Amicie curiae presentados por Americas Watch Center for Justice & International Law
Washington, April 22, 1993
The Honorable Hector Fix-Zamudio
Inter-American Court of Human Rights
San Jose, Costa Rica
On behalf of Americas Watch and the Center for Justice and International Law, we hereby submit the attached brief amicus curiae in the case of Gangaram Panday v. Suriname.
The organizations we represent have an interest in the outcome of this case and, more particularly in the development of procedural and substantive standards that can result from it. They are public interest associations dedicated to the promotion and defense of human rights in our hemisphere, and in that pursuit they have frequently appeared before this Honorable court on behalf of victims of human rights violations. They are, therefore, interested in contributing to the progressive development of international judicial protection of human rights.
Thank you in advance for your attention to the legal arguments set forth in this brief, and for presenting them to the Court as it considers the merits of this case.
Juan E. Méndez Jose Miguel Vivanco
Executive Director Executive Director of CEJIL
INTER-AMERICAN COURT OF
CENTER FOR JUSTICE & INTERNATIONAL LAW
In Re: Gangaram Panday Case
(Suriname), No. 10.274
as Amicus Curiae
Juan E. Méndez, Counsel
Jose Miguel Vivanco, Counsel
Dionne Thompson, JD Candidate, Univ. of Virginia Law School
on behalf of:
Americas Watch CEJIL
1522 K Street, NW #910 1522 K Street, NW #800
Washington, DC 20005 Washington, DC 20005
(p) 202-371-6592 (p) 202-371-6592
(f) 202-371-0124 (f) 202-371-8032
STATEMENT OF THE CASE
In this proceeding, the Court has been asked to determine whether the Government of Suriname is responsible for violations of the provisions of the American Convention on Human Rights (hereinafter ¬Convention¬) pertaining to the obligation to respect rights (Article 1), the obligation to incorporate rights contained in the Convention into domestic law, (Article 2), the right to life (Article 4), the right to humane treatment (Article 5), the right to personal liberty (Article 7) and the right to judicial protection (Article 25). 
In case 10.274, the Commission alleges that agents of the Suriname Government arbitrarily arrested Asok Gangaram Panday, a Surinamese citizen at Zanderij Airport in Paramaribo, upon his return from the Netherlands on November 5, 1988; that Gangaram Panday was then tortured and abused in detention centers maintained by the Surinamese authorities; and that Gangaram Panday was arbitrarily executed by these authorities without any adequate explanation for his detention or execution.
At about 8:00 p.m. on November 5, 1988, Asok Gangaram Panday was detained by the military police at Zanderij Airport. members of the victim's family were present at the airport and inquired about him throughout the period of detention. At 4:00 a.m. Asok was removed from the airport detention facility. The victim's brother, L. Gangaram Panday, was present and attested to the fact that his brother was visibly upset and when approached, he said, ¬I have problems¬. The victim was taken to another part of the airport. The victim's brother and the victim's wife were told to go home and call later that morning, which they did.
Upon further inquiry the following evening, L. Gangaram Panday was told that the investigation had been completed and that Asok was to be transferred to Fort Zeelandia prison. The reason given by the Commander for his arrest was expulsion from Holland. Two days later the victim's brother was informed of his death by suicide. 
The Suriname Government has alleged that Mr. Panday committed suicide, but has not submitted evidence to support this allegation. The government has referred to an autopsy report confirming the suicide, but has failed to produce this report. In addition to these developments, the body of Asok Gangaram Panday was cremated, preventing further investigations.
The only autopsy reports submitted to the Commission declared Asok Gangaram Panday dead by violence or asphyxiation. A videotape of the body taken by the brother of the deceased and analyzed by Dr. Richard Baltero of the National Institute of Health was admitted into evidence; it confirms the asphyxiation analysis. furthermore, the Suriname Government's own pathologist/anatomist, Dr. M. A. Vrede, has attested to the use of force against Asok, particularly in the area of the victim's genitalia .
The Commission further has submitted evidence to show that requested investigations and procedures that were to be performed by the Suriname Government have not been adequately undertaken. The government has not confirmed where the death took place, whether at Zanderij or Ft. Zeelandia, has not directly addressed the question of torture, has denied the petitioner's assertion of the facts, and has not replied to questions about the belt Asok Gangaram Panday allegedly used to hang himself. Moreover, the government has enacted an amnesty decree freeing those responsible of all criminal liability. As a result, there has been an exhaustion of domestic remedies. 
Investigations by non-governmental organizations into the practices in Suriname bear out a history of extra judicial killings in the country, continuing into the recent past. In 1990 at least three people died in circumstances suggesting that they were extra judicially executed.  In the fall of 1991, the United Nations Special Reporter on summary or Arbitrary Executions sent a letter to the Suriname Government asking for an explanation of one of the murders that occurred in 1990. The government had not responded by the end of 1991.  This lack of cooperation from the Suriname Government poses a serious obstacle to the protection and promotion of human rights found in the Convention.
The challenge faced by the Commission before this Court, informed by the all the circumstances, is to establish that Suriname is in fact responsible for the violations of the Convention in the instant case. To assist the Court in this determination on the issue of liability, we address below principles which, we submit, should guide the Court in evaluating the standard of proof and the evidentiary burdens of the parties. We also submit that although extra judicial executions are distinguishable from disappearances, current developing doctrine and expert opinions on extra judicial executions show a strong link between the two that demands similar, but not necessarily the same treatment in establishing the evidentiary burdens on the parties.
SUMMARY OF ARGUMENT
This Court should weigh the submitted evidence in this case against Suriname by a preponderance of the evidence standard. A reading of this sort would be fair given the broad scope of Article 63(1) of the Convention and Article 45(2) of the Rules of the Court which require only that the Court, should it find the Convention violated, rule in favor of an injured party. since the Convention specifies no standard of proof, this Court may also look to other jurisdictions to observe general practice in international tribunals, which often require the least stringent showing of evidence to shift the burden of coming forward with additional evidence. This is a preponderance of the evidence standard. In assessing this burden, tribunals consider the seriousness of the allegations against a state or other party, and the totality of the circumstances in the case. Based on these considerations, the evidence in the instant case should elicit no more than a preponderance standard.
The Commission need only establish a prima facie case of a Convention violation. Such a case is made when the evidence is sufficient to establish grounds for a reasonable belief in the truth of the allegation. At this point, all the circumstances of the case must be evaluated to determine which evidentiary standards will be imposed. Normally, the state against whom an allegation is made bears the duty of coming forward with rebutting evidence. Cooperation from the state party directly affects the consequences of this evidentiary burden.
Direct evidence should not be insisted upon by international tribunals in extra judicial execution cases. Circumstantial evidence and inferences are perfectly appropriate in case adjudication. This is especially necessary when a state holding a monopoly over the information in a case refuses to cooperate. Frequently the state is the sole repository of evidence. Negative inferences may be drawn when states fail to cooperate. As long as the circumstantial evidence or inference is reasonably supported, it should be admitted.
In the absence of cooperation, when cooperation could easily be considered evidence of good faith, more serious consequences should flow from the state's unwillingness to meet its burden. A state could rebut a negative inference or presumption by producing medical reports, inquiry reports, details of alleged charges, copies of court proceedings and reports on the questioning of officials. Intergovernmental organizations have suggested that these steps be required from governments specifically in the context of summary or arbitrary executions.
VIOLATIONS OF THE CONVENTION BY
THE GOVERNMENT OF SURINAME MAY BE
ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE
In this proceeding, the Court is exercising its contentious jurisdiction under Article 63(1) of the Convention, which provides:
¬If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party¬.
For the following reasons, we submit that ¬finds¬connotes no more than a preponderance of the evidence standard.
The Convention and the Rules of the Court  are silent on the quantum or character of proof needed for the Court to find that there has been a violation.  As a result, there is some room for interpretation on this subject.
The Court can weigh evidence freely without the rigid constraints of a quantum of proof necessary to support its decision.  In this endeavor, however, international protection of human rights should not be confused with criminal justice. States do not appear before the Inter-American Court as defendants in a criminal action.  In common law jurisdictions, the rigorous ¬beyond a reasonable doubt¬standard is used in criminal cases when penal sanctions are part of the judgment.  In civil matters, a preponderance of the evidence standard is used. This Court agreed with that distinction, applying a less rigorous standard in the disappearance cases against Honduras. 
The International Court of Justice faces identical problems with respect to standards of evidence. As one commentator observed:
The Court's function in establishing the facts consists in its assessing the weight of the evidence produced in so far as is necessary for the determination of the concrete issue which it finds to be the one which it has to decide. For this reason, there is little to be found in the way of rules of evidence... 
The language of the Convention, the Rules of the Court and the insightful comment on the World Court above all call for weighing the evidence, but do not go so far as to specify the actual weight accorded evidence in adjudication in the circumstances of the instant case. This should be understood to convey a preponderance of the evidence standard, as nothing more than this is required. If the scales tip in favor of one side or the other, however decisively, that side prevails. 
Other human rights adjudicative bodies have endorsed this approach to the same issues. In a series of cases brought against Uruguay before the Human Rights Committee  on the issues of disappearances and extra judicial executions, the Committee applied a ¬balance of the probabilities¬test.  According to one source, a balance of the probabilities is not so demanding as a preponderance of the evidence standard, which in turn suggests something more than ¬more probable than not¬.  The Committee went on to qualify the standard, adding that flexibility within the standard depended on the seriousness of the allegations. The Uruguay cases involved a particularly recalcitrant and uncooperative government. 
The European Court of Human Rights has little to offer in the way of guidance. In Ireland v. United Kingdom, the European Court assessed the evidence with a beyond a reasonable doubt standard. That standard, however, had been suggested to the Court by the Commission in the individual case and therefore is not clearly a general principle of that court.  Of even less use to the instant case is the European Court's approach since the Inter-American Court rejected this exacting standard in all three of the Honduras cases.
In the landmark Velásquez Rodríguez Case against Honduras, this Court explained how the evaluation of evidence in disappearance cases was to be made. A two step approach for resolving the burden of proof dilemma was used.  If there is an official practice of disappearances carried out by a government, or tolerated by a government, coupled with a demonstrable link between the victim and the practice, the complainant's burden is met.
In the unsuccessful Fairén Garbi and Solís Corrales Case, this Court described what could be called an ¬establishing the truth in a convincing manner¬standard.  Thomas Buergenthal noted that the test was stricter than a preponderance of the evidence standard, but less strict than the beyond a reasonable doubt requirement. 
In effect, the petitioner in this case failed the second prong of the aforementioned test. 
Given that the Rules of the Court that call for no more than a weighted standard, and given the Human Rights Committee's less demanding approach to evidentiary standards, and this Court's rejection of the highest standard of proof of disappearances, all indicate that a preponderance of the evidence case as well as in all cases of extra judicial executions. The conduct of the Suriname Government, taken together with consideration of the evidence as a whole, make such a standard feasible. An even lower standard of proof than that set forth in the Honduras cases is appropriate if one looks at the evidence in the instant case which will be further discussed infra. Procedural fairness and the interests of this Court require only that any finding of liability be based upon a preponderance of all the evidence. 
THE COURT MAY RELY ON CIRCUMSTANTIAL
EVIDENCE AND REASONABLE INFERENCES
As we demonstrate below, there is ample authority which suggests that an international tribunal, having broad latitude in matters of evidence, need not and should not rigidly insist on direct evidence of all elements of the case; circumstantial evidence and reasonable inference have their proper place in international adjudication.  Before continuing, however, it is important to set out the features of the instant case that distinguish extra judicial executions from disappearances. Although disappearance and extra judicial execution cases rely to some extent on circumstantial evidence and inferences of government responsibility, the nature of the evidence in the instant case shows that separate evaluation, and therefore a revised burden of proof, is necessary.
A. Extra judicial executions and disappearances are closely related, but admit of varying degrees of evidence
Safeguards against due process and judicial protection violations have become clear and binding on states with the creation of resolutions, conventions and declarations on human rights to which states have acceded. Intergovernmental organizations such as the United Nations have created the Working Group on enforced or Involuntary Disappearances. This group was instrumental in providing statistical research on the frequency and expansiveness of this unique kind of human rights abuse.  With time, it became clear that separate attention should be given to extra judicial executions.
In 1993, Amnesty International pointed out that initiatives against torture and disappearances are relevant to extra judicial executions because these violations are closely related.  Of the Working Group on Forced or Involuntary Disappearances, they noted that the work of this group concerns the fate of individuals who may in fact be the victims of extra judicial executions.  These executions occur even when there is not a disappearance case at issue.
In 1981, the United Nations General Assembly passed a resolution relating to' arbitrary or summary executions.' A follow-up to this resolution came in 1982, which provided for a special reporter to examine questions related to summary or arbitrary executions.  Formal recognition of this arm of the Human Rights Commission came in 1989, when the Economic and Social Council recommended that the ¬Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions¬ be taken into account and respected by governments. The United Nations General Assembly endorsed these principles in December, 1989.  In pertinent part, the document calls for the impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, ...with adequate autopsy, collection and analysis of all physical and documentary evidence.  Governments frequently and typically, indeed, as in the instant case, are uncooperative in these investigations. These Principles are not by themselves the source of any obligation on the part of states, since the UN document that contains them is not a treaty. Nonetheless, their adoption by the General Assembly gives them the character of an authoritative doctrinal contribution to an understanding of a government's obligations in a case of extra-legal execution. As such, they provide guidelines on how to interpret a government's lack of appropriate investigation or prosecution of a murder committed by its agents.
These requirements set out by the United Nation's Economic and Social Council highlight one of the main distinctions between extra judicial executions and disappearances; namely, that more frequently with the former, there are bodies recovered by the families and possibly some official concession that the victim was in the custody of the government or military when he or she died. Often there is stronger circumstantial evidence in these cases which in turn makes a less stringent burden of proof necessary.
B. International Tribunals Appropriately Rely Upon Circumstantial and Inferential Evidence in Reaching Conclusions of Fact
International courts and noted commentators consistently have recognized that reasonable inferences, presumptions and circumstantial proof may provide an appropriate evidentiary foundation for an award under international law.  Toward this end, international tribunals must have a complete freedom of appreciation which permits them to evaluate evidence according to the normal or abnormal circumstances in which this evidence has been gathered.  This would include direct and indirect evidence. As once noted by Professor Rosenne, indirect evidence is admitted in all systems of law and its use is present in international decisions. 
In the Godinez Cruz case, this Court observed that the practice of international and domestic courts shows that direct evidence, whether testimonial or documentary, is not the only type of evidence that may be legitimately considered in reaching a decision. circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the facts. 
Other international tribunals have encountered similar situations in which inference drawing meets approval. In the Corfu Channel Case, the International Court of Justice acknowledged that states can make access to evidence nearly impossible. As a result, complainants should be allowed a more liberal recourse to inferences of fact and to circumstantial evidence.  In the International Iran-United States Claims Tribunal, notes Charles Brower, common sense approaches are necessary. When a party has a monopoly over the evidence, the failure of that party to produce such evidence gives rise to a justifiable inference that such evidence, if produced, would be adverse to that party.  A noteworthy caveat to adverse inferences is that in international tribunals, states cannot avail themselves of the right against self-incrimination. First, the right is not available in non-criminal proceedings. Second, even if the right were available, only individuals could invoke it.
The Inter-American Court has recognized in its own jurisprudence the potential disadvantages of having hold-out states before the Court. When a government which controls the means to verify acts occurring on its territory fails to assist the fact-finding process, it is proper for the Court to take this consideration into account in weighing the evidence before it and in determining which of the parties has met its burden of proof. 
But the Honduras cases are distinguishable from the instant case in an important respect. In those cases, the Court drew inferences from the established patterns of action, or modus operandi of the Honduran government. such an evidentiary burden does not rest with the Commission in the instant case. In disappearance cases, the petitioners are functioning with a dearth of information regarding the whereabouts of their family members. In the instant case, no such presumption need be made.
The death of Asok Gangaram Panday occurred while he was in the custody of the Suriname government. There is evidence of the victim's custody in the form of eyewitness testimony. A government autopsy report linking the authorities to the victim is part of the evidence. Dr. Vrede, the Suriname government's pathologist/anatomist, testified before the Commission as to the cause of death. this is strong circumstantial evidence that the government should have to overcome. Indeed, Asok Gangaram Panday can be more squarely placed with the Surinamese officials. this fact should be reflected in the burden of proof evaluation.
By choosing to rely on extremely reasonably-supported circumstantial and inferential evidence of this kind, this Court can address a serious policy concern, that is, preventing the lack of cooperation of a state in extra judicial execution investigations from destroying the effective functioning of the Convention. 
UPON A PRIMA FACIE SHOWING BY THE
COMMISSION, SURINAME SHOULD BEAR THE
BURDEN OF PROOF
The Commission has presented to the Court substantial evidence that Asok Gangaram Panday was unjustifiably detained and extra judicially executed; that Suriname failed to conduct a good faith investigation into the death; that the government has freed those agents of the government who committed the killing from any criminal liability; that Suriname failed to cooperate or provide meaningful information in response to the Commission's repeated requests for a investigation or explanation of the circumstances of the death, thus seriously jeopardizing the prospective effect of the Convention's provisions against human rights abuses.
Should the Court conclude that these elements of proof establish at the least a prima facie case of Suriname's violation of the relevant Convention provisions, it would be justified in placing upon Suriname the burden of showing that it was not in fact responsible for the death of Asok Gangaram Panday. Requiring this sort of evidentiary burden is consistent with generally recognized principles of international human rights law, and would prevent the disregard of the substantive provisions of the Convention.
A. As a Party before an International Tribunal Suriname is obligated to Cooperate in the Production of Evidence
International tribunals provide a host of cases that refer to the obligations and evidentiary responsibilities of parties. These are particularly relevant when one side advocates the interests of an individual and the other side, a state.
The Court recognized this relative disadvantage when it decided the Velásquez Rodríguez Case, stating that where state cooperation in necessary, a state cannot rely on a Commission's failure to present evidence in order to hamstring the proceedings.  In keeping with this policy, the Human Rights Committee systematically takes what may often be a factual inequality in evidential terms between the parties into account.  This illuminates the tribunal's path in determining how much is required of a state. Other cases have explained what level of cooperation is necessary.
In the Parker Case, the Mexico-United States General Claims Commission found that it was the duty of the agents for the State parties ¬to cooperate in searching out and presenting to this tribunal all facts throwing any light on the merits of the claim presented.  More recent cases echo this duty. the European Commission on Human Rights  and the Human Rights Committee have both underlined this requirement in cases involving inhumane treatment or extra judicial killings by governments. 
Leading scholars of evidence and judicial procedure in international adjudication have endorsed the teaching of the Parker Case. According to Witenberg, ¬it is incumbent on litigating states to collaborate in the proof.¬  Durward Sandifer, in his respected treatise on evidence and international tribunals, notes approvingly the preference of international tribunals for full disclosure by each party of the evidence in its possession ¬as a condition precedent to an award.¬ 
For some, this obligation of cooperation in the production of evidence derives from the solemn nature of international law itself. As one noted international arbitrator observed, international adjudication should not be reduced to the plane of common litigation between adversarial parties. 
Others arrive at this duty of cooperation from a practical perspective. International tribunals generally lack the power to compel the attendance of witnesses or the production of documentary evidence.  An international tribunal therefore is particularly dependent for the integrity of its determinations on the diligence of the parties before it in gathering and producing evidence. 
Given the nature of the fundamental human rights to be defended by this Court and as set forth in the Convention, it is imperative that state parties cooperate in producing any evidence within their possession.
B. International Law Favors Drawing adverse Inferences From Suriname's Failure to Produce Contradictory Evidence
While international tribunals may not as a general matter rely heavily on technical rules of evidence, they have recognized the place of informal rules, such as a shifting of the burden of production, with respect to the evidence in international adjudication.  Methods of evaluation of this burden follow several logical steps
A claimant has the initial burden of producing evidence to support the factual allegations of its case.  But it need not give irrefutable evidence of the allegations.  The evidence should show, rather, that there is sufficient ground for a reasonable belief in its truth, rebuttable by evidence to the contrary, or a prima facie case.  The Human Rights Committee, for example, has only required a prima facie case at the admissibility stage of cases. 
In the Inter-American system, the duty of producing rebutting evidence lies with the respondent, without shifting the entire burden of proof. If the respondent does come forward with rebutting evidence, the Commission still must prevail by the appropriate standard, which we advocate to be the preponderance of the evidence standard in the instant case. Procedural steps of this sort will place a fair burden on states, but will not encourage a state's belief that it is being subjected to criminal adjudication and an evaluation of guilt.
The Rules of Procedure of the Inter-American Court provide support in this jurisdiction for this type of construction. Article 24 (1) initially authorizes the court to take whatever measures are necessary to complete consideration of the case when a party fails to appear in or to continue with a case. Evidence may be taken motu proprio, subject to the provisions of Article 42 of the rules. Article 42, in pertinent part, authorizes the Court to proceed with the consideration of a case, notwithstanding the notice of discontinuance of the case. Authorization of this sort necessarily implies that the Court may require a state to cooperate in the production of evidence or accept the consequences of its actions. 
This Court endorsed this view of prima facie cases and burden shifting in the production of evidence when it decided the Velásquez Rodríguez Case. Fairness concerns require, inter alia, a shift in the evidentiary burden to a state once a prima facie case of a violation has been established. Presumptions in favor of complainants are necessary in the case of recalcitrant states.  Note, however, that such presumptions merit the most prudent application. Overuse of this doctrine could result in damage to the weight of the case. 
In the strongest application, presumptions in favor of complainants can result in complete liability on behalf of a state, following evaluation of the individual circumstances of a case. The Human Rights Committee adjudicated a series of cases against Uruguay in which the burden of proof was assessed and explained in what are informative terms. In Bleir v. Uruguay, the petitioner had been arrested, detained incommunicado, and subjected to ill treatment. These allegations drew support from statements made by family members and eyewitness testimony. Uruguay categorically denied all responsibility in a rather brief manner. The Commission responded with a finding of liability as the state party's submission was ' totally insufficient.'  Where the author of a communication has submitted evidence supported by substantial witness testimony; where further clarification depends on information exclusively in the hands of the state, the Committee will consider the evidence substantiated in the absence of response from the state. 
In Santullo (Valcada) v. Uruguay, Uruguay adduced no evidence that the petitioner's allegations of ill treatment had been duly investigated. Once again, the state's general refutations were not enough. A state should investigate the allegations in accordance with its laws. 
In subsequent decisions by the Human Rights Committee, states have been apprised of the appropriate evidence required to overcome the burden it receives once the complainant has illustrated a prima facie case. for example, a state should produce medical reports, inquiry reports, details of alleged charges, copies of court proceedings, and reports on the questioning of officials.  This definition of the burden of proof has since become an established part of Human Rights Committee jurisprudence, to which the Committee refers frequently. 
The Court may find for the Commission if it determines that a preponderance of the evidence taken as a hole, together with all reasonable inferences drawn therefrom, establishes Suriname's violation of the Convention. Upon a prima facie showing by the Commission, the Court should require Suriname to prove that it is not responsible as charged.
May 1, 1993
José Miguel Vivanco Juan E. Méndez
Center for Justice Americas Watch
and International Law
This case was submitted in report number 4/90, case 10.274 (Suriname), Inter-American Commission on Human Rights, OEA/Ser.L/V/II.77, doc. 24, 8 (May 15, 1990).
Id. at 1.
Id. at 2-6
Id. at 7-8.
Amnesty International, Amnesty International Reports, 215 (1991) (military reportedly involved in all three executions).
Human Rights Watch, Human Rights Watch World Report, 324 (1992).
Rules of the Court, Article 45 (2) which provides: Where the Court finds that there is a breach of the Convention, it shall give in the same judgment a decision on the application of Article 63(1).
Brief for the Inter-American Commission on Human Rights at 15, Velásquez Rodríguez, Godinez and Fairén Garbi and Solís Corrales Cases, (Merits), I/A Court H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988; Godinez Cruz Case, Judgment of January 20, 1989; Fairen Garbi and Solís Corrales Case, Judgment of March 15, 1989.
I/A Court H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988, in Human Rights: The Inter-American System. 25.5, 123, 166, para. 127.
Id. at 168, para. 134.
Brief, supra note 8, at 17.
Velásquez Rodríguez, supra note 9, at 167, para.128.
2 Shabtai Rosenne, The Law and Practice of the International Court, 580 (1965).
Brief, supra note 8, at 16.
The Committee derives its authority from the International Covenant on Civil and Political Rights.
Dominic McGoldrick, The Human Rights Committee, Its Role in the Development of the International Covenant on Civil and Political Rights, 150, para. 4.36 (1991).
Sir Richard Eggleston, Evidence, Proof and Probability, Second Edition, 129, (1983).
Human Rights Committee, supra note 16, at 148, para. 4.31.
In Ireland v. United Kingdom (Irish Case) (European Court of Human Rights, Jan. 18, 1978), reprinted in 58 International Law Reports 188, 264 (1980) [hereinafter Irish Case].
Thomas Buergenthal, Judicial Fact-Finding: Inter-American Human Rights Court, in Fact-Finding Before International Tribunals, 261, 268 (1992).
Fairén Garbi and Solís Corrales Case, Judgment of March 15, 1989, In Human Rights: The Inter-American System, 25.6, 3, 44-45, para. 132.
Buergenthal, supra note 20, at 271-72.
This case was one of three argued before the Court against Honduras. The practice of disappearance by the Honduran authorities had been clearly established by the petitioners, but the Court felt that the circumstances under which Mr. Fairén and Ms. Solís disappeared could not be clearly linked to that practice.
 Brief, supra note 8, at 18.
Id at 19.
 Report of the [United Nations] Working Group on Enforced or Involuntary Disappearances, U.N. doc. E/CN. 4/1435 (Jan. 26, 1981).
 Amnesty International, Political Killings by Governments, 89 (1983). See also habeas corpus and amparo, Articles 4, 7 and 25 of the Convention.
 Id. at 96.
 United Nations General Assembly Resolution 36/22, 9 November 1981. The language of this resolution is not clear, but in part it states that ¬the United Nations: 1. Condemns the practice of summary and arbitrary executions. 2. Deplores strongly the increasing number of summary executions in different parts of the world.¬
 Amnesty International, Political Killings, supra note 27, at 88 (resolution of the United Nations Human Rights Commission).
 Amnesty International. Amnesty International Reports, 129 (1990).
 United Nations, Economic and Social Council, Committee on Effective Prevention and Investigation of Extralegal, Arbitrary and Summary Executions; Statement Submitted by 15 plenary meeting, 24 May 1989, UN Doc, 1989/65, E/1989/INF/7 (1989).
 Brief, supra note 8, at 27.
 George Pinson (France) v. United Mexican States, (France/Mexico Claims Commission, Apr. 24, 1928), reprinted in 5 Reports of International Arbitral Awards 327, 414 (1952).
 Shabtai Rosenne, The Law and Practice of the International Court, 582-83, (1985).
 Godinez Cruz Case, Judgment of January 20, 1989, In Human Rights: The Inter-American System, 25.5, 255, para. 136.
 Corfu Channel Case (Merits), 1949 International Court of Justice Reports 4, 18 (Albania's strict control over the strait led to the inference that the state laid mines in those waters).
 Charles N. Brower, The Anatomy of Fact-Finding Before International Tribunals: An Analysis and a Proposal Concerning the Evaluation of Evidence, in Fact-Finding Before International Tribunals, 147, 151 (1992).
 Godinez Cruz Case, supra note 36, at 256, para. 142-43.
 McGoldrick, supra note 16, at 149, para. 4.33.
 Velásquez Rodríguez Case, supra note 9, at 168, para. 135.
 McGoldrick, supra note 16, at 148, para. 4.31.
 United States of America on behalf of William A. Parker v. United Mexican States (Mexico-United states General Claims Commission, Mar. 31, 1926) 21 American Journal of International Law 174, 177 (1927).
 Jochen A. Frowein, Fact-Finding by the European Commission of Human Rights, in Fact-Finding Before International Tribunals, 237, 248 (1992) (party is required to furnish the necessary assistance).
 McGoldrick, supra note 16, at 149, para. 4.31.
 Joseph C. Witenberg, La theorie des preuves devant les juridictions internationales, 56 (II) RECUEIL DES COURS, 45-46, n. 7 (1936). Translation, brief, supra note 8, at 30.
 Durward V. Sandifer, Evidence before International Tribunals, 117 (1975).
 Pinson Case, supra note 34, at 413 (observation of Presiding Commissioner Verzijl).
 Velásquez Rodríguez Case, supra note 9, at 168, para. 137 (The Court must use what documentary evidence Honduras has presented; Court is compelled to proceed.).
 Brief, supra note 8, at 36.
 Id. at 37.
 Witenberg, supra note 46, at 48.
 Joseph C. Witenberg, Onus probandi devant les jurisdictions arbitrales, 55 Revue Generale de droit Publique 321, 324 (1957).
 Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals 322, 324 (1953).
 McGoldrick, supra note 16, at 150, para. 4.36.
 Velásquez Rodríguez Case supra note 9, at 169, para. 139 (there is a presumption of truth if a government fails to produce evidence).
 Juan E. Méndez and José Miguel Vivanco, Disappearances and the Inter-American Court: Reflections on a Litigation Experience, 13 Hamline L. Rev 507, 524 (1990).
 Bleir v. Uruguay, Doc. A./37/40, p. 130; SD, p. 109 (1982). See also, Lanza and Perdomo v. Uruguay, Doc. A./35/40, p. 111 (1980); Massera et al. v. Uruguay. Doc. A./34/40, p. 124 (year)
 Id. at 130.
 Santullo (Valcada) v. Uruguay, Doc.A./35/40, p. 107 (1980).
 McGoldrick, supra note 16, at 149, para. 4.32.
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