Is a Common Yardstick of Standard of Proof Necessary for International Tribunals?

*Inamul Hassan

INTRODUCTION

A claim of deficiency is made on both civil and common law judges each for adhering to different measures while approaching the standard of proof. This article makes comparative observations regarding standard of proof used by different international tribunals. It argues that legal certainty with regards to the standard of proof is a requirement to avoid allegations of impartiality while delivering judgements.

In legal terms standard of proof refers to evidence explicitly being subjected to a certain set of measure that stipulates a threshold of cogency which it should meet. It is a concept which is important for the functioning of domestic and international litigation. In the civil legal approach, the standard of proof is approached through the deep-seated conviction of the judge. Similarly, in the common law tradition the evidence needs to pass through a certain measure which is explicitly mentioned by the common law judges, to be declared as a viable piece of evidence. The objective standard set forth by the common law tradition allow a sphere of subjectivity while deciding two cases on the balance of probabilities. Nonetheless, it is projected that the difference between the common and civil tradition is the reason for the uncertainty to remain in the international tribunals

International Court of Justice

Article 53 of the statute of the ICJ states that when one party does not appear before the court, the court must satisfy itself, that the claim is “well founded in fact and law”. This solution provided by the statute does not inherently mention the need for a standard of proof regarding a fact. The court must explicitly portray its own standard. The ICJ on different occasions has applied different standards from “beyond reasonable doubt” to less complex standards such as preponderance of evidence. In the Corfu Channel case, the ICJ specifically demanded proof beyond reasonable doubt.

However, in the Norwegian Loans case the judge preferred to use the standard of preponderance of evidence and stated that “the degree of burden of proof……to be adduced ought not to be so stringent as to render the proof unduly exacting. This standard is applied where one party has an inherent difficulty in providing constructive evidence. The ICJ has also made a mention of the lower standards such as “sufficiency of evidence”. The ICJ has made a note of this standard in various cases such as Armed Activities on the Territory of the Congo Case (1999), the Oil Platforms case (1992) and in the Nicaragua case (1986).  As such, absolute certainty has never been required as a standard. Hence, the ICJ has looked keenly towards Article 53 of the statute of ICJ to discharge the burden of its evidentiary matters.

International Criminal Court, International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR)

It is noteworthy to observe that Article 61(7) of the ICC statute states that the Pre-Trial Chamber in specific shall, based on the hearing, determine whether there is sufficient evidence to establish substantial grounds to prove that each of the crimes charged with has been committed. However, the statute does not try to clarify the idea of ‘substantial grounds to believe’ under Article 61(7). The judges of the ICC have extensively relied on the jurisprudence of the European Court of Human Rights.

 It is held by the ICC that the prosecutor who will fill in the criteria of the evidentiary burden under Art 61(7) needs to offer tangible and concrete proof which portrays the reasoning behind those very allegations. The ICC in the past has also borrowed standards of evidentiary test such as prima facie standard from ad hoc tribunals like the ICTY and ICTR. Ad hoc tribunals (ICTY and ICTR) have used ‘proof beyond reasonable doubt’ as a standard of evidence in the prosecutor’s case.

In the Tadic Case the ICTY specifically applied the standard of proof beyond reasonable doubt to assess the overall guilt of a crime. The test was portrayed 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”. Hence, it is for the specific tribunal to assess whether the highest standard of proof is the most suitable one to conclude the guilt in criminal cases.

Inter-American Court of Human Rights (IACHR)

The IACHR is ambiguous on the use of its standard of proof since it gives primary importance to the procedural rules of evidence to assess the facts of a case directly. The court uses varying standards of proof to decide its cases. The IACHR implicitly rejects the proof beyond reasonable doubt and concludes that the reason for doing it so is that the objective of international human rights law is not to punish those who are guilty of crimes, but rather to protect the victims and to provide compensation for the damages sustained, emanating from the acts of the States responsible.

 However, in the case of Gangaram Pandey v. Suriname the court’s decision reflected a high standard of proof beyond reasonable doubt. Scholars believe that the reason for its application is due to its isolated nature of violation of human rights resulting in the court being unable to apply a form of probabilistic reasoning.

Judge Gracia-Ramirez in the case of  Kawas Fernández v. Honduras states “that judges adjudicate according to their inner conviction which is strictly a personal matter” and this opinion of Judge Ramirez is purely on the civil legal tradition. The IACHR has also applied standards like “proof in a convincing manner” in the case of   Velasquez-Rodriguez “in which evidence need not point to absolute certainty as such but must be convincing”

As such, the Inter-American Court does not have a clear reference to its standard of proof, and its approach in this regard is not the same when different evidences are kept before it.

The Way Ahead

The need for predictable legal rules forms a part of the institutional ethics of adjudicating bodies. Hence, to be transparent and to do justice, it is necessary for international tribunals to define their standards of proof. However, one cannot ignore the flexibility present in the civil law approach towards the standard of proof specifically because the issue of fact finding of evidence is a complex task. In any case the civil law judges can adopt a few policy prescriptions which are as follows: 

  1. If the tribunal gets caught in a difficult position while deciding a case, the fact-finding missions (FFM) becomes the only viable source of records of the events which occurred. This should necessitate the FFM to have a rigorous methodology in place.
  2. A lower degree of certainty is desirable to be adhered to in a scenario where no individuals are likely to face prosecution for extreme violations of human rights. Judges of the civil law tradition need to take into consideration both incidents, that certainly occurred and incidents which are likely to have occurred.
  3. Tribunals need to consider the amount of cooperation which are given by the parties who are under investigation. The more they are receptive, the more easily a clear and convincing standard of proof can be applied and in cases where the parties to the case are not receptive then the tribunals may have to rely on adverse inferences.

CONCLUSION

Civil law and common law standards of proof exhibit difference and when applied are likely to produce different results, at least in some cases. Hence, research scholars through their empirical research convey that standards of proof make a practical difference. In recent times, judgements which are carved through the civilian approach are being accused of superficiality for the lack of a concrete standard. Thus, legal certainty becomes a necessity to avoid allegations of impartiality.

Inamul Hassan is a Research Assistant at the Quill Foundation.

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