Plausibilità nella concessione di misure cautelari per crimini internazionali: uno standard incerto

Since 2009 the International Court of Justice has elaborated a new criterion for the concession of provisional measures, the so-called plausibility. The Court never provided a definition of plausibility and the vagueness of the concept led to an uncertain application in the following jurisprudence. The indeterminacy of plausibility had interesting implications in two cases where the International Court of Justice was asked to decide about the concession of provisional measure for presuming violations of international criminal norms. In the case Ukraine v. Russian Federation, the Court, for the first time, denied the concession of provisional measures because the requisite of plausibility was not fulfilled due to the lack of a sufficient proof of the intentional element of the crime of financing terrorism. Two years later, in the case Gambia v. Myanmar, the Court seemed to change opinion. In that occasion, judges affirmed that the proof about the existence of a genocidal intent was not required and that the right invoked by Gambia was plausible. Such approaches are difficult to reconcile. Moreover, the different interpretation given by the Court on plausibility leads to some reflections about the standard of proof needed for the fulfilment of plausibility test and its implications.