Evidentiary Issues in the ICJ's Genocide Judgment

Despite the commitment by the International Court of Justice(ICJ or the Court) in clarifying underlying methods and guidelinesof its approach to fact-finding and evidence, it can be doubtedwhether the judgment delivered in the Bosnia and Herzegovinav. Serbia case genuinely marked a decisive step towards a moretransparent and reliable methodology for evidentiary matters.Behind the formula of ‘fully conclusive evidence’,when dealing with Articles II and III of the Genocide Conventionthe Court adopted for all practical purposes a typical criminallaw ‘beyond any reasonable doubt’ standard of proof.By this choice the Court upheld in substance the argument putforward by Serbia that even if the questions of state responsibilityfor acts of genocide are not excluded by the scope of the Convention,they must nevertheless be judged by the same parameters of individualcriminal responsibility. In reaching its conclusions the Courtrelied heavily on the jurisprudence of the ICTY, both as regardsthe ascertainment of facts and their legal qualification. Itremains to be seen whether in future cases the Court will beable to adopt a similar criminal court posture, and whetherit will be similarly prepared to rely on the findings of otherinternational tribunals such as the International Criminal Court,which is not established by the Security Council.