On 5th May, 2025, the International Court of Justice [‘ICJ’] delivered its Order in Sudan v. United Arab Emirates, in the application filed on March 5, 2025 instituting proceedings against the UAE concerning alleged violations of the Genocide Convention [Convention], concerning the Masalit group in Sudan. By a vote of 14-2, the Court rejected Sudan’s request for provisional measures against the UAE. and, by a narrower margin of 9-7, the Court ordered the case removed entirely from its General List, determining that it ‘manifestly lacks jurisdiction’ [‘MLoJ’] to entertain Sudan’s application. [See Quazi Foysal] In this contribution, the author first decodes the ICJ Order and judges’ opinion. Secondly, by placing the judicial opinions in conversation with one another, he examines the broader implications of the Court’s approach to jurisdictional questions in cases concerning allegations of genocide and evaluates whether the Court missed an opportunity to establish clearer guidelines regarding early dismissal of cases from its General List.
The Majority Opinion
The majority opinion rejected Sudan’s request for provisional measures and removed the case from the General List due to the ‘MLoJ test’. While expressing deep concern about the ‘unfolding human tragedy in Sudan’, the Court emphasized that its scope was ‘necessarily circumscribed by the basis of jurisdiction invoked in the Application.’ [¶16-17] The Court determined that the UAE’s reservation to Article IX of the Convention, which Sudan claimed was the sole jurisdictional basis for the case, was formulated in ‘clear terms’ and effectively excluded the Court’s jurisdiction over all disputes to which the UAE may be a party under that provision. [¶28-32] The Court rejected Sudan’s argument that the reservation’s wording was vague or that it incompletely excluded jurisdiction, concluding that the omission of certain phrases did not create uncertainty about the reservation’s effects. As per majority opinion, ‘the reference in the reservation to the interpretation, application and fulfilment of the Convention encompasses the responsibility of a State,’ and consequently, ‘the reservation by the UAE can only be interpreted as seeking to exclude the jurisdiction of the Court over all disputes, under Article IX of the Convention, to which the UAE may be a party.’ [¶29]
The majority opinion further held that the UAE’s reservation was not incompatible with the object and purpose of the Convention, as it only affected the Court’s jurisdiction and not substantive obligations regarding acts of genocide. The majority emphasized that reservations to Article IX are permissible, citing several precedents where the Court had previously given effect to such reservations, including Yugoslavia v. Spain, Yugoslavia v. United States of America, DRC v. Rwanda, and Ukraine v. Russian Federation. [¶31] The Court concluded that Article IX ‘cannot constitute, prima facie, a basis for the jurisdiction of the Court in the present case’ and thus cannot indicate the provisional measures requested in order to protect the rights invoked in the Application submitted by Sudan. [¶33] [See, Luciano Pezzano] Having found that it MLoJ, the Court determined that maintaining the case on the General List ‘would not contribute to the sound administration of justice’ in a system of consensual jurisdiction where it appears certain that the Court will not be able to adjudicate on the merits. [¶35] Despite removing the case, the Court emphasized the fundamental distinction between the question of acceptance by States of the Court’s jurisdiction and the conformity of their acts with international law, noting that States remain obligated to comply with the Convention regardless of whether they have accepted the Court’s jurisdiction under Article IX. [¶36] This statement, referencing DRC v. Rwanda, served as a reminder that the Court’s inability to exercise jurisdiction did not relieve the UAE of its obligations under international law, particularly those arising from the Convention, and it remained ‘responsible for acts attributable to them which are contrary to their international obligations.’
Judge Yusuf’s Dissenting Opinion
Judge Yusuf, in his sole Dissenting Opinion, fundamentally challenged the majority’s conclusion regarding both the rejection of provisional measures and the removal of the case from the General List. He differentiated his position by specifically contesting the Court’s interpretation of the UAE’s reservation to Article IX of the Convention. While the majority viewed the reservation as clear and comprehensive, Judge Yusuf contended that its wording was ambiguous and could be interpreted as a partial reservation rather than a complete exclusion of the Court’s jurisdiction. He emphasized that the UAE’s reservation omitted crucial language about ‘the responsibility of a State for genocide’ found in Article IX itself, suggesting this omission was deliberate and potentially preserved the Court’s jurisdiction over cases directly concerning a state’s responsibility for genocide. Judge Yusuf further distinguished his opinion by criticizing the Court’s jurisprudential approach to MLoJ. He contended that the threshold for removing a case from the General List should be exceptionally high and must be ‘beyond any possible doubt’, a standard he believed was not met in this case, given the interpretative ambiguities in the UAE’s reservation. Specifically, he held that the Court should have proceeded to the preliminary objections phase, where both parties could have fully presented their arguments on jurisdiction, rather than making a summary dismissal at the provisional measures stage. Judge Yusuf maintained that the Court’s approach undermined judicial economy rather than serving it, and potentially denied access to justice in a case concerning allegations of genocide, which represents one of the most serious violations of international law.
Joint Partly Dissenting Opinion
The Joint Partly Dissenting Opinion [‘JPDO] of the six judges focused primarily on the Court’s decision to remove the case from the General List based on the MLoJ test. The six judges disagreed with this procedural decision, noting that Sudan should have been granted the opportunity to fully present its jurisdictional arguments regarding the UAE’s reservation to Article IX of the Convention. They expressed concern about the Court’s ‘rush to judgment,’ which they believe effectively punishes Sudan for seeking provisional measures. [¶1, JPDO] While they acknowledge having differing views on the strength of Sudan’s jurisdictional arguments, they unanimously oppose the summary dismissal of the case at such an early stage. The dissenting judges emphasized that provisional measures proceedings serve a distinct and limited function—to protect parties’ rights from urgent and irreparable harm during proceedings and are not designed for the Court to make definitive jurisdictional determinations. [¶2] They highlighted the time-pressured nature of these proceedings, with only two hours of oral pleadings per party, making them inappropriate for the thorough examination of complex jurisdictional disputes. [¶3-4, JPDO]
The six judges noted that Sudan presented substantive arguments regarding both the scope/interpretation and validity of the UAE’s reservation, including the observation that the UAE’s reservation language differs significantly from other Article IX reservations by omitting specific language about ‘the responsibility of a State for genocide’ [¶7-8] and that the Court should reconsider its 2006 holding in DRC v. Rwanda regarding such reservations. [¶10] The dissenting judges held that the Court’s power to remove cases for MLoJ has been exercised only twice in 25 years, and only in cases where no jurisdictional arguments were presented at all. [¶ 17, JPDO] They urged that the appropriate approach would have been to follow Article 79 of the Rules of Court by bifurcating proceedings to address jurisdictional questions first, which would allow both parties to submit full pleadings and evidence. [¶22, JPDO] The six-judges concluded that this approach prevents the evolution of the Court’s jurisprudence on reservations to Article IX of the Convention, especially given important developments in legal doctrine and State practice in the nearly twenty years since the Court’s ruling in DRC v. Rwanda [¶25, JPDO], and undermines a fundamental aspect of a State’s ‘right to be heard’ fully. [¶27, JPDO]
Judge Gómez Robledo’s Dissenting Opinion
Judge Gómez Robledo’s Dissenting Opinion expresses full agreement with the joint partly dissenting opinion but offers additional reflections on why he opposed removing the case from the Court’s List. While agreeing that Article IX does not, prima facie, constitute a basis for jurisdiction due to the UAE’s reservation [explaining his vote to reject Sudan’s request for provisional measures] [¶2, Robledo’s DO], he firmly believed the Court should have stopped there without pronouncing on its ‘MJoL’ test. [¶3] He contended that this decision deprived the Court of an important opportunity to assess whether international law relating to reservations and the Convention has evolved in the 20 years since the DRC v. Rwanda case. Judge Robledo emphasized that provisional measures proceedings are not the appropriate procedural stage for definitive pronouncements on jurisdiction, noting that Article 79 of the Rules of Court already provides a mechanism for addressing jurisdictional questions separately. [¶4, Robledo’s DO] Judge Robledo specifically highlighted the unique character of the Convention due to ‘the extreme nature of the crime of genocide’ [¶ 6], citing the Court’s 1951 Advisory Opinion which described it as having a ‘purely humanitarian and civilizing purpose’ where states ‘do not have any interests of their own’ but rather ‘a common interest’ in accomplishing the Convention’s ‘high purposes.’ [¶7] By removing the case from the List at the provisional measures stage, Judge Robledo concluded that the Court failed in its fundamental responsibilities to act as guardian of the Convention and to determine whether international law has evolved regarding reservations to Article IX. [¶15, Robledo’s DO]
Judge ad hoc Simma’s Declaration
Judge Simma’s declaration focused on his opposition to the Court’s Order and his concerns regarding the UAE’s reservation to Article IX of the Convention. He emphasized that Article IX serves as the sole judicial forum for adjudicating inter-State genocide claims, and argues that reservations excluding the Court’s jurisdiction undermine the Convention’s ‘raison d’être.’ [¶2-4, Simma’s Declaration] He further disagreed with the Court’s equation of absence of prima facie jurisdiction with MLoJ, asserting that the Court missed an opportunity to properly address the validity of reservations to Article IX. [¶10-11] Unlike the majority opinion that dismissed the case based on the UAE’s reservation, Simma maintained that reservations to Article IX could potentially be deemed incompatible with the Convention’s object and purpose, citing that the differing views among judges demonstrated that lack of jurisdiction was not ‘apparent from the outset’. [¶9, Simma’s Declaration]
The ICJ’s Jurisdictional Jurisprudence in Sudan v. UAE
At the heart of the jurisdictional dispute lay the UAE’s reservation to Article IX of the Convention, the sole basis on which Sudan sought to establish the Court’s jurisdiction. In evaluating this reservation, the Court methodically addressed two distinct questions: first, whether the reservation’s language effectively excluded jurisdiction; and second, whether such a reservation was compatible with the object and purpose of the Convention. The Court determined that the UAE’s reservation was formulated in ‘clear terms’ despite Sudan’s claims of ambiguity. Particularly notable was the Court’s holding that the omission in the reservation of specific language about ‘the responsibility of a State for genocide’ did not create interpretative uncertainty. The ICJ reasoned that the reservation’s reference to ‘interpretation, application and fulfilment’ necessarily encompassed state responsibility claims, rendering the reservation comprehensively effective against all disputes under Article IX. [See, Yonah Diamond] The Court’s analysis of the reservation’s validity reaffirmed its established doctrine that reservations to Article IX are permissible provided they are not incompatible with the object and purpose of the Convention. Drawing upon well-established precedent from cases including Yugoslavia v. Spain, Yugoslavia v. USA, DRC v. Rwanda, and Ukraine v. Russia, the ICJ emphasized that such reservations bear on the jurisdiction of the Court and do not affect substantive obligations relating to acts of genocide themselves under that Convention.’ [¶ 31] This reasoning reinforces the Court’s consistent position that procedural reservations differ fundamentally from reservations to substantive obligations under the Convention.
The Court’s decision to remove the case from the General List represents a consequential application of the MLoJ test. Having concluded that the UAE’s reservation excluded Article IX jurisdiction and finding no alternative jurisdictional basis, the Court determined that maintaining the case would not contribute to the ‘sound administration of justice.’ [¶ 35] (emphasis mine) The Court invoked precedent from the Yugoslavia case, where similar determinations led to early removal from the List. This determination suggests that, in the Court’s view, the threshold for determining when lack of jurisdiction becomes ‘manifest’ may be satisfied by a clear reservation to the compromissory clause without need for further proceedings. The narrow 9-7 vote on this aspect, however, reveals significant judicial disagreement about this application of the test.
Continuity of International Obligations & Jurisdictional Barriers
The Court’s majority judgment preserves the distinction between jurisdictional constraints and substantive obligations under international law. The Court explicitly states that ‘whether or not States have accepted the jurisdiction of the Court according to Article IX of the Convention, they are required to comply with their obligations under that instrument, and they remain responsible for acts attributable to them which are contrary to their international obligations.’ [¶36] This statement serves as a crucial reminder that procedural limitations on the Court’s authority do not diminish the substantive legal responsibilities of states regarding genocide prevention and punishment. This position aligns with the 1951 ICJ Advisory Opinion which characterized the Convention’s purpose as “purely humanitarian,” defining its object as ‘to safeguard the very existence of certain human groups’ where parties ‘do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes.’
The narrow vote margin on removing the case from the General List reveals substantial judicial division concerning the appropriate procedural threshold for early dismissal. The dissenting judges, led by Judge Yusuf, fundamentally contested the majority’s equation of a lack of prima facie jurisdiction with ‘MLoJ’ warranting removal without further proceedings. The JPDO emphasized that provisional measures proceedings are inherently limited in scope and time, with only two hours of oral pleadings per party, making them inappropriate for definitive jurisdictional determinations. They argued that Sudan presented substantive arguments regarding both the interpretation and validity of the UAE’s reservation that merited full consideration through a preliminary objections phase rather than summary dismissal. This concern echoes the Joint Separate Opinion in DRC v. Rwanda, where over a third of the Court rejected or urged reconsideration of Article IX reservations, emphasizing that procedural provisions ‘may well be central to the whole efficacy of those instruments’ and expressing disbelief that a State could still ‘shield from international judicial scrutiny any claim that might be made against it concerning genocide.’
Missed Opportunity in MLoJ Jurisprudence [?]
The Court’s approach to the MLoJ test remains somewhat underdeveloped despite this opportunity to provide clearer guidance. The majority opinion does not articulate precise standards for determining when jurisdictional defects are sufficiently ‘manifest’ to warrant removal at the provisional measures stage. The dissenting judges noted that this power has been exercised ‘only twice’ in 25 years, and only in cases where no jurisdictional arguments were presented at all. [¶17, JPDO] A comprehensive elaboration on this standard would have enhanced predictability in future contentious cases, particularly given the significant judicial disagreement evidenced by the 9-7 vote. A notable missed opportunity in the majority judgment concerns its refusal to consider potential evolutions in international law regarding reservations to Article IX. Indeed, since the DRC v. Rwanda judgment, the Court has issued its first genocide judgments in Bosnia v. Serbia and Croatia v. Serbia, while four additional cases have invoked Article IX to initiate proceedings: Gambia v. Myanmar, Ukraine v. Russia, South Africa v. Israel, and Nicaragua v. Germany. These developments have exponentially expanded the scope of Article IX and the Court’s capacity to hear genocide cases. However, the summary removal of the case foreclosed examination of whether the permissibility of reservations to Article IX might be reassessed in light of these developments.
Moreover, the Court’s majority opinion implicitly prioritizes judicial economy over broader access to justice considerations. It presumes that proceeding further would constitute a misallocation of judicial resources when jurisdiction is manifestly lacking. However, as the dissenting opinions emphasize, this approach might inadvertently discourage states from seeking provisional measures in cases where jurisdictional questions are complex. The dissenting judges warned that removing the case from the List at such an early stage effectively ‘punishes Sudan for seeking provisional measures’ [¶1, JPDO] and prevents a full hearing on significant questions of international law. This concern is particularly relevant given evolving State practice, where several influential States have objected to Article IX reservations as incompatible with the Convention’s object and purpose, and twelve States have withdrawn such reservations in recent decades, suggesting an emerging consensus on their invalidity.
Conclusion
The Court’s judgment demonstrates remarkable judicial restraint in strictly applying the principle of consent-based jurisdiction without addressing the merits of Sudan’s allegations. The significant division among the judges regarding the appropriate procedural threshold for early dismissal suggests continued tension between procedural efficiency and ensuring thorough consideration of jurisdictional questions in cases concerning jus cogens [compelling law] norms and erga omnes [towards all] obligations. The tension is heightened when considering that under customary international law, the prohibition of genocide is a jus cogens norm binding on all States regardless of their Convention accession, suggesting that the Convention’s purpose must extend beyond merely formalizing these preexisting obligations to provide for their tangible enforcement. The Court’s interpretative approach to the UAE’s reservation suggests that the effectiveness of intent will generally prevail over technical precision in wording. Additionally, the majority’s willingness to equate the absence of prima facie jurisdiction with ‘MLoJ’ warranting removal establishes a procedural pathway that respondents’ states may increasingly invoke to seek early dismissal of cases. Whether this approach will be consistently applied in future cases remains to be seen, particularly given the significant judicial disagreement evidenced by the narrow vote margin on removal. As the ICJ’s role in genocide prevention continues to evolve, this decision raises profound questions about whether procedural technicalities should stand in the way of the universal and foundational international commitment to prevent and punish genocide.