The Plausibility test in the Recent Provisional Measures Orders of the International Court of Justice

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In mid-November, the International Court of Justice issued two Orders for provisional measures based on claims under human rights treaties. On 16 November 2023, it issued an Order in the case of Canada and the Netherlands v. the Syrian Arab Republic, concerning the application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).  The day after, it issued another Order for provisional measures in the ongoing 2021 Armenia v. Azerbaijan case concerning the application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), adding to the two previous Orders issued in that case.

These Orders, issued under Article 41 of the Court’s Statute, are binding pending the Court’s decision on the merits. The two recent ones further cement “plausibility” as a minimum bar to be reached for the Court to issue an indication for provisional measures.

This piece will shed some light on the notion of “plausibility” in the context of such provisional measures.  In doing so, the piece will use as its point of departure the Syria case.

Background

The case Canada and the Netherlands v. the Syrian Arab Republic was brought before the Court on 8 June 2023. The same day, Canada and the Netherlands (“the Applicants”) requested the Court to issue indications of provisional measures stating that the use of torture and other cruel, inhuman or degrading treatment or punishment “is pervasive and entrenched throughout the system of detention in Syria and continues today” (Order para 2). To support their claim, the Applicants relied heavily on the work of the UN Independent International Commission of Inquiry on the Syrian Arab Republic (hereinafter “the Syria COI”) citing in particular the Syria COI reports of March 2021 and February 2023.

Provisional measures were sought in seven areas (Order para 13). The Court, however, granted measures on three aspects (para 82). It ordered: first, that Syria shall take all measures within its power to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment; second, that Syria shall ensure that its officials, organizations or persons which may be subject to its control, direction or influence, do not commit such acts; and third, that Syria shall take effective measures to prevent the destruction, and ensure the preservation, of any evidence related to allegations of acts within the scope of CAT. The Court asserted that its orders for provisional measures under Article 41 are binding (para 81), as it has done for provisional measures since the LaGrand case.

The Court, however, did not address some of the Applicants’ requests such as those related to ceasing arbitrary detention, urgently improving prison conditions, and disclosing the location of burial sites of those who died as a result of torture (para 5).  Furthermore, the Court did not entertain a request for Syria to provide a report to the Court on all measures taken to give effect to the Court’s Order within six months from its issuance, and every six months thereafter (para 5 (g)).

With regard to the contours of the standards used in making the Order, the Court reiterated its position that it may exercise its power regarding provisional measures “only if it is satisfied that the rights asserted by the party requesting such measures are at least plausible” (para 52).

Syria did not appear before the Court during the hearings for provisional measures held on 10 October 2023. It nevertheless communicated its position through a letter (Order para 14), which the Court took into account (para 19). There, Syria contended, inter alia, that for the alleged rights under the CAT to be plausible, specific evidence of alleged acts of torture must be presented by the Applicants, adding that no such evidence was provided (para 55).

What does “at least plausible” mean in this context?

Since the Court’s 2009 provisional measures  Order in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (para 57), recent Orders have included the “at least plausible” test by the Court when ordering provisional measures. This reference can be found in cases including: the 2017 case Ukraine v. The Russian Federation brought under CERD (para 63); the 2018 case Qatar v. The United Arab Emirates (UAE) (para 43); the 2020 case the Gambia v. Myanmar (paras 43 and 44); the 2022 Order Ukraine v. Russia, brought under the Genocide Convention (para 50); the 2021 Armenia v. Azerbaijan Order (para 44) and the two Orders that followed in February 2023 (para 27) and November 2023 (para 31); and most recently in 2023 in the Order against Syria, (para 52).

In his separate 2020 Declaration in the Gambia v. Myanmar case, Ad Hoc Judge Kress remarked, while voting in favour of the Order for Provisional Measures:

“It would seem that the plausibility of the rights claimed as a prerequisite for the indication of provisional measures is by now quite firmly anchored in the Court’s jurisprudence. At the same time, it would seem that questions remain open regarding the precise scope of the requirement and that it remains a challenge to describe the Court’s standard of plausibility with precision.” (para 2 – footnote omitted)

The question is whether the Court has now provided more guidance on the matter since Judge Kress offered the above insight.

The mention of plausibility commonly appears in the sections where the Court determines a) the rights whose protection is sought and the link between such rights and the measures requested, and b) if irreparable prejudice and urgency exist.

(a) Rights and links within the requested measures

In the Syria Order, the Court discussed the rights whose protection is sought and the link between such rights and the measures requested. Here the Court recalled its position that it may exercise this power only if it is satisfied that the rights are “at least plausible” (para 52). Stating that the Applicants invoked rights under CAT, the Court considered that the Applicants have a plausible right to compliance by Syria with those obligations under the Convention which have an erga omnes partes character, concluding on this point that a link exists between the rights claimed by the Applicant States and some of the requested provisional measures (paras 57, 62 and 63).

To ascertain whether the rights asserted by the Applicants are at least plausible, the Court referred to the rights under CAT, to which Syria and the Applicants are States party (para 58), citing CAT’s definition of torture (para 56). This has been an approach applied in similar cases. For instance, the Court referred to the CERD definition of racial discrimination in the United Arab Emirates case (para 50) and in the Azerbaijan case (para 56); and to the definition of genocide in the Myanmar case (para 49).

Although the Court has made it clear that it does not request that all the elements of the right be established at the provisional measures phase, proving key elements in the definition of the right is critical. For example, in the 2017 case Ukraine v. The Russian Federation relating inter alia to the shooting-down of Malaysian Airlines Flight MH17, which was brought under the International Convention for the Suppression of the Financing of Terrorism and CERD. There, the Court asserted the need to provide evidence that elements, such as intention or knowledge need to be present “in order to determine whether the rights for which Ukraine seeks protection are at least plausible.” Intention is an element included in Article 2.1 (b) of the Financing for Terrorism Convention, which Ukraine alleged that Russia has breached. In that case, the Court found that:

“[a]t this stage of the proceedings, Ukraine has not put before the Court evidence which affords a sufficient basis to find it plausible that these elements are present” (para 74).

(b) Irreparable prejudice and urgency

In the Syria case, the Court considered that it has the power to indicate provisional measures when irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences (para 64). This power can only be exercised “only if there is urgency” (para 65).

The Court relied on the reports of the Syria COI, particularly those published in March 2018 (on sexual violence), March 2021 and July and August 2023, and the Resolutions of the UN General Assembly and the UN Human Rights Council (paras 72-75).

The Court appeared satisfied that the Syria COI used the standard of “reasonable grounds to believe” to establish facts. It cited this standard three times in the Order, for instance that the Syria COI stated that it has reasonable grounds to believe that the Government of Syria:

“continued to commit acts of murder, torture and ill-treatment against persons in detention, including practices causing death in detention, as well as arbitrary imprisonment and enforced disappearances” and that these practices are continuing (para 73).

In the end, the Court concluded that “there is a real and imminent risk of irreparable prejudice to the rights invoked by the Applicant States before the Court gives its final decision.” (para 75).

This approach was similar to the one adopted by the Court in the Gambia v. Myanmar Order. There, citing the findings of the UN Independent International Fact-Finding Mission on Myanmar that there are reasonable grounds to believe that “the factors allowing the inference of genocidal intent [were] present” (paras 53-55), the Court viewed that these facts were sufficient to conclude that there were plausible claims by the Gambia for inter alia the right of the Rohingya group to protection from acts of genocide and related prohibited acts (para 56). In this case, the Court cited the reasonable grounds to believe standard four times, the first time the Court gave a positive nod to this standard.

Intergovernmental resolutions that qualify or describe events have also been considered significant. It is worthwhile mentioning the Court’s approach in the Order it indicated in the 2022 case Ukraine v. Russia under the Genocide Convention. In that case, Ukraine sought provisional measures to protect its rights not to be subject to a false claim of genocide, and not to be subjected to military operations by Russia in abuse of Article I of the Genocide Convention. The Court stressed that the parties should implement their obligations in good faith (para 56), considering that the Russian so called special military operation “has resulted in numerous civilian deaths and injuries. It has also caused significant material damage, including the destruction of buildings and infrastructure” (para 75). In making these assertions, the Court relied on GA Resolution A/RES/ES-11/1 (para 76). It ordered Russia inter alia to “immediately suspend the military  operations that it commenced on 24 February 2022 in the territory of Ukraine” (para 86).

Finally, the Court has also relied on other sources of information as indications of facts. In its 2021 Armenia v. Azerbaijan Order, the Court relied on a Resolution by the Parliamentary Assembly of the Council of Europe, as well as on a statement issued by several UN human rights experts (paras 85-87). Later in the November 2023 Order, it considered the formal undertakings made by the Azerbaijan agent (para 61). In Qatar v. The United Arab Emirates, it relied on specific statements made by the Ministry of Foreign Affairs of the UAE (para 68). These two cases relate to racial discrimination as mentioned earlier.

Conclusion

Since Judge Kress made his Declaration in Gambia v. Myanmar, the Court has provided more guidance on how to assess plausibility. Three final observations can be offered.

First, the Court has shown flexibility, particularly when it was faced with obligations of erga omnes partes character such as genocide, torture and racial discrimination. In his Declaration Judge Kress questioned the argument that the Court should apply a “stricter plausibility standard” at the provisional measures phase in cases of allegations of exceptional gravity. He wondered in this context whether the protective function of provisional measures does in fact not “point in the opposite direction, precisely because fundamental values are at stake” (paras 3 and 4). He highlighted that, in the end, “the Court has applied a low plausibility standard with respect to the question of genocidal intent.” This is an important point to retain.

Second, in the case of Syria and Myanmar, the Court was satisfied that the reasonable grounds to believe standard, used by the UN human rights investigative bodies, was sufficient to indicate plausibility for the purposes of ordering provisional measures.  In the absence of such reports by UN human rights investigative bodies, the Court has still found a way to provide protection relying on other material, such as resolutions from international bodies and statements from UN human rights experts.

Finally, the Court is acutely aware of the protection function under which provisional measures Orders are sought, particularly when it considered that there is there is an imminent risk of irreparable harm to health and life. In that sense it fulfils much welcome justice and human rights objectives.

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