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.
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.