Posted: 9 April, 2025 Filed under: Zwelithini Eugene Xaba | Tags: conspiring to commit genocide, Emirati militants, forcible displacement, genocide, inciting genocide, Masalit people, Prevention and Punishment of the Crime of Genocide, Provisional Measures, question of jurisdiction, rape, Rapid Support Forces, Sudan, the Genocide Convention, UAE, United Arab Emirates
Author: Zwelithini Eugene Xaba
International lawyer
On Thursday 6 March 2025, Sudan initiated proceedings against the United Arab Emirates (UAE) before the International Court of Justice (ICJ/Court) alleging the violation of the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).[1] The application relates to the ongoing conflict in the territory of the Sudan, between its armed forces and the Rapid Support Forces (RSF) and their allied militia groups.[2] Sudan alleges that the UAE has violated Article 1 of the Genocide Convention as well as “other fundamental obligations…including by attempting to commit genocide; conspiring to commit genocide; inciting genocide; complicity in genocide; and failing to prevent and punish genocide.”[3] Sudan alleges that since 2023 the RSF has perpetrated a genocide against the Masalit, a Black African ethnic group resident in the West Darfur region, 2000 kilometers away from Khartoum, with the financial, political, and military support of the UAE.[4] The Government of Sudan alleges that acting under the military command and with the direct assistance of Emirati militants, the RSF has killed thousands of Masalit people of all ages as well as engaged in forcible displacement; rape and blockade of humanitarian assistance with the intent to destroy the group in whole or in part.[5] Sudan has also requested the indication of provisional measures pursuant to Article 41 of the ICJ Statute and Articles 73 to 75 of the Rules of Court.
While the entire submission by Sudan raises a lot of legal questions, this note is concerned with the jurisdiction of the Court over the case. The question of jurisdiction is important both as regards the main application itself as well as the request for Provisional Measures. The Court will only indicate provisional measures if the provisions relied on by the applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but it need not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case.[6]
Sudan argues that the Court has jurisdiction on the basis of Article 36 (1) of the ICJ Statute and Article IX of the Genocide Convention to which both Sudan and UAE are party. Article 36(1) of the ICJ Statute establishes the jurisdiction of the court over all cases submitted to it and all matters provided for in the UN Charter or other treaties in force. Article IX of the Genocide Convention grants the ICJ jurisdiction over disputes between parties to the treaty at their request.
Sudan is correct in pointing out that the UAE is indeed party to the Genocide Convention; they acceded on the 11th of November 2005.[7] However, the UAE made a reservation to Article IX of the Genocide Convention. The specific text of the reservation is quoted below:
“The Government of the State of the United Arab Emirates, having considered the aforementioned Convention and approved the contents thereof, formally declares its accession to the Convention and makes a reservation with respect to article 9 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.”[8]
The effect of the UAE’s reservation is to ouster the ICJ’s jurisdiction over cases brought against it concerning the application, interpretation and fulfillment of the Convention, including the present application filed by Sudan. The Court has long declared itself on this matter in the Case concerning armed activities on the territory of the Congo (New Application: 2002) in which it denied jurisdiction on the basis of Rwanda’s reservation against Article IX of the Genocide Convention.9] Moreover, and perhaps immediately pertinent, Sudan’s reliance on Article IX of the Genocide Convention would not prima facie afford the Court a basis on which its jurisdiction could be founded. Therefore, it is highly likely that the application and the request for provisional measures will likely fail on the basis of lack of jurisdiction.
This challenge brings to fore an issue that has been controversial for decades, the question of reservations that ouster the jurisdiction of the court in the Genocide Convention as well as other treaties with erga omnes status. In its advisory opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the Court already established that despite silence in the text of the treaty, reservations under the Genocide Convention were permissible.[10] This decision was not warmly welcomed in the fraternity of international law given the growing number of reservations against Article IX as well as the general academic and practitioners’ consensus that such reservations were in breach of international law as they offend the object and purpose of the treaty.[11]
In 2002, the Court had the occasion to test the thesis of the Advisory Opinion in its preliminary orders in the Armed Activities Case where DRC alleged that Rwanda’s reservation to Article IX of the Genocide Convention had been withdrawn and in the alternative, was against the Convention’s object and purpose as Article IX was an erga omnes norm. In the decision on the request for provisional measures, the Court reaffirmed that the Convention did not prohibit reservations and found that the reservation to Article IX did not bear on the substance of the Convention and therefore was not contrary to the object and purpose.[12] The Court also held that the DRC ought to have objected to the reservation at the time of its declaration,[13] although juridically speaking this would not have invalidated the reservations.[14]
Subsequently in the order on Jurisdiction and Admissibility, the Court reaffirmed its earlier findings, concluding that the reservation to Article XI was towards the jurisdictional clause of the Convention and not its substantive rules on the prevention and punishment of genocide which were erga omnes.[15] The Court further held that the erga omnes nature of the substantive provisions did not nullify the basis of establishing the Court’s jurisdiction, which was consent, which consent was expressly withheld by way of the reservation.[16]
On Thursday 10 April 2025, the Court will hold a public hearing on Sudan’s request for Provisional Measures. Based on the foregoing, it is highly anticipated that the Court will abide by its practice that “When a compromissory clause in a treaty provides for the Court’s jurisdiction, that jurisdiction exists only in respect of the parties to the treaty who are bound by that clause and within the limits set out therein.”[17] On that basis and in view of the foregoing, the Court will have no basis upon which to found jurisdiction to indicate provisional measures.
While one is sensitive to the ongoing conflict and the tough situation that it places Sudan in, it is impossible not to question whether the Sudanese legal team were aware of this reservation and chose to file the application regardless. If the answer to this question is in the affirmative, then it is possible that Sudan intends to challenge the Reservation much like DRC. Regardless of the argument they might make to the effect that the reservation presents no barrier to the establishment of the court’s jurisdiction, such contention is likely to fail. Despite its challenges, this case is a significant step for the people of Sudan in their continuing bid to secure peace and justice, and demonstrates their trust in the international justice system. The case brings to light the role played by different States such as the UAE as alleged in the conflict as well as the alleged ongoing genocide against the Masalit People in Sudan. It is hoped that a strong and lasting peace is urgently achieved in Sudan and these and other allegations are adjudicated expeditiously.
[1] ICJ Press Release “Sudan institutes proceedings against the United Arab Emirates and requests the Court to indicate provisional measures” 6 March 2025 (https://www.icj-cij.org/sites/default/files/case-related/197/197-20250306-pre-01-00-en.pdf )
[2] Application instituting proceedings (2025) accessed at https://www.icj-cij.org/sites/default/files/case-related/197/197-20250306-app-01-00-en.pdf para 2
[3] Sudan’s Application instituting proceedings (2025) para 5
[4] Sudan’s Application (2025) para 7-11
[5] Sudan Application (2025) para 7-11
[6] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) Provisional Measures, Order of 26 January 2024, para 15; Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), pp. 217-218, para. 24
[7] United Nations Treaty Collection “Convention on the Prevention and Punishment of the Crime of Genocide, status as at 07-03-2025″ ( https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-1&chapter=4&clang=_en )
[8] ” Convention on the Prevention and Punishment of the Crime of Genocide, Declarations and Reservations” United Nations Treaty Collection (2025) (accessible at https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-1&chapter=4&clang=_en )
[9] Democratic Republic of Congo v Rwanda, Request for the indication of provisional measures, Order of 10 July 2022
[10] Advisory Opinion of May 28th, 1951
11] International Law Commission (1951) ”Reservations to Multilateral Conventions” (https://legal.un.org/ilc/texts/instruments/english/reports/1_6_1951.pdf )
[12] Armed Activities New Application, Order on provisional measures (2002) para 72
[13] Armed Activities New Application, Provisional Measures Order (2002) para 72
[14] Schabas, W.A. (2009) ”Genocide Convention, Reservations (Advisory Opinion)” Oxford Public International Law (Accessible at https://odireitointernacionalpublico.wordpress.com/wp-content/uploads/2019/10/law-9780199231690-e136.pdf )
[15] Armed Activities on the territory of the Congo (New Application 2002) Democratic Republic of Congo v Rwanda, Jurisdiction and Admissibility of the Application (2006) para 64-70
[16] Armed Activities New Application, Admissibility and Jurisdiction Order (2006) para 66 and 67
[17] Armed Activities New Application, Order on Admissibility and Jurisdiction (2006) para 65
About the Author:
Zwelithini Eugene Xaba is an international lawyer. He writes in his personal capacity.
