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this stage, preliminary though it might be. In particular, it must, in this case, take into account the widespread destruction in Gaza and loss of life that the population of Gaza has thus far endured. Article II of the Genocide Convention provides that an intent “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such” is a constitutive element of genocide as defined under the Convention. Disputes with respect to the meaning of this requirement have, in the past, been before this Court, and the Court’s decisions have shed light on the requirements of this provision. According to the Court’s jurisprudence, “in order to infer the existence of dolus specialis from a pattern of conduct, it is necessary and sufficient that this is the only inference that could reasonably be drawn from the acts in question”[1]. However, the Court need not, at a provisional measures stage, make a final determination on the existence of such intent. In its Order of 23 January 2020 indicating provisional measures in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), the Court stated 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”.
It added that “all the facts and circumstances mentioned … are sufficient to conclude that the rights claimed by The Gambia and for which it is seeking protection … are plausible”[2].
9. Again, the Court is not at this point deciding whether, in fact, such intent existed or exists. All it is deciding is whether rights under the Genocide Convention are plausible. Here, the widespread nature of the military campaign in Gaza, as well as the loss of life, injury, destruction and humanitarian needs following from it—much of which is a matter of public record and has been ongoing since October 2023—are by themselves capable of supporting a plausibility finding with respect to rights under Article II.
10. Taken together and, bearing in mind the lower standards that apply in respect of provisional measures as opposed to the merits, the evidence on the record at this stage in the proceedings is such that, in the circumstances of this case, the Court was justified in granting provisional measures in the terms it did.
11. Going further, though, all participants in the conflict must ensure that all fighting and hostilities come to an immediate halt and that remaining hostages captured on 7 October 2023 are unconditionally released forthwith.
- ↑ Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), p. 67, para. 148.
- ↑ 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. 23, para. 56.
