The International Court of Justice (ICJ) is currently holding public hearings in the case brought by the Gambia against Myanmar alleging that Myanmar’s security forces committed acts of genocide against the Rohingya group. This short article concerns some technical issues which have arisen in the course of the proceedings, and which the Court may wish to clarify in its final judgment, related to the burden of proof.
The Court explained in Bosnia v. Serbia that “the applicant must establish its case” and emphasized in Croatia v. Serbia that “neither the subject‑matter nor the nature of the dispute makes it appropriate to contemplate a reversal of the burden of proof.” This basic point is well-settled, but its implications are not always well-understood.
The applicant (here, the Gambia) bears the legal burden of proof with respect to all the elements of its claims, while the respondent (here, Myanmar) bears no legal burden of proof. If the applicant produces no evidence, or only produces evidence that is irrelevant, unreliable, incomplete, or otherwise unpersuasive, then the Court is legally required to reject its claims. In contrast, if the respondent produces no evidence, or only incompetent evidence, then the Court is not legally required to accept the applicant’s claims. Instead, the Court will simply examine the evidence produced by the applicant, accepting its claims if its evidence satisfies the applicable standard of proof (here, proof that leaves the Court fully convinced) and rejecting its claims if its evidence does not meet that standard.
The legal burden of proof must be distinguished from the ordinary tactical choices that a respondent inevitably faces as the applicant presents evidence and arguments that may persuade the Court if they go unchallenged (what some scholars call the “tactical burden of proof”). If the applicant produces evidence that appears to satisfy the standard of proof, then the respondent faces a number of tactical choices: to challenge the reliability of the applicant’s evidence; to produce evidence of its own that contradicts the applicant’s evidence or its theory of the case; or to present an alternative theory of the case that is plausible enough to show that the applicant’s evidence does not satisfy the standard of proof after all. If the respondent fails to engage in any of these ways, then it is more likely to lose. In such cases, there has been no shift or reversal of the legal burden of proof, which remains with the applicant. The respondent is more likely to lose precisely because the Court is more likely to find that the applicant discharged its legal burden of proof.
In its written submissions and oral statements, Myanmar appears to conflate legal burdens of proof with ordinary tactical choices in various ways. Myanmar accuses the Gambia of arguing that certain “indicators” of genocidal intent establish a “presumption” of genocidal intent that Myanmar must “overturn.” According to Myanmar, “[t]he Court cannot accept Gambia’s invitation without consenting to an unacceptable reversal of the burden of proof. For then it would no longer be the applicant’s task to prove the existence of genocidal intent, but rather the respondent’s task to prove its absence” (my translation). Myanmar later adds that “The Gambia’s methodology leads in practice to a reversal of the burden of proof, since the so-called indicators of genocide seek to create a presumption of genocidal intent.”
Myanmar’s argument is misguided. The listed “indicators” of genocidal intent (such as acts of extreme brutality and sexual violence) are simply evidence that supports an inference of genocidal intent (not a “presumption” of genocidal intent). Myanmar bears no legal burden to prove the absence of genocidal intent. Myanmar simply faces a tactical choice: to explain why the evidence does not support an inference of genocidal intent, or to accept a higher risk that the Court will find that it does.
Myanmar makes a related mistake when it says that:
The Gambia [] argues that Myanmar fails to establish the existence of any other reasonable inferences to be drawn from the alleged pattern of conduct, leaving genocidal intent as the only inference that was reasonable. This argument is based on a misunderstanding of the rules on the burden of proof. Myanmar does not have to prove other reasonable inferences that could be drawn from the alleged pattern of conduct. On the contrary, it is for The Gambia to establish that genocidal intent is the only reasonable inference, something it has not done.
It is true that Myanmar bears no legal burden to produce evidence of an alternative, non-genocidal intent, or to persuade the Court that such an alternative intent may be reasonably inferred from the evidence already before it. At the same time, if there is no evidence of such an alternative intent before the Court, then Myanmar faces a tactical choice: to introduce evidence of such an alternative intent, or to accept a higher risk of losing the case. Similarly, if the extensive and complex evidence before the Court supports a reasonable inference of genocidal intent, then Myanmar faces another tactical choice: to explain how an alternative intent may (also) be reasonably inferred from all the evidence, or to accept a higher risk of losing the case. If Myanmar produces no evidence and makes no persuasive argument, then it is highly likely to lose for the simple reason that the Gambia will appear to have discharged its burden of proof.
Myanmar also complains about the Gambia’s reliance on reports of the United Nations Independent International Fact-Finding Mission on Myanmar (FFM) that quote or describe statements by anonymized witnesses and alleged victims:
Effectively, The Gambia seeks to shift the burden of proof. It seeks to put Myanmar in a position where Myanmar has the burden of disproving what is stated in the FFM reports. This is of course contrary to the established jurisprudence, according to which it is for the applicant “to demonstrate the existence of the facts put forward in support of its claims.” The Court “cannot demand of [the Respondent] that it provide explanations of the facts alleged by the Applicant.”
Again, Myanmar has no legal burden to disprove the FFM’s findings. The Court would not automatically accept the FFM’s findings if Myanmar did not challenge them. The Court would instead conduct its own examination of the FFM’s reports to determine their reliability and probative weight. Myanmar simply faces another tactical choice: to challenge the FFM’s methods, to present evidence contradicting the FFM’s findings, or to accept a higher risk that the Court will find that the FFM’s reports are reliable and probative and that the Gambia has met its legal burden of proof.
Such tactical choices inevitably faced by a respondent in the course of a genocide case do not reflect any reversal of the legal burden of proof. These choices instead reflect the principle of party presentation that I discussed in an earlier article. The Court must apply its standard of proof to the evidence presented by the parties, informed by the arguments offered by the parties. The Court may identify weaknesses in the applicant’s evidence or explanation of the evidence on its own. But if the respondent does not present countervailing evidence or an alternative explanation of the evidence, then the Court is unlikely to do so itself.
The proceedings remain ongoing at the time of this writing. But it seems that Myanmar will not present much probative evidence of its own or offer a particularly plausible alternative account of its actions or its intent. Myanmar will instead continue to challenge the reliability and probative value of the Gambia’s evidence, with a strong focus on the FFM’s reports. This approach does not reflect some kind of principled refusal to accept a reversal of the legal burden of proof. It is simply a tactical choice. Whether it succeeds or fails remains to be seen.
