Professor Alexander Orakhelashvili
On 5 May 2025, the International Court decided to reject Sudan’s request for indication of provisional measures in the Sudan v UAE case and to remove the case form its General List. The decision was guided by the Court’s attitude to reservations under Article IX of the Genocide Convention. The Court acknowledges that “a reservation under the Genocide Convention would not be permissible if such a reservation is incompatible with the object and purpose of the Convention” (para.30). Yet, it suggests that UAE’s reservation “bears on the jurisdiction of the Court and does not affect substantive obligations relating to acts of genocide themselves under that Convention”; it is “meant to exclude a particular method of settling a dispute relating to the interpretation, application or fulfilment of the Convention”, and is hence not “to be regarded as incompatible with the object and purpose of the Convention” (para. 31). This is all the Court says on this matter, regardless of the extensive argument and evidence alluded to by both parties. The Court’s reasoning is terse, perhaps because there would be no consensus among judges on any more substantial reasoning. The Court refers to previous cases in which it was favourable to Article IX reservations even though, except one, those previous cases involved incidental or interim findings, rather than a full-fledged jurisdictional dispute.
Earlier I have set out grounds for invalidity of Article IX reservations, and I will not repeat them here. It is sufficient to point out that the Court’s Order contains no proper examination of the object and purpose of the Genocide Convention and disposes of the complex issue of jurisdiction and of law of treaties in one sentence. The Court shows no consideration of the ILC’s work on reservations either.
The outcome endorsed by the Court projects an implausible dichotomy between the Convention’s substantive and institutional or jurisdictional provisions, even though the latter are the only means through which the uniform or consistent interpretation of the Convention could be secured. Otherwise, every State-party could unilaterally construe any of the Convention’s terms, for instance what kind of intent is required for a conduct to amount to genocide, or in which cases States-parties are obliged to establish jurisdiction over persons allegedly engaging in genocide. In that respect, Judge ad hoc Simma has correctly stated that Article IX “designates the Court as the sole judicial forum for adjudicating inter-State claims involving genocide, among them the question of State responsibility for this international crime” and hence it “goes to the very ‘raison d’être of the [C]onvention.’”
Further to its very brief reasoning, the Court concluded that “it appears certain that the Court will not be able to adjudicate on the merits”, which was the reason for removing the case from the General List. The problem arising here has been highlighted by six Judges who dissented on that point. As they point out, “provisional measures proceedings, with two hours of oral hearings allocated per party to address all the factors for provisional measures, are not — and should not be — the appropriate stage to conduct a thorough and final determination of such arguments” (para.15). Judge Yusuf has also rightly indicated that “This dispute on jurisdiction should have been treated in the same way as the Court did when it dealt with the [self-judging or automatic] reservation of the United States of America in Interhandel”. Therefore, “The dispute between the two Parties in the present case is not a dispute on which the Court could make a final decision after very brief hearings on a request for provisional measures.” (Dissenting Opinion, paras 16 & 20)
Why, then, did the Court rush to removing the case from the General List, and did so for the first time in the ordinary jurisdictional dispute and without proper examination of evidence? One possible explanation could be the Court’s avoidance of the reputational problem about having wrongly decided some previous cases. But such reversals are not uncommon in the practice of international courts: the 1966 South-West Africa decision has been effectively reversed in Gambia v Myanmar; and the European Court has also reversed its Bankovic decision in a later case of Al-Skeini. The main reason driving the Court’s decision – one at the extreme range of possible outcomes in the case – is more likely to be about the interests and concerns of other States-parties to the Genocide Convention who have made reservations to Article IX including, above all, the United States of America, and about keeping them immune from lawsuits on a range of issues arising under the Genocide Convention. To paraphrase the point the Court once made in a related context, there is no way to have access to the minds of Judges and find out what their intentions have exactly been, because “reasons, which enter into a mental process, are obviously subject to no control.” Nevertheless, and judging from the context, it is clear that all those who consider themselves to be “realists” or “pragmatics” will inevitably conclude that the Court’s Order manifests the Court’s dutiful deference to the interests of a powerful State.