedings the arbitral tribunal may call upon the parties to produce documents, exhibits or other evidence within such period of time as the tribunal shall determine. The tribunal shall make formal note of any refusal to do so, as well as any reason given for such refusal.

The provision clearly implies an obligation to co-operate on the part of the parties, but to the extent the tribunal requires. (iii) Article 18(2) of the Model Rules on Arbitral Procedure adopted by the International Law Commission (1958) and the GA of the UN provides as follows: The parties shall co-operate with the tribunal in dealing with the evidence . . . The tribunal shall take note of the failure of any party to comply with the obligations of this paragraph.5

Article 15 of the Draft Convention of the International Law Commission on Arbitral Procedure (1953) from which the Model Rules were derived, in large part, provided that: The parties shall co-operate with the tribunal in the production of evidence and shall comply with the measures ordered by the tribunal for this purpose. The tribunal shall take note of the failure of any party to comply with its obligation under this paragraph.6

(iv) Article 33(3) of the Rules of Procedure for Arbitration Proceedings (Arbitration Rules) of ICSID provides that: 5

Report of the International Law Commission, Official Records of the General Assembly, Thirteenth Session, Supplement No. 9, UN Doc. A/3859, at p. 7. 6 Report of the International Law Commission, Official Records of the General Assembly, Eighth Session, Supplement No. 9, UN Doc. A/2456, at pp. 9–11.

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The parties shall co-operate with the tribunal in the production of evidence . . . The Tribunal shall take formal note of the failure of a party to comply with its obligation under this paragraph and of any reasons given for such failure.7

(v) In addition to what may be stated in Statutes and constitutive instruments of tribunals, several Rules of Court of tribunals, including the ICJ and the international criminal tribunals, provide in one way or another, for the tribunal to require the parties to produce evidence and sometimes specify the consequences of default in this regard.8 Provisions such as these imply a duty to cooperate in the production of evidence, regardless of the express powers given to the tribunals. Indeed, it seems to have become customary for the parties in international litigation or the tribunals themselves specifically to authorize arbitral or judicial tribunals to ask for documents and information, which implies the duty of the parties to co-operate, rather than including a simple provision leaving tribunals without specific and explicit powers in regard to evidence.

PRECEDENTS The practice of international tribunals confirms the applicability of the principle of co-operation in international litigation. International tribunals have stated that the co-operation of parties is a duty rooted in the honour of nations and respect for justice,

7

ICSID Arbitration Rules, ICSID Basic Documents (1985) at p. 77. See, e.g., ICJ Rules of Court, Article 62; ITLOS Rules of the Tribunal, Article 77; Final Tribunal Rules of Procedure of the Iran-US Claims Tribunal, Articles 24(3) and 28. Article 49 of the ICJ Statute reflects the same powers of the Court. For criminal proceedings where disclosure can significantly influence the trial see the ICTY Rules of Procedure and Evidence, 2002, Part V, Section 2 ff and Part III, Chapter 15 herein. 8

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as well as a natural and proper duty for counsel before international tribunals.9 On the other hand, like many other principles of evidence, the principle of co-operation is recognized in the procedure of litigation without necessarily being referred to in the decisions of tribunals. Indeed, tribunals do not as a rule refer to it specifically, unless special circumstances necessitate it. There are some cases in which reference has been made specifically to the principle. In the Parker Case10 the tribunal found it useful and necessary to set out its views on the need for the parties to co-operate. The tribunal first said that it would not be bound by any technical rule of evidence of any national system of law and then stated the applicable rule: it is the duty of the respective Agencies to cooperate in searching out and presenting to this tribunal all facts throwing any light on the merits of the claim presented. The commission denies the ‘right’ of the respondent merely to wait in silence in cases where it is reasonable that it should speak.11

The tribunal went on to say: To illustrate, in this case the Mexican Agency could much more readily than the American Agency ascertain who among the men ordering typewriting material from Parker and signing the receipts of delivery held official positions at the time they so ordered and signed, and who did not.12

Later the tribunal explained its view on the relation between the rule of requiring the co-operation of the parties and the rule actori incumbit onus probandi:

9

E.g., the George Pinson Case (France v. Mexico – 1928), 5 UNRIAA at p. 413; and the Parker Case (USA v. Mexico), 4 UNRIAA at p. 39. 10 (USA v. Mexico – 1926), 4 UNRIAA p. 35. 11 Ibid. at p. 39. 12 Ibid.

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While ordinarily it is incumbent upon the party who alleges a fact to introduce evidence to establish it, yet . . . this rule does not relieve the respondent from its obligation to lay before the commission all evidence within its possession to establish the truth, whatever it may be.13

While pointing out that the requirement of co-operation was to be traced to the fact that the parties to the proceedings were sovereign States, the tribunal encouraged the Agents to disclose all the facts at their disposal, whatever their effect, and warned that: In any case where evidence which would probably influence its decision is peculiarly within the knowledge of the claimant or of the respondent Government, the failure to produce it, unexplained, may be taken into account by the commission in reaching a decision.14

The duty of co-operation was discussed in the Kling Case,15 where the tribunal recalled with approval and confirmed the views expressed in the Parker Case. The general principle applied by the US-Mexican General Claims Commission in cases such as the Parker Case with respect to the necessity of co-operation of parties was adopted also by the French-Mexican Commission. Noting the negative attitude taken by the Mexican Agent with regard to documents presented by the French Agent, the tribunal addressed the issue of the necessity of co-operation of parties in regard to evidence. In the Georges Pinson Case the president, Verzijl, after quoting with approval from the Parker Case, stated: En effet, les relations internationales sont d’une importance telle, et l’observation de la justice dans leur développement est tellement nécessaire, que ce serait un crime contre l’humanité de vouloir abaisser

13 14 15

Ibid. Ibid. (USA v. Mexico – 1926), 4 UNRIAA at pp. 582–3.

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les procès internationaux de leur plan élevé sur le niveau où se déroulent malheureusement tant de procès entre particuliers.16

In the Pablo Najera (of the Lebanon) Case the same tribunal characterized the attitude of the Mexican government as “purely negative since they adduced no evidence whatever against the former Turkish nationality of the Claimant . . .”17 In the Island of Palmas Case the tribunal stated that the parties must produce all the evidence which each has motu proprio or at the arbitrator’s request.18 In the Lehigh Valley Railroad Company Case (No. 1) the tribunal drew attention to the fact that, when governments have agreed to arbitration, they are under an obligation in good faith to ascertain the truth,19 which implies that they must cooperate in the production of evidence. The views expressed in the Parker Case with respect to the co-operation of parties have been supported by other international tribunals and bodies performing judicial or quasi-judicial functions. For instance, in its Report of 25 February 1963 with respect to the complaint by the Government of Portugal concerning the observance by the Government of Liberia of the Forced Labour Convention of 1930, the Commission appointed under Article 26 of the Constitution of the International Labour Organization, after quoting from the Parker Case, stated: In a case of a Commission appointed under Article 26 . . ., these considerations of general principle are reinforced by the specific obligation of all Members of the Organization under Article 27 of the Constitution to ‘place at the disposal of the Commission all the information in their possession which bears upon the subjectmatter of the complaint.’ The Commission cannot disregard an allegation because it has not been fully proved if the facts are peculiarly within the knowledge of the respondent Government and

16 17 18 19

(1928), (1928), (1928), (1930),

5 4 2 8

UNRIAA ILR at p. UNRIAA UNRIAA

at p. 413. 302. at pp. 841–2. at p. 85.

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that Government does not think it appropriate to make a frank and full disclosure of them.20

In Marias v. Madagascar (Communication No. 12/49) the UN Human Rights Committee stated: With regard to the burden of proof the Committee has already established in its views in other cases (e.g., R. 7/30) that the said burden cannot rest on the author of the communication alone, especially considering that the author and the State Party do not always have equal access to the evidence and that frequently the State Party alone has access to relevant information. It is implicit in Article 4(2) of the Optional Protocol that the State Party has the duty to investigate in good faith all allegations of violation of the Covenant made against it and its authorities, and to furnish to the Committee the information available to it.21

The obligation of the parties to co-operate in the presentation of evidence was discussed in an indirect way in the Corfu Channel Case (Merits)22 in which the ICJ dealt with the complaint made by the UK against Albania relating to a minefield discovered in Albanian territorial waters which had been the cause of damage to British warships. The Court made it clear that “a State on whose territory . . . an act contrary to international law has occurred, may be called upon to give an explanation,” that a reply that the said State is ignorant of the circumstances of the act and of its authors is not sufficient, and that the State may “up to a certain point, be bound to supply particulars of the use made by it of the means of information and inquiry at its disposal.”23 In the Indo-Pakistan Western Boundary Case24 the arbitration tribunal recognized the co-operation principle in regard to 20

36 ILR at p. 369. (1983), 78 ILR at pp. 38–9. 22 1949 ICJ Reports p. 12. 23 Ibid. at p. 18. At one point the parties had submitted documentary evidence jointly: ibid. at p. 8. 24 Case Concerning the Indo-Pakistan Western Boundary (Rann of Kutch), (India v. Pakistan – 1968), 17 UNRIAA p. 1. 21

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evidence. The dispute concerned the boundary between India and Pakistan in the Gujarat-West Pakistan region. In spite of the tense situation under which the tribunal was constituted, the parties cooperated with each other and the tribunal in the production of evidence. A delegation from each country visited the other country for the purpose of inspecting and obtaining copies of maps and documents in government archives and both parties through direct communications continuously requested the production of maps and other documentary evidence from each other and assisted one another in searching for and producing such evidence.25 The tribunal was impressed by the parties’ co-operation with respect to production of evidence and stated: The Tribunal wishes to pay tribute to the spirit of co-operation and courtesy prevailing between the Parties. They have, in unique measure, assisted the Tribunal and one another in the production and search for the unusually rich and complex documentary evidence.26

It may be noted that in Case No. A-2527 in which Iran applied to the Full US-Iran Claims Tribunal in 1989 for the revocation, setting aside and annulment of the award in the Phillips Case28 Iran argued that the refusal of Chamber Two to consider some of the submitted documentary evidence in the Phillips Case, on the ground that it was filed too late, was inappropriate. In support of its argument, among other reasons, Iran also stated that the documents in dispute should have been disclosed by the claimant in the first place. It took the position that this was not a situation where the claimant could claim prejudice by virtue of surprise, but that to the contrary, the claimant was certainly aware of these

25

Ibid. at p. 10. Ibid. at p. 11. 27 Islamic Republic of Iran v. United States of America, Case No. A-25, Full Tribunal, Memorial of the Islamic Republic of Iran and the National Iranian Oil Company (filed 15 November 1989). 28 The Phillips Petroleum Co. of Iran Case (1989), 21 Iran-US CTR, p. 79. 26

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filings but chose to hide them from the tribunal. It maintained that this action was directly contrary to the duty which international law placed on the parties to produce relevant documents.29 The case was not decided, because as a result of agreement between the parties the tribunal terminated the proceedings in the case.30 On the other side of the coin, the same tribunal has said that the submission of documents with a request not to disclose them to the other party was unacceptable and would result in the documents being treated as not submitted.31 It has also taken the view that the obligation to co-operate is not fulfilled, unless the respective party has made an honest effort to obtain documents, such as written pleadings in national court proceedings, and has failed, and has indicated that the tribunal will not order discovery by the other party of such documents to which it also had access.32 The duty of the parties to co-operate with the tribunal in the production of evidence (whether the evidence is favourable to their case or not) was explicitly recognized by the tribunal in both the Taba Case33 and the Heathrow User Charges Case.34 The ITLOS took the same position with regard to the production of evidence in the “Monte Confuoco” Case.35 An important point was made in respect of “civil” proceedings by the ICJ. In the Avena Case the ICJ was of the opinion that a party which claims that the other party has evidence necessary for the proof of the former’s case must make an effort to secure that evidence from the latter by requesting it. Without doing this and failing to obtain the evidence the former could not

29

Loc. cit. note 27 at p. 161. See 21 Iran-US CTR p. 302. 31 The AHFI Planning Associates Case (1983), 3 Iran-US CTR at p. 350. 32 The Fluor Corporation Case (1987), 18 Iran-US CTR at p. 68. 33 (1988), 80 ILR p. 224. 34 (1992), 102 ILR p. 216. 35 (2000), Case No.6, <www.itlos.org>. The principle of co-operation in criminal proceedings is discussed by reference to the ICTY in Part III, Chapter 15, herein. 30

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claim that the latter was not co-operating in the production of evidence which was in its possession. The Court explained the correct position, stating: The Court observes further that the United States has, however, questioned whether some of these individuals were not also United States nationals. Thus, the United States has informed the Court that, “in the case of defendant Ayala (case No. 2) we are close to certain that Ayala is a United States citizen”, and that this could be confirmed with absolute certainty is Mexico produced facts about this matter. Similarly Mr. Avena (case No. 1) was said to be “likely” to be a United States citizen, and there was “some possibility” that some 16 other defendants were United States citizens. As to six others, the United States said that it “cannot rule out the possibility of United States nationality.” The Court takes the view that it was for the United States to demonstrate that this was so and to furnish the Court with all information on the matter in its possession. In so far as relevant data on the matter are said by the United States to lie within the knowledge of Mexico, it was for the United States to have sought that information from the Mexican authorities. The Court cannot accept that, because such information may have been in part in the hands of Mexico, it was for Mexico to produce such information. It was for the United States to seek such information, with sufficient specificity, and to demonstrate both that this was done and that the Mexican authorities declined or failed to respond to such specific requests. At no stage, however, has the United States shown the Court that it made specific enquiries of those authorities about particular cases and that responses were not forthcoming. The Court accordingly concludes that the United States has not met its burden of proof in its attempt to show that persons of Mexican nationality were also United States national.36

Thus, the duty of co-operation has a mutual aspect to it.

36

2004 ICJ Reports para. 57, <www.icj-cij.org>.

Consequences of the Principle CONSEQUENCES

109 OF THE

PRINCIPLE

The most important result of the rule of co-operation is that the adversary is obligated to provide the tribunal with relevant documents which are in its sole possession. As regards the practical effect of the rule, however, one question that arises is at what time within the proceedings does the duty of co-operation commence. The answer to this question may depend on how much evidence the claimant must adduce before the duty falls upon the respondent. The answer is not easy. In any case it will relate to obligations of the respondent not to what the respondent is at liberty to do, e.g., to provide whatever documents at any time. First, it is a recognized rule of international litigation that in principle, if the claimant does not provide any evidence at all, there is no duty for the other party to do so. An example from international procedural law is the requirement of Articles 284 and 297 of the 1982 UNCLOS that, if a court or tribunal to which an application is made concerning the interpretation or application of the Convention determines that the claim constitutes an abuse of legal process (or is prima facie unfounded), it shall take no further action in the case. The stricter requirement of some common law jurisdictions that the claimant must provide enough evidence to establish a prima facie case before the respondent needs to act, the inverse of which is reflected in the UNCLOS, is probably as such not applicable in international litigation in general.37 Secondly, a fortiori, it is also an established rule in international (and national) procedure that the respondent does not have to produce evidence before the claimant produces whatever evidence to which it has access. A contrary position would violate the principle actori incumbit onus probandi which is fundamental and to which the rule of co-operation is complementary. Hence, the respondent’s duty of co-operation does not commence until the claimant produces the documents to which it has access. 37

See, generally, Witenberg, “Onus Probandi devant les juridictions arbitrales”, 55 RGDIP (1951) passim.

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Thirdly, not only should the claimant initiate the production of evidence but the evidence must as a general rule be such as requires rebuttal. This is the case in national systems as well.38 That having been said, an exception would seem to have to be made, where all or most of the relevant evidence is under the control of the respondent party. Fourth, it is also clear that the principle of co-operation should not be invoked against a party unnecessarily. Hence, if the claimant is able to prove its case without any assistance from the respondent, it should do so. Or, if the documents which are useful for the claimant’s case are not exclusively in the respondent’s possession and it is possible for the claimant to obtain them through other sources, the claimant may not insist that they should be produced by the respondent, and the tribunal will not order the respondent to produce them.39 A corollary of this rule is that a party cannot be regarded as not co-operating, if the other party has made no good faith effort to seek or request the necessary evidence which it alleges is within the control of the former.40 While discovery in a technical sense, which is a pre-trial device recognized in common law countries and to which legal sanctions are attached in case there is a breach of the rules relating to it,41 is not as such recognized in international procedure,

38

Witenberg, ibid. at p. 324. That having been said, an exception would seem to have to be made where all or most of the relevant evidence is under the control of the respondent party. 39 Fluor Corporation Case (1987), 18 Iran-US CTR at p. 68. 40 The Avena Case, 2004 ICJ Reports para. 57, <www.icj-cij.org>. 41 See James & Hazard, Civil Procedure p. 180, quoting Fed. R. Civ. Rule 26(b). According to the Federal Rules of Civil Procedure the devices for discovery include the deposition, which may be taken through oral questioning or through written questions and may be taken of either a party or a nonparty witness; interrogatories to a party, which are questions put in writing to a party; production of things (including documents) and entry upon property, to inspect, copy or photograph, or conduct tests; physical or mental examinations of parties or persons under legal control of a party; and requests for admissions, which require a party to admit propositions of fact tendered in a written request. The matters that may be inquired into through these devices

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particularly in “civil” proceedings, the application of the principle of co-operation before international tribunals, which has generality and certain mechanics, could yield results similar to those of discovery.42 The duty of co-operation is further supplemented by the powers of tribunals in regard to “discovery”, which relate to another principle of evidence in international litigation discussed in the next chapter. However, there can be failures to cooperate which go unnoticed by the tribunal. In the Taba Case, for instance, although the duty of the parties to co-operate was accepted by the tribunal and so expressed to the parties,43 evidence was suppressed by one party without the knowledge of the other party and of the tribunal, that conduct coming to light only after the tribunal had given its judgment in the case.44 Sometimes the rules of procedure of international tribunals refer specifically to the contents of the duty of co-operation in the proceedings before them and define it further but this is rare. As an example may be given the Procedural Rules of the tribunal in the Indo-Pakistan Western Boundary Case, constituted in 1965 to settle the dispute concerning the boundary between India and Pakistan in the Gujarat, which provided as follows with respect to “discovery and inspection”: A party may, by notice in writing, call upon the other Party to make available to it for inspection any document which is or is likely to be in the possession or under the control of such other Party; and thereupon such other Party shall, if the document is in its possession or under its control, provide adequate and expeditious

are governed by rules as to scope of discovery. The enforcement of discovery, which helps make these devices practically effective, is governed by sanction rules: ibid. p. 179. See also Fed. R. Civ. Rule 37. Clearly, international criminal procedure as demonstrated by Part V of the ICTY Rules of Procedure and Evidence, 2002, is an exception to the procedure described in the text above: see Part III, Chapter 15 herein. Discovery as a procedure is recognized as such by those Rules. 42 See Witenberg, loc. cit. note 32 at p. 333. 43 (1988), 80 ILR p. 224. 44 See Sinclair, 70 AIDI at pp. 327–8. Sinclair was counsel in the case.

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Chapter 6. The Obligation of Paties to Co-operate facilities to the Party to take inspection and copies of the document and, on request of such Party and at its cost shall furnish to it such number of photostat copies as it required and also produce the document before the Tribunal. If the document is not in the possession or under the control of the other Party, an affidavit shall be filed to that effect before the Tribunal.45

This provision deals with the obligation of the parties and not with the process of the tribunal in regard to the matter. Yet, “discovery” – which includes taking pre-trial or oral depositions of representatives of the opposing party, or asking questions in writing, i.e., interrogatories – is not mentioned in the UNCITRAL or the Iran-United States Claims Tribunal’s Rules. Pre-trial depositions and interrogatories are really unknown in international “civil” arbitration and litigation procedure generally. It seems that in this respect international procedure has followed the practice of civil law countries in that discovery of evidence as such in the sense used in common law systems does not exist. It has been remarked that: The real problem in international arbitration is discovery. There is no discovery in international arbitrations. The best course is to obtain your proof independently. Arbitrators can be asked to draw inferences which will help you if your opponent is totally uncooperative. However, this will be up to the arbitrator.46

But in international criminal cases provision may be made for such methods of securing evidence.47 Another question relates to the obligations of third parties in 45

(1968), 17 UNRIAA, p. 9. See also Rule 4(4) to 4(6) of the International Bar Association Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Arbitration. 46 Remarks by a panelist in American Society of International Law, Proceedings of the 79th Annual Meeting, 1985, (1987) at p. 333. 47 See, e.g., Rules 54–65 of the ICTY Rules of Procedure and Evidence, 2002, and Part III, Chapter 15 herein. These procedures apparently do not appear in human rights litigation.

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relation to co-operation. In principle there is no obligation in international procedure for States not parties to a case to provide evidence, unless there is an agreement to the contrary. Some multilateral agreements obligate the signatory States to provide the evidence in their possession in case of a legal dispute between other members. Yet, even in those agreements, there is usually no sanction for breach of that obligation. What happened in the Heathrow User Charges Case48 is worthy of note. A third party, at the instance of the tribunal, through one of the parties provided evidence in its possession without objection. The third party was not a State or an international organization. There may or may not be a case for national laws to compel production of evidence in the possession of third parties to international judicial bodies, but in the above case a third party co-operated without resort to such laws. Intervention of a third State in the proceeding between other States, which is possible under the Statute of the ICJ in contentious cases49 might be considered a form of co-operation. But such intervention is conditional even under the ICJ Statute. Further, international procedure lacks the device long known in some national systems through which at the request of the respondent a third party could be forced to intervene in the proceedings of a case, in order to respond to the claimant.50 It may also be noted that in the Procedural Rules of the tribunal in the Indo-Pakistan Western Boundary Case there was specific provision for the inspection of the original copy of any document in the possession of third parties: Evidence: the Tribunal will be the judge of the relevance and the weight of the evidence presented to it. If the Tribunal, whether on the request of a Party or otherwise, considers it necessary to inspect the original of any document, which is in the possession of

48

(1992), 102 ILR p. 216. See Articles 62 & 63 of the Statute of the ICJ. 50 See, e.g., Articles 66 & 331 of the French “nouveau Code de procédure civile”. 49

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Chapter 6. The Obligation of Paties to Co-operate or under the control of a Government other than the Parties, or of any person other than a citizen of India or Pakistan residing in India or Pakistan, respectively, the Tribunal may request such Government or person to make the same available to the Tribunal.51

Further it was stated that “The Tribunal will direct how and by whom the costs in this connection are to be borne”.52 Provision was also made for a party’s right of cross-examination of deponents of affidavits, submitted to the tribunal by the opposing party.53 But apart from the tribunal’s power to forward requests to third parties, no further procedure had been envisaged. There was also no reference to any sanction for non-co-operation with such requests of the tribunal.

CONCLUSIONS The following are conclusions that apply in respect of the duty of the parties to co-operate. (i) The obligations of parties to co-operate sometimes with each other and always with tribunals in placing material evidence before international tribunals is a part of the wider and more general obligation which requires litigating parties before international tribunals to co-operate on a wide range of issues connected with the proceedings. The submission of disputes to international judicial settlement depends generally on the consent of States. Thus, the general obligation of co-operation, being a prerequisite for the success of peaceful settlement of disputes flows from that consent. The principle of co-operation in the production of evidence is a general principle applicable before inter-

51 52 53

(1968), 17 UNRIAA at p. 9. Ibid. Ibid.

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national tribunals in matters of evidence, both when parties to litigation are States but also in other international proceedings. (ii) The principle of co-operation does not relieve a party of the active duty to seek from the other party evidence which the latter has and which would be useful to the former for its case. Failure to act thus would result in the tribunal’s not intervening to facilitate co-operation. (iii) The duty of parties to co-operate in good faith in matters of evidence does not at any rate shift the burden of proof, as it is not the purpose of the rule to relieve the claimant of his obligation to prove his claims. It is only after the claimant has apparently done his best and all in his power to secure evidence that the duty of the respondent to produce the evidence exclusively in his possession commences. This corollary applies in principle to criminal and human rights proceedings as well but could be reflected in a different form in Rules of Procedure and Evidence. (iv) Clearly, the application of the principle of co-operation depends on the respondent’s readiness or availability, as the case may be, to participate in the proceedings and, if the respondent, as has happened in some cases before the ICJ,54 chooses not to participate in the proceedings, then among the consequences of nonappearance is the fact that the co-operation rule cannot be implemented, although technically it may apply. In criminal proceedings the same situation could arise, if the respondent (accused) does not participate, because he is not available.

54

See, e.g., the Nicaragua Case (Merits), 1986 ICJ Reports p. 14, and the United States Diplomatic and Consular Staff in Tehran Case, 1980 ICJ Reports p. 3.

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(v) Non-appearance of the respondent, however, is not the only possible obstacle to the implementation of the rule. The major problem in implementation is the absence of specific sanctions which may be applied where a party is unwilling to produce information and documents even if it participates in the proceedings. The lack of specific measures to enforce the co-operation of parties, as national courts may have, does not, however, affect the credibility of the co-operation rule as a general principle of international procedure. In international litigation not all rules have sanctions attached to them such as those provided for under the complicated and technical rules of national law. The practice before, inter alia, the Claims Commissions and the Iran-United States Claims Tribunal, multi-case international tribunals, confirms that the agents of the States and other parties appearing before those tribunals have generally co-operated in matters of evidence. There are, however, as will be seen in the next chapter, some consequences like sanctions which may follow in terms of the power of tribunals in weighing evidence to take into account refusals to co-operate. (vi) Another consideration is that the relevant documents of some international tribunals provide for revision of a final judgment in case of discovery of important facts that at the time of the judgment were unknown to the tribunal or the party asking for revision or both. For example, Article 61 of the Statute and Article 99 of the Rules of Court of the ICJ provide for such revision, as generally do the Statutes of IATs. In the case of the ICTY and ICTR equivalent provisions exist. This feature may encourage the parties to reveal all the evidence in their possession to the tribunal. It is conceivable, further, that fears of delay and costs of repeating proceedings may encourage parties to place all the material evidence in their possession before the tribunal so that the adversary may not be able to use unrevealed facts as a basis

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for requesting a revision and cause delay. Basically, however, the principle’s observance depends on good faith. It is either complied with willingly or in the ultimate analysis, in spite of the powers of tribunals relating to evidence, may not be externally enforceable at all. Clearly, however, its value in enabling the discharge of the burden of proof cannot be overestimated. (vii) As shown in Chapter 15, there may be special provisions in criminal proceedings relating to disclosure of evidence.

7 MEASURES TAKEN BY TRIBUNALS TO EFFECT CO-OPERATION

There are two sides to the rule that parties must co-operate in producing evidence. First, parties take action on their own initiative as between them. Second, tribunals may intervene in enabling or exerting pressure on the parties to fulfill the duty. It is the second aspect that is relevant to the exercise of power by tribunals. It is not only of concern to consider the question of drawing adverse inferences from non-co-operation, but there is reason to discuss how in practice tribunals may facilitate, if not enforce, the observance of the duty to co-operate.

FACILITATION

WITHOUT

FURTHER ACTION

BY THE

TRIBUNAL

The Iran-US Claims Tribunal has recently had to face the problem of non-co-operation. The tribunal’s Rules of Procedure merely provide in Article 26(3) that “At any time during the arbitral proceedings the arbitral tribunal may require the parties to

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produce documents, exhibits or other evidence within such a period of time as the tribunal shall determine.” It is this provision that enables the tribunal to intervene in respect of the duty of the parties to co-operate in respect of evidence, though there is no specific duty of co-operation in the production of evidence provided for in the Rules themselves, the duty being derived from a general principle of procedural law. The William Shashoua Case1 repays detailed examination. The case involved the alleged expropriation, denied by the respondent, of the claimant’s 100% ownership interest in three joint stock companies in Iran, a pre-hearing conference was arranged by the tribunal by an Order dated September 15, 1982. One of the items to be discussed according to the Order was whether any further documents or written statements, including any reply or rejoinder, were requested by the arbitrating parties or required by the arbitral tribunal. The claimant stated that at that time the claimant did not intend to submit or ask for additional legal memoranda but then advised the tribunal of the claimant’s intention to ask for production by the respondents of certain information and documents. He based his request for production of evidence on Article 24 of the tribunal Rules and the principle of international law that relevant and material evidence which is in the possession or under the peculiar control of a respondent State must be produced by the respondent. Article 24(3) of the tribunal Rules which is relevant has been referred to above. One of the problems under this Article is whether general discovery is conceivable or whether only specific documents could be requested. Another problem for the tribunal was that granting such a request would trigger hundreds of similar requests from other American claimants on the ground that they had no access to their documents left in Iran. On the other hand, if the claimant’s allegation

1

Case No. 69, Chamber One, Iran-US Claims Tribunal (1982–86), not reported but referred to by Kazazi, Burden of Proof and Related Issues (1996) pp. 276 ff. There is a discussion of cases decided by the Iran-US Claims Tribunal, which constitute most of the precedents on the subject of this chapter, in Kazazi, ibid. pp. 275 ff.

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Chapter 7. Measures Taken by Tribunals

was true, then the evidence requested by the claimant was in fact in the respondents’ possession, and it was not fair to deprive the claimant of his rights simply because he did not have access to his documents. Was it necessary that the claimant produce at least some prima facie evidence that the respondent had relevant documents? The tribunal adopted a cautious approach that adequately accommodated the claimant’s rights without committing the tribunal. The Chairman of the Chamber wrote a letter dated March 10, 1983, to counsel for the claimant informing him that, after considering his requests for the production of evidence, the Chamber had found it difficult at that time to issue an Order on the basis of the requests presented, because the claimant’s request for an Order did not indicate what effort had been made to obtain the documents in question “through other channels”, and the requests for production of certain categories of evidence “are very general in nature in that they do not specify the documents comprised by the request”. It was also stated that the Chamber had discussed the matter with the Agent of the Islamic Republic of Iran and that the Agent had given assurances that the Iranian authorities would assist the claimant in obtaining the necessary documents, provided that the documents were in the possession of the Iranian authorities or otherwise accessible to them, and the claimant was advised to submit a request for production of documents directly to the Agent. Further, to make sure that the claimant would ask only for relevant documents, the chairman’s letter listed certain specific documents and information, which in the view of the tribunal appeared to be of particular interest in the case, and instructed that the request be limited to those items. On April 11, 1983, counsel for the claimant wrote a letter to the Agent of the Islamic Republic of Iran requesting that the respondents furnish “on an expedited basis, authenticated, true copies” of all documents listed in the letter. The documents listed in the counsel’s letter corresponded, with slight differences, to those referred to in the Chairman’s letter. For more than two years the tribunal received no information as to whether or not the request for documents had been complied with or whether the


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claimant intended to pursue its claim. On May 29, 1985, the tribunal issued an Order in which it ordered the claimant to file a statement by June 28, 1985, (i) indicating whether any response was received to the letter of claimant’s counsel of 11 April 1983; and if so, submitting a copy of such response and of any documents or information received, and (ii) stating whether the claimant intended to pursue its claim. The tribunal’s Order ended by informing the claimant that if no statement was received by the indicated date, the tribunal would assume that the claimant did not intend to pursue its claim. Before the expiry of the time-limit fixed by the tribunal, counsel for the claimant filed a statement with the tribunal explaining that as of that date no response had been received from the Agent of Iran or from the respondents themselves and stating the claimant’s wish to continue to pursue his claims in the pending proceeding. Counsel for the claimant gave various explanations, including the explanation that he had not been able to obtain the documents from other sources, stated again that it was a widely accepted principle of international arbitration that relevant and material evidence in the possession of a respondent State must be produced, and concluded that the failure of the respondent to co-operate with the claimant justified the exercise of the tribunal’s power to compel production under Article 24 of the Rules. The tribunal invited the respondents to file their comments on the claimant’s submission with respect to the request for production of documents. The respondent requested an extension of the time-limit for the submission of the documents to which they might have access, even though in principle the respondents were not obligated to produce documentary evidence in favour of the claimant. The extension was granted. Within the time-limit the Iranian Ministry of Commerce filed the respondent’s Comments on the Claimant’s Submission, accompanied by 86 exhibits containing most of the documents requested by the claimant. However, the documents produced did not apparently support in any way the claimant’s allegations. Thereafter, the tribunal requested the claimant to file a

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response to the respondent’s submission. On March 12, 1986, counsel for the claimant filed a letter stating that the documents produced by the respondents were not complete, that they confirmed certain elements of the claimants case which had previously been disputed by the respondents, that documents relating to minutes of meetings held after the time that the claimant allegedly had left Iran for the last time, which recited the presence of the claimant at these meetings, had been fabricated by third persons without the claimant’s knowledge, and the “transactions in which the property of the companies was purportedly encumbered or transferred after his departure from Iran [were] fraudulent and without legal effect.” Nevertheless, at the end of the letter it was stated that “marshalling the evidence necessary to dis-prove the facts alleged by the documents [was] beyond the logistical and financial resources of Claimant” and that he was “prepared to accept the practical futility of pursuing his claims further” and requested that Case No. 69 be dismissed in its entirety. In this case the tribunal at no stage actually made an order to apply Article 24(3). But the procedure adopted by the tribunal had the desired effect, because it resulted in the production of some documents which, however, it appears, did not help the claimant and in the ultimate withdrawal of the case. The second group of cases before the Iran-US Claims Tribunal which require consideration are the Embassy Cases. In these the United States as respondent asked for the production of evidence by Iran. Among these were claims by the Government of Iran against the US relating to monetary obligations of the former US Embassy in Tehran. These claims included (i) Claims Nos. B-2, B-3, B-13, B-16, B-18, B-20 and B-21 brought by the Iranian customs authorities concerning certain goods which were imported temporarily into Iran for trade exhibitions and thus were exempted from Iranian customs duties and were allegedly not re-exported; (ii) four other claims which involved allegations that the Embassy failed to pay for particular goods and services as follows: Claim No. B-4 for gasoline and diesel fuel delivered to the Embassy; Claim No. B-6 for liability of the Embassy for


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certain airport charges; Claim No. B-11 for failure of the Embassy to pay certain invoices for passenger tickets or carriage of goods; and Claim No. 44 for certain telephone, telegraph, and cable charges.2 Prior to the submission of statements of defence the US filed a petition requesting an order directing the production of evidence by Iran. The US claimed relevant records kept at the US Embassy, if they still existed, were in the custody or control of Iran. The US invoked Article 24(3) of the tribunal Rules as an article which authorized the tribunal to issue orders for the production of documents or other evidence. According to the US production of the records would have enabled the US to clarify the facts and narrow the issues in its Statement of Defense, and it might also have permitted the US to identify its just liabilities and thereby facilitate settlement of some of the claims. The claimants argued that Article 24 of the tribunal Rules did not apply and that the burden of proving the existence of documents at the Embassy and that they had neither been transferred to other places nor shredded by the Embassy personnel before the Embassy was occupied remained on the US. The claimants further argued, inter alia, that it was customary for embassies to send regular reports covering their financial affairs and transactions to their home countries, with supporting papers and documents, and that the invoices at issue were mostly issued long before the occupation of the respondent’s Embassy so that copies would be available in the US. They, therefore, requested the tribunal to reject the respondent’s request for the production of evidence. The US responded by producing affidavits from US diplomatic and trade officials asserting that the requested documents were kept only in Tehran. It was also stated that there were no relevant case authorities that would condition an arbitrating government’s obligation to make full disclosure of relevant evidence in its possession on proof that the evidence at one time was in existence. The US, thus, again requested that the tribunal grant

2

See Kazazi, ibid pp. 285–92 on these cases.

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its petition for an order directing Iran to produce documents. Later, in some of the cases at issue the US filed a Supplement to the petition for directing production of documents to include the claimant’s own records. The tribunal dismissed some of the claims brought against the Embassy for lack of jurisdiction.3 As for the remaining claims (Cases Nos. B-4 and B-44), on 9 December 1986, a Chamber of the tribunal issued Orders Requesting Iran to produce copies of relevant documents left in Iran. These Orders of the tribunal stated: In order to ascertain what, if any, documents of the Respondent relating to the subject matter of this case remain in existence, the Tribunal hereby requests the Claimant to file by 25 February 1987 any information and copies of all relevant documents left in Iran by the Respondent. The Tribunal will thereafter issue such orders as may be necessary for the further conduct of the proceedings.4

Iran filed submissions in response to the tribunal’s Order, wherein it stated that it was not in possession of the respondent’s alleged evidentiary materials. It was stated in Iran’s submission in Case No. B-4 that “without being under any obligations in this regard and solely in an attempt to demonstrate good faith, and in deference to the tribunal’s Order, it once again carried out investigations and even made inquiries from the relevant sources.”5 In Case No. B-44, Iran submitted that “there exist no other documents but those presented to the Tribunal and a considerable number of unpaid telephone and telex bills that are in the possession of the Tele-communication Company of Iran that the Claimant could deliver to the Respondent . . .”6 In both these cases the 3

See, e.g., Award No. 267–B18–2 (1986), 13 Iran-US CTR, pp. 161–163; Award No. 127–B3–3 (1985), 8 Iran-US CTR, pp. 89–92; and Award No. 105–B16–1 (1984), 5 Iran-US CTR, pp. 94–6. 4 Orders dated 9 December 1986, in Cases Nos. B-4 and B-44. 5 Case No. B-4, Claimant’s Memorial filed on 2 June 1987 in “Response to Order dated 3 March 1987”, p. 1. 6 Case No. B-44, Claimant’s Response to Order, dated 3 March 1987 (filed on 25 May 1987), p. 4.


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tribunal continued the proceedings reserving its right to request the production of evidence, and pointing out that the circumstances of the case would be taken into account in its final decision. The relevant part of the Orders of the tribunal stated: Without prejudice to the Tribunal’s right to request further searches for or production of documents, the Respondent shall file by 30 November 1987 its Statement of Defence on the basis of all the documents and evidence available to it. In accordance with Article 25(6) of the Tribunal Rules, the Tribunal will take into account all the circumstances of the Case, when assessing the evidence presented to it.7

Before the cases went much further in 1989 both cases were settled through negotiations.8 Consequently, the tribunal did not ask the claimants again for any further search for or production of evidence requested by the respondent. Nor did it find the opportunity to address the issue in its final awards, since they happened to be awards on agreed terms. The intervention of the tribunal in the manner it did – suspending its request in effect for production of documents but reserving its right to make a further request clearly contributed to the settlement of the case. In the Heathrow User Charges Case, an inter-State arbitration, the tribunal stepped in actively to facilitate the production of evidence both by the two parties to the case and by third parties. The tribunal was successful in its efforts.9

7

Tribunal’s Orders, dated 15 September 1987, in Cases Nos. B-4 and

B-44. 8

Awards Nos. 447–B4–2, dated 22 November 1989, and 465–B44–2, dated 24 January 1990 (not reported): see Kazazi, op. cit. note 1. 9 (1992), 102 ILR p. 216.

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Chapter 7. Measures Taken by Tribunals FACILITATION RESULTING IN SUBSEQUENT ACTION BY THE TRIBUNAL

It is sufficient to deal with two cases, which are illustrative, before the Iran-US Claims Tribunal. (i) In the Levitt Case10 the claimant, an American building contractor, had submitted a claim on behalf of a corporation named International Construction Co. (ICC), seeking, inter alia, compensation for the work that ICC had allegedly done but not been paid for, and for equipment allegedly expropriated by Iran. In response to a request for the production of documents the tribunal issued an Order for Production of Evidence requiring the Ministry concerned to submit, inter alia, “all available documents listed in Annex A to this Order, which documents have been referred to in the Respondent’s submissions indicated in the Annex.”11 The respondents subsequently filed a copy of the contract and certain new exhibits. The response also included a general comment on the Order, to the effect that unless the claimant specified the subject and reference numbers of the letters, documents and papers he was requesting, it would be impossible to fulfill such requests. The respondents further stated that complying with the Order would be too burdensome and costly for them. In response to a request by the claimant the tribunal directed the respondents to file “those documents which have not already been submitted in accordance with the Order of 15 November 1982 to the extent that such documents are available to Respondents or under Respondents’ control.” The respondent later informed the tribunal that in spite of its investigations the Ministry had not been able to obtain further documentation. In a subsequent Order regarding production of documents, the tribunal concluded that the explanation offered by the Ministry was not adequate for determining 10 11

(1991), 27 Iran-US CTR, p. 145. Ibid. at p. 149.

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whether the Ministry’s failure to provide all of the listed documents was justified under the circumstances and ordered it to provide an appropriate response. The Ministry replied that it had co-operated “extremely”, provided explanations regarding the items requested and asserted that it had not further documents at its disposal. The claimant repeated its request for documents including some additional ones. The tribunal finally issued an Order in which it was concluded that the Ministry had not fully complied with the tribunal’s earlier Order and requested the Ministry either to submit the documents listed in the Order, or to explain why certain documents could not be submitted. Giving reasons why it refused the claimant’s request for additional documents the respondent replied that it had complied with the Orders of the tribunal, and that the production of more evidence was an impossible task for it. The tribunal decided to determine first whether the respondents had complied with its Orders for the production of evidence. The tribunal noted, inter alia, that both counterclaims that the respondents filed on March 8, 1984 and April 22, 1986 included documentary evidence not previously submitted. The tribunal further recalled that in its last production Order it had put the respondents on notice that the tribunal “remains free to draw appropriate conclusions from the Ministry’s compliance with its Orders concerning production of documents. Finally, the tribunal found that the respondents had failed to submit the majority of the documents requested and had done so without supplying adequate reasons for this failure.12 The tribunal concluded that an adverse inference could be drawn from the respondent’s failure to submit evidence at their disposal. On that basis, while rejecting the claimant’s request for a default judgment, the tribunal decided to interpret the incomplete record with respect to the claim and the counterclaims in the light of the respondent’s failure to comply with the tribunal’s production Orders. In weighing the evidence, the tribunal referred to Article 24 of its Rules, in noting

12

Ibid. at p. 164.

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generally, as an initial observation, that the respondents’ failure to comply with its production Orders did not relieve the claimant of his obligation to muster all the evidentiary support at his disposal. After discussing the evidence available on record and the arguments put forward by the parties in the case, the tribunal decided the case without any further reference to the failure of the respondents to comply with the tribunal’s production Orders. However, in determining the appropriate amount of costs to be awarded to the claimant, the tribunal took account of the respondents’ failure to comply with the tribunal’s Orders for production of evidence. The tribunal observed that the respondents’ failure in that respect had caused the expenditure of far higher costs of arbitration than would otherwise have been necessary and awarded the claimant US$ 60,000, an amount higher than that usually awarded in other cases, as compensation for its extra costs. It appears that, although the tribunal referred to adverse inferences, it did not hold in favour of the claimant explicitly because of suppression of evidence by the respondent.13 Thus, it apparently did not draw an adverse inference, while it did award high costs as a penalty for what it considered a failure on the part of the respondents to co-operate. On this failure to co-operate the tribunal pointed out that: he requested documents were ones that [the Respondents] had referred to in their own pleadings. Their often contradictory and evasive explanations suggest deliberate non-compliance rather than an inability to produce. The introduction by the Respondents of exhibits not previously filed in support of their counterclaims lends further support to this suggestion.14

(ii) The same tribunal’s approach in the INA Corporation Case15 was different. A claim was made for compensation for the national13

The dissent on the point by the American arbitrator (see, ibid. at p. 193) supports this interpretation of the tribunal’s decision. 14 Ibid. at p. 164. 15 (1985), 8 Iran-US CTR, p. 373.

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ization of the claimant’s minority shareholding in an Iranian insurance company. The main contested issue was the standard of compensation and its amount. The respondent’s argument was that the company had a negative net worth, and it submitted as proof an audit report prepared by a firm of accountants practising in Iran, showing losses for the Shargh company at the date of nationalization. The claimant challenged the evidentiary value of that report, arguing that the tribunal had been furnished with insufficient information as to the basis of the valuation, the principles on which it was undertaken and the documents and data on which it was based. In spite of the fact that the tribunal required production of the material which had been made available to the firm which prepared the report, no such material was filed in response. The only explanation later offered by the respondent for not complying with the tribunal’s Order was that it was too voluminous. The tribunal nevertheless decided to admit the report of the firm as evidence but to take account of the lack of supporting documentation in assessing the evidential weight to be accorded to it. In its decision the tribunal stated: The report’s numerous references to special rules and directives of CII [Central Insurance of Iran] also make it impossible for the Tribunal to judge the validity of the valuation techniques used. The Respondent has furnished neither the texts of such rules and directives nor the underlying documents, although it was ordered to do so.16

The tribunal did not find convincing the respondent’s explanation that the requested documents were “voluminous”, particularly because it had been given at the oral hearing and without any indication of the actual amounts of material involved or any description of the alleged problems which prevented submission of the materials by the Respondent or their inspection by the claimant. In assessing the evidentiary weight of the report, the tribunal found it necessary to draw negative inferences from the respon16

Ibid. at p. 382.

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dent’s failure to submit the documents which it was ordered to produce and also concluded for other reasons that the report could not be considered to reflect the value of the company at the time of nationalization. However, it is not clear what was the effect of the “negative inference” drawn by the tribunal from the respondent’s failure to produce certain documents. The evidentiary value of the firm’s report would seem to have been affected because of the lack of underlying documents, but, as there were other reasons for doing so, this was not the only reason for rejecting the results arrived at in that report. The tribunal would not have needed to examine all the underlying documents used for the preparation of the report. In fact, that would have been contrary to the purpose of providing experts, particularly as the credibility of the firm had not been seriously challenged. But the tribunal did take note of the fact that the report itself mentioned that it had been prepared in accordance with certain directives of Central Insurance of Iran and not in accordance with generally accepted principles of accounting. This reference, together with the fact that those directives were not furnished to the tribunal by the respondent, was considered to reduce the value of the report.

INFLICTING PENALTIES International tribunals generally do not have the power to enforce the presence of a witness or production of particular evidence or information. In this respect they differ from national systems of law. International law lacks the sanction available in national legal systems generally. The CJEC, though, has a certain power which is exceptional. Under Article 48 of the Rules of Procedure witnesses who fail to appear before the Court after being duly summoned are subject to a pecuniary penalty. This penalty derives from the special nature of the CJEC. The duty of cooperation in matters of evidence in international litigation, which does exist, goes some way in enabling tribunals to facilitate, by getting involved, the administration of justice. However, it does happen that parties do not comply with the rule imposing the

Inflicting Penalties

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duty and do not carry out the measures ordered by the tribunal in order to implement it. A party may fail to produce documentary evidence without showing sufficient cause when it has been requested by the tribunal to do so or it may fail to submit to the tribunal specific or general evidence requested by the other party or ordered subsequently or proprio motu by the tribunal to be produced. In these circumstances the party concerned has failed to co-operate in the execution of the burden of proof. International tribunals have dealt with instances of non-compliance with their orders for production of specific documents in different ways. (i) When faced with non-production of evidence by a party, some tribunals have tried, to the extent possible, to base their decisions on uncontested evidence and on grounds other than those relating to the documents in dispute.17 While in claims involving sovereign States particularly this approach may enable the tribunal to avoid being critical of such States and determining whether evidence may have been withheld deliberately, there are circumstances in which the lack of evidence on record or the importance and materiality of the documents exclusively available to one party but not produced before the tribunal may affect the outcome of the case and require particular attention, regardless of whether the rules of the tribunal deal with the issue or not. (ii) Article 49 of the Statute of the ICJ empowers the Court to take formal note of any refusal regarding production of documents or explanations required by the Court. In the Corfu Channel Case (Merits), where the Agent of the United Kingdom declined on the 17

See, e.g., Article 28(3) of the Rules of the Iran-US Claims Tribunal, on the basis of which many Orders have been issued by this tribunal in different cases. See also the Corfu Channel Case, 1949 ICJ Reports at p. 32, by implication.

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ground of “naval secrecy” to produce the documents requested by the Court, the Court said: It is not therefore possible to know the real content of these naval orders. The court cannot, however, draw from this refusal to produce the orders any conclusions differing from those to which the actual event gave rise.18

The Court refrained from even taking formal note of the failure to produce evidence. Taking note of the failure of a party to cooperate with the tribunal by production of evidence is also provided for, inter alia, in Article 21 of the Statute of the CJEC and Article 18(2) of the Model Rules on Arbitral Procedure adopted by the International Law Commission and General Assembly (1958). Article 33(3) of the Arbitration Rules of ICSID, which is similar to this Article 18(2), adds that the tribunal shall also take note of any reasons given for such failure. In any event, while taking formal note of the failure of a party to produce evidence is a stronger measure than ignoring the non-production of evidence, it does not have particular teeth in itself. What the court or tribunal may do in addition is also a matter left open. There is no reason to suppose that drawing an adverse inference, for instance, is prohibited, even though and, perhaps, because express reference is not made to it. However, because international tribunals usually deal with States, the possibility that the tribunal will take formal note may per se be sufficient to encourage the parties to provide the court or tribunal with the documents or explanations required. In regard to the practice of the PCIJ it has been stated that “No case arose in which it was necessary for the . . . Court to exercise its power to take formal note of a refusal to produce a document.”19

18

1949 ICJ Reports at p. 32. Simpson and Fox, International Arbitration: Law and Practice (1959), p. 202. 19


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(iii) Some tribunals have taken a more drastic approach to the problem. They have interpreted the non-production of specific documents, believed to be exclusively at the disposal of a party, as a sign that the documents not produced would be prejudicial to the position of that party. On that basis, they have drawn an adverse inference against the party concerned. On the basis of the practice of Claims Commissions it has been concluded that international tribunals “can appropriately in certain cases draw reasonable inferences form the non-production of available evidence or from the unsatisfactory explanations of failure to produce evidence.”20 In the Parker Case, the Commission stated that “where evidence which would probably influence [the Commission’s] decision is peculiarly within the knowledge of the claimant or of the respondent Government, the failure to produce it, unexplained, may be taken into account by the Commission in reaching a decision.”21 Most Rules of Procedure of international tribunals, Compromis or Statutes are silent on the matter. However, some, such as Article 69 of The Hague Convention of 1907, which provides, with respect to the arbitral procedure before the PCA, that Le tribunal peut, en outre, requérir des agents des Parties la production de tous actes et demander toutes explications nécessaires. En cas de refus, le Tribunal en prend acte,

and Article 49 of the Statute of the ICJ make provision for action not incompatible with drawing adverse inferences, after taking note of the failure to produce evidence within a party’s control, where the latter is the only action referred to in the relevant document. Some other rules give the tribunal enough flexibility to

20

Nielsen, International Law Applied to Reclamations, Mainly Cases Between the United States and Mexico (1933), pp. 66–7. See also Sandifer, Evidence Before International Tribunals (1975) pp. 147 ff. 21 (USA v. Mexico – 1923), 4 UNRIAA pp. 39–40. See also the Kling Case (1930), 4 UNRIAA at pp. 581–2.

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act according to the circumstances of each case which may include the drawing of adverse inferences. For instance, the Rules of Procedure of the European Nuclear Energy Tribunal provides, in Article 34, that “Where a party fails to produce evidence which in the opinion of the Tribunal is relevant to the proceedings and which such party is in a position to produce, the tribunal shall take this fact into account in its decision.” However, the position may be taken that, insofar as drawing adverse inferences from the non-production of evidence is not prohibited in the rules or in any other relevant instrument of an international tribunal, the tribunal has an inherent power to draw such adverse inferences in the appropriate circumstances. The practice of the Iran-US Claims Tribunal confirms this view. The relevant instruments are silent on the matter. Article 28(3) merely states that where a party fails without sufficient cause to produce evidence required of it the tribunal may decide “on the evidence before it.” The tribunal has made adverse inferences against a party that has not produced documents exclusively available to it.22 The practice of the IACHR is similar.23 Drawing adverse inferences from non-production of evidence is not limited to instances where a party declines to produce certain evidence requested by the tribunal. The tribunal may also draw adverse inferences from the unexplained failure of a party to produce certain pieces of evidence, in the possession of that party, that would have been helpful for the defence or claim of the same party. In the Arakel Khajetoorians et al. Case the tribunal remarked as follows with respect to the dominant and effective nationality of claimants which was in issue:

22

The INA Corporation Case (1985), 8 Iran-US CTR p. 373, and the Levitt Case (1991), 27 ibid. p. 145. 23 See Buergenthal, “Judicial Fact-Finding: The Inter-American Human Rights Court,” in Lillich (ed.), Fact-Finding before International Tribunals (1992), at p. 266. See also on the Inter-American Commission on Human Rights, Farer, “Finding The Facts: The Procedures of the Inter-American Commission on Human Rights of the Organization of American States”, in Lillich (ed.), ibid. at p. 281.


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In addition, the evidence suggests that Arakel spent substantial amounts of time in Iran after 1971. Arakel admits visiting Iran as late as December 1979, and his significant business and personal interests make numerous earlier visits likely. These suggestions that Arakel continued to spend significant amounts of time in Iran make his failure to submit into evidence a copy of his Iranian passport particularly telling, since his passport would document his entries into and departures from Iran.24

The tribunal held against the claimant. The drawing of adverse inferences is an accepted mechanism in international litigation and is useful particularly because international tribunals are usually unable to compel the production of evidence. However, it has had limited application per se in disputes between States. Tribunals are not obligated to draw adverse inferences. They have a discretion to do so. This discretion has been astutely exercised with tribunals controlling their own authority in this regard. Where a party fails to produce evidence ostensibly in its exclusive possession, adverse inferences may not be the appropriate solution in every circumstance. As has been seen, the Iran-US Claims Tribunal has been fairly successful in cases where it has, first, tried to use its good offices to induce a party to produce documents. Thus, the tribunal has looked for practical measures in order to achieve co-operation by extending deadlines for the production of the documents in question and rescheduling the submissions of the parties.25 Indeed, the drawing of adverse inferences would not be proper in all cases. For instance, in the William Shashoua Case discussed above where the tribunal did not draw adverse inferences against the respondents with respect to the numerous documents for long unsuccessfully requested by the claimant, the actual outcome of the case showed that drawing adverse inferences against the respondents would have been unjust. When the respondents finally filed

24 25

earlier.

(1991), 26 Iran-US CTR, at p. 42. See, e.g., the William Shashoua Case and the Embassy Cases discussed

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the documents requested by the claimant after delays, it became obvious that the claimant’s partners had sold the property for which the claimant was seeking compensation and was not entitled to judgment. In general the practice of international tribunals shows that the basis on which international tribunals have occasionally drawn adverse inferences against a party for not producing evidence are that: (a) the documents in question must be relevant and material to the proceeding. If the non-produced documents are relevant but are not material no adverse inference need be drawn. In the Mohsen Nazari Case, for example, the Iran-US Claims Tribunal took this position when it stated: The Tribunal notes that the requested documents mainly relate to the issues of the possible valuation of SKBM and the Claimant’s equity interest in that company. Therefore, in view of the Tribunal’s findings . . . there is no need for the Tribunal to address the question of the possible impact of the Claimant’s request upon his Claims, and the Respondent’s response thereto.26

(b) the tribunal must be convinced that the requested documents are at the disposal of that party; (c) generally, the claim must otherwise appear substantial, i.e., the claimant should have made a prima facie case before the tribunal requests the other party to provide the requested documents or before drawing adverse inferences from a party’s failure to provide evidence; (d) the tribunal should have given the party against whom the adverse inference is drawn enough time and opportunity to produce the required evidence, considering the circumstances of the case and the measures at the disposal of the parties and the tribunal;

26

(1994), Iran-US Claims Tribunal, Award No. 559–221–1, para. 24. On the drawing of adverse inferences by IATs see below, Chapter 14.


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(e) the party against whom an adverse inference is drawn must not have produced documents in its possession without providing justification. Thus, explanations provided by a party as reasons for not producing the requested documents are weighed by the tribunal and taken into account before drawing any adverse inference. For instance, State may have difficulties arising from their laws or national security concerns and, thus, a tribunal would be more cautious in drawing adverse inferences against a State; (f) drawing adverse inferences does not mean that the claim of the other party need not be proved. It is only at the stage of the evaluation of evidence that the tribunal takes adverse inferences into account, and their effect depends on subjective application. If the tribunal is able to base its decision on other documents and grounds, it would do so. Applying sanctions such as taking note or drawing reasonable adverse inferences with respect to the documents not provided by a party is not the main objective of the rule of co-operation. The availability of such measures serves more to encourage the parties to provide more information and documents and deter them from non-co-operation, a real factor in the process of evaluating. Thus, the adverse inference is a last resort and is used only in special circumstances. (iv) What the failure to co-operate does not do is to shift the burden of proof. In the George Edwards Case27 the claimant was seeking compensation for breach of several contracts by an Iranian corporation of which he was the principle owner and for expropriation of equipment and personal items. He alleged that the contracts were breached as a result of the actions of the government of Iran. Iran, on the other hand, denied any responsibility with respect to his claims. All but two of the breach of contract claims were dismissed by the tribunal because of the apparent 27

(1989), 23 Iran-US CTR, p. 290.

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lack of proof as to what actions caused the breach of the contracts, or when they occurred, and how those actions were to be attributed to the government of Iran. With regard to two of the contracts the evidentiary problems extended to the existence of the contracts which had been denied by the respondents. The claimant, alleging that he had left behind in Tehran almost all of his business records, rather than asking for production of documents by the other party, suggested that “the Respondents [were] subject to inferences being drawn against them if they [failed] to offer proof in rebuttal of the Claimant’s assertions.”28 The tribunal held that the tribunal could not shift the burden of proof in this fashion.29 Consequently, that part of the claim, too, was dismissed for failure to discharge the burden of proof on the part of the claimant.

TREATMENT OF SPECIFIC PROBLEMS RELATING EVIDENTIARY CO-OPERATION

TO

There are some specific problems which have arisen in international litigation which are basically connected in some way with party co-operation. (a) Difficulties in securing evidence in general International tribunals have, where a party has genuinely encountered problems beyond its control in securing evidence, more frequently than not recognized its hardship. There is here no lack of co-operation by that party, whether there is such lack on the part of the other party or not. However, it is hardly conceivable that the disadvantages resulting from difficulties encountered by either of the parties in procuring evidence can be totally removed. While international tribunals have made efforts to deal with the difficulties, it is clear that they cannot eliminate the disadvantages completely. 28 29

Ibid. at p. 293. Ibid.

Treatment of Specific Problems

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An initial problem for a tribunal is to determine whether a claim by a party that is facing problems in procuring evidence necessary to prove its claims is genuine. Yet, it is clearly for the tribunal to decide whether or not a party is genuinely encountering problems beyond its control in securing evidence, however difficult that decision may be. The Iran-US Claim Tribunal was faced with such a difficulty in the Sola Tiles, Inc. Case.30 One of the measures used by international tribunals, in cases where production of evidence proves to be extremely difficult, is to refrain from insisting on direct evidence which is the best means of discharging the burden of proof. For instance, in the Corfu Channel Case (Merits) the ICJ allowed the UK to rely on indirect evidence as proof of its claims, since the sovereignty of Albania over its territories made it difficult to provide direct evidence. The Court took the view that the exclusive territorial control exercised by a State within its frontiers had a bearing on the methods of proof available to establish the knowledge of that State as to events occurring within its territory and that by reason of this exclusive control the other State, the victim of the breach of international law, was often unable to furnish direct proof of facts giving rise to responsibility.31 In the Rockwell Case the IranUS Claims Tribunal explained that it was prepared to decide the case on the basis of prima facie evidence because of the difficulty encountered by the claimant in obtaining evidence: Prima facie evidence must be recognized as a satisfactory basis to grant a claim where proof of the facts underlying the claim presents extreme difficulty and an inference from the evidence can reasonably be drawn. This is particularly true where the difficulty of proof is the result of the Respondent’s failure to raise objections in a timely manner and in such a way that the Claimant could adequately establish its Claim. In such a case, a lower standard of proof is acceptable . . .32

30

(1987), 14 Iran-US CTR, p. 223. There was disagreement between the majority and the minority on this point. 31 1949 ICJ Reports p. 18. 32 (1989), 23 Iran-US CTR at p. 188.

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The tribunal referred to a lower standard of proof while, nevertheless, making it clear that it was necessary that an inference from the evidence could reasonably be drawn. There is a contradiction here. If an inference can reasonably be drawn from prima facie evidence, the standard of proof which is generally applied by the tribunal in these cases, namely that of preponderance of evidence, is satisfied. It could not then be said that a lower standard of proof was applied. Another measure, not too different from allowing the proponent to rely on indirect evidence, is to take into account in the tribunal’s techniques of evaluating the evidence the proponent’s difficulties in obtaining evidence which do not show a lack of co-operation on his part. As was stated in In re Odell by the British-Mexican Claims Commission, “the weighing of outside evidence . . . may be influenced by the degree to which it was possible to produce proof of better quality” and “where it is obvious that everything has been done to collect stronger evidence and where all efforts to do so have failed, a court can be more easily satisfied than in cases where no such endeavor seems to have been made.”33 It does not emerge that the actual standard of proof is affected by difficulties in securing evidence, though the technique of evaluation may be modified. It must also be noted that, even in cases where as a result of special circumstances the difficulty of supplying proof is present, arbitral tribunals have been careful not to allow this to “lead to a state of affairs where mere allegations submitted by a complainant . . . may be accepted as prima facie evidence.”34 It follows that the basic rule of the burden of proof cannot be totally ignored even in cases where the proponent is facing difficulties for whatever reason in producing evidence. In the Dallal Case in which the claimant chose, on the ground of his alleged concern for the safety of other people, not to provide the tribunal with the information which was material 33

(1931), 6 ILR at p. 424. See the Levis and Levis Case, Arbitral Commission on Property, Rights and Interests in Germany (1959), 28 ILR at p. 523. 34


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for his claim, the Iran-US Claims Tribunal dismissed the case, relying on “the truism that a man may have a good case, but if he cannot prove it, he cannot prevail.”35 The same tribunal, in the Jalal Moin Case, while “mindful of the difficulties, faced by the claimant in collecting evidence,” rejected the claim for the alleged expropriation of his properties on the ground that it had not been substantiated, stressing the need to base its decisions on probative evidence.36 Further, it is equally important that, when the difficulty in producing evidence arises from the act of the actor himself, he has failed to co-operate and the difficulty cannot be invoked as an excuse. Thus, in a case before the Mexico-United States General Claims Commission the plea of Mexico that it was not possible to produce records because they were destroyed by American naval forces was rejected, since on the basis of the documents before it the Commission found that the records in question had apparently been mislaid or destroyed by Mexican officials.37 (b) Documents in the possession of the other party Where documents necessary for proving the actor’s claim are in the possession of the other party, there are two considerations that become relevant. First, the burden of proof rests on the actor, not on the other party. Second, co-operation of the parties in matters of evidence is a principle of international litigation. However, to the greatest extent possible, international tribunals have usually refrained from getting involved in issues raised by the possession of documents by the other party, and have also endeavoured to avoid basing their judgments on the consequences resulting from difficulties arising from such issues. In cases where the documents in question were alleged to be in the possession of the adversary, but no proof the that effect 35

(1983), 3 Iran-US CTR at p. 17. (1994), Award No. 557–950–2, para. 19. 37 The Mary Ann Turner Case, Mexico-U.S.A. General Claims Commission (1927), 4 ILR p. 483. 36

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was provided, international tribunals have rejected the claims, if the burden of proof had not been discharged, without allowing the question of documents to affect their decision on the standard of proof. Certainly also, the situation that arises in such cases does not result in the shifting of the burden of evidence or the burden of proof as such to the other party, which might be in a better position to provide the desired documents and information. In the George Edwards Case the claimant alleged that he had left behind in Iran almost all of his business records, and argued that the respondents were subject to inferences being drawn against them if they failed to offer proof in rebuttal of his assertions. The Iran-US Claims Tribunal, while being mindful of the difficulties faced by the claimant in producing evidence, held that, where there was no evidence that the respondent came into actual possession of the document in question, the tribunal could not shift the burden of proof, as suggested by the claimant.38 Occasionally, under special circumstances, where it is clear that the proponent of the burden of proof is not able to provide a particular piece of evidence or information, because it is obviously being held by the other party, the tribunal may take specific action in terms of proof, such as drawing adverse inferences. For instance, in the Lighthouses Arbitration it was held that the claim must succeed, despite the paucity of evidence, because in the circumstances of the case, “it would be unreasonable, and contrary to law, to require of the firm strict proof of the amounts which it lost under this head; it is rather for the Greek Government to provide now the necessary information.”39 Such negative inferences are normally limited to circumstances where a party has failed, without justification, to adduce as evidence the documents proved to be in its sole possession and required by the tribunal. It is to be noted that the standard of proof is not affected – only negative inferences are made.

38

(1989), 23 Iran-US CTR at p. 293. See also the H.A. Spaulding, Inc. Case (1986) 10 Iran-US CTR at p. 31. 39 France v. Greece, Claim No. 6, PCA (1956), 23 ILR at p. 678.


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(c) Voluminous evidence There have been cases before the Iran-US Claims Tribunal in which the problem of voluminous, time-consuming and costly evidence had to be considered. There is here obviously no absence of co-operation, but rather the opposite! These cases concerned proof of US nationality of the claimant. Publicly held corporations had to prove, inter alia, according to the requirements of the law governing the arbitrations, that more than fifty per cent of their shares belonged to American natural persons, and that they had continuously owned the claim from the time it arose until 19 January 1981, when the Algiers Declarations were concluded. The question was what proof must be expected of a company with millions of shares and numerous shareholders. The tribunal in the Flexi-Van Case took the view that: In these circumstances, it must be recognized that it is neither possible nor necessary to require submission, as the Respondent proposes, of detailed evidence such as either passports, birth certificates or certified copies of naturalization documents for each of the thousands of individuals who collectively own, directly or indirectly, more than 50% of the capital stock of Flexi-Van corporation.40

The tribunal also referred to the fact that the identity of shareholders of United States publicly-traded corporations was safeguarded to protect confidentiality as another particular difficulty that would arise if submission of voluminous lists of the names and addresses of all shareholders were required.41 It then said: The burden on the claimant would be to attempt to gather such evidence, much of which is not in its possession; the burden on the Respondent would be to review it; and the burden on the Tribunal would be to receive and evaluate it. It is not possible for the

40

Order of 20 December 1982 in the Flexi-Van Case, 1 Iran-US CTR at p. 457. 41 Ibid.

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Chapter 7. Measures Taken by Tribunals Tribunal to estimate the amount of time which would be needed by the parties and itself to accomplish such tasks, but it is likely that any such requirement would significantly delay the arbitral proceedings in this and many other Cases.42

The tribunal, relying on the fact that, when faced with similar problems in the past, other tribunals had required what they considered to be sufficient evidence and from that had drawn reasonable inferences, issued a guideline on what would be acceptable to the tribunal in the circumstances of the case as prima facie evidence.43 However, in other situations the same tribunal was more cautious. For example, the relatively flexible approach reflected in its guidelines for proof of the nationality of publicly held corporations in the Flexi-Van Case and the General Motors Case was not extended to such questions as the amount of proof required to establish that a corporation is wholly owned by another corporation. With respect to such issues the tribunal refused to accept the “indirect and uncertain indications” permitted in the Flexi-Van Order in lieu of conclusive evidence available to the claimants.44 (d) Absence of a party Another type of difficulty which may confront an international tribunal in connection with proof arises from the absence of one of the parties to the proceedings. The importance of the presence and participation of parties in establishing disputed facts in an international arbitral or judicial proceeding cannot be overlooked and clearly difficulties arise from non-appearance of a party. In the Nicaragua Case (Merits), for example, the ICJ pointed out that:

42

Ibid. Ibid at p. 458. The Order in the Flexi-Van Case was complemented by the Order in the General Motors Case, Order of 21 January 1983, 3 Iran-US CTR, pp. 1–2. 44 See the International Ore and Fertilizer Corporation Case (1988), 18 Iran-US CTR, p. 98. 43


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One of the Court’s chief difficulties in the present case has been the determination of the facts relevant to the dispute. First of all, there is marked disagreement between the parties not only on the interpretation of facts, but even on the existence or nature of at least some of them. Secondly, the respondent State has not appeared during the present merits phase of the proceedings, thus depriving the Court of the benefit of its complete and fully argued statement regarding the facts. The Court’s task was therefore necessarily more difficult . . .45

The risk of non-appearance of the respondent seems to be by far greater in proceedings before an international tribunal such as the ICJ than in an inter-State arbitration.46 However, the standard of proof in such cases is not affected. The absent party neither benefits nor is prejudiced, as far as the standard of proof is concerned, by mere reason of its absence. Article 53(2) of the Statute of the ICJ addresses the issue by providing, inter alia, that in cases where one of the parties does not appear before the Court, before deciding in favour of the claim of the other party, the Court “must . . . satisfy itself . . . that the claim is well founded in fact and law.” As was stated by the Court in the Nicaragua Case (Merits), The use of the term ‘satisfy itself’ in the English text of the Statute (and in the French text the term ‘s’assurer’) implies that the Court must attain the same degree of certainty as in any other case that the claim of the party appearing is sound in law, and, so far as the nature of the case permits, that the facts on which it is based are supported by convincing evidence.47

The prescription in Article 53(2) does not conflict with the provision of Article 53(1) that, where “one of the parties does not appear before the Court, or fails to defend its case, the other 45

1986 ICJ Reports at p. 38. See, e.g., Kingsbury, “Developments in Dispute Settlement: Inter-State Arbitration since 1945”, BYIL (1992) at pp. 114–15. 47 1986 ICJ Reports at p. 24. 46

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party may call upon the Court to decide in favour of its claim,” even though one text writer has stated that: Sous les prétexte de respecter son § 2, c’est pratiquement le § 1 de l’article qu’abandonne sa jurisprudence, le droit du demander d’obtenir que ses conclusions lui soient adjugées étant, à l’expérience, parfaitement théorique.48

This provision merely entitles the party affected to “call upon” the Court to hold in its favour. It does not refer to the obligations of the Court which are dealt with in Article 53(2). The implication at most is that the Court must give such a request fair and serious consideration.49

48

Verhoeven, “Le Droit, Le Juge et La Violence, Les Arrêts Nicaragua c. États-Unis”, 4 RGDIP (1987) at p. 1196. 49 In international commercial arbitration too the absence of one party does not affect the standard of proof. In the LIAMCO Case, for instance, in spite of the fact that the arbitration proceeded in default of the respondent, the sole arbitrator based his Award “only upon such facts as were satisfactorily proved by the Plaintiff”: (1977), 62 ILR at p. 181.

8 MECHANICS OF PROOF: POWERS OF TRIBUNALS

In litigation in general, whether national or international, judges and arbitrators are to decide cases on the basis of the evidence submitted by the parties. They do not find evidence proprio motu in favour of or against either party, because that would interfere with the independence and impartiality expected of them. However, a rigid adherence to this position may result in unreasonable and unjust decisions. Most national systems find a way out of the dilemma by recognizing some exceptions which allow a limited freedom to judges to investigate the disputed facts by applying particular measures when needed in the circumstances of the case. For example, questions may be put by the court to the witness brought by a party or issues of a technical nature may be referred to an expert by the adjudicating body. Judges are required to preserve their impartiality while taking an active part in the proceedings for the purpose of establishing facts, regardless of which party the results may favour.

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Chapter 8. Mechanics of Proof: Powers of Tribunals

In international law and because of the inherent flexibility of international procedure, the authority of international tribunals proprio motu to investigate the facts at issue is recognized. But the authority of tribunals with respect to matters of evidence which is important in international proceedings is not to be exercised in a manner that may endanger the impartiality of the tribunals. International tribunals are expected to intervene in matters of evidence with due regard for impartiality and for the fundamental principles of the equality of the parties and the necessity of providing parties with a full opportunity to present their claims and defences. International tribunals have the authority to take a wide range of measures each of which may have an impact on the question of proof. The exercise of this authority may lead to clarification of some aspects of a given case to the detriment or benefit of the party which bears the burden to prove its claim. Further, in answering the question whether the party which bears the burden of proof has discharged the burden, not only is the evidence adduced taken into account but evidence produced as a result of measures taken by the tribunal is considered. It is on the basis of the accumulated effect of the efforts made by the parties and the tribunal that the discharge of the burden of proof is decided.

PRESENTATION

OF

PLEADINGS

AND

EVIDENCE

International tribunals, including the ICJ and arbitral tribunals, usually determine the scheduling for submission and exchange of briefs and evidence by the parties.1 These schedulings, including the directions made by international tribunals with respect to the number, order and time of filing of the pleadings and evidence, have a decided impact on the discharge of the burden of proof. However, in scheduling the submission of memorials and evi-

1

See Articles 44 ff. of the ICJ Rules of Court, Articles 60 ff. of the ITLOS Rules of the Tribunal.

Presentation of Pleadings and Evidence

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dence international tribunals usually consider the views and needs of the parties and take into account as much as possible any agreement on such matters into which they may have entered. In the case of the ICJ, for instance, it is provided that the President shall ascertain the views of the parties with regard to questions of procedure and that the Court shall make the necessary orders in the light of the information obtained by the President, taking into account “any agreement between the parties which does not cause unjustified delay.”2 There are different methods adopted in regard to the filing of evidence, and much will depend on whether the evidence must be submitted together with the written statements of the parties. For example, Article 50(1) of the Rules of the ICJ provides that “There shall be annexed to the original of every pleading certified copies of any relevant documents adduced in support of the contentions contained in the pleading”, while Articles 18 and 19 of the Rules of the Iran-US Claims Tribunal provide that claimants and respondents are advised only to annex to their statements such documents as will serve clearly to establish the basis of their claim or defence and a reference to and summary of relevant portions of such documents or quotations of relevant portions of such documents. While at the preliminary stage of the proceedings the power of international tribunals to schedule and determine the number and order of filings of evidence may be limited because of agreement between the parties or the predetermined rules of procedure, the situation is quite different after the filing of written statements by the parties. Whether or not the parties file their evidence together with their written statements, after that stage up to the end of the proceedings, the scheduling, order, scope and admission of the evidence is usually left by the parties to the discretion of the tribunal. This power of international tribunals could 2

See Articles 31 and 44 of the ICJ Rules of Court. In criminal proceedings, such as those of the ICTY and ICTR, the written indictment takes the place of written pleadings. For further consideration of the practice of the ICTY see chapter 15 below.

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have an effect on the burden of proof because it may extend or limit the maneuverability of the actor.3 The tribunal has the power, of course, to call for evidence at any time from any party, as the ITLOS did in the “Grand Prince” Case.4 Sometimes the Rules or Rules of Procedure of the tribunal provide for this, as do Articles 77 and 78 of the ITLOS Rules, Article 62 of the ICJ Rules of Court and Article 17 of the UNAT Rules. However, the principle is applicable even absent express provision.

ORAL PROCEEDINGS There are detailed provisions relating to oral proceedings in the Rules of the ICJ.5 The practice in regard to oral proceedings, whether pursuant to rules or otherwise, may vary from tribunal to tribunal. The Rules of ITLOS more or less follow the pattern of the ICJ Rules.6 The Rules of the Iran-US Claims Tribunal are rather strange in regard to oral proceedings7 but the tribunal has developed a practice in this regard.8 What is of interest here is that in oral proceedings witnesses may be produced and questioned and documents may be referred to, produced, and critically examined and discussed by the parties. There are some variants of this position in criminal proceedings.

3

The details are not discussed here because what is of interest is the exercise of the power of international tribunals and not the exact theoretical content of the power itself, which is not a matter of evidence particularly. The practice of the Iran-US Claims Tribunal is outlined in Kazazi, Burden of Proof and Related Issues (1996) pp. 161–2. 4 (2001), Case No. 8, <www.itlos.org>. 5 See Articles 50 ff. 6 See Articles 69 ff. 7 See Articles 24, 25, 27 and 28 of the Rules. 8 See Kazazi, op. cit. note 3, pp. 162 ff.

Acceptance or Refusal of Further Pleadings and Evidence

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ACCEPTANCE OR REFUSAL OF FURTHER PLEADINGS AND EVIDENCE Tribunals are not finally bound by the time limits set by them for filing briefs and evidence by the parties. They possess the power, in the absence of the parties’ agreement to the contrary, to extend the time specified for submission of pleadings and evidence, or to refuse to consider pleadings and evidence not filed within the specified time-limits. For instance, Article 52 of the Statute of the ICJ provides that “after the Court has received the proofs and evidence within the time specified for the purpose, it may refuse to accept any further oral or written evidence that one party may desire to present unless the other side consents.” Even where specific reference is not made to this authority in the governing law, international tribunals have not hesitated to use this authority liberally. Thus, the Rules of the Iran-US Claims Tribunal provide that the tribunal has power to set and extend time-limits for the submission of pleadings and evidence by the parties, but do not specify that the tribunal must refuse to accept untimely submissions. The tribunal has without difficulty exercised its discretion in accepting or refusing late filed evidence.9 In general, the tribunal has in many cases accepted late filed evidence but has provided the other party an opportunity to answer and rebut that evidence.10 As was stated by the full tribunal in its Interlocutory Award in an important case between the two governments, “given the practice of this and other tribunals, . . . the defence should not be barred on the grounds of having been raised in an untimely fashion.”11 9

See, e.g., Case No. 256, August F. Bendix, Jr., et al., v. Iran (Order of 10 February 1987, Cases No. 844 and 816), Vera-Jo Miller Aryeh v. Iran (Order of 20 February 1987). 10 See, e.g., Case No. 389, Westinghouse Electric Corporation v. The Islamic Republic of Iran Air Force et al. (Order of 29 August 1986) and Case No. 284, Otis Elevator Company v. The Islamic Republic of Iran (Order of 14 July 1986). 11 Case No. B1, Full Tribunal, Islamic Republic of Iran v. The United States of America (1986), 10 Iran-US CTR at p. 207.

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Chapter 8. Mechanics of Proof: Powers of Tribunals MEASURES APPLIED

TO

FIND FACTS

The power of international tribunals to ask for the production of evidence or to investigate the facts at issue proprio motu is accepted. For example, the Statute of the ICJ provides specifically in Article 49 that “the Court may, even before the hearing begins, call upon the agents to produce any document or to supply any explanations”, and in Article 50 that “the Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.” These powers are elaborated upon in the Rules of Court.12 The rules of procedure of international tribunals usually provide for such powers.13 Such powers of international tribunals, it must be noted, appear to be inherent and in any case international tribunals are entitled to require parties to produce evidence and proprio motu to investigate the disputed facts. While parties in theory may always agree to the contrary,14 in practice this is not done. Indeed, parties generally give such powers to tribunals. There are numerous measures which international tribunals may take in order to exercise their fact finding power: (a) The most common among these measures is the power of international tribunals to request the parties in general to furnish relevant documents and information at their disposal. This measure is applied frequently as a general means of fact finding. It will be discussed in some detail below. The exercise of the power is somewhat complicated. International tribunals may also request production of specific documents or information depending on the circumstances of the case.15

12

See Articles 61, 62, 66, 67 and 68 of the Rules of Court (ICJ). See, e.g., Articles 76, 77, 81, 82 and 83 of the Rules of ITLOS; Revised Rules of Procedure of the European Court of Human Rights (1982), paragraphs 1 and 2 of Rule 40. 14 See Article 43 of the ICSID Convention which provides for such agreement. 15 See, e.g., Starrett Housing Corporation, et al. v. Iran, Case No. 24, 13

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Sometimes the tribunal will draw up a suitable questionnaire for both or one of the parties. It may also be that a party is requested to provide necessary explanations in order to clarify its position on a specific issue or document. The ITLOS has regularly indicated to the parties the issues to be addressed.16 Further, questions may be put to the parties by the tribunal during the course of oral proceedings. Some IATs, such as the UNAT, have an established practice of putting questions to the parties, even in writing. Affidavits by the parties or third persons are a form of written evidence. As for the forms of documents, in the Island of Palmas Case17 the tribunal held that the true copies of documents certified evidently by the competent authorities of the Netherlands government were adequate as documentary evidence. The same applied to documents in the archives of the East India Company or the Netherlands government. The view was expressed that there was no need for facsimiles. In the Hatton Case18 it was said that the formalities required by the local law for the authentication of a receipt did not apply before the tribunal. In two cases before the ICJ, two judges in Separate Opinions expressed the view that the Court should have intervened in

Chamber One, Scheduling Order of 18 May 1982. On documentary evidence in the ICJ see Rosenne, 3 Law and Practice of the International court of Justice (1997) pp. 1085–6. Documentary evidence in the IACHR is discussed in Buergenthal, “Judicial Fact-Finding: the Inter-American Human Rights Court,” in Lillich (ed.), Fact-Finding by International Tribunals (1991) at pp. 266 ff. The problem of discovery of documents in International Administrative Tribunals is discussed in C.F. Amerasinghe, 1 Law of the International Civil Service (1994) pp. 605 ff. The approach in all cases is more or less the same as discussed above. In the IATs orders for discovery are very much at the discretion of the tribunal. 16 See, e.g., the “M/V Saiga” (No. 2) Case (1999), Case No. 2; the Southern Bluefin Tuna Case (1999), Cases No. 3 and 4 (Provisional Measures); the “Grand Prince” Case (2001), Case No. 8; all on <www.itlos.org>. 17 [1928], 2 UNRIAA at p. 842. 18 [1928], 4 UNRIAA at p. 332.

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Chapter 8. Mechanics of Proof: Powers of Tribunals the procedure in order to inform itself. In his Separate Opinion in the Barcelona Traction Case (Second Phase) Judge Fitzmaurice argued that because of the non-availability of appeals or other recourse in international proceedings the Court should have investigated the issue of the Canadian nationality of the Barcelona Company that the parties had not raised: The parties should have been requested to present a full argument on the subject. It was not enough, in my opinion, to proceed on the basis that since neither party had contested the Canadian nationality of the Barcelona Company, and both had proceeded on the assumption that the Company was Canadian, the Court was not called upon to speculate otherwise. Such an attitude may be quite in order in domestic courts where, normally, appeals or alternative procedures exist. It is not appropriate to international proceedings in which, almost always, there are no possibilities of appeals or other recourse. In this field the principle of caveat actor can be carried too far, when the point involved is not at all merely incidental but could be of major importance for the outcome of the case.19

Judge Bustamante, in his Separate Opinion in the Barcelona Traction Case (Preliminary Objections), recognized the intricate relationship between the power of international tribunals to ask for production of evidence and information and the duty of the proponent of the burden of proof, and argued in favour of the use of the power of international tribunals. After criticizing the Court for not requiring the parties, proprio motu, to furnish it with relevant document or information concerning specific issues of the case, Judge Bustamante stated:

19

1970 ICJ Reports at p. 84. See also, e.g., Dissenting Opinion of Judge Schwebel, the Nicaragua Case (Merits), 1986 ICJ Reports at p. 322, where he criticizes the Court for not carrying out a fact-finding enquiry under the authority of Article 50 of its Statute.


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I naturally accept that in each case the onus of proof is placed on one of the parties, but it is also true that the overriding interests of justice give the Court the faculty of taking such steps as are possible to induce the parties to clarify what is not sufficiently clear.20

(b) A measure, which is used in arbitral proceedings and assists the tribunal in assessing the ability of the parties to produce documents is a pre-hearing conference. A pre-hearing conference is an informal meeting between members of the tribunal and parties, which usually is held at the early stages of the proceedings. It enables both parties and the members of the tribunal to make an initial evaluation of the issues in the case and to clarify matters relating to the time schedule, production of evidence and other procedural issues. Normally there is no specific reference to pre-hearing conferences in major arbitral Rules such as the UNCITRAL Arbitration Rules and the Rules of the Iran-US Claims Tribunal. However, in the case of the latter Note 4 to Article 15 provides: The arbitral tribunal may make an order directing the arbitrating parties to appear for a pre-hearing conference. The pre-hearing conference will normally be held only after the Statement of Defence in the case has been received. The order will state the matters to be considered at the pre-hearing conference.

As the experience of the Iran-US Claims Tribunal shows, these pre-hearing conferences have been, inter alia, useful for the tribunal and the parties in clarifying claims and counterclaims and the major issues involved in the case.21 Indeed, on some occasions such conferences led to eventual out-ofcourt settlements. (c) As regards witnesses, international tribunals do not in principle call witnesses of their own, though they may do so. Article 47 of the Rules of Procedure of the CJEC explicitly 20 21

1964 ICJ Reports at p. 84. UNCITRAL has evolved guidelines on pre-hearing conferences.

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gives the Court the power to summon a witness on its own motion. The tribunals normally do not have the power to compel the presence of a witness at the request of parties.22 In the Lehigh Valley Railroad Company Case (No. 2) the tribunal stated that it had no power to issue subpoenas on witnesses in the absence of provision in the compromis, even though the legislation of one of the parties authorized it to do so.23 The parties are expected to call witnesses and secure their attendance. In the case of the IATs, moreover, the hearing of witnesses is entirely at the discretion of the tribunals.24 Tribunals are free to question witnesses introduced by the parties and to require them to provide more explanations on specific issues. Using expert witnesses is also becoming a common practice in proceedings before international tribunals, particularly in cases involving technical issues. This kind of witness is helpful in avoiding reference by the tribunal of the case to independent experts at a later stage. The ICTY and ICTR, as criminal tribunals, permit cross examination of witnesses. The ITLOS too has permitted cross examination of witnesses in oral proceedings.25 (d) Referring the technical issues of a case to independent experts appointed by the tribunal is another measure used in international proceedings.26 Often specific reference is made

22

See the Salem Case [1932], 2 UNRIAA at pp. 1197–8, where it was also said that international proceedings are generally confined to written evidence. Some special matter relating to witnesses and oral evidence in criminal cases are discussed in Chapter 15 herein. 23 [1931], 8 UNRIAA at p. 103. 24 For the practice relating to the calling of witnesses in IATs see C.F. Amerasinghe, 1 op. cit. note 15, pp. 612 ff. 25 See, e.g., the “M/V Saiga” (No. 2) Case (1999), Case No. 2, <www.itlos.org>. 26 See, e.g., the Corfu Channel Case, 1949 ICJ Reports p. 237. On the use of experts by the ICJ see Rosenne, 3 op. cit. note 15, pp. 1090–1, and “Fact-Finding before the International Court of Justice,” in Heare (ed.), International Law and the Hague’s 75th Anniversary (1999) pp. 47 ff. The ICJ cannot be faulted for not using experts in the Nuclear Weapons Case, 1996


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to this power of the international tribunal in the constituent instrument or compromis.27 The Iran-US Claims Tribunal has exercised this power in a few cases, the more important being cases concerning valuation of the property rights in a construction project, involving complex accounting matters, as in the Starrett Housing Corporation Case,28 cases where there were technical questions related to the construction of a dam, as in the Richard D. Harza Case,29 and cases where there were issues relating to the annual production of crude oil expected at a certain date from some oil fields in Iran, as in the Arco Exploration, Inc. Case and the Sun Company, Inc. Case.30 Different aspects of referring issues to experts include determination of terms of reference by the tribunal, providing the appointed expert with documents and information given by the parties through written submissions and oral sessions, and site inspection by the experts. In the Starrett Housing Corporation Case the Iran-US Claims Tribunal critically considered seeking assistance from an expert in the ICJ Reports p. 226, or the WHO Nuclear Weapons Case, (1996) ICJ Reports p. 66. The facts were so eminently clear in regard to the effects of nuclear weapons that the Court was not called upon, inter alia, to incur additional expense and delay consulting experts. The extensive explanations and examination given by Judge Weeramantry (in his dissent in the Nuclear Weapons Case (1996 ICJ Reports at pp. 429 ff.)) on this aspect were excessive and unnecessary, because the issue was not in essence seriously contested. For the practice of IATs see C.F. Amerasinghe, 1 op. cit. note 15, pp. 615 ff., and “Problems of Evidence before International Administrative Tribunals,” in Lillich (ed.), op. cit. note 15 at pp. 222 ff. 27 See Article 27(1) of UNCITRAL Rules and Iran-US Claims Tribunal Rules, Article 50 of the Statute and Article 67 of the Rules of Court of the ICJ. 28 (1987), 16 Iran-US CTR at p. 112. 29 (1986), 11 Iran-US CTR at p. 112. 30 Cases No. 20 & 21, Chamber One, Order dated 13 June 1990. On the use of experts see also the decision of the Conciliation Commission in the Industrie Vincentine Elettro-Mecchaniche Case (1955), 13 UNRIAA at pp. 367–9. This case involved a conciliation procedure but the views hold good for adjudicatory proceedings.

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Chapter 8. Mechanics of Proof: Powers of Tribunals field for drawing up the terms of reference,31 but later abandoned the idea. The tribunal usually strikes a balance between the degree of necessity and materiality of resorting to experts and the related costs and the delay that it may cause. While usually the experts are appointed before the close of the proceedings and at a stage where the parties will have the chance to comment on or challenge their opinion, the practice of the Iran-US Claims Tribunal shows that the tribunal has exceptionally sought assistance from accountants during the deliberation process without notifying the parties.32 In the Lehigh Valley Railroad Company Case (No. 3)33 the tribunal had doubts on the authenticity of a document. The assistance of experts (more than one) was sought. They disagreed, although their opinions appeared to be honest. The tribunal said that at best the evidence of experts is only an aid to its judgment and that that evidence may not always in and of itself be so conclusive as to carry conviction. Ultimately the issue of authenticity had to be decided by the tribunal. Article 9(1) of the ICJ Rules of Court allows the court to appoint either proprio motu or on a request, “assessors to sit with it without the right to vote.” There it is allowed by the Rules of Court, and the assessors are appointed publicly and with the knowledge of parties. The practice, sometimes used elsewhere, of seeking advice from experts during the deliberation process without the knowledge or authorization of parties, would, however, deprive the tribunal of the benefit of the parties’ views regarding both the experts’ appointment and opinions. It could also be viewed by the parties as an unauthorized delegation of some of the most important functions of the tribunal.

31

Order dated 20 September 1982 by Chamber One. See Kazazi, op. cit. note 3, p. 173. This procedure of the tribunal is not conducive to a fair trial. 33 [1932], 8 UNRIAA at p. 121. 32


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(e) Another fact finding measure used by international tribunals is descente sur les lieux or site inspection. Members of international tribunals may, through application of this measure, visit and examine the subject or the place of dispute personally. By such a measure the tribunal informs itself as to facts.34 Site inspection or visit to the place has not been included in many international proceedings. It is, however, an important means of proof in border disputes between States, and international tribunals have usually benefited from resorting to site inspection in such disputes. In the case of the Iran-US Claims Tribunal, perhaps because of the commercial nature of most of the large cases before it, the tribunal has generally not issued any order for site inspection. In a few cases, the experts appointed by the tribunal have visited some sites and projects in Iran on their own initiative.35 As a substitute for site inspection, occasionally, parties produced slides, photographs and films taken from the sites relevant to a pending dispute and showed them during the course of the hearing of the case as a part of their pleadings.36 (f) Inquiry from third parties not involved in the case is another measure occasionally applied by international tribunals. For instance, the ICJ is empowered, by both its Statute and Rules, to request public international organizations to provide information relevant to cases before it.37 Moreover, Article 34(2) of the Statute and Article 69(2) of the Rules of Court of the

34

On visitation to the site (descente sur le lieu) by the EComHR see Frowein, “Fact-Finding by the European Commission of Human Rights,” in Lillich (ed.), op. cit. note 15 at pp. 244 ff. For the PCIJ see the Meuse Case (1937), PCIJ Series A/B No. 70 p. 9 and Order of May 13, 1937, PCIJ Series C 81, pp. 553–4. For an arbitration see the Tillett Case (1890), 92 B.F.S.P. (1899–1900) at p. 105. For the ICJ see the Gabœíkovo-Nagymaros Project Case, 1997 ICJ Reports at p. 14, where the judges of the Court visited the site. 35 The Starrett Housing Corporation Case (1987), 16 Iran-US CTR at p. 118. 36 Ibid. 37 See Article 34(2) of the Statute and Article 69(1) of the Rules of the ICJ.

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Chapter 8. Mechanics of Proof: Powers of Tribunals ICJ envisage a situation where a public international organization sees fit to furnish, on its own initiative, information relevant to a case before the Court. Article 69(4) of the Rules of the ICJ also states that “the term ‘public international organization’ denotes an international organization of States.” Furthermore, where in cases before the Court the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is involved, the Registrar, on the instruction of the Court, shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings, and the organization, within the time-limit fixed by the Court, may submit its observations in writing.38 That is, however, a situation of a limited nature and apparently envisages only the right of submitting “observations” rather than “evidence”. Note 5 to Article 15 of the Iran-US Claims Tribunal Rules authorizes the tribunal to permit, under some conditions, one of the two governments or any other person who is not a party in a particular case to assist the tribunal by presenting oral or written statements. According to Note 5 to Article 15 of the Rules, The arbitral tribunal may, having satisfied itself that the statement of one of the two Governments – or, under special circumstances, any other person – who is not an arbitrating party in a particular case is likely to assist the tribunal in carrying out its task, permit such Government or person to assist the tribunal by presenting oral or written statements.

In practice the tribunal has applied Note 5 to Article 15 of the Rules only in a few instances; either through a request by one of the two governments or a person, or on the initiative of the tribunal. (g) Judicial notice is also a measure through which an international tribunal can rely on some facts in a pending case with38

Article 34(3) of the Statute and Article 69(3) of the Rules of Court.


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out requiring the party that seeks to rely on them to provide proof thereof. Judicial notice, though different in nature from the other measures referred to above, is among the factfinding measures available to international tribunals. While the scope of application and the facts to be judicially noted by international tribunals may be subject to argument in a case, the concept of judicial notice itself is clearly accepted in international procedure and is applied by tribunals including the ICJ.39 In the Island of Palmas Case, the tribunal referred to its power to consider notorious facts, by taking judicial notice of them.40 Moreover, as was stated by the ICJ in the Fisheries Jurisdiction Cases, the Court “as an international judicial organ, is deemed to take judicial notice of international law.”41 This statement refers to law but is relevant to the concept of judicial notice. In the Nuclear Tests Cases the ICJ took note of certain facts secured proprio motu and used them, without requesting comments from the parties, in coming to its decision.42 While taking judicial notice of facts is permitted, it may not be appropriate procedure not to refer such facts to the parties for comment before relying on them in the case. The issues discussed in this section are important, because they do affect the rights and duties of the parties relating to the burden of proof. While it would seem that international arbitral tribunals played a more active part than permanent international courts in involving themselves in fact-finding, the practice of international tribunals in general shows that in this respect no uniform conduct has developed. It would seem that the degree of

39

See, e.g., Sandifer, Evidence Before International Tribunals (1975) pp. 382–97. 40 [1928], 2 UNRIAA at pp. 841–2. See also the Fabiani Case [1896], La Fontaine at p. 344, for a similar view. 41 1974 ICJ Reports at p. 9. 42 1974 ICJ Reports at pp. 259, 263 ff.

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involvement of tribunals in fact-finding depends on the circumstances of each case, it being left to the knowledge and understanding of the judges to decide when and to what extent to intervene and to use the tools they have for such intervention. It may also be noted that in the case of criminal proceedings the emphasis is on oral evidence, subject to cross-examination, as opposed to other methods of proof. However, some of the other means of proof discussed in this chapter, such as descente sur les lieux and judicial notice of egregious facts are available. Documentary evidence, including affidavits, play less of a role in criminal proceedings. Special aspects of criminal procedure relating to evidence are discussed below in Chapter 15.

9 ADMISSIBILITY OF EVIDENCE: POWERS OF TRIBUNALS

In national law there are generally some restrictions imposed by the courts on what is admissible as evidence. In some countries means of proof are exclusively laid down by law and courts are not allowed to accept any evidence as proof other than that specified.1 At the same time, tribunals may call for evidence, including documentation, at any time.2 Article 77(1) of the ITLOS Rules provides for this power as do Article 62(1) of the ICJ Rules and Article 17 of the UNAT Rules. But tribunals have this power whether their Rules provide for it or not. The limitation is applicable particularly when the law provides that only a particular form of proof can be accepted and excludes the other forms of proof as inadmissible. For example, there are some limitations on the admissibility of testimonial evidence in France and Belgium.3 1

See Dalloz, Répertoire de procédure civile, paras. 123 & 169. See the “Grand Prince” Case (2001), <www.itlos.org> para. 12. 3 See the French Decree of 15 July 1980, and Article 1341 of the Belgian Civil Code. 2

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Chapter 9. Admissibility of Evidence

Further, in national law proof is sometimes affected by a time element. International tribunals, however, including criminal and human rights tribunals, have generally had the power to decide for themselves what is admissible as evidence and have taken a liberal approach to the matter. What is said below could apply, mutatis mutandis and in principle, to proceedings before criminal and human rights tribunals as well. As early as 1794 in the Jay Treaty the USA and GB authorized the Mixed Commissions created by the treaty to consider all forms of evidence without imposing on themselves restrictions found in the rules of evidence of the two countries. By Article VI the commissioners were empowered “to examine all such persons as shall come before them, on oath or affirmation, touching the premises; and also to receive in evidence, according as they may think most consistent with equity and justice, all written depositions, or books, or papers, or copies, or extracts thereof.” Subsequent treaties followed this pattern. No restrictions have been imposed on the ICJ as regards the admissibility of evidence, in the Statute or Rules of the Court. Article 52 of the Statute of the Court is not a restriction. It only affirms the Court’s power either to refuse or accept evidence not presented in a timely manner by one party and objected to by the other. The Court, thus, enjoys a large amount of flexibility in regard to the admission of evidence. In the Nicaragua Case (Merits) the Court did not accept press articles and extracts from books as evidence capable of proving facts, but regarded them “as material which can nevertheless contribute, in some circumstances, to corroborating the existence of a fact, i.e., as illustrative material additional to other sources of evidence.”4 In several cases arbitral tribunals have held that they have freedom to admit any evidence they choose which will assist them in arriving at a moral conviction of the truth and reality of 4

1986 ICJ Reports at p. 40. See also the Corfu Channel Case (Merits), 1949 ICJ Reports at p. 20 and the Velásquez Rodríguez Case (1988), IACHR, Series C, Decisions and Judgments No. 4 at para. 146; the Irish Case (1978), ECHR, 58 ILR at p. 279, the last two of which are human rights cases.

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the relevant facts of the case. In the Parker Case, for instance, the tribunal said: The greatest liberality will obtain in the admission of evidence before this Commission with the view of discovering the whole truth with respect to each claim submitted.5

In the Oscar Chinn Case Judge van Eysinga in a Separate Opinion said: The Court is not tied to any system of taking evidence. . . . Its task is to co-operate in the objective ascertainment of the truth.6

In the Shufeldt Case the tribunal pointed out that the rules relating to the admissibility of evidence were not as strict as in national legal systems and that in any case the tribunal was not bound by national rules on admissibility.7 It is especially to be noted that affidavits are as such not inadmissible, of whatever kind they are. In the Salem Case the tribunal emphasized that affidavits were an important means of establishing facts available to international tribunals, even if they were sworn by interested persons.8 In the Walter McCurdy Case the arbitral tribunal categorically stated that affidavits as such were not inadmissible.9 In general international tribunals have received every kind and form of evidence, and have attached to them the probative

5

(USA v. Mexico, 1923), Opinions of Commissioners (1927) at p. 39, 4 UNRIAA at pp. 39–40. See also, e.g., the Cameron Case (UK v. Mexico, 1929), Decisions and Opinions of Commissioners at p. 34, 5 UNRIAA at pp. 29–30; the Georges Pinson Case (1928), 5 UNRIAA at pp. 329 ff. 6 (1934), PCIJ Series A/B No. 63 at pp. 146–7. 7 (1930), 2 UNRIAA at p. 1083. See also the Odell Claim (1931), 5 UNRIAA at p. 155; the Amabile Case (No. 12) (1952), 14 UNRIAA at pp. 124–7, where reference was made to arbitral practice, though this was a case of conciliation. 8 (1932), 2 UNRIAA at pp. 1197 ff. 9 (1929), 4 UNRIAA at p. 421.

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value they deserve under the circumstances of a given case. In the absence of the provision of a specific ground of exclusion in the arbitral agreements, the view taken has been that there is no rule of law that can be invoked as binding a tribunal to exclude particular evidence.10 Accordingly, the restrictions upon admissibility of evidence sometimes encountered in national procedure have no place in international adjudication, where the relevance of facts and the value of evidence tending to establish facts are left to the entire appreciation of the court.11 It may also be true to state that the rules applied in common law systems with respect to the admissibility of evidence which are complicated by the presence of the jury system have had little impact on the international law of evidence, while the practice of international tribunals in the admission of evidence has developed a pattern comparable to that of the liberal system of procedure of civil law countries.12 As was stated in the Nicaragua Case (Merits) by the ICJ and is true of international tribunals in general, the Court is not unaware that . . . within the limits of its Statute and Rules, it has freedom in estimating the value of the various elements of evidence, though it is clear that general principles of judicial procedure necessarily govern the determination of what can be regarded as proved.13

In the Walfish Bay Case the tribunal said that evidence of persons dependant in some way on a State party in the proceedings was not inadmissible on account of such dependence, although the dependence would be relevant in the evaluation of their testimony.14 10

Sandifer, Evidence before International Tribunals p. 189. On hearsay evidence before the ICJ see Rosenne, 3 Law and Practice of the International Court of Justice (1997) p. 1090, and Chapter 13 herein. 11 Rosenne, ibid. p. 1083, referring to the ICJ. See also ibid. pp. 1086–7 on circumstantial evidence before the ICJ. 12 Sandifer, op. cit. note 9, p. 176. 13 1986 ICJ Reports at p. 40. 14 (1911), 11 UNRIAA at p. 302.

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Thus, there is a general principle of admissibility of evidence before international tribunals which has the practical effect of relieving the party which adduces the evidence of having to prove admissibility. The result is that, if admissibility of evidence which is duly submitted is challenged, it is for the party challenging its admissibility to show why the evidence is not admissible. The fact that the admissibility of evidence introduced by one party is not objected to by the other could result in the evidence being taken into account by the tribunal.

INADMISSIBLE EVIDENCE While international tribunals have the freedom to admit evidence of all kinds, their practice in this regard is, nevertheless, governed by a number of general principles of law recognized by States in national systems.15 These general principles, in fact, now consist of the rules that have usually been applied by international tribunals in the admission of evidence. There are circumstances in which international tribunals applying these general principles have refused to accept evidence submitted by the parties. (a) Late-filed evidence In international litigation most cases of inadmissibility of evidence arise out of situations where evidence is filed late and after the close of written proceedings. While it is useful for a tribunal to have access to all relevant evidence, whenever filed, it is neither feasible nor helpful to allow the parties in a case to keep the tribunal at their mercy by being permitted to choose the time for production of evidence. The reconciliation of the two concerns generally results in the admission of evidence filed late by one party, unless it is either detrimental to the principle of the 15

Cheng, General Principles of Law as Applied by International Courts and Tribunals (1987) p. 303.

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equality of the parties or it is adduced with the purpose of unduly delaying the proceedings, or would cause undue delay in the proceedings. Article 56(1) of the Rules of Court of the ICJ provides that “After the closure of the written proceedings, no further documents may be submitted to the Court by either party except with the consent of the other party or as provided in paragraph 2 of this Article.” Silence of the other party would signify its consent. Article 56(2) then provides that “In the absence of consent, the Court, after hearing the parties, may, if it considers the document necessary, authorize its production.” In any case under Article 56(3) the other party has an opportunity to comment on the newly produced document and to submit documents in support of its comments. If, however, the other party raises an objection to the production of new evidence and the Court does not find its production necessary, then as a consequence of the application of Article 56(4) of the Rules no reference may be made during the oral proceedings to the contents of the new document, unless the document is part of a publication readily available. In the Minquiers and Ecréhos Case both parties had filed evidence after the close of the written proceedings, but neither of them objected to the documents produced by the other party.16 The documents were admitted by the ICJ. In the Anglo-Iranian Oil Case, where documents filed late with the Registry nor subjected to the procedure for late filed evidence were read out at the oral hearing, “the acting President gave a warning that unless the provisions of [the then] Article 48 were observed, the Court might ignore documents thus produced or referred to.”17 In the Nicaragua Case (Merits) the Court emphasized the need for presenting evidence within time-limits: The Court is bound by the relevant provisions of its Statute and its Rules relating to the system of evidence, provisions devised to 16

See Fitzmaurice, 2 The Law and Procedure of the International Court of Justice (1986) p. 577. 17 Ibid. p. 578.


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guarantee the sound administration of justice, while respecting the equality of the parties. The presentation of evidence is governed by specific rules relating to, for instance, the observance of timelimits, the communication of evidence to the other party, the submission of observations on it by that party, and the various forms of challenge by each party of the other’s evidence . . .18

In the “Grand Prince” Case the respondent filed a document without the consent of the plaintiff on the last day of the oral hearings. According to Article 71(1) of the Rules of the ITLOS, no document could be filed after the close of the written proceedings without the consent of the other party. The ITLOS asked the plaintiff State whether it objected to the admission of the document. The plaintiff did not object and the document was admitted as evidence. 19 A similar event took place in the Heathrow User Charges Case in regard to a document produced by one party. The document was admitted upon the other party not objecting.20 In the Harris International Telecommunications, Inc. Case21 the Iran-US Claims Tribunal said that late-filed evidence could only be admitted after reasons for the delay had been examined and provided there was no violation of the principle that the parties must be treated equally, there was no prejudice to the other party and there was no disruption of the arbitral process. Further, the tribunal pointed out that the rules relating to timely filing of documents applied to affidavits. There is no provision similar to Article 56 of the ICJ Rules in the Rules of the Iran-US Claims Tribunal but the tribunal has sometimes excluded evidence which had been filed for the reason that it had been filed late without adequate justification. In finding late-filed evidence inadmissible the tribunal has normally relied on the fact that new evidence may prejudice the other

18 19 20 21

1986 ICJ Reports pp. 39–40. (2001), Case No. 8, paras. 28 and 29, <www.itlos.org>. (1992), 102 ILR p. 216. (1987), 17 Iran-US CTR at pp. 49 ff.

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party and may have an impact on the arbitral process.22 The practice of the tribunal in this regard began with the tribunal being flexible in the first years of its existence but has become more severe with time.23 In some cases the tribunal warned the parties in advance that “no further extension of time will be granted without specific or compelling reasons,”24 or that “arguments and evidence not complying with the express terms of [its] Order will be rejected unless the Tribunal finds a specific and compelling reason for the failure to comply.”25 Any possible serious effect of a somewhat inflexible approach with regard to late filed evidence was reduced later by the tribunal’s often accepting requests for extension of time-limits set for filing evidence. Sometimes, where the tribunal found that no compelling reasons justifying a further extension had been given and denied the request to extend, it usually advised the requesting party to file its evidence forthwith.26 In some cases, while it denied the request for extension of time-limits for the filing of evidence, the tribunal stated that it would consider any documents filed before it began its deliberations.27 Sometimes, after denying the extension, the tribunal stated that it intended to proceed with deliberations on the case, as soon as its working schedule would permit, on the basis of the evidence at that time before the tribunal, and that it would defer that course of action, only if it was informed that settlement negotiations were going on and had reached a stage which would justify a postponement of the proceedings.28 The tribunal has said

22

See, the Mohsen Nazari Case (1994), Award No. 559–221–1, para. 22. On the practice of the Iran-US Claims Tribunal see Kazazi, Burden of Proof and Related Issues (1996) pp. 189–196. 24 See Case No. B-74, Order of March 17, 1989. 25 See Case No. 45, Order of May 23, 1990. 26 See Case No. 88, the Control Data Corporation Case, Order of 29 April 1987, Case No. 164, the Jacqueline M. Kiaie et al. Case, Order of 13 June 1988. 27 See Case No. 256, the August F. Bendix, Jr. et al. Case. 28 See Case No. 626, the Kem International Company Case, Order of 18 February 1988. 23


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that the proper course of action with respect to new evidence was for the party filing it to seek permission for its production and filing, only if the tribunal so permitted.29 Where both parties have requested permission to submit new documentary evidence the tribunal has granted such permission.30 In like manner, when one party was allowed to submit new evidence, a subsequent request to that effect from the other party has been treated favourably.31 There are two interesting cases decided by the Iran-US Claims Tribunal which repay consideration. The Starrett Case32 arose from the alleged expropriation by the Government of Iran of the claimants’ property rights in a project to build several high rise apartment buildings in Tehran. Admissibility of evidence often became an issue. On one occasion the expert appointed by the tribunal for valuation of the projects did not take into account certain materials submitted by the respondents after the deadlines set by him. In a letter to the parties the expert indicated that he regarded part of such materials as new documents and facts for which the deadline had passed. The respondents requested the tribunal to urge the expert to examine those materials and take them into account in his valuation. At that time the expert had already submitted a draft of his final report to the parties for comment. The tribunal rejected the request on the grounds that it had not received and had no knowledge of the contents of the expert’s draft report and the material submitted to him but stated that its denial of the respondents’ request was without prejudice to their right to renew the request after the expert had filed his final report. In his final report, which was subsequently submitted to the tribunal and the parties, the expert explained that he had disregarded the materials, among other reasons, because it was not relevant in the light of his valuation premises. The 29

See Case No. 184, the Granger Associates Case, Order of 7 November 1985. 30 See Case No. 68, the Howard Needles Tammen and Bergendorff Case, Order of 14 January 1986. 31 See Case No. 284, the Otis Elevator Company Case, Order of 14 July 1986. 32 (1987), 16 Iran-US CTR p. 112.

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respondents later renewed their request for the admissibility of the materials at issue, and the tribunal rejected the respondents’ request. But the tribunal also held that, in the event that it determined not to accept the expert’s valuation premises, it might determine that various additional data should be considered, which might include some or all of the materials. In its judgment, however, the tribunal accepted the expert’s valuation premises and reaffirmed its decision as to the inadmissibility of the materials submitted late by the respondents. On another occasion in the same case, as part of their comments on the expert’s final report, the respondents submitted a number of exhibits including several affidavits, and reports by accountants. The respondents’ comments and documents were filed within the time-limit set by the tribunal which happened to be shortly before the hearing held for examining the expert. At the hearing the claimants objected to the admissibility of the documents attached to the respondents’ comments, which had not previously been submitted to the tribunal or the expert. The respondents, on the other hand, insisted that they should be allowed to refer to the documents that they had submitted in order to substantiate their comments. The tribunal deferred its decision on the question of whether to admit those documents in evidence and joined it to the merits. In its award, noting that the parties had been invited in accordance with Article 27(3) of its Rules to comment on the expert’s report, the tribunal decided that those documents expressing opinions were admissible, but those which constituted new evidence or contained new facts were inadmissible. In its decision the tribunal noted that the new material had been submitted shortly before the hearing, that extensive opportunities had been provided by the expert for timely submission, and that no plausible explanation had been given for the late filing. The tribunal said that its decision allowed the parties to express opinions on the expert’s report, which would assist the tribunal in considering the expert’s valuation, while ensuring that one party will not be unfairly prejudiced by documents being filed late and not previously submitted to the other party and to the expert. The tri-


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bunal also decided that an affidavit or report based on evidence or facts which had been presented for the first time raised the same problem as new evidence or facts and, therefore, such affidavits or reports were not admissible. Thus, the tribunal found some of the affidavits presented by the respondents admissible and took judicial notice of an Act of the Iranian Parliament which was included in the new documents, but did not admit in evidence the other documents filed by the respondents shortly before the final hearing and objected to by the claimants. In the Hidetomo Shinto Case33 the tribunal considered whether the arguments and evidence put forward by the parties at different stages of the proceedings could be admitted. As to the new arguments raised by the claimant which had resulted in a further round of submissions by the parties after the hearing, the tribunal stated: Under ordinary circumstances the Tribunal would reject these late arguments and evidence, adhering to its well established practice of allowing no new substantive submissions so close to the date of the Hearing that the opposing party has little or no time to respond. Here, however, it should be noted that the change in the Claimant’s argument came about as a result of a document submitted by Iran a mere three weeks prior to the Hearing. In such a context the Claimant had little choice but to address this filing at the Hearing. Thus the Claimant’s right to raise these new arguments at the time of the Hearing cannot be questioned.34

Next, the tribunal admitted the newspaper articles and other documentary evidence presented by the claimant at the hearing and also later by the respondent, because, first, the tribunal had expressly authorized the submission of those documents in order to clarify the ambiguities in the record, and, second, all of the documents were in the public domain. Another issue of admissibility arose in this case, because the claimant without authority had filed a 33 34

(1988), 19 Iran-US CTR at p. 321. Ibid. at p. 321.

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submission as a response to Iran’s authorized post-hearing submission. The tribunal held on that point: This submission was not authorized by the Tribunal in its . . . Order. The Tribunal notes, however, that the official Order filed with the submission was initially requested from the Respondents, which informed the Tribunal that such Order could not be located. On this basis the Claimant has supplied the Order and thus it should not be rejected as new evidence not previously requested by the Tribunal. Consequently, the Tribunal finds that it should be admitted.35

(b) Evidence obtained through settlement negotiations Settlement negotiations between the parties to a dispute are as a rule held on the understanding between the parties that, in case the negotiations failed to produce a settlement, positions taken in the course of such negotiations and information and documents produced solely for that purpose will not be used against the parties in any pending or future litigation. Moreover, where parties reach a provisional agreement, they generally provide that, unless and until there is final agreement, the parties will not refer to or divulge the contents of their agreement in any proceedings. This principle has been adopted in some agreements between States as a rule of procedure to be applied in international litigation. For instance, Article V(1) of the Special Agreement of March 29, 1979 between the US and Canada in the Gulf of Maine Case provided: Neither party shall introduce into evidence or argument, or publicly disclose in any manner, the nature or content of proposals directed to a maritime boundaries settlement, or responses thereto, in the course of negotiations or discussions between the Parties undertaken since 1969.36

35 36

Ibid. at p. 328. 1984 ICJ Reports at p. 254.


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If either of the parties tried to introduce into litigation the documents or information referred to in this Article, such evidence could be excluded on the basis of the agreement between the two litigating parties which had previously held settlement negotiations. It seems that even in the absence of a contractual obligation it is highly questionable whether such information and documents would be admissible. The question has been faced by a few tribunals. In the Chorzów Factory Case (Merits) in fixing the amount of compensation awarded to Germany the PCIJ did not take account of the sum to which at one point in their out of court negotiations Germany and Poland had agreed. The tribunal said that: It cannot take into account declarations, admissions or proposals which the Parties may have made during direct negotiations between themselves, when such negotiations have not led to a complete agreement.37

In the Frontier Dispute Case38 among the issues that the Chamber of the ICJ had to deal with was the question of the relevance of earlier negotiations between the parties. The parties had submitted to the Court, along with diplomatic and other documentation, an agreement, concluded on 15 January 1965 between a Voltan and a Malian delegation, comprising commandants de Cercle and other administrators on each side. The agreement related to a disputed frontier line in the region of the Pool of Soum. This agreement had not subsequently been approved by the Standing Joint Committee, which was the only authority with jurisdiction at the time to make a definitive settlement of frontier problems. The Court agreed with Mali that such agreements, not

37

1928, PCIJ Series A, No. 17 at p. 51. 1986 ICJ Reports p. 554. See for an analysis of fact-finding in this case P.-M. Dupuy, “Fact-Finding in the Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali),” in Lillich (ed.), Fact-Finding by International Tribunals (1995) pp. 81–92. 38

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approved by the competent authorities of each party, did not have the binding force of a convention. The Court cited what the PCIJ had said in the Chorzów Factory Case (Merits) which is cited above and stated that it had no intention of departing from the firmly established rule therein established.39 The Court, however, took note “not of the agreement . . ., but of the circumstances in which that agreement was concluded.”40 In the Pepsico Case, 41 decided by the Iran-US Claims Tribunal, the claimant relied on a letter from an authorized representative of the respondent company in which the latter’s obligation to pay for the accounts receivable for Pepsi-Cola soft drink concentrate allegedly sold and delivered to the respondent companies had been acknowledged. The respondent argued that the letter had been written in relation to settlement discussions between the parties and was, therefore, not admissible. The tribunal held that that particular letter was “admissible as a normal business communication acknowledging the current status of outstanding accounts, and that it is not, as the Zamzam Companies contend, an offer of settlement that the Tribunal must ignore.”42 In contrast the tribunal stated that the Minutes of a meeting on 6 September 1981 and the claimant’s subsequent letter of 14 October 1981, both submitted by the same companies, reflected negotiation of settlement terms and were, therefore, inadmissible as evidence.43 The principle involved was applied successfully in other cases44 by the Iran-US Claims Tribunal. Another arbitral tribunal has been faced with the problem of evidence emanating from an early state of the controversy. In the El Chamizal Case the tribunal adopted the position that conflict-

39

Ibid. at p. 632. Ibid. at pp. 632–3. 41 (1986) 13 Iran-US CTR at p. 3. 42 Ibid. at p. 28. 43 Ibid. 44 See the ISS Case (1987), 14 Iran-US CTR at p. 65, and the Westinghouse Case, Iran-US Claims Tribunal Order of March 7, 1988. 40


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ing or inconsistent “expressions made at ephemeral phases of the controversy could not affect present and principal issues.”45 (c) Evidence obtained by violation of international law A more difficult problem arises, where evidence is obtained by violating a rule of international law. In the Corfu Channel Case (Merits)46 one of the questions before the ICJ was whether by carrying out a mine sweeping operation in the Corfu Channel, referred to as Operation Retail, against the clearly expressed will of the Albanian government, the UK under international law had violated the sovereignty of Albania. The UK contended, as its main defence, that its action was justified, because the intervention had taken place to secure possession of evidence in the territory of another State, in order to submit it to an international tribunal and, thus, facilitate its task. The Court rejected the argument, however, stating that it could only regard “the alleged right of intervention as a manifestation of a policy of force . . .” which “cannot . . . find a place in international law.”47 The Court for that reason, inter alia, held that the action of the British Navy constituted a violation of Albanian sovereignty. There was no discussion, however, by the Court of the question whether the evidence concerning the mines that had been found and swept by the UK through Operation Retail was admissible against Albania. However, in its decision the Court did not directly rely on the evidence obtained by the UK government as a result of Operation Retail. On the other hand, it may be noted that the Court did not expressly exclude the evidence concerning the mines, which had been obtained by an act which the Court did characterize as a violation of international law. While the Court neither relied on 45

(1911), 11 UNRIAA at p. 316. 1949 ICJ Reports at p. 4. 47 Ibid. at p. 35. On the relevance of the violation of international law in cases before the ICJ and preliminary measures that may be taken by the court to prevent evidence being secured by such a violation see Rosenne, 3 op. cit. note 9, p. 1087. 46

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the evidence obtained through a violation of international law nor indicated whether it was admissible or not, an important point is that no objection was raised to the admissibility of that evidence by Albania. The Court’s approach may have been acceptable in the circumstances.48 As to inadmissibility, it would seem that no general exclusionary rule of evidence can be inferred from the judgment of the Court in the Corfu Channel Case (Merits). The Court’s approach is equally compatible with inadmissibility of the evidence as it is with admissibility. It should also be noted that the respondent, Albania, did not object to the admissibility of the illegally obtained evidence. One reason for not admitting such illegally obtained evidence is that it would be contrary to a general principle of law, recognized both in international law and in national law, that no one is allowed to take advantage of his own wrong-doing49 or the principle, also recognized, that ex injuria non oritus ius. Apart from the Corfu Channel Case (Merits), there are no cases in which the issue of illegally obtained evidence has really surfaced. The United States Diplomatic and Consular Staff in Tehran Case50 is not in point. Iran did not appear in that case before the ICJ, and neither Iran nor the United States adduced any argument relating to evidence obtained through violation of international law in the territory of the other. International compromis which deal with issues such as mutual respect for confidential documents generally do not specifically address the issue either. For example, Article V(2) of the Special Agreement, dated 29 March 1979, between the USA and Canada merely states,

48

For discussions of the evidentiary question in the case see Verzijl, The Jurisprudence of the World Court (1966) pp. 32 ff., Reisman and Freedman, “The Plaintiff’s Dilemma: Illegally Obtained Evidence and Admissibility in International Adjudication”, 4 AJIL (1982) at p. 748. 49 For the principle as a general principle of law see Cheng, op. cit. note 15, pp. 149 ff., and the Tippets, Abbett, McCarthy, Stratton Case (1984), 6 Iran-US CTR at p. 228. 50 1980 ICJ Reports at p. 7.


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Each of the Parties shall notify and consult with the other prior to introducing into evidence or argument diplomatic or other confidential correspondence between Canada and the United States of America related to the issue of maritime boundaries delimitation.51

The absence of clear precedents on the inadmissibility of evidence obtained through illicit acts may lead to the conclusion that at present international law has no firm or established general rule of evidence requiring the inadmissibility of illegally obtained evidence. Equally it may be said that there is no established rule that illegally obtained evidence is admissible. However, on the basis that evidence is admissible, unless there is a rule or reason to exclude it, the latter statement as such serves no useful purpose. The answer perhaps lies in approaching each case on its merits with a possible presumption, based on the general principles that no one should benefit from his own wrong-doing and that no right can arise from a wrong, that evidence obtained in violation of international law is in principle inadmissible. This leaves room for its admission in cases where it is in the interests of justice to do so or it would cause injustice not to do so. Rule 95 of the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) states: No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings.52

The Rule is clearly non-committal as to the inadmissibility per se of evidence obtained in violation of international law. The original Rule as drafted provided that evidence obtained through a violation of internationally protected human rights should not be admissible.53 The subsequent change of the Rule supports the view taken above of the import of the current Rule. 51

The Gulf of Maine Case, 1984 ICJ Reports at p. 254. The Iran-US Claims Tribunal has not had to deal with the issue of illegally obtained evidence. 52 See U.N. Document IT/32/Rev.3, 30 January 1995, p. 57. 53 See 33 ILM (1994) at p. 539.

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(d) Questionable reliability and damage to the integrity of the proceedings The provision, cited above in Section (iii), of the Rules of Procedure and Evidence of the ICTY clearly reflects other grounds for inadmissibility of evidence which could apply as a principle of evidence to international litigation in general – even to proceedings which are not criminal. That provision states categorically that evidence is inadmissible if it has been obtained by methods which cast substantial doubt on its reliability or if its admission is opposed to, and would cause serious damage to, the integrity of the proceedings. (e) Time-barred evidence The time factor may be relevant to the admissibility of evidence when the evidence is of facts occurring after the close of the proceedings or when the evidence relates to events which occur subsequent to the act or acts which are the cause of the dispute. International tribunals generally do not settle issues upon which the parties have not had sufficient opportunity to comment upon or in relation to which they have not had a chance to substantiate their positions. Thus, matters connected with the dispute but arising after the stage at which the parties to the case have submitted their arguments and evidence usually remain outside the purview of tribunals, principally because the parties have not had the opportunity to comment on them. Accordingly the evidence relating to such matters, if submitted by one of the parties or made available to the tribunal by other means, would not be admissible. This was the position in effect taken by the ICJ in the Nicaragua Case (Merits).54 The conflict which was the subject of the case was still continuing during the proceedings. Hence, the ICJ had to decide what period of time, from the genesis of the dispute, was relevant for the purpose of establishing the facts in the case.55 The Court held that 54 55

1986 ICJ Reports at p. 14. Ibid. at p. 39.


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general principles as to the judicial process require that the facts on which its Judgment is based should be those occurring up to the close of the oral proceedings on the merits of the case.56

On that basis, while it was very well aware, from reports in the international press, of the developments in Central America since that date, the Court held that it could not treat such reports as evidence. Another reason for this course of action was that the Court did not have the benefit of the comments or argument of either party on such reports. In expropriation cases, for example, whenever valuation of property and rights is in issue, international tribunals usually first set a date on which the expropriation is deemed to have occurred and then, on that basis, deal with the valuation of the property or rights.57 Consequently, the events occurring subsequent to the date of assessment are ignored in the valuation, regardless of whether they have positive or negative effects on the property or rights being assessed or their value.58 The application of that principle on the admissibility of evidence could result in the exclusion as irrelevant of evidence which relates to events subsequent to the date of the taking. In the Starrett Case59 the respondents successfully relied on this principle in order to justify the non-production of some of the documents asked for by the expert appointed by the

56

Ibid. See also the Nuclear Tests Cases, 1947 ICJ Reports at pp. 264 and 468. 57 See the Chorzów Factory Case (Merits), 1928 PCIJ Series A p. 47, the Lighthouses Arbitration (France v. Greece – 1956), 12 UNRIAA p. 155, 23 ILR p. 295. 58 See the cases referred to in footnote 44, the Starrett Housing Corporation Case, Interlocutory Award (1983), 4 Iran-US CTR at pp. 156–7; the INA Corporation Case (1985), 8 ibid. p. 380; state practice discussed in B.A. Wortley, Expropriation in Public International Law (1959) pp. 129 ff.; G. White, Nationalization of Foreign Property (1961) p. 31; G. Fouilloux, La nationalisation et le droit international public (1962) p. 425, note 21; Mouri, The International Law of Expropriation as Reflected in the Work of the Iran-US Claims Tribunal (1994) pp. 516 ff. 59 (1987), 16 Iran-US CTR at p. 112.

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tribunal for valuation of the construction project in issue. In the Lighthouses Arbitration the PCA rejected the argument of Greece which was based on subsequent events, stating that: the damage suffered by the firm can only be assessed by reference to data existing at the time when the concession was taken over. Subsequent events, which were unforeseen at that time both by the Greek Government which seized the concession and by the firm which was dispossessed of it, cannot be taken into consideration in a case of a grant of compensation which ought to have been not only determined but also put at the disposal of a concessionaire before the latter’s removal. The Greek argument, which would take into account subsequent events, and which would be to the advantage of Greece, must therefore be rejected.60

Evidence which is time-barred, because it relates to acts or omissions which occur after a critical date in the case, will also be excluded, apparently on the ground of irrelevance. In the Island of Palmas Case61 there had been an exchange of notes between the parties in which it had been agreed that 1906 was the critical date in regard to the occurrence of events for the purposes of the proceedings. The arbitral tribunal held that, for the purpose of evidence as to the legal position of the disputed territory which was the subject of the arbitration, in accordance with the general principles of procedural law, evidence concerning events subsequent to 1906 had to be excluded. (f) Irrelevant evidence While in the Island of Palmas Case there was a critical date, this determined irrelevance, and the date arose from an agreement between the parties, the principle of irrelevance as such would apply whether there is an agreement, as in that case, or there is no agreement, and in general without reference necessarily to a critical date. It may, thus, be concluded that there is a general 60 61

23 ILR at p. 301. (1928), 4 AD pp. 482 ff.

Admissibility of Evidence

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principle of law which requires evidence which is clearly irrelevant or not of probative value for the particular proceedings to be inadmissible as such, particularly if the other party objects to its being admitted. However, it has happened only infrequently that tribunals take the course of declaring inadmissibility in respect of evidence, partly because in the process which takes place in the proceedings of evaluation of the evidence, the evidence in question can be given no weight. In criminal proceedings, however, the exclusion of evidence which is clearly irrelevant and of no probative value is understandably treated as important. Rule 89(C) of the Rules of Evidence and Procedure of the ICTY provides expressly that evidence which is relevant and of probative value should be admitted. It is implied in this provision that evidence which is not relevant or of probative value is to be excluded as inadmissible. (g) Documents lacking authenticity The Rules of Procedure of tribunals do not usually deal with the authenticity of documents. Clearly, though, a tribunal has the power to exclude documents where the issue of their authenticity is raised and, thereafter, the lack of authenticity is proved by the relevant party. In Qatar v. Bahrain62 82 documents introduced by the plaintiff State were challenged by the respondent State as not being authentic. Qatar sought expert advice and finally decided to exclude for the purposes of the case the 82 documents which had been challenged. In the “M/V Saiga” Case 63 the certified extracts of the log book of the M/V Saiga were produced by Guinea and the entries were not contested by either party. The ITLOS adverted to this fact and did not inquire into the authenticity of the entries. No doubt in both cases, if the parties disagreed on the authenticity of documents filed and in one case not withdrawn, the tribunal would have had to take a decision on the issue. At the same time it is possible that there is a 62 63

2001 ICJ Reports paras. 15 ff. (2001), Case No. 8, para. 27, <www.itlos.org>.

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principle that a document is authentic unless authenticity is questioned by the party not producing the document or even by the tribunal. Where a party claims that a document is a forgery, the Iran-US Claims Tribunal has taken the view that that party must prove beyond a reasonable doubt that the document is forged, in order that it may be inadmissible.64

64

On this tribunal and its treatment of admissibility of evidence see further Chapter 16 herein. Some aspects relating to admissibility of evidence in criminal cases as demonstrated in proceedings before the ICTY are examined in Chapter 15 herein.

10 EVALUATION OF EVIDENCE

Primarily it is for the parties to place the facts of the case before the tribunal, although the tribunal may require points not adequately dealt with in the evidence of the parties to be further clarified.1 When the production of evidence is complete, the tribunal “must consider the totality of the allegations and evidence laid before [the tribunal] by the Parties, either motu proprio or at [its] request and decide what allegations are to be considered as sufficiently substantiated”.2 The aim of a tribunal is to arrive at a moral conviction3 of the truth of all the relative facts of the case upon which it will rest its decision. In the Parker Case the tribunal stated that “The greatest liberality will obtain in the admission of evidence before this Commission with the view of discovering

1

Island of Palmas Case (1928), 2 UNRIAA at pp. 841–2, also 4 AD at p. 480. 2 Ibid. 3 See for the use of this term, e.g., the Faber Case (1903, Germany v. Venezuela), Venezuelan Arbitrations 1903 at p. 622.

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Chapter 10. Evaluation of Evidence

the whole truth with respect to each claim submitted.”4 In the Cameron Case the tribunal referred to its duty to ascertain the truth in a manner which is not subject to any restriction.5 In the Corfu Channel Case (Merits), the ICJ spoke of “its search for the truth.”6 The conviction of the truth will, in addition to the evidence, take account of and be based on the relevant standard or standards of proof. It has also been stated that “It is for the Arbitrator to decide both whether allegations do or – as being within the knowledge of the tribunal – do not need evidence in support and whether the evidence produced is sufficient or not.”7 However, there have evolved some conceptually developed general principles, many of which are recognized in national legal systems.8 A general principle of a primary nature relates to the possibly complicated nature of evidence. However difficult the evaluation of evidence may be, because of its nature, the tribunal must make the effort to evaluate it and to come to a conclusion. This was the verdict of the arbitral tribunal in the Chevreau Case.9 A non liquet is not available as a consequence on account of the complicated nature of the evidence and the difficulty of the evaluation. Moreover, there are three elements which must be considered initially in regard to the weight to be given to evidence and its evaluation. These are the constitutive instruments for the case, national laws and the freedom of the tribunal to evaluate the evidence. As to the first, the arbitrator in the Island of Palmas Case said that “Failing express provision, an arbitral tribunal must have entire freedom to estimate the value of assertions made by 4 5

(1926, USA v. Mexico), 4 UNRIAA at p. 39. (1929, G.B. v. Mexico), Decisions and Opinions of Commissioners at

p. 34. 6

1949 ICJ Reports at p. 20. Island of Palmas Case (1928), 4 UNRIAA at p. 841, also AD at p. 480. 8 German Interests in Polish Upper Silesia Case (Merits), 1926 PCIJ Series A No. 17 at p. 73. On the earlier development of all the less abstract principles (concretization) and their contextual application see Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) pp. 303 ff. 9 (1931), 2 UNRIAA at pp. 1124–5. 7

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the Parties.”10 Clearly, the exception referred to the constitutive instruments including the agreement of the parties. While the statement refers to the assertions of the parties, what was said holds true for all evidence. On the other hand, it must be recognized also that there may be limits to the power of the agreement of the parties to influence the evaluation of evidence. To the extent that the agreement interferes with the judicial character of the tribunal (or court), such agreements cannot stand, on the basis that parties to an adjudication cannot interfere with or negate the judicial character of the adjudicatory process. As to the second, national laws, it has been established in the early arbitral decisions that tribunals are not bound by national laws as such in the evaluation of evidence.11 This has a bearing on the third factor, the freedom of tribunals in regard to the matter of evaluation. In the Island of Palmas Case the arbitrator’s statement cited above already implied that the tribunal had in broad terms complete freedom in evaluating the evidence. Once admitted, all evidence is not necessarily treated in the same way, i.e., given the same value. In practice, the probative value of each piece of material evidence is determined in terms of the totality of the circumstances of the case. International tribunals have emphasized their power to evaluate evidence and its probative value. For instance, in the Irish Case the Irish government requested the ECHR to exclude from its examination some of the evidence gathered by the European Commission, because of the origin of this evidence, and not to take account of the oral evidence of some witnesses heard by the Commission, because “it was heard in the absence of the Parties and without cross-examination . . .” 12 The Court refused the request of the Irish Government with respect to the admissibility of evidence. However, at the stage of the appraisal of the evidence,

10

(1928), 2 ibid. at pp. 841–2. See the Parker Case (1926), 4 ibid. at pp. 39–40; the Shufeldt Case (1930), 2 ibid. at p. 1083. 12 (1978), 58 ILR at p. 279. 11

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the Court concluded that not much weight could be attached to the testimony of the witnesses. The Court said: On the other hand, the Court, being master of its own procedure and of its own rules (Article 55 of the convention), has complete freedom in assessing not only the admissibility and the relevance but also the probative value of each item of evidence before it. It cannot attach to the evidence of (the said witnesses) as much weight as to the evidence of witnesses who have been cross-examined. The Court looks upon the evidence of (the said witnesses) as no more than one source of information amongst others and one which, being evidence coming from senior British officials, falls into a similar category to the respective statements made by the representatives of the two Governments to the commission and the Court. Although that evidence was given on oath, it was obtained under conditions which reduce its weight.13

FURTHER EVIDENCE

NOT

REQUIRED

It was established early on that there are some circumstances in which no further evidence, whether to be produced by the parties or not, is required. This happens, for example, (a) where the allegations are admitted by the other party, even though, exceptionally, even in these circumstances the party alleging a fact must bring adequate proof of it; e.g., where the truth of a fact alleged is a condition sine qua non of the right of action of a party or for the jurisdiction of the tribunal.14 (b) where certain allegations of fact of the parties are within the knowledge of the tribunal so that judicial notice15 is taken of 13

Ibid. See e.g., the Hatton Case (1928, U.S.A. v. Mexico), Opinions of Commissioners, 1929, at p. 8; Corfu Channel Case (Merits), 1947 ICJ Reports at p. 84 per Judge Azevedo (Dissenting Opinion). In the “M/V Saiga” Case (1997), Case No. 1, <www.itlos.org>, the respondent State admitted facts. The ITLOS referred the admission to the plaintiff State for comment before accepting the facts as established. 15 For judicial notice as a mechanism of evidence see Chapter 8 herein. 14

Further Evidence not Required

189

the facts averred. Facts which are of common knowledge or public notoriety need not be proved. In the Island of Palmas Case the Treaty of Utrecht invoked by one of the parties was not in the record produced but was considered as evidence by the tribunal on the ground that the text of the treaty was of public notoriety and accessible to the parties.16 In the Mendel Case the tribunal stated explicitly that, concerning what took place in regard to the former German colony of New Guinea during a relevant period, there were historical sources and official reports, of which the tribunal took official notice.17 There was also an express statement in Article 21 of the Charter of the Nuremberg I.M.T. regarding judicial notice of facts of common knowledge and of official government documents of the United Nations. Facts which, in the circumstances of the case, are self-evident do not need to proved. In The Cysne facts relating to the seizure as prize of a Portuguese vessel on the high seas by a German submarine were considered to be self-evident;18 (c) where the tribunal uses the technique of descente sur les lieux to inform itself;19 (d) where presumptions operate to permit inferences of fact from facts in regard to which evidence has already been produced.20

STATEMENTS

AND

AFFIDAVITS

International tribunals, clearly, are in general free to determine the value, for instance, of the statements of parties. In the Rann of Kutch Case, Pakistan relied on a Diplomatic Note of the Indian Ministry of External Affairs as an admission by India concerning the border between India and Pakistan. However, the 16 17 18 19 20

(1928), 4 UNRIAA at p. 842, also 4 AD at p. 481. (1926, USA v. Germany), Decisions and Opinions, 1928 at p. 784. (1930, Portugal v. Germany), 2 UNRIAA at p. 1056. For this source of evidence see Chapter 8 herein. For presumptions see Chapter 11 herein.

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Chairman of the tribunal evaluated that document differently and decided that “in the context of the related correspondence” it could not “be understood as an admission of the alignment of the boundary”.21 In the Nicaragua Case (Merits) the ICJ did not agree with Nicaragua that the invocation of collective selfdefence by the US constituted a general admission on the part of the US, but concluded that it was “certainly recognition of the imputability of some of the activities complained of ”.22 In his Separate Opinion in the Barcelona Traction Case (Second Phase) Judge Jessup found a sound point made in the rejoinder of Spain “that since the personalities acting for Sidro, Securitas and Sofina are essentially the same, their assertions supporting each other are equivalent to self serving declarations which have little probative value.”23 States have, at times, expected that their statements be accepted as evidence. For instance, in the Island of Palmas Case, the US contended that “statements without evidence to support them could not be taken into consideration by an international tribunal, and that evidence is not only to be referred to but it is to be laid before the tribunal”.24 The Netherlands contended that no formal rules of evidence existed in international arbitration and that statements made by a government in regard to its own acts were evidence in themselves, requiring no supplementary corroboration.25 The arbitrator held that it “was for the tribunal to decide whether allegations of the parties were in need of evidence to support them, and whether the evidence produced was sufficient or not.”26 It is clear that statements amounting to admission by a party made in the proper circumstances are to be held against the party making them,27 while it has also been stressed that whether such 21

The Indo-Pakistan Western Boundary Case (India v. Pakistan – 1968), 50 ILR at p. 469. 22 1986 ICJ Reports at pp. 44 ff. 23 1970 ICJ Reports at p. 214. 24 (1928), 4 UNRIAA at p. 841, also 4 AD at p. 480. 25 Ibid. 26 4 UNRIAA at pp. 841–2, also 4 AD at pp. 480–1. 27 The Croft Case (1856), 5 Moore at pp. 4981–2.

Statements and Affidavits

191

admissions may be so held against the party does depend on the circumstances in which they were made.28 Moreover, assertions made in argument before the tribunal in the case before it could not as such be construed as proof against the party making them, but the tribunal must evaluate them in the light of all the other circumstances in the case.29 At the same time it has been held that an offer made to buy peace on the part of the other party was not an admission of liability nor, a fortiori, of the extent of such liability.30 A careless statement by an official who had no authority in the matter has not been held against the party of relevance as to the boundary in dispute in the case.31 Further, statements made in the course of national legal proceedings in regard to its own acts by a State party to a case are subject to evaluation by the tribunal with complete freedom and in the light of all the evidence before it and of all the assertions on both sides.32 On the other hand, the existence of contradictory statements by a party would result in the acceptance as evidence of the statement prejudicial to that party.33 Some forms of evidence, such as oral or written testimony, are nothing but statements made under particular circumstances and by particular individuals. The ICJ in the Nicaragua Case (Merits) took the view that statements of high-ranking official political figures were of particular probative value when they acknowledged facts or conduct unfavourable to the State represented by the person who had made them. Such statements could then be construed as 28

The Schooner “James Hamilton Lewis” Case (1902), 9 UNRIAA at p. 69. The tribunal pointed out that there were limits to the acceptance of such statements. 29 The Island of Palmas Case (1928), 4 UNRIAA at p. 841, also 4 AD at pp. 480–1. 30 The Paraguay Navigation Company Case (1860) La Fontaine at p. 635. 31 The Walfish Bay Case (1911), 11 UNRIAA at p. 302. 32 The Island of Palmas Case (1928), 4 ibid. at p. 842, also 4 AD at p. 481. 33 The Woodward-Clyde Consultants Case (1983), 3 Iran-US CTR at p. 249. The interested party was the respondent, the government of Iran.

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a form of admission. The Court, however, found it necessary to emphasize immediately that such statements should be treated with caution and that the probative value differed depending on the manner in which they were made public.34 The ICJ set forth the rationale for this treatment given to statements made by the responsible authorities of the States involved: A member of the government of a State engaged, not merely in international litigation, but in litigation relating to armed conflict, will probably tend to identify himself with the interests of his country, and to be anxious when giving evidence to say nothing which could prove adverse to its cause. The Court thus considers that it can certainly retain such parts of the evidence given by Ministers, orally or in writing, as may be regarded as contrary to the interests or contentions of the State to which the witness owes allegiance, or as relating to matters not controverted. For the rest, while in no way impugning the honour or veracity of the Ministers of either Party who have given evidence, the Court considers that the special circumstances of this case require it to treat such evidence with great reserve.35

This approach taken by the ICJ in the Nicaragua Case (Merits) in giving weight to the statements of governments’ officials to the extent that they were contrary to the contentions of their respective governments was followed by the IACHR in the Velásquez Rodríguez Case, in which statements made publicly by officials of Honduras were relied upon against that government.36 Though States may, as parties to international disputes, usually have to corroborate their statements, such uncorroborated statements may in the circumstances of a given case be accepted as evidence, particularly where obtaining corroborative evidence is practically impossible or unusually difficult. The approach taken by the ECHR in this regard in the Irish Case may be

34

1986 ICJ Reports at p. 41. Ibid. at p. 43. 36 (1988), IACHR, Series C: Decisions and Judgments No. 4 para. 146 (pp. 139–40). 35

Statements and Affidavits

193

viewed as reasonable and as attempting to reconcile the extremes of either accepting or rejecting categorically the assertions of sovereign States. It was there pointed out that, in order to satisfy itself, the Court was entitled to rely on evidence of every kind, including, insofar as it deemed them relevant, documents or statements emanating from governments, be they respondents or applicants, or from their institutions or officials.37 At the same time in the Nicaragua Case (Merits) the ICJ made it clear that it could not give weight “to alleged statements to the effect of which there is insufficient evidence”.38 Any probative value to be attached to the statements of government officials is obviously subject to the condition that enough evidence be produced, in order to prove that such statements were in fact made by the official or officials to whom they are attributed. On the other hand, in Qatar v. Bahrain39 the ICJ refused to give weight to the statement of the Foreign Minister of a party made after the dispute arose. In the Iran-US Claims Tribunal the question of the probative value to be given to the statements of interested persons has continually been a contentious issue between the parties. As a compromise solution the tribunal has approached the issue as a question of the weight to be attached to the statements of such persons rather than its admissibility. This has resulted in a well established practice which allows the tribunal to hear the interested person, not as a witness, but as a representative of a party, and then, at the stage of considering the evidence, to attach to that evidence the weight appropriate under the circumstances of each particular case to the statements of the interested person.40 More will be said about affidavits in the next section. 37

(1978) 58 ILR at p. 279. 1986 ICJ Reports at p. 85. 39 1994 ICJ Reports p. 102. 40 See the Nazari Case (1994), 30 Iran-US CTR p. 123 para. 18; and Selby and Stewart, “Practical Aspects of Arbitrating Claims before the IranUnited States Claims Tribunal”, 18 International Lawyer (1984) at p. 231. On the evaluation of witnesses by the European Commission of Human Rights which acted quasi-judicially see Frowein, “Fact-Finding by the European Commission of Human Rights” in Lillich (ed.), Fact-Finding by International Tribunals (1995) at pp. 243–4. 38

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There are also some earlier cases which dealt with the matter. In general, it is recognized that the mere statements of the facts by the interested party in a dispute are not considered as evidence and do not constitute sufficient proof of the facts alleged. In one case the claimant stated that he had been forced to conduct a military train and was subsequently injured in the derailment of the train caused by Mexican revolutionary forces. No other evidence was adduced than this statement. The tribunal held: The Commissioners do not deny that the description of the derailment, as given by the claimant, and taken as a whole, bears a certain appearance of truth, but a judicial system cannot be based on this personal impression alone. . . . A decision which imposes upon a State a financial liability towards another State, cannot rest solely upon the unsupported allegations of the claimant. . . . If an international tribunal were to accept all these allegations without evidence, it would expose itself to the not unjustifiable criticism of placing jurisdiction as between nations below the level prevailing in all civilized Sates for jurisdiction as between citizens.41

Even where the sincerity and good faith of the party are not in doubt, the statement of the facts in the pleadings by one of the interested parties, being a statement drawn up with the special object of presenting the case as cogently as possible, cannot be considered as evidence, let alone treating it as conclusive.42 Clearly, this results from a general principle of law that a tribunal’s decisions must be based upon allegations which it is convinced are true, and not upon those which merely appear to be true. In any case, allegations of interested parties may often contain exaggerations and even misrepresentations because of the presence of a personal interest. This reality must be taken into

41

The Odell Claim (1931, G.B. v. Mexico), Further Decisions and Opinions of Commissioners at pp. 62–3. See also now the Corfu Channel Case (Merits), 1949 ICJ Reports at pp. 15–17. 42 The Studer Case (1925, USA v. G.B.), Nielsen’s Report at p. 552.

Sworn Statements by Witnesses and Affidavits

195

account.43 It may also be true that exaggerations and even misrepresentations of facts on the part of the claimants are so common that the value of their contentions is destroyed.44

SWORN STATEMENTS

BY

WITNESSES

AND

AFFIDAVITS

As in the case of oral evidence given by witnesses, an oath would be regarded as a considerable safeguard of veracity. However, in the National Paper and Type Co. Case,45 where it was argued that, because the memorial containing the allegations of fact had been sworn to by the claimant, there was in fact an affidavit in support of those allegations, the tribunal took the view that the verification of the memorial prescribed by its rules did not justify the view that a pleading should be regarded as both a pleading and evidence. Sworn statements emanating from the claimants have sometimes been legitimately taken into account by a tribunal. 46 However, with respect to affidavits in general and uncorroborated affidavits of the claimants in particular, it was stated in the Mexico City Bombardment Claims that In its decision on the demurrer, filed by the Mexican Agent in the name of [C], the Commission has made known its attitude as to affidavits in general. The unanimous view of the Commissioners was expressed as follows: It is true, no doubt that affidavits contain evidence which can be described as secondary evidence and is often of a very defective character. In many cases, it may be, affidavit evidence may possess

43

The Chattin Case (1927, USA v. Mexico), Opinions of Commissioners, 1927 at p. 438. 44 The Mallén Case (1927, USA v. Mexico), ibid. at p. 256; the Faulkner Case (1926, USA v. Mexico), ibid. at pp. 90–1. 45 (1928, USA v. Mexico), Opinions of Commissioners, 1929 at p. 4. 46 The Dillon Case, (1928, USA v. Mexico), ibid. at pp. 61, 62–3, Concurring Opinion of the American Commissioner.

196

Chapter 10. Evaluation of Evidence little value, but the weight to be attached to that evidence is a matter for the Commissioners to decide according to the circumstances of a particular case. Affidavits must and will be weighed with the greatest caution and circumspection, but it would be utterly unreasonable to reject them altogether. It may be useful for the further guidance of the Agents, that the Commission announces that its majority has come to the conclusion, in general, that unsupported affidavits of claimants possess the very defective character of which the quotation speaks, and that only in cases of the rarest exception, they can be accepted as sufficient evidence. Such documents are sworn without the guarantee of cross examination by the other party; in nearly all cases a false statement will remain without penalty, and, as they are signed by the party most interested in the judgment, they cannot have the value of unbiased and impartial outside evidence.47

Personal interest of the deponent and the uncontrolled character of his affirmation are, therefore, important factors which generally deprive a claimant’s affidavit, even though sworn, of much of its probative value. In accordance with this proposition the BritishMexican Claims Commission of 1926 dismissed a large number of claims in which uncorroborated affidavits of the claimant were the only evidence.48 Also, in the Engleheart Case that tribunal 47

(1930, G.B. v. Mexico), Decisions and Opinion of Commissioners at pp. 102–3. The decision referred to in that judgment is the Cameron Case (1929, G.B. v. Mexico), ibid. at p. 35, also 5 UNRIAA at pp. 29–30. See also the McCurdy Case (1929), 4 ibid. at pp. 421 ff.; the Responsibility of Germany Case (1930), 2 ibid. at p. 1072; the Bowerman and Messrs. Burberry (Ltd.) Case (1930), 5 ibid. at p. 106. 48 See, inter alia, the Tracy Case (1930, G.B. v. Mexico), ibid. at p. 121; the Leigh Case (1931, G.B. v. Mexico), Further Decisions and Opinions of Commissioners at p. 83; the Lynch Case (1931, G.B. v. Mexico, Claim No. 32), ibid. at p. 103; the Read Case (1931, G.B. v. Mexico), ibid. at p. 156; the Bryant Case (1931, G.B. v. Mexico), ibid. at p. 362. The Steamer “Montijo” Case (1875), La Fontaine at p. 210, is the earliest case in which the oral evidence of an interested party and the need for corroboration were discussed. In that case there was corroboration and, therefore, the evidence was given weight.


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said that “An unsupported affidavit of the claimant cannot be considered as outside evidence, it is part of the claim itself.”49 In the Office Belge de Verification Case,50 on the other hand, exceptionally, the tribunal did take the view that where other means of proof were not available, the affidavit of the claimant could have a special value for the purposes of proof, because he was recognized as being respectable or because of the reasons he had given to explain why the production of other evidence was not possible. In the Cameron Case, after making the statement cited above from the Mexico City Bombardment Claims, the tribunal decided to rely on affidavits to some extent, because they related to events which had taken place so long ago that there were no witnesses as to such events available.51 In criminal proceedings international tribunals may in general not give weight to affidavits and written statements.52 There are several cases which deal with the question what value should be placed on the evidence of witnesses given under oath. Testimony by third persons not interested in the claim does not suffer from the defect of personal interest which adversely affects the probative value of the statements by an interested party. Even if unsworn, such testimony is entitled, as one tribunal said, to “such consideration as they may seem to deserve,”53 while the same tribunal also said, “Legal testimony presented under the sanction of an oath administered by a competent authority will undoubtedly be accorded greater weight than unsworn statements.”54 49

(1931, G.B. v. Mexico), ibid. at p. 66. (1926, Belgium v. Germany), 6 T.A.M. at p. 706. 51 (1929), 5 UNRIAA at p. 30. See also the Responsibility of Germany Case (1930), 2 ibid. at p. 1072. 52 See Chapter 15 herein. 53 The Lasry Case (1903, USA v. Venezuela), Venezuelan Arbitrations 1903 at p. 38. See also the Parker Case (1923, USA v. Mexico), Opinions of Commissioners 1927 at p. 37; the Bartlett Case (1931, G.B. v. Mexico), Further Decision and Opinions of Commissioners at p. 52. 54 The Lasry Case (1903, USA v. Venezuela), Venezuelan Arbitrations 1903 at p. 38. 50

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Clearly, an oath enhances the probative value of a statement, whether it is made by a disinterested person or even sometimes by an interested party.55 In the Fouilloux Case, for instance, where there was no satisfactory evidence as to the value of the articles which were the subject of the claim, the tribunal accepted the statement of the claimant as to the sincerity and veracity of his claim, after he took an oath before the tribunal.56 An oath may also give to the statement of a disinterested person satisfactory probative value and the character of being true. Thus, in accepting the affidavit of a third person as sufficient corroborative evidence, a tribunal stated: “He is himself not interested in the decision on the claim, and it is difficult to see why he should have committed perjury.”57 The allegation of the claimant, if it is supported by the affidavit of even one creditable witness, has often been considered as established in the absence of evidence to the contrary.58 It is to be noted that the old maxim testis unius testis nullus does not apply in international law. In the absence of rebutting evidence, an affidavit has been accepted as satisfactory evidence by an international tribunal.59 On the other hand, the defective character of affidavits has also been recognized by international tribunals.60 In regard to this the tribunal in the Walfish Bay Case stated: 55

The Kidd Case (1926, G.B. v. Mexico), Decision and Opinions of Commissioners at p. 51. 56 (1922, France v. Germany), 3 T.A.M. at p. 110. 57 The Stacpoole Case (1930, G.B. v. Mexico), Decisions and Opinions of Commissioners at p. 126. 58 The Stacpoole Case (1930, G.B. v. Mexico), ibid.; the Ward Case (1931, G.B. v. Mexico), Further Decisions and Opinions of Commissioners at p. 107; Mexico City Bombardment Claims (1930, G.B. v. Mexico), Decisions and Opinions of Commissioners at pp. 102–3; the Chattin Case (1927, USA v. Mexico), Opinions of Commissioners, 1927 at pp. 438–9 (uncorroborated statement of claimants treated as insufficient); the Harry Roberts Case (1926, USA v. Mexico), ibid. at p. 100. 59 The Evertsz Case (1930, Netherlands v. Venezuela), Venezuelan Arbitrations 1903 at p. 905. 60 See the E.C. Murphy Case (1892, USA v. Chile), 3 International Arbitrations at p. 2265.


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All the evidence alluded to has been produced out of court, in the sense that the arbitrator has not been able to conduct any crossexamination and without being disputed, inasmuch as the party prejudiced by it has not cross-examined the witness either, circumstances which, though they do not deserve blame and appear easily explicable in the present case, certainly diminish the value of the evidence.61

It follows, conversely, that where the testimony of a witness has successfully been subjected to interrogation of the tribunal and cross-examination by the opposing party, its value as evidence will be considerably enhanced.62 It may be noted that the constitutive instruments and procedural rules of some tribunals, including international criminal tribunals, expressly provide for interrogation by the tribunal and cross-examination by the opposing party. Article 43(5) of the ICJ Statute and Article 53 of the ICJ Rules are examples of this, as were Article 43.V of the PCIJ Statute and Article 53 of the PCIJ Rules of 1936. The Statutes and Rules of Procedure of the ICTY and ICTR as well provide for this. There are some general propositions which emerge from the precedents and apply to testimony given by witnesses. In general, the previous conduct and the character of a witness would affect the probative value of his testimony,63 and if untruth of which the witness is aware is found in testimony, no weight will be attached to such statements.64 Because the purpose of evidence is to establish the truth of an alleged fact, testimony is of value only to the extent which it can testify to knowledge of its truth

61

(1911), Cd. 5857 p. 29, Recital XLVII, also 11 UNRIAA at p. 302. See also the Thorndike Case (1892, USA v. Chile), 3 International Arbitrations at pp. 2275–6. 62 The Cameron Case (1929, G.B. v. Mexico), Decisions and Opinions of Commissioners at p. 43 – Separate Opinion of the British Commissioner. 63 See The Tubantia (1922), 2 H.C.R. at p. 140; the White Case (1864), 2 International Arbitrations at p. 322. 64 The White Case (1864), 2 ibid. at p. 323. See also the Lehigh Valley Railroad Co. Case (1939, USA v. Germany), Opinions and Decisions at p. 1.

200


and reality. It has been held that: “Affidavits constitute full proof either when stating acts of the affiant or acts that said affiant knew directly, but when they contain hearsay evidence or only refer to rumours, their value diminishes considerably, at times to such an extent as to become void.”65 Testimony given by persons directly or indirectly interested in a case may be accorded considerable weight, if they are the persons best informed of the facts,66 while testimony by respectable persons would be given little, if any, weight, if based on hearsay.67 For the same reason, testimony is meant to be, as far as possible, individual68 and spontaneous. In the Ignacias Torres Case evidence based on suggestive or leading questions was criticized as not being spontaneous.69 The competence of a witness to understand and appreciate the exact truth of the evidence he gives under oath is also an important consideration in giving weight to his testimony.70 Thus, the testimony of experts usually possesses greater probative force than that of others.71 In any case, witnesses are expected to tes65

The McCurdy Case (1929, USA v. Mexico), Opinions of Commissioners, 1929 at p. 141. For the application of the above principles resulting in acceptance of evidence, on the one hand, and rejection of evidence, on the other, see the Corfu Channel Case (Merits), 1949 ICJ Reports at pp. 16–17; the Tracy Case (1930, G.B. v. Mexico), Decisions and Opinions of Commissioners at p. 121; the Pomeroy’s El Paso Transfer Co. Case (1930, USA v. Mexico), Opinions of Commissioners 1931 at p. 4. 66 The Dillon Case (1928, USA v. Mexico), Concurring Opinion of the American Commissioner, Opinions of Commissioners 1929 at p. 65. See also, e.g., The Montigo Case (1875), 2 International Arbitrations at p. 1434, the Scrope Case (Merits) (1931, G.B. v. Mexico), Further Decisions and Opinions of Commissioners at pp. 270–1. 67 The Cramer Case (1876), 4 International Arbitrations at p. 3250. 68 The Pomeroy’s El Paso Transfer Co. Case (1930, USA v. Mexico), Opinions of Commissioners 1931 at p. 5. 69 (1868), 4 International Arbitrations at pp. 3799–800. 70 The Naulilaa (1928), 2 UNRIAA at pp. 1020, 1024. 71 The I.R. Clark Case (1928, USA v. Mexico), Opinions of Commissioners 1929 at pp. 131–2; the Corfu Channel Case (Merits), 1949 ICJ Reports at p. 21; the De Sabla Case (1933, USA v. Panama), Hunt’s Report at p. 448; the Spanish Zone of Morocco Claims Case (1923), 2 UNRIAA at p. 735.


201

tify only to facts within their knowledge. What conclusion is arrived at from these facts is a matter for the tribunal.72 In regard to testimony in general it has been said that “Allowance must be made for infirmities of memory.”73 Between two testimonies, that which is nearer in time to the event attested will ordinarily be given greater credence.74 While a circumstantial account of things and events would give the impression of veracity,75 too detailed testimony may, in certain circumstances, also arouse suspicion.76 A certain amplification by a witness, however, in his account through the addition of details does not destroy the value of his testimony.77 But inconsistencies, obscurities and patent errors contained in a deposition will diminish its probative value.78 Moreover, those who testify to facts which are most unlikely, obviously erroneous or naturally impossible will of course not be believed.79 As regards the credibility of witnesses in general, while, as has been seen, persons who are not interested in the claim are generally considered impartial, where special relations exist between the witnesses and the party in whose favour they testify, such relations may be taken into account in weighing their testimony.

72

The Hatton Case (1928, USA v. Mexico), Opinions of Commissioners 1929 at p. 7; the Naomi Russell Case (1931, USA v. Mexico), Opinions of Commissioners 1926–1931 at p. 54 – Opinion of the US Commissioner. 73 The Studer Case (1925, G.B. v. USA), Nielsen’s Report at p. 552; the Abu Dhabi Arbitration (1951), 1 ICLQ (1952) at pp. 259–60. 74 The Tracy Case (1930, USA v. Mexico), Discussions and Opinions of Commissioners at p. 122; the Clapham Case (1931, G.B. v. Mexico), Further Discussions and Opinions of Commissioners at p. 161. 75 The Delamin Case (Merits), (1931, G.B. v. Mexico), ibid. at p. 224. 76 The Ignacias Torres Case (1868), 4 International Arbitrations at p. 3799. 77 The Tubantia (1922), 2 H.C.R. at p. 137. 78 The Shone Case (1930, G.B. v. Mexico), Decisions and Opinions of Commissioners at p. 140. 79 The Cattoor Case (1924, Belgium v. Germany), 4 T.A.M. at p. 704; the Corfu Channel Case (Merits), Dissenting Opinion (but apparently not on this point) of Judge Krylov, 1949 ICJ Reports at p. 68.

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In a claim presented on behalf of an individual, even though in international law this is regarded as the claim of his State, the personal, business or other relations between the individual claimant and the third persons whose testimony is offered may be legitimately considered by the tribunal.80 In the Walfish Bay Case, which involved national claims, the arbitrator found that: “The witnesses brought forward by one or the other depend in some way or other, by reason of nationality, residence, or office, on the State in whose favour they are giving evidence, . . .”81 He then concluded that this fact “Though it does not properly constitute a legal objection, is a ground for a reasonable presumption that they may accentuate their assertions, whether they wish it or not, in a definite sense.”82 In regard to testimonial evidence in general, the same arbitrator adopted a method of appraisal which “is in accordance with the rules of sane criticism, in conformity with the leading system in modern law and the only one acceptable in the proceedings of an international arbitration, in which no principle or positive rule imposes any other limit on the powers of the arbitrator, . . .”83 He also said that, therefore, testimonial evidence introduced by either one of the parties, “the value of which, being in favour of the high party which invokes it, should be weighed more carefully than is necessary when it is unfavourable to that party.”84 A tribunal has stated that in deciding whether to give credence to an allegation a tribunal “should take into consideration all the circumstances of the affair, the inherent probability or otherwise of the alleged facts and the likelihood of, and opportunity for, fraud or exaggeration.”85 Naturally, the tribunal should also 80

The Parker Case (USA v. Mexico), Opinions of Commissioners 1927 at p. 37. 81 (1911), Award, Recital XLVIII, Cd. 5857 at p. 29, also 11 UNRIAA at p. 303. 82 Ibid. See also The Tubantia (1922), 2 H.C.R. at p. 140. 83 (1911), Award, Recital XLVI, Cd. 5857 at p. 29, also 11 UNRIAA at p. 302. 84 Ibid. 85 The Mexico City Bombardment Claims (1930, USA v. Mexico), Decisions and Opinions of Commissioners at p. 109.

Documentary Evidence

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be aware of the possibility of error. In examining testimonial evidence in general it should consider “a person’s sources of information and his capacity to ascertain, and his willingness to tell the truth.”86 Finally, it may be noted that an international tribunal has stated that “Testimonial evidence due to the frailty of human contingencies is most liable to arouse distrust.”87

DOCUMENTARY EVIDENCE Documentary evidence stating, recording, or sometimes even incorporating the facts at issue, written or executed either contemporaneously or shortly after the events in question by persons having direct knowledge thereof, and for purposes other than the presentation of a claim or the support of a contention in a suit, is ordinarily free from the distrust and frailty associated with testimonial evidence. It is, thus, considered in general of higher probative value. An international tribunal “can assuredly also apply common-sense reasoning with respect to the value of what might be called purely documentary evidence.”88 On the whole there is great variety in the nature and form of documentary evidence. Thus, it would be foolhardy to give to such common-sense reasoning any precise formulation. However, it must be recognized that similar considerations to those which influence the probative force of testimonial evidence may apply mutatis mutandis and depending on the circumstances to documentary evidence, particularly with respect to hearsay.89

86

The Kling Case (1930, USA v. Mexico), Opinions of Commissioners 1931 at p. 47. 87 The Naomi Russell Case (1931, USA v. Mexico), Opinions of Commissioners 1926–31 at p. 184. 88 The Naomi Russell Case (1931, USA v. Mexico), ibid. at p. 188. 89 The Cameron Case (Demurrer) (1929, G.B. v. Mexico), Separate Opinion of British Commissioner, Decisions and Opinions of Commissioners at p. 44. See also for a slight adaptation of this principle the Island of Palmas Case (1928), 4 AD at p. 481. In international criminal cases, oral testimony

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In criminal cases, as will be seen in Chapter 15 below, documentary evidence which is regarded as indirect evidence is treated with caution, because unlike oral testimony by witnesses it cannot as such be subjected to cross-examination.

BEST EVIDENCE

AND

CIRCUMSTANTIAL EVIDENCE

A point of importance is that international tribunals are not bound by the rule referred to in common law systems as the “best evidence” rule. This matter touches upon admissibility of evidence but is in fact related to the evaluation of evidence and the probative value to be given to secondary evidence. That international tribunals are not bound by the above rule was the view taken by Judge Fitzmaurice in his Separate Opinion in the more recent Barcelona Traction Case (Second Phase). He was of the view that, by failing to produce certain “Trust Deeds,” Belgium was not necessarily withholding them because they contained material prejudicial to the Belgian case and, therefore, in the circumstances of the case, secondary evidence of the contents of the Trust Deeds was admissible. He further stated that: Of course the Trust Deeds would, if produced, constitute what is known in Common Law parlance as the ‘best’ evidence, and unless they could be shown to have been lost or destroyed, it is unlikely that a municipal court would admit secondary evidence of their contents. International tribunals are not tied by such firm rules, however, many of which are not appropriate to litigation between governments.90 by witnesses (and affidavits and documentary evidence) are treated differently in terms of weight from their treatment in international “civil” litigation: see Chapter 15, herein. 90 1970 ICJ Reports at p. 98. See Rosenne, 3 The Law and Practice of the International Court 1921–1996 (1997) p. 1087 on evaluation of circumstantial evidence by the ICJ, and Buergenthal, “Judicial Fact-Finding: The Inter-American Human Rights Court,” in Lillich (ed.), op. cit. note 30, for the practice of the IACHR on evaluation of circumstantial evidence. See also

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The fact that the “best evidence” rule does not apply has resulted in more flexibility and less rigidity in the rules of evidence before international tribunals. Some tribunals, such as the IranUS Claims Tribunal, have not required the parties to provide certified copies of the documents produced as evidence and have accepted photocopies of documents as evidence of those documents. That the rule does not apply, however, does not mean that the authenticity of documents produced by one party and challenged by the other party cannot be put in issue and be made subject to proof. This was the view taken by the dissenting arbitrator in the Ultrasystems Case before the Iran-US Claims Tribunal: Although the Tribunal does not adhere to strict rules of evidence, once an issue is raised as to the validity of documents submitted by a party and that party is given an opportunity to authenticate those documents, its failure to do so should affect the weight accorded such submissions.91

The rules applied by the same tribunal in the Flexi-Van Case with respect to proof of the nationality of shareholders of publicly subscribed corporations also illustrates reliance on secondary evidence in the circumstances of the case. In an evidentiary Order, because it is difficult to prove the nationality of numerous shareholders of publicly held American corporations, the tribunal accepted as evidence to be relied on certificates issued by the officials of the corporation involved together with a report prepared by the firm of certified public accountants that had audited the records.92 That was secondary evidence. This approach was followed in many other cases decided by that tribunal. The ICJ has also made it clear in the Corfu Channel Case (Merits) that, where direct evidence is not available, some other Mani, International Adjudication: Procedural Aspects (1980) p. 216; Sandifer, Evidence Before International Tribunals (1975) p. 139. The subject is discussed also in Chapter 13 herein. 91 (1983), 4 Iran-US CTR at p. 80, Dissenting Opinion of Mosk. The dissent did not affect this point. 92 (1982), 1 Iran-US CTR at p. 455.

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form of proof will be acceptable. In that case it was held93 that, where it was alleged that one State was the victim of an unlawful act committed within the exclusive territorial jurisdiction of another State, the fact of this exclusive territorial control exercised by one State within its frontiers had a bearing upon the methods of proof available to establish the knowledge of that State as to such events, that by reason of this exclusive control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts giving rise to responsibility, and that such a State should be allowed a more liberal recourse to inferences of facts and circumstantial evidence. It may also be noted that in the Lena Goldfields Case, which was, however, a transnational and not an international arbitration, the tribunal did accept evidence which was not direct but was the best available, where “primary” or direct evidence could not be provided.94 The earlier and recent cases have spelled out how courts have approached evidence, given that there is no “best evidence” rule. While there is strictly no hierarchy as such in the kinds of evidence, tribunals have been realistic in their approach to what evidence is required in a given case. Where evidence of better quality should be available and its non-production is not satisfactorily explained, this will weigh against the party whose allegations may either be proved or disproved by such evidence.95 Where documentary evidence should be available, this needs to be produced.96 The party whose negligence has resulted in failure to produce documentary evidence must bear the consequences of such non-production.97 However, documentary evidence may in 93

1949 ICJ Reports at p. 18. (1930), 36 Cornell LQ (1950) at p. 44. 95 See the McCurdy Case (1929, USA v. Mexico), Opinions of Commissioners 1929 at p. 141; the Pomeroy’s El Paso Transfer Co. Case (1930, USA v. Mexico), Opinions of Commissioners 1931 at p. 6. 96 The Mexico City Bombardment Claims (1930, G.B. v. Mexico), Decisions and Opinions of Commissioners at p. 109, Dissenting Opinion of the British Commissioner, but not on this point. 97 The Pomeroy’s El Paso Transfer Co. Case (1930, USA v. Mexico), Opinions of Commissioners 1931 at p. 6. 94

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certain kinds of cases be non-existent. As has been said, “in the case of a tort or a criminal matter it is obviously almost always impossible to have any document attesting the facts.”98 Yet, the amount of evidence available depends upon the circumstances of the case.99 A government cannot rely on its own absence of power to procure evidence as an excuse for the non-production of available evidence when such power could easily be obtained.100 But the collecting of evidence for an international dispute is not a valid reason for violating the rights of another State.101 In general with regard to the amount of evidence to be adduced by the claimant it has been said by a tribunal that “He is to create the conviction that he has earnestly tried to place all existing evidence at our (the tribunal’s) disposal.”102 On the other hand, it has also been recognized in another case that The Commission also realizes that the weighing of outside evidence, if any such be produced, may be influenced by the degree to which it was possible to produce proof of a better quality. In cases where it is obvious that everything has been done to collect stronger evidence and where all efforts to do so have failed, a court can be more easily satisfied than in cases where no such endeavour seems to have been made.103

In cases, where direct evidence of a fact is not available, it is a general principle of law that circumstantial evidence may be

98

The Mexico City Bombardment Claims (1930, G.B. v. Mexico), Decisions and Opinions of Commissioners at p. 109, Dissenting Opinion of the British Commissioner, but apparently not on this point. 99 The Odell Case (1931, G.B. v. Mexico), Further Decisions and Opinions of Commissioners at pp. 63–4. See also the Gage Case (1903, USA v. Venezuela), Venezuelan Arbitrations 1903 at p. 167. 100 The Lehigh Valley Railroad Co. Case (1933, USA v. Germany), Decisions and Opinions at pp. 1126–7. 101 The Corfu Channel Case (Merits), 1949 ICJ Reports at pp. 34–5. 102 The Gill Case (1931, G.B. v. Mexico), Further Decisions and Opinions of Commissioners at p. 90. 103 The Odell Case (1931, G.B. v. Mexico), ibid. at p. 63.

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relied on as a means of proof. In the Corfu Channel Case (Merits) Judge Azevedo said in his dissenting opinion: A condemnation, even to the death penalty, may be well-founded on indirect evidence and may nevertheless have the same value as a judgment by a court which has founded its conviction on the evidence of witnesses. It would be going too far for an international court to insist on direct and visual evidence and to refuse to admit, after reflection, a reasonable amount of human presumptions with a view to reaching that state of moral, human certainty with which, despite the risks of occasional errors, a court of justice must be content.104

The ICJ itself in that case did not disagree with this statement, either explicitly of by implication, because it admitted proof by inferences of fact based on circumstantial evidence. The Court held that This indirect evidence is admitted in all systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion . . . The proof may be drawn from inferences of fact [presumptions de fait], provided that they leave no room for reasonable doubt.105

The converse of all this is also logically true. Where the best or direct evidence is produced to support an allegation, unless contradicted, it is sufficient proof of the allegation.

CONCLUSION The discretion that tribunals have to evaluate and weigh evidence is such an obvious characteristic that the point does not need to

104 105

1949 ICJ Reports at pp. 90–1, per Judge Azevedo, dissenting. Ibid. at p. 18.

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be laboured. Broadly, tribunals are guided by some general principles of law prevailing in national systems of law relating to evidence. These are in reality also common sense principles for international litigation. However, appraisal of evidence requires an intellectual exercise which is related to the circumstances of each case, and it may not be possible to lay down rigid principles governing such subjective mental activity, though some helpful principles may be gleaned from the authorities. With regard to the appraisal of evidence as a whole, it may be said that the amount and caliber of evidence required to prove an allegation may vary with the nature of the allegation, its relative importance in the case, the strength of the legal and logical presumptions for or against such an allegation and the relative ease or difficulty for the parties to produce evidence in support or in rebuttal.106 Suffice it to give two examples of the flexibility in the approach of international tribunals and the relevance of the circumstances of the case. In the Claims for Losses Suffered in Belgium the tribunal said: In their appraisal of the evidence, the arbitrators will be obliged to be strict with regard to the prejudicial act, its author, and its date; for these are the very conditions of their competency. They may be less severe with regard to the amount of damage and be satisfied with simple presumptions; taking into account particular difficulties the injured owners may have in establishing what took place in Belgium in their absence during the German occupation.107

In the McCurdy Case, on the other hand, the tribunal said: In this case it is endeavoured to prove misconduct, in a grave degree, of Mexican officials and therefore the Agency advancing the charge should submit evidence of the highest and most conclusive character.108 106 107 108

140–1.

Cheng, op. cit. note 8 p. 319. (1930), 2 UNRIAA at p. 1040. (1929, USA v. Mexico), Opinions of Commissioners 1929 at pp.

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As for the procedure of evaluating evidence in general, one of the judges in the Mexico City Bombardment Claims came to an important conclusion: If, after giving due weight to all these considerations, it [the tribunal] feels a reasonable doubt as to the truth of any alleged fact, that fact cannot be said to have been proved. But if the Commissioners, acting as reasonable men of the world and bearing in mind the facts of human nature, do feel convinced that a particular event occurred or state of affairs existed, they should accept such things as established.109

Thus, the maxim in dubio pro reo applies with particular force.110 In criminal cases international courts have developed, in addition to applying the provisions on the matter in their Statutes and Rules, a specific approach to certain problems relating to the weight and evaluation of evidence. This approach is examined in Chapter 15 below.

109

(1930, G.B. v. Mexico), Decisions and Opinions of Commissioners at p. 109, Dissenting Opinion (but not on this point) of the British Commissioner. 110 See the Zaldivar Case (1882, Spain v. USA), 3 International Arbitrations p. 2982; the Gage Case (1903, USA v. Venezuela), Venezuelan Arbitrations 1903 at p. 167; the Corfu Channel Case (Merits), 1949 ICJ Reports at pp. 120, 124, 129, Dissenting Opinion (but not on these principles) of Judge Eœer. The maxim means, “In case of doubt the conclusion must favour the respondent” (i.e., the party who is not the actor).

11 PRESUMPTIONS AND INFERENCES

A presumption requires that a finding of a basic fact give rise to the existence of a presumed fact. Clearly, the conclusion relates to an unknown fact. The basic fact or facts found to exist may be established by evidence or by another presumption. An important feature is that the basic fact or facts are found or otherwise established. The conclusion of fact is presumed or arises from a presumption, proof is not required of the conclusion of fact. Presumptions may be rebuttable or irrebuttable (or conclusive). Rebuttable presumptions permit the presumption of fact to be overturned generally by evidence. Irrebuttable presumptions may not be so overturned. Presumptions prescribed by law requiring conclusions of fact from established facts are generally described as “legal presumptions” but are sometimes referred to as rules of law, on account of the reality that the law makes them applicable in reasoning in regard to the facts. But there are situations also in which courts draw inferences from established facts. These are not prescribed

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Chapter 11. Presumptions and Inferences

by law but are tools of reasoning used by judges. They are sometimes described as “judicial presumptions”. They are, in fact, and are better described as, inferences drawn by judges.1 The view has been expressed that the status of presumptions in international litigation is far from being settled and that rigid rules concerning presumptions seldom apply in international adjudication.2 The evidence in international jurisprudence shows, however, that in international litigation the legal presumption, as defined above, has a place and is used, though perhaps sparingly and infrequently, while the judicial inference is clearly a tool often used in judicial reasoning. This is true for both “civil” and criminal international proceedings.

LEGAL PRESUMPTIONS There are several questions with regard to legal presumptions, which really serve as initial premises of legal reasoning. The first is whether they exist, the second is whether they are irrebuttable or rebuttable and the third is what effect do they have. It has been said that international law does not know legal presumptions:

1

For an explanation of presumptions in a national system of law see Black’s Law Dictionary (1990) pp. 1185 ff. The basic explanation given above holds good for public international law. But legal presumptions, as defined above, are to be found and are applied in both common law and civil law systems, while inferences of fact, as defined above, are made by judges in both systems. 2 For the first view see Sandifer, Evidence Before International Tribunals (1975) pp. 141–2: By its very nature the law of presumptions belongs primarily to the realm of municipal law, that than to international law . . . Presumptions cannot . . . in the present stage of the development of international law, occupy a role comparable to that which they lay in municipal law. For the second see Chang, “Legal Presumptions and Admissibility of Evidence in International Adjudication”, 3 The Annals of the Chinese Society of International Law (1966) at p. 2.

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Qu’est-ce à dire, sinon que lorsque les décisions internationales parlent de présomptions, elles ne font que commettre un abus d’expression. Dire que le tribunal international doit présumer la régularité de l’activité de l’Etat c’est dire qu’il incombe à l’Etat réclamant réparation – de prouver le fait internationalement illicite d’où résulterait la responsabilité internationale. Ce n’est pas, ce n’est à aucun titre une présomption. Et comme, par ailleurs, les décisions internationales n’offrent aucun example d’une véritable présomption, il faut conclure que le droit international ignore en fait la présomption juridique.3

However, in fact some legal presumptions in evidence are recognized in international litigation. For instance, fairly recently the Inter-American Court of Human Rights in the Velásquez Rodríguez Case refers to Article 42 of the Regulations of the Inter-American Commission on Human Rights as creating a “legal presumption”.4 Article 42 reads: The facts reported in the petition whose pertinent parts have been transmitted to the government of the State in reference shall be presumed to be true if, during the maximum period set by the Commission . . ., the government has not provided the pertinent information, as long as other evidence does not lead to a different conclusion.

In his Separate Opinion in the Temple of Preah Vihear Case Judge Alfaro stated that the principle of estoppel “constitutes a presumptio juris et de jure in virtue of which a State is held to have abandoned its right if it ever had it, or else that such a State never felt that it had a clear legal title on which it could base opposition to the right asserted or claimed by another State.”5 What is meant is that in the circumstances it is presumed that the 3

Witenberg, “Onus probandi devant les jurisdictions arbitrales”, 55 RGDIP (1951) at pp. 329 ff. 4 Judgment (1988), IACHR Series C, Decision No. 4 para. 130. 5 1962 ICJ Reports at p. 41. He continued: In short, the legal effects of the principle are so fundamental that they decide by themselves alone the matter in dispute . . .

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facts are such that the State regarded itself as not having a clear legal title and, therefore, abandoned its rights. The source of these evidential presumptions are the recognized sources of international law or of the international law applicable by the particular tribunal. The sources in a particular case may be different for arbitral tribunals, the ICJ and IATs. But that they emanate from the relevant sources may be accepted. There are examples in the practice of international tribunals in which general principles of law have been used as sources for legal presumptions. For instance, there are many cases in which rebuttable presumptions have been accepted such as those relating to good faith and the regularity and validity of acts of sovereigns. International tribunals have had frequent recourse to the rebuttable presumption omnia rite acta praesumuntur. In the Valentiner Case, the tribunal held: Omnia rite acta praesumuntur. This universally accepted rule of law should apply with even greater force to the acts of a government than those of private persons.6

Because the conclusion of fact entailed was presumed, it was described as a rule of law. Similarly, good faith is to be presumed, whilst an abuse of right is not. In the German Interests in Upper Silesia Case (Merits) the PCIJ stated in connection with abuse of right that:

For another example, see Algera and Others v. The Common Assembly of the European Coal and Steel Community, in which the CJEC concluded that “The existence of an administrative act creates the presumption of its validity.” (1957), 29 ILR at p. 263. 6 (1903), Venezuelan Arbitrations 1903 at p. 564. Other examples of presumptions consisting of regularity and validity of acts are given by Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) pp. 305 ff., especially note 13.

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It rests with the party who states that there has been . . . misuse to prove his statement.7

In international law a broader presumption which follows from such presumptions is that “The international responsibility of the State is not to be presumed.”8 That is to say, that the party alleging facts which constitute a violation of international law giving rise to international responsibility has the burden of proving its assertion.9 Further, a broad principle embodying a presumption is that a situation which exists under a general rule will be presumed, while he who alleges that an exception to that situation exists incurs the burden of substantiating his allegation. As was said in The Neptune: Whoever will derive to himself advantage by the exception to a general rule, or by an interference with the generally acknowledged rights of another, is bound to prove that his case is completely within the exception.10

A presumption frequently referred to is that restrictions upon the independence of States to act cannot be presumed.11 The party alleging such restrictions or desiring to derive a right therefrom must upset the presumption by showing that there is an exception in fact. It may also be said that what is customary, normal or more probable is presumed and that anything to the contrary

7

PCIJ Series A No. 7 (1926) at p. 30. The Haj Mohammed Harrej (Tanger, Horses) Case (1924), 2 UNRIAA at p. 699 (translation). See also the Corfu Channel Case (Merits), 1949 ICJ Reports at p. 119 per Judge Eœer, dissenting but not on this point. 9 See the cases referred to in Cheng, op. cit. note 6 pp. 306–7, notes 14–17. 10 Per Judge Gore: See Cheng, ibid. p. 307, note 18, and other citations there. The presumption described herein in The Neptune refers to one concerning rules of law but the principle would apply to facts as well. 11 See the Lotus Case (1927), PCIJ Series A, No. 9 at p. 18, and the Right of Passage over Indian Territory Case (Merits), Dissenting Opinion of Judge Moreno Quintana, 1960 ICJ Reports at p. 91. 8

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must be shown to exist by the party alleging it. The burden of proof is discharged by the presumption unless it is shown that the balance of probability is upset in the circumstances.12 Another presumption is that a sovereign State cannot be presumed to have made the substance of its debt and the validity of the obligations accepted by it in respect thereof subject to any law other than its own.13 In this connection the PCIJ stated in the Brazilian Loans Case that It cannot be held that the intention of the borrowing State was to render some law other than its own applicable as regards the substance of its debt and the validity of the conditions laid down in respect thereof, unless there were, if not an express provision to this effect, at all events circumstances which would irrefutably show that such was its intention.14

Many of these legal presumptions flow from the sovereignty of States as a legal concept. Further, they may involve both questions of law and issues of fact. On the other hand, in the Corfu Channel Case (Merits) the ICJ held that there was no presumption that a State necessarily had knowledge of unlawful acts committed in its territory which could be deduced from the principle of sovereignty. The Court said: But it cannot be concluded from the mere fact of the control exercised by a State over its territory and waters that the State necessarily knew, or ought to have known, of any unlawful act perpetrated therein, nor yet that it necessarily knew, or should have known, the authors. This fact, by itself and apart form other circumstances, neither involves prima facie responsibility nor shifts the burden of proof.15

12

See Cheng, op. cit. note 6 p. 306, and notes 20 and 21 thereon. Serbian Loans Case, PCIJ Series A Nos. 20/21 at p. 42. 14 Brazilian Loans Case, ibid. at p. 122. 15 1949 ICJ Reports at p. 18. Contra Judge Alvarez, Separate Opinion, ibid. at p. 44. 13

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It seems to be a settled general principle of law, which has been applied frequently by international tribunals as a presumption, that a party’s attitude, state of mind or intentions at a later date can be regarded as good evidence – in relation to the same or a closely connected matter – of his attitude, state of mind or intentions at an earlier date also; provided of course that there is no direct evidence rebutting the presumption thus raised.16

Another presumption of the same kind, particularly important in cases of territorial sovereignty, is that: the existence of a state of fact, or of a situation, at a later date, may furnish good presumptive evidence of its existence at an earlier date also, even where the later situation or state of affairs has in other respects to be excluded from consideration.17

General principles of law are sometimes relied upon to reach a negative conclusion and to show that presuming a fact or a status under a given circumstance is not justified. The absence of presumptions referred to in the Corfu Channel Case (Merits) has already been mentioned above. In the Eastern Greenland Case, the PCIJ stated in effect that the presumption was that the two governments concerned did not act otherwise than in conformity with the intentions officially expressed before the Court.18 The presumption of good faith is a general principle which applies in a wide range of situations. In the Mobil Oil Iran Inc. et al. Case the Iran-US Claims Tribunal concluded that, when the parties agreed to terminate a suspended agreement through negotiation, and actively pursued the negotiations but did not reach an agreement, their

16

Temple of Preah Vihear Case (Merits), Separate Opinion of Judge Fitzmaurice, 1962 ICJ Reports at p. 61. 17 Ibid. See also the Island of Palmas Case, 2 UNRIAA at p. 866 and the Separate Opinion of Judge Basdevant in the Minquiers and Ecréhos Case, 1952 ICJ Reports at pp. 76 ff. 18 PCIJ Series A/B, No. 48 at p. 287.

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failure did not reflect any breach by either party of their agreement to terminate the contract, because it must be presumed that the parties had negotiated in good faith.19 While legal presumptions in international procedure emanate mainly from general principles of law, there are in international litigation other sources of international law which are relevant as the basis for legal presumptions. International conventions, as a source of international law, could create legal presumptions. For instance, Article 27 of the Vienna Convention on the Law of Treaties prohibits a party from invoking the provisions of its internal law as justification for its failure to perform a treaty. This provision may create the presumption that the internal law of each State conforms to obligations undertaken by it in treaties. The agreement of parties to litigation could be a source of legal presumptions but limitations may arise from the obligations resulting from treaties as well as international public order. In international proceedings the parties may create or recognize presumptions either in an applicable convention, in an agreement submitting to adjudication, or in the rules of procedure of their international tribunal. Except to the extent that it may reflect an international custom or a peremptory norm of international law ( jus cogens), the effect of the parties’ agreement is limited to the particular case. It is also conceivable that international tribunals may rely on international custom as creating legal presumptions which operate in the treatment of evidence. Moreover, judicial decisions and the teachings of the most highly qualified publicists, referred to in Article 38 of the Statute of the ICJ, could be a source for the establishment of presumptions. In regard to international judicial decisions, once a presumption is recognized by an international tribunal it becomes a precedent with more weight, because it is then in a judicial decision which is a source of law. The effect of a legal presumption on the burden of proof is not easily described. International tribunals do not usually reveal 19

(1987) 16 Iran-US CTR at p. 54. On legal presumptions and their effect on proof see also the Sambaggio Case (1903), 10 UNRIAA at p. 524.

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their decisions on facts before the end of the proceedings. This is a stage in the proceedings at which the party against whom the existence of a fact is presumed has no further opportunity to produce evidence to prove the contrary. While this is so, it is not incorrect to say that presumptions affect the burden of proof in a special way, e.g., that in the process of evaluating the evidence the tribunal takes into account any rebuttable presumption applicable in favour of the party that carries the burden of proof and not rebutted by the other party. This proposition applies whether the presumption is in favour of the plaintiff or of the respondent. In the case of rebuttable presumptions, while the effect of such presumptions is not to reverse the burden of proof, they do relieve the party in whose favour the relevant presumption applies from carrying forward proof, by creating a conclusion of fact in its favour. The party alleging the contrary must upset that conclusion in terms of proof. Where the opposing party is not able to rebut the case created by a presumption, the tribunal would give a ruling in favour of the proponent. To say that rebuttable presumptions have the effect of shifting the burden of proof is not accurate. In his Dissenting Opinion in the Corfu Channel Case (Merits) Judge Azevedo said: And so, without prejudice to the maintenance of the traditional import of the word culpa and to avoid the difficulty of proving a subjective element, an endeavor has been made to establish presumptions that would simply shift the burden of proof as in the theory of bailment in which a mere negative attitude – a simple proof of absence of culpa on the part of a bailee – is not sufficient. The victim has only to prove damage and the chain of causation; and that is enough to involve responsibility, unless the defendant can prove culpa in a third party, or in the victim, or force majeure; only these can relieve him from responsibility.20

The statement there that the burden of proof (to prove absence of culpa) is shifted upon the operation of the presumption of 20

1949 ICJ Reports at pp. 85–6.

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culpa is erroneous, though the reference to proof of culpa in a third party or of force majeure by the respondent is not, because these are specific defences which the respondent as the actor needs to prove. It makes a difference to say that a presumption shifts the burden of proof rather than that it shifts the burden of evidence. If the burden of proof is shifted then the opposing party must provide evidence to satisfy the standard of proof on the basis that he must now prove his case. If the burden of proof remains with the claimant, all the other party needs to do is to provide such evidence that its effect is to prevent the other party from having discharged the burden of proof according to the applicable standard. In the case of presumptions the burden of proof in its real sense never shifts, and, thus, technically the effect of presumptions is confined to the procedure relating to evidence. Of course, it is always the tribunal which decides on the applicability of the presumptions relied upon by a party. They are questions of law and are, therefore, within the knowledge of the tribunal. Their existence is established in the same way in which rules of law are established. They are not subject to proof as questions of fact. For example, in the Lighthouses Arbitration the PCA did not conclude that the presumptions adduced by the claimant in default of any direct proof to prove a breach of obligation particularly were acceptable to the tribunal.21 The tribunal rather required direct evidence of the breach of obligation. In the Iran National Airlines Co. Case the respondent put forward the argument that the fact that certain U.S. regulations and procedures relating to payments in connection with certain U.S. Air Force transactions existed created a presumption that the sums owed on invoices connected with those transactions had already been paid. The respondent resorted to that presumption, because, on account of the effect of U.S. regulations governing destruction of past records, it was no longer possible for the respondent to produce records of payment for such Air Force transactions over three years old.

21

(1956), 23 ILR at p. 680.

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The tribunal, however, did not accept this argument of the respondent, stating that: The Tribunal does not doubt that the timely submission of invoices supported by AF Form 15s usually results in payment. The Tribunal decides, however, that the evidence in this Case is inadequate to justify application of a presumption of prior payment, which would unfairly shift the burden of proof back to the Claimant to show that no payment had been made.22

It may be noted that the tribunal erred in stating that the burden of proof would have shifted. If anything shifted it was the burden of producing evidence, which, however, is not applied as a rule of evidentiary procedure as such by international tribunals. In that case the claimant also contended that as the use and distribution of AF Form 15s was severely controlled by the respondent, a mere submission of the Form 15, even if unsigned, would create liability for payment. But the tribunal did not accept that presumption either, concluding that the claimant had the responsibility to ensure that the AF Form 15 was properly signed before liability could be established.23 In the Sambaggio Case the tribunal took the view that, when negligence in preventing damage by revolutionaries is alleged and proved, the State becomes responsible for that damage. The tribunal rejected the argument that a “general presumption of inferior status” could be admitted to exempt the State from liability.24 It should be noted that some presumptions, such as presumptions in the interpretation of treaties referred to in the Vienna Convention on the Law of Treaties are presumptions relating to law and are not concerned with the proof of facts through evidence. On the other hand, for instance, the presumption mentioned in the Corfu Channel Case (Merits),25 that a State is presumed

22 23 24 25

(1987), 17 Iran-US CTR at p. 193. Ibid. at p. 208. (1903), 10 UNRIAA at p. 524. 1947 ICJ Reports at p. 4.

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not to have committed any acts contrary to international law, could be applied to evidence as a presumption relating to facts. The existence of irrebuttable presumptions of evidence in international law seems also to be supported by some authority. For example, in the Namibia Case the Court stated: the classic instance of the creation of an irrebuttable presumption in favour of a given intention is, precisely, where a different course has been proposed but not followed.26

It was also pointed out in that case that: From what this list reveals . . . there arises an irrebuttable presumption that except in the few cases . . . in which executive or operative powers are specifically conferred on the Assembly, it does not, so far as the Charter is concerned, have them.27

One of the problems with irrebuttable presumptions of evidence arises from the nature of the sources of international law which are not the same as for national law. There is no central lawmaking authority. But there are some such presumptions incorporated in multilateral conventions such as the 1969 Vienna Convention on the Law of Treaties. For example, there is an irrebuttable presumption implied in Article 46 of that Convention which states: 1. A state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

In international law irrebuttable presumptions are in fact the requirements of substantive rules of international law relating to facts 26 27

1971 ICJ Reports at pp. 274–5. Ibid. at pp. 280–1 per Judge Fitzmaurice.

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which are present as a result of the application of legal presumptions. It is when substantive rules of international law relating to facts are not subject to proof to the contrary that, when they create presumptions, these presumptions are not rebuttable. The effect of an irrebuttable presumption on the burden of proof is that, if the rule of international law which is the basis for an irrebuttable presumption supports the claim of fact, then the burden of proof is met, the claim of fact is to be regarded as proven and the respondent cannot displace the conclusion against him. Also, when there is an irrebuttable presumption against the claim of fact, the burden of proof on the claimant becomes impossible to discharge and the claim is lost.

INFERENCES

OR

JUDICIAL PRESUMPTIONS

Judicial presumptions are better described as inferences. The acceptance of inferences in international litigation cannot be disputed. As has been stated by the IACHR: The practice of international and domestic courts shows that direct evidence, whether testimonial or documentary, is not the only type of evidence that may be legitimately considered in reaching a decision. Circumstantial evidence, indicia and presumptions may be considered, so long as they lead to conclusions consistent with the facts.28

Before the Iran-US Claims Tribunal, both Iran and the U.S. agreed “that the use of presumptions can constitute a perfectly legitimate method of evaluating the evidence in cases before the Tribunal.”29 The reference to presumptions in both these instances clearly covers both legal and judicial presumptions or inferences. 28

The Velásquez Rodríguez Case (1988), IACHR, Series C: Decisions and Judgments No. 4, para. 130 (p. 135). 29 Islamic Republic of Iran v. United States of America (1986), 11 IranUS CTR at p. 276.

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Inference is clearly an instrument of reasoning to which resort could be had by international tribunals. Needless to say, it is the usual practice of international tribunals to resort in their reasoning to reasonable inferences of fact drawn from another fact or other facts. Generally, inferences are drawn on circumstantial evidence. As was explained in the Corfu Channel Case (Merits), in international law, circumstantial evidence means facts which, while not supplying immediate proof of the charge, yet make the charge probable with the assistance of reasoning.30

Inferences are judicial tools and it is the tribunal which decides whether they are to be made in a given case, even though the parties may advance argument as to their relevance. There are situations in which resort to inferences has been had and the burden of proof has consequently been met by reliance on them. Inferences, unlike legal presumptions, are related to the specific context of the evidence and the tribunal decides in the exercise of its judgment whether they are reasonable. It should be noted that it is not always easy to distinguish between legal and judicial presumptions in international procedure particularly because of the practice of some tribunals in using the terms “inference” and “presumptions” interchangeably when referring to “inference”. Thus, in the Mobil Oil Iran Inc. Case the tribunal said: The fact that a party refrained from raising a specific issue in the negotiations is a strong presumption, indeed, that this party did not expect to obtain anything on such an issue.31

This is a clear reference to a judicial inference. In the Corfu Channel Case (Merits) the ICJ took the view that exclusive territorial control by a State had a bearing upon the 30 31

Corfu Channel Case (Merits), 1949 ICJ Reports at p. 59 per Judge Badawi. (1987), 16 Iran-US CTR at p. 55.


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methods of proof available to establish the knowledge of that State as to such events and, considering the difficulties to be faced by a victim of a breach of international law in finding direct proof of facts in the territory of another State, recognized the admissibility of inferences and circumstantial evidence, stating that Such a State should be allowed a more liberal recourse to inferences of fact and circumstantial evidence. This indirect evidence is admitted in all systems of law, and its use is recognized by international decisions. It must be regarded as of special weight when it is based on a series of facts linked together and leading logically to a single conclusion.32

On the basis of a series of inferences the Court eventually drew the conclusion that the laying of the minefield could not have been accomplished without the knowledge of the Albanian government.33 Some of the facts on the basis of which the Court inferred the knowledge of the Albanian Government were as follows: the Albanian Government’s notes, the fact that the Albanian Government had not made a judicial investigation to inquire into the events of October 22, the geographical configuration of the Bay of Saranda, the method applied and the time needed for the minelaying operation, and the distance of the nearest mine from the coast.34 The Iran-US Claims Tribunal has, where the validity of a contract was in dispute between parties, made the inference that the

32

1949 ICJ Reports at p. 18. Ibid. at p. 22. See also Judge Azevedo, dissenting, ibid. at pp. 90–91. 34 Ibid. at pp. 19–20. Some of the judges, however, disagreed with the majority of the Court in that respect, and expressed concern over the risk of relying too much on circumstantial evidence in international proceedings. Judge Krylov, for instance, doubted “whether, by founding oneself on indirect evidence, it is possible to conclude that a State is responsible vis-à-vis another State.” (Ibid. at p. 69.) He also took issue with the quality of the indirect evidence produced in the case. See also, Judge Winiarski, dissenting, ibid. at p. 51. 33

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parties treated the contract as valid35 from the proven fact that the contractor had previously been paid by the employer under the contract. In the Walfish Bay Case the arbitral tribunal referred in evaluating the evidence to the inference or judicial presumption that persons dependant on the party in whose favour they have given testimony may accentuate their assertions in a definite sense, especially when they are not subjected to cross-examination.36 There was no legal objection to admission of the evidence but there was a judicial inference which could be made in reasoning. Most of the cases discussed above are examples of inferences based on commissions that have been proved. However, an inference may also be based on inaction or failure to deny a fact or facts. In the Nicaragua Case (Merits) the ICJ often made this kind of inference. For instance, the Court concluded that U.S. military aircraft had made overflights over territory, because that fact had not been denied.37 Tribunals set their own limits on the making of inferences. For instance, the Iran-US Claims Tribunal has taken the view that the fact which had been established that certain checks were drawn on an account was not, by itself, sufficient to prove that there were funds in such account.38 In the Starrett Housing Corp. Case it was said that the assumption of control over property by a government does not automatically and immediately justify the conclusion that the property has been taken by the government.39 In the Velásquez Rodríguez Case the IACHR did not find acceptable the inference advocated by the government of Honduras that having a criminal record or charges pending was adequate in and

35

See, e.g., the Blount Brothers Corporation Case (1983), 3 Iran-US CTR at p. 231; the Woodward-Clyde Consultants Case (1983), ibid. at p. 238; the R.N. Pomeroy et al. Case (1983), 2 Iran-US CTR at p. 380; the Raygo Wagner Equipment Co. Case (1982), 1 Iran-US CTR at p. 414. 36 (1911), 11 UNRIAA at pp. 302–3. 37 1986 ICJ Reports at pp. 51–2. 38 The American Housing International Inc. Case (1984), 5 Iran-US CTR at p. 240. 39 (1983), 4 Iran-US CTR at p. 155.


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of itself to warrant the conclusion that a witness was not competent to testify in court.40 In the Temple of Preah Vihear Case, where certain facts had been clearly established, Judge Spender emphasized that “No presumption can be made and no inference can be drawn which is inconsistent with facts incontrovertibly established by the evidence.”41 On the other hand, as stated by the ECHR in the Irish Case, “proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.”42 Since all inferences, as opposed to legal presumptions may be controverted, the opposing party may counter an inference by presenting direct evidence or relying on another inference. What the tribunal does in each case is to take account of the inferences in favour of the party bearing the burden of proof and then determine whether or not the probative value attributed to the inferences is sufficient to meet that burden. The party that bears the burden of proof must also controvert those which seem applicable against its claim. Then, it is for the tribunal to decide whether or not that party has been able to controvert those inferences. Thus, for example, in the Arthur J. Fritz & Co. Case the IranUS Claims Tribunal stated: It is the Claimant’s burden to disprove this inference and to establish that the government indeed controlled enough of STSS’ members.43

It is obvious that inferences together with other types of evidence have an impact on the burden of proof as part of the evidence in 40

(1988), IACHR, Series C: Decisions and Judgments No. 4 para. 145 (p. 139), citing an earlier decision of October 6, 1987, of the same court. In regard to presumptions in the IACHR see also Buergenthal, “Judicial FactFinding: the Inter-American Human Rights Court” in Lillich (ed.), FactFinding by International Tribunals (1991) at pp. 271 ff. 41 1962 ICJ Reports at p. 109. Judge Spender dissented but this point was not a dissent. 42 (1987), 58 ILR at p. 264. 43 (1989), 22 Iran-US CTR at p. 179.

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favour of the party bearing that burden. The difficult question is whether it is possible to discharge the burden of proof by reliance solely on inferences. It was Judge Bustamante’s view that in international proceedings it was “possible to arrive at a conclusion on the basis merely of inferences or deductions forming part of a logical process” without having to rely on duly proven facts.44 But there is also a reluctance to rely unnecessarily on inferences, particularly, where production of other types of evidence is possible. Thus, even in cases where an international tribunal has accepted as admissible circumstantial or indirect evidence because of the impossibility of producing direct evidence on account of the nature of a claim, it has been said that inferences “may be considered, so long as they lead to conclusions consistent with the facts.”45 The view that only reasonable inferences should be drawn from proven facts was taken by the tribunal (the Italian-U.S. Conciliation Commission) in the Grenier Claim. In that case the U.S. tried to discharge its burden of proof as claimant by reference to an inference that the goods in question were requisitioned by the Italian authorities or otherwise lost or destroyed as a result of the war. The tribunal held, however, that there was no logical basis for the inference proposed by the claimant and rejected the claim of the U.S., because it, as the claimant, had failed to meet its burden of proof.46 In the Corfu Channel Case (Merits), where the ICJ evaluated the value of inferences as being conclusive and sufficient to meet the burden of proof, the Court stated that conclusions, if they were to be drawn on the basis of inferences of fact, must leave no room for reasonable doubt.47

44

See his Separate Opinion in the Barcelona Traction Co. Case (Preliminary Objections), 1964 ICJ Reports at p. 84. See also the Lockheed Corporation Case (1988), 18 Iran-US CTR at p. 308. 45 The Velásquez Rodríguez Case (1988), IACHR, Series C: Decisions and Judgments No. 4 para. 130 (p. 135). 46 (1959), 30 ILR at pp. 455–6. Though the organ was a conciliation commission, what it held is true for judicial bodies. 47 1949 ICJ Reports at p. 18.


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International tribunals clearly possess a wide discretion with regard to inferences. They may, inter alia, infer from facts a conclusion which differs from the one offered by the party adducing those facts and proposing an inference. In the Arakel Khajetoorians et al. Case, for example, the Iran-US Claims Tribunal concluded that the purchase of two burial vaults by the claimants indicated “at most an intention to have his final resting place be in the United States” and that it did not, contrary to the claimant’s contention, “indicate an intention not to return to Iran.”48 A tribunal may also make reasonable assumptions even in the absence of any particular evidence produced by the parties. For example, in the Seismograph Service Corporation Case the same tribunal concluded that “in the absence of any specific evidence on this point, the Tribunal deems it reasonable to assume that the profit generated by the Crew Three Property would be one third of the stated value of Contract 340.”49 There have been occasions on which the exercise of this discretion has been beset with difficulty and, therefore, the inferences drawn may be open to question. For instance, in the Houston Contracting Company Case50 the respondent argued that it could be inferred from the fact that it had not paid the full amount of any of the claimant’s invoices that its interpretation of the contract was correct. In spite of the fact that the claimant had not made any reference to the unpaid balance in its subsequent invoices or to any objection to the reduced payment, the Iran-US Claims Tribunal inferred that “such commissions do not negate the presumption that the full amounts of the invoices are still payable,”51 relying on its previous practice that, in the absence of contemporaneous objections or disputes, invoices or payment documents presented during the course of the contract are presumed to be correct. In the circumstances of the case the inference

48 49 50 51

(1991), (1988), (1988), Ibid. at

26 Iran-US CTR at p. 42. 22 Iran-US CTR at pp. 80–1. 20 Iran-US CTR at p. 3. pp. 24–5.

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could equally have been made that, in the absence of contemporaneous objection, the claimant either was not entitled to full payment, or did not have any objection to part-payment. On that basis and with that inference, it would have been for the claimant to prove otherwise to discharge its burden of proof. Then the inference would have resulted in a conclusion favourable to the respondent. In the Daley Case,52 also decided by the Iran-US Claims Tribunal, the tribunal accepted the allegation made by one of the claimants that he had owned an expensive watch which he claimed to have been confiscated. The claimants were seeking compensation, among other things, for several items of jewelry, gold coins, bank notes in US$ 1,000 denominations, and a Rolex watch. The tribunal began by laying down that the claimants must bear the burden of proving possession, expropriation and value of the items for which they sought compensation53 and rejected the claims for all the above items, except for the watch, because the claimants were unable to establish possession of them. With respect to the watch the tribunal concluded on the grounds that a specific brand, Rolex, had been mentioned, that it was probable that the claimant, like the majority of business people, would possess and wear a watch in the normal course of events, as he had stated in evidence that he was in the habit of doing, and that the description of the watch was sufficient to determine that the value he placed on the watch, US$ 800, was reasonable.54 The drawing of the inference involved may be regarded on the proven facts as questionable. It is possible that under special circumstances, including situations where obtaining corroborative evidence is practically impossible or unusually difficult, assertions of individual claimants or respondents with respect to their claims or defence could be taken into account by an international tribunal. The problem with

52 53 54

(1988), 18 ibid. p. 232. Ibid. paras. 30–2. Ibid. para. 32.


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the Daley Case is that there was considerable circumstantial evidence, including the fact that the claimants had successfully discharged the burden of proving only one tenth of their claim, casting doubts on the veracity of the claimants and on the validity of their claims. However, on the basis of a strange premise, namely that the majority of business people usually wear a watch, the tribunal accepted the uncorroborated statements of the claimant that he owned a watch and that it was seized and decided that it was a Rolex, because that was the brand name the claimant had mentioned, and then agreed with the value he had placed on the watch because it appeared to be reasonable for a Rolex watch. Both the cases discussed above highlight the difficulties inherent in the making by tribunals of inferences from proven facts. However, such difficulties may be unavoidable and have to be dealt with by tribunals.55

55

See on these last two cases before the Iran-US Claims Tribunal the explanation and comments by Kazazi, Burden of Proof and Related Issues (1996) pp. 269 ff. On inferences in the European Commission of Human Rights and the ECHR see Frowein, “Fact-Finding by the European Commission of Human Rights,” in Lillich (ed.), op. cit. note 40 at pp. 247 ff. The negative or adverse inference as a weapon in the case of failure to produce evidence in a party’s possession (e.g., because it is confidential) in IATs is discussed herein in Chapter 14. See also Amerasinghe, 1 Law of the International Civil Service (1994) pp. 607 ff. and “Problems of Evidence before International Administrative Tribunals,” in Lillich (ed.), op. cit. note 40 at pp. 210 ff.

12 THE STANDARD OF PROOF

The standard of proof applied is really based on the principle that tribunals have authority and duties in respect of evidence in matters before them, one of its duties being to decide whether or not the proponent of a claim has succeeded in proving his claim to the satisfaction of the tribunal, i.e., in discharging the burden of proof. The standard of proof relates to the quantum or degree of proof, i.e. by what measure is what the claimant has to prove to be judged. Unlike in the common law system and perhaps more like in the civil law systems, international tribunals, as has been seen in Chapter 10, have a certain flexibility generally in the evaluation of evidence. It would seem that both the ICJ and other international tribunals, including arbitral tribunals, which have adjudicated numerous international claims have usually not discussed in detail the matter of the standard of proof to be applied to the evaluated evidence and have not clearly explained the underlying standard they have applied in their decisions. On account of this, a judge of the Iran-US Claims Tribunal was prompted to remark:

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“It is regrettable that the Tribunal has never discussed the standard of proof it imposes on parties.”1 In some cases, however, international tribunals have addressed this question, in order to provide a general guideline for the evidentiary requirements in the cases being decided by them.2 It may appear that the answer to the question, what is an acceptable standard of proof for international tribunals, depends to some extent on the fact that in this regard there is subjectivity in judgment. In common law systems the standard applied generally in civil cases is that of the preponderance of the evidence or a reasonable degree of probability. If a reasonable man would be convinced on the basis of the probability that the case has been proven by the evidence produced, then the case is considered proved.3 In criminal cases the standard of proof is stricter, proof beyond a reasonable doubt in determining guilt being required generally.4 In civil law systems what matters in both civil and criminal cases seems to be the conviction of the judge, based on the evidence submitted.5 To frame the matter in terms of “moral conviction” or “convincing or satisfying the judge” may not always reveal the ultimate test which is being applied. There may be, in order to do justice, a need to have a more concrete standard. In any case tribunals have not hesitated, where necessary, to indicate standards of proof in different and specific terms, although sometimes no more than those general terms have been used.

1

Mosk in a dissenting opinion in the Schering Corporation Case (1984), 5 Iran-US CTR at p. 375. 2 See, e.g., the Flexi-Van Leasing, Inc. Case, Order of 20 December 1982, 1 Iran-US CTR, pp. 455–63; and the General Motors Corporation Case, Order of 21 January 1983, 3 Iran-US CTR at pp. 1–2. 3 See Miller v. Minister of Pensions, per Lord Denning, cited in Cross, Cross on Evidence (1979) p. 110. 4 Ibid. 5 See Frowein, “Fact-Finding by the European Commission on Human Rights,” in Lillich (ed.), Fact-Finding by International Tribunals (1991) at p. 248.

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Chapter 12. The Standard of Proof

In any event, in an international proceeding there are two situations which could lead to clear answers – the trier of fact (i.e., the judge) would find either that it is clear on the record that the evidence in favour of the actor (claimant) in regard to the issue is so meagre or absent that it is reasonable to conclude that there is no case at all, or that the evidence is so decisive and convincing that it proves “beyond a reasonable doubt” what the actor is asserting, so that the holding must be in his favour. There are conceivably two more situations in between these two: where the evidence does not support the actor’s case beyond a reasonable doubt, it, nevertheless, in the first case supports his case on the basis of preponderance, i.e., it shows that it is more likely than not that his claim is true on the basis of probability or, in the second case, fails the test of probability but satisfies a test of possibility, as where the evidence shows an even balance. In the first situation the evidence could clearly be characterized as insufficient, and in the second situation as inconclusive, leading in both cases to dismissal of the claim. It is these two situations that require particular attention. A determination has to be made as to what degree of proof, short of proof beyond a reasonable doubt, is acceptable, if at all, to discharge the burden of proof. In general, in fact for discharge of the burden of proof there are two standards which have been discussed most frequently, proof beyond a reasonable doubt, which requires a very high degree of cogency, and “preponderance of evidence”. Proof beyond a reasonable doubt is not proof requiring absolute certainty. In terms of doubt the latter would be proof beyond any doubt. Another important point is that in international (or transnational) arbitration the governing law may require a particular standard, whether it is the chosen law or the agreement of the parties that does so.6 The latter refers to the situation described above, where

6

See, for transnational law primarily, Reymond, “The Practical Distinction Between the Burden of Proof and Taking of Evidence – A Further Perspective,” 10 Arbitration International (1994) at p. 326. For standards of

Proof beyond a Reasonable Doubt

235

on the basis of probability it is possible to conclude that there is more evidence in favour of than against the actor’s claim. There may apparently be another standard referred to in some cases, namely “proof in a convincing manner” which could lie between proof on the basis of “preponderance of evidence” and proof “beyond a reasonable doubt”. Apart from determining whether the facts established by the evidence adduced support the actor’s claim, a tribunal has also to establish particular facts which are relevant to the claim on the basis of the evidence available. For this purpose also it must be determined what standard or test applies. The task of establishing particular facts from the evidence is separate from that of ascertaining whether the claim is proven on the basis of the established facts.

PROOF

BEYOND A

REASONABLE DOUBT

The nature and area of activity of an international tribunal as well as the circumstances of the given case will particularly determine the standard to be applied to the discharge of the burden of proof. Proof beyond reasonable doubt seems generally to be too severe a standard for non-criminal cases, but it has been applied under special circumstances by some international tribunals. Just as in national law a high standard such as proof beyond a reasonable doubt is applied in criminal cases,7 in international litigation this standard has been applied in civil claims such as

proof applied by the ECHR and the European Commission of Human Rights see Frowein, loc. cit. note 5 at pp. 246 ff. For the IACHR see Buergenthal, “Judicial Fact-Finding: The Inter-American Human Rights Court,” in Lillich (ed.), ibid. at pp. 271 ff. On the standard of proof in IATS see C.F. Amerasinghe, 1 Law of the International Civil Service (1994) p. 612. Basically these texts do not take an approach that is different from the one outlined in the text above. 7 See Cross, Cross on Evidence (1979) p. 110. The ICTY and ICTR apply this standard: see below Chapter 15.

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tort claims or where quasi-criminal allegations are involved. For example, in the Irish Case, in evaluating the evidence, the ECHR required proof beyond a reasonable doubt as its standard of proof.8 The question before the Court was whether there were in Northern Ireland practices contrary to Article 3 of the European Convention on Human Rights which prohibited torture or inhumane or degrading treatment or punishment. While this high standard of proof was required, the Court added that “such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact”.9 As has been stated, The Commission developed its approach to the standard of proof in the Greek inter-state case. It found there that a violation of the Convention must be proved ‘beyond a reasonable doubt.’ The commission explained that standard by stating that it means ‘not a doubt based on a merely theoretical possibility or raised in order to avoid a disagreeable conclusion, but a doubt for which reasons can be given drawn from the facts presented.’10

Proof of facts establishing the violation by a State of the law relating to human rights is generally based on this standard. The ICJ also applied a high standard of proof in the Corfu Channel Case (Merits) when, after discussing the evidence provided by the UK in support of its alternative argument that the minefield had been laid with the connivance of the Albanian Government, concluded that a charge “of such exceptional gravity against a State would require a high degree of certainty that has not been reached here.”11 This seems to be a reference to proof “beyond a reasonable doubt”. As will be seen in Chapter 16, the Iran-US Claims Tribunal has occasionally and in special circumstances adopted this high standard of proof in regard to

8 9 10 11

(1978), 58 ILR at p. 264. Ibid. Frowein, loc. cit. note 5 at p. 246. 1949 ICJ Reports at pp. 16–17.

Proof beyond a Reasonable Doubt

237

certain defences. These defences are based on the claim that documents relied on by the plaintiff were forged or were procured by bribery and collusion. In both the Corfu Channel Case (Merits) and the relevant cases decided by the Iran-US Claims Tribunal it was in fact the standard of proof “beyond a reasonable doubt” that was applied to a defence raised by one of the parties. It has also been suggested by Judges Spender and Fitzmaurice in the South West Africa Cases that the jurisdiction of international tribunals should be proved beyond a reasonable doubt. They stated that if a reasonable doubt – and still more a very serious doubt, to put it no higher – is revealed as existing, then, because of the principle of consent as the indispensable foundation of international jurisdiction, the conclusion would have to be reached that jurisdiction is not established. In short, the doubt would, according to the normal canons for the interpretation of jurisdictional clauses, have to be resolved against the existence of jurisdiction.12

It must be borne in mind that it is the facts which form the basis of jurisdiction that must, according to the judges, be established beyond a reasonable doubt. In international criminal cases, as is shown clearly by the cases decided by the ICTY and ICTR, proof beyond a reasonable doubt has explicitly been assumed to be applied to the prosecutor’s case, when a tribunal determines whether the guilt of the accused has been proved on the basis of all the established facts. That standard for this purpose has never been questioned. In the Tadić Case, the first decided by the ICTY, the Trial Chamber said specifically in relation to proof of one of the offences allegedly committed by the accused: 234. Giving full weight to these Defence submissions there is nevertheless, opposed to the accused’s denial of any part in these three

12

Joint Dissenting Opinion, 1962 ICJ Reports at pp. 473–4. The standard for jurisdiction is a matter requiring further consideration.

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incidents the subject of paragraph 6, much evidence from many witnesses of the accused having been seen by them in the Omarska camp on 18 June 1992 and on other occasions, evidence which the Trail Chamber accepts as truthful. Once it is accepted that the accused is untruthful in his denial of ever having visited Omarska, the Defence case is placed in jeopardy. However, it remains, as ever, for this Trial Chamber to determine whether, notwithstanding the criticism of the Prosecution evidence made by the Defence, it is satisfied beyond reasonable doubt of the guilt of the accused of each of the detailed acts alleged in paragraph 6. 235. This Trial Chamber is satisfied beyond reasonable doubt that the accused was one of a group of men who severely beat Emir Beganović and also Senad Muslimović. It accepts their evidence of having been brutally beaten and kicked on the hangar floor by that group and of their identification of the accused as taking an active part in that kicking and beating and, in the case of Senad Muslimović, of the accused threatening him with a knife and then stabbing him.13

The ICTY made it quite clear that the standard to be applied to determine overall guilt of a crime was whether the facts proved beyond a reasonable doubt that the crime was committed. This test clearly applies to such subsidiary issues as, for example, whether it was the accused that committed the crime. In the same case the Appeals Chamber referred to an explanation of the standard of proof beyond a reasonable doubt given by the prosecution. The test was described as being that “the proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair or rational hypothesis which may be derived from the evidence, except that of innocence.”14 The Appeals Chamber did not disagree with this explanation by the prosecution. In fact the Appeals Chamber found that “the only reasonable conclusion that the Trial Chamber could have

13 14

(1997), <www.icty.org>, Judgment (Trial Chamber) at p. 83, paras. 234–5. Tadić Case (1999), <www.icty.org>, A.C. Judgment at p. 76, para. 174.

Proof in a Convincing Manner

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drawn” from the evidence was the one which the prosecution argued that the trial Chamber should have reached and further said that there was virtual certainty on the evidence and the facts proved.15 However, that there was virtual certainty did not matter in the circumstances of the case, because on the test as explained by the prosecution the conclusion would a fortiori have been the same. The conclusion to be reached is that the highest standard of proof – proof beyond a reasonable doubt – may be applied in certain kinds of cases. Clearly it is for the tribunal to decide when it applies. It is an accepted standard for proof of guilt in criminal cases.

PROOF

IN A

CONVINCING MANNER

Reference has also been made to a high standard of proof, impliedly perhaps, less than proof beyond a reasonable doubt but more than probability, in the Velásquez Rodríguez Case by the IACHR: The Court cannot ignore the special seriousness of finding that a State Party to the Convention has carried out or has tolerated a practice of disappearances in its territory. This requires the Court to apply a standard of proof which considers the seriousness of the charge and which, notwithstanding what has already been said, is capable of establishing the truth of the allegations in a convincing manner.16

It has been pointed out that the standard referred to in this case was somewhere between “proof beyond a reasonable doubt” and “proof on the preponderance of evidence” but not “proof beyond

15

Ibid. at p. 79, para. 183. (1988), IACHR, Series C: Decisions and Judgments No. 4 para. 129 (p. 135). 16

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a reasonable doubt”.17 If this view is accepted the standard is another one to be added to the principal two standards. The question arises then how this standard is to be defined. It could, on the other hand, just be that the intention of the IACHR was to equate this standard with “proof beyond a reasonable doubt”. Similar language was used to describe the standard of proof in the Dadras International, et al. Case, decided by the Iran-US Claims Tribunal.18 What another arbitral tribunal said in the Mexico City Bombardment Claims equated more clearly proof in a convincing manner with proof beyond a (reasonable) doubt. There it was stated: 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.19

The tribunal appears to have been referring to identical and interchangeable standards. It would seem then that the exact meaning of proof “in a convincing manner” will depend on how the particular tribunal views the matter and, hopefully, explains it. In the Nicaragua Case (Merits) the ICJ addressed, inter alia, the issue of proof of facts, where one party (the respondent) did not appear. The Statute of the ICJ provided in Article 53(2) that in cases where one of the parties does not appear before the Court, before deciding in favour of the claim of the other party, the Court “must . . . satisfy itself . . . that the claim is well founded in fact and law.” The Court explained the provision by pointing out that The use of the term ‘satisfy itself’ in the English text of the Statute (and in the French text the term ‘s’assurer’) implies that the 17

See Buergenthal, loc. cit. note 6 at p. 272. (1995), 30 Iran-US CTR at p. 127. The practice of the Iran-US Tribunal is discussed in Chapter 16. 19 (1930), 5 UNRIAA at p. 80. See also the Bowerman and Messrs Burberry (Ltd.) Case (1930), ibid. at p. 106. 18

Preponderance of Evidence

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Court must attain the same degree of certainty as in any other case. . . ., so far as the nature of the case permits, that the facts on which it (the claim) is based are supported by convincing evidence.20

There is here a reference to a “degree of certainty” and facts supported “by convincing evidence”. The critical phrase is “convincing evidence” which qualifies the degree of certainty to be reached. The evidence need not point to absolute certainty as such but must be convincing. This is the same standard referred to by the IACHR and discussed above. It is implied that there is a degree of certainty less than absolute certainty based on “convincing” evidence. In the Walter McCurdy Case the object of proof before the arbitral tribunal was misconduct in a grave degree. The tribunal expressed the view that evidence of “the highest and most conclusive character” was required to discharge the burden of proof.21 This standard, it is probable, is similar to that which requires proof in a convincing manner.

PREPONDERANCE

OF

EVIDENCE

Proof beyond a reasonable doubt is often a luxury that the actor in international litigation cannot afford. It may happen that in some cases access to evidence that would prove a claim conclusively is difficult, or not available at all; or that it is excessively costly or time-consuming to procure such evidence. It has been stated that “the degree of burden of proof . . . to be adduced ought not to be so stringent as to render the proof unduly exacting.”22 As a consequence tribunals have generally applied a lesser

20

1986 ICJ Reports at p. 24. The French text refers to “preuves convaincantes”. 21 (1929), 5 UNRIAA at p. 421. 22 See the Norwegian Loans Case, 1957 ICJ Reports at pp. 39–40 per Judge Lauterpacht, in his Separate Opinion. See also the Kenneth P. Yeager Case (1987), 17 Iran-US CTR at p. 108, where in determining the value of

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degree of proof which is often referred to as the “preponderance of evidence” standard. The standard is applied in the evaluation and weighing of evidence produced by both parties. For instance, in the Combustion Engineering Case, the Iran-US Claims Tribunal concluded: The Respondents have criticized the sufficiency of the Claimants’ evidence, but they have not rebutted it with their own contemporaneous evidence . . . Weighing all of these factors, the Tribunal concludes that [Claimant] has proven by a preponderance of the evidence that it paid its SIO contributions.23

“Preponderance of evidence” means generally that there is evidence greater in weight in comparison with the evidence adduced by the other party on the basis of reasonable probability rather than possibility. What tribunals do is to weigh the evidence proffered by both parties (and the facts judicially noted by the tribunal itself), in order to determine whether the more weighty evidence is in favour of the actor (the claimant or party bearing the burden of proof). The tribunal determines whether it is reasonably probable that the actor’s claim is correct. Surprisingly, but perhaps understandably, where this moderate standard has been applied the non-actor may often claim, if he loses, that too light a standard of proof was applied, while, on the other hand, where the actor loses, he will probably claim that a stricter standard of proof than the “preponderance of evidence” had been applied.24 In criminal cases, defences, such as self defence in particular, require proof on the basis of the preponderance of evidence, not proof beyond a reasonable doubt.

goods, the tribunal said that the “burden of proof in this respect is on the claimant, but no unreasonable standards may be applied.” 23 (1991), 26 Iran-US CTR at pp. 79–80. 24 See the Schering Corporation Case (1984), 5 Iran-US CTR at p. 175 per Mosk, dissenting, and the Sea-Land Service Inc. Case (1984), 6 Iran-US CTR at p. 178 per Holtzmann, dissenting.

The Reasonable Conclusion

243

THE REASONABLE CONCLUSION In determining whether a fact or facts have been established on the basis of the evidence adduced the standard applied is whether a reasonable person would come to the conclusion reached or whether the conclusion reached is a reasonable one. It is not necessary that the conclusion reached be the only reasonable one, provided it is by itself a reasonable one. The Appeals Chamber in the Tadić Case stated in accepting this standard and applying it: 64. The two parties agree that the standard to be used when determining whether the Trial Chamber’s factual finding should stand is that of unreasonableness, that is, a conclusion which no reasonable person could have reached. The task of hearing, assessing and weighing the evidence presented at trial is left to the Judges sitting in the Trial Chamber. Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber. It is only where the evidence relied on by the Trial Chamber could not reasonably have been accepted by any reasonable person that the Appeals Chamber can substitute its own finding for that of the Trial Chamber. It is important to note that two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence. 65. The Appeals Chamber notes that it has been the practice of this Tribunal and of the International Criminal Tribunal for Rwanda (“ICTR”) to accept as evidence the testimony of a single witness on a material fact without need for corroboration. The Defence does not dispute that corroboration is not required by law. As noted above, it submitted that, as a matter of fact, the evidence of Mr. Seferović cannot be relied on in the absence of corroboration because he was introduced to the Prosecution by the same source, the government of Bosnia and Herzegovina, which introduced another witness, Mr. Opacić, who was subsequently withdrawn as a witness by the Prosecution for being untruthful. The Appeals Chamber finds that Mr. Seferović’s association with the Bosnian government does not taint him. The circumstances of Mr. Seferović and Mr. Opacić are different. Mr. Opacić was made known to the

244


Prosecution while he was still in the custody of the Bosnian authorities, whereas Mr. Seferović’s introduction was made through the Bosnian embassy in Brussels. Mr. Seferović was subjected to strenuous cross-examination by Defence counsel at trial. Defence counsel at trial did not recall him after learning of the withdrawal of Mr. Opacić as a witness. Furthermore, Defence counsel at trial never asked that Mr. Seferović’s testimony be disregarded on the ground that he, like Mr. Opacić, was also a tainted witness. Therefore, the Appeals Chamber finds that the Trial Chamber did not err in relying on the uncorroborated testimony of Mr. Seferović. 66. The Defence alleges that the Trial Chamber erred in relying on the evidence of Mr. Seferović because it was implausible. Here, it is claimed that the Trial Chamber did not act reasonably in concluding from the evidence of Mr. Seferović that the Appellant was responsible for the killing of the two policemen. The Appeals Chamber does not accept as inherently implausible the witness’ claim that the reason why he returned to the town where the Serbian paramilitary forces had been attacking, and from which he had escaped, was to feed his pet pigeons. It is conceivable that a person may do such a thing, even though one might think such an action to be an irrational risk. The Trial Chamber, after seeing the witness, hearing his testimony, and observing him under cross-examination, chose to accept his testimony as reliable evidence. There is no basis for the Appeals Chamber to consider that the Trial Chamber acted unreasonably in relying on that evidence for its finding that the Appellant killed the two men.25

Where a tribunal fails to come to a reasonable conclusion of fact based on the available evidence it commits an error of fact. Further, where it applies a stricter standard in reaching a conclusion with the result that its conclusion is unreasonable, it would also commit an error of fact. For example, if the tribunal applying the test of proof beyond reasonable doubt finds against an accused on facts to be established by evidence, because the facts he alleges are not supported by the evidence beyond a reasonable

25

(1999), <www.icty.org>, A.C. Judgment at pp. 27–8, paras. 64–6.

Other Standards

245

doubt, the tribunal would commit an error of fact, if a reasonable person could, on the basis of the evidence, have come to a conclusion in favour of the accused.26 It was accepted by the tribunal in the case that the issue in this instance was whether there had been an error of fact. It is not clear what relationship the standard of the reasonable conclusion bears to that of preponderance of evidence. Hence, it may be more accurate to keep it separate.

OTHER STANDARDS While some international tribunals have taken the approach that the standards of proof are less formal in international litigation than in domestic litigation, and that international litigation recognizes different standards of proof, depending upon the nature, character and seriousness of the case,27 there is no evidence that a lesser standard than “preponderance of evidence” (based on probability) has finally been accepted in any cases. Thus, if the evidence merely shows that the actor’s claim is only possibly supported by the evidence this would always result in an international tribunal concluding that the actor has not discharged his burden of proof. In Article 53 the Statute of the ICJ states that where one party does not appear before the Court, the court must satisfy itself that the claim is “well founded in fact and law”. This formulation does not incorporate a standard of proof in regard to fact. The Court must establish its own standard. No lesser or higher standard is impliedly laid down. Whether the claim is well-founded in fact must defend on what standard of proof the Court establishes for the actor’s burden of proof. While the choice of a standard of proof is at the sole discretion of the tri-

26

Ibid. at p. 26. See, e.g., the Velásquez Rodríguez Case (1988), IACHR, Series C: Decisions and Judgments No. 4 para. 128 (p. 135). 27

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bunal, it is not the case and unlikely that a standard higher than proof beyond a reasonable doubt and less than proof on the basis of reasonable probability flowing from the preponderance of evidence has been or will be applied. Clearly, absolute certainty, if such there can be, has never been required as a standard.28

THE PRIMA FACIE CASE Mention has been made in international cases of a “prima facie case” or “prima facie evidence”. For instance, in the Pomeroy Case the Iran-US Claims Tribunal rejected the defence of the Iranian Navy because, “by failing to establish even a prima facie case for the contract breach,” the Navy had not met its burden of proof on defence.29 In the Golshani Case the same tribunal dismissed the case because the actor was not able to provide even prima facie evidence of authenticity of the deed of conveyance which was his proof of ownership of the subject of the claim and which according to the respondent was a forged document.30 The Italian-US Conciliation Commission in the Batchelder Claim31 made a similar finding in regard to the claimant’s case relating to loss of property and to the claim that there was a causal connection between the war and the loss. The ECHR too has rejected many applications because the applicants were unable to provide prima facie evidence of the violation of a right protected by the European Convention of Human Rights.32 28

See, on the standard of proof in general, e.g., Philip, “Description in the Award of the Standard of Proof Sought and Satisfied”, 10 Arbitration International (1994) at p. 363. This article deals mainly with transnational, not international, cases. 29 (1983), 2 Iran-US CTR at p. 382. 30 (1995), Award No. 546-812-3, 29 Iran-US CTR at p. 90. 31 (1954), 22 ILR at p. 866. 32 See, e.g., Application No. 89/55 (X. v. German Federal Republic) (1955), 24 ILR p. 363; and Application No. 107/55 (X. v. Belgium) (1955), ibid. at p. 367.

The Prima Facie Case

247

Prima facie evidence is difficult to define, as is its effect, even though it has generally been defined by the Mexican-US General Claims Commission as evidence “which, unexplained or uncontradicted is sufficient to maintain the proposition affirmed.”33 But such definitions leave unanswered the question, what is the evidence, or how cogent must the evidence be, which, unexplained or uncontradicted, is sufficient to maintain a claim. It has also been said early on that prima facie evidence can lead to a conclusion in favour of the actor, if it creates a reasonable belief in the truth of his allegation.34 It appears, however, that there is not much controversy on the definition of prima facie evidence and the definition referred to above seems to have remained generally uncontested. In fact the practice of international tribunals applying this definition, though varied, is not self-contradicting. The absence of evidence in rebuttal is an essential consideration in the acceptance of prima facie evidence as sufficient to prove a case. Where the opposite party can easily produce countervailing evidence, its non-production may be taken into account in weighing the evidence before the tribunal. In the Lynch Case in the absence of evidence impugning the accuracy of a consular certificate, although it “cannot be considered as absolute proof of nationality,” was “accepted as prima facie evidence.”35 In the Cameron Case (Demurrer), decided by the same tribunal, it was said that: “The certificate of consular registration put in by the British Agent does raise a presumption of British nationality, though that presumption is rebutted by another document put in by the Mexican Government.”36 Though the latter was not conclusive, the former was considered weakened to such an extent that British nationality was considered not to have been established. On the other hand, in the Brun Case it was held that:

33

The Kling Claim (1930, USA v. Mexico), 4 UNRIAA at p. 585. See the Lynch Case (1929, G.B. v. Mexico), Decisions and Opinions of Commissioners at p. 26. 35 (1929, G.B. v. Mexico), ibid. at p. 22. 36 (1929, G.B. v. Mexico), ibid. at p. 36. 34

248


“The Umpire might hesitate to adopt these findings if it were not true, that the respondent Government could ascertain and produce before this mixed commission the exact facts regarding the positions and movements of its own soldiers, and the positions and movements of the insurgent forces at the time in question.”37 In the Naomi Russell Case, after referring to the “common-sense principles underlying” the rules of evidence in national law, the American Commissioner, concurring, said: It [the tribunal] can analyse evidence in the light of what one party has the power to produce and the other party has the power to explain or controvert. And in appropriate cases it can draw reasonable inferences from the non-production of evidence.38

In the Kling Case, the tribunal said: A claimant’s case should not necessarily suffer by the non-production of evidence by the respondent. It was observed by the Commission in the Hatton Case, Op. of Com., Wash., 1929, pp. 6, 10, that, while it was not the function of a respondent government to make a case for the claimant government, certain inferences could be drawn from the non-production of available evidence in the possession of the former. See also the Melczer Mining Co. Case, ibid., pp. 228, 233. The Commission has discussed the conditions under which, when a claimant government has made a prima facie case, account may be taken of the non-production of evidence by the respondent government, or of unsatisfactory explanation of the non-production of evidence. Case of L.J. Kalklosch, ibid., p. 126. [In this case, the Commission said: ‘In the absence of official records the nonproduction of which has not been satisfactorily explained, records contradicting evidence accompanying the Memorial respecting wrongful treatment of the claimant, the commission can not properly reject that evidence’ (p. 130)].39

37 38

(1902, France v. Venezuela), Ralston’s Report at p. 25. (1931, USA v. Mexico), Opinions of Commissioners, 1926–1931 at

p. 88. 39

(1930, USA v. Mexico), ibid. at pp. 585–6.


249

Particularly, in cases in which a negative fact must be proved by the actor, the making of a prima facie case could very well result in a finding against the other party, if the latter produces no evidence. Thus, where the absence of suppressive or punitive measures had to be proved for the claimant’s case in the Mexico City Bombardment Claims the arbitral tribunal noted the difficulty of proving negative facts and concluded: But a strong prima facie evidence can be assumed to exist in these cases in which first the British Agent will be able to make it acceptable that the facts were known to the competent authorities, either because they were of public notoriety or because they were brought to their knowledge in due time, and second the Mexican Agent does not show any evidence as to action taken by the authorities.40

On the other hand, “Mere suspicions never can be a basic element of juridicial findings.”41 It is where counter-proof can easily be produced but its non-production is not satisfactorily explained, that “it may therefore be assumed that such evidence as could have been produced on this point would not have refuted the charge in relation thereto.”42 What is required in every case is that the inference must be one which can reasonably be drawn.43 The situation arising from such prima facie evidence, together with the adverse presumption arising from the non-production of available counter-evidence, may be sufficient to create a moral conviction of the truth of an allegation. As was said by a concurring member of the tribunal in the Daniel Dillon Case, “Evidence produced by one party in a litigation may be supported by legal presumptions which arise from the non-production of information exclusively in the pos-

40

(1930, USA v. Mexico), 5 UNRIAA at p. 80. (1922, USA v. Germany), Decisions and Opinions at p. 1176. 42 Melczer Mining Co. Case (1929, USA v. Mexico), Opinions of Commissioners, 1929 at p. 233. 43 Corfu Channel Case (Merits), 1949 ICJ Reports at pp. 32, 129. 41

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session of another party, and this well-known principle of domestic law is one which it seems to me an international tribunal is justified in giving application in a proper case.”44 This statement, moreover, characterizes as a general principle of law the use of prima facie evidence in the circumstances referred to as sufficient to prove the relevant facts. The more recent cases do not conflict with the approach taken in the cases discussed above. In the CBS Case, for example, the Iran-US Claims Tribunal found that “Respondents have made out a prima facie case that the entries on the reconciliation statement are correct”45 and found in favour of the actor. Sums “invoiced in the ordinary course of business and accompanied by substantial, adequate documentation” have been found to be payable, “except for that portion of fee attributable to amounts disallowed by the tribunal herein,”46 on the basis of a prima facie case. Similarly, a passport has been held to be prima facie evidence of citizenship by birth irrespective of its date of issue.47 The use of the description “strong” to describe the prima facie evidence does not make any difference. In some circumstances international tribunals have preferred to explain what, in their view, is not prima facie in the context of the particular case before them. This happens when the evidence is insufficient for a finding in favour of the actor. For example, in the Corfu Channel Case (Merits), the ICJ held that “the mere fact of the control exercised by a State over its territory and waters . . . by itself and apart from other circumstances, neither involves prima facie responsibility nor shifts the burden of proof.”48 It has also been held that mere allegations are not to be considered as prima facie evidence.49

44 45 46

(1928, USA v. Mexico), Opinions of Commissioners, 1929 at p. 65. (1990), 25 Iran-US CTR at p. 145. The Development and Resources Corporation Case (1990), 25 ibid. at

p. 52. 47

The Alfred Haber, P.A. Case (1989), 23 Iran-US CTR at p. 133. See also the R.N. Pomeroy Case (1983), 2 Iran-US CTR at p. 188. 48 1949 ICJ Reports at p. 18. 49 See Levis and Levis v. Federal Republic of Germany (Merits), Arbitral


251

The real effect of prima facie evidence or a prima facie case is on the burden of evidence; i.e., who should provide evidence thereafter. Prima facie evidence shifts the burden of evidence from the proponent of the burden of proof to the other party. This is the effect in all instances. Before this stage the opposing party is not bound to respond to the allegation, and its silence would not result in the tribunal’s holding that the alleged fact has been proved. In effect after one party has provided prima facie evidence, it has in fact discharged the burden of evidence laid upon it, and it is not required to carry its burden of proof any further before the other party rebuts the prima facie evidence already established by the proponent. Consequent upon this, if the adversary rebuts the prima facie evidence, then undoubtedly the burden of evidence will shift back to the proponent, and it has to carry this burden further. This is apparently the approach followed by international tribunals. Some national courts do the same. The question which remains is whether the tribunal must accept the prima facie evidence provided by the proponent as sufficient for discharging the burden of proof, where the opposing party does not respond to the claim or its defence is not strong enough to rebut the prima facie evidence. As has been seen, international tribunals have decided that claims have been proved on the basis of prima facie evidence in instances where it remained unrebutted. There are other cases decided by the Iran-US Claims Tribunal in which this was clearly the position taken. In the Lockheed Case, discussion of the merits of one of the claims focused on the question whether Lockheed had performed the services it claimed to have performed during the third and fourth quarters of 1978. With respect to the claim concerning the third quarter the tribunal did not face any particular problem since Lockheed’s evidence, unrebutted by any evidence to the contrary, was sufficient to establish its claim. With respect to the fourth quarter the evidence was not as strong.

Commission on Property, Rights and Interests in Germany (1959), 28 ILR at p. 253.

252


Nevertheless, on the grounds that Lockheed had presented its bill in writing four times within seven months of completing the fourth quarter services and that there was no evidence that the respondent complained or protested contemporaneously about the validity of any of the requests for payment or the authenticity of the daily attendance records, the tribunal concluded that Lockheed had established a prima facie case for its claimed fourthquarter payment and decided the claim in favour of the claimant on the basis of this prima facie case.50 In the Time, Inc. Case in which the same tribunal, after accepting that “the approval of [some] invoices in the total amount . . . by the appropriate officials of [the Respondent] establishes a prima facie claim for that amount,” held that “in the absence of persuasive evidence that such approval was erroneous . . . the claim for these invoices is valid . . .”51 In the Benjamin R. Isaiah Case52 the same tribunal found that the documents provided by the claimant, supported by the credible testimony at the hearing, constituted the prima facie evidence relating to his continuous ownership of the claim, and that in the absence of evidence to the contrary, that evidence was decisive.53 The conclusion may be reached that a prima facie case (or prima facie evidence) is not only enough to shift the burden of evidence and is the stage at which a mere silence or denial by the respondent may not be necessarily sufficient, but, if unrebutted, is usually acceptable for discharging the burden of proof before international tribunals. Such a conclusion, however, could not and does not mean that the standard of proof for facts applic-

50

(1988), 18 Iran-US CTR at pp. 318 ff. (1984), 7 Iran-US CTR at p. 11. See also the International Technical Products Case (1985), 9 Iran-US CTR at pp. 28 ff. See also the CBS Incorporated Case (1990), 25 Iran-US CTR at p. 145. 52 (1989), 23 Iran-US CTR at pp. 135 ff. See also the Cal-Maine Foods Inc. Case (1984), 6 Iran-US CTR at pp. 57 ff. 53 Naturally, there may be differences of opinion among arbitrators or judges on any tribunal: see, e.g., the J.I. Case Company Case (1983), 5 IranUS CTR at p. 65 per the majority and at p. 71 per Holtzmann, dissenting. 51


253

able in the case as such changes or is ignored nor does it follow from such a conclusion that unconvincing evidence may be accepted as prima facie evidence. In international proceedings, where the possibility of appeal or other recourse against decisions of international tribunals do not usually exist, it is necessary that the appropriate standard of proof be applied carefully, especially where prima facie evidence is accepted as adequate to discharge the burden of proof. As has been observed, International tribunals necessarily must proceed with greater caution. In dealing with sovereign States rather than with individuals, it cannot lightly be presumed that one of the parties to the litigation is guilty of negligence or of mala fides in the prosecution of a case before an international tribunal.54

In regard to prima facie evidence, in particular, in the Parker Case the Mexican-United States General Claims Commission rightly rejected the contention that some “evidence must necessarily be considered as conclusive.”55 On the other hand, the tribunal also pointed out that “when the claimant has established a prima facie case and the respondent has offered no evidence in rebuttal the latter may not insist that the former pile up evidence to establish its allegations beyond a reasonable doubt without pointing out some reason for doubting.”56 While the presentation of a prima facie case can be said definitely to shift the burden of evidence, it is certainly not correct to say that establishing a prima facie case shifts the burden of proof, because that would mean that the duty of the claimant to discharge the burden of proof would be fulfilled by a mere showing of a prima facie case, and that from that point the burden of proof would be on the respondent to disprove the claimant’s allegation. The burden which is shifted from the proponent of an

54 55 56

Sandifer, Evidence Before International Tribunals (1975) p. 170. (1926), 4 UNRIAA at p. 39. Ibid.

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allegation of fact to the opposing party is only the burden of evidence, and it is not accurate to use the term “burden of proof” in place of the “burden of evidence”. The burden of proof stays with the proponent until such time as the claim is proved. In the Golshani Case the Iran-US Claims Tribunal failed to distinguish between the “burden of proof” and the “burden of evidence”. There the tribunal concluded that the claimant had not been able to make a prima facie case with respect to a deed of conveyance that was the cornerstone of the claim but did this on the basis that the Deed and the affidavits of its signatories did not inspire the minimal degree of confidence in the Deed’s authenticity required to shift the “burden of proof” to the respondent.57 As explained in the Separate Opinion of the Iranian member of the tribunal, it is “an error” to hold that “where a party carries the burden of proving an assertion, this burden will shift onto the other party if the former adduces sufficient evidence to establish a prima facie case.” 58 The correct position is that, if the respondent is able to cast doubt on the value of the prima facie evidence provided by the claimant, then the claimant has not discharged its burden of proof and must discharge that burden in some other way to the satisfaction of the tribunal, while, if the respondent is unable to rebut the prima facie evidence provided by the claimant, then the tribunal could accept the evidence provided by the claimant as satisfying the standard of proof required, though it does not have to do so. The UNAT, in fact, has endorsed this application of the effect of a prima facie case.59 However, again it should be emphasized that, while international tribunals usually accept that the proponent satisfies its burden of proof by providing unrebutted prima facie evidence, it is their function to determine both what constitutes prima facie evidence and whether it is sufficient fully to discharge the burden of proof in a given case, which are two different questions. In this respect the standard of proof

57 58 59

(1995), Award No. 546-812-3, para. 122, 29 Iran-US CTR at p. 94. Separate Opinion of Aghahosseini, ibid. at p. 3. See Edongo, UNAT Judgment No. 990 (2000) at p. 10.


255

applied to prima facie evidence, if unrebutted, is no different from that which would be applied in the case in question, if it did not depend on prima facie evidence but on the total quantum of evidence. These observations are particularly pertinent where the standard of proof required is higher than probability or the preponderance of evidence. The above discussion, first, permits a definite conclusion regarding the burden of proof – the establishment of a prima facie case does not shift that burden to the other party. Secondly, it makes clear that the burden of evidence is shifted in a very real sense. On the other hand, thirdly, the cases cited do not make it clear that, when a prima facie case is made on the evidence produced, the tribunal must find that the allegation has been proved, nor, fourth, is there any reference to the appropriate standard of proof. The third and fourth conclusions raise some questions. First, if the tribunal may decide that the case is not proven, i.e., according to the standard of proof applicable, surely the “reasonable inference” referred to above must be based on a lesser standard. If it were not, why call it a prima facie case when, according to the applicable standard of proof, the case has been proved? On the other hand, if the case has been proved according to that standard, how could the respondent upset the conclusion that the case has been proved? Rationalizing what courts do, when they refer to a prima facie case, is not easy. There seem to be some contradictions, but that is in statements made, not in practice. On the one hand, if a case has been proved according to the ultimate standard of proof required, why call it a prima facie case, and, on the other, if the respondent may produce evidence to upset the conclusion that the case has been proved, the evidence produced by the actor cannot lead to the conclusion that the case has been proved according to the ultimate required standard. Furthermore, as is done and must be done by courts, both national and international, in situations where a prima facie case is made, when the court scrutinizes the evidence more carefully, it may find that the case is not proved according to the applicable standard of proof.

256


The precedents afford little definite help on the problems. They all found that the prima facie case was not answered at all by the respondent, when it could have done so by the production of evidence (or a satisfactory explanation), or that evidence adduced by the respondent affected the prima facie case adversely with the result that the actor had not proved his case, presumably according to the ultimate standard of proof required. No discussion has taken place in the cases about the relationship between the reasonable inference and the ultimate standard of proof. As said earlier, ultimately the tribunals appear to have been morally convinced, albeit after making “a reasonable inference” in the first place, of the truth of the actor’s allegations, presumably according to the relevant standard of proof. The point being made is that what has been done in the decided cases does not contradict the conclusion reached here that, while a reasonable inference of the truth is possible in limine, where a prima facie case is found to have been made, if the respondent does nothing, yet the tribunal must be convinced after scrutiny that the prima facie evidence is in the circumstances also sufficient according to the relevant ultimate standard of proof, if it is to hold in favour of the actor. Certainly, this is how the prima facie case is dealt with in national legal systems. The general principle of law applicable would as a common-sense matter require the same treatment in international law of the prima facie case. In the Lynch Case the tribunal made the following statement on the effect of the making of a prima facie case by the actor: It would be impossible for any international commission to obtain evidence of nationality amounting to certitude unless a man’s life outside the State to which he belongs is to be traced from day to day. Such conclusive proof is impossible and would be nothing less than probatio diabolica. All that an international commission can reasonably require in the way of proof of nationality is prima facie evidence sufficient to satisfy the Commissioners and to raise the presumption of nationality, leaving it open to the respondent State to rebut the presumption by producing evidence to show that the


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claimant has lost his nationality through his own act or some other cause.60

The tribunal refers to certitude, conclusive proof and a presumption and could be understood to indicate that a lesser standard of proof than is normally required was applied. Tribunals (i) do not refer generally to a lesser standard of proof and (ii) stress the absence of conclusive proof which could be, but is not necessarily, a reference to a very high standard of proof. Reference has also been made to “less conclusive” proof.61 This may be correct, if it means proof less than certitude or proof according to a higher standard than is usually applicable which in the cases in issue was preponderance of evidence. However, it must be pointed out that certitude and conclusive proof implying certitude are not the standards usually applied in the kind of case before the tribunal nor does the operation of a presumption which in this case is an inference mean that a lesser standard than usually required was applied in reaching the tribunal’s conclusion. It is not clear what was the tribunal’s intention. Needless to say, if a lesser standard than usual was being applied, this was not the correct procedure. On the facts of the case, however, there was sufficient uncontroverted proof of nationality on the basis that the usual standard of proof founded on the preponderance of evidence was being applied, so that the tribunal had a moral conviction of the truth. To sum up, there are four possible outcomes of a proceeding in which a prima facie case is made by the actor.

60

(1929, G.B. v. Mexico), Decision and Opinions of Commissioners at p. 21. See also Cie pour la Construction du Chemin de Fer O’gulin à la Frontière, S.A., Case (1926), 6 T.A.M. p. 205, where proof of ownership was in issue. 61 See Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) at pp. 323 ff. He later states that a moral conviction of the truth is required, though there is no discussion of standards of proof applicable.

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(a) Where the respondent offers no response, the tribunal eventually finds that the evidence produced by the actor satisfies the applicable standard of proof and holds for the actor. (b) Where the respondent offers no response, the tribunal eventually finds that the evidence produced by the actor does not satisfy the applicable standard of proof and holds against the actor. (c) Where the respondent offers a response by producing evidence or an explanation or both, the tribunal eventually finds that the response is insufficient to preclude the evidence of the actor from satisfying the applicable standard of proof and that the actor’s evidence, therefore, satisfies the standard of proof and holds for the actor. (d) Where the respondent offers a response by producing evidence or an explanation or both, the tribunal finds that the actor’s evidence does not satisfy the applicable standard of proof and holds against the actor.

JURISDICTIONAL ISSUES

AND

PRIMA FACIE EVIDENCE

As regards jurisdictional issues, in their Joint Dissenting Opinion in the South West Africa Cases Judges Spender and Fitzmaurice, having stated that “the burden of establishing the jurisdiction of the Court lies on the party asserting it, and [that] this must be established conclusively,” concluded that it was “for the Applicants to show that the Mandate is beyond reasonable doubt a ‘treaty or convention in force’ for the purposes of Articles 36 and 37 of the Statute.” They emphasized that “quite apart from any question of onus of proof, a duty lies upon the Court, before it may assume jurisdiction, to be conclusively satisfied – satisfied beyond a reasonable doubt – that jurisdiction does exist.”62 The practice of the two world courts on jurisdictional matters was

62

1962 ICJ Reports at p. 473.

Jurisdictional Issues and Prima Facie Evidence

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summarized in the Ambatielos Case by Judges McNair, Basdevant, Klaestad and Read as follows: Before declaring a state to be bound to submit a dispute to the decision of an international tribunal, the Permanent Court and the present court have always considered it necessary to establish positively, and not merely on prima facie or provisional grounds, that the State in question had in some form given its consent to this procedure.63

These statements set a high standard of proof to be applied to evidence of facts in jurisdictional matters which makes a prima facie case insufficient and irrelevant. An important point is that jurisdiction rests both on law and facts. Prima facie evidence or prima facie grounds would relate only to facts as far as proof goes. As pointed out in Chapter 4, the law is not subject to proof but is within the knowledge of the court. The Iran-US Tribunal has, to the contrary, by relying on prima facie evidence in jurisdictional matters, evidently applied a lesser standard of proof of facts than that referred to by the judges of the ICJ. For instance, the tribunal accepted prima facie evidence as proof of ownership of the capital stock of publicly held American corporations, as a jurisdictional requirement, in circumstances where it did not seem possible or necessary to require submission of detailed evidence with respect to millions of shares for thousands of individuals.64 Further, apparently relying on the practice of other tribunals in the past, the tribunal issued a guideline on what would be acceptable as prima facie evidence in regard to a jurisdictional matter: The type of evidence to be submitted by a Claimant depends on the circumstances of each particular case, as viewed by the 63

Joint Dissenting Opinion in the Ambatielos Case, 1953 ICJ Reports at

p. 29. 64

The Flexi-Van Case, Order of 20 December 1982, 1 Iran-US CTR at pp. 455–57.

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Chamber. In this case, the evidence described below will, prima facie, be considered sufficient as to corporate nationality . . . Respondent will be free to offer rebuttal evidence. From the totality of such evidence the Chamber will draw reasonable inferences and reach conclusions as to whether the Claimant was, or was not, a national of the United States . . .”65

While the circumstances of the case may have been complex and certainty as to the nationality of all shareholders may have been difficult to establish, it is not clear that those circumstances required a departure from the standard of proof usually applied. It is possible to conclude that, considering all the circumstances of the case, the evidence was adequate for proof on the basis of preponderance. The question of jurisdiction is treated differently in situations where an international tribunal has to decide on a request for interim measures before deciding on its jurisdiction. Establishment on a prima facie basis of jurisdiction is considered sufficient in the event that an international tribunal is forced to decide on issues of an urgent nature before the completion of pleadings by the parties in the case and before it can determine whether it has jurisdiction on the merits. For instance, it has been the practice of the Iran-US Claims Tribunal to consider requests for interim measures, “without prejudicing its final decision on jurisdiction,” only “in cases where it is satisfied that there is at least a prima facie showing that it has jurisdiction over the substantive claim pending before it.” 66 As was emphasized in the Component Builders Case, “One requirement for the issuance of interim measures is that there be, at least prima facie, a basis on which the jurisdiction of the Tribunal might be founded.”67 What is being

65

Ibid. at p. 458. See the Fluor Corporation Case, Interim Award No. ITM 62–333–1 (7 August 1986), 11 Iran-US CTR at p. 297. 67 (1985), 8 Iran-US CTR at p. 220. For the practice of the Iran-US Tribunal see further C. F. Amerasinghe, Jurisdiction of International Tribunals (2003) pp. 354 ff. 66

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said in these situations relating to jurisdiction to issue interim measures is that as regards the facts on which the tribunal’s jurisdiction is based, apart from the relevant legal provisions, they need not be proved according to the standard of proof required, which is a strict one, but that a prima facie case of the existence of such facts on the evidence is sufficient for the establishment of that jurisdiction. The ICJ has consistently and frequently required a prima facie case for the existence of jurisdiction to grant interim or provisional measures.68 The explanation given in the text above refers to facts. Needless to say, in regard to the law also, it is sufficient that prima facie the law favours jurisdiction.

68

See C.F. Amerasinghe, ibid. at pp. 348 ff.

III SPECIAL ISSUES IN SPECIFIC TRIBUNALS

13 PROOF AND EVIDENCE BEFORE THE ICJ: A SPECIAL PROBLEM

The manner in which some of the general principles discussed in Part II, Chapters 4 to 12, have been recognized and applied by the ICJ has been addressed in those Chapters. For example, the ICJ’s approach to its power as an international court of justice to effect cooperation by the parties in the production of evidence was discussed in Chapter 7, while its approach to the standard of proof was analyzed in Chapter 12. Extensive consideration was also given to its jurisprudence particularly in connection with admissibility of evidence (Chapter 9), evaluation of evidence (Chapter 10) and presumptions and inferences (Chapter 11). But apart from the jurisprudence of the ICJ considered in Part II, special problems of evidence worthy of particular attention have confronted the ICJ in relation to title to territory and boundaries. It is useful, therefore, to consider at least one of the cases relating to these subjects from the point of view of how evidence and proof was treated by the Court. Of particular interest and importance is

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Chapter 13. Proof and Evidence before the ICJ

the Case Concerning the Frontier Dispute1 between Burkina Faso and Mali, where a Chamber of the Court was at pains to ascertain facts and where much of the judgment concentrated on factfinding. To put the Frontier Dispute Case referred to above in appropriate perspective, a brief reference is made to the other cases involving territory, whether terrestrial or maritime. The cases brought before the ICJ may be classified into several categories. There are those which concerned purely sovereignty over islands, such as the Minquiers and Ecréhos Case2 and the Pulan Litigan and Pulan Sipadan Case.3 Secondly, there were those which were disputes about both maritime and terrestrial frontiers, such as the Land and Maritime Boundary between Cameroon and Nigeria Case4 and the Qatar and Bahrain Case.5 Third, some cases, such as the Jan Mayen Case6 and the Norwegian Fisheries Case,7 concerned and hinged entirely on maritime delimitation. Fourth, some cases, such as the North Sea Continental Shelf Case8 and the Libya/ Malta Continental Shelf Case,9 simply addressed delimitation of the continental shelf. Finally, there are those cases which involved disputes entirely over terrestrial frontiers, such as the Libya/Chad Case10 and the Frontier Dispute Case referred to above.

1

1986 ICJ Reports p. 554. Hereafter referred to as the Frontier Dispute

Case. 2

1953 ICJ Reports p. 47. (2002), see <www.icj-cij.org>. 4 (2002), see <www.icj-cij.org>. 5 (2001), see <www.icj-cij.org>. See also the prior judgments in the same case: 1994 ICJ Reports p. 112; 1995 ICJ Reports p. 6. 6 1993 ICJ Reports p. 38. 7 1951 ICJ Reports p. 116. 8 1969 ICJ Reports p. 3. 9 1985 ICJ Reports p. 13. 10 1994 ICJ Reports p. 6. See also the Temple of Preah Vihear Case, 1962 ICJ Reports p. 6. Among other cases involving boundaries decided by the ICJ and PCIJ are, more importantly, the Continental Shelf (Tunisia/Libya) Case, 1982 ICJ Reports p. 18; the Application for Revision (Tunisia/Libya) Case, 1985 ICJ Reports p. 192; the Gulf of Maine Case, 1984 ICJ Reports p. 246; 3

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All these cases involved the ascertainment of facts and the development and appreciation of the relevant law to the factual situation. Many of them, such as the Minquiers and Ecréhos Case and Norwegian Fisheries Case required the Court to develop conceptually the law in addition to applying the law contextually which involved, inter alia, fact-finding. Nevertheless, it is in the Frontier Dispute Case that the ICJ painstakingly addressed the ascertainment of facts and this case is a good example of how the law of evidence is applied in cases of disputes relating to terrestrial boundaries. The Frontier Dispute Case came before the ICJ when the two parties, Burkina Faso and Mali, decided in 1983 to submit their land frontier dispute to the Court. The case was decided by a the Arbitral Award of 31 July 1989 Case, 1991 ICJ Reports p. 53; the Land, Island and Maritime Frontier Case, 1992 ICJ Reports p. 351; the Jaworzina Case (Advisory Opinion), PCIJ Series B No. 8 (1923); the Interpretation of the Treaty of Lausanne Case (Advisory Opinion), PCIJ Series B No. 12 (1925). Arbitral tribunals also have had boundary disputes of one kind or another referred to them. The cases include the Grisbadarna Case, 4 AJIL (1910) p. 226; the Beagle Channel Case (1977), 52 ILR p. 93; the AngloFrench Continental Shelf Case (1977), 54 ILR p. 6; the Guinea and GuineaBissau Case (1985), 77 ILR p. 635; the Guinea-Bissau and Senegal Case (1989), 83 ILR p. 1; the Dubai-Sharjah Border Case (1981), 91 ILR p. 543; the St. Pierre and Miquelon Case (1992), 95 ILR p. 645; the Laguna del Desierto Case (1994), 113 ILR p. 2; the Request for Revision and Interpretation of the 1994 Judgment (1995), 113 ILR p. 16; the Eritrea and Yemen Case (1999), www.pca-cpa.org. Furthermore numerous authors have discussed the issues raised in boundary case before international tribunals but these issues have generally and specifically not included problems of evidence which the authors referred to in this Chapter have directly or indirectly addressed. The more important works on boundary disputes of fairly recent vintage are Kaikobad, “Problems of Adjudication and Arbitration in Maritime Boundary Disputes”, 1 The Law and Practice of International Courts and Tribunals (2002) p. 257 and the works cited therein; Merrills, “The International Court of Justice and the Adjudication of Territorial and Boundary Disputes”, 13 Leiden JIL (2000) p. 873; Rosenne, “The Qatar/Bahrain Case: What is a Treaty? A Framework Agreement and the Seising of the Court, 8 ibid. (1995) p. 161; Jagota, “Judicial, Arbitral and Other Decision Concerning the Law of the Sea 1983–88”, 2 Hague Yearbook of International Law (1989) p. 3.

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Chamber. The question was what was the line of the frontier between the two States in the disputed areas. There was no dispute as to the basic principle of law applicable, namely the uti possidetis principle11 which prescribed that the international frontiers of the two States after independence from France should follow the former administrative colonial frontiers adopted by France. That principle was also agreed to by both parties in the case.12 Thus, the Court was called upon to establish the delimitation between French Sudan (now Mali) and Upper Volta (now Burkina Faso) when, as colonial territories, they were both subject to the authority of France. Difficulties arose in the application of the principle uti possidetis because, although the French colonial administration was reasonably careful, it administered very large territories of which the exact configuration in several areas was not very well known until relatively recently. Further, precise delimitation of adjacent territories administered by the same colonial authority was not as significant as when two contiguous States subsequently given independence were trying to establish their boundaries. The situation was complicated by the fact that in about half of the area in dispute the native population was and continued to be, not sedentary, but nomadic. Also there were very frequent modifications in the territorial organization established for administrative purposes by the colonial authorities. In the case of Upper Volta the colony was first created by a decree of 1 March 1919;13

11

On this principle which was first adopted by the Latin American States in relation to colonial territories which became independent, see Schwarzenberger, 1 International Law as Applied by International Courts and Tribunals (1957) p. 304. The principle as applied by Latin American States was in actual practice probably applicable in different circumstances: see Thirlway, “The Law and Procedure of the International Court of Justice 1960–1989 (Part Seven)”, 66 BYIL (1995) at pp. 15 ff. 12 The principle was recognized by the African countries in Resolution AGH/Res. 16, adopted in 1964 by the Conference of African Heads of State and Governments. 13 Journal Officiel du Haute Sénégal Niger (1917) at pp. 200–1.


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then, a decree of 5 September 1932 declared the abolition of the colony of Upper Volta;14 the same colony was then reestablished by a law of 4 September 194715 providing that the boundaries of the territory were to be “those of the former colony of Upper Volta on 5 September 1932”.16 However, “neither the legislative and regulative texts, nor the relevant administrative documents, contain any complete description of the course of the boundary between French Sudan and Upper Volta during the two periods when these colonies co-existed, i.e., between 1919 and 1932, and between 1947 and 1960”.17 The Court proceeded on the basis that it was for each party to prove its claim to legal title, thus, as is usual in claims to territorial sovereignty, laying the burden of proof on each party in relation to its claim. Both those claims were in law based on the principle of uti possidetis. As pointed out by the Court, “the concept of title may also, and more generally, comprehend both any evidence which may establish the existence of a right, and the actual source of that right”.18 What the Court did was to determine legal title, considering all the facts established by the evidence presented by both parties. Of importance is the kind of documentation referred to by the parties and the Court to establish facts. There are some legal problems posed by this kind of evidence on which reliance was placed by the parties. The Court asserted the principle of uti possidetis as being a general principle applicable to the case and went on to state that that principle did not mean that international law effected a renvoi to the law established by the colonizing State nor any legal rule unilaterally established by any State. What it did was to freeze the territorial title without putting the

14

Journal Officiel de l’Afrique Occidentale Française (1932) at p. 1079. Loi No. 47–1707. 16 For these facts see P.-M. Dupuy, “Fact-Finding in the Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali)”, in Lillich (ed.), FactFinding before International Tribunals (1991) at p. 82. 17 1986 ICJ Reports at p. 580. 18 Ibid. at p. 564. 15

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hands of the clock back. International law, thus, applied to the new State as a State “not with retroactive effect, but immediately and from that moment onwards”.19 Taking this legal view of what had to be proved, the Court considered, first, the legislative and administrative acts of the colonial authority until 1960, the date both countries achieved independent status from France. These acts and the documents embodying them were numerous, partly because of the highly centralized structure of the French colonial administration. As has been explained, Colonial administration was headed by a governor-general, and divided into colonies; the power to create or abolish these colonies belonged to the executive from Paris. At the head of each colony was a lieutenant-governor. The colonies were themselves made up of basic units called cercles which were administered by commandants de cercle; the creation and abolition of the cercles were the sole prerogative of the governor-general, who decided their overall extent. Each cercle was composed of subdivisions which comprised cantons, grouping villages.20

Both parties relied basically on the same document, namely the French law of September 4, 1947 for the re-establishment of the territory of Upper Volta with its boundaries as at the year 1932. The other critical documents presented as evidence and considered by the Court were successive decrees creating the colony of Upper Volta in 1919,21 an Order made by the governor-general of French West Africa in 1922 for the reorganization of the region of Timbuktu,22 a General Order issued in August 1927 “fixing the boundaries of the colonies of Upper Volta and Niger”,23 modified 19

Ibid. at p. 568. The moment referred to is the moment of independence. See P.-M. Dupuy, loc. cit., note 16 at p. 82. 21 Décrêt du 1er mars, 1919, Journal Officiel de l’Afrique Occidentale Française (1919) at pp. 550–1. 22 Décrêt du 31 décembre 1923, Journal Officiel de l’Afrique Occidentale Française (1923) at pp. 62–3. 23 Journal Officiel de l’Afrique Occidentale Française (1927) at pp. 658–9. 20


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by an erratum of 5 October 1927,24 and the decree of 1932 for the abolition of the colony of Upper Volta.25 Some other documents featured in the arguments of the parties and were dealt with in the reasoning of the Court. The first was an Order for the delimitation of the cercles of Bafoulabé, Bamako and Mopti (French Sudan), issued on 27 November 1935 by the governor-general ad interim of French West Africa,26 at a time when the colony of Upper Volta did not exist. A second series of documents composed an exchange of letters which took place in 1935 between the governor-general of French West Africa and the lieutenant-governors of French Sudan and Niger.27 In the earlier of these two letters, the governor-general asked his subordinate for a precise determination of the de facto boundary between Niger (which encompassed at that time the territory of the modern Upper Volta, i.e., Burkina Faso) and Sudan. The governor-general also proposed in this letter a description, based on geographical features, such as heights, mounts and pools, as well as points defined by their latitude and longitude. In his reply the lieutenant-governor of Sudan made some comments and proposals for modification, but these did not concern the area in dispute. Burkina Faso contended that this letter precisely described the boundary. Mali argued that an exchange of letters of this kind had no legal force whatsoever, because it did not lead to a new Order by the governor-general, which would have given juridical authority to the description contained in his letter. Mali sought to support its view by reference also to several other evidentiary elements which it adduced. The parties clearly and unequivocally relied on documentation as evidence. However, it is noteworthy that the documentation 24

Journal Officiel de l’Afrique Occidentale Française (1928) at pp.

328–9. 25

See note 14 above. Arrêté 2728, Journal Officiel du Soudan Française (1936) at pp. 3–5. 27 Letter 191 CM2 of 19 February 1935 from the governor-general of French Sudan to the lieutenant-governor; reply by the lieutenant-governor of French Sudan dated 3 June 1935. 26

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produced by both parties did not have accompanying official maps as part of the documents to give some more concrete geographical representation of the administrative boundary of the territory in dispute. Further, the area in dispute, covering roughly 170 kilometers, could be divided into two. On the west side the area up to the pool of Soum was clearly covered by an official text.28 Both parties referred to this region as “the region of four villages”,29 which manner of expression confirmed the sedentary character of its population. East of the pool of Soum, there was no applicable regulatory text. It is to be noted that the governorgeneral mentioned a de facto boundary in this letter referred to above. This part encompassed the Béli region, where the population happens to be nomadic. For this section of the disputed area the application of the principle, uti possidetis, seemed much more difficult, because the colonial power had not left a clear description of the boundary. For both regions, but more for the latter region, each party tried to find evidence that would fill the gap in legislative and administrative acts. Documentation consisting of maps did exist but these were considered by French administrators to be insufficiently precise to be taken as clear and trustworthy representations of either the geographical reality or the legal position with regard to administrative boundaries. Two maps, dating from 1925 and 1927, respectively the Blondel la Rougery Map and the Atlas des cercles, were frequently referred to in the case, but these turned out not to be reliable.30 Both parties agreed that the title given preemi-

28

See note 26 above. The Court adopted this terminology in its judgment: e.g., 1986 ICJ Reports at p. 630. 30 The Director of the Geographical Service of French West Africa said of them in 1927: “these sheets, drawn with the help of the itinerary surveys, reconnaissance surveys and topographical work of various kinds . . . are, as indicated by the description ‘reconnaissance maps’, basically subject to revision. Nothing could have made plainer than a map compiled like this how inadequate the existing documentation is, and how necessary it is to make a new start.” (1986 ICJ Reports at p. 635.) 29


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nence in the colonial system was the legislative and regulatory act. Mali also argued that the reliability and relevance of other evidence, including maps and the conduct of administrative authorities, had to be considered with caution. A map in itself could only be considered as proof when it proceeded from the legal authority empowered to draw the boundary and when it constituted a demonstration of the will of this authority. In no circumstances could just any map be substituted for legislative or regulatory title. Burkina Faso, on the other hand, argued that, because of the lack of official textual documents in the Béli region, in certain areas what it termed “cartographic titles” should take their place. It accepted the principle that legal instruments should have primacy over maps, but it thought that title might be “either textual or cartographical”.31 The parties also referred to colonial “effectivités” to support their case in relation to those areas where there was a lack of legislative acts. These were constituted by the conduct of the colonial administration during the colonial period which would be proof of the effective exercise of territorial jurisdiction in the region in issue. Thus, apart from documentation, acts of an administrative nature were placed in issue as evidence. Burkina Faso relied on such acts as supporting its sovereignty, while Mali contended that “effectivités” could not be operative, where they were in conflict with the text establishing title. There was apparently common ground in relation to the relevance of “effectivités”, where there was no legislative text. As has been pointed out, concrete acts of administration, such as the rebuilding of a road by a particular commandant de cercle, or a repertory of villages belonging to a certain subdivision, or a rough pen-drawing made by an administrator during one of his rounds, could help very much in showing whether a particular region, area or village was considered during the colonial period to belong to one territory or to the other.32

31

For the approach taken by the two parties see 1986 ICJ Reports at p. 582. 32 P.-M. Dupuy, loc. cit. note 16 at p. 86.

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From the point of view of evidence, apart from the rule of burden of proof already referred to, the parties certainly produced the evidence in their possession. They, thus, cooperated in the production of evidence which the principles of evidence required. The Court did not have to intervene in this regard to extract evidence from either party. The Court asserted firmly the general and universal character of the substantive principle of uti possidetis, stating: It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs.33

The evidence was directed at proving facts implementing this principle. In regard to the principles of evidence the Court had to address the question of the value of, and the weight to be given to, maps. It also addressed the issue of how other evidence was to be evaluated in establishing the frontier line. While no evidence in general was excluded as being inadmissible as such, as will be seen, it did consider one piece of evidence adduced as inadmissible and did not rely on it. The question of the value of maps as evidence of legal title to territory or of a boundary delimitation was addressed in the jurisprudence of the Court, for example, in the Minquiers and Ecréhos Case,34 in the Sovereignty over Certain Frontier Land Case35 between Belgium and the Netherlands, and in the Temple of Preah Vihear Case.36 There are also fairly recent arbitral decisions in which the value of maps as evidence have been considered, such as the Rann of Kutch Case37 and the Taba Case,38 to name only two.

33 34 35 36 37 38

1986 ICJ Reports at p. 565. 1953 ICJ Reports at p. 47. 1953 ICJ Reports at p. 209. 1962 ICJ Reports at p. 6. (1968), 17 UNRIAA p. 1. (1988), 27 ILM p. 1421.


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The Court rejected the claim of “cartographic titles” made by Burkina Faso, stating that: Whether in frontier delimitations or in international territorial conflicts, maps merely constitute information which varies in accuracy from case to case; of themselves, and by virtue solely of their existence, they cannot constitute a territorial title, that is, a document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights. Of course, in some cases maps may acquire such legal force, but where this is so the legal force does not arise solely from their intrinsic merits: it is because such maps fall into the category of physical expressions of the will of the State or States concerned. This is the case, for example, when maps are annexed to an official text of which they form an integral part. Except in this clearly defined case, maps are only extrinsic evidence of varying reliability or unreliability which may be used, along with other evidence of a circumstantial kind, to establish or reconstitute the real facts.39

The view taken by the Court does not mean that it categorically refused to consider all the cartographic material place before it by Burkina Faso which Mali had systematically criticized. For instance, the Court did refer to and discuss the significance to be given to the consistent contradictions in several maps, drawn at different times, of the same region.40 One of the difficulties in the case was that a few points referred to in colonial descriptions of the boundary were extremely difficult to identify and locate with a sufficient degree of precision.

39

1986 ICJ Reports at p. 582. The Court’s approach to maps has in principle been confirmed in earlier cases such as the Island of Palmas Case (1928), 2 UNRIAA at p. 852. Text writers agree with the basic approach: see, e.g., Sandifer, Evidence before International Tribunals (1975) at p. 229; Hyde, “Maps as Evidence in International Boundary Disputes”, 27 AJIL (1933) p. 311; C. de Visscher, Problèmes de confins en droit international public (1969) pp. 45 ff.; Cukwurah, The Settlement of Boundary Disputes in International Law (1967) p. 224. 40 See 1986 ICJ Reports at pp. 611–13, 622–4, 635–6.

276


This was in particular the case for the pool of Ketiouaire (or Kebanaire). The Court established its location in part by comparing different maps and drawings.41 Thus, maps were used by the Court. Significantly the Court also compared the maps with the legislative and regulative texts concerned. It took into account the consideration that neither cartographic document presented to it had been drawn up by the French colonial administration to give a concrete representation of the description of the boundary given by one text or the other. In particular, as far as the relationship between the Blondel la Rougery Map of 1925 and Letter 191 CM2 referred to above42 were concerned, because presumably there was no real regulative instrument in the Béli region, the Court regarded the letter as relevant. In fact also the line suggested by the governor-general was merely a verbal transcription of the one shown on the Blondel la Rougery Map of 1925. Then the letter turned out to contain merely a proposal, not an administrative decision, the proposal not having been given effect to later in a regulative instrument. However, the Court seems to have inclined to the view that neither the formal status of the letter nor the fate of the proposal precluded the possibility that what it contained may have been descriptive or declaratory of the preexisting territorial boundaries. It drew from this premise the positive conclusion that, because this possibility existed, the map could by a subsidiary source of title. The Court also appears to have almost used a 1960 map which was not an official document of the colonial power in the same way.43 The Court also took into account the colonial “effectivités”, in that it used documentary evidence submitted to it by Mali44 to

41

See ibid. at pp. 624 ff. See note 27 above. 43 See also the Separate Opinion of ad hoc Judge Abi-Saab, 1986 ICJ Reports at p. 660, where he critically expresses disagreement with these conclusions of the Court. 44 Ibid. at p. 606. 42


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establish a boundary. This document came from the office of the governor-general of French West Africa dating from 1927. It was entitled “Repertoire général des localités de l’Afrique française” and showed that in 1927 the office referred to above had recorded a list of localities in French Sudan clearly illustrating that certain villages belonged to French Sudan. This position was also accepted as the legal one by the Court by comparing this piece of evidence in that document with the relevant Orders from the governor-general. Again, the Court referred as acceptable evidence to information given earlier to the Mixed Technical Commission established by Upper Volta and Mali for drawing the boundary. In 1985 the “older residents” of the village of Dioulouna, who, according to Mali, were taken as the living repertory of an ancient oral tradition, reported to the Mixed Commission that “under the colonial régime, track-making work for Dioulouna stopped at Tondigaria, at the level of the white stone (about 10 km to the south of Dioulouna) . . .”45 The Court considered this information relating to track-laying works carried out at the request of colonial administrators to have “a certain evidentiary value.”46 In both these instances the Court regarded as complementary other evidence of facts even in the application of the principle of uti possidetis, when documentary evidence was deficient. Regarding earlier negotiations between relevant parties before the opening of the judicial procedure before the Court, the Court was confronted with one which allegedly took place during the colonial period between two commandants de cercle. The Court excluded the negotiations as evidence, referring expressly to and applying the rule established in the Chorzów Factory Case, where the PCIJ said:

45

Ibid. at p. 618. The Court cited information obtained from local people by the Mixed Commission. 46 Ibid.

278

Chapter 13. Proof and Evidence before the ICJ The Court cannot take into account declarations, admissions or proposals which the parties may have made during direct negotiations between themselves, when such negotiations have not led to a complete agreement.47

In this case the Court in all respects confirmed some principles of evidence established by earlier international jurisprudence. The case demonstrated the difficulties encountered judicially in boundary cases and confirms the view that in evaluating the evidence difficult and differing pieces of evidence must be studied and treated with care in such cases.48

47

Ibid. at p. 632, citing the PCIJ in (1928) PCIJ Series A No. 17 at

p. 51. 48

The result of the Court’s careful examination and analysis of the evidence is to be seen in the operative part of its judgment where it purported to draw the boundary as it saw it: 1986 ICJ Reports at pp. 649–50. The decision was unanimous. Apart from the judgment of the Court, the facts of the Frontier Dispute Case are to be found in P.-M. Dupuy, loc. cit. note 16. In regard to a tribunal’s jurisdiction relating to boundaries on which will depend the evidence required and the treatment of it the following five points which emerge from a study of relevant cases relating to maritime boundary disputes particularly cannot be gainsaid. (i) Where the tribunal is seised of a boundary dispute and where the issues facing the tribunal are concrete issues disputed by the States parties to the dispute, in the absence of an agreement to the contrary, the tribunal must (a) provide a delimitation and (b) resolve the dispute in concrete, as opposed to abstract, terms. (ii) Where the States are agreed that the task of the tribunal is to determine only the general principles and rules of international law relevant to the boundary dispute without actually being empowered to draw an alignment, the tribunal will find its task curtailed accordingly. In this category of requests, there may in fact be no question of an “indirect delimitation”, but the degree to which the alignment actually crystallises or materialises in the decision depends on the facts and circumstances of the case. (iii) Where the tribunal is asked to identify the principles and also to indicate the practical methods of applying those principles, the decision may yield a relatively more “concrete” line in the operative part of the judgment of the tribunal, and on the map as well, although


279

the latter will, in any event, be for illustrative purposes. However, the line cannot be placed in the same category as a boundary actually delimited by the tribunal, because the delimitation cannot be the role of a tribunal which has been asked only to identify the relevant principles and to indicate the relevant methods of delimitation. It is thus a species of indirect delimitation or, at best, quasi-delimitation. (iv) The fact that the tribunal has not actually been entrusted with the task of delimiting the maritime boundary but that of (a) identifying relevant principles and (b) indicating the methods of application of those principles does not mean that the identification and indication carried out faithfully by the tribunal in the context of the facts of the boundary dispute between the parties is not binding on them, especially where it results in a description of a boundary line. Any line which actually materialises in this way is binding on the parties, because it reflects the identification of principles and the indication desired by the parties as manifest from the Compromis. (v) Although a judgment and the resultant boundary will, as a whole, be binding on the parties and therefore res judicata, the extent to which it actually is so binding will, in fact, be a matter of interpretation of the judgment. Where there is evidence to show that owing to uncertainties, geographical or otherwise, any segment, large or small, or a point thereof, cannot definitely be settled by the tribunal, and where there is evidence to establish that the matter was left in the hands of technical experts for determination with precision, then any location of those points along the frontier must be regarded as tentative and subject to confirmation or appropriate determination by the relevant expert. Subsequent approval by the tribunal will, of course, depend on the precise scope of powers vested in the tribunal as evidenced in the text of the special or arbitral agreement. In other words, while the overall binding quality of the decision and its dispositif cannot be challenged by the parties, the relatively more tentative parts of the boundary may be separated from those decided with immediate dispositive effects, provided, at all times, that such, indeed, was the intention of the tribunal. Kaikobad comes to these conclusions upon an analysis of the relevant cases: see loc. cit. note 10 above. The conclusions are at pp. 331–2.

14 SPECIAL PROBLEMS BEFORE INTERNATIONAL ADMINISTRATIVE TRIBUNALS

Like other international courts, international administrative tribunals (IATs) must ascertain the facts upon which complaints brought before them are based. The facts to be proved in a given case are a matter of substance, while how those facts are proved is a matter of procedure. Generally, where facts are agreed upon by the parties, no problem arises. However, as already seen, the party who asserts a fact will always have the onus of producing evidence to support it, because there is a chance that the other party will contest it. For this purpose, there are two main sources of evidence: documentation and oral testimony. There is extensive provision for both forms of evidence in the Rules of Procedure of IATs.1 Parties could prove the facts they allege by referring to documents, including affidavits, or by relying on the evidence of

1

See, e.g., Articles 7, 8, 9, 10, 15, 16, and 17 of the UNAT rules in the Appendix in this work; Articles 7, 8, 9, 10, 15, and 16 of the ILOAT Rules

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witnesses. It is to be noted that in the instruments governing the procedure of IATs provision is generally made for a procedure as a preliminary measure for the production of documents not in the possession of one party but in that of the other. There is also the calling of witnesses as a procedure of proof. Problems arise before these tribunals in connection with the discovery of documents as such and particularly the discovery of confidential information or information claimed to be confidential. The use of experts by IATs in the securing of evidence is also of special interest. These matters will be especially addressed later in this Chapter. They attract attention because they have had to be dealt with by tribunals in one form or another. Further, some interesting practices of IATs, which have not been explicitly provided for in their Rules of Procedure have evolved in regard to these two issues. It is not intended here to give a detailed description and analysis of the contents of the Rules of Procedure of IATs on the subject of evidence. It is important, though, to note that IATs have had little difficulty in successfully applying their Rules of Procedure to secure evidence through documentary or oral means.2 One feature of IATs that may be referred to is that often they have the benefit of findings of fact by internal quasi-judicial bodies such as joint appeals boards (UN) or appeals committees (World Bank) which are presented to them by one or both parties. The IATs may implicitly tend to use or rely on these, where necessary, in their investigation of a case, if not in their decision. This is not something that normally happens before other international tribunals. First, however, a few remarks are appropriate about the general features of IAT procedure dealing with evidence. A look at of Court, C.F. Amerasinghe (ed.), Documents of International Administrative Tribunals (1989) at pp. 37 ff.; Rules 7, 8, 9, 10, 11, 15, 16, and 17 of the Rules of the WBAT, ibid. at pp. 51 ff. 2 See Appendix for the provisions on evidence of the UNAT Statute and Rules. The provisions of other IAT Statutes and Rules are reproduced in C.F. Amerasinghe (ed.), op. cit. note 1.

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Chapter 14. Special Problems before IATs

the relevant rules and provisions of IATs shows that the parties are generally at liberty to produce any documentary evidence they choose, subject, of course, to the general power of the tribunal to exclude any evidence.3 The rules relating to oral evidence vary. In the case of the World Bank Administrative Tribunal (WBAT), for instance, the tribunal decides whether it will hear witnesses and to what extent they will be heard. In several cases the WBAT has decided under its Rule 15 that the request of the applicant to produce oral evidence should not be granted,4 the reason given being that the hearing of witnesses was unnecessary. In other tribunals parties are permitted to call witnesses.5 But apart from the specific rules of the tribunals, as in the case of international tribunals in general,6 it is possible for IATs to supplement the written rules with the rules of customary international law or general principles of law relating to evidence, the manner of its production and its admissibility, though it is not permissible generally for them to disregard a mandatory written rule. Clearly, IATs have the power to exclude evidence, whether written or oral, in accordance with their rules7 or even, in the absence of explicit rules, in accordance with customary international law or general principles of law. At the outset it is to be noted that it is clear that IATs have no general power as such to subpoena witnesses or documentary evidence which is not in the possession of the applicant or respondent. Evidence which the applicant or respondent has in his or its possession may, of course, be requested by the tribunal. 3

See, e.g., Rule 16.3 of the WBAT, C.F. Amerasinghe (ed.), ibid. at p. 57. See, e.g., Buranavanichkit, WBAT Reports [1982], Decision No. 7, Preamble; Justin, WBAT Reports [1983], Decision No. 13, Preamble; Mendaro, WBAT Reports [1985], Decision No. 26, Preamble; Broemser, WBAT Reports [1985], Decision No. 27, Preamble. 5 See Rules of Procedure of the Administrative Tribunal of the Organization of American States, reprinted in C.F. Amerasinghe (ed.), op. cit. note 1 at pp. 99 ff. 6 Sandifer, Evidence before International Tribunals (1975) pp. 44–5. 7 See, e.g., Rule 16.3 of the WBAT, C.F. Amerasinghe (ed.), op. cit. note 1 at p. 57. 4

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283

In several cases the WBAT, for instance, has rejected the applicant’s request to produce witnesses for interrogation and to secure documents from the respondent, because the tribunal deemed such measures unnecessary.8 The effect of such a request will be examined below in connection with claims of confidentiality. Witnesses, on the other hand, are independent persons and producing them is generally the responsibility of the parties. They must call all witnesses who may be of assistance to them. It is not generally the practice of tribunals to order any such witnesses to appear, or to answer interrogatories or questions which the parties may wish to put to them either directly or through the tribunal, where the witnesses are not called by the parties. In de Raet the WBAT did not invite officials of the respondent institution to answer interrogatories, as requested by the applicant, even though some officials were high up in the institution.9 If witnesses are called by either of the parties, the tribunal may request them to answer such questions or interrogatories.10 The governing principle is that each party is responsible for calling its witnesses and should not invoke the assistance of the tribunal in order to secure their attendance. Indeed, because IATs have no powers of enforcement, it is doubtful whether any order made by a tribunal to secure the attendance or assistance of a witness, particularly when a party has failed in such a venture, could be effective. In theory, of course, there is nothing to prevent a tribunal from issuing such an order, if it deems fit, even though it may have no effective means of enforcing it.11 Further, unlike the

8

See Mr. X, WBAT Reports [1984], Decision No. 16 at 1; Einthoven, WBAT Reports [1985], Decision No. 23 at pp. 21–2. Also see the powers of the tribunal under Rule 11.1 of the WBAT. 9 In de Raet, WBAT Reports [1989], Decision No. 85, the WBAT did not invite witnesses to answer interrogatories, as requested by the applicant, even though some of them were high officials of the respondent institution. 10 See, e.g., Rule 15 of the WBAT, C.F. Amerasinghe (ed.), op. cit. note 1 at p. 57. 11 There were instances, particularly before the OASAT, where questions have been put by the tribunal on its own initiative to officers of the OAS.

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case of documentary evidence or information which is in the possession of either party, and which is not turned over to the tribunal at its request, in connection with which the tribunal may make an adverse inference against the recalcitrant party, there is not much a tribunal can do with respect to the parties, if an individual, whoever he be, refuses to appear before the tribunal or answer questions. Documentation in the possession of the parties, on the other hand, may be requested by the tribunal by order, whether on the initiative of either party or on its own initiative.12 There are also instances where, on its own initiative, a tribunal has put written questions to a party, generally the respondent, in order to seek clarification or information which it deems necessary for the disposal of the case.13 In the event that a party does not cooperate with such a request, the tribunal could penalize that party by an adverse inference, as has been done in the case of information claimed to be confidential by the respondent. What emerges from this cursory review is that IATs have complete freedom in securing evidence from witnesses or from documentation, within the limits of their nature as judicial bodies, though without enforcement powers. What needs specially to be noted in this regard is the possibility that the parties, as opposed to other individuals, may successfully suppress information or prevent information from being placed before the tribunal or on its record, or secure other forms of privacy, because the tribunal has no enforcement powers.

CALLING

OF

WITNESSES

The Statutes or Rules of Procedure of virtually all tribunals, whether existing or defunct, make or made provision for the hearing of witnesses. These provisions give or gave some tribunals a 12

See, e.g., Rule 11.1 of the WBAT, C.F. Amerasinghe (ed.), ibid. at

p. 55. 13

See, e.g., Broemser, WBAT Reports [1985], Decision No. 27, Preamble.

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285

general power to hear witnesses, however they may be called,14 some tribunals the power to hear witnesses called either by the parties or by the tribunals,15 and yet other tribunals the power to hear witnesses who are called by the parties.16 Further, the written law of the tribunals delineates usually in considerable detail the procedures for the hearing of witnesses when they are to be heard.17 In any event these procedures would be regulated by the tribunals themselves. The exhaustive manner in which the written law of tribunals deals with witnesses demonstrates how important the hearing of witnesses may be for a particular proceeding. However, even in the absence of explicit provision it is likely that tribunals have an inherent power to hear witnesses either at the request of the parties or proprio motu. While the power of tribunals to hear witnesses may not be disputed, it seems to be clear that the decision whether witnesses will be heard or what witnesses will be heard is a matter for the tribunal. Because of this feature, it would appear that parties do not have a right as such to call witnesses. However, the practice of the European tribunals and the OASAT is to hear witnesses as

14

See, e.g., Articles 15 and 23 of the UNAT Rules: see the Appendix hereto; Article 11 of the ILOAT Rules of Court: C.F. Amerasinghe (ed.), op. cit. note 1 at p. 39; Rules 7.3 and 17 of the WBAT Rules: ibid. at pp. 52 and 57; Article 7(c) of the Statute of the OECD Appeals Board: ibid. at p. 112. 15 See Rule 25 of the Rules of Procedure of the Council of Europe Appeals Board: C.F. Amerasinghe (ed.), ibid. at p. 130; Article 47 of the CJEC Rules of Procedure: C.F. Amerasinghe (ed.), 2 Statutes and Rules of Procedure of International Administrative Tribunals (1983) at p. 89. 16 See, e.g., Regulation 41.11 of the ESA Rules of Procedure: C.F. Amerasinghe (ed.), op. cit. note 1 at pp. 154–5; Regulation 43(h) of the Statute of the ESRO Appeals Board, ibid. at pp. 190–1; apparently Article 20.2 of the IDBAT Rules: ibid. at p. 76. 17 See, e.g., Article 16 of the UNAT Rules: see Appendix hereto; Articles 47 and 48 of the CJEC Rules of Procedure: C.F. Amerasinghe (ed.), 2 op. cit. note 15 at pp. 89 ff.; Rules 2 and 4 of the OECD Rules of Procedure: C.F. Amerasinghe (ed.), op. cit. note 1 at pp. 114–15; Rules 11, 15, 16 of the WBAT Rules: ibid. at pp. 55–7.

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a matter of course or whenever the parties make a request that witnesses be heard, though this matter has seldom been discussed by the European tribunals. In the OASAT requests for the hearing and examination of witnesses normally seem to be granted.18 The UNAT has more often than not acceded fully or partially to requests to hear witnesses, whether the request has come from the applicant or from the respondent.19 In Johnson20 the UNAT decided that it would take the evidence of witnesses for both parties in the form of written statements. No examination of witnesses took place at the oral proceedings. In Osman21 the UNAT heard the representative of the Staff Committee who was granted a hearing pursuant to Article 23 of its Rules. On the other hand, the request for the hearing of witnesses had been explicitly refused by the UNAT, while sometimes this tribunal has decided the case without even addressing the request for the hearing of witnesses.22 The ILOAT has been more selective in its decisions to hear witnesses. In several cases the tribunal has refused to hear witnesses. In some of these cases the tribunal has given no explanation why it refused the request for the hearing of witnesses,23

18

See, e.g., Barrett, OASAT Judgment No. 2 [1972]; Comolli, OASAT Judgment No. 17 [1975]; Bauta, OASAT Judgment No. 25 [1976]; Morán, OASAT Judgment No. 31 [1977]; Boita, OASAT Judgment No. 36 [1978]; Cortina, OASAT Judgment No. 38 [1978]. 19 See Rau, UNAT Judgment No. 101 [1966], JUNAT Nos. 87–113 p. 103; Azzu, UNAT Judgment No. 103 [1966], ibid. p. 156; Ho, UNAT Judgment No. 189 [1974], JUNAT Nos. 167–230 p. 170; Johnson, UNAT Judgment No. 213 [1976], ibid. p. 429, where the requests for the hearing of witnesses were granted. 20 UNAT Judgment No. 213 [1976], ibid. p. 429. 21 UNAT Judgment No. 197 [1975], ibid. p. 258. 22 In Greenham, UNAT Judgment No. 419 [1988], for example, the request for the hearing of witnesses was explicitly refused. In Nath, UNAT Judgment No. 181 [1974], ibid. p. 106, for example, the case was decided without the request for the hearing of witnesses being addressed. 23 See Danjean (Nos. 1 & 2), ILOAT Judgment No. 126 [1968] (CERN); Sehgal, ILOAT Judgment No. 531 [1982] (WHO).

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287

while in others it has given an explanation which amounted to stating that the evidence which could be given by the witnesses requested to be called would not be relevant to the case.24 Sometimes the tribunal has said that the written evidence before it was sufficient.25 In several cases, on the other hand, the ILOAT has acceded, generally without explanation, to the request that witnesses be heard.26 Sometimes the tribunal has, in order to clarify contested facts, in addition to acceding to the request of the applicant to call witnesses, reserved its right under Article 11 of its Rules of Court to call witnesses on its own motion.27 The WBAT has, on the other hand, been more reluctant to call witnesses, whether at the request of the parties or on its own motion. It has in all cases so far decided refused the request of the applicants to call witnesses. It generally has stated that the hearing of witnesses was unnecessary28 or that the record at its disposal was sufficient to decide the case without the hearing of witnesses.29 In Suntharalingam,30 where the applicant made a request that 17 witnesses be called and examined, the tribunal initially made an order that the applicant should furnish reasonable indi-

24

See Garcin, ILOAT Judgment No. 32 [1958] (UNESCO); Godchot, ILOAT Judgment No. 33 [1958] (UNESCO); Schofield, ILOAT Judgment No. 361 [1978] (WHO); Borsody, ILOAT Judgment No. 476 [1982] (FAO); Verron, ILOAT Judgment No. 607 [1984] (UNESCO); Araba, ILOAT Judgment No. 954 [1989] (WHO), Lindemann, ILOAT Judgment No. 968 [1989] (WHO). 25 See, e.g., Najman (No. 2), ILOAT Judgment No. 781 [1986] (UNESCO); Lavender, ILOAT Judgment No. 817 [1987] (FAO); Strausfeld, ILOAT Judgment No. 822 [1987] (EMBL), Sandrini, ILOAT Judgment No. 909 [1988] (FAO). 26 See Froma, ILOAT Judgment No. 22 [1955] (UNESCO); Pankey, ILOAT Judgment No. 23 [1955] (UNESCO); Sherif, ILOAT Judgment No. 29 [1957] (ILO); Ravage, ILOAT Judgment No. 35 [1958] (UNESCO); Bidoli, ILOAT Judgment No. 166 [1970] (FAO). 27 See L’Evêque, ILOAT Judgment No. 76 [1964] (ITU). 28 See, e.g., van Gent, WBAT Reports [1983, Part I], Decision No. 11 at p. 1. 29 See, e.g., Justin, WBAT Reports [1984], Decision No. 15 at p. 1. 30 WBAT Reports [1982], Decision No. 6.

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cations that such witnesses possessed knowledge of material which was relevant, important to the case, and otherwise not available to the tribunal,31 but did not subsequently examine any witnesses before it decided the case. The IDBAT has been very sympathetic to requests to hear witnesses. Often, where a request is made for witnesses to be called, the tribunal has acceded to it.32 Witnesses for both parties have been heard, their evidence being taken under the terms of the Rules. In one case,33 where the applicant requested that the President of the IDB give evidence, the tribunal decided that the witness would be asked to reply in writing to the points raised by the applicant rather than give evidence orally and in person, since this would prevent the applicant from taking up the time of the person concerned. Sometimes costs have been awarded by some tribunals to defray the expenses of witnesses.34 This testifies to the importance of their evidence in these cases.

PRODUCTION

OF

DOCUMENTS

AND

INFORMATION

(a) General Most Statutes or Rules of Procedure of tribunals (or both) contain provisions dealing with the production of documents.35 In so

31

Suntharalingam, Order, WBAT Reports [1981]. See Montana, IDBAT Reports [1983], Decision No. 1; Fonck, IDBAT Reports [1984], Decision No. 2; Burey, IDBAT Reports [1985], Decision No. 4; Cook et al., IDBAT Reports [1985], Decision No. 5; Castro, IDBAT Reports [1985], Decision No. 7; de Andrade, IDBAT Reports [1986], Decision No. 8; Amas, IDBAT Reports [1986], Decision No. 9; Duval, IDBAT Reports [1986], Decision No. 12; Castro, Resolution of October 2, 1986, IDBAT Reports [1986], Decision No. 11. 33 Castro, Resolution of October 2, 1986, ibid. 34 See C.F. Amerasinghe, 1 Law of the International Civil Service (1994), Chapter 32. 35 See, e.g., Council of Europe Appeals Board, Statute, Article 7.5 and Rule 32.1: C.F. Amerasinghe (ed.), op. cit. note 1 at pp. 123 and 131; OECD, 32

Production of Documents and Information

289

far as Rules of Procedure contain such provisions even in the absence of specific statutory provisions relating to the production of documents,36 it may be inferred that tribunals have an inherent power to order the discovery of documents flowing from the power they have of regulating their own procedure, though they cannot effectively “subpoena” documents. In Bang-Jensen37 the UNAT held that even in the absence of provision for discovery of documents in the written law, equity and justice required access to documents and information within the exclusive possession of the administrative authority in so far as they related to the staff member concerned and were relevant to the proceedings, and that the absence of such access would have amounted to a lack of due process. Discovery was ordered in the case. The general intent of provisions contained in Statutes or Rules of Procedure is to give tribunals the power at any stage of the proceedings to call for the production of documents or of such other evidence as may be required38 or as the tribunal may consider necessary for the disposition of the case.39 Tribunals have treated other requests for information such as interrogations as procedural matters on which they have made orders in the course of the proceedings. In the cases the issue that has come up for decision generally is whether the production of documents by the respondent should be ordered by the tribunal at the request of a party or proprio

Statute, Article 7(b): ibid. at p. 112; CJEC, Statutes – ECSC, Article 24 – EEC, Article 21 – Euratom, Article 22: C.F. Amerasinghe (ed.), 2 op. cit. note 15 at pp. 59, 46, 72; WBAT Rules 7.3, 11, 17: C.F. Amerasinghe (ed.), op. cit. note 1 at pp. 52, 55, 57; UNAT, Rules, Article 17: see Appendix hereto; IDBAT, Rules, Articles 13.3, 20.2, 21: C.F. Amerasinghe (ed.), op. cit. note 1 at pp. 74, 76, 77–8. 36 See the Rules of Procedure of UNAT, WBAT and IDBAT cited in note 35 above. 37 UNAT Judgment No. 74 [1958], JUNAT Nos. 71–86 p. 15. 38 See, e.g., Rule 17 of the WBAT Rules: C.F. Amerasinghe (ed.), op. cit. note 1 at p. 57; Article 17 of the UNAT Rules: see Appendix hereto. 39 See, e.g., Article 7.5 of the Statute of the Council of Europe Appeals Board: C.F. Amerasinghe (ed.), op. cit. note 1 at p. 123; Article 7(b) of the Statute of the OECD Appeals Board: ibid. at p. 112.

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motu, because the applicant needs them for the preparation of his case, or for the benefit of the tribunal. In fact not many tribunals have had to face this issue and in general the decisions taken have been very succinct, whether discovery has been ordered or not. In Matta40 the WBAT ordered disclosure of some of the documents requested by the applicant but otherwise decided that the record was sufficient to decide the case, so that the disclosure of further documentation was unnecessary. There are other cases41 in which the tribunal ordered the production of documents at the request of the applicants. Sometimes only some documents are ordered to be produced. At other times when a request for documents is made, if the respondent produces some of them or all of them, the tribunal will do nothing more.42 Obviously, if only some of them are produced, the tribunal will do nothing more, if it is satisfied that it has the documents needed for a fair trial. In some cases in which disclosure of documentation was an issue the WBAT concluded that, because the record at its disposal was sufficient to decide the case43 or the documents requested were not relevant to the issue to be decided,44 disclosure was unnecessary. In other cases that tribunal has refused requests for documents, sometimes implicitly and without giving reasons for such refusal.45

40

WBAT Reports [1983, Part I], Decision No. 12. See, e.g., Fernandes, Order, WBAT Reports [1989]; Harrison (No. 2), Order, WBAT Reports [1989]; Jassal, Order, WBAT Reports [1990]; FabaraNuñez, Order, WBAT Reports [1990]; de Jong, Order, WBAT Reports [1992]; de Vuyst, Order, WBAT Reports [1986]. 42 See, e.g., Robinson, WBAT Reports [1989], Decision No. 78. 43 See Suntharalingam, Order, WBAT Reports [1981]; van Gent, Order, WBAT Reports [1982]; Justin, WBAT Reports [1984], Decision No. 15 at p. 1; Mr. X, Order, WBAT Reports [1984] and Decision No. 16 at p. 1; Einthoven, WBAT Reports [1985], Decision No. 23 at pp. 21–2; Mr. Y, WBAT Reports [1985], Decision No. 25 at p. 1. 44 Mendaro, WBAT Reports [1985], Decision No. 26 at p. 1. 45 See, e.g., Sebastian (No. 2), WBAT Reports [1988, Part I], Decision No. 57; Sukkar, WBAT Reports [1989], Decision No. 84; de Raet, WBAT 41


291

Other tribunals have acted in similar fashion. More often than not, where production of documents is ordered, no explicit reason is given,46 the assumption apparently being that they are relevant to the case and necessary for its resolution or it is stated in general terms that the documents are relevant to the case47 or that it is expedient to call for more evidence, because it was not possible to establish certain facts.48 There are also many cases in which requests for documents have been refused by these tribunals.49 There are some cases in which applicants have sought information through written interrogations or inquiry. The WBAT has on some occasions ordered that interrogations be answered by the provision of information.50 At other times such preliminary measures have been refused.51 On the other hand, the tribunal itself may issue written interrogatories to one or both parties to enable it to gather more needed information or clarify issues. The UNAT

Reports [1989], Decision No. 85; Klaus Berg (No. 2), WBAT Reports [1990], Decision No. 99. 46 See Douwes, ILOAT Judgment No. 125 [1968] (FAO); Bang-Jensen, UNAT Judgment No. 74 [1958], JUNAT Nos. 71–86 p. 15; Cooperman, UNAT Judgment No. 93 [1965], JUNAT Nos. 87–113 p. 55, Khederian, UNAT Judgment No. 114 [1968], JUNAT Nos. 114–166 p. 1; Châtelain, UNAT Judgment No. 272 [1981] (ICAO), JUNAT Nos. 231–300 p. 411. 47 Michl, ILOAT Judgment No. 558 [1983] (EPO). 48 Decision No. 59(a), NATO Appeals Board [1975], Collection of the Decisions 46 to 73 (1976). Documents were ordered to be produced also in, e.g., Cachelin, ILOAT Judgment No. 767 [1988] (ILO); Leprince, ILOAT Judgment No. 876 [1987] (UNESCO); Brunetti et al., OASAT Judgment No. 95 [1986]. 49 See, e.g., Francesi and Guastavi, ILOAT Judgment No. 742 [1986] (ILO); Najman (No. 5), ILOAT Judgment No. 810 [1987] (UNESCO); Toti (No. 2), ILOAT Judgment No. 973 [1989] (EPO); Khan, UNAT Judgment No. 354 [1985]; Roy, UNAT Judgment No. 368 [1986]; Elle, UNAT Judgment No. 375 [1986]; Campo, UNAT Judgment No. 417 [1988]; Trenner, UNAT Judgment No. 409 [1988]; Decision No. 203a, NATO Appeals Board [1985]. 50 See Fernandes, Order, WBAT Reports [1989]; Harrison (No. 2), Order, WBAT Reports [1989]. 51 See de Raet, WBAT Reports [1989], Decision No. 85 at p. 1; Roy, UNAT Judgment No. 368 [1986] at p. 14.

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has adopted this practice with great success. When this is done, the other party than the one to whom the interrogatory is directed is given the opportunity specifically to comment on the answers of the party answering the interrogatory. In many instances tribunals have decided not to accede to a request for an order for the disclosure of documents, usually on the ground that they had no relevance to or bearing on the issues to be decided or in more general terms because the request was without purpose.52 In Jazairi53 the UNAT held that, because the applicant had not specified the documents he particularly required, although he had listed many, his request was in the nature of a fishing expedition; and since he had failed to seek production of the documents before the Joint Appeals Board when he could have done so, it would not order their production. (b) Claims of confidentiality There are several aspects to confidentiality.54 One situation in which the issue of confidentiality may arise occurred in Matta.55 There the document concerned was a medical report that was deemed to be confidential by the respondent, who had the report in its possession, because of a duty it owed to the applicant not to disclose the document. On the order of the tribunal, the respondent produced the report which the tribunal communicated to the applicant but kept under seal in the tribunal’s records because of its sensitive nature.

52

See Ali Khan (No. 3), ILOAT Judgment No. 614 [1984] (ILO); Mila, UNAT Judgment No. 204 [1975], JUNAT Nos. 167–230 p. 333; Vassilou, UNAT Judgment No. 275 [1981], JUNAT Nos. 231–300 p. 457; Tong, UNAT Judgment No. 278 [1981], ibid. p. 476; Rajan, UNAT Judgment No. 283 [1982], ibid. p. 517; Lebaga, UNAT Judgment No. 340 [1984] (IMO). 53 UNAT Judgment No. 316 [1983]. 54 See also C.F. Amerasinghe, “Problems of Evidence before International Administrative Tribunals” in Lillich (ed.), Fact-Finding before International Tribunals (1992) at pp. 210 ff. 55 WBAT Reports [1982], Decision No. 12.


293

The most common occurrence, however, is where the applicant requests the disclosure of documents or information in the possession of the respondent which the respondent claims are confidential in the interests of the organization. Considering the number of cases in which disclosure of documents has been requested, this situation has not arisen too frequently. The record shows that where documents are requested which are claimed by the respondents to be confidential, in the majority of IAT cases tribunals have found a way of not acceding to the request, without detriment to a just and fair disposition of the case. First, there are cases where tribunals have found that the applicant’s request was not reasonably consonant with a Staff Rule or constitutional provision of the respondent organization, or where the actions of the applicant rendered the order of production unjustifiable. In Segers,56 as to the requests concerning the complainant’s personal file, the tribunal held that there was no provision in the Staff Regulations or Rules conferring on the complainant any right with respect to the documents in the organization’s file concerning him. Therefore, he was not entitled to require either that they should be withdrawn or that copies of them should be furnished to him. The submission that the document should be made available to him was, therefore, found to be insupportable. In Conway57 Article 4.12 of the International Labor Organization’s (ILO) Charter provided for the establishment of a personal file for each official which should be kept confidential. There was also a personal file, which, under Article 4.12, each staff member might freely consult. The organization was entitled, however, not to put in a staff member’s open personal file some of the documents which concerned him. The ILOAT said that this right of the organization was not an absolute one, though it could be exercised, in order to safeguard legitimate interests. The organization could not use confidential documents as it pleased as a basis for making decisions unfavourable to staff members. The

56 57

ILOAT Judgment No. 131 [1969] (WHO). ILOAT Judgment No. 256 [1975] (ILO).

294


ILOAT held that in view of the above-mentioned principles, the complainant was mistaken in objecting to the establishment of confidential files. Since there was no current dispute concerning the use of the allegedly confidential documents, it was held that his claim to consult them was unfounded as was his request for the tribunal to take cognizance of them. A second reason for which tribunals have decided not to accede to a request for an order to disclose documents is that the documents have no relevance to, or bearing on, the issues to be decided and are, thus, unnecessary for the purpose of enabling the tribunals to reach their decision. This is no more than the application of the general principle that irrelevant material will not be required to be produced. A decision may be made after the documents have been examined by the tribunal or without its doing so. There are several cases illustrating the approach of IATs in dealing with requests for disclosure of documents determined to be unnecessary for the proceeding. In Tarrab,58 for example, the report of the Assistant to the Legal Adviser, at the request of the complainant, was communicated to the ILOAT by the organization with the exception of certain passages regarded as confidential. Although the complainant had asked that the above-mentioned document should be produced in full, the tribunal considered it unnecessary for the establishment of the facts to order the omitted passages produced. In Rosescu59 the complainant asked the ILOAT to order the International Atomic Energy Agency (IAEA) to disclose three documents. In its reply the Agency refused to do so on the grounds that the first two documents were internal documents and that disclosure of the third required the consent of the Romanian Government. The complainant appended copies of the three documents to his rejoinder and agreed not to press his request for the originals, provided that the authenticity of the

58 59

ILOAT Judgment No. 132 [1969] (ILO). ILOAT Judgment No. 431 [1980] (IAEA).


295

copies went unchallenged. The tribunal, however, decided that it did not need to take account of the three documents whose disclosure was requested, because the two minutes written by the Agency officials related either to questions of law which the tribunal would settle proprio motu or to questions of fact which the tribunal would settle on the strength of other written evidence, and counsel for the Agency acknowledged that by a letter the Romanian authorities stated their opposition to extension of the appointment and thereby admitted the accuracy of the copy of the letter which was the third document. In Mila,60 a case which involved termination of a permanent appointment for unsatisfactory services, the applicant had first requested the UNAT to order the production of the typed manuscript of tape recordings covering testimony of witnesses heard by the Appointment and Promotion Panel during the course of its inquiry. The tribunal observed that when it was called upon to consider in a given case the advisory procedure which preceded the contested decision, it did so on the basis of the advisory reports. In light of the conclusions which the tribunal had reached concerning the Panel’s report there was no ground for hearing a tape recording that might be useful for the work of the Panel itself in a complex case, calling for numerous meetings, but which did not itself need to be considered by the tribunal or the parties. Therefore, the tribunal rejected the applicant’s request to order the respondent to produce certified copies of the applicant’s personal history form and fact sheet communicated by the administrative services of the respondent to the specialized agencies on the ground that the production of these documents was not directly related to the pleas filed with the tribunal. In Tong,61 as to the first plea of the applicant in which he sought the production by the respondent of certain documents, the UNAT observed that, with regard to certain materials, either they had been produced already by the respondent or their sub-

60 61

UNAT Judgment No. 204 [1975], JUNAT Nos. 167–230 at p. 333. UNAT Judgment No. 278 [1981], JUNAT Nos. 231–300 at p. 476.

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stance was provided by witnesses. As to the rest of the documents, the tribunal observed that these requests were not pursued by the applicant beyond asking the tribunal in his written observations to determine what, if any, of this material was necessary and proper to the presentation of the applicant’s case. The tribunal did not consider that these materials, to the extent they existed, would have altered either the presentation of the case or its judgment.62 On the basis of the absence of relevance the production of confidential documents has not been ordered where the complainant had not established that the documents he wished to have disclosed would have supported his claims. In Borsody63 the ILOAT said that the complainant could not rely on Manual provision 601.52, which granted staff members access to the files they needed in performing their duties, since he was acting in his own interests. In any case the complainant had not established that the files he wished to have disclosed would have supported his claims. Therefore, it was immaterial whether those files, in so far as they related to officials other than the complainant, were confidential and could not be disclosed. Thirdly, there have been cases where IATs in one form or another have followed the practice of ordering that confidential files be made available only to the tribunal without communicating the information to the applicant, even if the information would be of relevance to the case or of finding it adequate that the confidential material in issue had been made available to the tribunal, there being no necessity to disclose it to the applicant. The tribunal may or may not in such cases make use of the material which it alone has seen in deciding the case. In Ballo,64 as to the production of documents requested by the complainant, the ILOAT ordered them to be produced and took cognizance of

62

See also Rajan, UNAT Judgment No. 283 [1982], JUNAT Nos. 231–300 at p. 517. 63 ILOAT Judgment No. 476 [1982] (FAO). 64 ILOAT Judgment No. 191 [1923] (UNESCO).


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them in camera, since the organization refused to include these documents in the dossier on the grounds that they had no bearing on the complainant’s situation and that some of them were confidential. The tribunal noted that the documents were, indeed, of a confidential character and decided not to communicate them to the complainant but merely informed him of the tentative conclusions which it had drawn from them. More importantly, after further consideration the tribunal reached its decision without relying on these documents. A similar case was Molina.65 The complainant had asked that his counsel be given a copy of the reports of inquiry and any decision based thereon. The ILOAT examined the report, found it to be confidential and decided not to communicate it to the complainant, at least at that stage. In its judgment the tribunal confirmed its previous decision, because, to a large extent and with regard to the essential issues, the report of inquiry confirmed the Ombudsman’s report, which was included in the dossier and levelled serious charges against the complainant’s first-level supervisor. It was necessary to add to the dossier the report on this inquiry drawn up at a later stage. In accordance with a general principle of law, the tribunal said, findings in reports of this nature should not be disclosed and decided not to order their production, because they were not necessary for judicial redress.66 Fourth, the tribunal may simply take the view that the applicant was not entitled as of right to have the confidential document, for whatever reason. For example, in Ali Khan67 the ILO had produced a report by the selection board with all names obliterated but the complainant’s. The ILOAT said that the complainant had no right to know the identity of all the candidates who were eliminated, since they might have good reason to wish to remain anonymous; nor was he entitled to consult any record

65

ILOAT Judgment No. 440 [1980] (WHO). See also Khederian, UNAT Judgment No. 114 [1986], JUNAT Nos. 114–166 p. 1; Lebaga, UNAT Judgment No. 340 [1984] (IMO). 67 ILOAT Judgment No. 556 [1983] (WHO). 66

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there might be of discussion by the selection board, because members of such boards would not feel free to discuss candidates independently in the future, if they were at risk of having their personal views divulged. For the same reasons, the complainant would not be entitled to further information about the reasons for his elimination because the disclosure of the report or reports of the Administrative Committee and the Director-General’s decisions on them would add nothing to what the complainant already knew. Therefore, the tribunal ordered the ILO to submit the available texts to it after which it would decide whether they should be included in the dossier of the case. In a few other cases, tribunals also have considered strictly confidential the documents whose production is requested and refused to order disclosure of comments on files intended for internal circulation within the organization or made during internal Boards’ proceedings. In Ali Khan (No. 2),68 for example, the complainant sought the disclosure of all minutes of the Reports Board’s discussions on his appraisal reports for 1979–1980, 1980–1981 and 1981–1982. The ILOAT ruled that he had no right of access to texts produced for or by the Board. Article 10.3 of the Staff Regulations said that the proceedings of the Board should be regarded as secret. If that was not so, the Board could not act in full independence. The complainant also sought the disclosure of all confidential minutes exchanged between the units of the Administration. The tribunal accepted the ILO’s contention that there were no secret minutes besides those which had been filed in the dossier. As to the complainant’s claim for the disclosure of his appraisals by his colleagues, the tribunal ruled that the complainant could not obtain the disclosure of the appraisal reports by his colleagues, which according to the Staff Regulations (Article 4.12) formed part of their personnel files. This provision was in the legitimate interest of staff members and its validity was beyond dispute.

68

ILOAT Judgment No. 565 [1983] (ILO).


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Fifth, sometimes the practice may be adopted of ordering documents claimed to be confidential to be submitted for inspection by the tribunal, after which the document may be communicated to the applicant with deletions made by the tribunal. This was done in Jassal, where the respondent complied with the following order made by the WBAT: 2. The Applicant has also requested, in his letter dated October 10, 1989, prepared after the Respondent’s filing of its answer, that the Tribunal order the Respondent to “produce the ‘IAD Panel’ report under conditions to be specified by the Tribunal.” 3. The Tribunal notes that the Respondent made use of this report in its answer and its letter dated October 20, 1989, and reproduced an extract therefrom in an annex to its answer. The Respondent also made reference to the confidential nature of this document . . . 5. The Tribunal orders that the Respondent shall within ten days of the receipt of this Order produce for examination by the Tribunal the IAD Investigative Panel Reports referred to in the Respondent’s answer and letter. 6. The confidential character of the document will, so far as appropriate, be respected. The Tribunal does not accept the contention of the Respondent, advanced in its letter dated October 20, 1989, to the effect that even the material parts of the document shall not be released to the Applicant. The determination of what parts, if any, of the documents shall be considered relevant to the case and released to the Applicant will be made later. Order: For the reasons stated, the Tribunal orders that the Respondent shall comply with the directive contained in para. 5 above . . .69

Sixth, in a few cases, IATs have in effect recognized the right of the complainant to inspect documents that included confidential information withheld by the respondent organization. Thus, fol-

69

Jassal, Order, WBAT Reports [1990]. See also Fabara-Nuñez, Order, WBAT Reports [1990], where a similar order was made.

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lowing the practice of other international tribunals,70 they have, in reaching their decisions, drawn adverse inferences from the refusal of the respondent to produce such documents. In Robinson,71 a case concerning the right of association, the respondent had made two submissions in response to questions by the UNAT. The first was that, because of an obligation of confidence, the respondent did not consider that it should place on its own initiative relevant facts before the tribunal underlying the administration decision, in view of the confidential nature of certain of these facts. The tribunal held that it was clearly for the Secretary-General to decide which information and evidence he placed before the tribunal could be subject to test and counter-argument by the applicant. When the respondent did not, on its own initiative, produce such information and evidence, despite a number of requests by the tribunal that a clear statement should be made, the tribunal was left with no option but to proceed to a conclusion in the absence of such information and evidence. The applicant could not be penalized because certain information was regarded by the respondent as confidential when the applicant could not know the reason for the confidentiality claim or how to challenge it; otherwise there would be no effective protection in cases of this kind of the right of association inherent in the contractual relationship of the applicant and the UN in accordance with the terms of appointment. In McIntire72 the respondent refused to disclose a letter on the grounds that its content was confidential and because it came from the government of a sovereign State and “its production . . . would constitute a violation of diplomatic usage.” The ILOAT ruled that, although it did not have the power to express an opinion as to the merits of the reason given by the respondent, it deemed it impermissible that the considerations alleged by that organization could in any way prejudice the legitimate interests of the complainant. The tribunal concluded that the

70 71 72

Sandifer, op. cit. note 6 pp. 147–54, 375–81; and above Chapter 11. UNAT Judgment No. 15 [1952], JUNAT Nos. 1–70 at p. 43. ILOAT Judgment No. 13 [1954] (FAO).


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existence of a secret document concerning the complainant, the content of which was unknown to him and against which he was consequently powerless to defend himself, vitiated the just application of the Regulations to the complainant and prejudiced the interest of the staff and of justice. In Douwes73 the ILOAT held that, since the organization had in its statement referred to the letters of July 19, July 26, and August 13, 1963 and October 1964, and relied upon their contents as evidence against the complainant, the complainant was entitled to see the letters. It was not enough that he be provided with extracts or summaries of such parts as the organization considered relevant. If there were passages in the letters which, on the ground of confidentiality, ought not in the opinion of the organization to be disclosed, the organization might omit such passages from the copies produced, stating at the same time the reasons for the omission. If the complainant challenged these reasons, the tribunal could consider whether or not it was necessary, in order for justice to be done in the case, that the omitted passages be examined. If the tribunal decided that this was necessary, the complete letters would in the first instance be produced only to the tribunal and would not be shown to the complainant, unless the tribunal decided that the claim for secrecy was without foundation. Seventh, in some cases the issue of confidentiality has taken different forms with varying results. For example, in Gubin and Nemo74 the Eurocontrol requested the ILOAT to order the withdrawal of several items of evidence which the complainants had appended to their memoranda, without permission, based on the provisions of Article 17 and Article 19 of the Staff Regulations and supplemented by Circular No. 54/78 dated July 20, 1978. The complainants’ view was that they had merely exercised one of their rights. The tribunal said it would deal with the matter in the same way that it would deal with an application for discovery of written evidence which an organization refused to disclose. The

73 74

ILOAT Judgment No. 125 [1968] (FAO). ILOAT Judgment No. 429 [1980] (Eurocontrol).

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tribunal ruled that there were no grounds for ordering the removal of the evidence which the complainants had produced without permission. According to the first paragraph of Article 19 of the Staff Regulations the staff members should not on any grounds, without permission from the Director-General, disclose in any legal proceedings information of which they had knowledge by reason of their duties. In this case the Agency was not contending that the filing of the evidence was detrimental to anyone’s interests. Instead, it was objecting to the filing of the evidence, merely because it wished to secure compliance with rules which the tribunal was under no duty to apply and which it would not construe. The tribunal held that this was not an adequate reason for seeking the removal of evidence which, although it might have no direct effect on the tribunal’s decision, was undoubtedly material. In Miss M 75 the CJEC considered the question whether the doctors in the confidence of the Commission of the European Communities might, by relying on the confidentiality of their findings, properly refuse to give information indispensable to the carrying out of a review of the legality of the Commission’s actions. With a view to preparing an answer to that question, the Court requested the Commission to draw up a study of comparative law on the question of the confidentiality of medical findings under the laws of the various Member States of the Community. From this study, it appeared that, although it was true that in all the Member States such confidentiality was protected because of the confidential relationship which was formed between the patient seeking treatment and the doctor, the laws of all the Member States also recognized, albeit to a variable extent, certain limits to the scope of that confidentiality. Such limits resulted either from circumstances where the person concerned had expressly given his consent, or where the doctor’s involvement took place in the context of administrative checking procedures, so

75

Miss M v. Commission of the European Communities, 1980 CJEC Reports p. 1797 (Case 155/78).


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that the spontaneous confidential relationship which was the basis of professional secrecy did not exist, or where reliance on such confidentiality would have the result of obstructing the normal course of justice. In this case the applicant had expressly given her consent that all relevant information relating to the medical examinations which were carried out could be given to the Court. The medical examinations were carried out pursuant to the Staff Regulations in the context of an administrative recruitment procedure the legality of which should, at every stage, be capable of review by the Court. In these circumstances, the Court found that the refusal to give any information whatsoever concerning the basis of the medical records and the reliance, by the doctors in the confidence of the Commission, on the confidentiality of medical findings as the grounds for refusing to provide any useful information, had the result of making it impossible for the Court to carry out the judicial review entrusted to it. The Court, therefore, held that the implied administrative decision rejecting the complainant through official channels and the administrative decision declaring her physically unfit should be annulled. In Beynoussef 76 the applicant refused to allow disclosure of certain medical information which he regarded as confidential but which was in the hands of the physician of the World Health Organization (WHO). The ILOAT took firm and significant action in these circumstances when later he waived the right of confidentiality. The tribunal held that this later application to waive the applicant’s rights of confidentiality to all the medical files at the WHO’s disposal should be disallowed as a matter of principle. The tribunal allowed each side to file no more than two briefs and closed the written proceedings after the defendant had filed the surrejoinder. The complainant consistently declined throughout the written proceedings to allow discovery of his medical file, of which action the tribunal took note. The tribunal even allowed him, after the filing of the surrejoinder, to put in a further brief which the WHO answered on July 22, 1983. On that date the

76

ILOAT Judgment No. 595 [1983] (WHO).

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written proceeding was deemed to have been closed. Under the circumstances, the complainant could not now alter the basis of his case. The complainant later produced certificates from doctors who had treated him, but these had no value since the complainant refused to let the WHO physician state his opinion. The complainant’s position destroyed the parity between the parties and the tribunal could restore it only by discounting the medical certificates he had produced. Eighth, there are a few cases in which the issue of confidentiality as it affects due process in the international procedures of the respondent organization has arisen. In these cases tribunals were called upon to pronounce on the non-production of evidence in prior internal proceedings as it impinged on the right to due process of the applicants. IATs have accepted the principle that the right to due process could be infringed in these circumstances, thus warranting a remedy, but have not held in any case that on the facts the right to due process has not been respected. While these cases deal with due process in internal quasi-judicial processes, they reflect the tribunal’s views on due process which could be applied in the appropriate circumstances to the procedures before the tribunals themselves, where evidence is withheld for reasons of confidentiality. In Bang-Jensen,77 for instance, the applicant rested his case on the denial of access to documents requested by him by memorandum. Although the administration reassured him in its letter that it would provide him with the requested documents, it changed its position later and denied him access to them. The UNAT considered that rules of equity and justice required access to documents and information within the exclusive possession of the administration insofar as that access was related to the staff member concerned and was relevant to the proceedings under consideration. Unless access was given to the applicant to “relevant” documents, it would amount to lack of due process in the preparation and presentation of his case. The tribunal, however, found that some of the documents requested

77

UNAT Judgment No. 74 [1958], JUNAT Nos. 71–86 at p. 15.

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by the applicant dealing with the lack of internal security measures and procedures of the respondent were irrelevant for the purpose of the presentation of the applicant’s case. The tribunal also found that the other documents requested by the applicant dealing with the charge that he had persisted in bringing irregularities to the attention of his superiors after “inquiries” or “investigations” repeatedly proved that his allegations were “entirely baseless” and “totally unfounded” were such that the Joint Disciplinary Committee would have gone into the relevance of, and pronounced upon the production of, the same. The tribunal observed that the administration had at no stage refused to give access to the documents mentioned by the applicant in his letters dated April 9, 1958. The respondent had only insisted in the Joint Disciplinary Committee on looking into the relevance of the documents requested to the charges framed against the applicant. The tribunal said that it was not aware of a due process which gave an applicant the right to call for any document from the opposite party regardless of its relevance to the issue under consideration. In the result the application was dismissed, because the plea of lack of due process at various stages of the disciplinary proceedings against the applicant had not been substantiated.78

THE USE

OF

EXPERTS

There are not many cases in which IATs have been faced with either the request or the need for the appointment of experts. Experts are employed to assist in the ascertainment of facts which involve technical matters outside the general knowledge of judges or lawyers. Tribunals have assumed that they had the inherent power to use experts, even in the absence of provision

78

For other cases in which a lack of due process in the withholding of documents was found not to have been established see, e.g., Bartel, UNAT Judgment No. 269 [1981] (ICAO), JUNAT Nos. 231–300 at p. 393; Vassilou UNAT Judgment No. 275 [1981], JUNAT Nos. 231–300 at p. 457.

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in their statutes, generally by providing for it in their rules. The WBAT Rules, for instance, refer in Rules 15 and 1679 to experts called by the parties. Even in the absence of the explicit provision for the use of experts by tribunals themselves, apart from those called by the parties, it would seem that tribunals have an inherent power to use them. As in the case of other international tribunals,80 IATs are not likely to have self-imposed restrictions on their ability to secure evidence or to ascertain the proper facts in the absence of express prohibition by their statutes or constituent instruments. In the first place, experts are only consulted, while the law requires that the tribunal ascertain for itself certain facts. Where no technical matters are at issue, experts will not be appointed to assist the tribunal. Thus, in Kassab81 the applicant in his pleas requested the WBAT to designate an “external financial expert” to assess the work he had produced during a certain period. The tribunal held that the circumstances did not require it to make the assessment required of his work because, with regard to the administrative review of his work, it was of the opinion that: It embodies the collective judgments of the Applicant’s managers and independent persons within his department. During the administrative review he had ample opportunity to make his own views known. His managers took pains to look into his complaints and see that he had been fairly evaluated. The Tribunal is of the opinion that these factors are sufficient to dispel doubt regarding the report and that the Bank’s officers did not abuse their administrative discretion in assessing the Applicant’s performance.82

Therefore, the tribunal held that there was no basis for designating an expert to assess the applicant’s work.

79

See C.F. Amerasinghe (ed.), op. cit. note 1 at pp. 56–7. See Sandifer, op. cit. note 6 p. 325; G. White, The Use of Experts by International Tribunals (1965) p. 7; and above Chapter 8. 81 WBAT Reports [1990], Decision No. 97. 82 Ibid. at p. 17. 80

The Use of Experts

307

In Kassab it would seem that the tribunal referred to the possible use of experts in order to deal with the applicant’s particular plea. In matters concerning the abuse of discretion on account of substantive irregularity in connection with the appraisal of the staff member’s performance generally, tribunals do not, and do not need to, consult experts, since they do not make their own appraisal of the staff member’s performance or substitute their own judgment for that of the organization83 but rather ascertain whether certain irregularities had occurred which vitiate the appraisal. This they generally can do without references to experts. The language used by the tribunal in no way indicates that for the purpose of making an appraisal it would have employed experts, in order to verify the appraisal of performance, in circumstances in which there were found to be substantive irregularities or no such irregularities. More important, though, are the cases in which experts have been used for various purposes. There are only a few cases which illustrate when experts may be used. The more significant cases are considered here. These were decided by the ILOAT and CJEC. In Miele84 the information available did not enable the ILOAT to assess, with full knowledge of the facts, the degree of invalidity from which the applicant was suffering, nor the extent to which that degree of invalidity was attributable to the accident which he suffered in the course of duty on July 14, 1960. The tribunal ruled that an examination should be carried out by two medical experts so as to determine (a) the present degree of the applicant’s invalidity and assess the degree of his present work disability with regard both to his former employment and to other kinds of possible employment, (b) the extent to which that invalidity thus assessed might be regarded as the direct consequence of the accident suffered by the complainant, (c) if necessary, the extent to which that invalidity might be regarded as the indirect

83

See, e.g., Saberi, WBAT Reports [1981], Decision No. 5, para. 24; Suntharalingam, WBAT Reports [1982], Decision No. 6, para. 27. 84 ILOAT Judgment No. 141 [1969] (CERN).

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consequence of the accident, and (d) the nature of the disorders identifiable as the indirect consequence of the accident and the extent to which those disorders might be regarded as having a constitutional cause or as being attributable to factors independent of the accident, whether arising before or after it. The experts were to be appointed by order of the Vice-President of the tribunal, who was to determine the procedure for the examination and in particular, after consulting the parties, determine the final text of the questions to be put to the experts. The experts were to draw up their report after consulting the dossier of the case and examining the applicant. If they thought fit, they could obtain the assistance on particular points, and on their own responsibility, of one or more specialists. The tribunal ordered the organization to advance the costs of the expert examination and of the applicant’s expenses in submitting himself for the examination. In X85 under Article 86 of the Staff Regulations of the European Communities a failure by an official to comply with his obligations under the regulations might give rise to disciplinary action, only if such failure was intentional or through negligence on his part. The applicant claimed that, because of his abnormal psychological state, he could not be regarded as responsible, from a disciplinary point of view, for the acts of which he was accused. The CJEC held that the file transmitted by the Audit Board included certain material which, without allowing definite conclusions to be drawn, nevertheless raised doubts concerning the mental balance of the applicant at the time of the conduct in question and consequently the voluntary nature of the acts of which he was accused. Neither the terms of the decision, which was the subject of the application, nor the information provided by the defendant made it possible, as things stood, to evaluate the justification of the contested decision with respect to the applicant’s responsibility for the conduct in question. There was, therefore, reason to call for an expert’s report in order to establish

85

X v. Commission de controle des Communautés Européennes, 15 CJEC Reports (1969) p. 109.

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whether, at the time of the acts which gave rise to the disciplinary decision, the applicant was mentally disturbed to such an extent as to exclude responsibility for this conduct. In Pizziolo86 the applicant had submitted, inter alia, that he should have been reinstated in one of the posts which fell vacant after the expiry of his leave. He requested in the alternative that his fitness for the posts should be the subject of an expert’s report. The CJEC ruled that, since the question whether the applicant’s abilities matched those required by the vacancy contained particulars of an extremely technical nature, it was appropriate to order an expert’s report to enable the Court to decide this aspect of the dispute. The parties were asked to send to the Court, within two months from the date of delivery of the judgment, the name of the expert whom they agreed to appoint. Failing such agreement, the parties were told to send to the Court, within the same period, the names of the experts whom they proposed, setting out their reasons for refusing the other party’s proposal. In Dicancro (No. 3) 87 the ILOAT had appointed an expert under Article II of its Rules of Court to calculate the loss suffered by the complainant according to certain criteria.88 The expert had delivered a report to the tribunal that calculated the complainant’s loss as specified in paragraph 4 of Judgment No. 480, as of December 31, 1983, at US$ 78,322. The organization accepted that figure. The complainant criticized the report, first, on the ground that it was based on assumptions which produced an inequitable result and, second, on the ground that it contained mathematical errors. The effect on the figures due to the mathematical errors, if they were substantiated, would be small, while the effect of the first ground would be substantial. In the expert’s calculation, the actuarial valuation assumptions were expressed by a value factor of 14,717, while in the complainant’s calculation the factor was 24,172. This difference in the factors accounted 86

Pizziolo v. Commission of the European Communities, Case 785/79, 1981 CJEC Reports p. 969. 87 ILOAT Judgment No. 569 [1983] (PAHO). 88 See Dicancro (No. 2), ILOAT Judgment No. 480 [1982] (PAHO).

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almost entirely for the large difference between US$ 378,963 and US$ 650,552. The expert had taken the figure of 14,717 as the factor applied in such circumstances by the United Nations Joint Staff Pension Fund (UNJSPF). The complainant argued that the UNJSPF factor, while satisfactory, ought not to be applied in the case of wrongful dismissal. The tribunal ruled, though, that under this particular item of damage, which was only one of several in a claim for compensation for wrongful dismissal, the complainant was being compensated for the loss of a larger pension. The size of the larger pension would not be affected by the manner in which the complainant was forced to leave the organization. Because of the complexity in the making of calculations there were likely to be points at which a choice between two methods had to be made. The comparatively slight differences between the calculations made by the expert and those made by the complainant’s actuaries were due to the fact that at some points the latter did not share the expert’s preference. This did not fault the calculation which the tribunal accepted. In Mengia89 the complainant was suffering from continuing total disability. G.W., the medical expert appointed by the President of the tribunal, stated, in paragraph 8 of his report dated October 14, 1988, that the complainant was “now totally unable to work but it was his present state of mind which was preventing him from working.” He also stated in paragraph 9 that “Dr. [J] and I would put the extent of which this neurosis is attributable to the accident and the events which followed it at 50 percent.” After considering the medical reports before it, the ILOAT was satisfied that the complainant was psychologically incapacitated for work at the date of separation. The date for payment of the pension to the complainant would be fixed at August 9, 1983. But the organization was held liable only with respect to 50 percent of the total incapacity. Accordingly, the tribunal awarded the complainant compensation under this head in the form of an annual invalidity pension equal to one-third of the yearly figure of his

89

ILOAT Judgment No. 971 [1989] (WHO).

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pensionable remuneration, i.e., half the full pension. In paragraph 17 of his report, G.W. concluded that the complainant’s physical decline could be arrested and partly reversed with proper treatment. If the complainant became fit for full-time or part-time employment, the Director-General had power under Rule 27(a) of the compensation rules to require him to undergo an examination as a result of which he could be denied compensation in full or in part. Under Rule 30 the Director-General might periodically review the amount of the pension and alter it, if satisfied that the disability which constituted the basis of the pension had changed. There was, therefore, no need for the tribunal to make a specific order that the complainant submit to periodic medical examinations. The tribunal also awarded compensation for the total loss of function of the complainant’s foot, loss of enjoyment of life, interest and costs. In Mirossevich90 the CJEC had to deal with the evaluation of a translator during the probationary period. The Court found that during the month spent by the applicant in the translation department she was entrusted with only three translations, the first two of which contained only two pages each and the third of which, of seven pages, was done in collaboration with the Halran reviser. The defendant justified the small number of tasks given to the applicant during her probationary period on the ground of lack of work in the department and the obvious incapacity of the applicant for her duties, which the department sought to prove by producing one of the three translations made by the applicant during her probationary period. The imperfection of these three translations was alleged to have convinced the defendant that there was no need to subject the applicant to any other tests. As to the translation of December 18, 1952 produced by the defendant, the applicant contested its authenticity and claimed not to be the author. However, by notice dated May 22, 1956, the applicant notified the Court that she accepted the said documents as “legally authentic”, although she still contested the document’s

90

Case 10/55, 2 CJEC Reports (1955–56) p. 365.

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authenticity. The Court held that it could rule on the authenticity of the document. The documents produced by the defendant showed that the document in question was in fact the translation into Italian by the applicant from a French original. The evidence of witnesses given at the inquiry conducted by the Second Chamber of the Court corroborated the findings resulting from the documents produced. But the expert’s opinion ordered by the Second Chamber with regard to this document did not confirm the defendant’s allegation that this translation constituted, by its inferior quality, patent evidence of the applicant’s inability. Having regard for the opinion of the expert, and taking account of the fact that the time-limit given for the translation was very short, the Court considered that an unfavourable evaluation could not reasonably have been made as a result of this single test. The quality of the translation was not such as to reveal by itself marked inability on the part of the applicant to work as a translator with the High Authority. The other two translations made by the applicant had not been produced, so they could not be used to reveal the inability on the part of the applicant. Therefore, the Court considered that the exceptionally limited number of translations required of the applicant during her probationary period constituted a serious presumption in support of the claim that the probationary period of the applicant had not been regularly conducted.91

CONCLUSION IATs have rules of procedure and other means in dealing with documentary and oral evidence which seem in general to be 91

There are also a few decided cases which illustrate the attitude of IATs towards the use of experts or specialists by organizations in their relations with staff members. Strictly, these cases do not reflect how IATs secure evidence through experts. They are only useful indicators of how tribunals will control the power of organizations to ascertain or establish facts or secure advice. See on the issue of this use of experts, for example, the other cases cited in C.F. Amerasinghe, loc. cit. note 54 at pp. 228–32.

Conclusion

313

effective. While the manner in which oral evidence is dealt with is not uniform, the underlying principles are that the parties primarily bear the responsibility for adducing oral evidence, with the IAT reserving to itself the power to exclude any evidence considered irrelevant and to put any questions to witnesses which may help it to ascertain the facts and that, on the other hand, it is the IAT which determines whether witnesses will be heard. But this is not to say that IATs do not have the power to call or question witnesses proprio motu. Tribunals also do not hesitate to interrogate the parties either orally or in writing where they deem it necessary to secure more information. There is, of course, a general power vested in IATs to exclude evidence which is considered irrelevant, even if it is documentary. Clearly, however, there are two principal areas in which IATs have had to face problems or exercise their initiative. In regard to information claimed to be confidential by either party, IATs first of all will exercise their right to exclude it, if it can be regarded in any way irrelevant or not pertinent to the applicant’s case. They may do this possibly either before examining the evidence in camera or afterwards. They may also choose the course of disclosing to the other party an expurgated version of confidential documents where the party claiming confidentiality is ready to turn the documents over to them. Generally, the expurgation will be done by the IATS rather than the party claiming confidentiality. But what is important is that tribunals will try to enforce the principle of equality of arms between the parties. This is true particularly where one party refuses to disclose information on the ground of confidentiality. In such cases IATS have taken the course of making, if necessary, an adverse inference against that party when taking its decision. The attitude of IATs is based on the principle that both parties are responsible for producing whatever evidence is within their control and is relevant to the case and the course of justice. Since they are without powers of enforcement, the best way in which they can ensure the observance of this principle is by appositely making an adverse inference against a non-compliant party. Of course, they also have devised ingenious alternatives, such as expurgation, in order

314


to induce the party claiming confidentiality to be more forthcoming. Not to be disregarded is the possibility that an IAT may hold that certain information may validly, for a variety of reasons, be claimed to be confidential. IATs have also implemented certain safeguards against changes in claims of confidentiality in the course of proceedings which may prejudice the rights of the other party. All in all, the approach taken by IATs to the problem of confidentiality has been a pragmatic one that has had success in terms of a fair trial. The other area of importance is the resort to experts in order to establish facts. IATs have not hesitated to use the services of experts or to accept their use, where there is need to ascertain facts of a technical nature. This has been done in a few cases, only when it is necessary for the tribunal to ascertain or verify a certain fact or facts.

15 SPECIAL ASPECTS OF EVIDENCE BEFORE THE ICTY

The ICTY being an international criminal tribunal in implicitly developing conceptually the basic principle of evidence and other narrower principles has made some particular approaches to evidence in certain areas.1 The basic principle is the need to have a 1

What is said in this Chapter holds true in general also for the ICTR. The ICC may follow the same course. Cases cited in this Chapter are reported on <www.icty.org>. The subject of this chapter has been discussed and explained in both La Rosa, Juridictions pénales internationales: La procédure et la preuve (2003) pp. 251–416, and May et al. (eds.), Essays on ICTY Procedure and Evidence (2001) pp. 249–371 (several authors). Other references may be found in La Rosa, op. cit. above, Bibliography, pp. 471–506. Cases before the ICTR are reported on <www.ictr.org>. More recently issues of evidence before international criminal tribunals, including the ICTY, have been considered in Wierda, “International Criminal Evidence: New Directions”, 2 The Law and Practice of International Courts and Tribunals (2003) p. 401; Wierda, “Procedural Developments in International Criminal Courts”, 1 ibid. (2002) p. 431, 1 ibid. (2002) p. 627, 2 ibid. (2003) p. 185, 2 ibid. (2003) p. 347; Friman, “Inspiration from the International Criminal Tribunals

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Chapter 15. Special Aspects of Evidence before the ICTY

fair trial which is the principle, as pointed out in Chapter 1, which applies in general to evidence in international litigation. The areas concerned are • • • •

Admissibility and weight of evidence: general; Admissibility and weight of evidence: hearsay; Protection of witnesses and victims; and Discovery and disclosure of evidence.

ADMISSIBILITY

AND

WEIGHT

OF

EVIDENCE: GENERAL

The ICTY, unlike national courts which generally deal with single incidents, deals with incidents which cover a number of years of conflict and involve many locations and incidents. These “warcrimes” trials are long and complex and do not involve ordinary crimes but complex ones such as genocide. All this and many other features make the task of implementing justice more difficult. In a war-crimes trial, first, the prosecution must prove beyond a reasonable doubt that the crimes were committed. This may involve adducing extensive evidence and the crimes may involve numerous attacks and offences. Secondly, the prosecution may have to provide evidence relating to historical and political background, if the tribunal is not aware of or familiar with these. Thirdly, the prosecution must establish, again beyond a reasonable doubt, either by direct evidence or indirectly, a connection between the accused and the crimes. While the defence needs only to create a reasonable doubt on the case made by the prosecution and does not have to prove

when Developing Law on Evidence before the International Criminal Court”, 2 ibid. (2003) p. 373; Cryer, “Witness Evidence before International Criminal Tribunals”, 2 ibid. (2003) p. 411; Ülgen, “The ICTY and Irregular Rendition of Suspects”, 2 ibid. (2003) p. 441; Powles, “International Criminal Courts: Practice, Procedure and Problems Relating to Evidence-Privilege from Testimony at the ICTY and ICTR”, 2 ibid. (2003) p. 467.

Admissibility and Weight of Evidence: General

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anything beyond a reasonable doubt,2 to do this it may call its own witnesses or attack the credibility and reliability of the prosecution witnesses by cross-examination. The defence may also raise certain defences, such as an alibi, which, in the same way as in common law national courts, it must prove on the balance of probabilities (preponderance of evidence) and not beyond a reasonable doubt. Evidence called by the defence may be extensive. Thus, on account of the nature of the proceedings before the ICTY described above, trials may be lengthy and prolonged. To deal with this situation, inter alia, the ICTY has promulgated a set of Rules of Procedure and Evidence.3 There are some important rules relating to evidence. Most important are those relating to relevance. As was said by the court in the Aleksovski Case, the purpose of the rules of evidence which have been adopted is “to promote a fair and expeditious trial and Trial Chambers must have the flexibility to achieve this goal”.4 Moreover, because there are real difficulties of proof on account of the fact that the situation is such that evidence is generally difficult to obtain, the tribunal is called upon to establish incredible facts by means of credible testimony.5 The result is that the approach to evidence in the

Between 1994, when the first case was listed, and April 2004 there have been 82 cases on the list of the ICTY, a number of which have been disposed of by decision. Twenty cases have been decided and disposed of by the ICTR between the date of its establishment and April 2004, while a further 57 remained on the list. 2 The Delalić and Others Case, Judgment, Case No. IT-95-21-T (November 1998), para. 683. 3 As amended up to the end of 2002. See on the subject of this whole section May and Wierda, “Evidence before the ICTY”, in May et al. (eds.), op. cit. note 1 pp. 249 ff., and Boas, “Admissibility of Evidence under the Rules of Procedure and Evidence of the ICTY: Development of the ‘Flexibility’ Principle” in May et al. (eds.), ibid. pp. 263 ff. 4 Prosecutor v. Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, Case No. IT-95-14/1-AR73, A. Ch. (February 1999), para. 19. 5 Kupre·kić and Others Case, Judgement, Case No. IT-95-16-T (January 2000), para. 758.

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Statute, Rules of Procedure and Evidence6 and their interpretation is liberal and unimpeded by narrow rules found in many national legal systems, particularly common law systems. Moreover, the procedure adopted by the ICTY in relation to proof is adversarial rather than inquisitorial, as in the civil law systems. Particularly because of the absence of a jury, the judges in an ICTY trial take a more active part. There are many provisions scattered throughout the Rules which touch on evidence and proof. But it is Part Six, Section 3 (Rules 89 to 98) which deals specifically with the rules of evidence. Rule 89(B) states that In cases not otherwise provided for in this Section (Section 3 of the Rules), a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the statute and the general principles of law.

Rules 89(C) and (D) provide that the Chamber may admit any relevant evidence which it deems to have probative value and may exclude evidence, if its probative value is substantially outweighed by the need to ensure a fair trial.7 These rules pinpoint, for treatment of evidence, • • • •

a fair trial, consonance with the Statute and general principles of law, admission of relevant evidence with probative value, exclusion of evidence with probative value where such value is outweighed by the object of a fair trial.

What is of prime importance is a fair trial in the application of Rules of Evidence, while, subject to that objective, relevant evi6

For the relevant parts of the Statute and of the Rules of Procedure and Evidence see the Appendix hereto. 7 On Rules 89(C) and (D) see Sellers “Rule 89(C) and (D): At Odds or Overlapping with Rules 96 and Rule 95”, May et al. (eds.), op. cit. note 1 at pp. 275 ff. and ICTY cases there cited.


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dence with probative value may be admitted. Additionally, those Rules mandate the exclusion of evidence in certain circumstances.8 Consonance with the spirit of the Statute and general principles of law would appear to qualify admission of relevant evidence with probative value which may otherwise be admitted. While general principles of law are referred to, Rule 89A makes it quite clear that rules of evidence in national systems of law are not binding as such. Thus, what is of relevance are general principles which may be extracted from the practice in several national legal systems, if not in the majority of, or all, legal systems. On what constitutes general principles of law, Judge Stephen stated: “Where a substantial number of well-recognized legal systems adopt a particular solution to a problem it is appropriate to regard that solution as involving some quite general principle of law such as is referred to in Sub-rule 89(B).”9 If another general principle underlying Rule 89 is sought, it is the principle of la liberté de la preuve as understood in the civil law (e.g., French) system that comes to mind. It is of interest that in 1945 Articles 18–21 of the IMT for the trial of war criminals of the European Axis Powers10 provided that the tribunal should not be bound by technical rules of evidence, and should adopt and apply “to the greatest possible extent an expeditious and non-technical procedure” and “admit any evidence which it deems to be of probative value”. While by and large the adversarial system prevails in the ICTY, the rules of evidence applied by it are not those of most adversarial (common law) systems. The ICTY is not constrained by restrictive rules of such systems with regard to the admissibility of evidence and, further, may proprio motu order the

8

Rule 95 of the Rules of Procedure and Evidence. Prosecutor v. Tadić, Separate Opinion of Judge Stephen on Prosecution Motion for Production of Defence Witness Statements, Case No. IT-94-1-T (November 1996) at p. 6. 10 82 UNTS p. 284. On the “flexibility” of the rules of evidence (as in the Aleksovski Case, cited above, note 4) and its growth in international criminal law see May and Wierda, “Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha”, 37 Columbia JTL p. 729. 9

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production of new or additional evidence, not relying on the evidence placed before it by the parties.11 It may also take, and has taken, judicial notice of facts which are well known to the public and are in the public domain. In the Tadić Case the tribunal addressed the question of proof in regard to the killing of human beings. It was careful to avoid adopting a rule of evidence prevailing in some systems and applied a more general principle of law obviously prevailing in “a substantial number of well-recognized legal systems”. The tribunal said: The Trial Chamber is cognisant of the fact that during the conflict there were widespread beatings and killings and indifferent, careless and even callous treatment of the dead. Dead prisoners were buried in makeshift graves and heaps of bodies were not infrequently to be seen in the grounds of the camps. Since these were not times of normalcy, it is inappropriate to apply rules of some national systems that require the production of a body as proof to death. This the Prosecution has failed to do. Although the Defence has not raised this particular inadequacy of proof, it is incumbent upon the Trial Chamber to do so. When there is more than one conclusion reasonably open on the evidence, it is not for this Trial Chamber to draw the conclusion least favourable to the accused, which is what the Trial Chamber would be required to do in finding that any of the four prisoners died as a result of their injuries, or, indeed, that they are in fact dead.12

It was held that the prosecution had failed to prove beyond a reasonable doubt that the accused was responsible for the killings of the four prisoners. While this particular finding in the case was overruled by the Appeals Chamber, the principle stated in the citation above was not, and remains true. Though general principles of law are applied in the judicial work of the ICTY, it has made it clear also that primarily it is 11

Rule 98 of the Rules of Procedure and Evidence of the ICTY. The Tadić Case, Judgement, Case No. IT-94-1 (May 1997), para. 240 (emphasis added). 12


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bound by its own Statute and Rules and by the relevant international law which in this case is international humanitarian law. As was said by Trial Chamber III, the Trial Chamber has heard the parties regarding the applicability of common and civil law evidentiary procedures. Whilst the International Tribunal may look to municipal criminal law and procedure for assistance in its work, it is bound first and foremost by its own Statute and Rules and to (sic) international law as it applies to its particular mandate to try persons alleged to have committed serious violations of international humanitarian law.13

The Appeals Chamber has affirmed that the ICTY is not bound by national rules of evidence but applies the principle of fairness and takes a flexible approach to matters of evidence. Where a Trial Chamber had admitted a transcript of testimony given by a witness in an earlier case, the Appeals Chamber had to consider whether this was improper. It said: the Appellant refers to the sometimes elaborate rules in national jurisdictions covering the circumstances when courts are entitled to hold that witnesses are unavailable to give evidence. However, there is no reason to import such rules into the practice of the Tribunal, which is not bound by national rules of evidence. The purpose of the Rules is to promote a fair and expeditious trial, and Trial Chambers must have the flexibility to achieve this goal.14

Thus, inter alia, evidence which in some systems (common law) would not be admissible has been admitted by the ICTY. However, if the evidence is less credible or reliable, the tribunal will Prosecutor v. Kordić and Œerkez. Decision on Prosecution Application to Admit the Tulicá Report and Dossier into Evidence, Case No. IT-94-14/2 T (July 1999), para. 12. 14 Prosecutor v. Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, Case No. IT-95-14/1-AR73, A. Ch. (February 1999), para. 19. This ruling was cited with approval by Trial Chamber III in Prosecutor v. Kordić and Œerkez, loc. cit. note 13, para. 7. 13

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give it less weight, when all the evidence before it is considered. As was stated in the Bla·kić Case, evidence is admitted on a wide (extensive) basis, while questions of credibility (credibilité ) or authenticity (authenticité) are relevant to the weight ( poids) to be accorded to the evidence.15 It may be noted that the tribunal’s flexibility of approach has led to its admitting hearsay evidence,16 contrary to the common law approach and following the practice in civil law systems. For admissibility the Rules stress (i) relevance of evidence and (ii) probative value. Both conditions must be satisfied in the application of the principle of flexibility. If evidence is irrelevant it must be excluded. If it is not of probative value, though it may be relevant, it must be excluded too. Thus, in the Kupre·kić and Others Case, a case which involved conflict between Bosnian Muslims and Bosnian Croats, the Trial Chamber excluded, as irrelevant, evidence of crimes committed by the “other side”. The Trial Chamber also excluded evidence relating to the issue of which side was responsible for starting the conflict unless calling the evidence had a particular purpose relevant to the trial.17 It is also important to note that, while the cases provided a historical record of the conflict in the former Yugoslavia, the recording of history is a subsidiary effect of the trials. The emphasis and object of the trials is to determine whether the prosecution has established the guilt of the accused in each case according to the relevant standard of proof. In the Kupre·kić and Others Case, for example, the Trial Chamber referred to the vicious illustrations of man’s humanity to man in the events that occurred in Ahmići but made it a point to emphasize that

15

The Bla·kić Case, Judgement, Case No. IT-95-14-T (March 2000), para. 34. 16 See Section (2) below. 17 Prosecutor v. Kupre·kić and Others, Decision on Evidence of the Good Character of the Accused and the Defence of Tu Quoque, Case No. IT-95-16-T (February 1999). See also Prosecutor v. Delalić and Others, Decision on Request of Accused Hazim Delić Pursuant to Rule 68 for Exculpatory Information, Case No. IT-96-21-T (June 1997).


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the primary task of this Trial Chamber was not to construct an historical record of modern human errors in Bosnia and Herzegovina. The principal duty of the Trial Chamber was simply to decide whether the six defendants standing trial were guilty of partaking in this persecutory violence or whether they were, instead, extraneous to it and hence, not guilty.18

That a piece of evidence is relevant to the prosecution’s case is inadequate for it to be admitted unless it is of probative value. Probative value clearly is different from proof of the case beyond a reasonable doubt. A lesser test is applicable. It is sufficient, if the evidence may contribute with other evidence to a conclusion which is beyond a reasonable doubt. The ICTY has not had to explain what is meant by “probative value”. However, the above explanation is reasonable. (a) Direct evidence Article 90 of the Rules of Procedure and Evidence provides that “witnesses shall, in principle, be heard directly by the Chambers”. Apart from that, which indicates that live evidence is acceptable and that it must, as far as possible, be given before the Chambers, there is no provision for the various types of evidence which are admissible. However, there is no reason why other forms of evidence, e.g., documentary evidence or maps, may not be admissible. The Trial Chamber in the Tadić Case explained why reliance was placed on live evidence: The physical presence of a witness at the seat of the International Tribunal enables the Judges to evaluate the credibility of a person giving evidence in the courtroom. Moreover, it may help discourage the witness from giving false testimony.19 18

Kupre·kić and Others Case, Judgement, loc. cit. note 5, paras. 755–6. Prosecutor v. Tadić, Decision on the Defence Motions to Summon and Protect Witnesses and on the Giving of Evidence by Video-Link, Case No. IT94-1-T (June 1996), para. 11. 19

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Such evidence does not in principle require corroboration. In the Aleksovski Case, the Appeals Chamber held that the Trial Chamber had not erred in convicting the accused of physically mistreating certain witnesses on the basis of their own evidence of their injuries and in the absence of medical reports or other scientific evidence.20 However, the ICTY has been cautious in relying on some forms of direct evidence such as identification evidence. 21 Witness identification of the accused in the dock (in the courtroom) has been permitted. A Trial Chamber stated that little weight should be placed on such identification as such and that it would assess the credibility of each witness so identifying the accused.22 For example, in the Kupre·kić and Others Case,23 identification evidence was important. The six accused were local Bosnian Croats charged with participating in an attack on their neighbours who were Bosnian Muslims. Many saw the attack but only a few eye-witnesses could testify on the part played by the accused in the attack. In the case against one of the accused, Dragan Papić, a witness testified that some days after the massacre in Ahmići he had met a man who called himself “Dragan” and carried an AK47 rifle, and that the man indicated by drawing his hand across his throat that he had killed 32 Muslims. The witness subsequently identified the accused in court, stating that “When someone tells you they have killed 32 people, you don’t forget their face in a hurry”. The Trial Chamber held that there was doubt as to whether the witness identified the correct man in court as long as five years after the event, that, therefore, there was reasonable doubt as to whether Dragan Papić participated in the conflict that day, and acquitted him. In the case of another accused the Trial Chamber heard expert evidence on the effect of 20

The Aleksovski Case, Judgement, Case No. IT-95-14/A-A, Ap. Ch. (March 2000), paras. 62–4. 21 The Aleksovski Case, Judgement, ibid. 22 Prosecutor v. Jelisić, Decision on the Motion Concerning Identification Evidence, Case No. IT-95-10-T (December 1998). 23 The Kupre·kić and Others Case, Judgement, loc. cit. note 5.


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distance on identification. A witness had identified the accused as present in a group which was firing on him and his relatives from 50 or 60 meters away. On the basis of expert evidence by a professor of experimental psychology called by the defence as to how distance affected identification the Trial Chamber concluded that “in the absence of confirmation of the correctness of this identification, the Trial Chamber is not able to be sure that it is correct. Accordingly, the allegation that Vlatko Kupre·kić was present when these crimes were committed is not made out.”24 Rule 71bis provides for the use, at the request of either party, of a video-conference link for evidence, provided it is in the interests of justice. This provision helps to expedite trials and is based on flexibility. It is usually appropriate for evidence on the background of the conflict or for evidence which is undisputed or corroborative. (b) Indirect evidence Many cases depend on indirect or circumstantial evidence which is admissible. For instance, in order to prove command responsibility Article 7(3) of the Statute requires the prosecution to establish that a commander “knew or had reason to know that the subordinate was about to commit [crimes] or had done so and the superior failed to take the necessary and reasonable measures to prevent the acts or to punish the perpetrators”. A Trial Chamber held that the required mental element (mens rea) of the accused in such cases can be inferred from the general circumstances, though it “cannot be presumed, but must be established by way of circumstantial evidence”.25 Further, the ICTY has admitted forms of indirect evidence alternative to both direct evidence and circumstantial evidence. These involve hearsay. The object is to expedite trials. Such alternative forms include documentary evidence (including transcripts from related trials and affidavits), depositions and compilations of 24 25

Ibid., para. 469. Delalić and Others Case, Judgement, loc. cit. note 2, para. 386.

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evidence by experts. This last form of evidence in a criminal trial, namely, compilations by experts, seems to be peculiar to the ICTY and ICTR, there being no equivalent in national criminal procedure. (c) Specific exclusions Rule 95 states two grounds on which evidence may be excluded by the tribunal. It reads: No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage the integrity of the proceedings.

It may be noted that the original version of Rule 95 excluded evidence obtained directly or indirectly by means that constituted a violation of internationally protected human rights, but was amended to “broaden the rights of suspects and accused persons”.26 Under this Rule, for example, the admissibility of evidence captured in an armed search and seizure operation27 and transcripts derived from irregular investigation procedures28 have been challenged by the accused. However, in the interests of justice evidence obtained by a mere breach in the procedural rules of the tribunal has been unsuccessfully challenged under the Rule and held to be admissible.29 The Delalić Case is important for its application of Rule 95. The following analysis of the application of Rule 95 as a result

26

On this rule see Sellers, loc. cit. note 7. Prosecutor v. Kordić and Œerkez, Decision Stating Reasons for Trial Chambers Ruling of 1 June 1999 Rejecting Defence Motion to Suppress Evidence, Case No. IT-95-14/2-T (June 1999) at pp. 3–5. 28 Prosecutor v. Delalić and Others, Decision on the Motion for the Exclusion of Evidence and Restitution of Evidence by the Accused Zejnil Delalić, Case No. IT-96-21-T (September 1997), para. 45. 29 Prosecutor v. Delalić and Others, Decision on the Tendering of Prosecution Exhibits 104–108, Case No. IT-96-21-T (February 1998), para. 20. 27


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of a procedural decision in that case and otherwise has been made: The Delalić ruling that granted an accused’s motion to exclude statements elicited contrary to ICTY Rule 42 delineated the tenets of Rule 95.30 Reliability, the golden thread coursing through relevant and probative evidence, is subjected to further tests under Rule 95. While Rule 89 focuses upon reliability to determine whether evidence is relevant and probative in and of itself, Rule 95 scrutinises reliability to determine the source and circumstances that produced the evidence. “For evidence to be reliable, it must be [. . .] obtained under circumstances which cast no doubt on its nature and character.”31 A torture-extracted confession would be excluded under Rule 95 because the method used to obtain the statement destroys its fundamental reliability. Rule 95 excludes the evidence because of its source. Rule 95 also excludes evidence to preserve the integrity of the proceeding. The Delalić Chamber further held that certain fair trial rights as understood by international and regional conventions are incorporated into Rule 42. Violation of an accused’s rights under Rule 42 finds recourse under Rule 95,32 therefore, clearly, standards of fair trial are subsumed within the phrase, integrity of the proceedings.33 Independent of “source reliability”, the admission of evidence extracted by confession would be antithetical to the integrity of the Tribunal proceedings.34 To “admit” evidence of the

30

Prosecutor v. Delalić and Others Decision on Zdravko Mucić’s Motion for the Exclusion of Evidence, Case No. IT-96-21-T (September 1997), para. 55. The ICTY Rule 42 embodies the rights of a suspect during investigation. 31 Ibid., para. 41. 32 Ibid., para. 43. 33 Prosecutor v. Barayagwiza, Decision, Case No. ICTR-97-19-AR72, A. Ch. (November 1999), paras. 73, 108. 34 Preservation of the integrity of the proceedings is not limited to the introduction of evidence, but applies to the transfer, pre-trial detention, conveyance of indictment to an accused and scheduling of initial appearance. It appears that the integrity of proceedings can be seriously damaged separately or jointly by any of the three organs of the tribunal, namely trial chambers, the Appeals Chamber and the Registry.

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Chapter 15. Special Aspects of Evidence before the ICTY accused’s statement under Rule 95, the Chamber held that the prosecution would have to prove “convincingly and beyond a reasonable doubt” the voluntary character of the statements.35 The Trial Chamber’s admissibility test imposed the same burden of proof as that required in proving the elements of a crime. This test is plainly higher than and at odds with the Rule 89(C) admissibility thresholds. The Delalić Chamber then, in a noteworthy conclusion, said that, “[w]e read Rule 95 as a summary of the provisions in the Rules which enable exclusion of evidence [. . .] We regard it as a residual exclusionary provision”.36 Rule 95 is thus a repository of all the provisions that enable exclusion, or the author suggests, that narrow admissibility under the Rules.”37

Rule 96(i) does not require corroboration of the victim’s testimony. Rule 96(ii) deals with consent as a defence in sexual assault cases and strictly does not impinge on evidence,38 but relates to the substantive law.

ADMISSIBILITY

AND

WEIGHT

OF

EVIDENCE: HEARSAY

Hearsay for the law of evidence in a national common law system has been defined as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”.39 The statement may be oral, written, or even consist in non-verbal conduct intended as a statement. Hearsay may cover any written document, including expert reports, transcripts from related trials, affidavits, depositions and official documents, which is not adduced by its author while testifying, as well as any behaviour 35

Supra note 30, para. 41. Ibid., paras. 43 and 44. 37 Sellers, loc. cit. note 7 at p. 289. Footnote numbers in the original text have been changed. Footnotes are cited above as in Sellers’ text. 38 On Rule 96(1) to (10) see Sellers, loc. cit. note 7 at pp. 279–88. 39 Black’s Law Dictionary – the title “Hearsay”. 36

Admissibility and Weight of Evidence: Hearsay

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carried out and words uttered by a person other than the witness who reports them in court to establish the truth of the matter. Hearsay has been defined by the ICTY Appeals Chamber as the “statement of a person made otherwise than in the proceedings in which it is being tendered in those proceedings in order to establish the truth of what the person says”.40 Documents are liberally admitted. Factors such as authenticity and proof of ownership are generally of greater significance in relation to the weight to be attributed to evidence rather than their admissibility. In the Delalić and Others Case it was said that the threshold for admission of documents should not be excessively high, as often documents are not the ultimate proof of guilt or innocence, but merely shed light on the context in which the crimes occurred.41 However, there are occasions where the case for the prosecution may depend substantially on documents, for instance, if they are orders to attack. In the Bla·kić Case several such orders issued by the accused before an attack on Ahmići were entered into evidence.42 In the common law systems, because of the adversarial nature of the trial and the intervention of the jury in the factual findings and the application of the law which the judge cannot control, judges exert some preliminary control of evidence by using rules governing admissibility of evidence. A reason for the exclusion of hearsay evidence is that the opposing party does not have the 40

Prosecutor v. Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, Case No. IT-95-14/1-AR73, A. Ch. (February 1999), para. 27. Hearsay evidence in the jurisprudence of the ICTY is described and discussed extensively in May and Wierda, “Evidence before the ICTY”, in May et al. (eds.), op. cit. note 1 at pp. 256 ff.; Boas, “Admissibility of Evidence under the Rules of Procedure and Evidence of the ICTY: Development of the Flexibility Principle”, in May et al. (eds.), ibid. at pp. 269 ff.; Rodrigues and Tournaye, “Hearsay Evidence”, in May et al. (eds.), ibid. pp. 291 ff. 41 Prosecutor v. Delalić and Others, Decision on Motion of Prosecution for Admissibility of Evidence, Case No. IT-96-21-T (January 1998). 42 The Bla·kić Case, Judgement, loc. cit. note 15. In May and Wierda, loc. cit. note 40 at pp. 259 ff., the subject of hearsay evidence has been carefully examined.

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opportunity to cross-examine the declarant. In a system where presentation of evidence is in the hands of the parties, crossexamination by the opposing party is the main tool available to test reliability of evidence. The right of confrontation is thus considered of the utmost importance to a fair trial and one of the main principles underlying the rules regulating admission. Further, general admission of such evidence would lead to a proliferation of evidence directed to proving or negating the hearsay rather than being directly relevant to the case in hand. To admit hearsay is, thus, seen to threaten the right to a fair and expeditious trial. (a) Admission and exclusion of hearsay: different kinds of hearsay There is no reason for the ICTY to be bound by such rules of common law systems as those which require all exhibits to be produced by a witness and exclusion of hearsay, partly because the judges determine the facts. The practice has developed in the ICTY of allowing the admission of documents and other exhibits without entering them through the intermediary of a witness. In the Bla·kić Case this procedure was adopted on the grounds that the Trial Chamber, composed of professional judges, was able to assess the evidence and accord it its proper weight in the light of all the evidence presented during the trial. When this procedure is used, limited use is made of calling witnesses purely for the submission of documents, thus expediting the trial, while respecting the equitable character of the proceeding and contributing to the evocation of the truth.43 The Trial Chamber in the Kordić and Œerkez Case44 accepted numerous exhibits without the intermediary of a witness, including a number of “village binders” and materials on the character

43

The Bla·kić Case, Judgement, ibid. para. 35. Prosecutor v. Kordić and Œerkez, Decision on the Prosecution Application to Admit the Tulića Report and Dossier into Evidence, Case No. IT-95-14/2-T (July 1999). 44


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of the conflict. The prosecution submitted a “dossier’ relating to an attack on a particular village. The dossier contained a variety of materials, including maps, videos, witness statements, transcripts, exhumation reports and photographs. It also contained the report of an investigator who had compiled these materials. In regard to this report the Trial Chamber held that “the investigator is not reporting as a contemporaneous witness of fact, he has only recently collated statements and other materials” and, therefore, could in reality only give evidence that material was or was not in the dossier.45 The Trial Chamber concluded that it would not be assisted by the report and excluded it. The Trial Chamber also excluded witness statements, on the ground that they lacked probative value, while drawing attention to the procedure available under Rule 94ter, which provided for the admissibility of affidavits or formal statements. On the other hand, the Trial Chamber admitted transcripts from related cases. This was consistent with a decision in the Aleksovski Case, where the Appeals Chamber held that hearsay in the form of a transcript of the evidence of a witness, together with a video recording of the evidence and accompanying exhibits, was admissible. The Appeals Chamber also stated that the fact remains that, if the evidence is admitted on a hearsay basis, this accused will be denied the opportunity of cross-examining the witness. However, this is the case with the admission of any hearsay evidence: the opposing party loses the opportunity to crossexamine the witness. The disadvantage is tempered in this case by the cross-examination in Bla·kić.46

The Trial Chamber in the Kordić and Œerkez Case later admitted around 40 transcripts, most of them from the related Bla·kić Case. Most of these related to background issues such as attacks on

45

Ibid. para. 20. Prosecutor v. Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, supra note 40 para. 14. 46

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particular villages. Defence objections relating to hearsay, speculation by the witnesses, inconsistency of the evidence, and relevance were deemed to go to the weight of the evidence rather than providing grounds for exclusion. However, certain transcripts were excluded on the grounds that they were repetitive of testimony already heard. Where the transcript related directly to the accused, the Trial Chamber determined that the witness should be called.47 The remaining materials, including documentary evidence, photographs, and exhumation reports were also admitted. Rules of the ICTY have always provided for evidence to be given by way of deposition. As originally drafted, Rule 71 provided that depositions could only be taken in exceptional circumstances and in the interests of justice. In fact Trial Chambers began making use of this Rule when one of their number was temporarily indisposed through illness, holding that this was an “exceptional circumstance”, so as not to delay the trial. On the other hand, the Appeals Chamber has stated that the Rule must be construed strictly and in accordance with its original purpose of providing an exception to the general rule that witnesses be heard directly by the Trial Chamber.48 This restriction has not prevented the use of the Rule to allow for the taking of deposition evidence in other cases where both parties have given their consent to this course. For instance, in one case a Trial Chamber ordered depositions to be taken from around 70 witnesses by a Presiding Officer, noting that “exceptional circumstances exist to warrant the use of deposition evidence under Rule 71, namely, the length of pretrial detention of the accused and the complexity of the cases currently assigned to this Trial Chamber, which precludes it from setting a date for trial for the commencement

Prosecutor v. Kordić and Œerkez, Case No. IT-95-14/2-T (February 2000) at pp. 14612–21 (Transcript). 48 Prosecutor v. Kupre·kić and Others, Decision on Appeal by Dragan Papić against Ruling to Proceed by Deposition, Case No. IT-95-16-AR73.3, A. Ch. (July l999). 47


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of this trial.”49 The parties agreed to the witnesses as they were not critical but would testify to the background of the case. Now, the Rule has been amended to make it more flexible and to serve the purpose of expediting trials. The need to demonstrate exceptional circumstances has been removed, but it must still be in the interests of justice to order the taking of depositions. Depositions may now be taken either at the seat of, or away from, the tribunal and may be initiated by a party or by the Trial Chamber acting proprio motu. The witness is subject to examination and cross-examination by the parties under a Presiding Officer who must ensure that the deposition is taken in accordance with the Rules. Whether the evidence is admissible or not is a matter for the Trial Chamber to decide. Depositions may be a useful means of recording evidence in particular relating to the background and context of the crimes. This process can take place prior to, or simultaneously with, the trial, thus, expediting the proceedings and allowing the Trial Chamber to review the evidence without having to convene. The Prosecution has on occasion called a witness who has studied the conflict and compiled a report and who is, thus, able to give an overview. The practice has generally been to admit such reports if they deal with general events and assist the Trial Chamber. They have normally been excluded, where they draw conclusions about the role of the accused, or generally fail to assist the Trial Chamber. The Trial Chamber has admitted as evidence a report on the basis that the author was an expert who had made a study of the material and was qualified to give evidence about it, her status being analogous to that of a contemporary historian. The Trial Chamber stated that it recognized that the evidence was hearsay and that the defence would not be able to cross-examine the makers of the witness statements and that, therefore, there was

49

See Prosecutor v. Kvoœka and Others, Decision to Proceed by Way of Deposition Pursuant to Rule 71, Case No. IT-98-30-PT (November 1999). On depositions see May and Wierda, loc. cit. note 3 at pp. 259–60.

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no question of the defendant being convicted on any count based on this evidence alone but that other evidence would be required.50 In another case the prosecution sought to call as an expert a political and military analyst of the conflict in Bosnia-Herzegovina. He had written a report that the prosecution sought to introduce as his examination-in-chief. In the report the witness made direct references to the accused, drawing conclusions about his responsibility as a civilian and military superior. The Trial Chamber excluded the evidence on the basis that the witness indeed was drawing conclusions on the very matters upon which the Trial Chamber was required to rule, thus, invading its province. It also found that the witness’ evidence would not assist it in this task.51 (b) The tribunal’s treatment of hearsay evidence: admissibility and weight In both the Tadić Case 52 and the Bla·kić Case the defence objected to the unlimited admission of hearsay evidence. None of its arguments however contended that hearsay should be inadmissible as a matter of principle. Rather, it was requested that the trial judges should follow specific procedural steps in order to ensure that the statements admitted were reliable. Both motions claimed that to admit hearsay statements without further safeguards would “deprive the Defence of any ability to investigate the statements in issue and meaningfully challenge the credibility of the out-ofcourt declarant”,53 this would amount to a violation of the right

50

Prosecutor v. Kovaœević, Case No. IT-97-24-T (July 1998) at pp. 71 ff. On compilation by experts see May and Wierda, loc. cit. note 3 at pp. 260–1. 51 Prosecutor v. Kordić and Œerkez, Case No. IT-95-14/2-T (January 2000). 52 Prosecutor v. Tadić, Decision on the Defence Motion on Hearsay, Case No. IT-94-I-T (August 1996); hereinafter referred to as the “Tadić Decision”. On this subsection (b) see Rodriguez and Tournaye, loc. cit. note 40 at pp. 297–301. 53 Prosecutor v. Bla·kić, Defense’s reply to Prosecutor’s Response to the Defence’s Standing Objection to the Admission of Hearsay with no Founda-


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of the accused to cross-examine the declarant provided in Article 21(4)(e) of the Statute. The defence in the Tadić Case requested that the Chamber decide on admissibility before hearing the content of the out of court statement and on the sole basis of the circumstances under which the evidence was received. Likewise, the defence in the Bla·kić Case contended, inter alia, that the Trial Chamber should exclude hearsay statements that are not prima facie reliable or whose admission would be procedurally unfair to the accused, e.g., in a case where it has not been shown that the original declarant is unavailable to testify.54 Both Trial Chambers first asserted that the admission of hearsay evidence was not excluded by the Statute or the ICTY Rules. With respect to the Statute, Trial Chamber I (the Bla·kić Case) specified that “the right to cross-examination guaranteed by Article 21(4)(e) of the Statute applies to the witness testifying before the Trial Chamber and not to the initial declarant whose statement had been transmitted to this Trial Chamber by the witness”.55 Secondly, both Chambers further noted that the only provision dealing with admission of evidence in the ICTY Rules, namely Rule 89(C), did not exclude hearsay evidence as a matter of principle. They concluded that hearsay should not be treated any differently from other types of evidence and was admissible, subject to its relevance and probative value, as set forth in Rule 89(C) of the ICTY Rules.56 Thirdly, both Trial Chambers also concurred in finding that no further procedural safeguards were necessary to ensure that

tional Requirements and with no Inquiry as to its Reliability, Case No. IT-9514-1 (November 1997) at p. 3. 54 Prosecutor v. Bla·kić, ibid. at pp. 3, 5. 55 Prosecutor v. Bla·kić, Decision on Standing Objection of the Defence to the Admission of Hearsay with no Inquiry as to its Reliability, Case No. IT-95-14-T (January 1998), para. 12; hereinafter referred to as the “Bla·kić Decision”. 56 Tadić Decision, para. 7; Bla·kić Decision, para. 9.

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the reliability of hearsay statements would be properly assessed. Trial Chamber II (Tadić Decision) rejected the procedure suggested by the defence on the ground that, “while possibly appropriate if trials before the international Tribunal were conducted before a jury, [it was] not warranted [in these cases] for the trials are conducted by Judges who are able, by virtue of their training and experience, to hear the evidence in the context in which it was obtained and accord it appropriate weight”. 57 Likewise, Trial Chamber I stated that it would be for the parties in a particular case to determine what elements should be presented in order for the Chamber properly to assess the reliability of the particular item of evidence.58 Fourth, both Chambers additionally referred to Rule 89(D) under which “a Chamber may exclude any relevant evidence if its probative value is substantially outweighed by the need to ensure a fair trial”. They found that this provision allowed the defence “to demonstrate that a hearsay testimony which was declared admissible must, in the end, be excluded because its probative value is insufficient”.59 The defence was, thus, free to adduce further evidence intended to challenge the credibility of the declarant or the content his or her statement. The Appeals Chamber confirmed this position in its decision in the Aleksovski Case60 when it was seized by the prosecutor on the question as to whether a Trial Chamber could admit as evidence the transcript of the testimony given by a witness in another related case before the tribunal. The Trial Chamber admitted as evidence the transcript of a testimony heard in the Bla·kić Case, on the ground that: (i) the evidence in question had indisputable probative value; (ii) the situation was exceptional as the witness concerned was not available to testify until later in 57

Tadić Decision, para. 17. Bla·kić Decision, para. 14. 59 Bla·kić Decision, para. 14; Tadić Decision, para. 18. 60 Prosecutor v. Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, Case No. IT-95-14/1-AR73, A. Ch. (February 1999); hereinafter referred to as the “Aleksovski Decision”. 58


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the year and the trial was at its final stage (to request appearance of the witness would have unduly delayed the proceedings); and (iii) the right of the opposing party to cross-examine the witness was not infringed as the office of the prosecutor was one single entity and had already had the opportunity to cross-examine the witness in the context of another proceeding.61 The Appeals Chamber first noted that transcripts coming from other ongoing proceedings before the tribunal qualified as hearsay evidence. It then stated that it is well settled in the practice of the Tribunal that hearsay is admissible. Thus relevant out-of-court statements which a Trial Chamber considers probative are admissible under Rule 89(C).62

The Appeals Chamber did not add any further condition to the requirement of relevance and probative value. In particular, it rejected the argument submitted by the appellant pursuant to which hearsay evidence should be admitted, only if the declarant is unavailable. Following the arguments previously presented by the defence in other cases, the prosecutor claimed that Rule 90(A) set out the principle of oral and direct examination and that, accordingly, indirect evidence was admissible, only if it was proven that direct evidence could not obtained. The Appeals Chamber rejected this interpretation, with one judge dissenting. It considered that Rule 90(A) was not intended to establish a preference for direct and oral evidence but rather dealt with technicalities relating to reception of testimony; Rule 90(A) did not in itself prevent the Trial Chamber from admitting derivative evidence that would meet the requirements of Rule 89(C); an out-of-court statement made by a person, who was available to testify in person, was admissible if the Trial Chamber decides, in its discretion, that it is relevant and of sufficient probative value, pursuant

61

Prosecutor v. Aleksovski, Decision Granting for the Admission of Evidence, Case No. IT-95-14/1-T (October 1998). 62 Aleksovski Decision, para. 15.

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to Rule 89(C); under those circumstances, the Trial Chamber could either order the witness to testify before it or admit the hearsay statement under Rule 89(C). The Appeals Chamber further said that “the Trial Chamber was entitled to take account of the stage of the trial, the length of time the accused had been in custody and its finding that the witness was not immediately available in exercising its discretion to admit the evidence”.63 As for the right to confront witnesses, the Appeals Chamber, noting the common interest shared by the parties in both cases (the Aleksovski Case and the Bla·kić Case), stated that the need for the prosecutor or the defence to cross-examine a witness already subjected to cross-examination in the previous case on the same issue, did not arise; therefore the transcript of that testimony could be admitted as evidence.64 Thus, trial judges have a very broad discretion to decide on the admission of hearsay statements. They have invoked this discretion in different ways, depending in reality on the legal tradition from which they come. Trial Chamber I tended to adopt a civil law approach: reliability cannot be properly assessed at the stage of admissibility and is rather considered at the stage of weighing all the evidence presented. In the Bla·kić Decision, Trial Chamber I indicated that “the absence of cross-examination is not related to admissibility but to the weight given to the evidence”, an evaluation that “can logically be made only a posteriori once the Parties have presented all their claims.”65 Likewise, Trial Chamber Ibis specified in the Aleksovski Case that the question of weight of the evidence will be settled “at the close of trial”, taking into account “all the evidence in their possession and the manner it was presented to them”.66 This position was reasserted in the Bla·kić

63

Aleksovski Decision, para. 19. Aleksovski Decision, para. 27. 65 Bla·kić Decision, paras. 11 and 13. 66 Prosecutor v. Aleksovski, Decision Granting for the Admission of Evidence, Case No. IT-95-14/1-T (October 1998) at p. 4. 64


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Case where the Trial Chamber said: “the principle embodied by the case-law of the Trial Chamber on the issue is the one of extensive admissibility of evidence – questions of credibility or authenticity being determined according to the weight given to each of the materials by the Judges at the appropriate time”.67 It further specified that “Sub-rule 89(C) of the Rules authorises the Trial Chamber to receive any relevant evidence which it deems has probative value and . . . the indirect nature of the testimony depends on the weight which the Judges give to it and not its admissibility”.68 Trial Chambers II and III on the other hand have adopted a common-law approach. In the Tadić Decision, Trial Chamber II found that the hearsay nature of the evidence should be considered at the stage of admissibility, as one element that impacts upon its reliability. Hence reliability was found by Trial Chamber II to be one element to consider in assessing the probative value.69 In doing so, Trial Chamber II acknowledged that reliability could be evaluated a priori and that a hearsay statement could be excluded at the stage of admission for lack of probative value. Trial Chamber III, in the Kordić and Œerkez Case, followed this approach.70 It considered “each category of material submitted by the Prosecution for admission into evidence”71 and inquired a priori whether, for each of them, there was enough guarantee that the reliability of the information so tendered would be properly debated at trial, notably through cross-examination. This reasoning led the Chamber to reject as inadmissible some hearsay evidence for lack of probative value. The prosecutor intended to adduce, through an investigator from the Office of the Prosecutor, a dossier of documentary evidence 67

Prosecutor v. Bla·kić, Judgement, Case No. IT-95-14-T (March 2000), para. 34; hereinafter referred to as the Bla·kić Judgement. 68 Ibid., para. 36. 69 Tadić Decision, paras. 9, 15 and 16. 70 Prosecutor v. Kordić and Œerkez, Decision on the Prosecution Application to Admit the Tulića Report and Dossier into Evidence, Case No. IT-9514/2-T (July 1999). 71 Ibid., para. 13.

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including maps, video footage, witness statements, court transcripts, exhumation documents and photographs, as well as a report prepared by the investigator that summarised the evidence contained in the dossier. With regard to the report, the prosecutor claimed that it was admissible hearsay and would not violate Article 21(4)(e), because the defence would have the opportunity to cross-examine the investigator. Trial Chamber III considered, however, that cross-examination of the investigator could not provide the Court with any proper indication as to the reliability of the material contained in the report. The investigator had been neither a contemporary witness of fact nor heard the witnesses himself. The report thus amounted to second-hand or third-hand hearsay whose reliability could not be properly tested by cross-examination. The report was rejected as inadmissible for lack of probative value. The Chamber also rejected the admission of seven witness statements contained in the dossier, on the ground that, although admissible under Rule 89(C), “it would amount to a wholesale admission of hearsay untested by cross-examination . . . and would be of no probative value”.72 Except for one witness who had already testified in the Kordić and Œerkez Case, testimony of witnesses received in a related case, namely the Bla·kić Case, was found admissible.73 Following the Appeals Chamber’s Aleksovski Decision, it considered that cross-examination by the defence in the Bla·kić Case, “a case in which the Defence have a common interest with the Defence in this case”, was sufficient to meet the right of the accused to confront witnesses.74 The Chamber, nevertheless, added that the defence could apply for cross-examination of the witnesses concerned, if it deemed that matters relevant to this

72 73 74

Ibid., para. 23. Ibid., para. 26. Ibid., para. 28.

Protection of Victims and Witnesses

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case had not been covered by cross-examination in the Bla·kić Case.

PROTECTION

OF

VICTIMS

AND

WITNESSES

The ICTY Statute in Article 20 refers to the right of the accused to a fair and expeditious trial. The Statute also in both Articles 20 and 22 recognizes that victims and witnesses need protection. The manner and sequence in which these elements are presented places emphasis on the former right, as one that must be fully respected, while the latter necessity requires due regard to be paid to it. There are two interests to be considered, as has been stated earlier: the interest of the accused and the interest of the international community as represented by the prosecutor. The latter interests are in a fair and just trial, just as much as the interests of the accused are in a fair and just trial. The protection of witnesses and victims is sought, potentially by both parties, in order to ensure a fair trial, not as an end in itself. If protection is not given, witnesses may refuse to appear or even perjure themselves for fear of reprisals, which would interfere with the fairness of the trial. But in any given situation this interest must be balanced with the interest of the accused in being treated fairly at trial, with a certain priority being given to the latter interest. The special situation which arises in the case of prosecutions before the ICTY is that a large number of witnesses testifying before the tribunals were victims of crimes similar to those for which the accused are being prosecuted. Many witnesses were themselves driven from their homes and subjected to torture, rape or other forms of inhuman treatment. Others saw their family, friends or close relatives being mistreated and killed. These facts and their elaboration are notorious and part of the public domain, such that the ICTY could take judicial notice of them in applying the law of evidence in cases before them. Consequently, there should be no need for witnesses who testify before the tribunal to justify their fears or to provide evidence of

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the dangers they face, if they testify. Thus, judges may assume that the fears of, and danger to, the witnesses are well founded. The conflict in the former Yugoslavia,75 in which the atrocities which are the subject of the trials at the tribunal took place, was a conflict between basically three ethnic or religious groups: the Serbs, the Croats and the Muslims. Although the armed conflict in the former Yugoslavia has come to an end, there is still much tension, bitterness and hatred in the region. The bitterness of the peoples of the region follows ethnic lines. Witnesses testifying before the tribunal are, in the main, survivors of these atrocities. In most of the trials witnesses belong to a different religious or ethnic group from that of the accused. The aim of the testimony of a witness is to prove that the accused committed the crimes with which he is charged. As a result of the lingering animosities between the various ethnic groups, not only the witness, but also his or her family, and in some cases, a whole community may be the object of acts of revenge, not only from the accused himself, but also from other individuals belonging to his ethnic or religious group who are interested in his welfare and are opposed to his being prosecuted. After their appearance before the tribunal, most witnesses return to the former Yugoslavia. The need for protection of the witnesses is therefore very real, especially after the witness’ appearance before that tribunal. The fact that there have been reports of cases where witnesses have been threatened proves that the fear of the witnesses is well founded. The higher an accused was in the hierarchy during the conflict in the former Yugoslavia, the greater is the danger for the

75

See Prosecutor v. Tadić , Decision on Appellant’s Motion for the Extension of the Time-limit and Admission of Additional Evidence, Case No. IT-94-1-A, A. Ch. (October 1998), para. 9, and Prosecutor v. Tadić, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, Case No. IT-94-1-T (August 1995) for much of the factual situation. For the description of the situation given here see Mumba, “Ensuring a Fair Trial Whilst Protecting Victims and Witnesses – Balancing of Interests”, in May et al. (eds.), op. cit. note 3 at p. 360.


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witnesses who testify against him, as more individuals will care about the welfare of the accused. The need for protecting the witness and his identity for reasons of security is, therefore, in general, greater in cases where the accused held a high position in the former Yugoslavia. The measures of protection available to the tribunal are limited generally to the time before and during the appearance of the witness at the trial before the tribunal. These measures are aimed to a great extent at reducing the risks to his or her safety after returning to his or her country of residence.76 In the Tadić Case, the first case before the tribunal, the issue of the protection of witnesses arose. Five categories of protective measures were in issue: (i) those seeking anonymity, whereby the victims and witnesses would not be identified to the accused; (ii) those seeking confidentiality, whereby the victims and witnesses would not be identified to the public and the media; (iii) those seeking protection from retraumatisation by avoiding confrontation with the accused; (iv) miscellaneous measures for certain victims and witnesses; and (v) general measures for all victims and witnesses who may testify before the tribunal in the future.77 Anonymity has for its purpose the protection of the safety of a witness, while confidentiality is aimed at protecting both his safety and his privacy. Protection of privacy is particularly important in rape and sexual assault offences, where the news that a witness was raped or sexually assaulted would cause him or her hardship in the home community. This could happen in many communities and in particular the Moslem community. Any measures taken in the interests of witnesses must take account of the rights and interests of the accused. Judge Stephen stated the problem as “how to respond to the very natural

76

See Rydberg, “The Protection of the Interests of Witnesses in the ICTY in Comparison to the Future ICC” 12 Leiden JIL (1999) at p. 470. 77 Prosecutor v. Tadić, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, Case No. IT-94-1-T (August 1995).

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concern of witnesses while at the same time according justice to the accused and ensuring a fair trial”.78 The rights of the accused are referred to, as already seen, in the ICTY Statute (Articles 20 and 21). There are human rights instruments such as the ICCPR (Article 14) and European Convention on Human Rights (Article 6) which also refer to it. As the tribunal stated in dealing with the question whether the tribunal was bound by the interpretation of such provisions by other judicial bodies, Although Article 14 of the ICCPR was the source for Article 21 of the Statute, the terms of that provision must be interpreted within the context of the “object and purpose” and unique characteristics of the Statute. Among those unique considerations is the affirmative obligation to protect victims and witnesses . . . This affirmative obligation to provide protection to victims and witnesses must be considered when interpreting the provisions of the Statute and Rules of the International Tribunal. In this regard it is also relevant that the International Tribunal is operating in the midst of a continuing conflict and is without a police force or witness protection program to provide protection for victims and witnesses. These considerations are unique: neither Article 14 of the ICCPR nor Article 6 of the European Convention on Human Rights (“ECHR”), which concerns the rights to a fair trial, list the protection of victims and witnesses as one of its primary considerations. As such, the interpretation given by other judicial bodies to Article 14 of the ICCPR and Article 6 of the ECHR is only of limited relevance in applying the provisions of the Statute and Rules of the International Tribunal, as these bodies interpret their provisions in the context of their legal framework, which do not contain the same considerations. In interpreting the provisions which are applicable to the International Tribunal and determining where the balance lies between the accused’s right to a fair and public trial and the protection of victims and witnesses, the Judges of the International

78

Prosecutor v. Tadić, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, ibid. at p. 2.


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Tribunal must do so within the context of its own unique legal framework.79

Somewhat in contrast the Trial Chamber in the Delalić Case said: decisions on the provisions of the International Covenant on Civil and Political Rights (“ICCPR”) and the European Convention on Human Rights (“ECHR”) have been found to be authoritative and applicable. This approach is consistent with the view of the Secretary General that many of the provisions in the Statute are formulations based upon provisions found in existing international instruments.80

It is clear that the decisions on the human rights instruments are relevant to the work of the ICTY. However, the consideration is also relevant that the ICTY is faced with a very special, if not unique, factual situation with which those decisions have not dealt. Thus, in the application of the principle of a fair trial for the accused which is to be found in the human rights instruments, the particular modifying provisions of the ICTY Statute and Rules conceptually and contextually directed at fairness for both parties to the litigation must be taken into account. These provisions (Articles 20 and 22 of the Statute and Rule 75) require that victims and witnesses be protected in order to facilitate a trial fair to both parties, provided as a priority the accused’s right to a fair trial is not sacrificed. The contrast in the language of Article 20(1) of the ICTY Statute indicates that the right of the accused to a fair trial has a

79

Prosecutor v. Tadić, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, ibid., paras. 26–7. See also Affolder, “Tadić, the Anonymous Witness and the Sources of International Procedural Law,” 19 Michigan JIL (1998) at p. 445. 80 Prosecutor v. Delalić and Others, Decision on the Motions by the Prosecutor for Protective Measures for the Protection of Witnesses Pseudonymed “B” through “M”, Case No. IT-96-21-T (April 1997), para. 17.

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certain priority: “The Trial Chamber shall ensure that a trial is fair and expeditious and that proceedings are conducted with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.” Rule 75(A) reflects the same intent: “A Judge or a Chamber may proprio motu or at the request of either party, or of the witness or victim concerned, or of the Victims and Witnesses Section, order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused.” Article 22 of the Statute requires that “The International Tribunal shall provide in its rules of procedure for the protection of victims and witnesses”. Although, inter alia, the ICTY Statute emphasizes the need for protective measures for witnesses, the relevant articles of the ICTY Statute and the Rules give no room for undermining the fairness of the trial, seen as a right of the accused. That there has to be a balancing of interests is clear but priority appears to be attached to this right of the accused. As already pointed out, while a fair trial is described as a right of the accused, this description does not alter the fact that the prosecution has a corresponding right. The result is that the trial must be objectively fair. To the extent that the protection of witnesses and victims may be required by either party to make its case, such protection does not necessarily result in an unfair trial. On the contrary, appropriate measures may be necessary for a fair trial. It is the degree and kind of protection that will determine whether the trial is unfair. There are certain rights of the accused spelled out in Article 21. Of these the right to examine witnesses against him (Article 21.4(e)) and the right to a fair and public hearing, subject to Article 22, are the most relevant to the issue of the protection of witnesses. It would seem unlikely that the latter provision could be qualified substantially. The former provision is made subject to measures to protect witnesses. The drafting of this provision and Articles 20 to 22 is faulty. While a public hearing may be modified or even denied in some


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situations without the trial being necessarily unfair, the protection of witnesses and victims cannot make a trial unfair. The trial would still be fair and the accused’s right to a fair trial would not be violated. It is unlikely that what was intended in Articles 20 to 22 was that at any time the trial would turn out to be unfair. What is curtailed is the accused’s freedom in regard to the hearing and to witnesses. That freedom cannot be curtailed by the measures of protection to the extent that the trial would objectively be made unfair. Principally, there are three kinds of measures for the protection of victims and witnesses which have been used and need to be discussed, namely, (i) anonymity, (ii) closed sessions and other measure directed at confidentiality, and (iii) measures aimed at protecting witnesses from retraumatization. (a) Anonymity ICTY Rule 69 has the following statement about non-disclosure of the identity of witnesses to the defence: Rule 69(A) In exceptional circumstances, the Prosecutor may apply to a Judge or Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal. ... (C) Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence.

No injustice to the defence is done, because the accused can prepare his defence without knowledge of the identity of a witness, and because that identity must be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence. The situation is different if a request is made for the complete non-disclosure to the accused and his counsel of identity of the

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witness. Full anonymity has been requested in some cases, e.g., the Bla·kić Case,81 the Delalić Case82 and the Tadić Case.83 However, it has not been granted always. In the Tadić Case the majority of the Trial Chamber (II) ruled that “The situation of armed conflict that existed and endures in the area where the alleged atrocities were committed is an exceptional circumstance par excellence”.84 Then reference was made to five conditions to be satisfied for a measure of anonymity to be granted:85 • real fear for the safety of the witness or his or her family; • the testimony of the particular witness must be important to the Prosecutor’s case; • the Trial Chamber has to be satisfied that there is no prima facie evidence that the witness is untrustworthy; • a witness protection program was ineffective or non-existent; • any measures taken should be strictly necessary. It was also stated that less restrictive measures should be applied, if they could secure the protection required. In the Bla·kić Case, the Trial Chamber (I) referred to the exceptional circumstances listed in the decision in the Tadić Case. While supporting the requirement that the five conditions must be satisfied for complete anonymity to be granted, it said: But it is public knowledge that this situation no longer exists and the Prosecutor cannot benefit from it. This Trial Chamber is not

81

Prosecutor v. Bla·kić, Decision on the Application of the Prosecutor dated 17 October 1996 Requesting Protective Measures for Victims and Witnesses, Case No. IT-95-14-T (November 1996). 82 Prosecutor v. Delalić and Others, loc. cit. note 80. 83 Prosecutor v. Tadić, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, Case No. IT-94-1-T (August 1995). 84 Ibid., para. 61. 85 Ibid., paras. 62–6.


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satisfied that the case-file demonstrates the existence of an “exceptional case,” the prerequisite for taking into consideration the five conditions which might lead to the granting of the protective measures the Prosecutor has requested.86

Trial Chamber I supported the five categories set out by Trial Chamber II in the Tadić Decision. The legal instruments of the ICTY, however, do not provide for anonymous witnesses at trial. The ICTY Statute in Articles 29(1) and 21(2) gives the accused the right to a fair trial and Article 21(4)(e) expressly guarantees the accused the right to “examine, or have examined, the witnesses against him”. Article 22 states that “the International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses”. Rule 75(B) implementing the relevant provisions of the Statute lists protective measures that the tribunal may order. Complete non-disclosure of a witness’ identity to the accused and his counsel is not among the listed protective measures. The current ICTY Rules do not provide at all for total non-disclosure of the identity of a witness to the accused during the trial. The provisions of Rule 69(A) and (C) do not envisage total non-disclosure during trial of a witness’ identity. ICTY Rule 69(A) states that non-disclosure may only be ordered in exceptional circumstances. It then states that the identity must be disclosed when the person is brought under the protection of the tribunal. Finally, Rule 69(C) states that the identity of the victim or witness shall be disclosed (obviously to the accused) in sufficient time prior to the trial to allow adequate time for preparation of the defence. Thus, granting of witness anonymity during trial is inconsistent with the ICTY Rules. Judge Stephen in a Separate Opinion in the Tadić Case expressed this view after reviewing the ICTY Statute and Rules.87 In the Bla·kić Case Trial Chamber I which had supported the analysis in the Tadić Case contradicted itself by unanimously concurring 86 87

Loc. cit. note 81, para. 45. Loc. cit. note 75 at p. 15.

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with Judge Stephen’s view. Moreover, complete anonymity of a witness has been criticized by the ECHR, because “fair trial” required that the accused be given adequate time for preparation of his defence and intelligent cross-examination of the prosecutor’s witnesses which he cannot do, if he does not know from where or by whom he is accused.88 In the Tadić Case Judge Stephen, after agreeing in his Separate Opinion with the above view that anonymity was in principle barred, left open the possibility of two situations in which the right of the accused to a fair trial was, in his opinion, not prejudiced by complete anonymity. First, where the witness was an undercover police witness, i.e., where the accused has known the witness in the past but under a false name, only the false name could be revealed. Secondly, where the witness had been a mere chance observer who is not known to the accused at all, his name need not be revealed. Judge Stephen found that for these categories of witnesses, although the non-disclosure of the witness’ identity might prevent the defence from conducting prior inquiry, such non-disclosure was not problematic, because it did not prevent the defence from conducting a proper cross-examination of the witness.89 As stated above, the Statute and Rules do not envisage that complete anonymity be granted as a protective measure in any circumstances. Hence, they would not permit even the two exceptions made by Judge Stephen. A comment has been made as follows on Judge Stephen’s exception for chance observer witnesses on the ground that in such cases cross-examination is not impeded with anonymity: In cases where the defence wishes to question whether an alleged eyewitness was present at the crime scene, it could be necessary for the defence to know the witness’ identity in order to disprove the whereabouts of the witness. Further, if the defence finds reason 88

See, e.g., Kostovski v. The Netherlands, (1989) Series A No. 166, ECHR, para. 25. 89 Loc. cit. note 75 at pp. 13–14.


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to examine the credibility of a witness, this could be difficult without the knowledge of the witness’ identity, especially as such investigations could require knowledge of the witness’ past and other identifying information.90

At one point in his Separate Opinion Judge Stephen did state in respect of victims of sexual violence, before making the two exceptions made: What does make their case special is the combination of possible social consequences of it becoming generally known in communities in the former Yugoslavia that a woman has been a rape victim and also the often acute trauma of facing one’s attacker in court and being made to relive the experience of the rape. The customary protection measures to guard against these two possible consequences are in camera proceedings, devices to avoid confrontation with the accused in court and careful control of cross-examination. That being so, it leads me to the conclusion that it is measures such as those, and not any wholesale anonymity of witnesses, that Article 22 primarily contemplates.91

There seems to be there a recognition that the Statute does not contemplate wholesale anonymity at all. (b) Closed sessions The ICTY Statute (Articles 20.4 and 22), and the ICTY Rules (Rules 75(B) and 79) refer expressly to the conduct of proceedings in camera and the protection of the victim’s identity as necessary and permitted protective measures. Requests for various measures of confidentiality have been brought before the Trial Chambers in several cases.92 The tribunal has ordered such measures only when absolutely necessary and to the extent necessary.

90

Mumba, loc. cit. note 75 at p. 370. The Tadić Case, loc. cit. note 75 at p. 11. 92 See, for e.g., Prosecutor v. Tadić, Decision on the Prosecutor’s Motion Requesting Protective Measures for Witness “R”, Case No. IT-95-14-T (July 91

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Closed sessions and non-disclosure to the public and the media of the identity of witnesses are such measures. These measures are well known to national legal systems. In many national systems in cases of rape or sexual assault, for instance, where there is a special need for protection of the privacy of victims and witnesses, trials are held in camera. These in camera hearings do not interfere with the fairness of the trial. The use of closed hearings to protect vulnerable witnesses is also not thought of as a violation of the right to a public trial enjoined by Article 14 of the ICCPR and by Article 6 of the European Convention or by other similar instruments, even if the entire trial is held in camera. Article 14.1 of the ICCPR, for instance, states: “The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where the publicity would prejudice the interests of justice . . .” These instruments allow reasonable exceptions to the principle of public trial. The public trial is generally required for information and educational purposes. It is also conducive to the elimination of the framed trial. There are other reasons for publicity in hearing cases.93 But these reasons and purposes are overridden, when closed trials are held in the appropriate circumstances, by virtue of the need for confidentiality and privacy. In the Tadić Case the ICTY (Trial Chamber) said: With regard to the limitation on the accused’s right to a public trial, this Trial Chamber has to ensure that any curtailment of the accused’s right to a public hearing is justified by a genuine fear for the safety of witness R and/or the members of witness R’s family . . . In balancing the interests of the accused, the public and wit-

1996); Prosecutor v. Furundˇzija, Decision on Prosecutor’s Motion Requesting Protective Measures for Witnesses “A” and “D” at Trial, Case No. IT-9517/7-T (June 1998). 93 See Mumba, loc. cit. note 75 at p. 365.


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ness R, this Trial Chamber considers that the public’s right to information and the accused’s right to a public hearing must yield in the present circumstances to confidentiality in light of the affirmative obligation under the Statute and the Rules to afford protection to victims and witnesses.94

The tribunal rightly said that it was the right to a public hearing that was qualified and not the right to a fair trial. It also gave acceptable reasons for dispensing with a public hearing for the sake of confidentiality. (c) Measures to protect witnesses from retraumatization One-way closed circuit television or other such measures, allowing the witness to testify without seeing the accused, and restrictions on the questions that the parties may ask the witness are aimed at protecting the witness from the trauma of reliving the atrocities, harassment and intimidation. Such measures are appropriate when witnesses have been victims of sexual, and other forms of personal violence. ICTY Rule 96 provides: In cases of sexual assault: (i) no corroboration of the victim’s testimony shall be required; (ii) consent shall not be allowed as a defence if the victim (a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or (b) reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear; (iii) before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible; (iv) prior sexual conduct of the victim shall not be admitted as evidence.

94

Prosecutor v. Tadić, Decision on the Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses, loc. cit. note 75, para. 6.

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ICTY Rule 75(C) states: “A Chamber shall, whenever necessary, control the manner of questioning to avoid any harassment or intimidation.” There are also restrictions on consent as a defence and evidence regarding prior sexual conduct which are more severe in the ICTY Rules than in many national legal systems. They help to reduce the trauma for a class of witnesses who are particularly open to attack without affecting seriously the accused’s right to defend himself. Cross-examination is still possible and not eliminated. The situation with regard to sexual violence during the war in the former Yugoslavia95 warranted these protective measures without infringing the right to a fair trial. While the accused’s right to defend himself and cross-examine96 is kept intact, intimidation and harassment which are not part of the guarantee of a fair trial are avoided.

DISCOVERY

AND

DISCLOSURE

OF

EVIDENCE

The rules relating to discovery and disclosure of evidence may be regarded as deriving from the obligation to co-operate with the tribunal in order that a fair trial may take place. The emphasis is on the obligations of the prosecution in this respect, on the basis that the prosecution has access to material and evidence which the accused may not have. There is, however, provision also for disclosure by the accused insofar as Article 67 of the Rules of Procedure and Evidence refers to reciprocal disclosure. Discovery and disclosure of evidence are particularly important for fairness in criminal proceedings. It is generally the accused that needs disclosure in order to better conduct his defence. 95

See Mumba, loc. cit. note 75 at p. 366 for an assessment of the situation. 96 On this right before the ICTY see Lakatos, “Evaluating the Rules of Procedure and Evidence for the International Tribunal in the Former Yugoslavia: Balancing Witnesses’ Needs Against Defendants’ Rights”, 46 Hastings LJ (1955) at pp. 932–7.

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The Rules of importance are Rules 66, 67 and 68 which deal respectively with disclosure by the prosecution, reciprocal disclosure, and disclosure of exculpatory evidence. These rules relating to discovery specifically implement, inter alia, Article 21 of the ICTY Statute, which addresses the rights of the accused. Under Article 21(4)(e), an accused person is allowed to “examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. Article 21(4)(b) gives an accused the right “to have adequate time and facilities for the preparation of his defence”.97 Rule 66 provides that the prosecution must within 30 days of the initial appearance of the accused provide to the defence all supportive material which accompanied the indictment as well as all prior statements obtained from the accused by the prosecutor. The prosecution must also within a time set forth by the Trial Chamber or Judge tender to the defence copies of statements of all witnesses that the prosecution intends to call at trial. Further, where the defence so requests, the prosecution must allow the inspection of “books, documents, photographs and tangible objects in the Prosecutor’s custody or control” which (i) the prosecution will use as evidence in the trial, (ii) belonged to or were obtained from the accused, or (iii) are material to the defence’s preparation for trial (Rule 66(b)). However, this Rule also allows the prosecution to apply to the Trial Chamber to be relieved from this obligation where the evidence, if disclosed, would prejudice further or ongoing investigations, would be contrary to the public interest, or would affect the security interests of any State. Rule 67 most importantly provides that, where the defence has requested disclosure pursuant to Rule 66(B), the prosecution 97

On the subject of discovery and disclosure see, inter alia, Pruitt, “Discovery: Mutual Disclosure, Unilateral Disclosure and Non-Disclosure under the Rules of Procedure and Evidence”, in May et al. (eds.), op. cit. note 3 pp. 305–14; Harmon and Karagiannakis, “Disclosure of Exculpatory Material by the Prosecution to the Defence under Rule 68 of the ICTY Rules”, May et al. (eds.), ibid., pp. 315–28.

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is entitled to “inspect any books, documents, photographs and tangible objects” in the custody and control of the defence that are intended for use at trial. The defence must notify the prosecution of the specifics of any special defence and its claim, if any, of alibi, including the names and addresses of witnesses whom the defence will call at trial and any evidence the accused will rely on to establish the alibi. In response to this information the prosecution is required to notify the defence of the names of witnesses it intends to call to rebut the claims of the accused. It is also provided that the defence’s failure to comply with this Rule “shall not limit the right of the accused to testify on the above defences”. Each party is obligated promptly to notify the other and the Trial Chamber on the discovery of material that should have been produced pursuant to the Rules. Rule 68 mandates the disclosure by the prosecution to the defence, “as soon as practicable”, of evidence that “in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence”. It will be seen that the Rules impose burdens on the prosecution some of which do not have corresponding obligations of the defence. On the other hand, whenever the defence is required to produce evidence or other information the prosecution has a corresponding obligation. But the Rules allow Trial Chambers to excuse the prosecution from its disclosure obligations. The Rules are detailed and extensive but do not and, perhaps, cannot cover all situations that may arise, as the jurisprudence of the ICTY shows. Several questions98 are required to be answered by the Trial and Appeals Chambers in each case in which they arise and call for solutions. Some of the matters which came before and have been dealt with by the tribunal are considered here. They relate to (i) prior statements made by the accused, (ii) exculpatory material, (iii) notification obligations for witness testimony, and (iv) additional obligations with respect to disclosure.

98

See Pruitt, loc. cit. note 97 at pp. 308 ff., Harmon and Karagiannakis, loc. cit. note 97 passim.


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(a) Prior statements of the accused In the Delalić Case Trial Chamber II was faced with questions about the prosecutor’s responsibility. It decided that the obligation on the prosecution to provide all prior statements of an accused does not end after the prosecution has complied initially with the Rule. There is a “continuing obligation” and the prosecution must provide statements which it possesses at any time.99 Later, in the Bla·kić Case, where the defence requested discovery from the prosecution, Trial Chamber I held that not only is the obligation a continuing one but the prosecution must disclose all statements regardless of the form or source of the statements. The Trial Chamber sought support from national law, namely that of the U.S.A. and France, and concluded that all the previous statements of the accused which appear in the prosecutor’s file, whether collected by the prosecution or originating from any other source, must be disclosed to the defence immediately and that no distinction, as suggested by the prosecution, could be made between “the official statements taken under oath or signed and recognised by the accused” and the others.100 The Trial Chamber then referred to Rule 66(C), which allows the prosecution to request relief from the obligation from the Trial Chamber, and Rule 70(A), which provides that reports, memoranda and other internal documents prepared by a party or on behalf of a party in connection with the case are not subject to disclosure,101 and stated that the prosecution could avoid disclosure of certain information by invoking these Rules. The Trial Chamber indicated that not every statement by an accused was included and refused to designate orders issued by the accused

99

Prosecutor v. Delalić and Others, Decision on Motion by the Accused Zejnil Delalić for the Disclosure of Evidence, Case No. IT-96-21-PT (January 1997), para. 4. On discovery and disclosure see Pruitt, loc. cit. note 97 pp. 308 ff., where the subject has been examined. 100 Prosecutor v. Bla·kić, Decision on the Production of Discovery Materials, Case No. IT-95-14-T (January 1997), paras. 35 ff. 101 Ibid., para. 39.

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military commander as “prior statements” within the ambit of this Rule. The Chamber held that the term “must be understood to refer to all statements made by the accused during questioning in any type of judicial proceeding which may be in the possession of the Prosecutor, but only such statements”.102 (b) Exculpatory material With respect to another obligation of the prosecution – to provide the defence with exculpatory material – Trial Chambers have contributed to the clarification of the scope of the Rule imposing the obligations. A definition of “exculpatory material” has been provided. Exculpatory material is “material which is known to the Prosecutor and which is favourable to the accused in the sense that it tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence”.103 Such material is not limited to that found only in the files relating to the accused. It includes all information, including that in case files in the custody or control of the prosecution of other accused or suspected persons. But it seems that requests to inspect such files of other accused persons will be denied based on confidentiality concerns.104 This does not mean presumably that the information contained therein would not be available otherwise. Trial Chamber I has also pointed out that a lack of evidence is not included in the concept of exculpatory material. The defence argued that, because a “lack of inculpatory evidence constitutes exculpatory evidence”, the prosecution should reveal the insufficiency of its case. The Trial Chamber refused the request of the defence for such an acknowledgement, because the

102

Prosecutor v. Bla·kić, Decision on the Defence Motion for Sanctions for the Prosecutor’s Failure to Comply with Sub-rule 66(a) of the Rules and the Decision of 27 January 1997 Compelling the Production of All Statements of the Accused, Case No. IT-95-14-T (July 1998). 103 Prosecutor v. Bla·kić, loc. cit. note 100, para. 12. 104 Prosecutor v. Bla·kić, ibid., paras. 26–30.


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time and place to raise the possible question of the lack of evidence can only be at the trial on the merits. Possible evaluation of the exculpatory nature of this lack of evidence can take place at that time only.105

But in regard to exculpatory material the Trial Chamber later said that the assumption was that the prosecution would employ good faith in complying with this rule, while recognizing that there was some subjectivity in determining what information or evidence is exculpatory.106 Rule 66(B) allows the defence to inspect items that are material to its preparation. The jurisprudence of the ICTY has established that, in order to do so, the defence must show by a prima facie case both that the requested items are material and that the prosecution has custody or control of the evidence.107 Thus, where the defence requested access to all documents and objects within the prosecution’s custody or control having to do with the accused or the camp with which the accused was alleged to have been involved but failed specifically to allege why such evidence would be material to the preparation of its case, the Trial Chamber denied access to the material.108 It was stated that it was inappropriate for the Trial Chamber to intervene, given the absence of a specific identification of material evidence that the defence alleges the prosecution withheld.109 The ruling, however, is open to the criticism that it makes it difficult for the defence to show materiality, because the defence has no way of knowing what evidence the prosecution has. A Trial Chamber raised a question relating to a defence request for disclosure of materials not made under Rule 66(B) but relying on Rule 68: 105

Prosecutor v. Bla·kić, ibid., para. 8. Prosecutor v. Bla·kić, Decision, Case No. IT-95-14-T (April 1998). 107 Prosecutor v. Delalić and Others, Decision on Motion by the Accused Zejnil Delalić for the Disclosure of Evidence, Case No. IT-96-21-PT (September 1996), para. 9. 108 Prosecutor v. Delalić and Others, ibid., para. 10. 109 Prosecutor v. Delalić and Others, ibid. 106

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Chapter 15. Special Aspects of Evidence before the ICTY Does the Defence which does not base its Motion on Sub-rule 66(B) – which would entail the obligation of mutual disclosure as required by Sub-rule 67(C) – have a general and unilateral right to inspect the Prosecutor’s file by demanding and obtaining extensive and unrestricted disclosure?

The Trial Chamber held that, where the defence believes that the prosecution has not complied with its obligation, not only must the defence establish that the requested information is indeed in the possession of the prosecution, but it must also make a prima facie case that it was probable that the materials sought were of an exculpatory nature.110 The same Trial Chamber has explained how the defence can establish that relevant evidence is in the possession of the prosecution. In the same case the Trial Chamber held that where the defence moved for disclosure of exculpatory material, the prosecution was under a duty to state, with respect to each item of evidentiary material mentioned by the defence, whether the prosecution in fact had the material in its possession, whether the material contained exculpatory evidence, and whether the prosecution believed that the confidentiality of the materials, if exculpatory, needed to be protected pursuant to Rule 66(C). The Trial Chamber found that the initial response given by the prosecutor that she “recognises her obligations under the Rule and had complied with them” was inadequate.111 The Appeals Chamber of the ICTY in the Bla·kić Case has held that the prosecution is under a continuing obligation under Rule 68 to disclose exculpatory evidence at the post-trial stage, including appeals. However, the prosecution could be relieved of its Rule 68 obligation, if the existence of relevant exculpatory evidence is known and the evidence is accessible to the accused. Further, it was said that without proof that the prosecution abused its discretion in deciding what evidence fell within the ambit of Rule 68, the tribunal would not be inclined to intervene 110 111

Prosecutor v. Bla·kić, loc. cit. note 100, para. 49. Prosecutor v. Bla·kić, ibid., para. 47.


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in the way such discretion was exercised. Finally, it was held that the prosecution need not provide a certificate acknowledging, inter alia, its compliance with Rule 68 as a matter of course, on the basis that the prosecution is expected to fulfil its obligations in good faith.112 (c) Notification obligations for witness testimony The Trial Chambers also have defined more clearly the responsibility of the parties relating to notification with respect to the witnesses that will testify at trial. The obligation in Rule 67(A) requiring the prosecution to give the names of its witnesses involves more that simply informing the defence of the witnesses’ names; in fact, it requires a “comprehensive document” containing a list of witnesses. Specifically a Trial Chamber held that, despite the acknowledgment of the defence that the prosecution had transmitted to the defence the identity of over 100 witnesses, more was needed: The Trial Chamber notes that Sub-rule 67(A) does not refer to an official list. However, by stipulating that the Prosecution has an obligation to inform the Defence of the names of the prosecution witnesses “as early as reasonably practicable and in any event prior to the commencement of the trial”, the Rules support the idea that all the names of the prosecution witnesses must be disclosed at the same time in a comprehensive document which thus permits the Defence to have a clear and cohesive view of the Prosecution’s strategy and to make the appropriate preparations.113

Another Trial Chamber declined to impose any obligation additional to that imposed on the defence by this Rule when it did not require the defence to present a list of witnesses prior to trial. 112

Prosecutor v. Bla·kić, Decision on the Appellant’s Motion for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, Case No. IT-95-14-A, A. Ch. (September 2000), paras. 42, 38, 39, 45. 113 Prosecutor v. Bla·kić, loc. cit. note 100, para. 22.

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After issuing a scheduling order in which it directed both the prosecution and the defence to present witness lists to the other side prior to the trial, the Trial Chamber amended the order. This amendment was based on the Trial Chamber’s conclusion that the Rules did not impose such an obligation on the defence, where there was no intention of presenting a special defence. The Chamber held that, because the accused had “not given notice of its intent to offer any of the defences contemplated by Sub-rule 67(A)(ii)”, the defence had no duty to provide a witness list to the prosecution.114 However, the Trial Chamber did not conclude that the defence need never present a list of planned witnesses to the prosecution. In fact the Trial Chamber in the same case later required the defence to provide the name of each planned witness to be present at trial “in writing at least seven working days prior to” that witness’ testimony,115 relying, however, on Rule 54 allowing orders “necessary for the conduct of the trial”, and not on Rule 67. In the Bla·kić Case again the Trial Chamber explicitly held that the defence need not disclose its intended witnesses.116 This decision related to a period during which the prosecution was still presenting its case. It, therefore, is not clear, whether any additional obligation would be imposed in relation to the period when the defence was making its case. However, it has also been held in the Delalić Case that the Rules make it clear, that, where the defence alleges an alibi or a 114 Prosecutor v. Delalić and Others, Decision on the Applications filed by the Defence for the Accused Zejnil Delalić and Esad Landˇz o on 14 February 1997 and 18 February 1997 Respectively, Case No. IT-96-21-PT (February 1997), paras. 10–11. 115 Prosecutor v. Delalić and Others, Decision on the Prosecutor’s Motion for an Order Requiring Advance Disclosure of Witnesses by the Defence, Case No. IT-96-21 (February 1998). 116 Prosecutor v. Bla·kić, Decision of Trial Chamber I on the Prosecutor’s Motion for Clarification of Order Requiring Advance Disclosure of Witnesses and for Order Requiring Reciprocal Advance Disclosure by the Defence, Case No. IT-96-21-PT (January 1998).


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special defence, the requirement that it provide the names and addresses of planned witnesses is “clear and unambiguous”.117 Beyond these obligations the disclosure obligation of the defence depends on the circumstances of each case. (d) Additional disclosure obligations An issue that has arisen relates to the time of incidence of the disclosure obligations. The obligations found in Rules 66, 67 and 68 are not incurred until after the initial appearance of an accused. Thus, even though such evidence may be useful in any proceedings that take place prior to that time, there is no entitlement to the information involved.118 After that time, as seen above, the obligations are continuing. An important issue concerns the effect of a failure to comply with these obligations. While the Rules call for prompt notification of the Trial Chamber and the opposing party, where it is believed that a party has not complied with its disclosure obligations, the Rules say nothing about a penalty or remedy in such situations. If an insufficient penalty were imposed, then there would be no incentive for the parties, particularly the prosecution, to fulfil these obligations. While sanctions could include disallowing testimony or the presentation of evidence which the prosecution failed to disclose, Trial Chambers have so far declined to take such measures. For example, in the Furundˇzija Case, where the Trial Chamber found that the prosecution failed to comply with the disclosure obligations, the Trial Chamber merely noted its “grave concern” at the prosecution’s action and found this inaction

117

Prosecutor v. Delalić and Others, Decision on the Motion to Compel the Disclosure of the Addresses of the Witnesses, Case No. IT-96-21-PT (June 1997), para. 11. 118 Prosecutor v. Karadˇzić, Decision Partially Rejecting the Request Submitted by Mr. Igor Pantelić, Counsel for Radovan Karadˇzić, Case No. IT-95-5R61/IT-95-18-R61 (June 1996).

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“deplorable” and “unjustifiable”.119 Similarly, another Trial Chamber acknowledged that it would not seek a “sanctions approach” where the prosecution failed to comply with Rule 68. Instead, that Trial Chamber held that it would evaluate the evidence presented and the extent to which the opposing party had the opportunity to contest the evidence in coming to a conclusion on the guilt or innocence of the accused on the merits.120 Later in the Furundˇzija Case the Trial Chamber found that the prosecution had failed to reveal that one of its witnesses had received psychological treatment following her rape which was the subject of her testimony. Basing itself on the contention that this information went to her credibility, the defence argued that the Trial Chamber should disregard her testimony or order a new trial. While agreeing that the prosecution should have revealed the information, the Trial Chamber declined to take such harsh measures. Instead, it re-opened the trial proceedings only on this issue.121

119

Prosecutor v. Furundˇzija, Scheduling Order and Decision on Motion of Defendant Anto Furundˇzija to Preclude Testimony of Certain Prosecution Witnesses, Case No. IT-95-17/1-T (April 1998). 120 Prosecutor v. Bla·kić, Decision on the Defence Motion for Sanctions for the Prosecutor’s Continuing Violation of Rule 68, Case No. IT-95-14-T (September 1998). 121 Prosecutor v. Furundˇzija, Decision, Case No. IT-95-17/1-T (16 July 1998). See also Prosecutor v. Furundˇzija, Scheduling Order, Case No. IT-9517/1-T (17 July 1998). For critical comments on the implementation of Rule 68 of the ICTY Rules see Harmon and Karagiannakis, loc. cit. note 97 passim.

16 SPECIAL ASPECTS OF EVIDENCE BEFORE THE IRAN-US CLAIMS TRIBUNAL

The constitutive documents of the Iran-US Claims Tribunal which were contained in the Algiers Declarations had no specific provisions relating to proof and evidence. There was, however, a provision requiring that all cases should be decided on the basis of respect for law.1 Presumably, this reference to respect for law covered the law of evidence which includes, if not co-extensive with, the law governing proof. It is in the Final Rules of the tribunal that there are three provisions dealing with evidence. These refer to the burden of proof and production of documents (Article 24), oral hearings and written statements, and the admissibility and evaluation of evidence (Article 25), and the use by the tribunal of experts (Article 27).2 1

Article V of the Claims Settlement Declaration. See Appendix hereto. Production of documents are also referred to in Articles 18 and 19 of the Rules which deal with pleadings. Article 15 of the Rules refers to the distribution of documents produced. 2

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Chapter 16. Evidence Before the Iran-US Claims Tribunal

• In regard to the burden of proof Article 24(1) makes it clear that the burden is on each party to prove the facts relied upon to support its claim or defence. This provision does no more or less than confirm the principle actori incumbit onus probandi. • Article 24(2) and (3) deals with procedures for the use of documents in the proceedings and, most importantly, gives the tribunal explicit powers to order the production of documents. • Article 25 provides, among other things, for notification by the tribunal of oral hearings, if any, deals with the treatment of witnesses, oral and written statements and hearings and particularly states that it is the arbitral tribunal that determines the admissibility, relevance and weight of evidence offered. • Article 27 enables the tribunal to use experts, if it considers this necessary, and lays down a procedure relating to such use. Clearly, there is a certain amount of evidentiary law (or rules) that is left unsaid in these provisions. While the principle actori incumbit onus probandi is included in Article 24(1), there are many matters such as the standard of proof, the principles governing the evaluation of evidence and grounds for inadmissibility of evidence which are left to be dealt with by the tribunal. Thus, the tribunal has to resort to customary law or general principles of law to fill those gaps. That apart, the circumstances surrounding the cases which came before the tribunal were very peculiar in their impact on the finding and production of evidence. For this reason the tribunal bore a heavy responsibility for ensuring that the basic principle of a fair trial in regard to evidence and the proof of facts in each case was implemented. There could have been a danger of its making exceptions to existing and applicable principles and rules or applying them so flexibly as to interfere with the equitable and fair character of the trial in respect of evidence and proof. First, one of the characteristics of many cases was that the alleged illegalities or violations of law had occurred a long time before the evidence was brought before the tribunal. This meant that evidence may have disappeared, for whatever reason. Sec-

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ondly, in the case of the American claimants frequently it happened that important documents of evidentiary value had been left in their offices in Iran and were inaccessible to them, while Iranian parties found that documents kept in Iran had disappeared and sometimes had been destroyed, inter alia, during the war with Iraq. Thirdly, both sides found it difficult to enlist witnesses. The US parties invariably found that possible Iranian witnesses in Iran were unwilling to testify against their country’s interests and that some Iranians both in and outside of Iran were unwilling to testify, because they were fearful of the possible consequences for relatives in Iran. Fourth, though any party could procure an order from the tribunal requiring the opposing party to produce relevant, identified evidence, the only penalty which the tribunal could impose in the event of non-production was to draw adverse inferences, if the evidence was, as it appeared, in the possession of that party. There was no other means of enforcing the tribunal’s order. In general, it was possibly the case that parties would not produce evidence which was adverse to their interests. These were the circumstances which the tribunal faced.3 However, it was important for the tribunal not to permit itself to apply evidentiary principles or make exceptions to them in such a way that the fairness of the trial was jeopardized. As the tribunal itself stated in one case, The Tribunal is mindful of the difficulties faced by the Claimant in collecting evidence, . . . In any event, the Tribunal must base its awards on probative evidence.4

In fact, many plaintiffs failed to prove their cases for lack of probative evidence.

3

On the circumstances surrounding the cases see Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (1996) pp. 332–3. See also Selby, “Fact-Finding before the Iran-United States Claims Tribunal”, in Lillich (ed.), Fact-Finding before International Tribunals (1992) at pp. 142 ff. 4 The Jalal Moin Case (1994), 30 Iran-US CTR at p. 75.

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In dealing with the cases which came before it the tribunal has made certain decisions, which are of special interest, in certain areas. Areas such as the facilitation by this tribunal of the production of evidence have been dealt with in general in Part I, particularly in Chapter 7. Here the following areas are examined: • • • •

the burden of proof and the burden of evidence; the standard of proof; presumptions and inferences; and admissibility and evaluation of evidence.5

5

In addition to the two works referred to in note 3 above, there is some writing on the Iran-United States Claims Tribunal and its operation, but few deal in any depth with evidence before the tribunal: e.g., Asksen, “The IranUnited States Claims Tribunal and the UNCITRAL Arbitration Rules: an Early Comment” in Schultz and van den Berg (eds.), The Art of Arbitration (1982) pp. 1–26; Selby and Stewart, “Practical Aspects of Arbitrating Claims before the Iran-United States Claims Tribunal”, 18 International Lawyer (1984) pp. 211–44; Strauss, “The Practice of the Iran-United States Claims Tribunal in Receiving Evidence from Parties and from Experts”, 3 JIA (1986) pp. 57–69; Baker and Davis, “Establishment of an Arbitral Tribunal under the UNCITRAL Rules: The Experience of the Iran-United States Claims Tribunal”, 23 International Lawyer (1989) pp. 81–135; Caron, “The Nature of the IranUnited States Claims Tribunal and the Evolving Structure of International Dispute Resolution”, 84 AJIL (1990) pp. 104–56; Khan, Iran-United States Claims Tribunal: Controversies, Cases and Contribution (1990); Holtzmann, “Fact-Finding by the Iran-United States Claims Tribunal”, in Lillich (ed.), op. cit. note 3 pp. 101–33; Van Hof, Commentary on the UNCITRAL Arbitration Rules: the Application by the Iran-United States Claims Tribunal (1991); Westburg, International Transaction and Claims Involving Government Parties: Case Law of the Iran-United States Claims Tribunal (1991); Mouri, The International Law of Expropriation as Reflected in the Work of the Iran-United States Claims Tribunal (1994); Pellonpää and Caron, The UNCITRAL Arbitration Rules as Interpreted and Applied: Selected Problems in Light of the Practice of the Iran-United States Claims Tribunal (1994); Kazazi, Burden of Proof and Related Issues (1996) passim; Mouri, “Iran-United States Claims Tribunal: the Birth of a Twentieth Century Griffin”, 7 Finnish Yearbook of International Law (1996) pp. 180–243; Bosman, “The Iran-United States Claims Tribunal”, 19 Hague Yearbook of International Law (1997) pp. 197–256; Brower, IranUnited States Claims Tribunal (1998); Burrow, “The Iran-United States Claims

Burden of Proof and Burden of Evidence BURDEN

OF

PROOF

AND

BURDEN

369 OF

EVIDENCE

In both early and more recent cases the tribunal was faced with situations in which it had to deal with the burden of proof. The question that arises is whether it departed or misapplied the rule actori incumbit onus probandi and other principles in these cases. The difficult cases showed the following features: (a) It is the tribunal and not the parties that ultimately formulates the claim or reformulates the claim. In the Dallal Case6 a claim was made on two bank checks of which the claimant was the holder. The tribunal said that the respondent Iranian bank had failed to prove its defence that the checks had been drawn in violation of Iranian exchange regulations, since they constituted a capital Tribunal: a Joint Contribution”, 11 Hague Yearbook of International Law (1998) pp. 231–57; Aghahosseini, “Evidence before the Iran-United States Claims Tribunal”, 1 International Law Forum (1999) pp. 208–14; Ameli, “The Application of the Rules of the Iran-United States Claims Tribunal” in Heere (ed.), International Law and the Hague’s 750th Anniversary (1999) pp. 263–79; Burrow, “The Iran-United States Claims Tribunal”, 12 Hague Yearbook of International Law (1999) pp. 279–317; Daillier, “Tribunal irano-américaine de réclamations” 45 AFDI (1999) pp. 515–53; Mohebi, The International Law Character of the Iran-United States Claims Tribunal (1999); Skubiszewski, “The Iran-United States Claims Tribunal and the UNCITRAL Arbitration Rules: Introduction”, in Heere (ed.), International Law and the Hague’s 750th Anniversary (1999) pp. 251–4; Aldrich, “Judge Ruda’s Contributions to the Work of the IranUnited States Claims Tribunal” in Armas Barea (ed.), Liber Amicorum “in Memoriam” of Judge José Mariá Ruda (2000) pp. 179–87; Caron (ed.) The Iran-United States Claims Tribunal and the Process of International Claims Resolution: a Study by the Panel on State Responsibility of the American Society of International Law (2000); Santori, “The Iran-United States Claims Tribunal: a Joint Contribution”, 13 Hague Yearbook of International Law (2000) pp. 261–94; Skubiszewski, “The Iran-United States Claims Tribunal”, in Armas Barea (ed.), Liber Amicorum “in Memoriam” of Judge José Mariá Ruda (2000); Daillier, “Tribunal irano-américaine de reclamations” 46 AFDI (2001) pp. 326–79. 6 (1983), 3 Iran-US CTR p. 10.

370


transfer. On the other hand, the tribunal noted that the claimant had refused to provide much information about the transaction out of concern for the safety of colleagues and business connections in Iran, which clearly left the tribunal with doubts as regards the true character of the transactions. It stated that: When a court or an international tribunal in cases of doubt in retrospect has to make a decision as to the character of a currency operation, an important consideration must be that it is in most cases the parties involved in the operation who have access to the evidence regarding the character of that operation and who are in a position to provide information on the circumstances in connection with the operation. It is on the other hand generally very difficult for other parties to present evidence in this respect . . . The Tribunal therefore reaches the conclusion that the two cheques must be assumed to have been issued as part of a capital transfer, intended merely to exchange Rials for Dollars and to transfer the dollar amount to the United States.7

The plaintiff failed in his case. What the tribunal did was to reformulate the claims, so that the burden was on the plaintiff to prove that the cheques dishonoured were not part of a capital transfer, on the understanding that, when cheques were written in dollars, the presumption was that they were part of a capital transfer. The tribunal did say that the respondent had failed to prove this as its defence, clearly because it was the respondent that raised the argument. This was immaterial, however, because the tribunal saw the issue of absence of a capital transfer as part of the plaintiff’s claim which he had to prove as the actor. In the Computer Sciences Corporation Case8 the tribunal awarded the plaintiff the value of several bank accounts in Iran, payment out of which had been denied by the relevant bank on the ground of Iranian exchange controls. The tribunal held that,

7 8

Ibid. at pp. 16–17. (1986), 10 Iran-US CTR p. 269.

Burden of Proof and Burden of Evidence

371

because the plaintiff had raised the issue whether the banks had sought the approval of the Iranian Central Bank for the payments, as they were under an obligation to do pursuant to the relevant regulations, the respondent banks had the burden of showing that they had in fact sought such approval. As the banks made no such showing, the tribunal said that they must be deemed to have violated their obligation to seek that necessary approval and thus to have withheld the funds improperly. Clearly, what the tribunal did was to determine that, once the plaintiff had shown that payment out of the Iranian bank accounts had been denied, the respondent became the actor making the claim of fact that it had sought the approval of the Iranian Central Bank for the payments which the evidence showed it had not done and, therefore, it had not proved. On the basis of what the tribunal did, both these cases are good examples of a tribunal determining both how in effect claims can be reformulated or formulated by the tribunal and which party is consequently the actor, even if, as in the Dallal Case, the claim formulated by the tribunal requires proof of a negative. In the Golshani Case the tribunal overtly accepted the interpretation of Article 24(1) of its Rules according to which generally, when a party makes a claim of fact impliedly or expressly, it becomes the actor in respect of that fact and must prove it. The tribunal said: The tribunal believes that the analysis of the distribution of the burden of proof in this Case should be centered around Article 24, paragraph 1 of the Tribunal Rules which states that ‘[e]ach party shall have the burden of proving the facts relied on to support his claim or defence.’ It was the Respondent who, at one point during the proceedings in this Case, raised the defence that the Deed is a forgery. Specifically, the Respondent has contended that the Deed, dated 15 August 1978, was in fact fabricated in 1982. Having made that factual allegation, the Respondent has the burden of proving it. However, the Tribunal need only concern itself with the question whether the Respondent has met that burden if the Claimant has submitted a document inspiring a minimally sufficient degree of

372

Chapter 16. Evidence Before the Iran-US Claims Tribunal confidence in its authenticity. It is therefore up to the Claimant first to demonstrate prima facie that the deed is authentic.9

Again, in this case it was the tribunal that formulated the factual claims which had to be proved and, thus, determined which party was the actor. It is significant that in its approach in this instance the tribunal required a prima facie case from the plaintiff as actor after which the respondent as actor had to prove its claim that the document was a forgery. As a comment, it may be observed that it was unusual that even a prima facie case was required of the plaintiff, because there would have been a presumption of authenticity on the basis that omnia rite acta praesummuntur. (b) The tribunal has indicated that the “burden of evidence” may lie on the other party, where a plaintiff has produced sufficient evidence to establish its claim, e.g., that the other party was the principal on the other side of a contract.10 This must be taken to mean that in the face of evidence produced by the plaintiff, the respondent must produce evidence or an acceptable explanation that would upset the preponderance of evidence which had been established in favour of the plaintiff. (c) The tribunal has held that an allegation of fact by one party is deemed to be established or proved, where the other party does not controvert it or produce evidence against it. In the Gould Marketing, Inc. Case11 one party’s valuation of equipment which was not contested by the other party was accepted by the tribunal as conclusive. Similarly, in the Foremost Tehran, Inc., et al. Case12

9 10 11 12

(1995), 29 Iran-US CTR at p. 93. See the Futura Trading, Inc. Case (1986), 13 Iran-US CTR at p. 112. (1984), 6 Iran-US CTR at p. 279. See also ibid. at p. 282. (1986), 10 Iran-US CTR p. 288.

The Standard of Proof

373

the tribunal awarded the plaintiffs the value of their machines that had been left with the respondents in Iran. The plaintiffs had submitted an estimate of their value by an official of the company that had manufactured them. In accepting that valuation, the tribunal noted that one of the respondents was in possession of the machines and therefore in a better position to assess their condition than the plaintiff but had failed to introduce any evidence as to their value.

THE STANDARD

OF

PROOF

The tribunal has explained its choice of a higher standard of proof than preponderance of evidence in certain cases. In the Dadras International, et al. Case13 the tribunal held that the plaintiff had proved the existence of a contract with a respondent and that the respondents had failed to prove their defence that a signature on the contract had been forged. The tribunal also held that allegations of forgery are of such a grave character as to require an enhanced standard of proof, which it described as “clear and convincing evidence”. The tribunal examined the evidence and concluded that the contract was valid, enforceable and binding on the parties and that the respondents had failed to prove forgery even by the lower standard of a “preponderance of the evidence”. The tribunal stated: 122. In these Cases, the Claimants allege that they engaged in a process of contract negotiation with TRC, and that this negotiation process resulted in the signing of the 9 September 1978 Contract, which Contract was breached by the Respondent TRC. In these and supplementary issues the Claimants bear the burden of proof, and they can prevail only if they meet their burden on these issues. The Respondents, in addition to disputing the Claimants’ version of events, have raised the affirmative defense that some or all of the

13

(1995), 31 Iran-US CTR at p. 127.

374


Claimants’ documents have been forged. The burden of proving that a forgery was committed therefore falls on the Respondents. 123. In these Cases, the Tribunal is confronted with allegations of forgery that, because of their implications of fraudulent conduct and intent to deceive, are particularly grave. The Tribunal has considered whether the nature of the allegation of forgery is such that it requires the application of a standard of proof greater than the customary civil standard of ‘preponderance of the evidence’. Support for the view that a higher standard is required may be found in American law and English law, both of which apply heightened proof requirements to allegations of fraudulent behavior. In American law the burden imposed is described as ‘clear and convincing’ evidence, and English law speaks of a flexible civil standard that raises the burden of proof where the commission of a fraud or a crime is alleged in civil proceedings. 124. The allegations of forgery in these Cases seem to the Tribunal to be of a character that requires an enhanced standard of proof. Consistent with its past practice, the Tribunal therefore holds that the allegation of forgery must be proved with a higher degree of probability than other allegations in these Cases. See Oil Field of Texas, Inc. and Government of the Islamic Republic of Iran, et al., Award No. 258–43–1 (8 October 1986), reprinted in 12 Iran-U.S. C.T.R. 308, 315 (holding that alleged bribery would not be established if, on the evidence presented, ‘reasonable doubts remain’). The minimum quantum of evidence that will be required to satisfy the Tribunal may be described as ‘clear and convincing’ evidence, although the Tribunal deems that precise terminology less important than the enhanced proof requirement that it expresses.14

The tribunal not only indicated where the divided burden of proof lay but chose the standard of proof for the factual claim of the defence, which was an enhanced standard. The tribunal held that the defence had not discharged its burden of proof relating to forgery. The same approach was taken later in the V., L., and J. Aryeh Case to a claim of forgery raised by the defence.15 Where

14 15

Ibid. at pp. 161–2. (1997), 33 Iran-US CTR at p. 317.

Presumptions and Inferences

375

a claim was raised by the defence, the tribunal dealt with the issue of the division of the burden of proof also in the R.J. Reynolds Tobacco Co. Case16 and the Rockwell International Systems, Inc. Case.17 In the Oil Field of Texas, Inc. Case18 the tribunal first held that the allegation made by the defence that a lease agreement, which was the basis of the plaintiff’s claim, had been procured by bribery and collusion and was, therefore, unenforceable had to be proved by the defence. Thereafter, the tribunal was of the view that such an allegation was subject to a higher standard of proof than the preponderance of evidence, when it said that the allegation could not be deemed to be established, “if reasonable doubts remain”,19 thus, indicating that the proof required was “beyond a reasonable doubt”. The tribunal chose the standard of proof.

PRESUMPTIONS

AND

INFERENCES

The tribunal has consistently held that by themselves invoices received by a party give rise to a presumption that the invoices are correct and are evidence of a debt. The presumption stands, if no objection is raised by the other party and may be rebutted, e.g., by production of evidence. In the Time, Inc. Case20 the invoices had been approved for payment by a respondent, but had not been paid. The tribunal held that this established a prima facie claim for the amount of the invoices which it recognized as successful in the “absence of persuasive evidence that such approval was erroneous”.21 In the R.J. Reynolds Tobacco Co. Case22 the tribunal held that, because the respondent had failed to object

16 17 18 19 20 21 22

(1984), (1989), (1986), Ibid. at (1984), Ibid. at (1984),

7 Iran-US CTR at p. 181. 23 Iran-US CTR at p. 150. 12 Iran-US CTR at p. 308. p. 315. 7 Iran-US CTR at p. 8. pp. 10–11. 7 Iran-US CTR at p. 181.

376


to invoices prior to the current arbitral proceedings, there was a presumption that the amounts in the invoices were not wrong. It was for the respondent to rebut this presumption, which it did not do and therefore, failed. In the Rockwell International Systems, Inc. Case the tribunal said: The Ministry’s failure to make a good faith effort to explicitly object to Rockwell’s invoices in a timely and specific manner created a situation where Rockwell was uncertain concerning what it should do in order to secure payment from the Ministry. The Tribunal has held in previous IBEX cases that this conduct by the Ministry raises the presumption that the contractor’s invoices should have been accepted. See Sylvania, Award No. 180–64–1 at p. 25, reprinted in 8 Iran-U.S. C.T.R. at 316; Questech, Award No. 191–59–1 at p. 26, reprinted in 9 Iran-U.S. C.T.R. at 126; Touche Ross, Award No. 197–480–1 at p. 18, reprinted in 9 Iran-U.S. C.T.R. at 298; Ford Aerospace, Partial Award No. 289–93–1 at para. 62, reprinted in 14 Iran-U.S. C.T.R. at 41; Harris, Partial Award No. 323–409–1 at para. 143, reprinted in 17 Iran-U.S. C.T.R. at 73.” 23

In the Questech, Inc. Case, the tribunal held that invoices submitted by the claimant which were prepared on the basis of records audited by the claimant’s auditor “while not proving each item in detail, creates a presumption that the Claimant incurred the costs reflected in the invoices”.24 The tribunal has not usually spoken of presumptions in other contexts. Rather, it has referred to shifting the burden of proof or drawing inferences from conduct or statements. There are several examples of the tribunal’s response to various types of evidentiary situations. In the absence of the “best” or “direct” evidence, the tribunal has made inferences from a failure of a party, generally the respondent, to produce evidence. For example, in the INA Corp.

23 24

(1989), 23 Iran-US CTR at p. 183. (1985), 9 Iran-US CTR at p. 126.


377

Case25 the tribunal drew negative inferences from the refusal of the respondent to produce the documents that would explain the basis on which an Iranian accounting firm concluded in its report that the value of an expropriated firm was negative at the date of expropriation. In accepting the plaintiff’s evidence of the value of the firm and not the respondent’s claims, the tribunal said: The report’s numerous references to special rules and directives of CII also make it impossible for the Tribunal to judge the validity of the valuation techniques used. The Respondent has furnished neither the texts of such rules and directives nor the underlying documents, although it was ordered to do so. The Respondent’s attempt to excuse its non-compliance with the Tribunal’s Order by merely stating that the documents were ‘voluminous’ is not convincing. The Respondent did not raise this asserted excuse until the hearing, long after the date for submission of these materials had passed; even then, the Respondent gave no indication of the actual amounts of material involved or any description of the alleged problems involved which prevented submission of the materials by the Respondent or their inspection by INA. In assessing the evidentiary weight of the Amin report, the Tribunal must draw negative inferences from the Respondent’s failure to submit the documents which it was ordered to produce. In sum, the Amin report is so qualified and limited, and so influenced by unexplained, specially adopted (and not generally accepted) accounting techniques, that it cannot be considered to reflect the value of Shargh at the time of nationalisation. The balance sheets and testimony submitted by INA constitute convincing evidence that Shargh’s value had, if anything, increased the year following INA’s investment.26

Other cases in which the plaintiff’s claim as to the existence and value of machinery and goods was accepted because of an inference in its favour resulting from the respondent’s failure to produce

25 26

(1985), 8 Iran-US CTR at p. 373. Ibid. at p. 382.

378


countervailing evidence are the Foremost Tehran, Inc., et al. Case27 and the Sedco, Inc. Case.28 There are cases, on the other hand, in which the tribunal has refused to draw adverse inferences against the respondent but concluded that adverse inferences were to be drawn against the plaintiff because of its failure to produce evidence in its control. In rejecting a claim for lack of evidence in the H.A. Spaulding, Inc. Case, the tribunal drew adverse inferences from the failure of the plaintiff to produce evidence supporting its assertion that it had done substantial work for a respondent.29 It also refused to draw adverse inferences from the failure of the Iranian Government to produce corporate records of the plaintiff which were allegedly maintained in Iran. The tribunal said: Although it might be reasonable to assume Iranian custody and control of documents of a company of which Iran assumed control following the Iranian Revolution, that is not a natural assumption in the case of an individual operating apparently alone as to whom there is no allegation that his business was expropriated. Therefore even though Claimant’s Tehran records are no longer available to Claimant it does not follow that they are available to Respondents and that inferences therefore may be drawn against them.30

In the Kathryn Faye Hilt Case31 the tribunal rejected a claim for a 25 per cent pay increase. While the tribunal acknowledged that the respondent employer had access to records that would clarify whether there had been such an increase, it refused to draw an adverse inference against the respondent, because the plaintiff, who had the burden of proof, also had access to corroborating evidence and failed to produce it. In the William J. Levitt Case32 27

(1986), 10 Iran-US CTR at p. 228. (1987), 15 Iran-US CTR at p. 23. 29 (1986), 10 Iran-US CTR at pp. 31–3. 30 Ibid. at pp. 31–2. See also the George Edwards Case (1989), 23 IranUS CTR at p. 293. 31 (1988), 18 Iran-US CTR at p. 154. 32 (1991), 27 Iran-US CTR at p. 145. 28


379

the tribunal found that the respondents had failed to produce a number of documents that had been requested by the tribunal, noting that their often contradictory and evasive explanations suggested deliberate non-compliance rather than an inability to produce them. The tribunal reiterated that it is an accepted principle that adverse inferences may be drawn from the failure by a party to submit evidence likely to be at its disposal. However, it said that the respondents’ failure did not relieve the plaintiff of his obligation to muster all the evidentiary support at his disposal.33 No adverse inference was drawn against the respondent and the plaintiff failed in his claim. Inferences may be drawn from the contemporary conduct of one or both parties. In the DIC of Delaware, Inc., et al. Case,34 the tribunal dismissed for lack of proof a counterclaim based on defective performance under construction contracts. The tribunal stated clearly that it gave weight to the evidence that the respondent’s allegations were never made during the years the construction work occurred and said that the failure of the contractors to object to alleged defects in the work in a timely fashion raised serious doubts as to the existence of such defects.35 In subsequent cases the tribunal consistently cited delays in the making of complaints as evidence undermining the credibility of the complaints.36 In the Rockwell International Systems, Inc. Case37 the tribunal said: Considering the evidence in its entirety, the Tribunal concludes that, subject to some adjustments, the Claim for invoices through 33

Ibid. at pp. 164–5. There was a dissent on this point by the U.S. member of the tribunal who thought that more adverse inferences should have been drawn: ibid. at p. 180. 34 (1985), 8 Iran-US CTR at p. 144. 35 Ibid. at p. 176. 36 See also cases such as the Austin Co. Case (1986), 12 Iran-US CTR at pp. 294–5; the Oil Field of Texas, Inc. Case (1986), ibid. at pp. 315–16; the Ford Aerospace and Communications Corp. Case (1987), 14 Iran-US CTR at p. 36. 37 (1989), 23 Iran-US CTR at p. 150.

380

Chapter 16. Evidence Before the Iran-US Claims Tribunal August 1979 is sufficiently substantiated, reasonably documented, and conclusive. Rockwell has, therefore, at a minimum established a prima facie case for payment of the invoices. Prima facie evidence must be recognized as a satisfactory basis to grant a claim where proof of the facts underlying the claim presents extreme difficulty and an inference from the evidence can be reasonably drawn. This is particularly true where the difficulty of proof is the result of the respondent’s failure to raise objections in a timely manner and in such a way that the claimant could adequately establish its Claim. In such a case, a lower standard of proof is acceptable.”38

There was sufficient evidence in this case to warrant the desired conclusion on the balance of probabilities. Consequently, the reference to a lower standard for ultimate proof when the evidence initially supports a prima facie case is questionable. In the Collins Systems International, Inc. Case39 the tribunal rejected a defence of payment of an invoice in 1978 in the absence of proof of payment. It drew its inference from the failure of the Navy to object at the time to the inclusion of that invoice in a 1979 list of unpaid invoices.40 In the Amman & Whitney Case41 the tribunal had to decide whether two letters that purported to confirm understandings reached at a meeting were amendments to a contract. It relied upon the conduct of the parties in inferring and concluding that they were not amendments, but merely proposals. In the Iran National Airlines Co. Case42 the tribunal relied upon evidence of the contemporary practice of the parties to determine whether signatures of a representative of the respondent were required to create a contract for catering services.

38

Ibid. at p. 188. (1992), 28 Iran-US CTR at p. 21. 40 See also the Houston Contracting Company Case (1988), 20 Iran-US CTR at p. 3. 41 (1986), 12 Iran-US CTR at p. 94. 42 (1987), 17 Iran-US CTR at p. 187. 39

Admissibility and Evaluation of Evidence ADMISSIBILITY

AND

EVALUATION

381 OF

EVIDENCE

The tribunal has more often than not had to deal in the cases decided with the weight to be given to evidence in regard to a variety of issues of substance.43 There is a good deal of judgment involved in such an exercise. Suffice it here to illustrate the tribunal’s practice in respect of the adequacy or inadequacy of evidence, first, in relation to certain categories of facts to be proved, and, secondly, in terms of the kind of evidence in issue. (a) Categories of facts to be proved In the Dames and Moore Case, the tribunal decided that a 1973 contract between the plaintiff and the National Iranian Gas Co. (NIGC) had been entered into on the basis of two invoices and an affidavit by Mr. Yaghoubian, the plaintiff’s office manager in Tehran during the relevant period. NIGC denied the existence of a contract but did not deny that the services were performed or that the invoices were accurate. The tribunal said: While Claimant has not presented a copy of the alleged contract, explaining that it has been unable to recover its records from Iran, the two invoices submitted both refer to ‘contract agreement No. 302/2093’. These references, together with the statement of Mr. Yaghoubian and the fact that NIGC does not dispute that the services were performed, are sufficient to indicate that the parties entered into a contract.44

Later, in the H.A. Spaulding, Inc. Case45 the tribunal dismissed for lack of proof claims based upon contracts for the design and construction of highways in Iran which the respondent Ministry denied were ever concluded. The tribunal was of the view that the evidence consisted merely of affidavits by the plaintiff and by

43 44 45

See Aldrich, op. cit. note 3 passim. (1983), 4 Iran-US CTR at p. 228. (1986), 10 Iran-US CTR at p. 22.

382


his agent in Tehran, Mr. Kasham, and a limited number of communications between that agent and the Ministry over a period of almost four years and that this correspondence reflected solicitation and negotiation rather than actual contractual services. The tribunal also made some remarks on evidence which should have been but had not been produced. The viability of this claim is cast more in doubt when one considers what has not been proffered by the Claimant. One would have thought that if, as Claimant alleges, substantial engineering, design and architectural work had been done by Claimant at the request of and for the benefit of MORT (the Ministry), whether pursuant to written contract or otherwise, Mr. Kasham would at least have been able to submit testimonial evidence describing the actual work done. One would assume, too, that expense records would support the claims. To the contrary, however, only the most conclusory allegations are set forth in his affidavit. In addition, no substantial proof is submitted of any professional services having actually been rendered. It would have been natural, too, for Claimant to have started invoicing MORT for work done and to demand payment, which it never did. Finally, had material work been performed one would have expected some evidence of actual efforts to form ‘a consortium’ to build the roads, as was frequently mentioned in the correspondence and in the pleadings. Yet there is none.46

In the Amman and Whitney Case47 the tribunal concluded that there had been no agreement on a proposed addendum and two proposed amendments to the contract. In reaching that decision the tribunal relied both upon the written evidence and, particularly, upon the actions of the parties. In the Avco Corp. Case48 the tribunal rejected a claim for the amounts of certain unpaid invoices when copies of the invoices 46

Ibid. at pp. 32–3. (1986), 12 Iran-US CTR at pp. 102–3. 48 (1988), 19 Iran-US CTR at p. 200. For the sequel in the US courts to this case see Aldrich, op. cit. note 3 pp. 356–7. 47

Admissibility and Evaluation of Evidence

383

themselves were not submitted by the plaintiff, who submitted instead a verification of those invoices by an independent accountant. Plaintiffs usually did produce as evidence copies of invoices upon which claims were based or copies of other documents giving rise to debts. However, in the Collins Systems International, Inc. Case49 the tribunal found that a claim for a debt based on invoices produced which had never been submitted to the other party and were unsupported by any other evidence had not been proved. In general the tribunal was prepared to conclude that costs had been incurred whenever the contemporary correspondence and behavior of the parties so indicated, although detailed court records had not been produced.50 In the William J. Levitt Case the tribunal indicated when documentation on costs might, on the other hand, be required for proof: The standard of evidence required will be more exacting in the case of costs allegedly incurred in the United States, for which documentation should be readily available, than in the case of costs incurred in Iran, to which different considerations apply.51

Proof of ownership of shares in a corporation or of a partnership was usually not difficult, even if the ownership was not recorded but rather beneficial ownership. In one case,52 however, the informality and complexity of the arrangements for ownership persuaded the tribunal to be suspicious of them and to dismiss the case for lack of standing. In Islamic Republic of Iran v. United States of America53 the issue was the evaluation of evidence or what evidence was sufficient. The case involved contracts for delivery of items and the

49

(1992), 21 Iran-US CTR at p. 40. See, e.g., the Questech, Inc. Case (1985), 9 Iran-US CTR at p. 107. 51 (1987), 14 Iran-US CTR at p. 203. 52 The Roy P.M. Carlson Case (1991), 26 Iran-US CTR at p. 193. The American arbitrator dissented in this case: ibid. at p. 216. 53 (1986), 10 Iran-US CTR at p. 207. 50

384


contention put forward by the respondent (the U.S.A.) was that a “delivery listing” provided periodically to the plaintiff indicating delivery of an item was conclusive evidence of shipment for purposes of the contract. The tribunal in its decision rejected that contention, holding that a delivery listing, unlike a shipping document which showed receipt by a carrier, freight forwarder, or authorized agent of the purchaser, was a unilateral document that, by itself, did not constitute conclusive evidence of shipment. In implementing a standard clause in certain sales contracts, the tribunal had been confronted with proof of shipment of defence articles to Iran or its freight forwarders for which Iran was billed. In addition to its holding, the tribunal made some remarks with regard to the nature of evidence required for proof of shipment in general. 31. The type, quantum and burden of proof required to establish whether an article was shipped cannot be determine definitively in the abstract, because these questions may well vary with the nature and circumstances of particular transactions. The Tribunal does not believe it feasible to decide these questions in the present proceeding, which is in advance of consideration by the Tribunal of actual disputes as to shipment of particular articles. However, for the guidance of the Parties in their present efforts to define the nature and extent of such disputes, the Tribunal is prepared at this stage to decide the adequacy of two types of evidence. First, the Tribunal holds that a shipping document which shows receipt by a carrier, freight forwarder or authorized representative of the purchaser and which identifies the defense article in question as having been shipped shall, by itself, constitute conclusive evidence of shipment. Second, the Tribunal holds that a delivery listing (a document attached to each quarterly billing statement for each contract), by itself, does not constitute such evidence. What other documents or combinations of documents may suffice to establish shipment, the Tribunal will decide only in the context of concrete disputes about shipment of particular defense articles. 32. In explanation of these holdings, the Tribunal notes that, while a delivery listing constitutes notice that the listed equipment has been shipped on a certain date, it is not conclusive evidence of


385

shipment, and therefore of passage of title. A delivery listing is a unilateral document, whereas a shipping document records receipt of defence articles from the shipper and thus involves at least two parties. A delivery listing contains no identification of the means of shipment, carrier or destination. In this connection, the Tribunal notes the apparent connection between the one-year notice period and the question of the possible liability of the carrier. The purchaser is responsible for settlement of claims against common carriers under Clause B.6, but it is not informed by a delivery listing alone of the identity of the carrier, or even whether a common carrier was involved. 33. Certainly it is true that the delivery listing puts the purchaser on notice that the seller believes the identified article has been shipped, and such notice may be relevant to the burden of proof. But the Tribunal does not consider the delivery listing as conclusive with respect to passage of title for purposes of the one-year period after which a claim is totally barred by virtue of Clause B.6.”54

Clearly, the tribunal was of the view that a delivery listing by itself was, in the circumstances of the case, only relevant to the burden of proof and was not conclusive evidence. It is possible that a delivery list with other evidence could be conclusive in different circumstances. This possibility was, however, not addressed by the tribunal. For the purpose in hand the tribunal was of the view that the delivery listing was only relevant to the burden of proof which had not been discharged. The view has been taken, it would appear, that the tribunal did not state that a delivery listing by itself cannot be sufficient proof of shipment.55 But on the contrary, the tribunal held categorically that the delivery list was insufficient for proof in the case. On the other hand, in the International Technical Products Corp., et al. Case56 the tribunal held that packing lists supplied by a respondent, as substantiated by

54 55 56

(1986), 10 Iran-US CTR at pp. 216–17. Aldrich, op. cit. note 3 p. 336. (1985), 9 Iran-US CTR at p. 10.

386


testimony at the hearing, constituted prima facie evidence that the parts listed were shipped. Though packing lists are less cogent than delivery lists, they were substantiated by oral testimony which made the difference. In the Iran National Airlines Co. Case57 the tribunal dismissed claims based on invoices not supported by documentation signed by a representative of the respondent indicating that the requested supplies or services were rendered. (b) Categories of evidence adduced Many different categories of evidence have been produced before the tribunal. They include contracts, shipping documents, invoices, correspondence, acceptance documents, affidavits, testimony at hearings, notes of meetings, passports, birth certificates, government documents, audit reports, corporate proxy statements, reports of experts chosen by the parties or appointed by the tribunal, photographs, and, even samples of electrical wires produced by the claimant. In general the tribunal received all evidence that was timely submitted without declaring it inadmissible, on the basis that it would later decide on its relevance, weight and materiality. The tribunal’s encounter with some types of evidence is dealt with below. (i) Oral testimony at hearings Oral testimony given at hearings was short and for the tribunal in general not as important as other kinds of evidence.58 The following explanation has been given of this: the fact that the claims typically had arisen anywhere from five to fifteen years prior to the hearings doubtless goes some way to explain this, but it is also clear that the Tribunal trusted con-

57

(1987), 17 Iran-US CTR p. 187. In this respect the proceedings before the tribunal differ from international criminal proceedings: see Chapter 15. 58


387

temporary documents more than the memories or veracity of witnesses.59

More importantly, the Tribunal created in practice a symbolic distinction between ‘independent’ witnesses and ‘party’ witnesses. Article 25 of the Tribunal Rules provides that any party wishing to present witnesses at a hearing shall communicate at least thirty days before the hearing the names and addresses of such witnesses and the subject on which they will testify. In the notes to Article 25, a solemn declaration is prescribed for each witness to make prior to testifying. Nevertheless, the Tribunal decided that Claimants themselves, as well as claimants’ spouses and children and the executives or other senior officers of corporate claimants, would not have to be notified thirty days prior to a hearing and would not be asked to make the solemn declaration. In many cases, even lower-ranking employees of a claimant company were treated in the same way. Such witnesses were considered ‘party’ witnesses. While the tribunal generally followed this practice, it was not often explained in the Tribunals’ Awards.60

The practice and its significance was, however, described by the tribunal in cases such as the Harris International Telecommunications, Inc. Case: 107. Although refusing to admit the persons named by the Claimant in its late filing as witnesses, the Tribunal noted at the Hearing that any Party is free to choose the persons it wishes to present its case, including those not accepted by the Tribunal as witnesses and may receive information from them. See Economy Forms Corp. and Government of the Islamic Republic of Iran, Award No. 55– 165–1 (14 June 1983). Such persons do not make the declaration that witnesses are required to make in accordance with Note 6(a) to Article 25 of the Tribunal Rules. The Tribunal, of course, may

59 60

See Aldrich, op. cit. note 3 p. 347. See Aldrich, ibid.

388

Chapter 16. Evidence Before the Iran-US Claims Tribunal attach a different ‘weight’ (Article 25, paragraph 6) to information provided by such persons as compared to the testimony of witnesses. 108. For the foregoing reasons, in assessing the evidence before it, the Tribunal does not consider the statements made at the Hearing on behalf of the Claimant by Mr. Stitt and Mr. Scott, who were both on the witness list, as those of witnesses, but does consider them as part of the presentation of the Case by the Claimant in the Hearing.61

It is generally not clear in the tribunal’s judgments whether in fact less weight was given to testimony by “party” witnesses than to testimony by “independent” witnesses. A few examples may be given of “party” testimony and its treatment by the tribunal. In the Avco Corp. Case, the tribunal dismissed a claim as unproven, when the only evidence of the amount of unmitigable losses resulting from breach of contract was the testimony of the plaintiff corporation’s officers.62 In the T.C.S.B., Inc. Case,63 on the other hand, the tribunal, while noting that it preferred documents, accepted as proof of the U.S. nationality of the four owners of the claimant corporation testimony at the hearing by the president and the vice-president of the corporation. It did not follow from the fact that an “independent” witness or “independent” witnesses had testified that their testimony was treated as necessarily credible. In the Harold Birnbaum Case64 the tribunal decided on the tax liability of an expropriated firm ignoring the testimony of the respondent’s expert witness, for the reason, which was given, that the respondent had not submitted the actual tax documents that formed the basis for that testimony. In the Petrolane, Inc., et al. Case,65 on the other hand, the tribunal had doubts that used drilling equipment had the same value as new equipment, as the claimant’s expert witness had testified,

61 62 63 64 65

(1987), (1988), (1984), (1993), (1991),

17 Iran-US CTR at p. 63. 19 Iran-US CTR at p. 200. 5 Iran-US CTR at p. 160. 19 Iran-US CTR at p. 260. 27 Iran-US CTR at p. 64.


389

but, in the absence of any other evidence, the tribunal accepted that value, on the basis that it was the only value in evidence. Witnesses have not been admitted when introduced as rebuttal witnesses in violation of Note 2 to Article 25 of the Rules. In the Uiterwyck Corp., et al. Case66 a proposed witness was rejected by the tribunal as not a rebuttal witness. In the Norman Gabay Case67 the tribunal refused to allow a witness to be presented as a rebuttal witness. The plaintiff stated that it was only shortly before the hearing, when he inspected the original of a document which the respondent had lodged with the tribunal for inspection more than eighteen months earlier, that he realized that the witness should be present to testify as to the date of the taking of his property. The tribunal found that the delay in inspection of the document was the fault of the plaintiff and that the only new evidence to be presented by the respondent was by a documents expert, which the proposed plaintiff’s witness would not be rebutting. (ii) Hearsay evidence The tribunal has uniformly not based its decisions on hearsay evidence. There are several cases which illustrate this approach.68 In the Jalal Moin Case the tribunal found inadequate for the purposes of proof a witness’s testimony that, while visiting the properties in question in 1986, he had been told that, after the Iranian Revolution, the properties belonged to the Foundation for the Oppressed. In rejecting the evidence as hearsay the tribunal said: The Tribunal considers this to be hearsay evidence, on which it cannot rely, unless the evidence is substantiated. Such substantiation is missing. The Tribunal is mindful of the difficulties faced by the Claimant in collecting evidence, although the Tribunal would

66

(1988), 19 Iran-US CTR at p. 107. (1991), 27 Iran-US CTR at p. 40. 68 See, e.g., the AHFI Planning Associates Case (1986), 12 Iran-US CTR at p. 335; the Rockwell International Systems, Inc., Case (1989), 23 Iran-US CTR at pp. 180–1. 67

390

Chapter 16. Evidence Before the Iran-US Claims Tribunal expect that any taking of the properties in question would be indicated in some documentary evidence, for example, in contemporary correspondence. In any event, the Tribunal must base its awards on probative evidence.69

In the Charles P. Stewart Case the tribunal described the hearsay evidence as being “of marginal evidentiary value”.70 While documents as such may be regarded as hearsay evidence, as they are in criminal litigation, under the Rules of the Iran-United States Claims Tribunal they are dealt with separately and will be discussed below. (iii) Affidavits By virtue of Articles 24(2) and (3) of the Rules the tribunal clearly not only has the power to order the production of documents but also, at any rate by implication, is empowered to rely on them in arriving at its decisions. Affidavits are one form discussed hereafter. Affidavits which were signed and witnesses or notarized often formed at least part of the evidence in a case. Some of these affidavits were made by persons whom the tribunal considered “independent” witnesses, but more often the author was the plaintiff or officers or employees of corporate plaintiffs. The value (weight) and credibility of such affidavits was not uniform. However, the tribunal’s judgments usually do not reveal the thinking of the tribunal about their value. The tribunal’s general approach was to treat affidavit evidence as more credible and of greater value, if it was consistent with and supported by documentary evidence than if it stood alone as the sole evidence on an issue. The tribunal also tended to give greater credibility and value to affidavit evidence, if the affiant subsequently appeared as a witness at a hearing, where he could be cross-examined by the opposing party and questioned by the tribunal. It also was true, as with oral tes-

69 70

(1994), 30 Iran-US CTR at pp. 74–5. (1980), 24 Iran-US CTR at p. 119.


391

timony, that, all other things being equal, an affiant with no evidence interest in the outcome of the case had greater credibility than an affiant who had such an interest. Affidavits made by “party” witnesses would have been given less value as a rule. That is as much as could be inferred. Some of the considerations the tribunal would have taken into account in dealing with affidavits as evidence are reflected in the W. Jack Buckamier Case, where it was stated: The Tribunal has often been presented with notarized affidavits or oral testimony of claimants or their employees. Rare are the cases where such an issue does not arise. The probative value of such written or oral declarations is usually hotly debated between the parties, each of them relying on the peculiarities of its own judicial system. . . . The Tribunal has, in the past, adopted a pragmatic and moderate approach towards this problem by deciding, on a case by case basis, whether the burden of proof has been properly sustained by each contending party, taking into consideration those declarations together with all other evidence submitted in the case, the particulars of the case and the attitude of both parties in the proceedings. This pragmatic approach does not always seem to have been well understood, since the same debate continues to arise, often in the same terms, in case after case. . . . As an international Tribunal established by agreement between two sovereign States, the Tribunal cannot, in the field of evidence as in any other field, make the domestic rules or judicial practices of one party prevail over the rules and practices of the other, in so far as such rules or practices do not coincide with those generally accepted by international Tribunals. In this context, it can be observed that declarations by the parties, or employees of the parties, in the form of notarized affidavits or oral testimony, are often submitted as evidence before such Tribunals. They are usually accepted, but, apparently, their probative value is evaluated cautiously, in a manner generally comparable to the attitude of this Tribunal as just described. It is clear that the value attributed to this kind of evidence is directly related not only to the legal and moral traditions of each country, but also to a system of sanction in case of perjury, which

392

Chapter 16. Evidence Before the Iran-US Claims Tribunal can easily and promptly be put into action and is rigorous enough to deter witnesses from making false statements. Such a system does not exist within international Tribunals and recourse to the domestic courts of the witness or affiant by the other party would be difficult, lengthy, costly and uncertain. In the absence of any practical sanction (other than the rejection by the international Tribunal of the discredited evidence), oral or written evidence of this kind cannot be accorded the value given to them in some domestic systems. Also it cannot be discounted that the ethical barriers which prevent the making of statements not in conformity with the truth before national courts will not have the same strength in international proceedings, notably when the other party is a foreign government, the conduct of which was severely condemned by public opinion in the country of the other party. On the other hand, it must be recognized that in many claims filed with the Tribunal, claimants face specific difficulties in the matter of evidence, for which they are not responsible. Such is particularly the case when U.S. claimants were forced by revolutionary events and the chaotic situation prevailing in Iran at the time, to rush out of Iran without having the opportunity or the time to take with them their files, including documents which normally should be submitted as evidence in support of their claims. In many instances, the situation in Iran between the establishment of the Revolutionary Islamic Government on 11 February 1979 and the taking of the American Embassy on 4 November 1979 was not sufficiently settled to permit a return to Iran, or in case of return, . . . to recover the files left behind. After 4 November 1979 and up to the critical dates of 19 January 1981 and 19 January 1982, collection of documents in Iran by U.S. nationals was almost impossible. Obviously, these facts made it very difficult for the claimants who did not keep copies of their files outside Iran to sustain their burden of proof in the ways which would be expected in normal circumstances. In view of these facts, the Tribunal could not apply a rigorous standard of evidence to the claimants without injustice. In adopting a flexible approach to this issue, however, it must not lose sight of its duty to protect the respondents against claims not properly evidenced. At any rate, it must be satisfied that the facts on which its awards rely are well established and fully comply with the provisions of . . . its Rules of procedure.


393

In order to keep an equitable and reasonable balance between those contradictory requisites, the Tribunal must take into consideration the specific circumstances of each case, as well as all the elements which can confirm or contradict the declarations submitted by the Claimants. The list of such elements is practically unlimited and varies from case to case. The absence or existence of internal contradictions within these declarations, or between them and events or facts which are known by other means, is obviously one of them. Explicit or implied admission by the other party is another, as well as the lack of contest or the failure to adduce contrary evidence, when such evidence is apparently available or easily accessible. In relation to this last element, however, the Tribunal must not disregard the fact that destruction due to revolutionary events or to the war, the departure from Iran of persons responsible for the conduct of the business at the time of the facts referred to in the claim, changes in the direction or the management of the undertakings concerned, can also impair the Respondents’ ability to produce evidence. It is often a delicate task to determine if and to what extent respondents would be responsible for such a difficulty.71

Evidently, there are no clear and abiding general principles relating to affidavits other than those outlined here which can be extracted from the tribunal’s practice. With a few more qualifications as generalities referred to in the text before the citation to which there may be exceptions, the relevant principles are stated in the citation with particular reference to the circumstances of the cases before the tribunal. Some examples of the tribunal’s evaluation of affidavits, which reveal the caution it exercises are available. In the AHFI Planning Associates Case the tribunal considered as an inadequate basis for attributing responsibility to the Iranian Government an affidavit by an employee of the plaintiff stating that he received a telephone call from the plaintiff’s Iranian landlord who said that unidentified persons, labeled as “representatives of a revolutionary committee”, had occupied the lease 71

(1992), 28 Iran-US CTR at pp. 74–6.

394


offices and taken possession of the plaintiff’s property.72 In the Flexi-Van Leasing, Inc. Case the tribunal considered an affidavit too vague to permit the amount of unjust enrichment to be determined and noted that the affiant had not been presented as a witness at the hearing.73 In the Reza Said Malek Case the tribunal analyzed in detail affidavit and testimonial evidence as to the date of expropriation of property.74 The fact that affidavits are generally not favoured by themselves does not mean that they were not, often in fact, relied upon by the tribunal in reaching its decisions, particularly when they were supported by other evidence or when no rebuttal evidence was presented or no reason to doubt them otherwise existed. The reasons for this were given in the Jack Buckamier Case cited above. In the Nazari Case affidavits supported by oral evidence given by the affiant were examined by the tribunal but found to be insufficient on their merits to prove the claim.75 In the O & E Aryeh Case affidavits sworn by family members were found to be inadequate for proof without corroboration.76 (iv) Photographs Photographs were occasionally submitted in pleading by parties. But they were not critical pieces of evidence. Photographs were introduced in the DIC of Delaware, Inc., et al. Case, where the tribunal gave them light weight as evidence. The tribunal explained its approach as follows: TRC has submitted what purports to be photographs of the Ekbata project. But they are not authenticated in any manner. There is no evidence before the Tribunal as to who took the photographs; who is, and what are the qualifications of, the person(s) who provided

72 73 74 75 76

(1986), (1986), (1992), (1994), (1997),

11 12 28 30 33

Iran-US Iran-US Iran-US Iran-US Iran-US

CTR CTR CTR CTR CTR

at at at at at

p. 178. pp. 354–5. pp. 280–3. p. 153. p. 478.


395

the commentary to each picture; when the work photographed was performed and by whom; the date and place that the pictures were taken; or who was responsible for the alleged defects shown. Indeed, there is evidence that the Contractors specifically notified TRC that they could not be responsible for the work of some subcontractors hired by TRC (e.g. core concrete work). A representative of TRC stated at the Hearing that the photographs had been taken ‘recently’. This casts serious doubt on their value as evidence of conditions at the time the Claimants’ activities ceased in 1978. There is no indication that the pictures portray defects attributable to the work of any of the Contractors. Thus the photographs can be accorded little evidentiary weight. This is particularly the case in view of the Claimants’ evidence that the alleged defects were either attributable to other contractors employed on finishing work, or in fact were monitored and found not to be such defects that would be considered abnormal or beyond specifications.77

In the Edgar Protiva et al. Case78 an enlarged photograph allegedly taken in 1987 was produced. The tribunal said that this provided only some support for the plaintiff’s argument that the deprivation of property rights continued long after it began in 1980. In the Mohtadi Case79 photographs which were produced to show the natural forestation on a property were examined and found by the tribunal to be insufficient proof of what was sought to be proved. (v) Technical reports In many cases, one or more parties submitted reports on financial or technical question prepared by experts retained by that party. Often, these experts would also testify as witnesses. While these reports by experts were a factor influencing the tribunal in choosing not to appoint its own experts in some cases, the tribunal naturally did not in general feel itself bound by the conclusions

77 78 79

(1985), 8 Iran-US CTR at p. 173. (1995), 31 Iran-US CTR at pp. 98–9, 113. (1996), 32 Iran-US CTR at p. 151.

396


of these “party” experts and often preferred to make its own judgments and estimates on such matters, particularly on financial matters. In the Phillips Petroleum Co. of Iran Case,80 for example, both parties presented extensive and voluminous expert reports and expert testimony upon such questions as the quantity of oil that could reasonably have been expected to be produced from the oil fields in question during the remaining life of the contracts that were abrogated in 1979 by Iran, the range of oil prices that would reasonably have been expected in 1979 to have prevailed during those remaining years, the predictable costs of oil production during those years, the risks that would have been foreseen in 1979, and the effect of those risks on the fair market value of the claimant’s contract rights in 1979. The tribunal did not reject these reports and this testimony but rather after considering carefully and making some use of the analyses by the parties’ experts made its own analysis and reached its own conclusions on each of the questions. There were also, on the other hand, cases in which the expert or technical reports produced by parties were not persuasive, because they were inadequately documented or explained or were merely conclusions.81 (vi) Experts appointed by the tribunal Experts have been appointed by the tribunal in some cases usually to analyze complex or voluminous evidence of a technical or financial nature. But such a source of assistance in dealing with evidence has been used very sparingly by the tribunal. The experts were selected in a variety of ways ranging from agreement between the parties to selection by the tribunal based upon recommendations of professional associations or of the tribunal’s Chairman. This source of evidence can prove very expensive for one or both parties.

80

(1989), ibid. at pp. 125–41. See, e.g., the DIC of Delaware, Inc. et al. Case (1985), 8 Iran-US CTR at pp. 172–3; the INA Corporation Case (1984), ibid. at p. 377. 81


397

The first case in which the tribunal appointed experts was the Richard D. Harza, et al. Case 82 which involved claims and counterclaims arising out of a contractual relationship for engineering consulting on some extensive hydroelectric construction projects in Iran. The terms of reference were set by the tribunal, though they were amended four times. The cost of the experts’ work was paid as their work progressed from funds advanced equally by both sides in the case. The experts’ reports were commented upon in draft by the parties prior to their finalization and submission to the tribunal in February and March 1984. Two of the experts participated in one of the tribunal’s hearings. The views and findings of the experts clearly were needed and relied upon by the tribunal on many questions, particularly those involving compliance or noncompliance with professional engineering standards. The plaintiffs were successful on both claims and counterclaims. There have been some other cases in which the tribunal appointed experts and used their findings. For example, in the Chas T. Main International Inc., Case83 the report of experts on engineering practices and fees payable to the plaintiff was relied upon by the tribunal, and in the Behring International Inc., Case84 an expert was appointed to make an inventory of the plaintiff’s goods in a warehouse and the inventory was used in deciding the case. On the other hand, while experts may be appointed to report, the case, for whatever reason, may be settled after the experts submit their report and before the case is decided. This happened in the Sun Company, Inc. Case85 and the Atlantic Richfield Co. Case86 in both of which the experts were to report on the quantity of petroleum which would have been produced had the contracts of the plaintiffs not been abrogated.

82 83 84 85 86

(1986), (1983), (1983), (1992), (1992),

11 Iran-US CTR at p. 76. 3 Iran-US CTR at p. 156. 4 Iran-US CTR at p. 89. 28 Iran-US CTR at p. 394. 28 ibid. p. 401.

398


Moreover, there are cases in which the tribunal has chosen to disagree with the findings and opinions of experts. Two cases illustrate this. In the Starrett Housing Corp., et al. Case87 the accounting expert appointed was provided terms of reference for work with respect to valuation of property taken by the respondent. This report was voluminous and its cost exorbitant. The tribunal reduced the expert’s figures on valuation drastically in its final decision on compensation for the taking. The expert’s figures were 377 million rials as gross profit from the project and 231 million rials as the plaintiff’s share. The figures arrived at by the tribunal were 27 million rials and 17.46 million rials respectively. It must be noted, however, that the findings of the expert on some matters were accepted by the tribunal after considering such factors as the meticulousness of his work. In the Shahin Shaine Ebrahimi, et al. Case88 also the expert appointed by the tribunal was requested to assist in valuing an Iranian company in which the plaintiffs were shareholders. The tribunal did give careful consideration to the report and the comments of the parties on it. While the tribunal adopted the expert’s views and conclusions on many issues, it did not hesitate to reject them when it disagreed.89

87

(1987), 16 Iran-US CTR at p. 112. (1994), 30 Iran-US CTR at p. 170. 89 On the treatment of experts by the tribunal see particularly Aldrich, op. cit. note 3 pp. 343–7; Holtzmann, loc. cit. note 5 at pp. 122–6. There may be circumstances where the tribunal finds that one of the parties could have submitted as evidence the report of an expert or experts retained by that party: see, e.g., the Houston Contracting Company Case (1988), 20 Iran-US CTR at pp. 79–80. 88

APPENDIX PROVISIONS RELATING TO EVIDENCE

I. PROVISIONS PERTAINING TO THE ICJ

(A) STATUTE

OF THE

ICJ

Article 43 1. The procedure shall consist of two parts: written and oral. 2. The written proceedings shall consist of the communication to the Court and to the parties of memorials, counter-memorials and, if necessary, replies: also all papers and documents in support. 3. These communications shall be made through the Registrar, in the order and within the time fixed by the Court. 4. A certified copy of every document produced by one party shall be communicated to the other party. 5. The oral proceedings shall consist of the hearing by the Court of witnesses, experts, agents, counsel, and advocates. Article 44 1. For the service of all notices upon persons other than the agents, counsel, and advocates, the Court shall apply direct to the government of the State upon whose territory the notice has to be served. 2. The same provision shall apply whenever steps are to be taken to procure evidence on the spot.

402

Appendix Article 45

The hearing shall be under the control of the President, or, if he is unable to preside, of the Vice-President; if neither is able to preside, the senior judge shall preside. Article 48 The Court shall make orders for the conduct of the case, shall decide the form and time in which each party must conclude its arguments, and make all arrangements connected with the taking of evidence. Article 49 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. Article 50 The Court may, at any, time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or given an expert opinion. Article 51 During the hearing any relevant questions are to be put to the witnesses and experts under the conditions laid down by the Court in the rules of procedure. . . . Article 52 After the Court has received the proofs and evidence within the time specified for the purpose, it may refuse to accept any further oral or written evidence that one party may desire to present unless the other side consents.

Provisions Pertaining to the ICJ (B) RULES

OF

COURT

403 OF THE

ICJ, 1978

Article 49 1. A Memorial shall contain a statement of the relevant facts, a statement of law, and the submission. 2. A Counter-Memorial shall contain: an admission or denial of the facts stated in the Memorial; any additional facts, if necessary; observations concerning the statement of law in the Memorial; a statement of law in answer thereto; and the submissions. 3. The Reply and the Rejoinder, whenever authorized by the Court, shall not merely repeat the parties’ contentions, but shall be directed to bringing out the issues that still divide them. 4. Every pleading shall set out the party’s submissions at the relevant stage of the case, distinctly from the arguments presented, or shall confirm the submissions previously made. Article 50 1. There shall be annexed to the original of every pleading certified copies of any relevant documents adduced in support of the contentions contained in the pleading. 2. If only parts of a document are relevant, only such extracts as are necessary for the purpose of the pleading in question need be annexed. A copy of the whole document shall be deposited in the Registry, unless it has been published and is readily available. 3. A list of all documents annexed to a pleading shall be furnished at the time the pleading is filed. Article 56 1. After the closure of the written proceedings, no further documents may be submitted to the Court by either party except with consent of the other party or as provided in paragraph 2

404

2.

3.

4.

5.

Appendix

of this Article. The party desiring to produce a new document shall file the original or a certified copy thereof, together with a number of copies required by the Registry, which shall be responsible for communicating it to the other party and shall inform the Court. The other party shall be held to have given its consent if it does not lodge an objection to the production of the document. In the absence of consent, the Court, after hearing the parties, may, if it considers the document necessary, authorize its production. If a new document is produced under paragraph 1 or paragraph 2 of this Article, the other party shall have an opportunity of commenting upon it and of submitting documents in support of its comments. No reference may be made during the oral proceedings to the contents of any document which has not been produced in accordance with Article 431 of the Statute or this Article, unless the document is part of a publication readily available. The application of the provisions of this Article shall not in itself constitute a ground for delaying the opening or the course of the oral proceedings. Article 57

Without prejudice to the provisions of the Rules concerning the production of documents, each party shall communicate to the Registrar, in sufficient time before the opening of the oral pro-

1

Article 43 reads 2. The written proceedings shall consist of the communication to the Court and to the parties of the memorials, counter-memorials and, if necessary, replies; also all papers and documents in support. 3. These communications shall be made through the Registrar, in the order and within the time fixed by the Court. 4. A certified copy of every document produced by one party shall be communicated to the other party.

Provisions Pertaining to the ICJ

405

ceedings, information regarding any evidence which it intends to produce or which it intends to request the Court to obtain. This communication shall contain a list of the surnames, first names, nationalities, descriptions and places of residence of the witnesses and experts whom the party intends to call, with indications in general terms of the point or points to which their evidence will be directed. A copy of the communication shall also be furnished for transmission to the other party. Article 61 1. The Court may at any time prior to or during the hearing indicate any points or issues to which it would like the parties specially to address themselves, or on which it considers that there has been sufficient argument. 2. The Court may, during the hearing, put questions to the agents, counsel and advocates, and may ask them for explanations. 3. Each judge has a similar right to put questions, but before exercising it he should make his intention known to the President, who is made responsible by Article 45 of the Statute for the control of the hearing. 4. The agents, counsel and advocates may answer either immediately or within a time-limit fixed by the President. Article 62 1. 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 matters in issue, or may itself seek other information for this purpose. 2. The Court may, if necessary, arrange for the attendance of a witness or expert to give evidence in the proceedings.

406

Appendix Article 63

1. The parties may call any witnesses or experts appearing on the list communicated to the Court pursuant to Article 57 of these Rules. If at any time during the hearing a party wishes to call a witness or expert whose name was not included in that list, it shall so inform the Court and the other party, and shall supply the information required by Article 57. The witness or expert may be called either if the other party makes no objection or if the Court is satisfied that his evidence seems likely to prove relevant. 2. The Court, or the President if the Court is not sitting, shall, at the request of one of the parties or proprio motu, take the necessary steps for the examination of witnesses otherwise than before the Court itself. Article 65 Witnesses and experts shall be examined by the agents, counsel or advocates of the parties under the control of the President. Questions may be put to them by the President and the judges. Before testifying witnesses shall remain out of court. Article 66 The Court may at any time decide, either proprio motu or at the request of a party, to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case relates, subject to such conditions as the Court may decide upon after ascertaining the views of the parties. . . . Article 67 1. If the Court considers it necessary to arrange for an enquiry or an expert opinion, it shall, after hearing the parties, issue an order to this effect, defining the subject of the enquiry or expert opinion, stating the number and mode of appointment

Provisions Pertaining to the ICJ

407

of the persons to hold the enquiry or of the experts, and laying down the procedure to be followed. Where appropriate, the Court shall require persons appointed to carry out an enquiry, or to give an expert opinion, to make a solemn declaration. 2. Every report or record of an enquiry and every expert opinion shall be communicated to the parties, which shall be given the opportunity of commenting upon it. Article 68 Witnesses and experts who appear at the instance of the Court under Article 62, paragraph 2, and persons appointed under Article 67, paragraph 1, of these Rules, to carry out an enquiry or to give an expert opinion shall, where appropriate, be paid out of the funds of the Court. Article 69 1. The Court may, at any time prior to the closure of the oral proceedings, either proprio motu or at the request of one of the parties communicated as provided in Article 57 of these Rules, request a public international organization, pursuant to Article 34 of the Statute, to furnish information relevant to a case before it. The Court, after consulting the chief administrative officer of the organization concerned, shall decide whether such information shall be presented to it orally or in writing, and the time-limits for its presentation. 2. When a public international organization sees fit to furnish, on its own initiative, information relevant to a case before the Court, it shall do so in the form of a Memorial to be filed in the Registry before the closure of the written proceedings. The Court shall retain the right to require such information to be supplemented, either orally or in writing, in the form of answers to any questions which it may see fit to formulate, and also to authorize the parties to comment, either orally or in writing, on the information thus furnished.

408

Appendix

3. In the circumstances contemplated by Article 34, paragraph 3,2 of the Statute, the Registrar, on the instructions of the Court, or of the President if the Court is not sitting, shall proceed as prescribed in that paragraph. The Court, or the President if the Court is not sitting, may, as from the date on which the Registrar has communicated copies of the written proceedings and after consulting the chief administrative officer of the public international organization concerned, fix a time-limit within which the organization may submit to the Court its observations in writing. These observations shall be communicated to the parties and may be discussed by them and by the representative of the said organization during the oral proceedings. 4. In the foregoing paragraphs, the term “public international organization” denotes an international organization of States.

2

Article 34 (3) of the Statute provides for notification of public international organizations concerned and communication to them of the written proceedings in certain circumstances involving them.

II. RULES OF THE UNAT, 1998

CHAPTER III. WRITTEN

PROCEEDINGS

Article 7 1. Applications instituting proceedings shall be submitted to the Tribunal through the Executive Secretary in any one of the official languages of the United Nations. Such applications shall be divided into four sections, which shall be entitled respectively: I. Information concerning the personal and official status of the applicant; II. Pleas; III. Explanatory statement; IV. Annexes. 3. The pleas shall indicate all the measures and decisions which the applicant is requesting the Tribunal to order to take. They shall specify: (a) Any preliminary or provisional measures, such as the production of additional documents or the hearing of witnesses, which the applicant is requesting the Tribunal to order before proceeding to consider the merits; 4. The explanatory statement shall set out the facts and the legal grounds on which the pleas are based. It shall specify, inter alia, the provisions of the contract of employment or of the terms of appointment whose non-observance is alleged. 5. The annexes shall contain the texts of all documents referred

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to in the first three sections of the application. They shall be presented by the applicant in accordance with the following rules: (a) Each document shall be annexed in the original or, failing that, in the form of a copy bearing the words “Certified true copy”; (c) Each document, regardless of its nature, shall be annexed in its entirety, even if the application refers to only part of the document; 10. If the formal requirements of this article are not fulfilled, the Executive Secretary may call upon the applicant to make the necessary corrections in the application and the copies thereof within a period which he shall prescribe. He shall return the necessary corrections himself when the defects in the application do not affect the substance. 11. After ascertaining that the requirements of this article are complied with, the Executive Secretary shall transmit a copy of the application to the respondent. Article 8 1. The respondent’s answer shall be submitted to the Tribunal through the Executive Secretary in any one of the working languages of the United Nations General Assembly. The answer shall include pleas, an explanatory statement and annexes. The annexes shall contain the complete texts of all documents referred to in the other sections of the answer. They shall be presented in accordance with the rules established for the application in article 7, paragraph 5. . . . 5. After ascertaining that the requirements of this article are complied with, the Executive Secretary shall transmit a copy of the answer to the applicant.

Rules of the UNAT, 1998

411 Article 9

1. The applicant may, within thirty days of the date on which the answer is transmitted to him, file with the Executive Secretary written observations on the answer. 2. The complete text of any document referred to in the written observations shall be annexed thereto in accordance with the rules established for the application in article 7, paragraph 5. . . . 4. After ascertaining that the requirements of this article are complied with, the Executive Secretary shall transmit a copy of the written observations to the respondent. Article 10 1. The President may, on his own initiative, or at the request of either party, call upon the parties to submit additional written statements or additional documents within a period which he shall fix. The additional documents shall be furnished in the original or in properly authenticated form. . . . 2. Each written statement and additional document shall be communicated by the Executive Secretary, on receipt, to the other parties, unless at the request of one of the parties and with the consent of the other parties, the Tribunal decides otherwise. The personnel files communicated to the Tribunal shall be made available to the applicant by the Executive Secretary in accordance with instructions issued by the Tribunal. 3. In order to complete the documentation of the case prior to its being placed on the list, the President may obtain any necessary information from any party, witnesses or experts. The President may designate a member of the Tribunal or any other disinterested person to take oral statements. . . . 4. The President may in particular cases delegate his functions under this article to one of the Vice-Presidents.

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Appendix Article 11

1. When the President considers the documentation of a case to be sufficiently complete, he shall instruct the Executive Secretary to place the case on the list. The Executive Secretary shall inform the parties as soon as the inclusion of the case in the list is effected. Article 12 1. The Executive Secretary shall be responsible for transmitting all documents and making all notifications required in connection with proceedings before the Tribunal. 2. The Executive Secretary shall make for each case a dossier which shall record all actions taken in connection with the preparation of the case for trial, the dates thereof, and the dates on which any document or notification forming part of the procedure is received in or dispatched from his office. Article 14 The President may, when a party claims that he is unable to comply with the requirements of any rule in this chapter, waive such rule if the waiver does not affect the substance of the application.

CHAPTER IV. ORAL

PROCEEDINGS

Article 15 1. Oral proceedings shall be held if the presiding member so decides or if either party so requests and the presiding member agrees. The oral proceedings may include the presentation and examination of witnesses or experts. Each party shall in addition have the right of oral argument and of comment on the evidence given. 2. In sufficient time before the opening of the oral proceedings,

Rules of the UNAT, 1998

413

each party shall inform the Executive Secretary and, through him, the other parties, of the names and description of witnesses and experts whom he desires to be heard, indicating the points to which the evidence is to refer. 3. The Tribunal shall determine the sequence of oral proceedings. The parties shall, however, retain the right to comment briefly on any statement to which they have not replied. Article 16 1. The Tribunal may examine the witnesses and experts. The parties, their representatives or counsel may, under the control of the presiding member, put questions to the witnesses and experts. 3. The Tribunal may exclude evidence which it considers irrelevant, frivolous, or lacking in probative value. The Tribunal may also limit the oral testimony where it considers the written documentation adequate.

CHAPTER V. ADDITIONAL

DOCUMENTATION DURING

THE PROCEEDINGS

Article 17 The Tribunal may at any stage of the proceedings call for the production of documents or of such other evidence as may be required. It may arrange for any measures of inquiry as may be necessary.

III. RULES OF PROCEDURE OF THE CJEC, 1991 TITLE II PROCEDURE Chapter 1

SECTION 1 – WRITTEN PROCEDURE Article 37 1. The original of every pleading must be signed by the party’s agent or lawyer. The original, accompanied by all annexes referred to therein, shall be lodged together with five copies for the Court and a copy for every other party to the proceedings. Copies shall be certified by the party lodging them. 4. To every pleading there shall be annexed a file containing the documents relied on in support of it, together with a schedule listing them. 5. Where in view of the length of a document only extracts from it are annexed to the pleading, the whole document or a full copy of it shall be lodged at the Registry. Article 38 1. An application of the kind referred to in Article 22 of the

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415

ECSC Statute and Article 19 of the EEC and Euratom Statutes3 shall state:. . . . (e) where appropriate, the nature of any evidence offered in support. 4. The application shall be accompanied, where appropriate, by the documents specified in the second paragraph of Article 22 of the ECSC Statute and in the second paragraph of Article 19 of the EEC and Euratom Statutes. 5. An application made by a legal person governed by private law shall be accompanied by: (a) the instrument or instruments constituting or regulating that legal person or a recent extract from the register of companies, firms or associations or any other proof of its existence in law; (b) proof that the authority granted to the applicant’s lawyer has been properly conferred on him by someone authorised for the purpose. 6. An application submitted under Articles 42 and 89 of the ECSC Treaty, Articles 181 and 182 of the EEC Treaty and Articles 153 and 154 of the Euratom Treaty shall be accompanied by a copy of the arbitration clause contained in the contract governed by private or public law entered into by the Communties or on their behalf, or, as the case may be, by a copy of the special agreement concluded between the Member States concerned. 7. If an application does not comply with the requirements set out in paragraphs (3) to (6) of this Article, the Registrar shall prescribe a reasonable period within which the applicant is to comply with them whether by putting the application itself in order or by producing and of the abovementioned documents. If the applicant fails to put the application in order or produce the required documents within the time prescribed, the Court

3

These provisions refer to the filing of applications under the Statutes before the CJEC.

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shall, after hearing the Advocate-General, decide whether the non-compliance with these conditions renders the application formally inadmissible. Article 40 1. Within one month after service on him of the application, the defendant shall lodge a defence, stating:. . . . (b) the arguments of fact and law relied on; (d) the nature of any evidence offered by him. The provisions of Article 38(2) to (5) of these Rules shall apply to the defence. Article 41 1. The application initiating the proceedings and the defence may be supplemented by a reply from the applicant and by a rejoinder from the defendant. Article 42 1. In reply or rejoinder a party may offer further evidence. The party must, however, give reasons for the delay in offering it. 2. No new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.


417

Chapter 2 Preparatory inquiries

SECTION 1 – MEASURES

OF INQUIRY

Article 45 1. The Court, after hearing the Advocate-General, shall prescribe the measures of inquiry that it considers appropriate by means of an order setting out the facts to be proved. Before the Court decides on the measures of inquiry referred to in paragraph (2)(c), (d) and (e) the parties shall be heard. The order shall be served on the parties. 2. Without prejudice to Articles 24 and 25 of the ECSC Statute, Articles 21 and 22 of the EEC Statute or Articles 22 and 23 of the Euratom Statute,4 the following measures of inquiry may be adopted:

4

Articles 24 and 25 of the ECSC Statute read: “PREPARATORY INQUIRIES Article 24 The Court may require the parties, their representatives or agents or the Governments of the Member States to produce all documents and to supply all information which the Court considers desirable. Formal note shall be taken of any refusal. Article 25 The Court may at any time entrust any individual, body, authority, committee or other organization it chooses with the task of holding an inquiry or giving an expert opinion; to this end it may compile a list of individuals or bodies approved as experts.” Articles 21 and 22 of the EEC Statute read: “Article 21 The Court may require the parties to produce all documents and to supply all information which the Court considers desirable. Formal note shall be taken of any refusal.

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(a) the personal appearance of the parties; (b) a request for information and production of documents; (c) oral testimony; (d) the commissioning of an expert’s report; (e) an inspection of the place or thing in question. 3. The measures of inquiry which the Court has ordered may be conducted by the Court itself, or be assigned to the JudgeRapporteur. 4. Evidence may be submitted in rebuttal and previous evidence may be amplified. Article 46 1. A Chamber to which a preparatory inquiry has been assigned may exercise the powers vested in the President of the Court by Articles . . . 47 to 53 of these Rules; the powers vested in the President of the Court may be exercised by the President of the Chamber. 2. Articles 56 and 57 of these Rules shall apply to proceedings before the Chamber. 3. The parties shall be entitled to attend the measures of inquiry.

The Court may also require the Member States and institutions not being parties to the case to supply all information which the Court considers necessary for the proceedings. Article 22 The Court may at any time entrust any individual, body, authority, committee or other organization it chooses with the task of giving an expert opinion.” Articles 22 and 23 of the Euratom Statute are identical with Articles 21 and 22 of the EEC Statute.

Rules of Procedure of the CJEC, 1991 SECTION 2 – THE

419

SUMMONING AND EXAMINATION OF

WITNESSES AND EXPERTS

Article 47 1. The Court may, either of its own motion or an application by a party, and after hearing the Advocate-General, order that certain facts be proved by witnesses. The order of the Court shall set out the facts to be established. The Court may summon a witness of its own motion or an application by a party or at the instance of the AdvocateGeneral. An application by a party for the examination of a witness shall state precisely about what facts and for what reason the witness should be examined. 2. The witness shall be summoned by an order of the Court containing the following information: (a) the surname, forenames, description and address of the witness; (b) an indication of the facts about which the witness is to be examined; (c) where appropriate, particulars of the arrangements made by the Court for reimbursement of expenses incurred by the witness, and of the penalties which may be imposed on defaulting witnesses. The order shall be served on the parties and the witnesses. 3. The Court may make the summoning of a witness for whose examination a party has applied conditional upon the deposit with the cashier of the Court of a sum sufficient to cover the taxed costs thereof; the Court shall fix the amount of the payment. The cashier shall advance the funds necessary in connection with the examination of any witnesses summoned by the Court of its own motion. 4. After the identity of the witness has been established, the President shall inform him that he will be required to vouch the truth of his evidence in the manner laid down in these Rules.

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The witness shall give his evidence to the Court, the parties having been given notice to attend. After the witness has given his main evidence the President may, at the request of a party or of his own motion, put questions to him. The other Judges and the Advocate-General may do likewise. Subject to the control of the President, questions may be put to witnesses by the representatives of the parties. 6. The Registrar shall draw up minutes in which the evidence of each witness is reproduced. The minutes shall be signed by the President or by the Judge-Rapporteur responsible for conducting the examination of the witness, and by the Registrar. Before the minutes are thus signed, witnesses must be given an opportunity to check the content of the minutes and to sign them. The minutes shall constitute an official record. Article 48 1. Witnesses who have been duly summoned shall obey the summons and attend for examination. 2. If a witness who has been duly summoned fails to appear before the Court, the Court may impose on him a pecuniary penalty not exceeding ECU 5,000 and may order that a further summons be served on the witness at his own expense. The same penalty may be imposed on a witness who, without good reason, refuses to give evidence or to take the oath or where appropriate to make a solemn affirmation equivalent thereto. 3. If the witness proffers a valid excuse to the Court, the pecuniary penalty imposed on him may be cancelled. The pecuniary penalty imposed may be reduced at the request of the witness where he establishes that it is disproportionate to his income. 4. Penalties imposed and other measures ordered under this Article shall be enforced in accordance with Articles 44 and


421

92 of the ECSC Treaty, Articles 187 and 192 of the EEC Treaty and Articles 159 and 164 of the Euratom Treaty. Article 49 1. The Court may order that an expert’s report be obtained. The order appointing the expert shall define his task and set a time-limit within which he is to make his report. 2. The expert shall receive a copy of the order, together with all the documents necessary for carrying out his task. He shall be under the supervision of the Judge-Rapporteur, who may be present during his investigation and who shall be kept informed of his progress in carrying out his task. The Court may request the parties or one of them to lodge security for the costs of the expert’s report. 3. At the request of the expert, the Court may order the examination of witnesses. Their examination shall be carried out in accordance with Article 47 of these Rules. 4. The expert may give his opinion only on points which have been expressly referred to him. 5. After the expert has made his report, the Court may order that he be examined, the parties having been given notice to attend. Subject to the control of the President, questions may be put to the expert by the representatives of the parties. Article 50 1. If one of the parties objects to a witness or to an expert on the ground that he is not a competent or proper person to act as witness or expert or for any other reason, or if a witness or expert refuses to give evidence, to take the oath or to make a solemn affirmation equivalent thereto, the matter shall be resolved by the Court. 2. An objection to a witness or to an expert shall be raised within two weeks after service of the order summoning the witness or appointing the expert; the statement of objection must

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set out the grounds of objection and indicate the nature of any evidence offered. Article 51 1. Witnesses and experts shall be entitled to reimbursement of their travel and subsistence expenses. The cashier of the Court may make a payment to them towards these expenses in advance. 2. Witnesses shall be entitled to compensation for loss of earnings, and experts to fees for their services. The cashier of the Court shall pay witnesses and experts their compensation or fees after they have carried out their respective duties or tasks. Article 52 The Court may, on application by a party or of its own motion, issue letters rogatory for the examination of witnesses or experts, as provided for in the supplementary rules mentioned in Article 125 of these Rules.5 Article 53 1. The Registrar shall draw up minutes of every hearing. The minutes shall be signed by the President and by the Registrar and shall constitute an official record. 2. The parties may inspect the minutes and any expert’s report at the Registry and obtain copies at their own expense.

5

The Supplementary Rules (1987) deal in Articles 1 to 3 with letters rogatory in relation to witnesses and experts, spelling out procedures.


423

Chapter 3 Oral Procedure Article 57 The President may in the course of the hearing put questions to the agents, advisers or lawyers of the parties. The other Judges and the Advocate-General may do likewise. Article 59 1. The Advocate-General shall deliver his opinion orally at the end of the oral procedure. 2. After the Advocate-General has delivered his opinion, the President shall declare the oral procedure closed. Article 60 The Court may at any time, in accordance with Article 45(1), after hearing the Advocate-General, order any measure of inquiry to be taken or that a previous inquiry be repeated or expanded. The Court may direct the Chamber or the Judge-Rapporteur to carry out the measures so ordered. Article 61 The Court may after hearing the Advocate-General order the reopening of the oral procedure. Article 62 1. The Registrar shall draw up minutes of every hearing. The minutes shall be signed by the President and by the Registrar and shall continue an official record. 2. The parties may inspect the minutes at the Registry and obtain copies at their own expense.

IV. RULES OF COURT OF THE ECHR, 2002 TITLE II PROCEDURE Chapter 1 General Rules Rule 37 (Communications, notifications and summonses) 1. Communications or notifications addressed to the Agents or advocates of the parties shall be deemed to have been addressed to the parties. 2. If, for any communication, notification or summons addressed to persons other than the Agents or advocates of the parties, the Court considers it necessary to have the assistance of the Government of the State on whose territory such communication, notification or summons is to have effect, the President of the Court shall apply directly to that Government in order to obtain the necessary facilities. 3. The same rule shall apply when the Court desires to make or arrange for the making of an investigation on the spot in order to establish the facts or to procure evidence or when it orders the appearance of a person who is resident in, or will have to cross, that territory.

Rules of Court of the ECHR, 2002

425

Rule 38 (Written pleadings) 1. No written observations or other documents may be filed after the time-limit set by the President of the Chamber or the Judge-Rapporteur, as the case may be, in accordance with these Rules. No written observations or other documents filed outside that time-limit or contrary to any practice direction issued under Rule 32 shall be included in the case file unless the President of the Chamber decides otherwise. 2. For the purposes of observing the time-limit referred to in paragraph 1 of this Rule, the material date is the certified date of dispatch of the document or, if there is none, the actual date of receipt at the Registry. Rule 42 (Measures for taking evidence) 1. The Chamber may, at the request of a party or a third party, or of its own motion, obtain any evidence which it considers capable of providing clarification of the facts of the case. The Chamber may, inter alia, request the parties to produce documentary evidence and decide to hear as a witness or expert or in any other capacity any person whose evidence or statements seem likely to assist it in the carrying out of its tasks. 2. The Chamber may, at any time during the proceedings, depute one or more of its members or of the other judges of the Court to conduct an inquiry, carry out an investigation on the spot or take evidence in some other manner. 3. The Chamber may ask any person or institution of its choice to obtain information, express an opinion or make a report on any specific point. 4. The parties shall assist the Chamber, or its delegation, in implementing any measures for taking evidence.

426

Appendix Chapter VI Hearings Rule 63 (Conduct of hearings)

1. The President of the Chamber shall direct hearings and shall prescribe the order in which Agents and advocates or advisers of the parties shall be called upon to speak. 2. Where a fact-finding hearing is being carried out by a delegation of the Chamber under Rule 42, the head of the delegation shall conduct the hearing and the delegation shall exercise any relevant power conferred on the Chamber by the Convention or these Rules. Rule 64 (Failure to appear at a hearing) Where, without showing sufficient cause, a party fails to appear, the Chamber may, provided that it is satisfied that such a course is consistent with the proper administration of justice, nonetheless proceed with the hearing. Rule 65 (Convocation of witnesses, experts and other persons; costs of their appearance) 1. Witnesses, experts and other persons whom the Chamber or the President of the Chamber decides to hear shall be summoned by the Registrar. 2. The summons shall indicate (a) the case in connection with which it has been issued; (b) the object of the inquiry, expert opinion or other measure ordered by the Chamber or the President of the Chamber; (c) any provisions for the payment of the sum due to the person summoned.

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427

Rule 67 (Objection to a witness or expert; hearing of a person for information purposes) The Chamber shall decide in the event of any dispute arising from an objection to a witness or expert. It may hear for information purposes a person who cannot be heard as a witness. Rule 68 (Questions put during hearings) 1. Any judge may put questions to the Agents, advocates or advisers of the parties, to the applicant, witnesses and experts, and to any other persons appearing before the Chamber. 2. The witnesses, experts and other persons referred to in Rule 42 § 1 may, subject to the control of the President of the Chamber, be examined by the Agents and advocates or advisers of the parties. In the event of an objection as to the relevance of a question put, the President of the Chamber shall decide. Rule 69 (Failure to appear, refusal to give evidence or false evidence) If, without good reason, a witness or any other person who has been duly summoned fails to appear or refuses to give evidence, the Registrar shall, on being so required by the President of the Chamber, inform the Contracting Party to whose jurisdiction the witness or other person is subject. The same provisions shall apply if a witness or expert has, in the opinion of the Chamber, violated the oath or solemn declaration provided for . . . Rule 70 (Verbatim record of a hearing) 1. If the President of the Chamber so directs, the Registrar shall be responsible for the making of a verbatim record of the hearing. Any such record shall include:

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Appendix

(a) the composition of the Chamber; (b) a list of those appearing before the Chamber; (c) the text of the submissions made, questions put and replies given; (d) the text of any ruling delivered during the hearing; 3. The representatives of the parties shall receive a copy of the verbatim record in order that they may, subject to the control of the Registrar or the President of the Chamber, make corrections, but in no case may such corrections affect the sense and bearing of what was said. The Registrar shall lay down, in accordance with the instructions of the President of the Chamber, the time-limits granted for this purpose. 4. The verbatim record, once so corrected, shall be signed by the President of the Chamber and the Registrar and shall then constitute certified matters of record.

V. RULES PERTAINING TO ARBITRATION

(A) FINAL DRAFT ARTICLES ON ARBITRAL PROCEDURE ILC, 1958

OF THE

Article 14 3. The parties shall be entitled through their agents, counsel or advocates to submit in writing and orally to the tribunal any arguments they may deem expedient for the prosecution of their case. They shall have the right to raise objections and incidental points. The decisions of the tribunal on such matters shall be final. 4. The members of the tribunal shall have the right to put questions to agents, counsel or advocates, and to ask them for explanations. Neither the questions put nor the remarks made during the hearing are to be regarded as an expression of opinion by the tribunal or by its members. Article 15 1. The arbitral procedure shall in general compromise two distinct phases: pleadings and hearings. 2. The pleadings shall consist in the communication by the respective agents to the members of the tribunal and to the opposite party of memorials, counter-memorials and, if necessary, of replies and rejoinders. Each party must attach all papers and documents cited by it in the case. 3. The time limits fixed by the compromis may be extended by

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Appendix

mutual agreement between the parties, or by the tribunal when it deems such extension necessary to enable it to reach a just decision. 4. The hearing shall consist in the oral development of the parties’ arguments before the tribunal. 5. A certified true copy of every document produced by either party shall be communicated to the other party. Article 16 1. The hearing shall be conducted by the president. It shall be public only if the tribunal so decides with the consent of the parties. 2. Records of the hearing shall be kept and signed by the president, registrar or secretary; only those so signed shall be authentic. Article 17 1. After the tribunal has closed the written pleadings, it shall have the right to reject any papers and documents not yet produced which either party may wish to submit to it without the consent of the other party. The tribunal shall, however, remain free to take into consideration any such papers and documents which the agents, advocates or counsel of one or other of the parties may bring to its notice, provided that they have been made known to the other party. The latter shall have the right to require a further extension of the written pleadings so as to be able to give a reply in writing. 2. The tribunal may also require the parties to produce all necessary documents and to provide all necessary explanations. It shall take note of any refusal to do so. Article 18 1. The tribunal shall decide as to the admissibility of the evidence that may be adduced, and shall be the judge of its pro-

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431

bative value. It shall have the power, at any stage of the proceedings, to call upon experts and to require the appearance of witnesses. It may also, if necessary, decide to visit the scene connected with the case before it. 2. The parties shall co-operate with the tribunal in dealing with the evidence and in other measures contemplated by paragraph 1. The tribunal shall take note of the failure of any party to comply with the obligations of this paragraph.

(B) RULES

ON

ARBITRATION

OF THE

PCA

(i) Hague Convention for the Pacific Settlement of Disputes, 1907 Article 63 As a general rule, arbitration procedure comprises two distinct phases: pleadings and oral discussions. Article 64 A certified copy of every document produced by one party must be communicated to the other party. Article 66 The discussions are under the control of the President. They are only public if it be so decided by the Tribunal, with the assent of the parties. They are recorded in minutes drawn up by the Secretaries appointed by the President. These minutes are signed by the President and by one of the Secretaries and alone have an authentic character.

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Appendix Article 67

After the close of the pleadings, the Tribunal is entitled to refuse discussion of all new papers or documents which one of the parties may wish to submit to it without the consent of the other party. Article 68 The Tribunal is free to take into consideration new papers of documents to which its attention may be drawn by the agents or counsel of the parties. In this case, the Tribunal has the right to require the production of these papers or documents, but is obliged to make them known to the opposite party. Article 69 The Tribunal can, besides, require from the agents of the parties the production of all papers, and can demand all necessary explanations. In case of refusal the Tribunal takes note of it. Article 70 The agents and the counsel of the parties are authorized to present orally to the Tribunal all the arguments they may consider expedient in defence of their case. Article 71 They are entitled to raise objections and points. The decisions of the Tribunal on these points are final and cannot form the subject of any subsequent discussion.


433

Article 72 The members of the Tribunal are entitled to put questions to the agents and counsel of the parties, and to ask them for explanations on doubtful points. Neither the questions put, nor the remarks made by members of the Tribunal in the course of the discussions, can be regarded as an expression of opinion by the Tribunal in general or by its members in particular. Article 74 The Tribunal is entitled to issue rules of procedure for the conduct of the case, to decide the forms, order, and time in which each party must conclude its arguments, and to arrange all the formalities required for dealing with the evidence. Article 75 The parties undertake to supply the Tribunal, as fully as they consider possible, with all the information required for deciding the case. Article 76 For all notices which the Tribunal has to serve in the territory of a third Contracting Power, the Tribunal shall apply direct to the Government of that Power. The same rule applies in the case of steps being taken to procure evidence on the spot. The requests for this purpose are to be executed as far as the means at the disposal of the Power applied to under its municipal law allow. They cannot be rejected unless the Power in question considers them calculated to impair its own sovereign right or its safety. The Court will equally be always entitled to act through the Power on whose territory it sits.

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Appendix Article 77

When the agents and counsel of the parties have submitted all the explanations and evidence in support of their case the President shall declare the discussion closed. (ii) Optional Rules for Arbitrating Disputes Between Two States, 1992 Statement of Claim Article 18 1. Unless the statement of claim was contained in the notice of arbitration, within a period of time to be determined by the arbitral tribunal, the claimant shall communicate its statement of claim in writing to the respondent and to each of the arbitrators. A copy of the treaty or other agreement and of the arbitration agreement if not contained in the treaty or agreement, shall be annexed thereto. 2. The statement of claim shall include a precise statement of the following particulars: (a) The names and addresses of the parties; (b) A statement of the facts supporting the claim; (c) The points at issue; (d) The relief or remedy sought. The claimant may annex to its statement of claim all documents it deems relevant or may add a reference to the documents or other evidence it will submit. Statement of Defence Article 19 1. Within a period of time to be determined by the arbitral tribunal, the respondent shall communicate its statement of defence in writing to the claimant and to each of the arbitrators.


435

2. The statement of defence shall reply to the particulars (b), (c) and (d) of the statement of claim (article 18, para. 2). The respondent may annex to its statement the documents on which it relies for its defence or may add a reference to the documents or other evidence it will submit. 3. In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counter-claim arising out of the same treaty or other agreement or rely on a claim arising out of the same treaty or other agreement for the purpose of a set-off. 4. The provisions of article 18, paragraph 2, shall apply to a counterclaim and a claim relied on for the purpose of a set-off. Evidence and Hearings (Articles 24 and 25) Article 24 1. Each party shall have the burden of proving the facts relied on to support its claim or defence. 2. The arbitral tribunal may, if it considers it appropriate, require a party to deliver to the tribunal and to the other party, within such a period of time as the arbitral tribunal shall decide, a summary of the documents and other evidence which that party intends to present in support of the facts in issue set out in its statement of claim or statement of defence. 3. At any time during the arbitral proceedings the arbitral tribunal may call upon the parties to produce documents, exhibits or other evidence within such a period of time as the tribunal shall determine. The Tribunal shall take note of any refusal to do so as well as any reasons given for such refusal. Article 25 1. In the event of an oral hearing, the arbitral tribunal shall give the parties adequate advance notice of the date, time and place thereof.

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2. If witnesses are to be heard, at least thirty days before the hearing each party shall communicate to the arbitral tribunal and to the other party the names and addresses of the witnesses it intends to present, the subject upon and the languages in which such witnesses will give their testimony. 4. Hearings shall be held in camera unless the parties agree otherwise. The arbitral tribunal may require the retirement of any witness or witnesses during the testimony of other witnesses. The arbitral tribunal is free to determine the manner in which witnesses are examined. 5. Evidence of witnesses may also be presented in the form of written statements signed by them. 6. The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered.

(C) ARBITRATION RULES

OF THE

ICSID, 1984

Chapter III General Procedural Provisions Rule 20 Preliminary Procedural Consultation (1) As early as possible after the constitution of a Tribunal, its President shall endeavor to ascertain the views of the parties regarding questions of procedure. . . . (2) In the conduct of the proceeding the Tribunal shall apply any agreement between the parties on procedural matters, except as otherwise provided in the Convention or the Administrtive and Financial Regulations.


437

Rule 21 Pre-Hearing Conference (1) At the request of the Secretary-General or at the discretion of the President of the Tribunal, a pre-hearing conference between the Tribunal and the parties may be held to arrange for an exchange of information and the stipulation of uncontested facts in order to expedite the proceeding. (2) At the request of the parties, a pre-hearing conference between the Tribunal and the parties, duly represented by their authorized representatives, may be held to consider the issues in dispute with a view to reaching an amicable settlement. Rule 24 Supporting Documentation Supporting documentation shall ordinarily be filed together with the instrument to which it relates, and in any case within the time limit fixed for the filing of such instrument. Rule 25 Correction of Errors An accidental error in any instrument or supporting document may, with the consent of the other party or by leave of the Tribunal, be corrected at any time before the award is rendered. Chapter IV Written and Oral Procedures Rule 29 Normal Procedures Except if the parties otherwise agree, the proceeding shall compromise two distinct phases: a written procedure followed by an oral one.

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Appendix Rule 30 Transmission of the Request

As soon as the Tribunal is constituted, the Secretary-General shall transmit to each member a copy of the request by which the proceeding was initiated, of the supporting documentation, of the notice of registration and of any communication received from either party in response thereto. Rule 31 The Written Procedure (1) In addition to the request for arbitration, the written procedure shall consist of the following pleadings, filed within time limits set by the Tribunal: (a) a memorial by the requesting party; (b) a counter-memorial by the other party; and, if the parties so agree or the Tribunal deems it necessary: (c) a reply by the requesting party; and (d) a rejoinder by the other party. (2) If the request was made jointly, each party shall within the same time limit determined by the Tribunal, file its memorial and, if the parties so agree or the Tribunal deems it necessary, its reply; however, the parties may instead agree that one of them shall, for the purposes of paragraph (1), be considered as the requesting party. (3) A memorial shall contain: a statement of the relevant facts; a statement of law; and the submissions. A counter-memorial, reply or rejoinder shall contain an admission or denial of the facts stated in the last previous pleading; any additional facts, if necessary; observations concerning the statement of law in the last previous pleading; a statement of law in answer thereto; and the submissions.


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Rule 32 The Oral Procedure (1) The oral procedure shall consist of the hearing by the Tribunal of the parties, their agents, counsel and advocates, and of witnesses and experts. (3) The members of the Tribunal may, during the hearings, put questions to the parties, their agents, counsel and advocates, and ask them for explanations. Rule 33 Marshalling of Evidence Without prejudice to the rules concerning the production of documents, each party shall, within time limits fixed by the Tribunal, communicate to the Secretary-General, for transmission to the Tribunal and the other party, precise information regarding evidence which it intends to produce and that which it intends to request the Tribunal to call for, together with an indication of the points to which such evidence will be directed. Rule 34 Evidence: General Principles (1) The Tribunal shall be the judge of the admissibility of any evidence adduced and of its probative value. (2) The Tribunal may, if it deems it necessary at any stage of the proceeding: (a) call upon the parties to produce documents, witnesses and experts; and (b) visit any place connected with the dispute or conduct inquiries there. (3) The parties shall cooperate with the Tribunal in the production of the evidence and in the other measures provided for in paragraph (2). The Tribunal shall take formal note of the failure of a party to comply with its obligation under this paragraph and of any reasons given for such failure.

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Appendix Rule 35 Examination of Witnesses and Experts

(1) Witnesses and experts shall be examined before the Tribunal by the parties under the control of its President. Questions may also be put to them by any member of the Tribunal. Rule 36 Witnesses and Experts: Special Rules Notwithstanding Rule 35 the Tribunal may: (a) admit evidence given by a witness or expert in a written deposition; and (b) with the consent of both parties, arrange for the examination of a witness or expert otherwise than before the Tribunal itself. The Tribunal shall define the subject of the examination, the time limit, the procedure to be followed and other particulars. The parties may participate in the examination. Rule 37 Visits and Inquiries If the Tribunal considers it necessary to visit any place connected with the dispute or to conduct an inquiry there, it shall make an order to this effect. The order shall define the scope of the visit or the subject of the inquiry, the time limit, the procedure to be followed and other particulars. The parties may participate in any visit or inquiry.

Rules Pertaining to Arbitration (D) FINAL RULES

OF THE

441

IRAN-US CLAIMS TRIBUNAL, 1983

Evidence and Hearings Article 24 Text of UNCITRAL Rule Article 24 1. Each party shall have the burden of proving the facts relied on to support his claim or defence. 2. The arbitral tribunal may, if it considers it appropriate, require a party to deliver to the tribunal and to the other party, within such a period of time as the arbitral tribunal shall decide. A summary of the documents and other evidence which that party intends to present in support of the facts in issue set out in his statement of claim or statement of defence. 3. At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the tribunal shall determine. Article 24 of the UNCITRAL Rules is maintained unchanged. Note to Article 24 As used in Article 24 of the UNCITRAL Rules, the terms “party” and “parties” mean the arbitrating party or parties, as the case may be. Article 25 Text of UNCITRAL Rule Article 25 1. In the event of an oral hearing, the arbitral tribunal shall give the parties adequate advance notice of the date, time and place thereof.

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2. If witnesses are to be heard, at least fifteen days before the hearing each party shall communicate to the arbitral tribunal and to the other party the names and addresses of the witnesses he intends to present, the subject upon and the languages in which such witnesses will give their testimony. 3. The arbitral tribunal shall make arrangements for the translation of oral statements made at a hearings and for a record of the hearing if either is deemed necessary by the tribunal under the circumstances of the case, or if the parties have agreed thereto and have communicated such agreement to the tribunal at least fifteen days before the hearing. 4. Hearings shall be held in camera unless the parties agree otherwise. The arbitral tribunal may require the retirement of any witness or witnesses during the testimony of other witnesses. The arbitral tribunal is free to determine the manner in which witnesses are examined. 5. Evidence of witnesses may also be recorded in the form of written statements signed by them. 6. The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered. Modification of UNCITRAL Rule Article 25 of the UNCITRAL Rules is maintained unchanged, except the period referred to in paragraph 2 shall be at least thirty days. Notes to Article 25 1. As used in Article 25 of the UNCITRAL Rules, the terms “party” and “parties” mean the arbitrating party or parties, as the case may be, except that, as used in paragraph 4 of Article 25, the term “parties” means the two Governments and the arbitrating parties. 2. The information concerning witnesses which an arbitrary party must communicate pursuant to paragraph 2 of Article 25 of the UNCITRAL Rules is not required with respect to any witnesses which an arbitrating party may later decide to present


3.

4.

5.

6.

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to rebut evidence presented by the other arbitrating party. However, such information concerning any rebuttal witness shall be communicated to the arbitral tribunal and the other arbitrating parties as far in advance of hearing the witness as is reasonably possible. With respect to paragraph 3 of Article 25 of the UNCITRAL Rules, the Secretary-General shall make arrangements for a tape-recording or stenographic record of hearings or parts of hearings if the arbitral tribunal so determines. If the arbitral tribunal determines that a transcript shall be made of any such tape-recording or stenographic record, the arbitrating parties in that case, or their authorized representatives, shall be permitted to read the transcript. Any arbitrating party in the case may make a stenographic record of the hearings, or parts of hearings, and, in that event, shall make a transcript thereof available to the arbitral tribunal without charge. Arbitrating parties are not permitted to make tape-recordings of hearings or other proceedings. Notwithstanding the provision of paragraph 4 of Article 25, the arbitral tribunal may at its discretion permit representatives of arbitrating parties in other cases which present similar issues of factor law to be present to observe all or part of the hearing in a particular case, subject to prior approval of the arbitrating parties in the particular case. The Agents of the Governments are permitted to be present at pre-hearing conferences and hearings. In applying paragraph 4 of Article 25 of the UNCITRAL Rules, the following provisions shall determine the manner in which witnesses are examined:

(b) Witnesses may be examined by the presiding member and the other members of the arbitral tribunal. Also, when permitted by the arbitral tribunal, the representatives of the arbitrating parties in the case may ask questions, subject to the control of the presiding member. 7. The Secretary-General shall draft minutes of each hearing. After each member of the arbitral tribunal present at the hearing has

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been given the opportunity to comment on draft minutes, the minutes, with any corrections approved by a majority of members who were present, shall be signed by the presiding member and the Secretary-General. The arbitrating parties in the case, or their authorized representatives, shall be permitted to read such minutes. Experts Article 27 Text of UNCITRAL Rule Article 27 1. The arbitral tribunal may appoint one or more experts to report to it, in writing, on specific issues to be determined by the tribunal. A copy of the expert’s terms of reference, established by the arbitral tribunal, shall be communicated to the parties. 2. The parties shall give the expert any relevant information or produce for his inspection any relevant documents or goods that he may require of them. Any dispute between a party and such expert as to the relevance of the required information or production shall be referred to the arbitral tribunal for decision. 3. Upon receipt of the expert’s report, the arbitral tribunal shall communicate a copy of the report to the parties who shall be given the opportunity to express, in writing, their opinion on the report. A party shall be entitled to examine any document on which the expert has relied in his report. 4. At the request of either party the expert, after delivery of the report, may be heard at a hearing where the parties shall have the opportunity to be present and to interrogate the expert. At this hearing either party may present expert witnesses in order to testify on the points at issue. The provisions of article 25 shall be applicable to such proceedings.


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Modification of UNCITRAL Rule Article 27 of the UNCITRAL Rules is maintained unchanged, except that the following is added at the end of paragraph 2: The expert shall invite a representative of each arbitrating party to attend any site inspection, and, when the arbitral tribunal so determines, a representative of each arbitrating party shall be invited to attend other inspections made by the expert. Note to Article 27 1. As used in Article 27 of the UNCITRAL Rules, the terms “party” and “parties” mean the arbitrating party or parties, as the case may be.

VI. PROVISIONS PERTAINING TO THE ICTY

(A) STATUTE

OF THE

ICTY, 1993

Article 20 Commencement and conduct of trial proceedings 1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.

Article 21 Rights of the accused 1. All persons shall be equal before the International Tribunal. 4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (g) not to be compelled to testify against himself or to confess guilt.

Provisions Pertaining to the ICTY

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Article 22 Protection of victims and witnesses The International Tribunal shall provide in its rules of procedure and evidence for the protection of victims and witnesses. Such protection measures shall include, but shall not be limited to, the conduct of in camera proceedings and the protection of the victim’s identity.

(B) RULES

OF

PROCEDURE

AND

EVIDENCE

OF THE

ICTY, 2002

PART FOUR INVESTIGATIONS AND RIGHTS OF SUSPECTS

SECTION 1: INVESTIGATIONS Rule 39 Conduct of Investigations In the conduct of an investigation, the Prosecutor may: (i) summon and question suspects, victims and witnesses and record their statements, collect evidence and conduct on-site investigations; (ii) undertake such other matters as may appear necessary for completing the investigation and the preparation and conduct of the prosecution at the trial, including the taking of special measures to provide for the safety of potential witnesses and informants; (iii) seek, to that end, the assistance of any State authority concerned, as well as of any relevant international body including the International Criminal Police Organization (INTERPOL); and (iv) request such orders as may be necessary from a Trial Chamber or a Judge.

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Appendix Rule 40 Provisional Measures

In case of urgency, the Prosecutor may request any State: (i) to arrest a suspect or an accused provisionally; (ii) to seize physical evidence; (iii) to take all necessary measures to prevent the escape of a suspect or an accused, injury to or intimidation of a victim or witness, or the destruction of evidence. The State concerned shall comply forthwith, in accordance with Article 29 of the Statute. Rule 40 bis Transfer and Provisional Detention of Suspects (A) In the conduct of an investigation, the Prosecutor may transmit to the Registrar, for an order by a Judge assigned pursuant to Rule 28, a request for the transfer to and provisional detention of a suspect in the premises of the detention unit of the Tribunal. This request shall indicate the grounds upon which the request is made and, unless the Prosecutor wishes only to question the suspect, shall include a provisional charge and a summary of the material upon which the Prosecutor relies. (B) The Judge shall order the transfer and provisional detention of the suspect if the following conditions are met: (i) the Prosecutor has requested a State to arrest the suspect provisionally, in accordance with Rule 40, or the suspect is otherwise detained by State authorities; (ii) after hearing the Prosecutor, the Judge considers that there is a reliable and consistent body of material which tends to show that the suspect may have committed a crime over which the Tribunal has jurisdiction; and (iii) the Judge considers provisional detention to be a necessary measure to prevent the escape of the suspect, injury to or intimidation of a victim or witness or the


449

destruction of evidence, or to be otherwise necessary for the conduct of the investigation. Rule 41 Retention of Information Subject to Rule 81, the Prosecutor shall be responsible for the retention, storage and security of information and physical material obtained in the course of the Prosecutor’s investigations until formally tendered into evidence. Rule 42 Rights of Suspects during Investigation (A) A suspect who is to be questioned by the Prosecutor shall have the following rights, of which the Prosecutor shall inform the suspect prior to questioning, in a language the suspect speaks and understands: (i) the right to be assisted by counsel of the suspect’s choice or to be assigned legal assistance without payment if the suspect does not have sufficient means to pay for it; (ii) the right to have the free assistance of an interpreter if the suspect cannot understand or speak the language to be used for questioning; and (iii) the right to remain silent, and to be cautioned that any statement the suspect makes shall be recorded and may be used in evidence. (B) Questioning of a suspect shall not proceed without the presence of counsel unless the suspect has voluntarily waived the right to counsel. In case of waiver, if the suspect subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the suspect has obtained or has been assigned counsel.

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Appendix Rule 43 Recording Questioning of Suspects

Whenever the Prosecutor questions a suspect, the questioning shall be audio-recorded or video-recorded, in accordance with the following procedure: (i) the suspect shall be informed in a language the suspect speaks and understands that the questioning is being audiorecorded or video-recorded; (ii) in the event of a break in the course of the questioning, the fact and the time of the break shall be recorded before audio-recording or video-recording ends and the time of resumption of the questioning shall also be recorded; (iii) at the conclusion of the questioning the suspect shall be offered the opportunity to clarify anything the suspect has said, and to add anything the suspect may wish, and the time of conclusion shall be recorded; (iv) the tape shall then be transcribed as soon as practicable after the conclusion of questioning and a copy of the transcript supplied to the suspect, together with a copy of the recorded tape or, if multiple recording apparatus was used, one of the original recorded tapes; and (v) after a copy has been made, if necessary, of the recorded tape for purposes of transcription, the original recorded tape or one of the original tapes shall be sealed in the presence of the suspect under the signature of the Prosecutor and the suspect.


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PART FIVE PRE-TRIAL PROCEEDINGS

SECTION 2: ORDERS & WARRANTS

Rule 54 General Rule At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial. Rule 54 bis Orders Directed to States for the Production of Documents (A) A party requesting an order under Rule 54 that a State produce documents or information shall apply in writing to the relevant Judge or Trial Chamber and shall: (i) identify as far as possible the documents or information to which the application relates; (ii) indicate how they are relevant to any matter in issue before the Judge or Trial Chamber and necessary for a fair determination of that matter; and (iii) explain the steps that have been taken by the applicant to secure the State’s assistance. (B) The Judge or Trial Chamber may reject an application under paragraph (A) in limine if satisfied that: (i) the documents or information are not relevant to any matter in issue in the proceedings before them or are not necessary for a fair determination of any such matter; or (ii) no reasonable steps have been taken by the applicant to obtain the documents or information from the State.

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(C) A decision by a Judge or a Trial Chamber under paragraph (B) or (E) shall be subject to appeal with the leave of a bench of three Judges of the Appeals Chamber on the same grounds and conditions as set out in Rule 73 (D) and (E). (D) (i) Except in cases where a decision has been taken pursuant to paragraph (B) or paragraph (E), the State concerned shall be given notice of the application, and not less than fifteen days’ notice of the hearing of the application, at which the State shall have an opportunity to be heard. (ii) Except in cases where the Judge or Trial Chamber determines otherwise, only the party making the application and the State concerned shall have the right to be heard. (E) If, having regard to all circumstances, the Judge or Trial Chamber has good reasons for so doing, the Judge or Trial Chamber may make an order to which this Rule applies without giving the State concerned notice or the opportunity to be heard under paragraph (D), and the following provisions shall apply to such an order: (i) the order shall be served on the State concerned; (ii) subject to paragraph (iv), the order shall not have effect until fifteen days after such service; (iii) a State may, within fifteen days of service of the order, apply by notice to the Judge or Trial Chamber to have the order set aside, on the grounds that disclosure would prejudice national security interests. paragraph (F) shall apply to such a notice as it does to a notice of objection; (iv) where notice is given under paragraph (iii), the order shall thereupon be stayed until the decision on the application; (v) paragraphs (F) and (G) shall apply to the determination of an application made pursuant to paragraph (iii) as they do to the determination of an application of which notice is given pursuant to paragraph (D); (vi) the State and the party who applied for the order shall, subject to any special measures made pursuant to a request under paragraphs (F) or (G), have an opportunity to be


453

heard at the hearing of an application made pursuant to paragraph (E)(iii) of this Rule. (F) The State, if it raises an objection pursuant to paragraph (D), on the grounds that disclosure would prejudice its national security interests, shall file a notice of objection not less than five days before the date fixed for the hearing, specifying the grounds of objection. In its notice of objection the State: (i) shall identify, as far as possible, the basis upon which it claims that its national security interests will be prejudiced; and (ii) 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 and that documents not further required by the Tribunal be returned directly to the State without being filed with the Registry or otherwise retained. (G) With regard to the procedure under paragraph (F) above, the Judge or Trial Chamber may order the following protective measures for the hearing of the objection: (i) the designation of a single Judge from a Chamber to examine the documents or hear submissions; and/or (ii) that the State be allowed to provide its own interpreters for the hearing and its own translations of sensitive documents. (H) Rejection of an application made under this Rule shall not preclude a subsequent application by the requesting party in respect of the same documents or information if new circumstances arise. (I) An order under this Rule may provide for the documents or information in question to be produced by the State under appropriate arrangements to protect its interests, which may

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Appendix include those arrangements specified in paragraphs (F)(ii) or (G). Rule 56 Cooperation of States

The State to which a warrant of arrest or a transfer order for a witness is transmitted shall act promptly and with all due diligence to ensure proper and effective execution thereof, in accordance with Article 29 of the Statute.6

SECTION 3: PRELIMINARY PROCEEDINGS Rule 63 Questioning of Accused (A) Questioning by the Prosecutor of an accused, including after the initial appearance, shall not proceed without the presence of counsel unless the accused has voluntarily and expressly agreed to proceed without counsel present. If the accused subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the accused’s counsel is present. (B) The questioning, including any waiver of the right to counsel, shall be audio-recorded or video-recorded in accordance with the procedure provided for in Rule 43. The Prosecutor shall at the beginning of the questioning caution the accused in accordance with Rule 42 (A)(iii). Rule 65 ter Pre-Trial Judge (A) The Presiding Judge of the Trial Chamber shall, no later than seven days after the initial appearance of the accused, 6

Art. 29 provides for the cooperation of States and such matters.


455

designate from among its permanent members a Judge responsible for the pre-trial proceedings (hereinafter “pretrial Judge”). (B) The pre-trial Judge shall, under the authority and supervision of the Trial Chamber seised of the case, coordinate communication between the parties during the pre-trial phase. The pre-trial Judge shall ensure that the proceedings are not unduly delayed and shall take any measure necessary to prepare the case for a fair and expeditious trial. (C) The pre-trial Judge shall be entrusted with all of the pre-trial functions set forth in Rule 66, Rule 73 bis and Rule 73 ter, and with all or part of the functions set forth in Rule 73. (E) Once any existing preliminary motions filed within the timelimit provided by Rule 72 are disposed of, the pre-trial Judge shall order the Prosecutor, upon the report of the Senior Legal Officer, and within a time-limit set by the pretrial Judge and not less than six weeks before the Pre-Trial Conference required by Rule 73 bis, to file the following: (i) the final version of the Prosecutor’s pre-trial brief including, for each count, a summary of the evidence which the Prosecutor intends to bring regarding the commission of the alleged crime and the form of responsibility incurred by the accused; this brief shall include any admissions by the parties and a statement of matters which are not in dispute; as well as a statement of contested matters of fact and law; (ii) the list of witnesses the Prosecutor intends to call with: (a) the name or pseudonym of each witness; (b) a summary of the facts on which each witness will testify; (c) the points in the indictment as to which each witness will testify, including specific references to counts and relevant paragraphs in the indictment; (d) the total number of witnesses and the number of witnesses who will testify against each accused and on each count;

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(e) an indication of whether the witness will testify in person or pursuant to Rule 92 bis by way of written statement or use of a transcript of testimony from other proceedings before the Tribunal; and (f) the estimated length of time required for each witness and the total time estimated for presentation of the Prosecutor’s case. (iii) the list of exhibits the Prosecutor intends to offer stating where possible whether the defence has any objection as to authenticity. The Prosecutor shall serve on the defence copies of the exhibits so listed. (F) After the submission by the Prosecutor of the items mentioned in paragraph (E), the pre-trial Judge shall order the defence, within a time-limit set by the pre-trial Judge, and not later than three weeks before the Pre-Trial Conference, to file a pre-trial brief addressing the factual and legal issues, and including a written statement setting out: (i) in general terms, the nature of the accused’s defence; (ii) the matters with which the accused takes issue in the Prosecutor’s pre-trial brief; and (iii) in the case of each such matter, the reason why the accused takes issue with it. (G) After the close of the Prosecutor’s case and before the commencement of the defence case, the pre-trial Judge shall order the defence to file the following: (i) a list of witnesses the defence intends to call with: (a) the name or pseudonym of each witness; (b) a summary of the facts on which each witness will testify; (c) the points in the indictment as to which each witness will testify; (d) the total number of witnesses and the number of witnesses who will testify for each accused and on each count; (e) an indication of whether the witness will testify in person or pursuant to Rule 92 bis by way of written statement or use of a transcript of testimony


(H)

(I)

(J)

(K)

(L)

457

from other proceedings before the Tribunal; and (f) the estimated length of time required for each witness and the total time estimated for presentation of the defence case; and (ii) a list of exhibits the defence intends to offer in its case, stating where possible whether the Prosecutor has any objection as to authenticity. The defence shall serve on the Prosecutor copies of the exhibits so listed. The pre-trial Judge shall record the points of agreement and disagreement on matters of law and fact. In this connection, he or she may order the parties to file written submissions with either the pre-trial Judge or the Trial Chamber. In order to perform his or her functions, the pre-trial Judge may proprio motu, where appropriate, hear the parties without the accused being present. The pre-trial Judge may hear the parties in his or her private room, in which case minutes of the meeting shall be taken by a representative of the Registry. The pre-trial Judge shall keep the Trial Chamber regularly informed, particularly where issues are in dispute and may refer such disputes to the Trial Chamber. The pre-trial Judge may set a time for the making of pretrial motions and, if required, any hearing thereon. A motion made before trial shall be determined before trial unless the Judge, for good cause, orders that it be deferred for determination at trial. Failure by a party to raise objections or to make requests which can be made prior to trial at the time set by the Judge shall constitute waiver thereof, but the Judge for cause may grant relief from the waiver. (i) After the filings by the Prosecutor pursuant to paragraph (E), the pre-trial Judge shall submit to the Trial Chamber a complete file consisting of all the filings of the parties, transcripts of status conferences and minutes of meetings held in the performance of his or her functions pursuant to this Rule. (ii) The pre-trial Judge shall submit a second file to the Trial Chamber after the defence filings pursuant to paragraph (G).

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(M) The Trial Chamber may proprio motu exercise any of the functions of the pre-trial Judge. (N) Upon a report of the pre-trial Judge, the Trial Chamber shall decide, should the case arise, on sanctions to be imposed on a party which fails to perform its obligations pursuant to the present Rule. Such sanctions may include the exclusion of testimonial or documentary evidence.

SECTION 4: PRODUCTION

OF

EVIDENCE

Rule 66 Disclosure by the Prosecutor (A) Subject to the provisions of Rules 537 and 69, the Prosecutor shall make available to the defence in a language which the accused understands (i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused; and (ii) within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65 ter, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all written statements taken in accordance with Rule 92 bis; copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses. (B) The Prosecutor shall, on request, permit the defence to inspect any books, documents, photographs and tangible objects in the Prosecutor’s custody or control, which are material to the preparation of the defence, or are intended for use by the

7

This Rule deals with non-disclosure in certain circumstances.


459

Prosecutor as evidence at trial or were obtained from or belonged to the accused. (C) Where information is in the possession of the Prosecutor, the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from an obligation under the Rules to disclose that information. When making such application the Prosecutor shall provide the Trial Chamber (but only the Trial Chamber) with the information that is sought to be kept confidential. Rule 67 Reciprocal Disclosure (A) As early as reasonably practicable and in any event prior to the commencement of the trial: (i) the Prosecutor shall notify the defence of the names of the witnesses that the Prosecutor intends to call in proof of the guilt of the accused and in rebuttal of any defence plea of which the Prosecutor has received notice in accordance with paragraph (ii) below; (ii) the defence shall notify the Prosecutor of its intent to offer: (a) the defence of alibi; in which case the notification shall specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the alibi; (b) any special defence, including that of diminished or lack of mental responsibility; in which case the notification shall specify the names and addresses of witnesses and any other evidence upon which the accused intends to rely to establish the special defence.

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(B) Failure of the defence to provide notice under this Rule shall not limit the right of the accused to testify on the above defences. (C) If the defence makes a request pursuant to Rule 66 (B), the Prosecutor shall be entitled to inspect any books, documents, photographs and tangible objects which are within the custody or control of the defence and which it intends to use as evidence at the trial. (D) If either party discovers additional evidence or material which should have been disclosed earlier pursuant to the Rules, that party shall immediately disclose that evidence or material to the other party and the Trial Chamber. Rule 68 Disclosure of Exculpatory Material The Prosecutor shall, as soon as practicable, disclose to the defence the existence of material known to the Prosecutor which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence. Rule 68 bis Failure to Comply with Disclosure Obligations The pre-trial Judge or the Trial Chamber may decide proprio motu, or at the request of either party, on sanctions to be imposed on a party which fails to perform its disclosure obligations pursuant to the Rules. Rule 69 Protection of Victims and Witnesses (A) In exceptional circumstances, the Prosecutor may apply to a Judge or Trial Chamber to order the non-disclosure of the identity of a victim or witness who may be in danger or at risk until such person is brought under the protection of the Tribunal.


461

(B) In the determination of protective measures for victims and witnesses, the Judge or Trial Chamber may consult the Victims and Witnesses Section. (C) Subject to Rule 75, the identity of the victim or witness shall be disclosed in sufficient time prior to the trial to allow adequate time for preparation of the defence. Rule 70 Matters not Subject to Disclosure (A) Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared by a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under those Rules. (B) If the Prosecutor is in possession of information which has been provided to the Prosecutor on a confidential basis and which has been used solely for the purpose of generating new evidence, that initial information and its origin shall not be disclosed by the Prosecutor without the consent of the person or entity providing the initial information and shall in any event not be given in evidence without prior disclosure to the accused. (C) If, after obtaining the consent of the person or entity providing information under this Rule, the Prosecutor elects to present as evidence any testimony, document or other material so provided, the Trial Chamber, notwithstanding Rule 98, may not order either party to produce additional evidence received from the person or entity providing the initial information, nor may the Trial Chamber for the purpose of obtaining such additional evidence itself summon that person or a representative of that entity as a witness or order their attendance. A Trial Chamber may not use its power to order the attendance of witnesses or to require production of documents in order to compel the production of such additional evidence. (D) If the Prosecutor calls a witness to introduce in evidence

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any information provided under this Rule, the Trial Chamber may not compel that witness to answer any question relating to the information or its origin, if the witness declines to answer on grounds of confidentiality. (E) The right of the accused to challenge the evidence presented by the Prosecution shall remain unaffected subject only to the limitations contained in Sub-rules (C) and (D). (F) The Trial Chamber may order upon an application by the accused or defence counsel that, in the interests of justice, the provisions of this Rule shall apply mutatis mutandis to specific information in the possession of the accused. (G) Nothing in Sub-rule (C) or (D) above shall affect a Trial Chamber’s power under Rule 89 (D) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.

SECTION 5: DEPOSITIONS Rule 71 Depositions (A) Where it is in the interests of justice to do so, a Trial Chamber may order, proprio motu or at the request of a party, that a deposition be taken for use at trial, whether or not the person whose deposition is sought is able physically to appear before the Tribunal to give evidence. The Trial Chamber shall appoint a Presiding Officer for that purpose. (B) The motion for the taking of a deposition shall indicate the name and whereabouts of the person whose deposition is sought, the date and place at which the deposition is to be taken, a statement of the matters on which the person is to be examined, and of the circumstances justifying the taking of the deposition. (C) If the motion is granted, the party at whose request the deposition is to be taken shall give reasonable notice to the other party, who shall have the right to attend the taking of


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the deposition and cross-examine the person whose deposition is being taken. (D) Deposition evidence may be taken either at or away from the seat of the Tribunal, and it may also be given by means of a video-conference. (E) The Presiding Officer shall ensure that the deposition is taken in accordance with the Rules and that a record is made of the deposition, including cross-examination and objections raised by either party for decision by the Trial Chamber. The Presiding Officer shall transmit the record to the Trial Chamber. Rule 71 bis Testimony by Video-Conference Link At the request of either party, a Trial Chamber may, in the interests of justice, order that testimony be received via video-conference link.

SECTION 7: CONFERENCES

Rule 73 bis Pre-Trial Conference (A) Prior to the commencement of the trial, the Trial Chamber shall hold a Pre-Trial Conference. (B) In the light of the file submitted to the Trial Chamber by the pre-trial Judge pursuant to Rule 65 ter (L)(i), the Trial Chamber may call upon the Prosecutor to shorten the estimated length of the examination-in-chief for some witnesses. (C) In the light of the file submitted to the Trial Chamber by the pre-trial Judge pursuant to Rule 65 ter (L)(i), the Trial Chamber, after having heard the Prosecutor, shall set the number of witnesses the Prosecutor may call. (D) After commencement of the trial, the Prosecutor may, if he

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or she considers it to be in the interests of justice, file a motion to reinstate the list of witnesses or to vary the decision as to which witnesses are to be called. (E) After having heard the Prosecutor, the Trial Chamber shall determine the time available to the Prosecutor for presenting evidence. (F) During a trial, the Trial Chamber may grant the Prosecutor’s request for additional time to present evidence if this is in the interests of justice. Rule 73 ter Pre-Defence Conference (A) Prior to the commencement by the defence of its case the Trial Chamber may hold a Conference. (B) In the light of the file submitted to the Trial Chamber by the pre-trial Judge pursuant to Rule 65 ter (L)(ii), the Trial Chamber may call upon the defence to shorten the estimated length of the examination-in-chief for some witnesses. (C) In the light of the file submitted to the Trial Chamber by the pre-trial Judge pursuant to Rule 65 ter (L)(ii), the Trial Chamber, after having heard the defence, shall set the number of witnesses the defence may call. (D) After commencement of the defence case, the defence may, if it considers it to be in the interests of justice, file a motion to reinstate the list of witnesses or to vary the decision as to which witnesses are to be called. (E) After having heard the defence, the Trial Chamber shall determine the time available to the defence for presenting evidence. (F) During a trial, the Trial Chamber may grant a defence request for additional time to present evidence if this is in the interests of justice.


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PART SIX PROCEEDINGS BEFORE TRIAL CHAMBERS

SECTION 1: GENERAL PROVISIONS Rule 75 Measures for the Protection of Victims and Witnesses (A) A Judge or a Chamber may, proprio motu or at the request of either party, or of the victim or witness concerned, or of the Victims and Witnesses Section, order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused. (B) A Chamber may hold an in camera proceeding to determine whether to order: (i) measures to prevent disclosure to the public or the media of the identity or whereabouts of a victim or a witness, or of persons related to or associated with a victim or witness by such means as: (a) expunging names and identifying information from the Tribunal’s public records; (b) non-disclosure to the public of any records identifying the victim; (c) giving of testimony through image- or voice-altering devices or closed circuit television; and (d) assignment of a pseudonym; (ii) closed sessions, in accordance with Rule 79; (iii) appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television. (C) A Chamber shall, whenever necessary, control the manner of questioning to avoid any harassment or intimidation. (D) When making an order under paragraph (A) above, a Judge or Chamber shall wherever appropriate state in the order

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(E)

(F)

(G)

(H)

Appendix whether the transcript of those proceedings relating to the evidence of the witness to whom the measures relate shall be made available for use in other proceedings before the Tribunal. Once protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the “first proceedings”), such protective measures: (i) shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the “second proceedings”) unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule; but (ii) shall not prevent the Prosecutor from discharging any disclosure obligation under the Rules in the second proceedings, provided that the Prosecutor notifies the Defence to whom the disclosure is being made of the nature of the protective measures ordered in the first proceedings. A party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings must apply: (i) to any Chamber, however constituted, remaining seized of the first proceedings; or (ii) if no Chamber remains seized of the first proceedings, to the Chamber seized of the second proceedings. Before determining an application under paragraph (F) (ii) above, the Chamber seized of the second proceedings shall obtain all relevant information from the first proceedings, and shall consult with any Judge who ordered the protective measures in the first proceedings, if that Judge remains a Judge of the Tribunal. An application to a Chamber to rescind, vary or augment protective measures in respect of a victim or witness may be dealt with either by the Chamber or by a Judge of that Chamber, and any reference in this Rule to “a Chamber” shall include a reference to “a Judge of that Chamber”.


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Rule 77 Contempt of the Tribunal (A) The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice, including any person who (i) being a witness before a Chamber, contumaciously refuses or fails to answer a question; (ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber; (iii) without just excuse fails to comply with an order to attend before or produce documents before a Chamber; (iv) threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness; or (v) threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber. (B) Any incitement or attempt to commit any of the acts punishable under paragraph (A) is punishable as contempt of the Tribunal with the same penalties. (C) When a Chamber has reason to believe that a person may be in contempt of the Tribunal, it may: (i) direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for contempt; (ii) where the Prosecutor, in the view of the Chamber, has a conflict of interest with respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Chamber as to whether there are sufficient grounds for instigating contempt proceedings; or (iii) initiate proceedings itself. (D) If the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may:

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(i) in circumstances described in paragraph (C) (i), direct the Prosecutor to prosecute the matter; or (ii) in circumstances described in paragraph (C) (ii) or (iii), issue an order in lieu of an indictment and either direct amicus curiae to prosecute the matter or prosecute the matter itself. (E) The rules of procedure and evidence in Parts Four to Eight shall apply mutatis mutandis to proceedings under this Rule. (G) The maximum penalty that may be imposed on a person found to be in contempt of the Tribunal shall be a term of imprisonment not exceeding seven years, or a fine not exceeding 100,000 Euros, or both. (I)

If a counsel is found guilty of contempt of the Tribunal pursuant to this Rule, the Chamber making such finding may also determine that counsel is no longer eligible to represent a suspect or accused before the Tribunal or that such conduct amounts to misconduct of counsel pursuant to Rule 46,8 or both. (J) Any decision rendered by a Trial Chamber under this Rule shall be subject to appeal. Notice of appeal shall be filed within fifteen days of filing of the impugned decision. Where such decision is rendered orally, the notice shall be filed within fifteen days of the oral decision, unless (i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or (ii) the Trial Chamber has indicated that a written decision will follow, in which case the time-limit shall run from filing of the written decision.

8

Rule 46 deals with misconduct by counsel.


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(K) In the case of decisions under this Rule by the Appeals Chamber sitting as a Chamber of first instance, an appeal may be submitted in writing to the President within fifteen days of the filing of the impugned decision. Such appeal shall be decided by five different Judges as assigned by the President. Where the impugned decision is rendered orally, the appeal shall be filed within fifteen days of the oral decision, unless (i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or (ii) the Appeals Chamber has indicated that a written decision will follow, in which case the time-limit shall run from filing of the written decision. Rule 78 Open Sessions All proceedings before a Trial Chamber, other than deliberations of the Chamber, shall be held in public, unless otherwise provided. Rule 79 Closed Sessions (A) The Trial Chamber may order that the press and the public be excluded from all or part of the proceedings for reasons of: (i) public order or morality; (ii) safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75; or (iii) the protection of the interests of justice. (B) The Trial Chamber shall make public the reasons for its order.

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Appendix Rule 81 Records of Proceedings and Evidence

(A) The Registrar shall cause to be made and preserve a full and accurate record of all proceedings, including audio recordings, transcripts and, when deemed necessary by the Trial Chamber, video recordings. (B) The Trial Chamber, after giving due consideration to any matters relating to witness protection, may order the disclosure of all or part of the record of closed proceedings when the reasons for ordering its non-disclosure no longer exist. (C) The Registrar shall retain and preserve all physical evidence offered during the proceedings subject to any Practice Direction or any order which a Chamber may at any time make with respect to the control or disposition of physical evidence offered during proceedings before that Chamber. (D) Photography, video-recording or audio-recording of the trial, otherwise than by the Registrar, may be authorised at the discretion of the Trial Chamber.

SECTION 2: CASE PRESENTATION Rule 84 bis (A) After the opening statements of the parties or, if the defence elects to defer its opening statement . . ., after the opening statement of the Prosecutor, if any, the accused may, if he or she so wishes, and the Trial Chamber so decides, make a statement under the control of the Trial Chamber. The accused shall not be compelled to make a solemn declaration and shall not be examined about the content of the statement. (B) The Trial Chamber shall decide on the probative value, if any, of the statement.


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Rule 85 Presentation of Evidence (A) Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence: (i) evidence for the prosecution; (ii) evidence for the defence; (iii) prosecution evidence in rebuttal; (iv) defence evidence in rejoinder; (v) evidence ordered by the Trial Chamber pursuant to Rule 98; and (vi) any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more of the charges in the indictment. (B) Examination-in-chief, cross-examination and re-examination shall be allowed in each case. It shall be for the party calling a witness to examine such witness in chief, but a Judge may at any stage put any question to the witness. (C) If the accused so desires, the accused may appear as a witness in his or her own defence.

SECTION 3: RULES

OF

EVIDENCE

Rule 89 General Provisions (A) A Chamber shall apply the rules of evidence set forth in this Section, and shall not be bound by national rules of evidence. (B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.

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(C) A Chamber may admit any relevant evidence which it deems to have probative value. (D) A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. (E) A Chamber may request verification of the authenticity of evidence obtained out of court. (F) A Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form. Rule 90 Testimony of Witnesses (C) A witness, other than an expert, who has not yet testified shall not be present when the testimony of another witness is given. However, a witness who has heard the testimony of another witness shall not for that reason alone be disqualified from testifying. (D) Notwithstanding paragraph (C), upon order of the Chamber, an investigator in charge of a party’s investigation shall not be precluded from being called as a witness on the ground that he or she has been present in the courtroom during the proceedings. (E) A witness may object to making any statement which might tend to incriminate the witness. The Chamber may, however, compel the witness to answer the question. Testimony compelled in this way shall not be used as evidence in a subsequent prosecution against the witness for any offence other than false testimony. (F) The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time. (G) The Trial Chamber may refuse to hear a witness whose name does not appear on the list of witnesses compiled pursuant to Rules 73 bis (C) and 73 ter (C).


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(H) (i) Cross-examination shall be limited to the subject-matter of the evidence-in-chief and matters affecting the credibility of the witness and, where the witness is able to give evidence relevant to the case for the cross-examining party, to the subject-matter of that case. (ii) In the cross-examination of a witness who is able to give evidence relevant to the case for the cross-examining party, counsel shall put to that witness the nature of the case of the party for whom that counsel appears which is in contradiction of the evidence given by the witness. (iii) The Trial Chamber may, in the exercise of its discretion, permit enquiry into additional matters. Rule 90 bis Transfer of a Detained Witness (A) Any detained person whose personal appearance as a witness has been requested by the Tribunal shall be transferred temporarily to the detention unit of the Tribunal, conditional on the person’s return within the period decided by the Tribunal. (B) The transfer order shall be issued by a permanent Judge or Trial Chamber only after prior verification that the following conditions have been met: (i) the presence of the detained witness is not required for any criminal proceedings in progress in the territory of the requested State during the period the witness is required by the Tribunal; (ii) transfer of the witness does not extend the period of detention as foreseen by the requested State. (C) The Registrar shall transmit the order of transfer to the national authorities of the State on whose territory, or under whose jurisdiction or control, the witness is detained. Transfer shall be arranged by the national authorities concerned in liaison with the host country and the Registrar. (D) The Registrar shall ensure the proper conduct of the transfer, including the supervision of the witness in the detention unit of the Tribunal; the Registrar shall remain abreast of

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any changes which might occur regarding the conditions of detention provided for by the requested State and which may possibly affect the length of the detention of the witness in the detention unit and, as promptly as possible, shall inform the relevant Judge or Chamber. (E) On expiration of the period decided by the Tribunal for the temporary transfer, the detained witness shall be remanded to the authorities of the requested State, unless the State, within that period, has transmitted an order of release of the witness, which shall take effect immediately. (F) If, by the end of the period decided by the Tribunal, the presence of the detained witness continues to be necessary, a permanent Judge or Chamber may extend the period on the same conditions as stated in paragraph (B). Rule 91 False Testimony under Solemn Declaration (A) A Chamber, proprio motu or at the request of a party, may warn a witness of the duty to tell the truth and the consequences that may result from a failure to do so. (B) If a Chamber has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it may: (i) direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony; or (ii) where the Prosecutor, in the view of the Chamber, has a conflict of interest with respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Chamber as to whether there are sufficient grounds for instituting proceedings for false testimony. (C) If the Chamber considers that there are sufficient grounds to proceed against a person for giving false testimony, the Chamber may: (i) in circumstances described in paragraph (B) (i), direct the Prosecutor to prosecute the matter; or


475

(ii) in circumstances described in paragraph (B) (ii), issue an order in lieu of an indictment and direct amicus curiae to prosecute the matter. The rules of procedure and evidence in Parts Four to Eight shall apply mutatis mutandis to proceedings under this Rule. Any person indicted for or charged with false testimony shall, if that person satisfies the criteria for determination of indigence established by the Registrar, be assigned counsel in accordance with Rule 45.9 No Judge who sat as a member of the Trial Chamber before which the witness appeared shall sit for the trial of the witness for false testimony. The maximum penalty for false testimony under solemn declaration shall be a fine of 100,000 Euros or a term of imprisonment of seven years, or both. . . . Paragraphs (B) to (G) apply mutatis mutandis to a person who knowingly and willingly makes a false statement in a written statement taken in accordance with Rule 92 bis which the person knows or has reason to know may be used as evidence in proceedings before the Tribunal. Any decision rendered by a Trial Chamber under this Rule shall be subject to appeal. Notice of appeal shall be filed within fifteen days of filing of the impugned decision. Where such decision is rendered orally, the notice shall be filed within fifteen days of the oral decision, unless (i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or (ii) the Trial Chamber has indicated that a written decision will follow, in which case the time-limit shall run from filing of the written decision.

(D) (E)

(F)

(G)

(H)

(I)

9

Rule 45 deals with assigned counsel.

476

Appendix Rule 92 Confessions

A confession by the accused given during questioning by the Prosecutor shall, provided the requirements of Rule 63 were strictly complied with, be presumed to have been free and voluntary unless the contrary is proved. Rule 92 bis Proof of Facts other than by Oral Evidence (A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment. (i) Factors in favour of admitting evidence in the form of a written statement include but are not limited to circumstances in which the evidence in question: (a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts; (b) relates to relevant historical, political or military background; (c) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates; (d) concerns the impact of crimes upon victims; (e) relates to issues of the character of the accused; or (f) relates to factors to be taken into account in determining sentence. (ii) Factors against admitting evidence in the form of a written statement include whether: (a) there is an overriding public interest in the evidence in question being presented orally; (b) a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value; or


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(c) there are any other factors which make it appropriate for the witness to attend for cross-examination. (B) A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person’s knowledge and belief and (i) the declaration is witnessed by: (a) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or (b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose; and (ii) the person witnessing the declaration verifies in writing: (a) that the person making the statement is the person identified in the said statement; (b) that the person making the statement stated that the contents of the written statement are, to the best of that person’s knowledge and belief, true and correct; (c) that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and (d) the date and place of the declaration. The declaration shall be attached to the written statement presented to the Trial Chamber. (C) A written statement not in the form prescribed by paragraph (B) may nevertheless be admissible if made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally, if the Trial Chamber: (i) is so satisfied on a balance of probabilities; and (ii) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability.

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(D) A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused. (E) Subject to Rule 12710 or any order to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object. The Trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for cross-examination. Rule 93 Evidence of Consistent Pattern of Conduct (A) Evidence of a consistent pattern of conduct relevant to serious violations of international humanitarian law under the Statute may be admissible in the interests of justice. (B) Acts tending to show such a pattern of conduct shall be disclosed by the Prosecutor to the defence pursuant to Rule 66. Rule 94 Judicial Notice (A) A Trial Chamber shall not require proof of facts of common knowledge but shall take judicial notice thereof. (B) At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings.

10

Rule 127 deals with variation of time limits by Trial Chambers and Appeals Chambers.


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Rule 94 bis Testimony of Expert Witnesses (A) The full statement of any expert witness to be called by a party shall be disclosed within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge. (B) Within thirty days of filing of the statement of the expert witness, or such other time prescribed by the Trial Chamber or pre-trial Judge, the opposing party shall file a notice indicating whether: (i) it accepts the expert witness statement; or (ii) it wishes to cross-examine the expert witness. (C) If the opposing party accepts the statement of the expert witness, the statement may be admitted into evidence by the Trial Chamber without calling the witness to testify in person. Rule 95 Exclusion of Certain Evidence No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings. Rule 96 Evidence in Cases of Sexual Assault In cases of sexual assault: (i) no corroboration of the victim’s testimony shall be required; (ii) consent shall not be allowed as a defence if the victim (a) has been subjected to or threatened with or has had reason to fear violence, duress, detention or psychological oppression, or (b) reasonably believed that if the victim did not submit, another might be so subjected, threatened or put in fear;

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Appendix (iii) before evidence of the victim’s consent is admitted, the accused shall satisfy the Trial Chamber in camera that the evidence is relevant and credible; (iv) prior sexual conduct of the victim shall not be admitted in evidence. Rule 97 Lawyer-Client Privilege

All communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure. Rule 98 Power of Chambers to Order Production of Additional Evidence A Trial Chamber may order either party to produce additional evidence. It may proprio motu summon witnesses and order their attendance. PART SEVEN APPELLATE PROCEEDINGS Rule 107 General Provision The rules of procedure and evidence that govern proceedings in the Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.


481

Rule 115 Additional Evidence (A) A party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial. Such motion must be served on the other party and filed with the Registrar not later than 75 days from the date of the judgment, unless good cause is shown for further delay. Rebuttal material may be presented by any party affected by the motion. (B) If the Appeals Chamber finds that the additional evidence was not available at trial and is relevant and credible, it will determine if it could have been a decisive factor in reaching the decision at trial. If it could have been such a factor, the Appeals Chamber will consider the additional evidence and any rebuttal material along with that already on the record to arrive at a final judgment in accordance with Rule 117.11 (C) The Appeals Chamber may decide the motion prior to the appeal, or at the time of the hearing on appeal. It may decide the motion with or without an oral hearing. (D) If several defendants are parties to the appeal, the additional evidence admitted on behalf of any one of them will be considered with respect to all of them, where relevant.

11

Rule 117 deals with final judgment.

INDEX (Appendix is not indexed)

Absence of a party 144–6 Absolute certainty and proof: see Proof Accused, prior statements of: see Prior statements of accused Actori incumbit onus probandi 61–95, 97–8, 109–10, 366, 369–73 policy arguments against principle 90–5 Administrative acts 270–8 Administrative review 306 Admissibility of evidence 30, 163–84, 185–6, 187, 193, 212, 265, 316–41 see also Evidence Admissible evidence: see Admissibility of evidence, Evidence Admissions of fact(s) 188 Adverse inference: see Inference Affidavits 172, 189–203, 254, 390–4 Agreement(s): see Convention(s) Algiers Declaration (1981) 143, 365–6 Anonymity, of victims: see Victims of witnesses: see Witnesses

Appeals committees (World Bank) 281 Appraisal reports 298 Arbitral Procedure, Model Rules on: see Model Rules on Arbitral Procedure Arbitration 5, 48, 57, 72–4, 99–101, 112–14, 125, 153, 156, 158, 161, 164–6, 169, 176–7, 181–2, 183–4, 185–7, 189, 190–1, 194–203, 206–7, 209–10, 214, 218, 220–1, 226, 227–8, 229–31, 232, 233, 234, 240, 241, 246, 247–54, 267, 275, 365–98 international commercial 146 mixed international 9 Rules of 75, 99–101, 132: see also ICSID, Iran-US Claims Tribunal, PCA see also Iran-US Claims Tribunal Assertions of parties 44, 187 Authenticity: see Documents; Evidence Basic general principle(s): see General Principle(s) Best evidence: see Evidence Boundaries: see Delimitation of boundaries

484 Boundary, de facto: see De facto boundary Boundary Disputes: see Disputes Burden of Evidence 11, 29, 30, 37–41, 368, 369–73 and the civil law 39–40 Burden of Proof 11, 12, 29, 34–7, 41, 42–6, 58, 61–95, 97, 116–17, 131, 218–31, 232–64, 365, 366, 368, 369–73, 374–5, 376, 384–5 division of 67, 78–88, 89, 223, 374, 375 incidence of 75–8 inferences and 223–31 legal presumption and 218–23, 265 powers of tribunals and 61–95, 131 shift in 87–8, 137–8, 376 Burkina Faso 266–79 Categories of facts, to be proved 381–6 Cercles 270–8 CERN 286, 307 Certainty, absolute: see Proof degree of: see Proof Charter, ILO 293 Circumstantial evidence: see Evidence Civil cases 42–3, 97, 107, 111, 112, 204 Civil law: see Civil law systems Civil law approach: see Civil law systems Civil law systems 233, 338 Civil litigation: see Civil cases Civil proceedings: see Civil cases CJEC 9, 130–2, 155–6, 214, 289, 302–3, 307–9, 311–12 Rules of Procedure of: see Rules of Procedure Statute of: see Statute(s) Claims Commissions 164

Index British-Mexican 140 Mexican-United States 141 see also Tribunals Closed session: see Sessions Common law: see Common law systems Common law systems 233, 321, 329 Common sense 28, 203 Compromis 75–6, 77, 96 Concept(s) indeterminate 13 vacuous: see herein indeterminate Concepts Conference, pre-hearing: see Pre-hearing conference Confidentiality and Victims: see Victims Confidentiality, claims of 292–305, 314 Constitutional provision 293 Constitutive instruments of tribunals: see Statute(s) Contemporary conduct: see Evidence Contemporary practice: see Evidence Contracts 381–2, 397 Convention(s) 4, 24, 76, 98–9, 104–5, 174, 178–9, 188 Hague 94, 98–9, 133 on Arbitral Procedure, of ILC 100 Vienna, Law of Treaties 218, 221–2 Convincing manner, proof in: see Proof Cooperate, consequences of 109–14 duty to 29, 90, 95, 96–117 enforcement of: see Enforcement Cooperation, facilitation of 114–5, 118–30 measures taken to effect 118–46 special problems and 138–46

Index Corroboration 328, 353, 378 Costs 383 Council of Europe Appeals Board 288, 289 Courts: see Tribunals Credibility of evidence: see Evidence Criminal cases 43, 97, 112, 117, 162, 203–4, 210, 235; see also ICTR, ICTY Criminal courts: see Tribunals Criminal litigation: see Criminal cases Criminal proceedings: see Criminal cases Culpa 219–20 Customary law 4, 24, 366 De facto boundary 271, 272 Debts 383 Defences 361–2 and proof 236–7, 361–2 Defences and proof: see Defences, Proof Definition of evidence: see Evidence Degree of certainty for proof: see Proof Delimitation, general principles and 278–9 of boundaries 265–9 Delivery list 385–6 Depositions 112, 201, 325, 333 Descente sur les lieux 30, 159, 162, 189 Direct evidence 316, 323–5, 337, 376 identification as 324–5 see also Evidence Discovery 30, 110, 111, 112, 354–64 see also production of Documents Discretion in weighing evidence 185–210 relating to standard of proof 30

485 Dispositif 279 Disputes, boundary 105–6, 265–79 international 3–7, 10, 12 maritime boundary 278–9 parties to: see Party, to dispute transnational 5, 7 Documentary evidence: see Documents Documents 30, 101, 102–3, 106, 107, 131, 136, 172, 203–4, 280, 281–4, 312–14, 323, 325, 329, 339–40, 356, 380, 383, 385, 386, 392 affidavits: see Affidavits authenticity 183–4 confidentiality of: see Confidentiality discovery of: see herein production of Documents, also Discovery inspection of, by tribunal 299 production of 11, 101, 102–3, 106, 109–10, 114–15, 118–30, 131–7, 141–2, 152–3, 254, 281, 282–4, 288–305, 354–64, 365 Doubt, reasonable: see Proof ECHR 9, 73, 77, 187–8, 192–3, 227, 231, 235, 236, 246, 344, 350 ECSC 289 EEC 289 Effectivité(s) 273–8 EMBL 287 Enforcement 117 EPO 291 Equality, rules of 304 Equality of arms: see Parties Euratom 289 Eurocontrol 301–2 European Commission of Human Rights 231, 233, 235

486 European Communities, 308 Commission of 302–3, 309 European Convention on Human Rights 236, 246, 344, 345, 352 European Nuclear Energy Tribunal 134 Rules of Procedure: see Procedure Evaluation of evidence 30, 185–210, 211–31, 265, 316–41, 365, 368, 379, 381–98 discretion in: see Discretion inferences and: see Inferences presumptions and 211–31; see also Presumptions Evidence, absence of a party and 144–6 alibi as 362–3 authenticity of 339; see also Documents best 204–8, 376 categories of evidence 386–98 circumstantial 198, 204–8; see also Indirect evidence contemporary conduct as 379 contemporary practice 380 convincing: see standard of Proof credibility of 358, 379 definition of 31–2 difficulties in securing 138–41 direct 207–8; see also Direct evidence disclosure of: see herein production of Evidence, also Discovery documents lacking authenticity as: see Documents effectivité(s) and 273 evaluation of: see Evaluation of evidence exculpatory material 356, 358–61 failure to produce: see herein production of Evidence

Index flexibility of, rule of 319 freedom and 319, 322 general rules of: see herein Rules of Evidence hearsay 200, 203, 322, 328–41, 389–90 inadmissible and admissible 167–84, 185–6, 316–41, 365, 366, 368, 381–98; see also Admissibility of evidence indirect: see Indirect evidence irrelevant: see herein relevant Evidence late-filed 167–74 legislative and administrative acts as 270–8; see also Administrative acts, Legislative acts live 323–5 maps as 272–3; see also Maps notification obligations 357, 361–3 obligations 356, 361–3 obtained by violation of international law 177–9 obtained through settlement negotiations 174–7 of questionable reliability and causing damage to integrity of proceedings 180 photographs as: see Photographs preponderance of: see Proof prior statements of accused as 356, 357–8 probative value of 322, 323, 327, 337, 367 production of 66, 101, 103, 109–10, 114–17, 118–30, 131–8, 376–7, 378, 379 relevant 182–3, 322, 386 Rules of 41, 42–6, 47–9, 90, 94–5, 96, 97, 115, 317, 318, 319, 323, 325

Index secondary 205 taking of, from third parties 30 technical reports as 395–6 time-barred 180–2 voluminous 143–4, 377, 398 weight of: see Evaluation of evidence Evidence, preponderance of: see Proof Expert(s) 11, 30, 156–7, 172–3, 200, 305–14, 326, 333, 365, 386, 396–8 reports of 397–8 tribunal appointed 396–8 Fact, proof of: see Proof Fact-finding: see Proof Facts, methods applied to find 152–62 Fair trial 13–19, 29–30, 88, 96, 290, 293, 316–64, 366 FAO 287, 291, 296, 300, 301 Flexibility and evidence: see Evidence Forgery 374 Formal note 132 Freedom and evidence: see Evidence Fundamental general principle(s): see General Principle(s) General Principle(s) 13–19, 24, 26–30, 47–8, 49, 59–261, 297, 315–16, 318, 319–20, 366 and delimitation: see Delimitation of boundaries basic 13–19, 21, 315–16 fundamental 21, 29 of law: see herein General principles see also herein basic General principle, also Ius Cogens Genocide 4 Good faith,

487 effort 376 principle of 376

96, 115, 117, 194,

Hearing, private 351–3 public 351–3 Hearsay evidence: see Evidence Humanitarian law 4, 321 IACHR 9, 134, 192, 213, 223, 226–7, 228, 239–40, 241, 245 IAEA 294–5 IAT(s) 9, 10, 116, 153, 156, 157, 214, 231, 235, 280–314 see also individual IATs ICAO 291, 305 ICCPR 344, 345, 352 ICJ 9, 10, 11, 16, 33, 38–40, 47, 52–3, 55–6, 57, 65–6, 69–72, 76, 78, 80–4, 88, 94, 101, 105, 107–8, 113, 115, 116, 131–2, 133, 139, 144–6, 149, 150, 151, 152, 153–5, 156–7, 158, 159–60, 161, 163, 164, 166, 168–9, 174–6, 177–9, 180–1, 183, 186, 190, 191–2, 193, 199, 204–6, 208, 210, 213–14, 216–17, 218, 219–20, 221–3, 224–5, 226, 227, 228, 232, 236–7, 240–1, 245–6, 250, 258–9, 261, 265–79 Rules of Court of: see Rules Statutes of: see Statute(s) ICSID 10 Arbitration Rules of 100–1, 132 see also Tribunals ICTR 9, 116, 156, 199, 237, 243, 326 Rules of Procedure of: see Rules Statute of: see Statute(s) ICTY 9, 10, 14–15, 25, 27–8, 116, 156, 179, 180, 183, 184, 199, 237–9, 243–5

488 Evidence and: see ICTY Rules of Procedure of: see Rules Statute of: see Statute(s) IDBAT 288, 289 ILC 97 ILO 104–5, 287, 291, 292, 293, 298 constitution of 104 ILOAT 5, 286–7, 291, 292, 293–5, 296–8, 300–302, 303–4, 307, 309–11 IMO 292, 297 Impartiality: see Tribunals Inadmissible evidence: see Admissibility of evidence, Evidence Independence of States 215 Indictments 32, 41, 42–6 Indirect evidence 316, 325–6, 328–41 Inference, 189, 265, 313 adverse 133–7, 284, 300, 377, 378, 379 negative: see herein adverse Inference prima facie case and 246–58 see also Burden of Proof, Presumptions Inquiry 11 International judicial tribunals: see Tribunals International law, Private 7 International Law, public 4–8, 57 International Legal System 10 International relations: see Relations International tribunals: see Tribunals Interpretation 24–5 Interrogations 112, 283, 291–2 Intervention of a third State 113, 114 Introductory 1–58 Invoices, unpaid 382–3 Iran 366–7

Index Iran-US Claims Tribunal 9, 11, 16–17, 47, 57, 73–4, 91, 93, 106–7, 112, 116, 118–30, 134, 135–8, 139–41, 142, 143–4, 149, 150, 151, 155, 157–8, 159, 160, 169–74, 176, 180–1, 184, 193, 205, 218, 220–1, 223, 224, 225–6, 227–8, 229–31, 232–3, 236, 240, 241, 246, 250, 251–2, 254, 259–61, 365–98 action by 126–30, 134–5 intervention by 118–30 Rules of: see Rules of Procedure see also Arbitration, Tribunals Irrebuttable presumptions: see Presumptions Irrelevant evidence: see Evidence ITLOS 9, 16, 47, 57, 107, 150, 153, 156, 163, 169, 183 Rules of: see Rules of Procedure ITU 287 Iura novit curia 53–8 Ius cogens 21 Jay Treaty (1794) 164 Joint appeals board (UN) 281 Judicial notice 160–1, 162, 188–9 Judicial presumptions: see Inferences, Presumptions Judicial proceeding, basic elements of 31–49 Jurisdiction, lack of 124 Justice, interests of 326, 352 rules of 304 Law, sources of 10, 21–30 Law, customary: see Customary law Law, humanitarian law: see Humanitarian law Law, proof of: see Proof Legal presumptions: see Burden of proof, Presumptions

Index Legal system(s), national 186 Legislative acts 270–8 Live evidence: see Evidence Local remedies, exhaustion of 79–87 Mali 266–79 Maps 272–3, 323, 340 see also Evidence Maritime boundary disputes: see Disputes Mechanics of proof: see Proof Medical experts: see Expert(s) Medical file 303–4 Methodology 10–13 Methods applied to find facts: see Facts Model Rules on Arbitral Procedure (1958) 48, 100–1, 132 Moral conviction of truth 185, 186, 207, 233 NAFTA 10 see also Tribunals Nation state 3 National tribunals: see Tribunals Nationalisation 377 Nationality of shareholders 143–4, 205 NATO Appeals Board 291 Negotiations and evidence: see Evidence Non liquet 186 Notification obligations 356 see also Evidence OASAT 285–6, 291 Obligations, evidentiary: see Evidence notification: see Evidence, Notification obligations OECD 288–9 Appeals Board 288–9

489 Ombudsman 297 Omnia rite acta praesumuntur 214, 372 Onus probandi: see Burden of proof Oral evidence: see Witnesses Oral hearings: see Witnesses Oral proceedings 150 Oral statements: see Witnesses Packing list 386 PAHO 309–10 Parties, assertions of: see Assertions of parties Party(ies), absence of 144–6 assertions of: see Assertions of parties equality of arms of 14 individuals as, to dispute 5–6, 8 inter-governmental organization as 4, 5, 6 private 7 State as 3, 4, 6, 8 to dispute 3, 4, 5–6, 8, 14, 144–6 PCA 66, 75, 99, 133, 220 PCIJ 9, 50–2, 54–5, 67–9, 80, 92, 94, 132, 159, 199, 214–5, 217, 258–9 Rules of: see Rules Statute of: see Statute(s) Penalties: see Sanctions Personal file 293–6 Photographs 394–5 Pleadings 32, 194 evidence and 148–51, 194 presentation of 41, 42–6, 48–50 Pleadings and evidence: see Pleadings Possibility and proof: see Proof Practice, State: see State practice Pre-hearing conference 155 Prejudice: see Impartiality

490 Preponderance of evidence: see Proof Presentation of pleadings: see Pleadings Presumptions 189, 211–31, 265, 368, 375–80 definition of 211–12 irrebuttable 211–31 judicial 29, 223–31, 368, 375–80 legal 29, 212–23, 375–80 rebuttable 211–31, 375 Prima facie case 136, 139, 140, 144, 246–61, 359, 360, 372, 375, 380, 386 jurisdictional issues and 258–61 provisional measures and 261 Prima facie evidence: see Prima facie case Principle of fair trial: see Fair trial Principle(s), general: see General Principle(s) Principle(s), general, of law: see General Principle(s) Principle, basic: see General principle(s) Prior statements of accused: see Evidence Privacy and victims: see Victims Probability 233, 239, 241–2 Probability and proof: see Probability, Proof Probatio diabolica 256 Probative evidence: see Evidence Probative value: see Evidence Procedure, 12–13, 23, 90–2, 96, 111, 113 arbitral: see Arbitral procedure civil law 23 Rules of 11, 33, 42–3, 90, 94, 99, 111, 112, 115, 116, 118–25, 132, 134, 149, 150, 151, 153, 155–6, 157, 158, 159–60, 163, 168, 169, 172, 179, 184, 199,

Index 210, 280, 281–4, 285, 287, 288–9, 306, 317, 318, 319, 320, 321, 323, 325, 326, 327–8, 332–3, 335, 336, 337, 338, 344, 345, 346, 347, 349, 350, 351, 354, 355, 356, 357, 359, 360, 364 Proceedings, integrity of 14, 16–17, 327 Production of evidence: see Evidence Proof 13–19 absolute certainty for 240–1 beyond a reasonable doubt 234, 235–6, 316–17, 328, 375 burden of: see Burden of Proof convincing manner 235, 239–41, 373, 374 defences and 236–7 degree of certainty for 240–1 mechanics of 147–69 of fact 50–8, 152–62, 366 of law 50–8 possibility 245–6 preponderance of evidence: see herein probability probability 233, 372, 373, 374–6 standard of 11, 30, 186, 232–64, 316, 322, 368, 373–5 well founded in fact and law 245 Property 394–5, 398; see also Nationalisation, Valuation of property Property: see Valuation of property Proprio motu action of tribunals: see Tribunals Protection of victims: see Victims Quasi-judicial processes

304

Reasonable conclusion 243–5 Reasonable Doubt, beyond: see Proof Reasonable man 233

Index Rebuttable presumptions: see Presumptions Registry 327 Relations, international 3, 4 Relevant evidence: see Evidence Reliability, questionable: see Evidence Reports Board (ILO) 298 Reports, technical 395–6 Res judicata 279 Retraumatization of victims: see Victims Reus in exceptione fit actor 62 Rules: see Procedure Rules of Court: see Rules of Procedure Rules of Evidence: see Evidence, Procedure, Statute(s) Rules of Procedure: see Procedure Sanctions 30, 110, 130–8 Satisfaction of judge 233 Scope of work: see Work Secondary evidence: see Evidence Session(s), closed 351–3 Settlement negotiations and evidence: see Evidence Sexual assault 343, 353–4 Shareholders, nationality of: see Nationality of shareholders Shipment 384–6 Sources of Law: see Law Specific tribunals 263–398 Staff Regulations 298, 308 Standard of proof: see Proof State practice 49 Statements 189–95 corroboration of 192, 328 sworn, by witnesses 195–203 written 365 see also Affidavits, Oral evidence States, independence of: see Independence of States

491 Statute(s) 11, 14, 33, 94, 99, 101, 113, 116, 132, 133, 145, 151, 152, 159, 186–7, 199, 210, 218, 288–9, 306, 317, 318, 321, 325, 335, 341, 344, 345, 346, 347, 349, 350, 351, 354, 355 Submissions, simultaneous 90, 92–4 Technical reports: see Evidence, Reports Television, closed circuit 353 Texts, basic: see Written texts fundamental: see Written texts written: see Written texts Time-barred evidence: see Evidence Transnational disputes: see Disputes Transnational tribunals: see Tribunals Treaties: see Convention(s) Trial, fair: see Fair trial Tribunal(s), arbitration 9–10, 12, 47, 53, 62–5, 72–4, 87–8, 99–101, 102–7: see also Arbitration civil 15–16, 25, 30; see also Civil cases criminal 10; see also Criminal cases; ICTY; ICTR human rights 10, 15–16, 19–20, 21–30, 48: see also ECHR, Human Rights Committee, IACHR ICSID 10; see also ICSID impartiality of 14, 16–17 international 3, 6, 8–10, 11, 12, 13, 15, 21–30, 47, 72–4, 282–4 international administrative 5–6: see also IATs international civil 12, 22–30 international criminal 12, 15–16, 19–20, 21–30, 48, 101, 210, 315–64; see also Criminal cases, ICTR, ICTY

492 international judicial 47 municipal: see herein national Tribunals NAFTA 10; see also NAFTA national 8, 10, 23, 27 powers of, and mechanics of proof 147–62 proprio motu action of 131, 147, 148, 152, 185, 285, 289–90, 295, 313, 319 standing 9 transnational 9 UN Human Rights Committee 105 UNAT 150, 153, 163, 254, 286, 289, 291–2, 295–6, 300, 304–5 Rules of: see Rules of Procedure UNCITRAL Rules (Arbitration) 47, 49, 94, 99–100, 112, 155, 157, 368, 369 UNCLOS 109 UNESCO 287, 291, 296 United Nations Joint Staff Pension Fund 310 Unpaid invoices: see Invoices Use of experts: see Expert(s) Uti possidetis 269, 272, 274 Valuation of property 398 Victims, anonymity of 343 confidentiality for 343 history and 341–3 privacy and: see herein confidentiality for Victims protection of 341–54 retraumatization of 343, 347, 351, 353–4 Video-conference link 325

Index Violation of International law and evidence: see Evidence Voluminous evidence: see Evidence WBAT 5–6, 63, 77–8, 282, 283, 284, 287–8, 289, 290, 291, 292, 299, 306–7 Rules of: see Rules of Procedure Weighing of evidence: see Evaluation of evidence Well-founded proof: see Proof WHO 286, 287, 293, 297, 303–4, 311–12 Witnesses 11, 23, 30, 155–6, 162, 187, 195–203, 280, 281, 282–8, 312–13, 327, 362, 363–4, 365, 386–89, 391–2 affidavits by 390–4 anonymity of 343, 347–51 calling of 155–6, 284–8 closed sessions for 351–3 confidentiality and 343, 347 credibility of 201, 324, 339, 351 cross-examination 162, 187, 330, 333, 338, 354 examination of 355: see also herein cross-examination interrogation of 283 privacy and 343, 352 protective measures for 14, 341–54 retraumatization of 343, 347, 351, 353–4 sworn statements of 195–203 Work, Scope of 3–10 Written law: see Written texts Written statements: see Statements Written texts 24, 30, 90, 94, 285

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