Assessing The Effectiveness and Adequacy of Provisional Measures in Genocide Cases: A Comparative Study

Abstract

In international law, provisional measures refer to orders directed at the parties in a pending dispute, requiring them to act or refrain from acting in a certain way to safeguard their rights until a final judgment is rendered. The vast majority of international courts are vested with the authority to issue provisional measures. As the International Court of Justice (ICJ) highlighted in the Nuclear Tests Case, provisional measures constitute an inherent power of the Court. Similarly, in the Fisheries Jurisdiction Case, the ICJ emphasized that the purpose of such measures is to preclude irreparable harm and ensure the protection of the parties’ rights until the conclusion of the case. In its LaGrand Case, the ICJ further underscored that provisional measures are binding. However, despite their binding nature, the enforcement of provisional measures still remains problematic. Given that their implementation is generally deemed to be ensured and enforced by the Security Council, even in cases involving the prevention of genocide -a jus cogens norm- provisional measures have failed to meet expectations. While the enforceability of provisional measures is frequently debated, their legal capacity is less scrutinized. However, the primary duty of the Court is to issue measures capable of preventing and precluding irreparable harm. Under the Genocide Convention, the ICJ has so far dealt with four cases -Bosnia, Myanmar, Ukraine, and Gaza- where the adequacy of the provisional measures ordered so far has been subject to criticism. In cases like Bosnia, Myanmar, and Gaza, the Court’s measures have been questioned for being insufficient, whereas in Ukraine, the Court’s approach has been contested for misconceptualizing the issue. Moreover, in certain cases, ICJ judges argued the insufficiency of provisional measures. This study will first outline the general framework and purpose of provisional measures. Subsequently, it will provide a comparative analysis of the provisional measures issued by the ICJ in the four genocide-related cases, opening a discussion on the adequacy and effectiveness of the Court’s orders.

Keywords

• international law
• provisional measures
• genocide
• icj
• adequacy