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SUDAN’S surprise move to institute proceedings against the United Arab Emirates before the International Court of Justice on March 5, 2025, alleging that the latter is violating certain obligations under the Genocide Convention, raises several legal challenges and uncertainties. In this case, Sudan alleges that the UAE is complicit in genocidal acts committed against the Masalit group in the Darfur region of Sudan from at least 2023 by the Rapid Support Forces and their allied militias. Sudan further contends that the UAE is providing direct support to the forces and their allies, enabling them to perpetrate what is often referred to as the ‘crime of crimes’ — genocide.

Sudan’s accusation of genocide against the Rapid Support Forces and the Emirates’ involvement is far from a shocking revelation. Rather, it merely brings to light what has long been discussed in diplomatic circles. Sudan has already made several statements at the United Nations General Assembly and the UN Security Council targeting the Emirates’ involvement with the Rapid Support Forces. Earlier this year, the United States government accused the organisation of committing genocide and imposed sanctions on several Emirates-based shell companies linked to the organisation, as well as on its leader Mohamad Hamdan Dagalo. On January 27, 2025, International Criminal Court prosecutor Karim Khan made a statement before the UN Security Council that his office is seeking arrest warrants for individuals accused of atrocities in the Darfur region.

Throughout the history of the International Court of Justice, the Genocide Convention has frequently served as the jurisdictional basis for cases. The Sudan v UAE case marks the 19th genocide-related case and is the 5th ongoing genocide-related case. This is largely due to Article IX of the Genocide Convention, which empowers the ICJ to adjudicate disputes related to the interpretation, application, or fulfillment of the convention. Sudan acceded to the Genocide Convention on October 13, 2003, while the UAE did so on November 11, 2003. However, the UAE’s accession included a reservation to Article IX, requiring its consent for any genocide-related dispute to be submitted to the ICJ. Notably, Bangladesh also made a similar reservation to the Genocide Convention.

In the decentralised international legal order, the ICJ does not possess automatic jurisdiction over any case. This means disputing states must establish an uncontested jurisdictional basis for their cases. In many instances, the court bifurcates proceedings to address issues related to jurisdiction and admissibility as part of incidental proceedings. If the court finds that the case lacks a jurisdictional basis at the preliminary objections judgment, it will not proceed to the merits of that case, regardless of the strength of the evidence presented.

In Sudan v UAE, the UAE’s reservation to Article IX of the Genocide Convention presents a nearly insurmountable hurdle to proceeding to the merits stage. This issue warrants a thorough analysis.

Among the 18 prior Genocide Convention cases, four have involved the issue of reservations to Article IX. In the Pakistani Prisoners of War case (1973) between Pakistan and India, concerning the trials of Pakistani prisoners of war for their alleged roles in crimes committed in Bangladesh, India’s reservation to the Genocide Convention could have led to an unfavourable outcome for Pakistan. However, the dispute was resolved through diplomatic negotiations, and the case was discontinued. In two out of the ten Use of Force cases (1999), involving Yugoslavia on the one hand and Spain and the United States on the other, the cases were removed from the ICJ’s docket after the Provisional Measures Order due to Article IX reservations.

In the Armed Activities on the Territory of the Congo case (2002) between the Democratic Republic of the Congo and Rwanda, the Court declined to order provisional measures due to Rwanda’s reservation to Article IX, among other factors, but did not remove the case from the list. Ultimately, the court ruled in its preliminary objection judgement that there was no jurisdictional basis for the case. While the court affirmed the jus cogens nature of the prohibition of genocide, it also stated that this does not override the requirement for jurisdiction.

In its application instituting proceedings, Sudan argues that the reservation to Article IX does not prevent it from submitting the dispute to the ICJ, citing the ICJ’s advisory opinion on preservations to the genocide convention (1951). However, ICJ, in the same advisory opinion, held that a reservation to Article IX is valid as long as it does not defeat the object and purpose of the convention. This principle was later codified in Article 19(c) of the Vienna Convention on the Law of Treaties (1969). Sudan must now persuade the court to depart from this established legal position. While the ICJ is not strictly bound by precedent, it generally adheres to its prior rulings unless there is a compelling reason to deviate. It remains to be seen how Sudan will present its interpretation of the reservation to the Court.

Even if the ICJ were to rule that the reservation to Article IX is invalid — an unlikely scenario — this would not automatically allow Sudan to proceed with its case against the UAE. The reservation is linked to a state’s consent to become a party to a multilateral treaty, raising the question of whether the reservation can be severed from the consent. The European Court of Human Rights has developed the doctrine of severability to address similar issues in cases such as Bellilos v Switzerland and Loizidou v Turkey. However, its applicability to the ICJ remains shrouded in uncertainty.

Furthermore, Sudan alleges that the Rapid Support Forces is committing genocide with direct support from the UAE. Thus, Sudan must establish the link between the RSF and the UAE within the framework of international law. The International Court of Justice has addressed this issue in two key cases: Nicaragua v USA (1986) and Bosnia and Herzegovina v Serbia and Montenegro (2007). In Nicaragua v USA, the court established the ‘effective control test’ as the threshold for determining a state’s responsibility for the conducts of a non-state armed group in violating international law. Subsequently, the International Criminal Tribunal for the Former Yugoslavia held in Prosecutor v Tadić (1995) that the appropriate threshold was the ‘overall control test.’ However, the ICJ reaffirmed the ‘effective control test’ in Bosnia and Herzegovina v Serbia and Montenegro.

The evidentiary threshold for the ‘effective control test’ is higher than that for the ‘overall control test.’ In both prior cases, the applicant states failed to meet the ‘effective control test’ standard to establish their allegations. Sudan is likely to face similar challenges in proving this link, both during the provisional measures hearing and, if applicable, in the merit proceedings. It now appears that Sudan must overcome three labours of Hercules to advance to the merits stage.

Sudan has also requested provisional measures in this case. The International Court of Justice is expected to announce hearing dates soon. The outcome of the case will largely depend on the court’s decision regarding provisional measures. Generally, the jurisdictional threshold — prima facie jurisdiction, and evidentiary standard — plausibility of right, for provisional measures are lower than those required at the merits stage, making it relatively easier to establish the requirements for such measures. However, failure to establish jurisdiction could lead to the case being removed from the list, as seen in the use of force cases. The question remains whether Sudan will succeed in maintaining the case or if the UAE will prevail in arguing for its dismissal.

Beyond these legal complexities, the ICJ proceedings carry the potential for profound political ramifications. Sudan has brought the Darfur issue before the international community, and it is expected to present additional evidence supporting its claims during the provisional measures hearing. It is entirely possible that Sudan is pursuing political objectives rather than legal remedies through what some might term ‘lawfare.’ Such an approach is not novel in contemporary international relations, where legal disputes are sometimes leveraged for political gain.

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Quazi Omar Foysal is an international law expert.