Sudan, the Genocide Convention, and the ICJ’s Jurisdiction – Indian Blog of International Law

Sarthak Sahoo

Introduction

On 5 May 2025, the International Court of Justice (‘Court’) delivered its order on provisional measures in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in Sudan (Sudan v. United Arab Emirates) (‘Genocide’). For context, the Repbulic of Sudan had instituted proceedings – including the request for indicating provisional measures – against the United Arab Emirates as it considered the latter responsible for genocide against the Masalit people via the Rapid Support Forces, a party to the civil war in Sudan.

However, the merits have attracted little discussion about this. It is, instead, the claims of jurisdiction that have obtained importance. Whereas both the States are parties to the 1951 Genocide Convention, the UAE had expressed a reservation to Article IX, which is the treaty’s compromissory clause. The reservation read as follows:

‘the Government of the United Arab Emirates . . . makes a reservation with respect to article IX thereof concerning the submission of disputes arising between the Contracting Parties relating to the interpretation, application or fulfilment of this Convention, to the International Court of Justice, at the request of any of the parties to the dispute.’

Naturally, this posed two problems for Sudan. First, it would have to demonstrate that the Court has prima facie jurisdiction despite this reservation such that it is capable of indicating provisional measures. Second, it would have to eventually demonstrate that the Court has jurisdiction per se, such as to decide its claims on the merits. Both problems address the same legal questions, but differ on the legal standard. The former would be a ‘lower’ threshold, easier for Sudan to meet than the latter.

The Arguments

At the oral hearings of the provisional measures stage, Sudan addressed the Court on why it had prima facie jurisdiction. First, it argued that the UAE’s reservation in particular was phrased ambiguously, and could potentially be constructing as eventually affording jurisdiction to the Court. See Verbatim Record 2025/1 (pg 29 et seq). This ambiguity (and not the construction Sudan necessarily prefers) alone would be sufficient to state that prima facie jurisdiction existed.

Second, and as an alternative, it argued that the reservation was incompatible with the object and purpose of the Convention. See Verbatim Record 2025/1 (pg 34 et seq).This second argument is especially interesting, as the Court has given effect to Article IX reservations in multiple cases. See Legality of Use of Force (paras 32-33). It also has also declared them compatible with the object and purposes of the Convention. See Armed Activities (paras 67-70).

Naturally, UAE, on its own part, invoked these cases to argue that reservations to Article IX are permissible. It also argued the construction was not ambiguous at all. However, then, the UAE turned to argue that the Court should not end at merely not indicating provisional measures; but instead, should remove the case from its General List altogether at this stage. See Verbatim Record 2025/2 (pg 29 et seq).

This argument emerges from the practice of the Court to remove cases from the General List at the provisional measures stage if there is a ‘manifest lack of jurisdiction’. In other words, this is a threshold lower than the ‘jurisdiction’ and ‘prima facie jurisdiction’ questions. When the Court concludes that, at the provisional measures stage, there is a manifest lack of jurisdiction, it refuses to hold separate hearings on jurisdiction and admissibility; thus, implying that the grounds for jurisdiction claimed are so implausible that no benefit would come of such hearings. The case is removed from the General List.

The Questions in Order

In its order, the Court addressed both the ‘prima facie jurisdiction’ and ‘manifest lack of jurisdiction’ questions. On the former, it holds fourteen (14) to two (2) that the Court did not have such jurisdiction, and could not indicate provisional measures. It found that the UAE’s reservation is not ambiguous insofar as its answerability to Court is concerned. It also reaffirmed the fact that various cases had affirmed the validity of Article IX reservations to be valid. Judge Yusuf and Judge ad hoc Simma dissented (more on this presently).

However, having found that no prima facie jurisdiction existed, the Court then went on to say that it manifestly lacked jurisdiction. It stated that, ‘to maintain on the General List a case upon which it appears certain that the Court will not be able to adjudicate on the merits would not contribute to the sound administration of justice.’ This was a far more contentious call, with nine (9) judges voting in favour to seven (7) against. Apart from the inclusion of Judge ad hoc Simma, this included Judges Bhandari, Charlesworth, Gómez Robledo, Cleveland and Tladi.

On Prima Facie Jurisdiction

As stated before, this has been the more uncontroversial attestation, simply holding that prima facie, there is no jurisdiction to be found owing to the clear and valid UAE reservation. At this stage, the votes by Judge Yusuf and Judge ad hoc Simma are radical insofar as they would effectively ‘overrule’ the long line of cases that have held that reservations to Article IX are permitted.

But a perusal of Judge Yusuf’s dissent paints a different picture. He does not address the question of why prima facie jurisdiction does exist. Instead, he simply goes on to argue the Court’s conflated a finding of prima facie jurisdiction relevant for Article 41 and jurisdiction on the merits under Article 79 et seq when it dealt with the ‘manifest lack of jurisdiction’ plank.  See Part II and III of the Opinion. This, as the reader can tell, is an argument about the second question, i.e., on the Court’s finding on manifest lack. However, he does not explain his opposition to the Court that prima facie jurisdiction. Thus, his vote on prima facie jurisdiction remains unreasoned.

The only explanation for this may be found in Part IV of his Opinion, which refers to the Court’s decision in the Armed Activities decision. There, he flagged a separate opinion which underscored that a reservation to Article IX of the Genocide Convention could be ‘incompatible with the object and purpose’; that such compatibility was not ‘self-evident’. The Judge states that this case ‘was an excellent opportunity’ to reconsider this. However, I hesitate to characterise this as an explanation for his vote, as it simply becomes a tool for him to speak to the unfairness of the Court not giving a separate hearing on the jurisdiction on merits (in other words, an argument against manifest lack of jurisdiction). See Paragraph 19-20. He ultimately takes no position on why there is prima facie jurisdiction.

Judge ad hoc Simma, on the other hand, explains his vote on this question in his declaration. He states, plain and simple, that a reservation to Article IX is incompatible with the purposes of the Genocide Convention. See Paragraph 4. He argues this is so as the ICJ is the sole forum capable of adjudicating upon a State’s compliance with the Convention. See Paragraph 2. He also notes of broader humanitarian trends in his behalf, including the many withdrawals of Article IX reservations, and recognition of doctrines like erga omnes partes.  See Paragraph 6-7.

He, like Judge Yusuf, also flags the separate opinion in Armed Activities. But most crucially, he takes the extra step in stating that ‘[t]here is thus much more law and legal policy to consider than at the time of Rwanda’, thus justifying his vote on this question. See Paragraph 6. He further refers to the ILC’s 2011 Guide on reservations, which itself leaves open the possibility that a reservation to the compromissory clause is invalid. See Paragraph 48. Ultimately, even he does not pronounce conclusively on why prima facie jurisdiction does exist, but his observations provide us sufficient indication to explain his vote.

Notwithstanding the legal arguments advanced by the Judge, I find two observations by him to be somewhat incompatible with the restraint expected of a member of the Court. First, during the closure of oral hearings, Judge ad hoc Simma asked the UAE the following question See Verbatim Record 2025/2 (pg 49):

‘What are the reasons that made the United Arab Emirates enter its reservation to Article IX of the Genocide Convention?’

This question is not only irrelevant to a inquiry into the Court’s jurisdiction over a dispute per se, it hints at a legal predetermination being made based on the political considerations that led to the lis. Thus, this question falls outside the scope of the judicial function of the Court.

Secondly, and similarly, in paragraph 4 of his declaration, the Judge states that reservations to Article IX of the Convention must be regarded as ‘a disgrace to the States parties concerned’. This is a comment on the wisdom and not legality of a sovereign right available to States. This comment was not necessary for the Judge’s legal observations, and could have been omitted.

On Manifest Lack of Jurisdiction

It is the second question that has seen greater judicial discussion in this case. As stated above, Judge Yusuf states in his dissent that the right to be heard on jurisdiction is a statutory right guaranteed under Article 79 et seq. See Paragraph 25. It cannot be supplanted by a negative finding of prima facie jurisdiction. To use the Court’s language, there cannot be any prejudice caused to the jurisdiction on the merits based on prima facie jurisdiction. See Paragraphs 2-4.

However, by locating a manifest lack of jurisdiction, the Court effectively prejudices and negates any consideration of jurisdiction on the merits altogether.  Thus, he finds the practice of removing a case from the General List at the provisional measure stage itself contrary to law. For him, this can only happen if the jurisdiction of the Court is based forum prorogatum – a situation where the Applicant has no argument, but a request for jurisdiction by the Respondent, which has been left unaffirmed.

Judge ad hoc Simma on the other hand, takes no principled opposition to the manifest lack of jurisdiction standard. Instead, he observes that given the number of Judges who have expressed concerns with the legality of Article IX reservations, such lack of jurisdiction cannot be considered ‘manifest’ or ‘self-evident’. See Paragraph 9. Instead, he finds further hearings on jurisdiction necessary to decide such a claim, exhorting the possibility that the Court find no prima facie jurisdiction, but end up finding jurisdiction on merits when having heard both parties subsequently. See Paragraph 10.

Similarly, Judge Gómez Robeldo finds that given that much jurisprudence on the Genocide Convention arose only after the Armed Activities decision, to base a manifest lack of jurisdiction on that question would be unfounded. See Paragraph 9. He also cites the ILC 2011 Guide on the question, and speaks to the ‘living’ nature of international law. See Paragraph 11-12. Interestingly, these arguments appear somewhat indistinguishable from one on the ‘prima facie jurisdiction’ question – but ultimately are only used in an illustrative and instrumental sense to make the point for further hearing being necessary. 

Finally, the largest quantum of judges (including Judges Bhandari, Charlesworth, Gómez Robledo, Cleveland, Tladi and Judge ad hoc Simma), speaking in their joint dissenting opinion, simply make an argument on the procedural fairness of removing the case from the General List. It takes note of Sudan’s arguments on the construction of the reservation per se, as well as the ‘applicability of its 2006 holding’. See Paragraph 14. It marshalls, for example, the vast majority of cases where a lack of prima facie jurisdiction did not lead to a lack of manifest jurisdiction. See Paragraphs 16-17. In the two cases where this did happen, it distinguishes them on law – that no arguments were present before the Court to proceed at the next stage. Id.

Given that a hearing on jurisdiction would be a right available to Sudan had it not sought provisional measures, the joint opinion characterises the Court’s conduct as punishing Sudan for seeking enforcement of international law in a timely and urgent manner. See Paragraphs 1 and 21. Finally, lightly acknowledging evolution since the Armed Activities case, the dissent concludes that the ‘right to be heard’ of the Applicant is violated. See Paragraph 27.

Conclusion

Two distinct trends emerge from this analysis. First, votes that claim there is prima facie jurisdiction are thoroughly unreasoned in this case. Instead, they seem to be a symbolic expression on behalf of those Judges who take a more radical position than the joint dissenting opinion on the manifest lack of jurisdiction and its implications.

Second, there are effectively three arguments for why the Court should not have removed the case from the General List. One, that such conduct violates the Statute per se. Two, that it violates the Applicant’s right to be heard given the contentious legal foundation of such prima facie characterisation, i.e., the development of international law since Armed Activities. Three, that it penalises any Applicant seeking provisional measures. The first and the third arguments seek to make a general point against the practice of removing cases from the General List; while the second one is based on the particular legal circumstances of this case.

In international fora, the aversion to ‘overruling’ precedent means that perhaps only the second argument will obtain judicial currency at a later date, if only by a change in the Court’s composition. However, the questions raised on the Statute’s authorisation of the manifest lack test, and the natural justice implications thereof, seem to be ripe matters yet to be fully realised in legal discussion.