Genocide

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A Thought Experiment on Plausibility and ICJ Provisional Measures

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…

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Implausible Confusion: The Meaning of “Plausibility” in the ICJ’s Provisional Measures 

Introduction  In its Order of 26 January 2024 in the case of South Africa v. Israel (brought under Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide (“the Genocide Convention”)), the International Court of Justice (“ICJ”) indicated a number of provisional measures.   As part of its analysis,…

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Taking the Road Less Travelled: The ICJ’s Pragmatic Approach to Provisional Measures in Nicaragua v Germany

When President Salam announced the ICJ’s decision not to indicate provisional measures against Germany as requested by Nicaragua on Tuesday, the legal advisers of States lending support to the warring parties in Gaza were probably closely listening. As we argue in this post, the ICJ was acutely aware of the implications any decision would have…

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The Attainability of the Evidentiary Standard for Genocidal Intent in Gaza

Since 2019, the International Court of Justice (ICJ) has been perceived as a viable instrument for stopping ongoing genocides after the UN political organs have failed to take effective actions to that effect. Thus, under Article IX of the Genocide Convention (1948), South Africa took Israel to the ICJ alleging genocide against the Palestinians in Gaza after Israel’s…

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The Recent Genocide Cases and Public Interest Litigation: A Complicated Relationship

Here we go again! On 1 March 2024, Nicaragua instituted proceedings before the International Court of Justice (ICJ, the Court) against Germany for complicity in genocide. This marks another development in a series of disputes pending before the Court in the last four years, where it is asked to decide on whether a State has committed genocidal…

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