This Article examines a vexing evidentiary question with which the International Court of Justice has struggled in several cases, 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 Crime of Genocide case, the Court declined to do so under seemingly similar circumstances. By carefully examining the treatment of evidence exclusively accessible by one party in these and other international cases, this Article seeks, first, to illuminate the nuances in the Court's approach to circumstantial evidence and adverse inferences and, second, to recommend a more coherent approach for the future. Because International Court of Justice cases have significant impact on 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 evidentiaU standards has broad scholarly and practical utility.
Scharf, Michael P. and Day, Margaux
"The International Court of Justice's Treatment of Circumstantial Evidence and Adverse Inferences,"
Chicago Journal of International Law:
1, Article 6.
Available at: https://chicagounbound.uchicago.edu/cjil/vol13/iss1/6