Sudan v. United Arab Emirates:
Short-lived but Meaningful?
By Juliette McIntyre
Published on 4 April 2025
Introduction
Since 2013, Sudan has faced a catastrophic civil war between the Sudanese Armed Forces and the paramilitary Rapid Support Forces (‘RSF’). In 2024, the RSF was accused of committing genocide in respect of its attacks against the Masalit people in West Darfur. These acts of genocide, forcible displacement, and murder committed by the RSF are now the subject of proceedings at the International Court of Justice. Somewhat unexpectedly, on 5 March 2025 Sudan accused the United Arab Emirates (‘UAE’) of multiple violations of the Genocide Convention by reason of complicity in RSF activities. Sudan alleges that the UAE has provided ‘extensive financial, political, and military support’ to the RSF and that in effect the RSF ought to be considered ‘an organ of’ the UAE government. Sudan has also requested that the Court indicate provisional measures requiring the UAE to take all measures within its power to prevent the commission of acts of genocide.
This is the fourth in a line of high-profile cases alleging of violations of the Genocide Convention presently being heard by the Court. In the three prior cases – The Gambia v. Myanmar, Ukraine v. Russia, and South Africa v. Israel – the Court has confirmed that Article IX of the Genocide Convention grants it a wide-ranging authority to address disputes related to the interpretation, application or fulfilment of the Convention. There is just one problem. In 2005, upon its accession to the Genocide Convention, the UAE entered a reservation to Article IX. The Court does not have jurisdiction, and the case cannot proceed.
Reservations to Genocide: Between Substance and Procedure
Sudan is not unaware of this. It contends in its application that the UAE reservation is only ‘purported’. It argues that the ‘possibility of submission by one of the parties of a dispute to the Court plays a pivotal role in the system of “interpretation”, “application”, and … the “fulfilment” of the Genocide Convention’. Fundamentally, Sudan insists that the UAE reservation should be set aside as being incompatible with the object and purpose of the Convention.
However, on several occasions the Court has had the opportunity to consider the validity of reservations to Article IX and each time it has found that such reservations are valid. For example, in Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), the Democratic Republic of Congo raised similar arguments regarding Rwanda’s reservation, suggesting that it was incompatible with the object and purpose of the Convention and void insofar as it prevented the Court from ‘fulfilling its noble mission of safeguarding peremptory norms’ (at p.30). The Court reiterated its statement from East Timor that ‘the erga omnes character of a norm and the rule of consent to jurisdiction are two different things’. The Court has tended, as a matter of judicial policy, to draw a strict distinction between the status and effect of a substantive norm and procedural questions such as standing, jurisdiction, or intervention. As noted by the Court in Armed Activities, a
reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court, and does not affect substantive obligations relating to acts of genocide themselves under that Convention (at p.32).
More recently, the Court endorsed this approach by implication in the intervention proceedings in Ukraine v. Russia, when the United States declaration of intervention was held to be inadmissible at the preliminary objections phase due to its Article IX reservation. The Court found that ‘the legal interest that the United States is presumed to have in the construction of the Genocide Convention, as a party to that instrument, does not exist in respect of Article IX’. Were reservations to Article IX void on the basis of being incompatible with the object and purpose of the treaty, as Sudan argues, the United States would have been able to intervene. It seems very unlikely that the Court will be compelled by this latest case to overturn decades of jurisprudence constante.
Can Sudan Nevertheless Obtain Provisional Measures?
It bears noting that Article 41 of the Court’s Statute, which governs provisional measures, does not set out any requirements regarding the existence of the Court’s jurisdiction. The Court will, however, only indicate provisional measures if there appears to be, prima facie, a basis on which its jurisdiction over the merits could be founded. For example, in South Africa v. Israel, the Court proceeded to indicate measures on the basis that both States were parties to the Genocide Convention and ‘[n]either of the Parties has entered a reservation to Article IX’ (at p.11). This again implies the general permissibility of such reservations.
It would seem, therefore, that Sudan cannot overcome the hurdle of prima facie jurisdiction and will not be able to obtain provisional measures. This precise scenario occurred in Legality of Use of Force (Yugoslavia v. Spain), where the Court held that not only that the ‘Genocide Convention does not prohibit reservations’ (at p.772) but that there was also no other basis of jurisdiction for the proceedings and as such:
Whereas it follows from what has been said above that the Court manifestly lacks jurisdiction to entertain Yugoslavia’s Application; whereas it cannot therefore indicate any provisional measure whatsoever in order to protect the rights invoked therein; and whereas, within a system of consensual jurisdiction, 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 most assuredly not contribute to the sound administration of justice (at p. 773).
It appears that Sudan’s application will imminently meet the same fate – prompt removal from the General List after the conclusion of the provisional measures hearings and the issuance of an Order stating that the Court does not have jurisdiction to indicate provisional measures.
So, What’s the Point?
While Sudan has every right to challenge the Court’s jurisprudence on reservations to the Genocide Convention, the almost inevitable result begs the question whether the institution of these proceedings has any point or whether they are simply a waste of the Court’s already thinly spread time and resources.
From the perspective of Sudan, it can be suggested that one benefit lies in the provisional measures hearings themselves. In the competition for global public attention, the genocide in Sudan has been overshadowed by other genocides, such as in Gaza. As I have argued elsewhere, a courthouse can be conceived as a type of stage on which the play of a trial unfolds before an audience. The Court’s oral proceedings are a type of performance in which the parties perform for the general public and the news media as much as for the Court. This performance generates important symbolic capital for use both domestically and internationally and has been utilised with great success by other States such as Ukraine. Put simply, Sudan will have the opportunity to tell their story on the world’s largest stage. If the proceedings do little more than to remind the world that atrocities are ongoing in Sudan and need to be addressed, then perhaps they will have done some good.