1. Introduction
This article critically examines recent developments relating to the use of third-party fact-finding in proceedings at the International Court of Justice (ICJ), with a focus on reports by ad hoc fact-finding bodies and international commissions of inquiry (together, inquiry bodies). A proliferation of inquiry bodies – which in itself can result in ‘duelling inquiries’ that offer contradictory assessmentsFootnote 1 – creates more opportunities for litigants to ask international courts and tribunals to rely on inquiry body reports. This demands renewed attention to how individual courts and tribunals respond to such materials.
Inquiry bodies may serve as prerequisites or catalysts for inter-state litigation or international criminal justice responses. Indeed, an inquiry body’s recommendations may identify recourse to international courts or tribunals among possible responses to the underlying dispute or conflict – a practice that can be linked to the rise of ‘strategic’ or ‘public interest’ litigation before international courts and tribunals.Footnote 2 Moreover, an inquiry body’s conclusions (for example, that ‘the factors allowing the inference of genocidal intent are present’)Footnote 3 may prove essential to framing a conflict in ways that facilitate or legitimize specific litigation options, including by identifying to potential applicant states the claims that could reasonably be pursued in international proceedings. This is especially relevant in an age of multi-forum litigation and ‘disaggregated disputes’, where multiple judicial and quasi-judicial bodies face different or overlapping aspects of the same overarching conflict.Footnote 4 Multi-forum litigation not only gives new life to concerns about legal fragmentation,Footnote 5 but also the possibility of ‘fragmentation in truth-telling’: scenarios in which different entities that purport to speak with independence and authority endorse competing factual narratives.Footnote 6 For these reasons, the role of third-party fact-finding in international litigation is relevant not only to evaluating judicial decisions in specific cases but also to ongoing debates about the benefits and downsides of multi-forum litigation.
This article does not compare how different international courts and tribunals engage with third-party fact-finding reports relating to the same underlying conflict, but instead focuses on ICJ practice, which may influence how other courts and tribunals (for example, regional human rights courts, international arbitral bodies, or domestic courts) approach such materials. The analysis closely examines the ICJ’s approach to third-party fact-finding reports in recent requests for the indication of provisional measures, where such reports have played a prominent role. This practice raises important questions about whether the ICJ engages with inquiry body reports differently depending on the phase of litigation (provisional measures versus merits). Another consideration (beyond the scope of this piece) is whether the Court treats third-party fact-finding differently in the context of advisory proceedings (or whether it should).Footnote 7
Section 2 begins by reviewing the ICJ’s traditional approach to third-party facts, including an apparent distinction made by the Court between evidence generated through an adversarial ‘court-like process’ and findings of fact based on investigation and fieldwork. Section 3 turns to how the ICJ has dealt with third-party facts in recent cases, including whether the Court’s approach at the provisional measures phase differs from the merits phase. The sheer frequency of provisional measures requests in recent ICJ cases, combined with the expectations that provisional measures orders may create among litigants and the broader public, means that how the Court deals with third-party findings of fact at this preliminary stage merits closer scrutiny. After canvassing a selection of recent provisional measures orders, the analysis treats the 2024 judgment on the merits in Ukraine v. Russia as a case study.Footnote 8 Section 4 offers some observations about how the Court might engage more closely with the methods and methodologies of third-party fact-finders, especially with a view to enhancing its own persuasive authority.Footnote 9 Section 5 briefly concludes with what the Court’s current approach might mean for future practice at the ICJ. Ultimately, the quest for coherence in how the ICJ approaches third-party evidence remains a work in progress.
2. The International Court of Justice and third-party fact-finding
Parties before the ICJ may direct the Court to findings of fact made by other entities, including inquiry bodies and UN special rapporteurs, as well as other courts and tribunals.Footnote 10 Third-party evidence submitted to the ICJ also includes reports by non-governmental organizations (NGOs), national human rights bodies and the media. In its 2007 judgment in Bosnia v. Serbia, the Court reviewed the key factors that bear on the value of such materials:
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1. the sources of the item of evidence (for instance, partisan or neutral);
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2. the process by which it has been generated (for instance, an anonymous press report or the product of a careful court or court-like process); and
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3. the quality or character of the item (such as statements against interest and agreed or uncontested facts).Footnote 11
These factors suggest that the ICJ views evidence, including formal reports that contain findings of fact, along a continuum of probative value. This affords the Court considerable discretion in whether or how to credit any individual piece of evidence or any single piece of information contained within a report. It also underlines a distinction in the Court’s approach between findings of fact that are obtained through an adversarial, court-like process and those generated from mechanisms that rely on interviews, meetings, open-source data, and on-the-spot investigations.Footnote 12 The Court has in principle expressed a greater willingness to credit the former over the latter. The Court’s practice, however, suggests that the divide between these two categories is blurrier than at first appears. The Armed Activities and Bosnia v. Serbia cases, in which the Court engaged with both categories of third-party evidence, point to a more malleable approach (although the idea that these categories are fundamentally different may provide the Court with a convenient means to credit some findings of fact over others in specific cases).Footnote 13
2.1 Reliance on factual findings obtained through a court-like process
In Armed Activities, the evidentiary record included the findings of the Porter Commission, a judicial inquiry established by Uganda (and chaired by a retired British judge) to investigate allegations of wrongful conduct by the Ugandan military during its conflict in the 1990s with the Democratic Republic of the Congo. The Porter Commission report was part of the evidentiary record submitted by the parties, alongside various UN reports. The Court explained that it would give ‘special attention’ to ‘evidence obtained by examination of persons directly involved, and who were subsequently cross-examined by judges skilled in examination and experienced in assessing large amounts of factual information, some of it of a technical nature’.Footnote 14 This description closely fitted the Porter Commission, and the Court ultimately gave substantial weight to several of its findings, including those regarding alleged smuggling, looting, and the illegal exploitation of resources by Ugandan military personnel.Footnote 15 This suggests that the Court adopted a general rule for the treatment of third-party evidence in Armed Activities based largely on characteristics that happened to describe the Porter Commission, thereby establishing a potentially unrealistic benchmark.
In Bosnia v. Serbia, the Court reiterated the presumptive value of factual findings generated through an adversarial judicial process – in that case, the findings contained in judgments by the International Criminal Tribunal for the former Yugoslavia (ICTY).Footnote 16 The Court took the position that ‘it should in principle accept as highly persuasive relevant findings of fact made by the Tribunal at trial, unless of course they have been upset on appeal’.Footnote 17 Going further, the Court indicated that findings relating to ‘the existence of the required [criminal] intent’ were ‘also entitled to due weight’.Footnote 18 This paved the way for the Court’s determination in Bosnia v. Serbia that the massacre at Srebrenica in July 1995 constituted genocide; this was the predicate to the Court’s conclusion that Serbia, while not directly responsible for the genocide at Srebrenica, had breached its obligation to prevent genocide under Article I of the Genocide Convention.Footnote 19 Nearly a decade later, the Court took the same deferential approach to ICTY findings in Croatia v. Serbia, although it did not find any violations of the Genocide Convention in that case.Footnote 20
In sum, the Court has expressed a high degree of comfort with affording considerable weight to facts established though a judicial, court-like process in which evidence has been tested by cross-examination. This can be explained partly by reference to notions of judicial efficiency, as it might be deemed ‘unnecessarily duplicative’ for the ICJ to determine for itself those facts already ‘authoritatively established’ by another international court or tribunal.Footnote 21 However, commentators have questioned the wisdom of such deference.Footnote 22 Moreover, relatively few cases at the ICJ have presented such opportunities, and there has yet to be an ICJ judgment on the merits in which findings of fact by the International Criminal Court (ICC) have been deemed relevant.Footnote 23 This may change in the future, as the ICC Prosecutor is currently investigating three situations (State of Palestine, Bangladesh/Myanmar, Ukraine) that overlap with pending ICJ cases.Footnote 24
2.2 Reliance on factual findings not obtained through a court-like process
In principle, the ICJ takes a less deferential approach to third-party fact-finding reports that are not the product of an adversarial, court-like process.Footnote 25 In practice, however, the Court has shown a similar openness to relying on these types of materials, especially when generated by other UN bodies. Armed Activities and Bosnia v. Serbia are again instructive.
The record in Armed Activities included reports by the UN Secretary General, the UN Mission in the DRC (MONUC), the Special Rapporteur of the Commission on Human Rights, and the UN Expert Panels mandated to monitor UN Security Council sanctions. Recalling its approach to evidence in the Nicaragua case,Footnote 26 the Court explained in Armed Activities that it would ‘treat with caution evidentiary materials specially prepared for this case and also materials emanating from a single source’ but would give weight to evidence that was unchallenged ‘by impartial persons for the correctness of what it contains’.Footnote 27 It further stated that it would consider evidence contained in UN documents ‘to the extent that they are of probative value and are corroborated, if necessary, by other credible sources’.Footnote 28 This indicated that the Court would not blindly accept the contents of a report simply because it was generated under UN auspices but left unclear when further corroboration was required or by what means it could be achieved.
Furthermore, the Court’s application of these principles in Armed Activities left something to be desired. First, the Court found that a ‘coincidence of reports from credible sources’ convincingly established that Ugandan forces had committed ‘massive human rights violations and grave breaches of international humanitarian law’ in the DRC, including a failure to adequately protect civilians during hostilities, and that Ugandan forces also incited ethnic conflicts.Footnote 29 In making these broad findings, the Court sometimes noted that the UN reports it relied upon were corroborated by other sources (such as NGO reports), but it did not explain whether it had considered systematically how the UN reports had been compiled, so as to assess the credibility of their findings.Footnote 30 Nor was it clear whether UN materials and NGO reports were, in essence, based on the same underlying sources and therefore not necessarily corroborative of each other.
Another set of claims alleged that Ugandan forces engaged in the illegal exploitation of natural resources in the DRC. Here, the Court determined that the materials before it – including the Porter Commission report and UN Expert Panel reports – furnished ‘sufficient and convincing evidence’ to decide the question and provided ‘ample credible and persuasive evidence’ of looting and exploitation that engaged the responsibility of Uganda, even if that evidence did not establish a government policy.Footnote 31 The judgment left unclear whether the Court was crediting information in the UN expert panel reports in its own right – despite recognized problems with some findings – or was only using such reports to corroborate the Porter Commission report.Footnote 32 The cumulative weight of the evidence may have reasonably supported the Court’s overall assessment, even if reports contained inaccuracies. Nonetheless, one commentator castigated the Court for what she described as the ‘total delegation’ of its fact-finding responsibility.Footnote 33
In Bosnia v. Serbia, the ICJ made use of UN reports alongside the above-mentioned material from the ICTY. This included contemporaneous reports that the UN Commission of Experts established pursuant to Security Council Resolution 780 (1992) produced during the events in question.Footnote 34 However, the Court relied more extensively on The Fall of Srebrenica, a 1999 report produced retrospectively by the UN Secretary-General at the behest of the General Assembly.Footnote 35 The Court emphasized that the ‘care taken in preparing the report, its comprehensive sources and the independence of those responsible for its preparation’ lent ‘considerable authority’ to the document, which gave ‘substantial assistance’ to the Court.Footnote 36 The Court also relied on other UN reports, including the Commission of Experts reports, to establish when specific towns or villages came under attack, the types of weaponry used, fatality estimates, and prisoner conditions.Footnote 37 The Court took a similar approach in Croatia v. Serbia where it identified a specific UN Special Rapporteur report as deserving ‘evidential weight’ because of the ‘independent status of its author’ and because it was ‘prepared at the request of organs of the United Nations, for purposes of the exercise of their functions’.Footnote 38 That report provided the basis for the Court’s determination that Croatian armed forces had committed acts of killing constituting the actus reus of genocide against Serb civilians.Footnote 39
2.3 Summary of the ICJ’s standard approach
In sum, the ICJ has indicated a presumptive willingness to credit findings of fact generated by a formal, court-like process that includes the cross-examination of witnesses and allows for evidence to be tested in an adversarial setting. Most reports generated by UN fact-finding bodies or UN special rapporteurs do not meet that standard. Nonetheless, the Court has also stated that when UN reports are produced by individuals having an independent status and are based on comprehensive sources, and when they are prepared at the request of UN organs in the course of the exercise of their functions, they are more likely to be credible, probative, and entitled to weight than when those elements are lacking.Footnote 40 These factors potentially cover a broad swathe of UN fact-finding bodies, but the assumptions that underlie the Court’s position are open to question:
The factors the Court identifies do not necessarily assure methodological rigor or evenhandedness, and the Court can hardly fail to note that the widespread establishment of ad hoc fact-finding bodies over the past quarter century has led to greater scrutiny of their methods and methodologies. Commentators have pointed to the risks of flawed witness accounts, insufficient study of documentary evidence, or a lack of relevant expertise, especially with regard to military operations. Findings might be based on erroneous information that has been widely disseminated, thus presenting a false picture of corroboration, or the standard of proof adopted by a fact-finding body may differ from that which an international court would require. Moreover, the work of many fact-finding bodies is hindered by their lack of access to the relevant territory when states … refuse to co-operate.Footnote 41
These considerations suggest reasons for the Court to revisit its approach to engaging with third-party findings of fact, including by: (i) paying greater attention to the methodology and methods of the fact-finder; (ii) examining the underlying evidence collected (such as satellite imagery, forensic reports, witness statements, or official documents); or (iii) calling individuals involved in the preparation of fact-finding reports as witnesses who can be questioned by the parties and the judges.Footnote 42 This last possibility could help to avoid ‘ill-founded over-reliance’ on a report or, conversely, a scenario in which relevant evidence is not given due weight because details about the fact-finding body’s methodology are missing or have been called into question and left unaddressed.Footnote 43 Recent practice does not suggest a move by the Court in this direction, but several pending cases may bring these issues into sharper relief.
3. Recent developments
In light of the evidentiary standards the ICJ has articulated, Section 3 considers the application of those standards in recent practice. It first examines recent requests for provisional measures, where the ‘risk-assessment’ nature of the procedure and the fact that findings are without prejudice to the merits point to an even greater willingness on the Court’s part to credit third-party fact-finding. It then considers the significance of third-party fact-finding reports in the Ukraine v. Russia case decided on the merits in 2024.
3.1 Third-party facts and provisional measures
Third-party fact-finding reports can play a significant role in requests for the indication of provisional measures. When inquiry bodies document especially grave misconduct, such as violations of human rights or international humanitarian law on a massive scale, they can play a critical function in convincing states to initiate ICJ proceedings in the first place, especially if applicant states are not directly injured and instead seek to enforce a collective interest.Footnote 44 Such reports may provide the bulk of the facts on which an applicant bases its claims. While directly injured states also make use of fact-finding reports to support their legal claims, the need to rely on such reports is especially acute in the case of non-injured states that may lack first-hand information.
On a request for provisional measures, the Court applies a multi-part test to determine whether the indication of provisional measures is warranted. That test comprises prima facie jurisdiction over the dispute, the plausibility of the rights for which protection is sought, a link between the measures requested and the protection of such rights, and the existence of an urgent risk of irreparable prejudice to those rights. At the provisional measures phase, the Court does not make definitive findings of fact. However, in the application of its multi-part test, the Court will frequently consider factual evidence, primarily with respect to whether the applicant has established a risk of imminent and irreparable harm. In practice, the Court also sometimes refers to factual evidence under the heading of plausibility; this has contributed to the impression that while the Court refers formally to the plausibility of the rights invoked by the applicant, its focus sometimes appears to be on whether a party’s claims are at least plausible.Footnote 45
A survey of recent provisional measures practice demonstrates that parties frequently support their requests for interim relief by asking the Court to give weight to third-party fact-finding reports. Furthermore, the Court very often does so, with little express reference – at least in its orders – to the underlying indicia of reliability and probative value described above.
3.1.1 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar)
In November 2019, The Gambia initiated proceedings alleging violations of the 1948 Genocide Convention by Myanmar based on severe ill-treatment of the Rohingya ethnic minority. It simultaneously requested provisional measures aimed at protecting the remaining Rohingya in Myanmar from future acts of genocidal violence. In January 2020, the Court referenced third-party fact-finding reports at several points in finding that the requirements to indicate provisional measures were met.Footnote 46 First, when discussing the plausibility of the rights invoked by The Gambia, the Court referred to the reports of the Independent International Fact-Finding Mission on Myanmar (the IIFFMM) established in 2017 by the UN Human Rights Council, including its conclusions on genocidal intent.Footnote 47 The Court also referred to UN General Assembly resolution 73/264, which contained assertions of fact and law based on the IIFFMM reports.Footnote 48 Secondly, the Court relied upon the IIFFMM reports to establish the imminent risk of irreparable prejudice to the rights at issue. Noting the acts of violence documented by those reports, the Court found that ‘the Rohingya in Myanmar remain extremely vulnerable’.Footnote 49 It further noted the IIFFMM’s view that the Rohingya in Myanmar faced a ‘serious risk of genocide’.Footnote 50
In the oral proceedings, Myanmar asked the Court to refrain from intervening in view of the ongoing work of a different inquiry body that Myanmar had established in July 2018: the Independent Commission of Enquiry (the ICOE).Footnote 51 The day before the ICJ handed down its decision, the ICOE released an executive summary of its report which stated that it had found evidence of war crimes, but not genocide.Footnote 52 Given the timing, it was not surprising that the ICJ did not address the ICOE’s findings in the 23 January Order. Nonetheless, one might speculate that the Court would not have viewed a report by the ICOE (a fact-finding body created by the state under scrutiny) as entitled to the same presumptive weight that it was willing to extend to the IIFFMM reports (i.e., reports that appeared to have been prepared with care by independent experts at the request of a UN body in the exercise of its functions), at least at the provisional measures stage.Footnote 53 The relative value of the distinct fact-finding exercises may feature at the merits stage.
3.1.2 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan); Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia)
The longstanding territorial dispute between Armenia and Azerbaijan over Nagorno-Karabakh collapsed into armed conflict in September 2020. Each state initiated ICJ cases based on alleged violations of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination (CERD), with both sides claiming ethnic discrimination in connection with the renewed hostilities. By the end of 2024, Armenia had submitted five requests to the Court for new or modified provisional measures; Azerbaijan had done so twice.
Some of these requests relied extensively on fact-finding reports. For example, in its ruling on Armenia’s first request for the indication of provisional measures, the ICJ referred to a resolution by the Parliamentary Assembly of the Council of Europe that was based on information from ‘reputable international NGOs and a wealth of information from different sources’, as well as a joint statement by UN human rights experts issued by the UN Office of the High Commissioner for Human Rights (OHCHR).Footnote 54 In light of these materials, the Court found a real and imminent risk of irreparable prejudice.Footnote 55
The Court did not refer to any third-party fact-finding reports when it rejected Armenia’s request in October 2022 for a modification of the existing provisional measures based on detention conditions.Footnote 56 However, in its ruling on Armenia’s next request in December 2022, which concerned Azerbaijan’s alleged blockade of the Lachin Corridor, the Court noted that the ‘information available to it’ established that disruption on the Lachin Corridor had impeded the transport of Armenian nationals in need of urgent medical care and the transport of essential goods into Nagorno-Karabakh.Footnote 57 Armenia’s submissions on these points drew upon news sources and domestic human rights bodies, not international fact-finding bodies, and the Court did not address why these sources were entitled to weight.Footnote 58 In July 2023, the Court denied a follow-up request from Armenia relating to the Lachin Corridor, but the Court did indicate additional provisional measures in November 2023 on Armenia’s fifth request, which followed a new military offensive by Azerbaijan in September 2023. In requiring Azerbaijan to facilitate the free movement of people to and from the disputed region, the Court referred to UN reports regarding the mass displacement of ethnic Armenians from the region since September 2023, but did not engage with any of the other information submitted to it.Footnote 59
On Azerbaijan’s requests for provisional measures, the Court directed Armenia in its Order of 7 December 2021 to prevent the incitement and promotion of racial hatred.Footnote 60 That outcome was informed by the Court’s reliance on ‘the information presented to it by the Parties’ with respect to alleged violations of the rights invoked by Azerbaijan.Footnote 61 This appeared to comprise news reports, materials produced by domestic human rights bodies, and at least one report by Human Rights Watch.Footnote 62 In its application initiating proceedings, Azerbaijan also referred to CERD Committee reports.Footnote 63 In 2023, the Court rejected Azerbaijan’s second request for provisional measures, concerning alleged landmine activity by Armenia, on legal grounds and did not engage with the facts.Footnote 64
Taken as a whole, the Court’s practice in these two cases provided little guidance about what sources of evidence were relied upon or why certain examples of third-party fact finding were deemed of sufficient quality and credibility to have value. For example, it was difficult to ascertain to what extent Human Rights Watch reports were given significant weight and, if so, whether they were viewed by the Court as essentially carrying the same weight as a report from a UN-mandated fact-finding body.
3.1.3 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russia)
Immediately following Russia’s full-scale invasion of Ukraine on 24 February 2022, Ukraine instituted ICJ proceedings which alleged that Russia had falsely accused Ukraine of committing genocide as a pretext for the ‘special military operation’.Footnote 65 Ukraine also requested provisional measures. In finding an urgent risk of irreparable prejudice to the rights invoked by Ukraine under the 1948 Genocide Convention (i.e., the right ‘not to be subjected to military operations … for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine’), the Court referred to a UN General Assembly resolution of 2 March 2022 that expressed ‘grave concern at reports of attacks on civilian facilities such as residences, schools and hospitals, and of civilian casualties’.Footnote 66 The Court did not identify or engage with such reports (it was not clear that the Court could have known exactly what the language in GA Resolution ES-11/1 referenced) in ordering Russia to immediately suspend the military operation.Footnote 67
Ukraine’s Application made use of third-party fact-finding reports, including from the OHCHR Human Rights Monitoring Mission in Ukraine, to rebut Russia’s allegations of genocide in Eastern Ukraine. Specifically, Ukraine pointed to the absence of any reference in such reports to evidence of genocide.Footnote 68 These materials were not strictly relevant to the provisional measures request. However, Ukraine can be expected to reiterate the value of such reports at the merits phase, which the Court has since limited to Ukraine’s claim that it was not in breach of its own obligations under the Genocide Convention.Footnote 69 The OHCHR reports may therefore play a role in Ukraine’s efforts to, in effect, prove a negative.Footnote 70 Ukraine may also seek to use more recent third-party fact-finding reports to establish that Russia has violated the provisional measures indicated in March 2022, perhaps with a view to obtaining reparations.Footnote 71 It remains uncertain, however, whether the provisional measures were ‘invalidated or voided’ by the decision on jurisdiction.Footnote 72
3.1.4 Application of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syria)
In June 2023, Canada and the Netherlands jointly instituted proceedings against Syria concerning alleged violations of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. They simultaneously requested provisional measures, including those aimed at ameliorating conditions of detention in Syria and requiring the disclosure of burial sites.Footnote 73 In this connection, the applicants directed the ICJ to the substantial body of fact-finding work by the Independent International Commission of Inquiry on the Syrian Arab Republic, which had operated continuously since its establishment by the Human Rights Council in 2011.Footnote 74 In its decision, the Court gave substantial weight to information from several of the Commission of Inquiry’s reports, including its 11 March 2021 report that described the use of ‘arbitrary detention, torture and ill-treatment, including through sexual violence’ as ‘a hallmark of the conflict’.Footnote 75 The Court further noted that the Commission of Inquiry had detailed repeatedly the ‘systematic’ use of torture in Syrian detention facilities and went on to quote directly from three further reports.Footnote 76 Based on this material, the Court found the requirement of a real and imminent risk of irreparable prejudice met.Footnote 77 As in other provisional measures orders, the Court did not discuss the inquiry body’s methods or explain why its views were entitled to considerable weight. Syria’s non-appearance in the proceedings was an additional factor. This meant that Syria did not challenge the evidence presented or identify any potential weaknesses in the Commission of Inquiry’s reports, including the fact that its work was carried out without access to Syrian territory.
3.1.5 Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)
In December 2023, South Africa instituted proceedings against Israel under the 1948 Genocide Convention in response to Israel’s military campaign in Gaza following attacks by Hamas and other armed groups on 7 October 2023. South Africa simultaneously requested the indication of provisional measures, and, over the next several months, made two additional formal requests for the indication of new or modified provisional measures.Footnote 78
In the Court’s January 2024 ruling on South Africa’s first request, the Court referred to a range of UN materials in setting out facts under the heading of plausibility.Footnote 79 This included daily spot reports by the UN Office for the Coordination of Humanitarian Affairs (OCHA), World Health Organization (WHO) reports, and statements by UN special procedures mandate holders, the CERD Committee, and UN officials responsible for the on-the-ground work of UN bodies in Gaza, as well as statements by Israeli officials.Footnote 80 On the urgent risk of irreparable prejudice to the rights of the Palestinians in Gaza, the Court cited statements by the UN Secretary-General to the UN Security Council and additional statements by the Commissioner-General of the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).Footnote 81 Based on these materials, the Court described the civilian population in Gaza as ‘extremely vulnerable’ and ‘the catastrophic humanitarian situation’ in Gaza at ‘serious risk’ of further deterioration – thus providing the basis for the indication of provisional measures.Footnote 82
South Africa called upon the Court again in March 2024 and May 2024 to indicate additional or modified provisional measures. South Africa’s March 2024 request focused on the allegation that a famine was in progress in Gaza due to Israel’s continuing military operation. In its order, the Court relied extensively on third-party reports, mainly from UN-affiliated bodies (including the WHO, the World Food Programme (WFP), the Food and Agriculture Organization (FAO), and the United Nations Children’s Fund (UNICEF)), as well as daily spot reports from OCHA, to find a change in the situation within the meaning of Article 76 of the Rules of Court.Footnote 83 On whether those changed circumstances created a new imminent risk of irreparable harm, the Court also relied on assessments by OCHA, WFP, and FAO and UN officials.Footnote 84 It further noted declarations from organizations involved in the delivery of humanitarian assistance into Gaza that it would only be possible to address the humanitarian crisis if military operations were suspended.Footnote 85 Taken together, these reports and statements provided the basis for the Court’s finding that the situation presented a further risk of imminent irreparable prejudice to the rights at issue.Footnote 86
Finally, in May 2024, the Court issued a third order indicating provisional measures against Israel in response to a new request focused on Israel’s military offensive in Rafah, the area in the south of Gaza that had come to serve as a place of refuge for large numbers of displaced Palestinians from elsewhere in Gaza.Footnote 87 Again, the Court relied extensively on reports from OCHA, UNICEF, and WFP, as well as statements from UNRWA officials.Footnote 88 The Court also had the benefit of reports submitted confidentially to it by Israel in response to the Court’s Order of 26 January 2024, as well as South Africa’s response to Israel’s first report.Footnote 89 Notably, Israel urged the Court during the oral hearing not to accept at face value the contents of the UN reports submitted to it. Invoking Armed Activities, Israel described South Africa’s ‘heavy reliance’ on UN reports as flawed ‘when these cannot be said to constitute sufficient evidence of a reliable quality’, especially when such materials ‘have been prepared without access to relevant and necessary information, including that held by Israel, and often without any attempt to access such information’.Footnote 90 Asserting that many of the reports invoked by South Africa relied on ‘Hamas sources or on those subject to Hamas intimidation’, Israel emphasized that such reports ‘should not be accepted automatically, especially in a complex combat reality’.Footnote 91 The Court did not address those points in finding that Israel’s actions had created a further risk of irreparable harm that demanded new provisional measures – in this case, that Israel immediately halt its military offensive in Rafah.Footnote 92 If the case proceeds to the merits, it is all but certain that third-party fact-finding reports will play a major role, including reports published subsequent to the May 2024 order.Footnote 93
3.1.6 Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany)
In connection with the conflict in Gaza, Nicaragua instituted proceedings against Germany in March 2024 alleging that Germany’s material support for Israel was in violation of the 1948 Genocide Convention and international humanitarian law. Nicaragua asked the Court to indicate provisional measures aimed at requiring Germany to suspend aid to Israel and to reinstate Germany’s funding of UNRWA.Footnote 94 While Nicaragua’s Application contained references to reports by OCHA and UN special rapporteurs (directed at documenting the humanitarian situation in Gaza), the factual assertions relating to Germany’s alleged complicity in violations of IHL and the Genocide Convention drew largely upon news sources, rather than UN reports. Ultimately, the Court credited Germany’s assertions at the oral hearing that there had been a steep decrease in arms exports from Germany to Israel following the beginning of the Israeli military operation and that German law contained adequate safeguards to prevent the use of military aid to commit violations of international law.Footnote 95 One can only speculate whether Nicaragua’s position would have been bolstered had it been able to produce relevant materials by a UN fact-finding body that were specific to German policies and practice and challenged Germany’s account.
3.1.7 Conclusion on third-party fact-finding reports in provisional measures orders
In sum, recent practice suggests that the ICJ generally has few concerns at the provisional measures phase about relying on some types of third-party evidence – namely, materials generated by UN bodies or statements by UN officials with operational knowledge and access to institutional resources (including the day-to-day fact-finding work that is part of regular activities). However, in some cases, the ICJ’s willingness to accept and credit third-party fact-finding also extends to NGO reports, and in other cases, the Court has appeared to accept, without question, decisions by political bodies (namely, the UN General Assembly) to assert or endorse certain facts on the basis of third-party fact-finding. All of this can be explained – and, arguably, justified – by the fact that the Court is likely to err on the side of caution when assessing risk in the face of a request for provisional measures, especially when there is alleged to be a serious threat to human life.Footnote 96
The Court’s approach at the provisional measures phase is also broadly consistent with its willingness at the merits phase to treat UN reports as deserving ‘evidential weight’ based on the presumed independence and competence of actors within the UN system. However, as noted above, the Court’s position in Armed Activities was that UN documents merit consideration to the extent they have ‘probative value’ and are ‘corroborated, if necessary, by other credible sources’.Footnote 97 In the provisional measures orders summarized above, the Court did not address whether the information in the UN documents relied upon was corroborated by other credible sources. Nor did the Court address potential criticisms of those evidentiary sources (such as those raised by Israel in response to South Africa’s May 2024 request), even if only to explain why such criticisms were not persuasive. The Court’s approach to third-party findings of fact at the provisional measures phase can be summarized as follows: Accept the facts now, ask questions later (or: better to be safe than sorry). There are risks attendant to this practice, however.
First, although decisions by the ICJ at the provisional measures phase are not definitive and are without prejudice to the merits of the case, the Court’s treatment of the facts at the provisional measures phase may have an outsize influence on how parties, other states, or the broader public understand the conflict.Footnote 98 They may also influence how other international courts and tribunals, if the dispute is litigated in multiple forums, understand the facts. Rather than approaching a set of complex factual allegations with a clean slate, another court or tribunal may approach that evidence against the backdrop of how the ICJ has already determined – albeit provisionally – certain facts. It may then need to decide not only whether to credit an inquiry body’s report, but also whether the ICJ’s approach to that material is a relevant consideration. Other courts or tribunals might defer to the ICJ’s approach, whether or not deference is warranted.
Secondly, the ICJ’s willingness to rely on third-party findings of fact at the provisional measures phase increases the possibility that such reliance will later prove misplaced. Facts established by an inquiry body – perhaps based on incomplete information – may later turn out to be incorrect or misleading. If discrepancies come to light, this may invite attacks against the Court’s competence and credibility. One could also envisage a scenario in which confirmation bias on the part of some ICJ judges might result in a reluctance to concede that an earlier decision was ill-founded or influence what facts are credited going forward.Footnote 99 Moreover, parties, commentators, and the broader public may turn out to have had warped expectations about a party’s likelihood of success on the merits if the Court has credited facts at the provisional measures phase that were later deemed unreliable.
Ultimately, the tendency to apply a more liberal standard to evidence at the provisional measures stage reflects a trade-off. When faced with a situation that reasonably appears to present an urgent risk of irreparable harm to plausible rights, the Court cannot necessarily be expected to subject third-party fact-finding reports to the same level of scrutiny that can be applied at the merits phase. Moreover, if the Court declines to indicate provisional measures where there are reasonable grounds to do so, even if some of the evidence raises questions, the Court will also face legitimacy costs. At the same time, the Court should not ignore challenges to the credibility of the evidence it is being asked to rely upon, even when seeking to act quickly in a situation of real urgency. Even at the provisional measures stage, this could mean the Court referring specifically to an inquiry body’s methodology to explain a willingness to credit its findings, placing greater emphasis on the fact that the Court’s findings are without prejudice to the merits, or making greater use of rebuttable presumptions and adverse inferences.Footnote 100
3.2 Case study: Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russia)
The next question is whether there is a meaningful difference between the Court’s propensity to credit third-party findings of fact at the provisional measure stage and its approach at the merits stage. With the benefit of a more complete evidentiary record and further opportunity for party argument, does the Court take a more demanding approach to the factual findings of third parties? As of mid-2025, none of the above cases involving provisional measures has yet reached the merits. However, a recent judgment in a different case between Ukraine and Russia, which also included a provisional measures order, suggests that the question should be answered in the negative, with certain caveats.
In January 2017, Ukraine instituted ICJ proceedings against Russia alleging violations of the 1999 International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the CERD. The ICSFT claims concerned Russia’s alleged support for pro-Russian separatists in Eastern Ukraine (including in connection with the downing of Flight MH17 in July 2014); the CERD claims concerned events in Crimea following its purported annexation by Russia in 2014. Upon the seisin of the Court, Ukraine also requested provisional measures. This provides a window into how the Court’s approach to third-party evidence may differ between the provisional measures and merits phases.
3.2.1 Ukraine v. Russia: Provisional measures
Ukraine sought provisional measures relating to its claims under both treaties but succeeded only with respect to its CERD claims.Footnote 101 Ukraine’s argument was that it had a right under ICSFT Article 18 to Russia’s cooperation in preventing terrorism, including by Russia not providing funds to separatists in Eastern Ukraine to be used to carry out acts of terrorism.Footnote 102 Ukraine contended that its claims – not merely its rights under the treaty – were ‘far more than simply “plausible”’ and, in this regard, directed the Court to the alleged acts of terrorism documented in reports by the Special Monitoring Mission of the Organisation for Security and Co-operation in Europe (OSCE).Footnote 103 For its part, Russia referred the Court to reports by the OHCHR, the OSCE, and the International Committee of the Red Cross that characterized the acts complained of by Ukraine as violations of international humanitarian law, but did not describe such acts as terrorism.Footnote 104 This was intended to show that the ICSFT did not apply.
The Court’s ruling was notable for being the only decision to date in which the Court has rejected a request for provisional measures based on a finding that the rights for which protection was sought were not plausible.Footnote 105 The Court concluded that Ukraine had not provided a sufficient basis to find the elements of intention or knowledge set out in ICSFT Article 2, which were linked to the obligation of co-operation under Article 18.Footnote 106 The Court did not explain whether this conclusion turned on a decision not to credit information in the reports invoked by Ukraine or rather that neither knowledge nor intent could be inferred from the evidence.
The Court’s approach to Ukraine’s requests concerning the CERD followed a more familiar pattern. Ukraine invoked OHCHR and OSCE reports that detailed ‘intimidatory tactics used … to silence political expression by the Crimean Tatar community’ and the ‘rapid decline of Ukrainian-language instruction in Crimea’.Footnote 107 For its part, Russia directed the Court to an OHCHR report that had not criticized certain acts complained of by Ukraine and to the fact that the CERD Committee had not triggered ‘the urgent action procedure at its disposal’.Footnote 108 In its ruling, the Court took note of the OHCHR report’s finding that actions taken against the Meijlis, the highest executive representative body of Crimean Tatars, amounted to a deprivation of rights, as well as the OSCE report on the decline in Ukrainian language instruction. On this basis, the Court found the requirements for provisional measures met.Footnote 109
In sum, the ICJ gave weight to OHCHR and OSCE reports at the provisional measures phase with respect to Ukraine’s CERD claims, did not put stock in Russia’s arguments relating to the omission of certain issues from other UN reports, and did not – apparently – find that any third-party findings of fact supported Ukraine’s claims relating to intention or knowledge with respect to the ICSFT claims, including the requirement that predicate acts be carried out for the purpose of terrorism.
3.2.2 Ukraine v. Russia: Merits
Approximately six and a half years later, the ICJ handed down the judgment on the merits on 31 January 2024.Footnote 110 Ukraine prevailed on a narrow subset of issues, but most of its claims were rejected. Specifically, the Court found that Russia had breached its obligation under the ICSFT to investigate certain individuals allegedly involved in financing terrorism and that Russia had violated the CERD with respect to Ukrainian language instruction in Crimea. This was a ‘sobering experience’ for those who had expected (or hoped for) a result more favourable to Ukraine.Footnote 111
The outcome on the ICSFT claims turned mainly on the Court’s narrow interpretation of the term ‘funds’ in the treaty (a legal question),Footnote 112 rather than whether there was evidence that Russia had failed to investigate or prosecute individuals who had acted with the requisite knowledge or intention in connection with acts covered by Article 18 (a fact-based question).Footnote 113 The Court’s exclusion of Ukraine’s ICSFT claims relating to the supply of weapons and ammunition to pro-Russian separatists (because these were not ‘funds’) made the fact-finding reports by third parties (including the on-the-spot reports of the OSCE Special Monitoring Mission) largely irrelevant. This was therefore not a case of the Court failing to credit third-party facts so much as the Court adopting a legal interpretation that had a dramatic impact on what facts mattered.
The outcome on Ukraine’s CERD claims hinged more squarely on the Court’s view of the facts adduced by third parties – including whether the evidence demonstrated that discrimination against Crimean Tatars and ethnic Ukrainians was based on ethnic origin rather than political views and whether Russian measures amounted to discrimination against the Crimean Tatars based on a theory of disparate impact (i.e., that acts of physical violence disproportionately targeted Crimean Tatars and people of ethnic Ukrainian origin).Footnote 114 In examining that evidence, the Court reiterated the standard language from Armed Activities and the Bosnia v. Serbia and Croatia v. Serbia cases on the probative value of reports from official or independent bodies (as described above).Footnote 115
The first issue concerned Ukraine’s allegation that Russia had violated CERD Articles 2 and 6 by engaging directly in acts of physical violence in Crimea against Crimean Tatars and ethnic Ukrainians (including ‘prominent activists’), by failing to prevent such violence by private persons, and by failing to investigate these incidents.Footnote 116 Ukraine supported these allegations with UN reports, including two OHCHR reports, alongside NGO reports and witness statements.Footnote 117 For its part, Russia noted that the UN reports did not assert that victims were targeted based on their ethnicity, but rather because of their political views – which was not an offence covered by the CERD.Footnote 118 As for Ukraine’s argument that the OHCHR reports helped to establish a ‘pattern of physical violence’ against certain ethnic groups, Russia contended that the reports were ‘based on inadequate methodologies’.Footnote 119
In the Court’s view, the OHCHR reports supported Ukraine’s general allegations relating to the ‘ill-treatment of abducted persons in Crimea’ and that ‘several targeted people were pro-Ukrainian activists’.Footnote 120 However, the Court also credited the emphasis in those reports on the fact that such individuals were targeted for their political views, not their ethnicity, as such. Since the Court’s position was that ‘political identity’ was not relevant to ‘ethnic origin’ under the CERD, such incidents could not be equated with discrimination based on ethnic origin.Footnote 121
The Court was also unconvinced by Ukraine’s evidence that Crimean Tatars and ethnic Ukrainians disproportionately suffered acts of violence. Affirming its willingness to ascribe ‘particular weight to reports by international organizations that are specifically mandated to monitor the situation in a given area’, the Court nonetheless suggested that greater caution was required in this case because OHCHR findings were based on the reports of a UN-mandated monitoring body that lacked access to Crimea.Footnote 122 However, the Court noted that those same reports also pointed to acts of violence against persons of Russian and Central Asian ethnic origin, which seemed to carry weight for the Court.Footnote 123 Ultimately, the Court found that political opposition to Russia, rather than ethnic origin, explained any ‘disparate adverse effect’ suffered by Crimean Tatars and ethnic Ukrainians and undermined the CERD claim.Footnote 124
A similar pattern played out with respect to other CERD issues, including Ukraine’s allegation that Crimean Tatars were singled out for arbitrary searches and detentions.Footnote 125 On this point, the Court ‘attributed considerable weight to reports of several UN organs and monitoring bodies’, as well as a Council of Europe report and a UN General Assembly resolution that referred to such reports.Footnote 126 On this basis, the Court found that Ukraine had ‘sufficiently demonstrated that the law enforcement measures concerned produced a disparate adverse effect on the rights or persons of Crimean Tatar origin’.Footnote 127 Once again, however, the evidence did not establish that Crimean Tatars were targeted specifically based on ethnicity rather than political viewpoint.Footnote 128 The Court came to similar conclusions on claims relating to measures taken against the Mejlis. This body was targeted based on the political activities of its members rather than their ethnic origin; moreover, the ban on the Mejlis did not amount to depriving the Crimean Tatars of their representation.Footnote 129 This last conclusion seemed to sidestep a 2016 OHCHR report which had found that no other Crimean Tatar NGO ‘can be considered to have the same degree of representativeness and legitimacy’ as the Mejlis.Footnote 130
It was only on claims relating to Ukrainian language instruction in Crimea that Ukraine prevailed. The Court relied on an OHCHR report to establish a ‘steep decline’ in the number of students receiving instruction in Ukrainian after 2014.Footnote 131 This was sufficient to establish an adverse effect on the rights of Ukrainian children and a CERD violation by Russia.Footnote 132 By contrast, the Court was unpersuaded by Ukraine’s claims about destruction of cultural heritage. Russia took the position that it was in fact engaged in preserving and promoting, rather than destroying, Crimean Tatar heritage.Footnote 133 The Court noted that the CERD Committee had expressed deep concern about reports relating to destruction and damage to Crimean Tatar heritage but also that the Committee did ‘not take a position as to whether the respective reports are accurate and does not rely on first-hand evidence’ – and that Ukraine had not otherwise substantiated the allegations.Footnote 134 This engagement with the CERD Committee’s observations was notable for its closer scrutiny of how a third party had itself assessed the underlying facts. It also suggested a far less deferential approach than the Court has often shown when crediting UN General Assembly resolutions that similarly express concern or condemnation based on other reports.
3.2.3 Conclusions on the Court’s approach to third-party fact-finding in Ukraine v. Russia
In sum, Ukraine v. Russia demonstrated that the ICJ remains open to crediting facts set out in reports emanating from the UN or other international bodies.Footnote 135 At the provisional measures phase, the Court’s liberal approach to the evidence was consistent with its practice in more recent provisional measures proceedings. At the merits phase, the Court mostly did not question the value and credibility of UN and other third-party reports, with the notable exception of drawing attention to the fact that when a fact-finding body lacks access to territory (as in the case of the UN-mandated monitoring body that lacked access to Crimea), caution is required. This may be a red flag for parties to other cases before the Court in which evidentiary support (for example, the IIFFMM reports in The Gambia v. Myanmar) comes from reports by UN fact-finding bodies that could not access the territory. On other claims, the Court was not convinced by Ukraine’s arguments, even where they seemed to find some support in UN reports. But the Court, for the most part, did not suggest that it found the reports that Ukraine relied upon to be flawed or not credible (with the exception of the CERD Committee’s references to cultural heritage destruction); instead, the Court seemed to look past certain facts that arguably put its legal conclusions on (somewhat) shakier ground.
The Court’s decision on the CERD claims, in particular, faced criticism for failing ‘to see beyond discrimination on political grounds’.Footnote 136 This criticism may be well-founded, but the Court’s approach was not the result of a blinkered approach to fact-finding reports. Rather, the Court’s restrictive interpretations of CERD and ICSFT provisions served to make third-party fact-finding reports less important than they otherwise might have been. In this sense, the case was a missed opportunity for the Court to engage more closely with how the structure, operation, or methodology of a fact-finding body corresponds to the quality or usefulness of its findings. For example, many of the reports invoked by Ukraine on its ICSFT claims were from on-site ‘monitoring’ missions, rather than reports by fact-finding entities that could not access the territory (in contrast to the reports relating to Ukraine’s CERD claims on Crimea). Information was gathered in different ways across reports (for example, first-hand accounts by monitors versus witness interviews conducted at a distance). In addition, some of the reports relied upon by Ukraine were ‘spot’ reports that provided contemporaneous accounts of daily events, rather than after-the-fact assessments. Different fact-finding bodies also had different mandates; the OSCE monitoring mission, for example, was charged with objective and impartial reporting but also with reducing tension and fostering peace and dialogue. These distinctions might have been relevant to how the ICJ assessed these reports. However, none of these factors appeared to play any role in the Court’s analysis.
4. Moving towards coherence?
Recent ICJ practice raises more questions than it answers in terms of whether the Court is moving towards greater coherence in its engagement with third-party fact-finding.Footnote 137 In light of the significant number of pending cases in which fact-finding reports feature prominently (including the recent wave of ‘public interest’ cases brought by non-injured states), the Court will soon find itself again facing how or why certain facts ascertained by third parties should be credited. Moreover, the Court is unlikely in these cases to be able to fall back upon an evidentiary record established by an international criminal tribunal, as it did in Bosnia v. Serbia and Croatia v. Serbia. Instead, with mainly UN fact-finding reports (and similar types of materials) to rely upon in pending cases relating to genocide and torture, the Court’s approach to that evidence may be dispositive.
Ultimately, the degree to which the Court accounts for any given fact-finder’s methodology and methods remains underexplained. For example, the Court often takes a dim view of witness statements collected by parties, which appear to sit at the lower end of the spectrum in terms of probative value.Footnote 138 Yet the Court has devoted little attention to scrutinizing the testimonial evidence that undergirds many third-party fact-finding reports. In principle, the Court’s emphasis on the importance of cross-examination in an adversarial, court-like setting suggests that witness testimony gathered in other ways – and not subject to cross-examination – has less value. Yet once that type of testimony has been incorporated into the report of a UN fact-finding body, these concerns often seem to be resolved. Whether or not this is justifiable, it is the Court’s failure to account for this apparent incoherence – that is, to explain why certain evidence should be credited, beyond reciting platitudes – that raises concerns.Footnote 139 The Court could address this in several ways.
First, the Court could elaborate upon its current approach by engaging more squarely with the methodologies and methods that fact-finding bodies adopt when producing their reports.Footnote 140 This means identifying and considering the process that a fact-finding body has used to arrive at key conclusions when faced with conflicting or incomplete evidence, including how it eliminated alternative plausible explanations (especially on mixed questions of law and fact relating to attribution, causation, responsibility, or intent).Footnote 141 The extent to which a fact-finding body articulates the process by which it collected and evaluated evidence may clarify the degree of certainty that can attach to specific findings.Footnote 142 The Court might also consider whether the fact-finding body has sought to address any preexisting assumptions reflected by its mandate or that have been brought to the exercise by its own members.Footnote 143 Overall, the Court’s focus should be on the fact-finding body’s working practices rather than its institutional provenance.
For example, the ICJ could look more closely at how a fact-finding body has collected testimonial evidence, including how witnesses were identified and questioned, what safeguards were put in place to ensure that witnesses could speak freely, and what factors were used to assess credibility and to corroborate statements.Footnote 144 Corroboration also raises issues with respect to open source information and social media data.Footnote 145 UN fact-finding bodies are increasingly setting out more detailed accounts about how they approach these matters.Footnote 146 It may be especially helpful to the Court when fact-finding reports provide examples of information or testimony that was not credited because it could not be corroborated or lacked credibility, since this illustrates how the fact-finding body implemented its own standards.
Another consideration is the overall organization of a fact-finding body’s work. Many third-party fact-finding reports (especially when addressed to large-scale conflicts rather than specific incidents) use illustrative examples or case studies to support their conclusions (for example, to establish a pattern of conduct that may be relevant to the legal characterization of a situation).Footnote 147 This echoes long-held concerns that human rights fact-finding risks improperly treating anecdote as evidenceFootnote 148 or insufficiently accounts for possible forms of selection bias in how data is interpreted.Footnote 149 When faced with these types of reports, the Court should consider how representative cases were chosen and what this may have left beyond the frame. The Court should also consider how a fact-finding body responded to any failure or refusal by government officials or key non-state actors to provide information or access to sites or witnesses, including whether such non-cooperation led the fact-finding body to draw adverse inferences. Finally, the Court should ask whether a fact-finding body was adequately equipped to make certain types of findings and whether appropriate specialists were retained to provide relevant expertise (for example, on military targeting, forensics, sexual and gender-based violence, or quantitative data analysis). It should matter to the Court whether a fact-finding body has been transparent about the limitations of its inquiry and the potential impact of those limitations on its findings and conclusions.Footnote 150
Secondly, the Court could take a more proactive approach to assessing inquiry body reports by calling those involved in their creation to testify.Footnote 151 The ICJ Statute empowers the Court to ‘make all arrangements connected with the taking of evidence’ and the Rules of Court allow it to seek information beyond that produced by the parties for the ‘elucidation of any aspect of the matters in issue’, including by arranging ‘for the attendance of a witness or expert to give evidence in the proceedings’.Footnote 152 The purpose of such testimony would not be to repeat information contained in a fact-finding report but to address the above considerations about methodology and methods. If relevant information and explanations are not set out in the report, the Court may need to seek this information out.Footnote 153 Such testimony could be incorporated into the oral proceedings alongside the main party arguments and any other live testimony.Footnote 154 Alternatively, the ICJ might consider adopting a new procedure to pose questions to the authors of inquiry body reports in a type of fact-finding hearing adjacent to the main proceedings.Footnote 155 In either case, creating opportunities for the Court to engage directly with the authors of key fact-finding reports could be a way for the Court to fulfill its role-based ‘epistemic duty’ when it comes to evidence.Footnote 156 As noted above, this could provide a means for the Court to take account of potential gaps or weaknesses in an inquiry body’s report while also assisting the Court to resolve challenges to a report’s veracity or fairness.
Thirdly, the Court could take a more proactive role regarding the burden of proof in cases involving third-party fact-finding reports. The ICJ adheres generally to the default approach in international adjudication: the party asserting certain facts bears the burden of proving such facts (onus probandi incumbit actori).Footnote 157 But the Court has recognized that this rule is not absolute and ‘varies according to the type of facts which it is necessary to establish for the purposes of the decision of the case’.Footnote 158 The prominent use of third-party fact-finding reports invites revisiting when the Court will ‘shift’ or ‘reverse’ the burden of proof to the other party. If fact-finding reports that emanate from the UN or other international organizations satisfy a minimum threshold of reliability (taking into account the considerations of methodology and methods noted above), the contents of such reports might be deemed to create a prima facie case made up of rebuttal presumptions of probative value.Footnote 159 In other words, a high-quality fact-finding report that establishes a prima facie case (i.e., evidence ‘sufficient to maintain the proposition affirmed’ if uncontradicted)Footnote 160 would shift the burden of proof to the other party (usually, the respondent). In turn, a failure to respond meaningfully to a report’s contents would result in the Court crediting that evidence (just as the Court could also credit direct evidence that has not been rebutted). In principle, this should incentivize parties to engage substantively with the assertions and allegations contained in third-party fact-finding reports and ‘to bring forward the information they have’ that contradicts or calls into question a fact-finding body’s findings and conclusions,Footnote 161 even if they may have no formal legal obligation to do so.Footnote 162 This would be preferable to a party simply dismissing in toto a UN-mandated report as biased or flawed, whether because of a one-sided mandate, past statements by a fact-finding body’s member, or a lack of access to the relevant territory.Footnote 163
The Court also has the power to draw adverse inferences from a party’s failure to cooperate when asked to furnish information or explanations.Footnote 164 Historically, the Court has been reluctant to make use of that power,Footnote 165 but the prominent role of third-party fact-finding reports in cases on the Court’s docket might also justify taking a less circumspect approach to adverse inferences. If a party before the Court has failed to engage with relevant aspects of a third-party fact-finding report (or has claimed that a report cannot be relied upon because it was prepared without access to information in that party’s possession), the Court could directly request that party to supply explanations or to produce documents relating to those points.Footnote 166 A failure to cooperate with the Court’s request in that scenario would bolster any decision by the Court to then credit the contents of the fact-finding body’s report based on an adverse inference.Footnote 167
Burden-shifting with respect to third-party fact-finding reports might have especially important consequences in cases involving non-appearance. The Court makes extensive efforts to ensure that a non-appearing party is treated fairly and that the applicant’s arguments and evidence remain subject to scrutiny, as required by Article 53 of the ICJ Statute.Footnote 168 So what are the implications of non-appearance in cases in which the evidence derives largely from third-party fact-finding reports? Does the sound administration of justice require the Court to challenge such evidence, stepping into the shoes of the non-appearing party while ascertaining that the applicant’s claims are well founded in fact and law?
The Court has made clear that Article 53 does not compel it to examine the accuracy of a party’s factual submissions ‘in all their details’.Footnote 169 This suggests that while the Court would be well-advised to subject third-party fact-findings reports to the type of scrutiny outlined above, a non-appearing party ‘to some extent forfeits the opportunity to counter the factual allegations of the respective opponent’.Footnote 170 By definition, a non-appearing party cannot rebut whatever prima facie case a fact-finding report might establish, which opens the door to the Court crediting such materials. (In practical terms, this could operate just as if the non-appearing party had refused to cooperate with a request by the Court to address the facts set out in a report, leading the Court to draw an adverse inference.) The Court should not shy away from this possibility, so long as it has adequately ‘stress-tested’ the fact-finding report itself. At the same time, the Court cannot reasonably be expected to identify every possible shortcoming in a fact-finding body’s report, especially since certain errors or misapprehensions might be knowable only by the party that has, in essence, forfeited its right to raise those challenges.
5. Conclusion
This article has made the case that the indicia currently used by the Court to establish the credibility and value of inquiry body reports are unsatisfactory and not always applied in consistent or coherent ways. With a view to bolstering the persuasive authority of its own decisions, the Court could do more to demonstrate that it is not taking a purely intuitive or deferential approach to these materials. But this requires the Court to engage proactively with how inquiry bodies go about their work. To be clear, the argument is not that the ICJ should reject third-party fact-finding or hold such reports to an impossible standard, but rather that the Court’s credibility and the weight of its decisions demands more dynamic engagement. This extends to dealing with ill-founded or politically motivated criticisms of third-party fact-findings that, if not addressed, may undermine the Court’s work.
This study also suggests the need for research into the possible negative implications of a world in which damning reports by inquiry bodies or other UN entities precede judgments by the ICJ or other international courts and tribunals that fail to match expectations, as in the 2024 judgment in Ukraine v. Russia. This goes less to the weight that courts should attribute to fact-finding reports, however, and more to the disconnect between the non-binding ‘judgment’ that an inquiry body’s report may reflect and the very different judgment that an international court may deliver. Inquiry bodies do not necessarily pursue the same goals or serve the same function as international courts.Footnote 171 For this reason, inquiry body reports may create unrealistic expectations about litigation outcomes. It is conceivable that inquiry body practice – and the extensive reliance on inquiry body reports by civil society actors and states in relation to some ICJ proceedings – risks exacerbating broader concerns with strategic litigation at the international level, including the prospect of incoherence among different sources of authority and related threats of disenchantment with international law and backlash against international courts. Whether these are serious concerns, and whether they can be addressed by international courts seeking to achieve greater coherence in how they engage with third-party fact-finding, merits continuing scrutiny.
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