For my comments, I will focus on the experience of the Eritrea-Ethiopia Claims Commission, before which I appeared on behalf of the government of Ethiopia from 2001 to 2008. That Commission was set up pursuant to a December 2000 agreement which provided jurisdiction to the five-arbitrator commission to hear claims by either government or its nationals against the other government for loss, damage, or injury that was both related to their 1998-2000 war and that resulted from a violation of international law.
I will address three fact-finding issues before the Commission: the burden of proof, the standard of proof, and the types of evidence that the Commission found probative. I note that one of our panelists, Lucy Reed, served as an arbitrator on the Commission, as did a member of the audience, John Crook. Both are far better placed to explain the Commission's approach to these issues, but they no doubt feel constrained about revealing the inner thinking of the arbitrators. So I'll do my best in their stead!
BURDEN OF PROOF
The Commission's rules of procedure stated that "[e]ach party shall have the burden of proving the facts it relies on to support its claim or defense." (1) The rules did not provide further guidance on whether, after a prima facie case has been presented, the burden "shifts" to the respondent to rebut that claim.
Consistent with its basic rule, the Commission throughout its awards typically looked first to whether the claimant state had advanced evidence that appeared to establish its claim in accordance with the Commission's standard of proof. Where the evidence was insufficient, the claim would fail. Where the evidence appeared to be sufficient, the Commission would turn to whether the respondent had rebutted the claimant with its own evidence, although the Commission did not characterize this as "shifting" the burden. If there was no rebuttal evidence, then the claim would typically succeed. If there was rebuttal evidence, the Commission would engage in a weighing of the claimant's evidence against the respondent's evidence, so as to determine whether its overall standard of proof had been met.
Notwithstanding the burden of proof being placed on the claimant, in certain limited circumstances the Commission would accept an inability of the claimant to bring forward evidence in support of some aspect of its claim, when that evidence was wholly within the control of the respondent. If the claim concerned conduct that occurred wholly within the territory or control of the respondent, and relevant evidence should have been readily available to the respondent, a failure of the respondent to produce the evidence could result in an adverse inference against the respondent and in support of the claimant's position. (2) For example, the Commission, in its partial award relating to Ethiopia's aerial-bombardment claim, stated that
[f]rom the evidence available to it, the Commission cannot
determine why the bombs dropped by the third and fourth sorties hit
the Ayder neighborhood. All the information critical to that issue
was in the hands of Eritrea or could have been obtained by it, and
Eritrea did not make it available. In those circumstances, the
Commission is entitled to draw adverse inferences. (3)
STANDARD OF PROOF
The Commission's rules of procedure did not indicate the standard of proof that a party must meet to satisfy its burden, a lacuna that the Commission regarded as common in international practice. (4) Instead, this standard of proof (sometimes referred to as the "burden of persuasion") is typically resolved by the tribunal over the course of deciding its cases.
The Commission might have adopted a relatively low standard of proof, such as presentation by the claimant of just a "preponderance of the evidence" in support of its claim, in which case the question would simply be which party has more evidence in its favor than the other. …