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Reconcilable Difference: A Critical Assessment Of The International Court Of Justice’S Treatment Of Circumstantial Evidence, Michael P. Scharf, Margaux Day
Reconcilable Difference: A Critical Assessment Of The International Court Of Justice’S Treatment Of Circumstantial Evidence, Michael P. Scharf, Margaux Day
Michael P Scharf
This article examines a vexing evidentiary question that the International Court of Justice has struggled with in several cases over the years, 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 Bosnia Genocide case, the Court declined to do so under seemingly similar circumstances. By carefully examining the treatment of evidence in these and other international cases in …
Seizing The “Grotian Moment”: Accelerated Formation Of Customary International Law In Times Of Fundamental Change, Michael P. Scharf
Seizing The “Grotian Moment”: Accelerated Formation Of Customary International Law In Times Of Fundamental Change, Michael P. Scharf
Michael P Scharf
Growing out of the author’s experience as Special Assistant to the International Prosecutor of the Cambodia Genocide Tribunal in 2008, this article examines the concept of “Grotian moment,” a term the author uses to denote a paradigm-shifting development in which new rules and doctrines of customary international law emerge with unusual rapidity and acceptance. The article makes the case that the paradigm-shifting nature of the Nuremberg precedent, and the universal and unqualified endorsement of the Nuremberg Principles by the U.N. General Assembly in 1946, resulted in accelerated formation of customary international law, including the mode of international criminal responsibility now …