Burden of Proof at the ICJ Case Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation): Finding “the Way Home”

HSE University Journal of International Law. 2024. Vol. 2. No. 4. P. 69–77.

Galperin M.

The commentary points out the fundamental evidentiary issues, which the International Court of Justice would face soon deciding the case Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) at the merits stage. The author believes that the burden of proof considerations are at the heart of the whole procedural picture of this unique inter-state dispute. The analysis shows that in this case, pursuant to the actori incumbit onus probandi principle (it is for the claimant to prove his claim), the burden of proof remains — as it should — with the Applicant (Ukraine) and should not be arbitrarily shifted to the Respondent (the Russian Federation). Ukraine’s primary access to direct evidence regarding the legal nature of its acts should also be taken into account when establishing the appropriate burden of proof.

Keywords: burden of proof, бремя доказывания, доказательства, способ защиты, international justice, международное правосудие, judicial evidence, due process, legal remedy