The ICJ Ruling on Ensuring Access to Evidence of the UN-mandated Investigative Bodies

[Quazi Omar Foysal is a Lecturer in Law at American International University-Bangladesh (AIUB), Bangladesh and an Advocate of the Supreme Court of Bangladesh]

Introduction 

The International Court of Justice (ICJ or Court) in the Order of 24 May 2024 in South Africa v. Israel indicated its third provisional measure that Israel shall take effective measures to ensure the unrestricted access to the Gaza Strip of any UN-mandated investigative bodies. This ruling is brought a groundbreaking development in inter-State dispute settlement proceedings, particularly in the era of so-called action popularis, where access to evidence is one of the most, if not the most, gruesome challenges for the benevolent litigating States.

The access to evidence under the control of a non-cooperative litigating State has been a problem for a litigating State before the ICJ as early as the Court’s first decision in the Corfu Channel case. The lack of dedicated provisions in the ICJ Statutes and the Rules of the Court on compelling a State party to proceedings to share evidence under its control with its counterpart like many municipal systems may be partly attributed to this inconvenience. Recently, the Court has ordered the prevention of destruction and guarantee of preservation of evidence in a case where such a measure was warranted by its circumstances. For example, it was ordered in The Gambia v. Myanmar, Canada and the Netherlands v. Syria, and South Africa v. Israel while it was rejected in the Armenia/Azerbaijan cases. However, nothing in these cases related to granting access to evidence by the adverse parties. However, the request to provide access to evidence to the UN-mandated investigative bodies was unique in The Gambia v. Myanmar and resurrected only in South Africa v. Israel to date, the latter being the sole successful case, though on second attempt.

At this juncture, the Court’s positive ruling on this particular issue in the Order of 24 May 2024 raised some interesting legal questions, including the reasons for the Court’s change of direction, the legal basis of the provisional measure, its exact scope, and its prospects. In this blog post, the author attempts to investigate these questions from the laws and practices of ICJ and the Genocide Convention.

From Unanimous Rejection to Eventual Confirmation

Since The Gambia added the said provisional measure request one day before the oral hearing, the Application Instituting Proceedings and Request for the Indication of Provisional Measures dated 11 November 2019 in The Gambia v. Myanmar does not provide any legal insights for making such request. On the contrary, both parties made considerable arguments during the oral proceedings for/against the same.

During the first round of the hearing, The Gambia argued that the Court has the responsibility to ensure the fair disposal of the disputes since its lack of access to evidence in Myanmar created an evidentiary imbalance (CR 2019/18, pp. 71-72, paras 23-26). In response, Myanmar based its argument on the absence of link between the requested measures and existing rights, absence of obligation to provide access to the UN, and its Article VIII reservation to the Convention. (CR 2019/19, page 62, §88-89). During the second round of hearings, The Gambia made arguments that the said request (i) has its legal basis in the obligation to prevent and punish genocide enshrined in Article I of the Convention and (ii) is consistent with the jurisprudence of the Court as reflected in the Frontier Dispute case (CR 2019/20, pp. 37-38, paras 21-22). In response, Myanmar refuted that the jurisprudence of the Court does not support creating a new substantive obligation under Article 41 of the ICJ Statute (CR 2019/21, p. 19, paras 33-37).

In the Order of 23 January 2020 in The Gambia v. Myanmar, the Court declined to indicate the sixth provisional measure since it considers that such an indication is not “necessary in the circumstances of the case” (p.24, para 62). The Separate Opinions and Declarations are also silent on this point. Given that the whole Order was adopted unanimously, it is logical to presume that this request was also declined unanimously. 

In its Application Instituting Proceedings and Request for the Indication of Provisional Measures dated 29 December 2023 in South Africa v. Israel, such request formed a part of South Africa’s seventh request. During oral hearing, South Africa did not make any detailed reasoning in support of its request except that evidence may be lost or destroyed without such an order (CR 2024/1, p. 79, para 26). In response, Israel made three points namely (i) the access point to Gaza is under Egyptian control, (ii) Israel has no international obligation to allow access to Gaza through its territory, and (iii) similar request was declined in The Gambia v. Myanmar (CR 2024 2024/2, pp.68-69, paras 77-81). The Order of 26 January 2024 in South Africa v. Israel though indicated the first part of the seventh request remained completely silent on its second part. In her Dissenting Opinion, Judge Sebutinde stated that such a measure would fall beyond Israel’s obligations under the Convention and has no apparent link with South Africa’ asserted rights (p.9, para 30). 

South Africa included the same request in its Request for the Modification and Indication of Provisional Measures dated 10 May 2024. During the oral hearing, South Africa argued that the uncertainty surrounding the Palestinian casualties following Israeli military operations due to Israel’s continuous restrictions on information and refusal to allow independent investigative bodies into the same prompted it to request this measure (CR 2024/27, p.39, para 31). On the contrary, Israel highlighted that it has necessary investigative and accountability mechanisms at its disposal to deal with alleged violations of international law (CR 2024/28, p.16, paras 49-50). On this occasion, though the Court eventually confirmed the said provisional measure request, it omitted to assign any reason for its doctrinal shift. However, the next section will attempt to inquire about it in details.

Legal Basis of the Provisional Measure

The absence of explicit reasoning behind indicating this provisional measure in the Order of 24 May 2024 warrants investigating alternative routes to understand its legal basis. It can be understood from two angles: (i) analysis of Opinions and Declarations of judges and (ii) contextual analysis of the conditions for granting provisional measures.

The Dissenting Opinions of Judge Sebutinde and Judge ad hoc Barak and the Declaration of Judge Aurescu the Order of 24 May 2024 are immensely helpful in understanding the legal basis of the provisional measure in question. Judge Sebutinde provided three reasons to justify her negative vote. These are: (i) lack of sufficient link between the requested measures and the Convention, (ii) lack of proof of destruction of evidence by Israel and Israel’s legitimate security concerns and (iii) lack of similar precedent in the ICJ (pp.8-9, paras 24-26). Judge ad hoc Barak made two additional reasons. These are: (i) South Africa’s failure to provide required evidence justifying this measure and (ii) uncertainty of the geographical scope, mandate, and source of origin of the investigative bodies (p.8, para 30). On the other hand, Judge Aurescu interpreted that this measure is a natural extension of earlier provisional measures on the preservation of evidence made in Order of 26 January 2024 (p.2, para 4).

As per the long-standing practice of the Court and Article 41 of the ICJ Statute, a State party to proceedings need to establish the prima facie jurisdiction, existence of plausible rights, standing of the parties, risk of irreparable prejudice, and urgency. A State party, as per Article 76 of the Rules of the Court, need to establish “some change in the situation” while requesting the modification of provisional measures. The issue is what those changes which took place between 26 January 2024 and 24 May 2024. As the issues related to the prima facie jurisdiction and standing of the parties were fairly established during the deliberation of the Order of 26 January 2024, the Court most likely reassessed the existence of plausible rights along with the risk of irreparable prejudice and urgency to consider the indication of said measure. 

Both Myanmar and Israel argued during the respective oral hearings that the said measure does not concern any existing rights of the opposite parties. Judge Sebutinde also voiced the same point twice. At this juncture, the duty to provide access to UN-mandated investigative bodies may be seen as an extension of the obligation to punish genocide under Article 1 of the Convention, a prerequisite to fulfilling the obligation to punish genocide under Articles II and III of the same Convention. Consequently, the provisional measure in question leads to South Africa’s plausible rights under Article I of the Convention rather than creating a new right for South Africa or an obligation for Israel under international law.

In the opinion of the author, the Court’s reassessment of the “risk of irreparable prejudice and urgency” in the changing situation in this case was the most intriguing factor behind the Court’s change of direction. An analysis of the participating judges in the deliberations of Order of 26 January 2024 and Order of 24 May 2024 may provide speculation. Nine judges who voted positively and two judges who voted negatively participated during both occasions. Interestingly, seven of them also participated in the deliberation of Order of 23 January 2020. It is highly unlikely that nine judges who voted positively on 24 May 2024 changed their doctrinal position on the plausibility question within a period of four months. It is rather logical to infer the alternative conclusion. 

Both Judge Sebutinde and Judge ad hoc Barak pointed out South Africa’s alleged failure to back up its allegations regarding the destruction of evidence by Israel. South Africa also justified its request by referring to several graves discovered in some hospitals in Gaza and highlighting the risk of non-procurement of evidence of the victims of Israel’s ongoing military campaign (p.10, para 38). Judge Sebutinde, citing Israel’s April Report, noted that Hamas is destroying evidence as well (p.8, para 24). All these considerations may have prompted the Court to review its prior position and indicate the provisional measure.

The Meaning and Scope of the UN-mandated Investigatory Bodies

Order of 24 May 2024 mentions “any commission of inquiry, fact-finding mission or other investigative body mandated by competent organs of the United Nations to investigate allegations of genocide”. The heading of operative clause 2 of the said Order further adds that the investigative bodies must operate “in conformity with its obligations under the [Genocide Convention]”. In brief, such an investigative mechanism must be established by the UN and competent to investigate alleged breaches of the Genocide Convention obligations. Interestingly, Judge ad hoc Barak pointed to these features in his Dissenting Opinion to justify his negative vote (p.8, para 30).

The Order of 24 May 2024 focuses on the mode of creation of the investigative bodies rather than its name. The UN Charter permits the creation of subsidiary organs, including the investigative bodies. A survey into the UN-mandated investigative bodies, as recorded by the United Nations Library & Archives Geneva Research Guide website, illustrates five UNGA-mandated bodies, nine UNSC-mandated bodies, nine UNSG-appointed bodies, thirty-nine UNHRC-mandated bodies, six (now-defunct) UNCHR-mandated bodies, and twelve OHCHR-mandated bodies. These investigative bodies investigate, as per their mandates, violations of different branches of international law, including the Genocide Convention. Accordingly, an investigative body for the purpose of this Order may be established by any of the above-mentioned UN organs. 

Regarding the functions of the investigative bodies, they must be competent to investigate the alleged incidents of genocide leading to the determination of the disputes on the Genocide Convention. The ICJ, in Bosnia and Herzegovina v. Serbia and Montenegro, confirmed that the allegations of genocide having “charges of exceptional gravity” require “a high level of certainty”. Consequently, those investigative bodies must be capable of procuring evidence that meets such a standard. As the existing Commission of Inquiry on the Occupied Palestinian Territory (established in 2021) employs the “reasonable grounds” standard while collecting evidence, it does not serve the purpose of this Order. The “reasonable grounds” standard is sufficient for the Provisional Measure stage; however, its suitability to the merit stage is highly unlikely. Thus, Stefan Talmon was correct in saying that there is no existing mechanism that serves the purpose of this Order. 

Consequently, the competent bodies of the UN must take steps to establish a new body. At this juncture, there are at least three models that can be followed: (i) UNGA-mandated International, Impartial and Independent Mechanism on Syria, (iii) UNHRC-mandated Independent Investigative Mechanism for Myanmar, and (iii) UNSC-mandated  Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL. All three mechanisms have been entrusted to collect evidence that meets the required standards for criminal prosecution. In Bosnia and Herzegovina v. Serbia and Montenegro, the ICJ accepted the ICTY-procured evidence to determine the obligations under the Genocide Convention (see, paras 202-230). Logically, the criminal law standard evidence procured by a similar investigative body will serve the purpose of the Order of 24 May 2024. 

Given Israel’s record of non-cooperation with the UN organs, which is also a subject matter of an ongoing ICJ Advisory Opinion proceeding, the investigative body should come with some short of legitimacy. Though an UNSC-mandated body would best serve the purpose, it is equally very unlikely given the anticipated US veto. At this juncture, the possibility of establishing a UNGA-mandated investigative body will be explored. As the UNGA has the widest participation amongst all the UN bodies, a successful UNGA resolution establishing a Syria-style investigative body will best serve the purpose of the Order of 24 May 2024.

Future Prospects of This Ruling

As the Provisional Measures Order of the ICJ is binding on the parties, the Order of 24 May created a fresh obligation upon Israel, a violation of which will incur a breach of such obligations irrespective of the final outcome of the proceedings. As highlighted in the preceding section, the UN should come forward to establish a proper investigative body that fits the purposes of this Order. This ruling is very important in the aftermath of ICJ’s confirmation of the existence of obligations erga omnes partes concerning the Genocide Convention (The Gambia v. Myanmar) and UN Convention against Torture (Belgium v. Senegal) which paved the opportunity for the increasing number of actio popularis before the ICJ. At the same time, this Order may provide an opportunity for The Gambia to request modification of the existing provisional measures, as may be necessitated in the recent alarming situation in Rakhine.