Reinventing an ‘Unfortunate Invention’

‘It appears that each one feels free to interpret so-called “plausibility” of rights in the way one feels like; this may be due to the fact that the Court’s majority itself has not elaborated on what such “plausibility” means.’ With these words, late International Court of Justice (‘ICJ’ or ‘the court’) Judge Trindade diagnosed the problem of the ICJ’s ‘provisional measures’ somewhat unabashedly and yet precisely.

‘Provisional measures’, issued under Article 41 of the statute of the International Court of Justice, can be seen as the court’s attempt at conserving rights of parties to a dispute, preventing irreparable harm in the interim. Declared binding by the court in 2001 (LaGrand Case), provisional measures serve as a crucial mechanism that addresses urgent situations pending final adjudication. While the ICJ has delivered notable orders concerning provisional measures, objective criteria to ascertain its decision-making in the said matters – as pointed out by Judge Trindade – remain lacking.

In this blog post, we scrutinise the test of ‘plausibility of rights’ as a key necessity in the ordering of provisional measures, recounting the test’s application in cases related to the crime of genocide, and highlighting inconsistencies in its application. Through an analysis of the court’s jurisprudence, we attempt to define the criterion of ‘plausibility of rights’ to enhance the objectivity of the prevailing test.

‘Plausibility of Rights’: The Development of the Doctrine

The backstory to the ‘plausibility of rights’ doctrine started in 1993 with the provisional measures order of Bosnia and Herzegovina v. Serbia and Montenegro in which the court took into account evidence of military/paramilitary activities, including bombing, forced migration of civilians, murder, torture, and rape, and ordered Serbia and Montenegro to ensure that its forces are not committing acts of genocide in Bosnia and Herzegovina. The court did not elaborate on how these facts were sufficient to issue provisional measures.

The inception of ‘plausibility of rights’ as a key criterion for provisional measures is owed to the 2006 Pulp Mills case, wherein the criterion was explicitly stated in the separate opinion of Judge Abraham. Subsequently, it was in the matter of Gambia v. Myanmar that the court applied this criterion in a case concerning genocide for the first time. The ICJ considered the ‘pattern of conduct’ against the Rohingya in Myanmar, drawing on reports by the Independent International Fact-Finding Mission, and finally concluding that the rights asserted by the Gambia were plausible. Thereafter, in the case of Ukraine v. Russian Federation: 32 States intervening, the court lacked the requisite evidence to substantiate Russia’s allegations of genocide by Ukraine in its territories. It concluded that the rights asserted by Ukraine were plausible, and ordered the Russian Federation to cease its military operations.

Next, in its order in South Africa v. Israel, the court took note of the methods of war and statements of Israeli leaders and officials presented by South Africa to establish a ‘pattern of conduct’ that could prove genocidal intent. The court concluded that the test for ‘plausibility of rights’ was satisfied, and accordingly ordered Israel to take six provisional measures, which included the prevention of genocide as per Article II of the Genocide Convention.

According to the Separate Opinion of Judge (ad hoc) Barak in South Africa v. Israel, the court was not in the possession of sufficiently reliable evidence – such as the two reports issued by the Fact-Finding Mission in the Gambia case – to assert ‘plausibility of rights’. Additionally, in her Declaration in the case, then-Vice President Xue acknowledged serious violations of rights of ethnic minorities, but still believed the violations did not meet the threshold to be classified as genocidal in nature, which would have given rise to plausible rights.

The reasoning given by the court in the cases discussed follows no detectable uniformity or definition of ‘plausibility’. It is unclear from these precedents what conditions the court considers before arriving at a conclusion. This raises an important question regarding the threshold of evidentiary standard for determining the plausibility of rights, warranting an exploration of alternative approaches to streamline the court’s approach.

Defining ‘Plausibility of Rights’

In a BIICL event, ‘Reflections on the South Africa v. Israel Case at the International Court of Justice’, Professor Marco Milanovic noted that both the parties in the case agreed on the legal aspects of genocide, nature of crime and essentials of intent; therefore, the question of ‘plausibility of rights’ was factual in nature, involving an examination of the evidence presented.

Judge Trindade has variously (see: Ukraine v. Russian Federation, Qatar v. UAE) proposed that the test of ‘plausibility of rights’ be replaced by the test of ‘human vulnerability’ when considering the request for provisional measures. The constituent requirements of this test are gravity of the situation, urgency of the situation, and possibility of further irreparable harm, in light of the tangible consequences of international disputes on human beings.

However, Peters has argued that a balance needs to be worked out with respect to the court’s level of strictness and generosity while ordering provisional measures. The ‘vulnerability’ of the victims should be determined on the basis of the ‘plausibility’ of the alleged commission of crimes. More recently, Schondorf warned that the ‘nominal’ threshold of awarding provisional measures may have the effect of ‘eroding the normative force of the ICJ’s provisional measures regime.’

Recognising the need to decide on some objective criteria based on international law for the issuance of provisional measures, we propose a definition of the criterion of ‘plausibility of rights’. While the conditions are in no specific order, we argue that by considering these factors in all cases, the court could ascertain a ‘check-list’ to ensure uniformity in the issuing of provisional measures.

The following are the components of the proposed definition:

1. Imminence of Harm: The court, in SA v. Israel and Ukraine v. Russian Federation, has considered the degree of urgency required for the issuance of provisional measures. In the recent orders of Nicaragua v. Germany and Mexico v. Ecuador, the court declined to grant provisional measures stating the prevailing facts and circumstances did not present a state of urgency. Drawing from these cases, we conclude that the anticipated violation of rights should be irreparable, apparent, not too remote and reasonably unforeseeable, and must seem as if it can ‘occur at any moment before the court makes its final decision.’
2. Relative Position of the Applicant State in Relation to the Respondent State: The relative position of the state in terms of military strength and developmental stages per se is relevant to ascertain the resultant impact on each party as a result of issuance/non-issuance of provisional measures. This component draws from Judge Trindade’s account of recognition of human vulnerability while issuing provisional measures in international case law. For instance, there exists a stark contrast between the positions of Ukraine and the Russian Federation; militarily, economically, and developmentally, such that the differential impact of any provisional measures can be anticipated. This may include impacts on the population, military strength, economic position, and developmental endeavours, all of which are important factors to ascertain a nation’s relative position.
3. Mitigation of Adverse Effects on Third Parties: Adverse effects of a strife among the party nations on innocent third parties or entities not directly involved in the dispute, should also be a consideration while issuing provisional measures, we argue. When global peace, health, and coexistence are put in jeopardy, urgent intervention in order to minimise any far-reaching consequences of the matter is required. In the same vein, Judge Trindade pointed out the need to protect not only the potential or actual victims but also the ‘social milieu as a whole’. This may include effects on trade, diplomacy, environmental cooperation, cultural exchanges, military alliances, humanitarian aid, etc.
4. Aggravating and Mitigating Circumstances: Lastly, we argue that the court should take into account the aggravating and mitigating circumstances guiding the Respondent’s actions in order to better ascertain their intent and its relation to the harm being caused. In the public hearings held on 17 May 2024 for the request for additional provisional measures in the matter of SA v. Israel, Judge Nolte interrogated Israel on the humanitarian situation in the evacuation places in Gaza. This last component lends credence to the importance of Respondent’s conduct while issuing provisional measures.

Conclusion

The importance of provisional measures to provide immediate relief is indisputable. But, as judicial precedents have shown, existing approaches fall short of an objective test that would determine the appropriateness of provisional measures in given disputes. In an attempt to address this issue, we have proposed a non-exhaustive set of criteria grounded in international law, providing the court with a blueprint to develop its jurisprudence on provisional measures. The goal is to streamline the law on provisional measures, taking into account the disparity in the catena of the orders of the court. Such clarity – that we argue would result from the proposed definition of ‘plausibility of rights’ – would prevent situations in which everyone feels free to interpret ‘plausibility of rights’ as they deem fit, alleviating the problem pointed out by Judge Trindade.