Reconcilable Difference: A Critical Assessment of the International Court of Justice’s Treatment of Circumstantial Evidence

Michael P. Scharf, Case Western Reserve University
Margaux Day, Case Western Reserve University School of Law

Abstract

This article examines a vexing evidentiary question that the International Court of Justice has struggled with in several cases over the years, namely: what should the Court do when one of the parties has exclusive access to critical evidence and refuses to produce it for security or other reasons? In its first case, Corfu Channel, the Court decided to apply liberal inferences of fact against the non-producing party, but in the more recent Bosnia Genocide case, the Court declined to do so under seemingly similar circumstances. By carefully examining the treatment of evidence in these and other international cases in which this situation has arisen, this article seeks to illuminate the nuances in the Court’s approach to circumstantial evidence. Because International Court of Justice cases significantly impact the practice of States and international organizations and are frequently cited as authority by national courts, a better understanding of the Court’s application of evidentiary standards has broad scholarly and practical utility.