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wishes to see protected, but only whether these rights are “plausible” and whether there is a “real and imminent risk of irreparable injury” to them before the Court renders its judgment on the merits[1].

10. The jurisprudence of the Court is not entirely clear as to what “plausibility” entails[2]. Recent jurisprudence suggests that any request for the indication of provisional measures must provide some level of evidence supporting its allegations[3], including indications for the presence of any essential mental elements[4]. In the present Order, the Court has noted the importance of the specific genocidal intent without, however, specifying its plausibility in the present case (see paragraphs 44 and 78).

11. Given the crucial role of genocidal intent for rights under the Genocide Convention and for the distinction between genocidal acts and other criminal acts, the plausibility of this mental element is, in my view, indispensable at the provisional measures stage of proceedings involving allegations of genocide. This is confirmed by the Court’s Order of 23 January 2020 in The Gambia v. Myanmar. It is true that the Court stated in paragraph 56 of that Order that

“[i]n view of the function of provisional measures, which is to protect the respective rights of either party pending its final decision, the Court does not consider that the exceptional gravity of the allegations is a decisive factor warranting, as argued by Myanmar, the determination, at the present stage of the proceedings, of the existence of a genocidal intent. In the Court’s view, all the facts and circumstances mentioned above (see paragraphs 53-55) are sufficient to conclude that the rights … are plausible.”

12. However, this does not preclude that such intent must be shown to be plausible under the circumstances. Indeed, the same paragraph 56 confirms that the Order must be read as being based on the facts and circumstances referred to in the preceding paragraphs. There, the Court considered detailed reports by the Independent International Fact-Finding Mission on Myanmar[5]. Each of these reports examines at length—and eventually declares plausible—the existence of genocidal intent[6]. In paragraph 55 of the above-mentioned Order, the Court explicitly takes note of the conclusion drawn in the reports that “on reasonable grounds … the factors allowing the inference of genocidal intent [were] present”. It was based on these findings regarding genocidal intent that the Court considered the rights under the Genocide Convention to be plausible. The Order of 23 January 2020

  1. ↑ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, pp. 27-28, paras. 74-75.
  2. ↑ K. Oellers-Frahm and A. Zimmermann, “Article 41”, in A. Zimmermann et al., The Statute of the International Court of Justice: A Commentary (3rd ed.), (OUP 2019), pp. 1157-1158.
  3. ↑ Jadhav (India v. Pakistan), Provisional Measures, Order of 18 May 2017, I.C.J. Reports 2017, pp. 242-243, para. 45; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 427, para. 54.
  4. ↑ See Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, pp. 131-132, paras. 75-76.
  5. ↑ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 22, para. 55, citing United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/64, 12 September 2018; United Nations, Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/CRP.2, 17 September 2018; and United Nations, Report of the Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/42/50, 8 August 2019.
  6. ↑ See IIFFMM (12 September 2018), paras. 84-87; IIFFMM (17 September 2018), paras. 1411-1441; IIFFMM (8 August 2019), para. 90. See further FFM report (16 September 2019), paras. 220-225, 238, which was cited in other paragraphs of the Order.
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