The ICJ’s Findings on Plausible Genocide in Gaza and its Implications for the International Criminal Court

[Alexandre Skander Galand is Assistant Professor of International Law at Maastricht University and Guest Professor at Hasselt University.Wim Muller is an Assistant Professor of Public International Law at Maastricht University.]

In its first provisional order issued in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), the International Court of Justice (ICJ) found that ‘at least some of the rights claimed by South Africa and for which it is seeking protection are plausible’, including ‘the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts’ (§54). Many scholars have examined the possible consequences of this finding for third-party States. Nicaragua has brought this question back before the ICJ by instituting proceedings against Germany for failing to prevent violations of the Genocide Convention, and also failing to ensure respect for the 1949 Geneva Conventions and 1977 Additional Protocols. Hearings in that case are due to take place next week.

While the blogosphere is also beginning to question whether the ICJ’s finding may have a bearing on the use of vetoes in the Security Council (SC), none have yet explored what that finding could mean for the elephant in the room, the International Criminal Court (ICC). Before initiating proceedings against Israel at the ICJ on 29 December 2023, South Africa had, along with Bangladesh, Bolivia, Comoros, and Djibouti, referred the situation in the State of Palestine to the International Criminal Court (ICC) on 17 November 2023. Legally, this was unnecessary given that Palestine itself had already activated the ICC’s jurisdiction on 22 May 2018 under Articles 13(a) and 14 of the Rome Statute. It did however have significance as a highly symbolic political move. ICC Prosecutor Karim Khan’s reaction to the collective referral appeared tinged by some frustration.

Does South Africa’s successful appeal for provisional measures by the ICJ add to the pressure already imposed on Prosecutor Khan by its previous referral of the Palestinian situation to the ICC? Officially, the OTP is supposed to assess its facts independently. However, this external pressure fuels the sense of urgency about the situation in Gaza. In particular, South Africa’s two subsequent requests to the ICJ for further provisional measures, prompted by the worsening humanitarian situation in Gaza, and the ICJ’s much more specific modified order of 28 March may increase that pressure even more.

In this post, we aim to explore the potential implications of the ICJ’s finding that genocide in Gaza is ‘plausible’ for the ICC’s own investigation of the situation in Palestine. First, we need to examine to what extent the plausibility test applied by the ICJ resembles the ‘reasonable grounds’ standard used by the ICC to issue arrest warrants.

Understanding the ‘Plausibility’ Standard

Understanding the scope and standard of proof entailed by the plausibility standard is challenging. Judge Greenwood elucidated in Timor-Leste v. Australia that plausibility entails ‘a realistic prospect that when the Court rules on the merits of the case, [the rights in question] will be adjudged to exist and to be applicable’ (§4). The recent judgments in the two Ukraine v. Russia cases illustrate that such a definitive finding is far from assured, even at the preliminary objections stage.

Many judges have expressed their discomfort with the plausibility standard through separate opinions. In Costa Rica v. Nicaragua, Judge Koroma criticised the introduction of ‘plausibility’ for creating ‘ambiguity and uncertainty,’ noting it remains unclear whether the standard pertains to legal rights, facts, or both (§1). He observed that in Belgium v. Senegal, plausibility was applied to rights, whereas in Costa Rica v. Nicaragua, it was applied to the factual claims (§§11-12). Judge ad hoc Kress echoed similar concerns, in the Gambia v. Myanmar, when writing ‘it remains a challenge to describe the Court’s standard of plausibility with precision’ (§2). Judge Nolte, in South Africa v. Israel, acknowledged that the Court’s jurisprudence was ‘not entirely clear as to what “plausibility” entails’. He explained that despite not believing the military operations in Gaza were conducted with genocidal intent, statements by Israeli political and military leaders ‘give rise to a real and imminent risk of irreparable prejudice to the rights of Palestinians under the Genocide Convention,’ which justified his vote in favour of the provisional order (§§10, 15).

Rashawani has suggested on this blog that the plausibility test might be akin to a ‘reasonable grounds’ standard and notes that in the Gambia v. Myanmar, the Court heavily relied on reports of the Fact-Finding Mission on Myanmar, which concluded, ‘on reasonable grounds, that the factors allowing the inference of genocidal intent are present’ (§1441). This mission clarified that it ‘employed the “reasonable grounds” standard in making factual determinations’ (§10). Similarly, in Canada and the Netherlands v Syria, the Court relied on reports by the Commission of Inquiry on Syria, which applied a ‘reasonable grounds to believe’ standard (§2). 

In the South Africa v. Israel Order, the Court was unable to draw on reports from UN human rights investigative bodies for its factual assessment, as none exist yet. However, for potential incitement to genocide and possible genocidal intent, it referred directly to statements made by Israeli President Herzog, Defence Minister Gallant, and (then) Energy Minister Katz. Furthermore, the Court took into account statements by UN bodies (such as OCHA, WHO, CERD), high-ranking UN officials (like the Under Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator and the Commissioner-General of UNRWA), and UN experts. Overall, plausibility emerges as a notably flexible standard, contingent upon the specific rights, claims, and factual circumstances presented before the Court.

Comparing the ICJ’s ‘Plausibility’ and the ICC’s ‘Reasonable Grounds’ Standards

The finding of plausible violations of the Genocide Convention by the ICJ, although not directly legally relevant, could still influence the ICC’s considerations around issuing arrest warrants. Article 58 of the Rome Statute stipulates that an arrest warrant or summons to appear can only be issued if there are ‘reasonable grounds to believe’ that a person has committed a crime within the Court’s jurisdiction. 

ICC case-law aligns the ‘reasonable grounds to believe’ standard with the ‘reasonable suspicion’ benchmark used by the European Court of Human Rights (ECtHR) in cases concerning pre-trial detention (for example, Abd Al Rahman, §28). According to the ECtHR, Article 5(1)(c) ECHR requires sufficient elements ‘to satisfy an objective observer that the applicant could have committed the offences of which he was accused’ (§32). In Şık v. Turkey (No. 2), the ECtHR emphasised that ‘it is essential that the facts grounding the suspicion should be justified by verifiable and objective evidence and that they can be reasonably considered as falling under one of the sections describing criminal behaviour in the Criminal Code’ (§§121-122). Notably, regarding the factual aspect of the existence of the ‘reasonable suspicion’, the Court required the government only to demonstrate (which it failed to do) the ‘plausibility’ of the acts described in the charges. In this case, at least, the Court suggested that plausibility may be sufficient to establish a reasonable suspicion.

The ICJ’s determination that there are plausible violations of the Genocide Convention in Gaza could therefore carry weight in the ICC’s assessment whether reasonable grounds exist to believe that a crime within its jurisdiction has occurred. Although mere plausibility of the criminal acts may seem too low a standard to accuse an individual of grave crimes, it is important to recall that proceedings under Article 58 of the Rome Statute represent an initial phase. Only at the trial stage does the Prosecutor need to establish that a crime within the Court’s jurisdiction has occurred. 

From Crime Occurrence to Individual Responsibility

The ICC’s determination of reasonable grounds for an individual’s alleged criminality is distinct from establishing whether a crime under its jurisdiction has occurred. A provisional order against a State for potentially violating an international criminal norm does not necessarily entail that there are reasonable grounds for its officials’ individual criminal responsibility.

Nonetheless, it must be stressed that dehumanising statements by Herzog, Gallant, and Katz were, in conjunction with the factual determinations made by various UN bodies, deemed sufficient for the ICJ to find a plausible violation of the Genocide Convention. Based on these statements, the ICJ, with only one vote against from Judge Sebutinde, decided to order Israel to ‘take all measures within its power to prevent and punish the direct and public incitement to commit genocide against members of the Palestinian group in the Gaza Strip’ (§ 86(3)). The Prosecutor could take into account the weight attached to those statements by the ICJ in determining whether or not to request arrest warrants against them under Article 25(3)(e) of the Rome Statute, depending on how direct he considers this incitement to be.

Moreover, the ICC Prosecutor’s mandate exceeds the Genocide Convention; the statements by Israeli leaders could also indicate failures to prevent or punish a broader range of international crimes by forces under their control. The South Africa v Israel case, while anchored in the Genocide Convention, encompasses various war crimes and crimes against humanity. Before the ICJ, the jurisdictional imperative is to categorise these acts under the strict definition of genocide, a limit the ICC does not have. The facts presented by South Africa which the ICJ considered as plausible indicators of a risk to the rights of the Palestinians in Gaza under the Genocide Convention can also be characterised as war crimes—like civilian starvation as an unlawful method of war, attacks against civilian persons and objects, targeting medical and educational facilities, and ill- treatment. They might also amount to crimes against humanity, such as forcible population transfer, extermination, persecution, and other inhumane acts. A parallel can be drawn here to atrocities committed in former Yugoslavia in the 1990s where the ICJ ultimately found genocide to be unproven except in Srebrenica, whereas the ICTY had characterised many of those possibly genocidal acts as war crimes and crimes against humanity in the cases against their perpetrators. 

Should There be Less Caution?

The ICC’s ‘reasonable grounds to believe’ standard occupies a middle ground between the initial ‘reasonable basis to believe’ used for opening an investigation and the higher ‘substantial grounds to believe’ required for confirming charges. Ultimately, for a conviction, the evidence must establish ‘beyond reasonable doubt’ that the accused is guilty of the charges. 

In our view, the Prosecutor should make it clear that it has followed with great attention proceedings before the ICJ and its finding on the plausibility that genocidal acts are being, or are about to be, committed. The ICJ finding of plausibility falls easily within the ‘reasonable basis to believe’ standard, which warrants further investigation. This standard may be considered the most proximate to, if not lower than, the plausibility standard applicable before the ICJ. 

Some case law from the ECtHR suggest that plausibility is also sufficient for the ‘reasonable grounds to believe’ standard. However, there is a notable difference between how the ICC Prosecutor exercises the power to prosecute a case, and what Article 58 actually demands. According to the Prosecutor’s official policy, an application to the Pre-Trial Chamber for a warrant or summons will only be made ‘if there is a sufficient basis to proceed and there is a reasonable prospect of conviction at the end of trial (§35).’ The burden of ‘reasonable prospect of conviction’ is higher than the ‘reasonable grounds to believe’ standard, and even than the ‘substantial grounds to believe’ standard applicable for the confirmation of charges. This cautious stance may be informed by the repeated budget concerns expressed in recent years. 

The cautious stance is also markedly different from the rationale behind ICJ provisional measures, which aim to prevent the risk that irreparable harm could befall the rights deemed plausible by the Court. In the Gambia v. Myanmar, Professor Schabas, representing Myanmar, advanced the view that especially in ‘a case involving allegations of exceptional gravity’, the Court should apply a ‘stricter plausibility standard’. Judge ad hoc Kress, appointed by Myanmar but nonetheless voting in favour of the provisional order, pondered ‘whether the distinct — that is, the protective — function of provisional measures does not point in the opposite direction, precisely because fundamental values are at stake’ (§4).

Arguably, a similar logic can to an extent be applied by the ICC Prosecutor. Of course, the ICC’s decision to initiate a case against an individual must consider the person’s human rights against unwarranted arrest, detention, and potential reputational harm. The Court however also has a preventative task, as expressed in the preamble of the Rome Statute. Although this is most notably through ending impunity, the ICC can also help prevent atrocities in other ways. Most directly, it can do this by issuing arrest warrants against those who incite genocide, even if genocide has not yet been committed. But it can also do this by acting quickly to prevent further crimes (not only genocide) or by issuing an arrest warrant despite not yet having a ‘reasonable prospect of conviction’, but rather ‘reasonable suspicion/grounds to believe’. After all, the investigation will continue and further evidence, possibly enough to secure a conviction, will emerge.

In our view, the current situation in Gaza presents a critical and challenging question: Should the ICC issue warrants and summons as soon as there is reasonable suspicion of grave crimes? While we do not have a definite answer, the World Court’s finding of potential genocide and the ever increasing humanitarian crisis in Gaza appear to present a need. A need possibly comparable to the one the ICC”s new president Judge Tomoko Akane referred to when she recently stated that ‘[a]s long as there is evidence and a need, we must issue (the arrest warrant) no matter the circumstances or political background.’