In January this year, the International Court of Justice (ICJ) indicated provisional measures against Israel in the case of South Africa v Israel. South Africa had brought proceedings following Israel’s response to the 7 October massacre in 2023. Hamas and others, from the Gaza Strip, had attacked the Re’im music festival, settlements and military bases, killing over 1,000 people (most of whom were civilians) and taking over 200 hostages. Israel proceeded to launch an invasion of the Gaza Strip with the stated aims of destroying Hamas and freeing the hostages. South Africa’s case in the ICJ was that Israel had breached the Genocide Convention, alleging that Israel’s actions were designed to destroy a substantial part of the Palestinian people.

South Africa requested that provisional measures should be indicated prior to the final decision of the court. Among the measures that it sought to have indicated was that the “State of Israel should immediately suspend its military operations in and against Gaza”. The ICJ ultimately decided against ordering the cessation of the conflict. It provided (alongside other measures) that Israel should “take all measures within its power to prevent the commission of all acts within the scope of Article II” of the Genocide Convention.

Following the publication of the order, and the broadcast of (now former) President Donoghue handing down the order, a number of commentators mistakenly believed that the ICJ had found that the crime of genocide was, in fact, plausibly occurring in the Gaza Strip. This reading hinged on the use of the word “plausible” when the court found that the rights claimed by South Africa were plausible. News outlets, including NPR, asserted that the court had found that genocide was plausibly being committed in Gaza. Former tax barrister Jolyon Maugham made the same claim. Special Rapporteur Francesca Albanese tweeted out that Israel had been “plausibly committing genocide”. In the House of Commons, Apsana Begum MP referred to the order as a “plausible genocide” ruling. Former President Donoghue subsequently clarified in an interview with the BBC that the ICJ did not decide that the claim was itself plausible.

Plausibility test

The distinction between “plausible genocide” and the ICJ’s plausibility test is one that requires some explanation. Article 41 of the Statute of the Court of Justice provides that the ICJ has the power to indicate measures to “preserve the respective rights of either party” and it may do so if it considers that the “circumstances so require”. Provisional measures are granted before a full hearing of the case and are not a final determination of the merits or prejudging the merits. As such, they are not a remedy. The consensual nature of international law explains why the ICJ is reluctant to order a binding remedy before the final judgment. The court would risk non-compliance, which would raise serious questions as to its legitimacy.

The Handbook of the ICJ sets out a four part test that the court should consider before indicating measures: 1) that the court has prima facie jurisdiction; 2) that the rights claimed by the Applicant State appear to be at least plausible; 3) that there exists a link between the rights whose protection is being sought and the measures requested; and 4) that there is a risk of irreparable prejudice and an element of urgency.

“Plausible” in this context has some parallels to the test in England and Wales when courts decide whether to grant interim injunctions. In American Cynamid Co, the first limb of the test is whether there is “a serious question to be tried”. In the US, the Supreme Court has a more demanding test for preliminary injunctions, requiring that an applicant has a fair chance of success on the merits of the case, as was mentioned in Mazurek v Armstrong.

The language of Article 41 does not explicitly set out a plausibility test. The ICJ did not consider this an essential element until relatively recently. In Judge Abraham’s separate opinion in Pulp Mills, he argued that the court should not grant measures unless it “carried out some minimum review to determine whether the rights thus claimed actually exist and whether they are in danger of being violated”. The fact that the earlier LaGrand case had made provisional measures binding on States, said Judge Abraham, supported the need for a stronger test. It was only with Belgium v Senegal in 2009 that the ICJ decided on a plausibility requirement, following Judge Abraham’s reasoning.

The precise meaning of plausibility is not always made entirely clear, since the ICJ has not explicitly and consistently set out a defined standard and has not always demonstrated how it has been met – perhaps explaining why there is so much popular confusion around the Israel case. However, Judge Greenwood, in Costa Rica v Nicaragua, provided some assistance in his separate opinion that:

What is required is something more than assertion but less than proof; in other words, the party must show that there is at least a reasonable possibility that the right which it claims exists as a matter of law and will be adjudged to apply to that party’s case.

As such, Judge Greenwood had set a low bar for measures to be granted. Judge Bhandari described this test as being fumus non mali iuris, or not manifestly unfounded, which again is an easier standard to be satisfied than tests in many domestic courts.

With Equatorial Guinea v France, the ICJ moved to some factual consideration of plausibility. Equatorial Guinea had alleged that premises in France had been a diplomatic mission and that France had violated its obligations under the Vienna Convention on Diplomatic Relations when attachment was ordered. In indicating measures, the ICJ analysed whether there was a factual basis for the argument that the premises were used as a diplomatic mission. India v Pakistan likewise assessed facts. India had alleged that it had not been given an opportunity to offer consular assistance when a national in Pakistan had been arrested, detained, tried and sentenced to death. The ICJ, when indicating measures, had taken into account “legal arguments and the evidence presented”. The factual review in these cases was still limited, however, and engaged with a basic understanding of whether the circumstances of the case had met the low threshold required for plausibility.

While both of the above cases examined facts, the facts in question were to some degree accepted by the respondents. Gambia v Myanmar marked an advance on that position by relying on UN evidence. In indicating measures after Gambia had alleged that Myanmar was engaged in genocide against the Rohingya group, the ICJ attached weight to a United Nations General Assembly resolution that expressed grave concern at human rights violations and abuses together with an Independent International Fact Finding Mission. Still, the then Vice President Xue noted in a separate opinion that the court was not making a factual finding based on this evidence, but responding to the human rights situation. Moreover, Myanmar had “acknowledged that during their military operations, there may have been excessive use of force and violations of human rights and international humanitarian law”.

There has been some disagreement about the standard with regard to intent. In Gambia v Myanmar, Judge Kress, in his declaration, argued that a more stringent standard in genocide cases was not justified and that the function of provisional measures in protecting rights rather worked in the opposite direction. This was in contrast to the approach in Ukraine v Russia in 2017, when the Court declined to indicate measures regarding the International Convention for the Suppression of the Financing of Terrorism on the basis that evidence had not shown intent. The Gambia v Myanmar approach now seems to be the preferred one.

Regrettably, in Nicaragua v Germany, a case which followed South Africa v Israel, the ICJ did not clarify the test and how it was applied when declining to indicate measures. Judge Al-Khasawneh in a dissenting opinion criticised this, observing that “neither Party nor indeed any other State knows on what basis the Court did not indicate any measures directed to Germany” and that it was unfortunate “above all for the Court’s own standing and judicial function”.

It can be said, however, that the ICJ does not set the threshold so high that it engages in an assessment of the merits in the case, as the US does domestically. The general approach, as described by Judge Bhandari, is “first, whether the rights asserted by the applicant State exist in the abstract; second, whether the applicant State holds such rights in the circumstances of the case”. This may include some factual and legal analysis, but the court is not engaging in a full review and is not opining on the likelihood of a breach.

Plausibility Standard and South Africa v Israel

There was no need to demonstrate genocidal intent at this stage in the proceedings

Thus, in South Africa v Israel, the ICJ was following such an approach when it said 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”. Judge Yusuf in his declaration was clear that the court was following Gambia v Myanmar in deciding against a more stringent standard in genocide cases. There was no need to demonstrate genocidal intent at this stage in the proceedings.

In its analysis of the plausibility limb, the court first noted that the Palestinians were a distinct “national, ethnical, racial or religious group” under the Genocide Convention. The rights of the Palestinian people and of South Africa in bringing the application therefore were plausible. Next, analysing the circumstances, the ICJ placed weight on the humanitarian situation in Gaza. At the time of the order, it said, 25,700 Palestinians had been killed and 1.7 million had been displaced as a result of the conflict. Similar to Gambia v Myanmar, the court relied on statements from UN officials. Those statements described bombardments, the risk of famine, the civilian malnutrition, trauma, poor hygiene, the spread of disease and deprivation of education. It also noted dehumanising language from senior Israeli officials, including Yoav Gallant, Defence Minister of Israel, Isaac Herzog, the President of Israel, and Israel Katz, then Minister of Energy and Infrastructure of Israel. Accordingly, the humanitarian situation and the dehumanising language were sufficient to satisfy the “circumstances” part of the test, the threshold of which Judge Bhandari described as being low in his declaration.

While it is important not to downplay the seriousness of the humanitarian situation concerning the Palestinian people, the details of the case demonstrate that the court was not engaged in a full assessment of all of the facts nor was it seeking proof of the essential elements of genocide. Still, the evidence analysis suggests that the court is evolving its practice in relation to facts, following Gambia v Myanmar, with increasing emphasis on UN reports. In South Africa v Israel, Israel did not make the same concessions as Myanmar regarding possible violations of humanitarian law. In oral submissions on behalf of Israel, Professor Malcolm Shaw KC, claimed that Israel was “mitigating civilian harm” as well as “alleviating hardship and suffering”. Yet, the ICJ went on to discuss evidence in any case. Analysis of UN Reports may feature more heavily in future ICJ cases, therefore.

Conclusion

The ambiguity in the language of the ICJ and its sometimes inconsistent approach to assessing the plausibility test represents a major flaw in the operation of the court, leading in the South Africa v Israel case to widespread misunderstanding of the nature of the provisional measures test. That former President Donoghue was moved to explain the order shows the genuine concern that the court’s orders were being misconstrued. Given the difficulty of reaching consensus amongst a high number of judges from different backgrounds, with different primary languages and legal perspectives, it is inevitable that the court’s approach will not always be intellectually consistent. South Africa v Israel nonetheless demonstrates that the court should be minded to clarify the test and apply it with clear language. It may be necessary therefore to abandon the use of the “plausibility” and describe the standard in different terms.