A Thought Experiment on Plausibility and ICJ Provisional Measures

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The recent provisional measures orders of the International Court of Justice in the South Africa v. Israel and Nicaragua v. Germany cases have provoked much discussion of the notion of plausibility in the Court’s jurisprudence (see, e.g., yesterday’s post by Roy Schondorf and also Mike Becker’s comments to that post; and the post by Alex Wentker and Robert Stendel on the case against Germany). Broadly speaking, scholars are divided on whether plausibility should be understood solely as a legal question of whether rights asserted by the applicant plausibly exist, or whether plausibility also relates to the existence of facts on which a claim is based. Descriptively, my own view aligns with Mike Becker’s: while the Court generally speaks only about the plausibility of rights (and this is a key feature of cases such as Ukraine v. Russia re genocide), in some cases the Court does a factual analysis that goes beyond merely assessing whether the allegations fall within its subject-matter jurisdiction, i.e. it seems to be looking at the plausibility of the claim.

This is certainly what seems to have happened in the January South Africa v. Israel order, in which the Court notes the large number of deaths in Gaza, quotes from the assessments by various UN officials on the horrific situation in Gaza, notes several statements by Israeli officials that could be evidence of genocidal intent or constitute direct and public incitement to genocide (although the Court doesn’t label them as such), and then says (para 54) that ‘the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible.’

That said, I think it is also descriptively true that:

(1) The plausibility criterion is entirely one of the Court’s making.

(2) There is no grand theory behind this criterion – the Court just made it up as it went along.

(3) The Court never systematically explained and developed this criterion.

(4) Different judges will have different understanding of this criterion, especially as the composition of the bench changes over time.

(5) And, crucially, judges will frequently make compromises in order to obtain a majority, or as large a majority as possible, which leads to deliberate (constructive) ambiguities in how particular PM orders are worded.  The SAvI and NvG orders are prime examples.

So, bearing that in mind, it is really difficult to speak of the right, correct, or faithful approach to the Court’s jurisprudence on this issue as a purely descriptive matter. Any confusion here is largely one of the Court’s own making, rather than one caused by our failure to properly understand what the Court was saying. Moreover, that approach can easily be changed if a majority to do so exists. The real question, therefore, is a normative one – what should the Court be doing in cases such as South Africa v. Israel, where the dispute between the parties is primarily factual rather than legal in nature?

Which brings me to the main point of my post. Consider the so-called Legality of the Use of Force cases, which Serbia (the Federal Republic of Yugoslavia) brought against several NATO states as the 1999 NATO bombing campaign against Serbia was going. The only jurisdictional basis that Serbia could rely on was the compromissory clause in Article IX of the Genocide Convention. Serbia could not allege violations of the UN Charter or violations of IHL – the same situation as in SAvI or Ukraine v. Russia.  In its PM order in the case, the Court, by 12 votes to 3, rejected the request for the indication for provisional measures. This was before the Court invented the plausibility criterion. Its reason for rejecting the request (para 35) was that ‘the threat or use of force against a State cannot in itself constitute an act of genocide within the meaning of Article II of the Genocide Convention [and that] it does not appear at the present stage of the proceedings that the bombings which form the subject of the Yugoslav Application “indeed entail the element of intent, towards a group as such, required by the provision quoted above”.’

So, on the facts before it at the PM stage, the Court did not think genocidal intent existed to some unspecified level of evidentiary certainty that could warrant the issuance of the order. On this factual question the Court was surely right – no reasonable trier of fact could say that the NATO bombing of Serbia constituted genocide, i.e. that the relevant officials of the states using force intended to destroy Serbs as a group. (The most reliable data on casualties in the conflict indicate that 754 people died as a result of the NATO bombing over several months, of whom 454 were civilians and 300 were combatants. Of the 454 civilians, 207 were Serbs and Montenegrins and 219 were Albanian by ethnicity).

Here, then, is the thought experiment I propose. Imagine the Legality of the Use of Force cases were being decided today, after the Court had developed its PM jurisprudence and invented the plausibility criterion. If you were a judge of the Court, how would you decide this case now, and in particular how would you think the plausibility criterion should apply? My sense, for whatever that’s worth, is that most of us would employ some notion of a plausibility of claims/prospect of success approach and say that the allegation of genocide is implausible on the facts. But perhaps others would find the plausibility criterion met and decide instead that there is an absence of a risk to the rights plausibly asserted.

 

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J Alves says

May 7, 2024

Excellent analysis, Marko. Let me just make a small comment on the origins of the plausibility criterion. In fact, for some lawyers working before national courts in civil law jurisdictions, the expression is not foreign. It's actually a very common one, often employed as "fumus boni juris". Some have even categorised it as a "general principle of law", as the Institut de Droit International did when discussing the legal nature of provisional measures in its Hyderabad Session (2017). In short, I believe the answer to which interpretation of this criterion (whether plausibility of rights vs plausibility of claims) is the "correct one" should also take into consideration the practice of national courts and tribunals - where such notion first originated.

Nicolas Boeglin says

May 7, 2024

Dear Professor Milanovic

Thank you very much for this extremely interesting article.

Part of the “plausibility” debate among scholars was also launched after a (very strange for me ...) interview given by the former ICJ President to the BBC on April 26. The article of Professor Schondorf pubslised yesterday refers to it.

On this particular episode, I would like to know if you have in mind a previous interview given by a former ICJ President, (you or one of our dear colleagues from EJIL Talk) or by a former ICJ judge giving his views and impressions to the press on a case pending before the ICJ.

This interview is perhaps a very first "premiere" in the history of the ICJ since its constitution in April 1946.

Yours sincerely

Nicolas Boeglin

Adil Haque says

May 7, 2024

Hi Marko,

Thanks for this incisive post. I agree that the Legality of the Use of Force cases would come out the same way today, but that the judges would not converge on a rationale. As you suggest, the basic divide seems to be between judges who think that evidence of violations bears on plausibility of rights (Tladi, Bhandari, Sebutinde) and those who think that evidence of violations bears exclusively on urgency and imminent risk of irreparable prejudice (Iwasawa).

Focussing on risk is appealing, since it would allow the Court to preserve rights without technically saying anything about the merits, even under a low standard of proof. At the same time, meritless allegations will hardly ever coincide with imminent risks, so abuse is unlikely.

That said, the best way to get at the normative question might be to imagine the rare case in which there is no evidence of any violations but strong evidence of real and imminent risk. Should the Court indicate provisional measures in such a case?

It’s hard for me to imagine such a scenario involving the Genocide Convention, which requires States to prevent and punish (and refrain from) incitement to genocide, and it’s hard for me to imagine an imminent risk of genocide without incitement. But I am curious to hear if others can think of such a scenario in this or another context.

All the best,

Adil

P.S. Here is a distinct question: What if there is plausible evidence of violations of one claimed right, which gives rise to a real and imminent risk of irreparable prejudice to other claimed rights? Here I think the Court should indicate provisional measures to preserve all the rights at risk. So while all the rights to be preserved must plausibly exist, it is not necessary that all of the rights have been plausibly violated. For example, if there is plausible evidence of failure to prevent and punish incitement to genocide, giving rise to a real and imminent risk of acts of genocidal killing, then the Court should indicate provisional measures to preserve the right to be protected from acts of genocidal killing. Hope that makes sense.

Marty Lederman says

May 7, 2024

These posts are extremely informative and interesting, Marko and Roy. Thanks very much. I can't help but wonder, however, whether one can make much sense of what's going on in the SA v. Israel case without acknowledging that many (perhaps most) of the Judges, and others pleading with the Court to act now w/r/t Rafah, are far less concerned about whether Israel is engaged in genocide than with the obvious humanitarian crisis and the possibility of using the Genocide Convention to establish ICJ jurisdiction to issue orders to prevent IHL violations. That's right on the surface in the first Nolte and Barak opinions, and appears to be just below the surface in others.

All of which is to say that whether the Court recognizes "plausibility" here might well be driven by what the judges understand to be legally necessary in order to issue immediate injunctions designed to address IHL rather than genocide.

Brian L. Cox says

May 8, 2024

Excellent framing for a thought experiment, Marko. Your prompts provide structure for a concern I've had for some time regarding what I perceive to be the escalating politicization of international tribunals (as well as domestic courts in various jurisdiction, for that matter).

My general concern has been the manner in which (primarily, but not exclusively) international tribunals have relied on some form of a "rights" framework to (I believe) manipulate or disregard their established jurisdictional limits. The test for indicating PMs the ICJ has developed when evaluating "disputes" among States related to interpretation and application of the Genocide Convention is an illustrative example of my concern.

In short, there is no actual right to be protected from genocide. Such a "right" is certainly not established in the Convention. Pursuant to the black letter text of the resolution, States agree that they will "undertake to prevent and to punish" genocide (Art. 1). Specific acts are punishable (Art. 3). States agree to enact legislation necessary to provide for the punishment of genocide (Art. 5). If a person is suspected of committing genocide, States agree to utilize the judicial system to adjudicate alleged offenses (Art. 6).

And so on. Doctrinally, then, there is no recognized right to be "protected" from genocide. It's not in the text, and to my knowledge States haven't successfully (or otherwise?) invoked Art. 16 of the Convention to revise the text to include such a right - which is a process that is explicitly provided in the Statute and available for any State Party to initiate at any time.

As you indicate in your thought experiment, Marko, many judicial standards - including the standard for indicating PMs - is just made up by the Court as it goes along. This is fine for procedural matters - Chapter 3 of the ICJ Statute can't foresee and address every matter of procedure the Court may need to account for. Art. 30 of the Statute specifically permits the Court to develop its own rules of procedure.

Much more problematic, though, is the process of creating law - including, in this situation, recognizing new rights. Of course, the ICJ is permitted to indicate "any provisional measures which ought to be taken to preserve the *respective rights* of either party" to a dispute (Art. 41). But the Court is *still* required to "to decide *in accordance with international law* such disputes as are submitted to it" (Art. 38). Granted, the Court is permitted to consider relevant conventional law (Art. 38a), custom (38b) and general principles (38c) - but this selection of permissible sources does not constitute a blank cheque to fabricate law from whole cloth. Finding a "right" to be protected from genocide is, I assess, an example of doing so.

That is, there is undoubtedly no such right in convention. If such a right were customary or a general principle, the R2P doctrine would be widely accepted as customary law. There would be no reason for States (in the West) that have (without merit) determined the PRC is engaged in an ongoing genocide in Xinjiang, as but one example, not to invade China in order to protect the "rights" of Uyghurs and other ethnic minorities from the (purported) ongoing genocide.

Aside from the legal and jurisdictional problems with claiming there is a "right" to be protected from genocide, at least two related practical problems arise. First, the "right" to be "protected" from genocide becomes detached from the requisite intent for genocide. Second, as a consequence of the first concern, it is difficult to imagine a scenario in which potentially lawful but extensive incidental damage is found to occur in an armed conflict that would *not* also qualify for indication of provisional measures. In such a scenario, if the right to be protected from genocide actually exists, it will seemingly almost always be "plausible" that PMs should be indicated to protect that right. This will almost always rather predictably create a considerable gap between PMs and merits - as you suggest and as has been pointed out on various occasions on this platform.

My concern with the manner in which the concept of "rights" is used (I suggest, abused) in tribunals (international and domestic) in the context of armed conflict or extraterritorial application goes far beyond the specific context of the test developed by the ICJ for indicating PMs. But this is a rather high-profile and contentious example of my broader concern. Your thought experiment provides valuable structure for me to clarify and articulate that concern. Really excellent post and concept - thanks again.