Burden of Proof of Negative Facts in the Practice of International Courts and Tribunals: What Does the Consideration of Ukraine’s Claim in the Allegation of Genocide Case has in Store for Us?

On 2 February 2024 the International Court of Justice delivered its judgment in Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), where it established its jurisdiction in relation to Ukraine’s claim requesting the Court to declare that there is no credible evidence that Ukraine is responsible for committing genocide in DPR and LPR. In his declaration, Judge Tomka notes that the unusual form in which Ukraine’s submission is framed raises the problem of the allocation of the burden of proving negative facts. Judge Tomka invites the parties to express their views on this fundamental question, considering the contradictory approaches in the Court’s jurisprudence. This article constitutes an attempt to suggest what the Court’s approach to the allocation of the burden of proof at the merits stage of the proceedings may be in light of the practice of the Court, other international courts and tribunals and international legal scholarship.