ICJ rulings on Plausibility, What does this mean?

The news in the world of International Law that has been in the forefront of everybody’s mind of late is the recent case and ruling in the South Africa v. Israel case at the International Court of Justice. [1] The court brought with it international attention as the State of South Africa, owing to the actions partaken by the Israeli State in the Gaza Strip in response to the October 7th 2023 attacks, accuses the state of Israel of violating the 1948 International Convention on the Prevention and Punishment of the Crime of Genocide. While I’m sure I’ll be spending plenty of time in the future examining the merits of this case, the concept of Genocide in International Law and the validity of its application to the current situation in Gaza, I want to focus my time on one particular element of the case, namely the ruling on plausibility and the subsequent provisional measures which were issued by the court. Both the plaintiffs and the respondents in this case appeared to be happy with the result, proclaiming a win for their particular side. But the reality is a little more complicated.

What are Provisional Measures?

The ability for the court to issue provisional measures comes from its authority under Article 41 of the Statute of the International Court of Justice:

“The Court shall have the power to indicate, if it considers that the circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.”[2]

This simply tells us that, if the court believes it necessary, interim measures may be applied in order to preserve and respect the rights of either party to the dispute. [3] Rulings on provisional measures can be all encompassing. The State of South Africa specifically requested 9 from the Court, some were granted, others not. When it comes to cases involving ongoing crisis situations, such as allegations of Genocide, provisional measures are often imposed in order to protect an at risk population as well as try to ensure that evidence of alleged crimes are preserved. An example of this can be seen in the 2020 ICJ case involving Gambia and Myanmar. In that case, the Court ruled that, inter alia, Myanmar:

“[M]ust take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Genocide Convention.”[4]

In the case of South Africa v. Israel, a similar number of provisional measures were issued by the court, including that of the preservation of evidence (but also notable that no such order to halt hostilities against Hamas in the Gaza Strip, as requested by South Africa).

Plausibility

One often cited element of the judgement in South Africa v. Israel is the ruling on plausibility. The court took the following view at numerous stages:

“In the court’s view, at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention.” [5]

and

“In the Court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights and claims by South Africa and for which it is seeking protection are plausible.” [6]

These quotations in particular have been taken up by media commentators as being the definitive proof that the International Court of Justice believes genocide is taking place. But the reality is slightly different. The court has to conclude that there is ‘at least’ some plausibility in the argument which is being presented.[7] This is, in fact, a requirement for the issuance of provisional measures, Nicaragua v. Costa Rica Case:

“Whereas the power of the Court to indicate provisional measures under Article 41 of the Statute has as its object the preservation of the respective rights of the parties […] the Court may exercise this power only if it is satisfied that the rights asserted by a party are at least plausible.”[8]

In terms of an evidential standard, therefore, plausibility is a low one, one which is far lower than most other evidential standards, especially the one which required for showing a violation of Article II of the Genocide Convention.[9]

To illustrate this point once more, I refer you to the recent ruling on allegations of the Genocide Convention by the Russian Federation by the state of Ukraine. The argument which was presented by Ukraine was particularly unique. They did not argue that the Russian Federation had violated the Genocide Convention (Article II) because they were committing genocide. Rather, they argued that the Russian Federation’s false claim of genocide against the Russian and Russian speaking peoples in Donestsk and Luhansk, which was the pretence of the Russian invasion in February 2022, was itself a violation of the Genocide Convention. The Court indicated Provisional Measures in this case, accepting the plausibility at this early stage, before, almost unanimously, rejecting this argument at the preliminary objections stage.[10] Simply put, a ruling on plausibility, at this stage, is not a conclusive judgement on genocide. The final judgement, meaning a ruling on the merits, will likely take years.

In Lieu of a Conclusion

Fundamentally, these provisional measures are not unusual. They mostly indicate a requirement to adhere to the basic principles of the Genocide Convention and they, interestingly, do not require the state of Israel to cease military operations in their entirety. Given that the state of Israel have repeatedly argued that they in accordance with the Genocide convention, and International Law more broadly, this claim can now be put to the test when they show their adherence to the provisional measures ordered by the Court here.

My final point of note is on this question of plausibility. The actual commission of Genocide in the Gaza strip is not the only crime the Convention protects people against. Others include incitement and attempt to commit genocide.[11] Regardless of the fact that plausibility means very little at this stage, and a more full investigation into allegations of violations will take place in years to come, in the words of Nico Krisch, Professor of International Law at the Graduate Institute of International and Development Studies in Geneva:

“No State should even get close to the point at which an allegation of genocide becomes plausible. Whatever the eventual decision on the merits will be, this is discursively a consequential step.”[12]

Notes

[1] Full title, Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).

[2] Statute of the International Court of Justice, Article 41(1).

[3] For more detail see, M. Shaw, International Law (8th edn, Cambridge University Press, 2017), 830-832 [Newer editions available].

[4] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), ICJ Provisional Measures, Jan 2020, at 81.

[5] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ Provisional Measures, Jan 2024, at 30.

[6] ibid at 54.

[7] Request for Interpretation of Temple Judgement (Colombia v. Thailand) Order of 18th July 2011, ICJ Reports, at 537.

[8] Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), ICJ Request for the Indication of Provisional Measures, Order 8 March 2011, at 53.

[9] This requires a special intent (dolus specialis) to commit genocide which is defined as an ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.

[10] Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States Intervening), ICJ Ruling on Preliminary Objections.

[11] Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Article III.

[12] N. Krisch, Speaking the Law, Plausibility: The International Court of Justice on Gaza, Blog of the European Journal of International Law, 2024 <https://www.ejiltalk.org/speaking-the-law-plausibly-the-international-court-of-justice-on-gaza/> Accessed 9th of February 2024.