UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

Issues of Evidence in International Law

Submitted to:Mr. Ashish Verma Asst Prof.(COLS) Lecturer CoLS, UPES .

Submitted by:Kush Saggi & Anandita Trivedi 64,17 BA-LLB VTH SEM

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Acknowledgment
I would like to sincerely thank Mr. Ashish Verma for giving me the opportunity to work on an important area of the law of evidence with the blend of international law and for being the guiding light of my project. The project would not have been possible without his guidance. I would also like to thank the other faculty members of CoLS for helping me compile the various materials and providing me with the same. I owe gratitude to my parents and colleagues who have always been with me and been my inspiration. Last but not the least I would like to thank the omnipotent Almighty who has always showered his blessings and has given courage and strength.

Introduction

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Evidence in international adjudication embraces information submitted to an international court or tribunal by parties to a case or from other sources with the view of establishing or disproving alleged facts. The production, collection, and evaluation of evidence serve a particular purpose: they are meant to enable the adjudicative body in question to decide a legal dispute or to deliver an advisory legal opinion. The collection and assessment of evidence are essential elements of the judicial function of international courts or tribunals. As a general rule, international judges have a wide discretion in the assessment of evidence (principle of free assessment of evidence). In the Case concerning Military and Paramilitary Activities in and against Nicaragua1 the International Court of Justice (ICJ) stated that within the limits of its Statute and Rules, it has freedom in estimating the value of the various elements of evidence. It is imperative to note that evidentiary rules of international courts or tribunals adjudicating on inter-State claims mostly deal with formalities concerning the production and the taking of evidence2. An issue which arises here is that these rules give only limited indications concerning the burden of proof, the assessment of, or the weight to be given to particular forms of evidence. The principle of free assessment of evidence does not absolve international courts and tribunals from indicating how they reached their conclusions. However, international courts and tribunals are, in general, reluctant to deal in depth with questions of evidence. In particular, they do not explain

Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep 14,para 60. 2 International Court of Justice, Rules and Practice Directions; International Courts and Tribunals (ECJ, CFI, ECtHR, IACtHR, ICSID, ITLOS, WTO Panels and Appellate Body) Rules and Practice Directions

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which standard of proof they have used and how they reached conclusions on disputed facts3. Nevertheless, some generally accepted principles have crystallized through practice. However, the situation is different in respect of international criminal courts4. In International criminal proceedings even though new facts are only admissible to a limited extent, the appellate chamber can review the manner in which the trial chambers have dealt with evidentiary questions and, thus, contribute to the clarification and consolidation of rules of evidence. The nature of international proceeding are of civil nature rather than a criminal one. The differences existing among the various systems of international proceedings make it extremely difficult to deal with the collection and assessment of evidence under each of these systems separately, albeit some national jurisdictions treat the law of evidence as one single subject. The principles of equity and justice justify the collection of evidence by international courts and tribunals in disputes among States so as to enable the court or tribunal in question to deliver its decision impartially and on the basis of all factual information necessary. The ICJ emphasized this point in the Nicaragua Case: [T]he provisions of the Statute and the Rules of the 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 contention5. However, international courts or tribunals are primarily called upon to decide a case on the basis of issues of substance rather than on purely technical procedural grounds, as the Permanent
3

Case concerning Oil Platforms (Islamic Republic of Iran v United States of America) (Merits) [2003] ICJ Rep 161,para 30. 4 Courts like International Criminal Court [ICC]; International Criminal Tribunal for Rwanda [ICTR]; International Criminal Tribunal for the Former Yugoslavia [ICTY]; Mixed Criminal Tribunals [Sierra Leone, East Timor, Kosovo, Cambodia. 5 [1986] ICJ Rep 14, para 31.

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Court of International Justice (PCIJ) emphasized in its judgment concerning the Case of the Free Zones of Upper Savoy and the District of Gex6. It may be argued that on the basis of this principle, it is a matter of consequence that rules governing the taking and assessment of evidence are either articulated in the relevant rules of the international court or tribunal in question or in the judgment. Nevertheless, using the principle of fair trial as the general starting point for the rules on evidence in contentious cases between States may be neglecting the differences that exist between the different international procedures and the focus of the fair trial principle. The latter is meant, at least in criminal procedures, to protect the rights of the accused. The application of such a principle does not seem proper in procedures which proceed from the equality of parties. Therefore, as far as proceedings of contentious cases between States or involving international organizations are concerned, this contribution proceeds from the assumption that such proceedings are governed by the principle as formulated by the ICJ in the Nicaragua Case. This principle contains two interrelated aspects, namely, proper administration of justice and fair opportunity for each party to comment on the opponent's legal and factual contentions. Whereas the proper administration of justice refers to the judicial task of the court, ie, to reach a decision based on sound procedural principles, the second limb refers to the parties to the case. It implies the equality of the parties and the principle audiatur et altera pars. The statutes and rules of International courts and proceedings proceed from the basis that it is mainly the responsibility of the parties to provide the court with the relevant factual material. In this respect, the procedure can be characterized as (predominantly or principally) adversarial

Case of the Free Zones of Upper Savoy and the District of Gex (France v Switzerland) PCIJ Rep Series A/B No 46 (at 15556).

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(just as national civil procedure in most, including continental, countries), even though the procedure of international courts and tribunals also contains elements allowing a more active role for the court7. Accordingly, this characterization does not mean that the responsibility for the production of evidence rests solely on the parties to a dispute. This is most apparent in cases where one of the parties does not appear or fails to defend its case; here, the other party may request the court or tribunal to continue the proceedings and to make its decision. In such a case, the court or tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and in law8. Generally, the power of international courts and tribunals to call upon the parties to produce evidence or to supply any other factual explanations has been supplemented by their respective rules which authorize the ICJ or ITLOS to call upon the parties to produce evidence considered necessary9. The ICJ has stated in the context of the Nicaragua Case10, as to the facts of the case, in principle the court is not bound to confine its consideration to the material formally submitted to it by the parties. It is, however, doubtful whether one may conclude therefrom or by referring to the interest of the international community in the adherence to international obligations in general that the adversarial procedure has been replaced by an inquisitorial one which would have considerable implications for the allocation of responsibility between the parties and the court for gathering

7 8

see Arts 49, 50 ICJ Statute. Art. 53 (2) ICJ Statute; Art. 28 ITLOS Statute 9 see Art. 49 ICJ Statute; Art. 62 ICJ Rules; Art. 77 ITLOS Rules. 10 Para 30

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the necessary factual material and other questions, such as the burden of proof still remains a debatable issue of evidence and international law. Issues regarding Facts and Law:Evidence is meant to prove or disprove facts. Questions of law, in contrast to questions of fact, need not be proved by the parties. This reflects the established principle jura novit curia frequently referred to in international litigation11.This principle has several procedural implications. It has been observed in international proceedings that questions of law, whether relating to jurisdiction or to the merits, need not be raised by the parties. The international court or tribunal must examine them proprio motu. In the Case relating to the Territorial Jurisdiction of the International Commission of the River Oder (River Oder Case)12, the PCIJ dismissed the objection of the parties to the dispute that Poland invoked belatedly that it had not ratified the Barcelona Convention. The court pointed out that this was a matter of law to be examined by the court ex officio However, a somewhat different position is advanced by Kolb who distinguishes between general international law which international courts or tribunals must know in contrast to bilateral conventions and regional customary international law. Also even if the parties agreed on the applicable law, such agreement would not be binding upon the court unless it was enshrined in the constituent instrument of the judicial body, limiting its jurisdiction. It seems doubtful whether the parties can retroactively alter the very basis of the

11

(Case concerning the Payment in Gold of Brazilian Federal Loans Contracted in France PCIJ Rep Series A No 21; Fisheries Jurisdiction Case (Federal Republic of Germany v Iceland [1974] ICJ Rep 175 para 18). 12 Case relating to the Territorial Jurisdiction of the International Commission of the River Oder PCIJ Rep Series A No 23.

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jurisdictional power of an international court or tribunal once it has been established. This differs from an agreement on the facts. The parties can always agree on the facts either explicitly or by not objecting to facts as presented by one side. Customary international law:The facets of evidence with respect to customary law are another debatable and subjective area in International law. The jurisprudence of international courts and tribunals is not totally coherent as far as requesting evidence on the existence of customary international law is concerned. Although it has been generally stated that customary international law does not need to be proved13, international courts and tribunals have, on several occasions, stated that custom had to be proved by the party relying on it14. The jurisprudence may by summarized as follows: since customary international law consists of two elements, namely, State practice which has a factual connotation and opinio juris which has a legal one, a party may have to prove State conduct if that is disputed. This may be the case in particular when State practice is limited to a particular region and one of the parties is arguing on the basis of regional customary law. The separation of fact and law may not always be as clear-cut as theory may suggest. This is particularly problematic in the case of the nationality of individuals or ships. Whether, for example, an individual or a ship has a particular nationality is a fact. Whether an individual has been expatriated or a ship has been removed from a national register is, as far as national law is concerned, equally a fact. Whether such expatriation or removal conforms to international law is a matter of law on which the court or tribunal in question will have to decide.
13 14

Fisheries Jurisdiction Case [UK], Separate Opinion of Judge De Castro. Case concerning Rights of the Nationals of the United States of America in Morocco [France v United States] [1952] ICJ Rep 178, 200; The Case of the Lotus [France v Turkey] PCIJ Rep Series A No 10, 18.

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It is also submitted that same approach should be adopted when a party invokes general principles of law. The party in question has to bring the appropriate evidence without prejudice to the power of the international court or tribunal to draw different conclusions from the evidence produced or even to search for relevant evidence15. The separation of fact and law may not always be as clear-cut as theory may suggest. This is particularly problematic in the case of the nationality of individuals or ships. Whether, for example, an individual or a ship has a particular nationality is a fact. Whether an individual has been expatriated or a ship has been removed from a national register is, as far as national law is concerned, equally a fact. Whether such expatriation or removal conforms to international law is a matter of law on which the court or tribunal in question will have to decide. Generally speaking, the separation of facts and law is part of the judicial exercise of international courts or tribunals. The same approach as for customary international law should be taken if one of the parties invokes general principles of law. The party in question has to bring the appropriate evidence without prejudice to the power of the international court or tribunal to draw different conclusions from the evidence produced or even to search for relevant evidence.

15

. Aguilar Mawdsley Evidence before the International Court of Justice in RSJ Macdonald (ed) Essays in Honour of Wang Tieya (Nijhoff Dordrecht 1993) 53350.

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Evidence on National Law

The principle jura novit curia applies to public international law only, not to national law. According to a dictum of the PCIJ, municipal laws are merely facts16. Judges of international courts or tribunals are not obliged to be cognizant of national law. Therefore, the parties are responsible for proving their rules and the court may request further evidence in this respect 17. The same is true for all other law, for example the regulations and directives issued by the European Union (in contrast to the agreements constituting the European Union) which do not qualify as public international law. The separation of international public law and national law is, however, not as clear-cut as it may seem. Both have become increasingly interlinked, in particular, when the adjudicating body is called upon to decide whether national law has implemented international obligations. In doing so, it will be necessary to interpret such national law. For that reason, the warning of the PCIJ expressed in the Case concerning the Payment of Various Serbian Loans Issued in France, namely, that it is not for the international court in question to undertake its own construction of municipal law, cannot be upheld in these absolute terms18. In this context, ad hoc judges may play an important role.

Issues regarding Admissibility and Appreciation of Evidence:-

16

Case concerning Certain German Interests in the Polish Upper Silesia [Germany v Poland] [Merits] PCIJ Rep Series A No 7, 19. 17 see Brazilian Loans Case para. 124. 18 PCIJ Rep Series A No 20, 4647.

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Inadmissible Evidence Apart from the rules on the form and the timing for the submission of evidence, the statutes and rules of the ICJ and of the ITLOS give no guidance concerning the exclusion of evidence. It has been stated that there is no rule of law that can be invoked as binding the ICJ or ITLOS to exclude particular evidence. This is different for the rules governing the procedure before the ICSID. According to Rule 34 ICSID Rules of Procedure for Arbitration Proceedings, it is for the tribunals to judge the admissibility of any evidence and of its probative value. According to Art. 16 (3) UNAT Rules, the tribunal may exclude evidence which it considers irrelevant, frivolous, or lacking probative value. International criminal courts have a specific system for the admission of evidence. As already mentioned, the rules of the ICJ and of the ITLOS provide that evidence may be inadmissible for having been filed too late or not in the form requested if the opponent raises these points and objects to the submission of the evidence. Although the rules of the Iran-US Claims Tribunal have no similar provision, this tribunal has sometimes excluded evidence which was filed late without adequate justification. The question of whether international courts or tribunals may use evidence which has been obtained through a violation of international law is not addressed in the rules of the ICJ or of the ITLOS. According to Rule 95 of the Rules of Procedure and Evidence of the ICTY (ICTY Rules), 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. This will at least cover cases where evidence was obtained in violation of

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substantive international law. This issue has surfaced in inter-State litigation once, namely, in The Corfu Channel Case19. The United Kingdom (UK) justified its military action by referring to the necessity of securing the possession of evidence, an argument which was rejected by the ICJ (The Corfu Channel Case [Merits] 3435). The ICJ did not explicitly make a pronouncement as to whether the evidence obtained through this military intervention was admissible or not. However, it appeared to rely on the evidence so acquired, and thus at least implicitly treated it as admissible. Accordingly, some commentators argue that illegally obtained evidence should be admissible; the illegality should, however, be taken into account in weighing the evidence. As most national legal systems exclude the use of evidence obtained illegally, it may, however, be conceivable to argue that using such evidence would be contrary to a general principle of law. In any case, evidence obtained by breach of a Jus cogens rule is to be considered inadmissible. Issues regarding Negative Facts:The absence of facts (negative facts) raises problems concerning the burden of proof and also the standard of proof. International jurisprudence of international adjudicative bodies seems to indicate that the rule of the Roman law negativa non sunt probanda does not apply. The ICJ has, however, acknowledged the difficulties which arise from the necessity to prove the absence of a fact. In the Nicaragua Case, it stated that [t]he evidence or material offered by Nicaragua in connection with the allegation of arms supply has to be assessed bearing in mind the fact that, in responding to the allegation, Nicaragua has to prove a negative.

19

The Corfu Channel Case (United Kingdom v Albania) (Merits)[1949] ICJ Rep 4.

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This indicates that the threshold of the standard of proof may be lowered in such. The same approach was adopted by the Iran-US Claims Tribunal in the Sola Tiles Case where it was held that due to the difficulties of the plaintiff in obtaining evidence of documents located in Iran, the standard of proof could be somewhat lowered.

Issues regarding Presumptions:The provisions on evidence of the ICJ and of the ITLOS do not refer to the use of presumptions as evidence. Nevertheless, international adjudicative bodies make use of reasoning based on presumption. It is common to distinguish between presumptions of fact (judicial presumptions or inferences) and presumptions prescribed by law (legal presumptions). Presumptions of fact are established tools of reasoning. Based upon general experience, judges may draw conclusions from certain established facts. For example, the Iran-US Claims Tribunal has, when considering the validity of a contract, made the inference that the parties treated the contract as valid from the proven fact that the contractor had previously been paid by the employer under the contract20. The ICJ in The Corfu Channel Case stated that if the proof is drawn from inferences of fact, those facts must not leave room for reasonable doubt. Apart from that, whether an inference can be made is for the adjudicative body in question to decide. Occasionally, it has been denied that legal presumptions have a place in international adjudication Examples to that extent are rare. Legal presumptions may have their basis either in international treaties or other texts.

20

Blount Brothers Corporation v Ministry of Housing and Urban Development and Gostaresh Maskan Company 3 Iran-US CTR 225, 231.

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Issues regarding Burden of Proof Although the procedure concerning inter-State disputes is based on the principle that the party which alleges a fact bears the burden of proof (actori incumbit probatio), this principle has been modified for several reasons. The distinction between the applicant and the respondent is not always clear in international adjudication. This is particularly true when the case has been brought by special agreement. Apart from that, international courts and tribunals have the power to request any party to produce evidence deemed appropriate or may obtain additional information by means of inquiry of their own. The main problem in this context is whether the adjudicative body is under an obligation to do so? Considering that international litigation amongst States is, in general, adversarial in nature, there is no obligation on the side of the international court or tribunal in question to engage actively in the production of evidence if both parties are participating in the proceedings. The situation is different if one party fails to participate; in such a situation, the international court or tribunal cannot solely rely on the information of the participating party. In this case, the principle of the burden of proof is of less relevance, in particular, in respect of the non-appearing party. As opposed to contentious litigation, there are no parties in advisory proceedings. Accordingly, there can be no burden of proof21. Probative Value of Particular Evidence and the Process of Appreciation of Evidence:-

21

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [Advisory Opinion].

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Another important issue is that there is no hierarchy among the different kinds of evidence. Documentary evidence or expert testimony does not have a higher probative value than witness testimony or vice versa. It is for the adjudicative body to decide in each case on the probative value of each piece of evidence presented and considered of relevance. In the Armed Activities on the Territory of the Congo (Uganda) case22, the ICJ gave some indication on the method of evaluating evidence (paras 5961). The court first assessed the evidence submitted on the basis of its relevance and its probative value. When it comes to the weighing of evidence, the court gives preference to evidence obtained by examination of persons directly involved and who were subsequently cross-examined as well as to reports of commissions of inquiry whose credibility was not challenged by the parties. Regarding WTO Dispute Settlement System:Although a dispute before the WTO dispute settlement system is a dispute amongst States or a State and an international organization (if the European Communities is a party), its procedure is gradually moving from the adversarial model to one displaying inquisitorial elements. This development is attributed to the second sentence of Art. 11 Dispute Settlement Understanding (DSU), which obliges the panels to undertake an objective assessment of the facts and their compatibility with WTO law. The jurisprudence of the panels and the appellate bodies neither strive for a completely independent collection and assessment of the facts nor do they merely rely on the production of facts by the parties23. A panel has far-reaching competences for collecting and assessing relevant facts. It may, ex officio, request information or expert advice from individuals or agencies (see Art. 13 DSU).
22 23

Democratic Republic of the Congo v Uganda, ICJ, 19 December 2005. see WTO EC Measures Concerning Meat and Meat Products [Hormones]Report of the Appellate Body [16 January 1998] Report of the Appellate Body (14 December 1999) WT/DS121/AB/R paras 11622)

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This tendency should not be overestimated. It is mitigated in practice by two factors. The members of a panel are appointed by the parties on the basis of a proposal by the Secretariat. The parties may reject these proposals only for compelling reasons. In practice, however, the parties exercise a significant influence concerning the composition of the panels. The panellists are not necessarily experts in WTO law. Further, WTO law provides the parties to the WTO system with considerable discretionary power concerning the formulation of national policies (such as on the protection of the environment or health) which may have an impact on the implementation of obligations entered into under the WTO system. Apart from that, the WTO dispute settlement system seems to move gradually from one designed to protect the adherence to reciprocal obligations to one safeguarding objective standards. This has unavoidable consequences for the collection and assessment of evidence. Evidence obtained by methods which cast substantial doubt on its reliability:Evidence is to be excluded 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. This comprises all evidence obtained in violation of international human rights standards or principles recognized as being essential for the protection of the accused. For example, evidence obtained through irregular investigation procedures should be dismissed24. A mere breach of the procedural rules of the tribunal in question is not sufficient for the exclusion of evidence if the former are not meant to protect substantial rights of the accused. Although the admissibility of hearsay evidence has been contested, international criminal tribunals have, on several occasions, admitted hearsay evidence under the same conditions as

24

Prosecutor v Delali [Decision] ICTY-96-21-T [25 September 1997] para. 45

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they admitted direct and indirect evidence. The jurisprudence is not coherent although where no cross-examination of the testimony in question has taken place, such hearsay evidence was either given a lesser weight in the assessment of evidence (ex posteriori test) or it was not admitted for lack of probative value (a priori test).

Evidence obtained through torture: A brief analysis Evidence obtained by torture, which concern not only the procedural right to a fair trial, but also play a part in protection from the abhorrence of torture itself. All these cases come within the exclusionary rule of Article 15 of the UN Convention against Torture. It is also argued that this exclusionary rule is part of customary international law and that the very concept of jus cogens obliges all states to distance themselves from any violation of its substantive content and to therefore refuse to accept any evidence obtained by torture. The article therefore exposes the exclusionary rule as coextensive with the prohibition of torture and as a function of this prohibition. The legal issues relating to the admissibility in evidence of statements made under torture25. These issues arise mainly from the right to a fair trial under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms8 and Article 14 of the International Covenant on Civil and Political Rights and from the specific exclusionary rule of Article 15 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. There is never such state of emergency in situations where the authorities use torture in order to

25

It will be assumed throughout that the evidence concerned is to be submitted to a court of law A and Others (HL), paras 4649 (per Lord Bingham); paras 6774 (per Lord Nicholls); paras 9294 (per Lord Hoffmann); para. 162 (per Lord Brown).

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obtain evidence for subsequent court proceedings. Besides, even if the authorities originally used torture in an emergency and therefore lawfully, any evidence thus gained need not be admissible in court later. General Issues under Article 15 UNCAT The case of A and Others has raised a few issues of general application relating to Article 15 of the Convention against Torture (UNCAT), which will be examined at the outset, before the application of the article to different scenarios is discussed. Article 15 UNCAT provides as follows: Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. a. Content of the Obligation The first general question is whether Article 15 UNCAT directly forbids the production of improperly obtained evidence in any case or whether it is limited to a general obligation of the state to adjust its legal order to the aim stated in the article. This question is closely related, in states where international treaties may form part of domestic law26 to the question of whether the UNCAT is self-executing or directly applicable. To ensure need not mean that the state must only take measures in legislation or similar general action, i.e. at one remove from the actual decisions on the admissibility of evidence. This impression could arise if Article 15

26

In states such as the US (see Art. VI, cl. 2 of the US Constitution) and Germany (see Art. 59(2) of the federal constitution), but not in the UK: see Maclaine Watson v. Department of Trade and Industry, 81 Intl LR (1990) 671 (HL), reported in the AC as J H Rayner (Mincing Lane) Ltd v. Department of Trade and Industry [1990] 2 AC 418.

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UNCAT provided that each state party shall ensure that evidence is not ruled admissible. As one observer noted, the Committee against Torture (CAT) manage[d] to cloud the issue of whether article 15 lends itself to having a direct effect27, a number of members indicating that it did and others preferring the opposite view. Nevertheless, the fact that the CAT has considered individual complaints under Article 15 UNCAT strongly suggests that the article can be violated in individual cases. State Practice:State practice on this point is also far from uniform: when ratifying the Convention, Austria deposited a declaration stating that Austria regards article 15 of the Convention as the legal basis for the inadmissibility provided therein of the use of statements which are established to have been made as a result of torture28. However, Germany appeared to hold the opposite view and the United States expressly declared that Articles 1 through 16 UNCAT were not selfexecuting, although this sweeping statement may not mean all that it appears to do, given its legislative background29 and the situation under US constitutional law30. State practice therefore does not give much assistance either way. The conclusion must therefore remain as determined by the wording of Article 15 UNCAT, i.e. that the provision is violated in every instance of a successful invocation of evidence coming within its scope of application. Indeed, as the German Federal Constitutional Court held in 1994, there are no indications that [Article 15 UNCAT]

27 28

C. Ingelse, The UN Committee against Torture. An Assessment (2001), at 379. Multilateral Treaties deposited with the Secretary-General, Status as at 31 Dec. 2002, UN Doc. ST/LEG/ SER.E/21, at 261. 29 The declaration was intended only to underline that [a]ny prosecution (or civil action) in the United States for torture will necessarily be pursuant to . . . Federal or state law (Letter from Assistant Secretary Mullins, Department of State, quoted in Cohen, Implementing the U.N. Torture Convention in U.S. Extradition Cases, 26 Denver J Intl L and Policy (1998) 517, at 519, note 10). 30 US courts accept the exclusion of the self-executing effect of a treaty by the federal treaty-making organs even if the treaty itself would suggest otherwise: see Flores v. Southern Peru Copper Corporation, 343 F 3d 140, 163165, note 35 (2nd Cir, 2003) (on the ICCPR).

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was only intended to give rise to an obligation of the contracting states to enact statutory provisions on the inadmissibility of evidence and that no directly applicable law was therefore created.

The Burden of Proof The next question of general application is who must prove an incident of torture before Article 15 UNCAT demands the exclusion of any resulting evidence as inadmissible. Under the terms of Article 15 UNCAT, it must be established that the relevant statements were made as a result of torture. This led the majority of the Court of Appeal in A and Others to state that the onus is on the person against whom such evidence is used. The House of Lords, however, was

unanimous in holding that it would be unfair to put the burden of proof on this person, because he or she has very few means of investigation. The Different Situations of the Use of Evidence Obtained by Torture Evidence obtained by torture may be used in a variety of situations: such evidence may be used against the tortured person or in court proceedings against a third person and, furthermore, the evidence may have been obtained by the state in the courts of which it is presented, or by another state. The different scenarios arising from these distinctions will be examined in turn. Consequences from the jus cogens Status of the Prohibition of Torture? The nature of the prohibition of torture as jus cogens may be said to imply that, in the case of a violation of the prohibition by one state, other states must distance themselves from the breach of jus cogens, in particular by refusing to give any effect or recognition to the foreign conduct in

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question. Certainly, the VCLT, which contains the most famous recognition of jus cogens, envisages this kind of rule only as invalidating any conflicting prior or subsequent treaty31 and does not extend the concept any further, but this need not be taken as ruling out any further effects. The VCLT only deals with treaty law, so its drafters could hardly have been expected to address any other implications of their recognition of jus cogens, and it appears plausible that a rule which is powerful enough to limit the treaty-making power of states should also have a broader effect32. The leading pronouncement on these further rules following from the jus cogens rank of the prohibition of torture is without doubt the judgment of the ICTY in Furundija. The Tribunal there regarded as effects of international jus cogens that national acts condoning torture would be unlawful and that there was universal criminal jurisdiction to try suspected torturers. Thus, it may be argued that even condoning torture is a violation of international law and that no state may therefore use evidence obtained by torture because it would otherwise seek gain from the violation of jus cogens and thus lend its implicit support to this violation of the core interests of the international community33. This also sits easily with the universal jurisdiction over the crime of torture (whether or not it exists as a direct consequence of jus cogens),because it is inconceivable that a state could at the

31 32

Arts 53, 64, 71 VCLT. The Prohibition of Torture as a Norm of International Jus Cogens and its Implications for National and Customary Law, 15 EJIL (2004) 97, at 99. 33 This may not be the case for the use of tainted evidence by the executive, as there is no state practice to suggest such consequences (see Tams, supra note 111, at 344, for the proposition that the consequences of Art. 41 of the ILC Draft Articles do not arise automatically, given the uncertainties in state practice).

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same time regard conduct as a serious crime and knowingly make use of it as a source of evidence. The latter conduct would fly in the face of the desire of international law to comprehensively outlaw any acts of torture, including at the level of criminal law34.The nature of the prohibition of torture as jus cogens therefore means that also the use of evidence obtained by torture is unlawful, wherever the act of torture may have taken place. Conclusions:The rules on the production and assessment of evidence lack coherency if taken as a whole. However, there is conformity if it is accepted that the procedure for dealing with human rights issues and, in particular, international criminal law procedures, follow a different pattern from that of litigation between States. Common to all is the obligation to co-operate with the adjudicative body. Major differences exist concerning the standard of proof. Whereas litigation amongst States is, in general, decided on the basis of preponderance of evidence, international criminal law procedure applies the standard beyond reasonable doubt. This higher standard of proof is coupled with increased investigative powers of the adjudicative body. The differences in respect of the standard of proof, though, have been blurred. Concerning particular issues in inter-State litigation, a higher standard of proof has been used or at least advocated. Although the jurisprudential function of international courts and tribunals is guided by the principle of the free assessment of evidence, judgments would gain in transparency and acceptability if the adjudicative bodies in question would spell out in greater detail which

34

A similar contradiction was observed in Jones v. Ministry of the Interior of the Kingdom of Saudi-Arabia [2004] EWCA Civ 1394, [2005] 2 WLR 808, at para. 126 (CA, per Lord Phillips MR).

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standard of proof was used and how certain conclusions concerning factually disputed issues had been reached.

Further references: JC Witenberg Onus Probandi devant les Juridictions Internationales (1951) 55 RGDIP 32142. L Ferrari Bravo La Prova nel Processo Internazionale (Jovene Napoli 1958). GM White The Use of Experts by International Tribunals(University Press Syracuse 1965). Y Chang Legal Presumptions and Admissibility of Evidence in International Adjudication (1966) 3 Annals of the Chinese Society of International Law 117. M Kazazi Burden of Proof and Related Issues: A Study on Evidence before International Tribunals (Kluwer The Hague 1966). DV Sandifer Evidence before International Tribunals (Revised ed University Press of Virginia Charlottesville 1975). HWA Thirlway Dilemma or Chimera? Admissibility of Illegally Obtained Evidence in International Adjudication (1984) 78 AJIL 62241. K Highet Evidence, the Court, and the Nicaragua Case (1987) 81 AJIL 156. J Kokott Beweislastverteilung und Prognoseentscheidungen bei der Inanspruchnahme von Grund- und Menschenrechten(Springer Heidelberg 1992). M Lachs Evidence in the Procedure of the International Court of Justice: Role of the Court in EG Bello and BA Ajibola (eds)Essays in Honour of Judge Taslim Olawale Elias (Nijhoff Dordrecht 1992) vol 1, 26576. A Aguilar Mawdsley Evidence before the International Court of Justice in RSJ Macdonald (ed) Essays in Honour of Wang Tieya (Nijhoff Dordrecht 1993) 53350. D Shelton The Participation of Nongovernmental Organizations in International Proceedings (1994) 88 AJIL 61142. C Tomuschat International Law: Ensuring the Survival of Mankind on the Eve of a New Century General Course on Public International Law (1999) 281 RdC 15759. JK Cogan The Problem of Obtaining Evidence for International Criminal Courts (2000) 22 HumRtsQ 40427. P Sands International Law, the Practitioner and Non-State Actors in C Wickremasinghe (ed) The

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International Lawyer as Practitioner (British Institute of International and Comparative Law London 2000) 10324. H Ascensio L'Amicus Curiae devant les Juridictions Internationales (2001) 105 RGDIP 897930. J Pauwelyn The Use of Experts in WTO Dispute Settlement (2002) 51 ICLQ 32564. AM La Rosa Juridictions Pnales Internationales: La Procdure et la Preuve (Presse Univrsitaire de France Paris 2003). M Oesch Standards of Review in WTO Dispute Settlement Resolution (2003) 6 Journal of International Economic Law 63559. M Wierda International Criminal Evidence: New Directions, (2003) 2 LPICT 40109. CF Amerasinghe Presumptions and Inferences in Evidence in International Litigation (2004) 3 LPICT 395410. CF Amerasinghe Evidence in International Litigation (Nijhoff Leiden 2005). P Murphy Murphy on Evidence (9th ed OUP Oxford 2005). G Niyungeko La Preuve devant les Juridictions Internationales(Bruylant Bruxelles 2005). TM Franck and P Prows The Role of Presumptions in International Tribunals (2005) 4 LPICT 197245. M Hilf and S Oeter WTO Recht (Nomos Verl Ges Baden-Baden 2005). S Rosenne The Law and Practice of the International Court of Justice, 19202005 (Nijhoff Leiden 2006). R Kolb General Principles of Procedural Law in A Zimmermann, C Tomuschat and K Oellers-Frahm (eds) The Statute of the International Court of Justice (OUP Oxford 2006) 793835.

British Institute of International and Comparative Law Evidence in the International Court of Justice First Draft (London 14 September 2007).

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