Facts Matter: A Critical Analysis of the ICJ’s Fact-Finding Approach

On Feb. 26, the oral hearings on the Request for an advisory opinion in respect of the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (the Palestine Advisory Opinion) concluded before the International Court of Justice (ICJ). Twenty years ago, a similar situation unfolded. The UN General Assembly asked the court to issue an advisory opinion on the “legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem” (the Wall Advisory Opinion). Then, like now, the General Assembly’s request contained a number of legal assumptions embedded in the question itself, and then, like now, Israel chose not to participate in the proceedings, leaving the ICJ with the difficult task of completing the picture with a partial evidentiary record. With the issuance of the advisory opinion now expected imminently, this article addresses some of the challenges with the ICJ’s fact-finding approach and how this is likely to impact the court’s opinion.

The ICJ’s Approach to Fact-Finding

The ICJ has made its approach to legally presumptuous questions contained in requests for advisory opinions clear. In the Wall Advisory Opinion, the court held that a request to pronounce itself on the “legal consequences” arising from a set of actions “necessarily encompasses an assessment of whether or not [those actions] are in breach of certain rules and principles of international law.” Thus, the court found then that it was first called upon to determine whether such rules and principles had been and were being breached by the construction of the wall along the planned route, prior to determining the legal consequences of such breaches.

But there is a step that precedes even the determination of a breach of the law, and that is establishing the facts on which the alleged breach is based. It is an established principle of law, embodied by the legal maxim ex factis jus oritur, that legal consequences attach to particular facts, and unless and until those facts are known, the applicable law cannot be determined. However, the ICJ has employed a rather “reactive” approach to fact-finding that has resulted in repeated criticism ever since its judgment in the landmark Nicaragua case of 1986, in which the court was criticized for underutilizing its available fact-finding powers when faced with the non-appearance of the United States.

Following its judgments in the maritime delimitation cases of Qatar v. Bahrain and Cameroon v. Nigeria, the court was also criticized for drawing erroneous or inapplicable maritime boundaries arising from uncertain factual foundations, which—as James Gerard Devaney explained—could have been avoided had the court taken better advantage of its fact-finding powers. Similarly, Judge Hisashi Owada, in the Oil Platforms case argued that the court should have taken “a more proactive stance” to fact-finding in order to arrive at the full truth, when faced with the “presence of asymmetry in the production of evidence.” Indeed, the court has tended to simply react with a legal determination to the facts presented to it, rather than seeking to verify those facts.

In some cases, this has led to a significant overreliance on documentation provided by the United Nations. In the Wall Advisory Opinion, for instance, the ICJ based itself largely on the factual determinations contained in a report of the secretary-general and a dossier of accompanying documents. The UN General Assembly directed the court to give special consideration to the secretary-general’s report, but that did not “amount to a requirement for the Court to accept unconditionally the description of facts contained therein.” And yet, the court did exactly that, choosing not to proactively satisfy itself that what had been provided in the UN documentation was supported by credible and reliable sources.

This approach is not unique to advisory opinions, nor to cases of non-appearance. In the Armed Activities case, the court also “effectively delegated its fact-assessment to the United Nations” according to Devaney. When considering whether Uganda had violated its obligations under international humanitarian law and international human rights law, the court based its findings exclusively on the factual determinations as set out in various UN reports. This led some scholars to suggest that the court “does not enquire into the methods of UN fact-finding or question related issues such as the standard of proof applied.” The court used the same approach in the Bosnian Genocide case, where it stated that it had “established by conclusive evidence” the facts required to make its legal determinations regarding the perpetration of genocide, relying almost exclusively on a number of UN reports. Most recently, South Africa raised the issue once again in its case against Israel under the Genocide Convention, in which the court faced criticism from Judge ad hoc AharonBarak for dismissing in its entirety evidence submitted by Israel with respect to the provision of humanitarian assistance and, instead, relying on “several declarations by United Nations officials and reports by intergovernmental organizations” to issue its order of March 28, 2023.

The ICJ’s heavy reliance on UN-generated materials appears to be based on a presumption that UN documents are superior to other forms of secondary evidence because they are based on solid, objective, and impartial fact-finding. Some scholars have also adopted this view, arguing that factual statements made by UN organs are based on direct knowledge of a situation on the ground or on “international consensus about past events by states.” However, others have cast doubt on the reliability of UN documents and the court’s disproportionate reliance on them in cases like Armed Activities and the Bosnian Genocide case. For example, International Criminal Tribunal for the Former Yugoslavia (ICTY) Judge Van den Wyngaert remarked that it would have been “interesting to see what the result in the [Armed Activities case] would have been had the ICJ applied the same test [as the ICTY] to [reports of the UN Mission in the DRC] and other documentary evidence on which (some of) its holdings were based,” observing that UN documents should be subject to more “rigorous examination” by the ICJ. Teitelbaum has also cautioned that the fact-finding underlying the UN documents relied on by the court may be “flawed, based on selective or biased witness accounts, and lacking transparency” noting that in the Bosnian Genocide case, the court did not set up its own fact-finding commission or group of experts, which could have attempted the “formidable task of sorting through the contested UN reports.”

Despite these queries, some scholars have argued that because the ICJ is an organ of the UN it should, in the “spirit of collaboration,” treat factual qualifications made in UN materials as prima facie (based on the first impression) credible, and should have good reason to depart from such factual findings. However, it is hard to see how the court can remain independent and impartial, which is its duty as well as that of its judges, if it is required to afford a proportionately greater evidentiary weight to factual determinations of the political organs of the UN. As best summarized by Devaney:

Should an international court’s jurisdiction be defined by another organ it is difficult to imagine how that court could be described as independent in any way. The same might be said for factual determinations: if the Court’s ability to make such determinations were subject to those of another organ, that court’s judicial independence would be called into question.

The Reliability of UN Documentation

In the current proceedings of the Palestine Advisory Opinion, the UN General Assembly submitted a dossier to the ICJ containing more than 1,400 UN documents related to the Israeli-Palestinian conflict. Given the court’s heavy reliance on UN documentation in the Wall Advisory Opinion and other cases, it is likely that the judges will again attribute significant weight to the factual findings contained in some of these materials. As a result, the presumed superiority of these documents warrants renewed scrutiny.

While the General Assembly request, and many of the written pleadings in the Palestine Advisory Opinion, were submitted prior to the Hamas attacks on  Oct. 7, 2023, no advisory opinion on the legal consequences of Israel’s policies in the Occupied Palestinian Territory could possibly ignore the current military operation in the Gaza Strip. Indeed, the General Assembly resolution containing the request makes numerous references to human rights and international humanitarian law violations allegedly committed during “successive military operations” in Gaza, and several states supplemented their written submissions with renewed comments after Oct. 7, 2023. It is thus prudent to begin the analysis of the reliability of UN documentation with a review of documents specifically relating to the current operation in Gaza.

One example relates to reports on casualty figures. The number of casualties in Gaza are disseminated internationally by the Hamas-run Gaza Ministry of Health and therefore cannot be independently verified. It is also notable that these casualty figures do not distinguish between civilians and combatants. Nevertheless, international organizations, including the UN, have relied on these figures in prior military operations and have continued to do so in the current military operation. In November 2023, the UN secretary-general’s spokesperson confirmed that the UN has “no reason to disbelieve” the casualty figures coming out of Gaza.

Since then, however, no less than five statistical analyses have concluded that the casualty figures deriving from Gaza have very likely been fabricated or manipulated. Moreover, these figures are difficult to reconcile with Israel’s claim that at least 15,000 combatants have been killed since the start of the operation. All civilian casualties in war are devastating, and it feels unpalatable to discuss human deaths through the lens of statistics. But it is important to raise in this context because all civilian casualties in war do not result in violations of international law. To determine that, one at least needs to have reliable details of the situation on the ground. Live conflict situations, particularly in environments marked by fear of reprisals, such as the Gaza Strip, make this task very difficult. And it is particularly difficult in the current military operation, as very few international monitoring bodies, if any, have had access to the strip since the start of the war. Thus, despite its best efforts to be comprehensive and objective, the UN is not immune from the inherent limitations of fact-finding in live conflict situations. Its methods to obtain the facts may still be flawed and its conclusions unreliable.

Looking beyond the operation in the Gaza Strip to the West Bank and East Jerusalem, there is a systematic undermining of the security risks Israel faces in the underlying UN documentation, which paints only a partial picture. This issue was raised by Judges Thomas Buergenthal, Pieter H. Kooijmans, and Hisashi Owada in the Wall Advisory Opinion, and it persists today. Giving fair consideration to Israel’s security concerns is arguably even more relevant today, as the Wall Advisory Opinion and several of the UN documents relied on by the General Assembly and participating states in the current proceedings were issued prior to Israel’s withdrawal (including all settlements) from the Gaza Strip in 2005, and Hamas’s subsequent takeover. This is a significant point. Hamas’s activities in the Gaza Strip post-2005—not just the Oct. 7, 2023, attacks but also the highly sophisticated network of tunnels it built and the arsenal of rockets it acquired and fired indiscriminately into Israel over the past 20 years—demonstrate the very real danger for Israel of evacuating Palestinian territory without having effective arrangements in place to safeguard its borders following such withdrawal.

Additionally, the concerns raised by Israel and others regarding the unreliability of the sources underlying the findings of various UN Commissions of Inquiry give rise to questions regarding the prima facie credibility of such documents. The latest Report of the Pillay Commission of Inquiry, for example, does not disclose most of its sources but refers repeatedly to findings made by various local nongovernmental organizations (NGOs). There are several potential drawbacks in relying on fact-finding carried out by NGOs, including risks relating to lack of witness interview skills and training, the use of methodologies more suited to human rights activism than judicial proceedings, and the influence of donor interests leading to biases. This does not mean that NGO reports should be dismissed in their entirety—but when they are relied on, their sources and fact-finding methods must be able to withhold scrutiny. The ICJ held in the Nicaragua case that information from secondary sources should be treated with caution, even if they appear objective. But there is a fundamental contradiction in treating UN documents as prima facie reliable, while acknowledging that the secondary sources on which they are based may be wholly unreliable.

Moreover, resolutions from the UN Security Council and General Assembly are drafted, sponsored, and voted on by states, which may have a number of political reasons for voting a certain way. For instance, the commentary to draft Conclusion 12 of the ILC Draft Conclusions on Identification of Customary International Law acknowledged that “the attitude of States towards a given resolution […] expressed by vote or otherwise, is often motivated by political or other non-legal considerations” and should be treated with caution. Though this was in the context of ascertaining the existence of opinio juris (an opinion of law) from such resolutions, it would be equally applicable when using such resolutions to make legal determinations about particular facts in judicial proceedings. For instance, out of the 32 states that drafted and sponsored General Assembly Resolution 77/247 (which condemns various acts of the Israeli government and contains the request for the Palestine Advisory Opinion), two-thirds do not have any diplomatic ties with Israel, and several of them do not recognize Israel as a state. Therefore, it would certainly not be surprising that these states may have political reasons to vote in favor of a resolution condemning Israel.

What’s more, the Security Council has made inaccurate findings in the past. In Resolution 1530(2004), it “incorrectly attributed the Madrid bombings to the ‘terrorist group ETA’ […] when in fact it later emerged that the attacks were the work of an Al-Qaeda cell.” Moreover, the Security Council has also historically been criticized for having “inadequate” fact-finding capabilities with no established mechanism and for basing its decisions on one-sided information supplied by specific states. Judge Stephen M. Schwebel, in the Nicaragua case, cautioned against the ICJ over-relying on Security Council documents. Noting that the Security Council does not “act as a court” in making determinations of fact, he concluded: “[i]n short, the Security Council is a political organ which acts for political reasons. It may take legal considerations into account but, unlike a court, it is not bound to apply them.”

The concerns raised above highlight the need for the ICJ to ensure it has a complete picture of a factual situation before a determination of a breach of law can take place, and certainly before the legal consequences of such a breach can be established. One need look only as far as the Supreme Court of Israel’s decision in Mara’abe to emphasize this point. Just a year after the Wall Advisory Opinion, the Supreme Court of Israel reached a different conclusion on a substantially similar question. It reviewed the factual findings in the UN reports on which the ICJ had based its conclusions and found that the information contained in them was “far from precise,” and in some cases even contradictory. After reviewing and weighing the evidence from both parties, the court then found, in contrast to the ICJ, that the construction of the wall was legal in principle because it had been constructed out of security concerns rather than political aspirations to annex land. However, specific sections of the wall had been constructed unlawfully because the state made insufficient efforts to seek an alternative location, which would have had less injurious effects on the rights of the local residents while nevertheless addressing the security concerns. This is exactly the sort of conclusion that Judge Buergenthal envisioned that the ICJ might have come to, had it examined all relevant facts of the case. 

The Way Forward

With the imminent Palestine Advisory Opinion, there is a real risk that the court will, once again, make a legal determination based on disputed or partial facts. This does not necessarily mean that the court should decline to exercise jurisdiction. But if it chooses to exercise jurisdiction, it should amend its approach in two ways.

First, the court should revise its approach by treating UN documentation in the same way that it would other secondary sources—with caution and by inquiring into the methods of fact-finding and their potential limitations. This is particularly the case where sources are undisclosed or appear to be secondary.

Other international courts, for example, the International Criminal Court (ICC), have treated documents originating from the UN in the same way as other secondary sources—with caution and as corroborative rather than direct evidence. The fact that evidence before the ICC is subject to a different standard of proof is not, at least in this author’s view, a sufficient reason for the ICJ to depart entirely from this approach.

Second, the court should look beyond the General Assembly’s dossier and seek to obtain an accurate and complete picture by taking advantage of the fact-finding powers contained in its statute. Some of these, such as appointing experts (Article 50) or conducting site visits (Article 44(2)), would require significant costs and resources and would likely be difficult for the court to implement under its current budget. However, when the General Assembly, which is responsible for adopting the annual budget of the ICJ, requests from the court an advisory opinion on a complex question requiring a significant factual investigation, there is an argument to be made that the General Assembly should increase the court’s budget to allow it to carry out such investigation appropriately.

There are other powers, namely those set out in Articles 34(2) and 66, that would not require significant resources before they could be put into use. Article 34(2) of the ICJ Statute empowers the court to request “information relevant to cases before it” from public international organizations, and Article 66 authorizes international organizations that the court considers “likely to be able to furnish information on the question” to participate in advisory proceedings. Where, as in this case, the court has before it a large number of documents originating exclusively or largely from one international organization, such as the UN, it could seek to complete the evidentiary picture by requesting documents regarding key facts in dispute from other international organizations. In this case, organizations that Israel either is a member of or has relations with, such as North Atlantic Treaty Organization, the Organization for Economic Cooperation and Development, or the EU, might have relevant documents to provide. It could also look at some of the information provided by NGOs under Practice Direction XII. Though all of these documents, in particular those originating from NGOs, would need to be appropriately scrutinized, they could nevertheless reveal facts and primary sources not otherwise presented to the court.