By: Raghavi Viswanath, Junior Research Associate, PILPG-NL
The provisional measures hearing in the case between the Gambia and Myanmar at the International Court of Justice (‘ICJ’) concluded on December 12, 2019. The Gambia, both in its written application as well as oral arguments at the Court, extensively relied on reports prepared by fact-finding missions.
A majority of evidence was derived from the August 2018 and September 2019 of the Fact-Finding Mission set up by the UN Human Rights Council in 2017 (‘FFM’), to investigate the circumstances that culminated in the alleged human rights violations by the military in Myanmar. It was created with a view of “ensuring full accountability for perpetrators and justice for victims”. The FFM was later replaced with an Independent Investigative Mechanism for Myanmar (‘IIMM’). Compared to the FFM, the IIMM has a more explicit mandate to prepare files for criminal prosecution.
Myanmar, in its oral arguments, criticized the methodology of the fact-finding mission. Myanmar also called out the credibility of the report on the basis that the Special Rapporteur was “not an international author”. This is suggestive of deeper concerns about the credibility of evidence prepared by fact-finding missions. Although the UN Office of the High Commissioner of Human Rights (‘OHCHR’) has collated best practices and made recommendations for fact-finding missions, judicial literature on this point is still unsettled.
The jurisprudence of the ICJ reveals that the Court has been more deferential towards findings of adversarial bodies. By way of illustration, in the Armed Activities case, the ICJ gave special attention to the evidence collated by the Porter Commission, a judicial inquiry instituted by the government of Uganda. Similarly, in Bosnia-Herzegovina v. Serbia-Montenegro and Croatia v. Serbia, the Court accepted the International Criminal Tribunal for Yugoslavia’s findings of genocidal intent [Bosnia v. Serbia, para.238; Croatia v. Serbia, para.136]. In Armed Activities, the Court went so far as to note that such findings were admissible because they were obtained by “examination of persons directly involved, and who were subsequently cross-examined by judges” [para.61].
This is not to say that other types of third-party findings of fact or law are not admissible at all. The Court has, on multiple instances, also accepted evidence analyzed by the UN Secretary-General and special rapporteurs. Notably, the Court assigned probative value to the 1999 Fall of Srebrenica report by the UN Secretary-General [Bosnia v. Serbia, para.230]. A closer examination of the case-law reveals that the Court has attempted to articulate guiding principles to determine the probative value of third-party reports. It has explained that the value of evidence depends on the source of the evidence (is it partisan or not?), on the kind of information conveyed (is it incriminating?), and the process using which it was collected (was it obtained through careful cross-examination?) [Bosnia v. Serbia, para.227].
The Court’s reliance on third-party findings has come under scrutiny. Firstly, some commentators have called it a ‘delegation of fact-finding responsibilities.’ Secondly, on a more granular level, the Court’s guidance on the markers of credibility appear to be insufficient. For one, the case law does not discuss issues of duplicity, the difference between documentary and oral evidence, or delineate what sort of expertise is relevant for authors and investigators. Thirdly, in its assessment of independence, the Court usually assumes independence and neutrality when the mission is commissioned by the UN. However, this is arguably a problematic trend because it overlooks how Special Rapporteurs often have to maintain contacts with the media, and sometimes even derive data from the media [Cumaraswamy Advisory Opinion, para.53]. Therefore, their impartiality is not always defensible.
The question of credibility will come into question again in the impending International Criminal Court (‘ICC’) proceedings, concerning alleged crimes against humanity against the Rohingyas. Considering that the ICC is a criminal tribunal, it adheres to a higher threshold of standard of proof of authenticity, and methodology than even the ICJ. If the Court’s articulation of a higher evidentiary burden of the Prosecution in Gbagbo and Blé Goudé is any indication, it is possible that the jurisprudence on this issue is about to witness significant developments.