Site Visit

by Marco Benatar

MPILux Working Paper 9 (2017)

Introduction: In proceedings before international courts and tribunals it is predominantly the parties who bear the primary responsibility of producing evidence (Wolfrum and Möldner, para 9). Notable exceptions are international criminal tribunals, whose prosecutors and large investigation divisions exercise broad powers to collect evidence. Prosecutors may even undertake a number of measures on the territory of a state without seeking the authorities’ assistance (Fact-finding (international criminal courts and tribunals); Fact-finding powers of international prosecutors). The set-up and fact-finding powers of non-criminal international courts and tribunals are rather different in this regard. Yet, this does not mean they are relegated to playing a merely passive role in the realm of evidence. International adjudicators may exercise a number of powers proprio motu geared towards the establishment of facts relevant to the case under consideration (Fact-finding powers of international courts and tribunals). One such power is the ability to conduct a site visit (or descente sur les lieux) ie a visit to a locality or spot connected to the case under consideration. By visiting relevant sites judges and arbitrators are able to familiarize themselves with the situation on the ground (Rosenne (2006) 1325). Others however maintain that in loco inspections should be carried out for the purpose of gathering evidence (Higgins 1373). 

This entry will first discuss the legal framework governing site visits by non-criminal international courts, exploring the juridical basis for ordering inspections on the spot and the conditions under which they are carried out. A second part will take a closer look at the site visits that have been conducted as well as cases in which suggested visits were declined. A final part reveals several patterns that have emerged and assesses the impact of visits in situ on the evidentiary practice of international courts and tribunals.