Genocide Without Intent?: The ICJ’s Peculiar Provisional Measures Jurisprudence
Vol. 32
January 2026
Page 33
The term “genocide” evokes moral horror and echoes of history’s darkest episodes. The U.N. Genocide Convention codifies genocide as a crime under international law, the essence of which is a specific intent (or dolus specialis) to destroy a protected group, in whole or in part. The International Court of Justice has decided genocide cases a handful of times in the past 75 years, most recently involving requests for interim relief while the cases were pending. In cases against Myanmar and Israel, the Court seemed to suggest that the claims of genocide were “plausible” and ordered provisional measures. But the content and scope of the Court’s “plausibility” test are shrouded in mystery, seemingly even to members of the Court. It is uncertain how or even whether applicants must show the plausibility of their claims of breach when requesting provisional measures. This uncertainty has been especially acute in cases where the breach of an international legal obligation requires specific intent on the part of the breaching party, such as the commission of genocide. Consequently, the Court has found the plausibility standard to be satisfied without making any explicit finding of the existence of specific intent. For the sake of its own legitimacy and effectiveness as well as the integrity of the international judicial process, the Court should clarify the plausibility standard for indicating provisional measures, especially in cases involving allegations of genocide. The article offers four options for doing so.
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The term “genocide” evokes moral horror and echoes of history’s darkest episodes. The U.N. Genocide Convention codifies genocide as a crime under international law, the essence of which is a specific intent (or dolus specialis) to destroy a protected group, in whole or in part. The International Court of Justice has decided genocide cases a handful of times in the past 75 years, most recently involving requests for interim relief while the cases were pending. In cases against Myanmar and Israel, the Court seemed to suggest that the claims of genocide were “plausible” and ordered provisional measures. But the content and scope of the Court’s “plausibility” test are shrouded in mystery, seemingly even to members of the Court. It is uncertain how or even whether applicants must show the plausibility of their claims of breach when requesting provisional measures. This uncertainty has been especially acute in cases where the breach of an international legal obligation requires specific intent on the part of the breaching party, such as the commission of genocide. Consequently, the Court has found the plausibility standard to be satisfied without making any explicit finding of the existence of specific intent. For the sake of its own legitimacy and effectiveness as well as the integrity of the international judicial process, the Court should clarify the plausibility standard for indicating provisional measures, especially in cases involving allegations of genocide. The article offers four options for doing so.