On 5 May 2025, the International Court of Justice (ICJ) removed the case of UAE v Sudan from its docket, declaring it “manifest” that it lacked jurisdiction under Article IX of the Genocide Convention (Order, para 14). Sudan alleged that the United Arab Emirates materially supported the Rapid Support Forces in Darfur, facilitating genocidal violence. It sought urgent provisional measures, its first application to the Court under the Convention.

The Court’s response broke from its recent procedural posture in genocide litigation. In The Gambia v Myanmar and Ukraine v Russia, the ICJ held oral hearings and considered provisional measures despite unresolved jurisdictional objections. In UAE v Sudan, by contrast, the Court relied on the UAE’s reservation to Article IX to conclude that jurisdiction was excluded, and struck the case from the General List without hearing argument, testing Sudan’s legal reasoning, or assessing the urgency of the situation (Order, paras 13–15). While jurisdiction is undoubtedly a precondition to adjudication, the Court chose not to examine Sudan’s claim that the reservation was vague, incompatible with the Convention’s object and purpose, or separable under Article 44 of the Vienna Convention on the Law of Treaties (VCLT). It thus used the existence of a contested reservation to foreclose procedural engagement altogether.

The significance lies in what the Court chose not to do. It did not assess whether Sudan’s rights under the Convention were plausible, whether the alleged harm was urgent or irreparable, or whether provisional protection was warranted under Article 41 of the Statute. Provisional measures exist precisely to protect rights from being irreversibly harmed while jurisdiction remains unsettled. As Gentian Zyberi notes, they are not intended to replace full adjudication, but to preserve the possibility of justice in contexts of legal uncertainty and factual urgency. Yet here, the Court treated the UAE’s reservation as immediately conclusive, thereby denying itself the authority to even consider provisional measures.

This shift was not without critique from within the Court. Judge Yusuf called the decision “foreign to the normal judicial process” and warned that striking the case without a hearing compromised the principle of procedural fairness (Dissenting Opinion, paras 13–15). The joint dissent, by six judges, expressed concern that the protective purpose of the Genocide Convention should not be neutralised by procedural minimalism (joint dissent, paras 9–10). Judge Gómez Robledo likewise argued that the Court had prematurely closed access to adjudication without engaging the legal dispute over the reservation (Separate Opinion, paras 3–5, 12).

This post builds upon those concerns. It does not contest the relevance of state consent as the basis of jurisdiction, but questions the procedural logic by which that consent was interpreted as dispositive without testing legal contestation. It argues that the Court’s invocation of “manifest lack of jurisdiction” to deny both interim protection and further proceedings recalibrates the threshold for judicial engagement in genocide cases. This raises a deeper institutional question: What becomes of the Court’s protective function when formalism trumps urgency? And what becomes of its credibility when jurisdiction is foreclosed without hearing?

II. Comparative Procedural Trajectories in Genocide Litigation

To understand the procedural implications of UAE v Sudan, it is necessary to compare the Court’s handling of earlier genocide-related cases. In both The Gambia v Myanmar and Ukraine v Russia, the ICJ held oral hearings and issued provisional measures despite jurisdiction being either unresolved or actively contested. In those cases, the Court acknowledged legal uncertainty but prioritised the protective purpose of Article 41 by allowing interim relief to be considered.

In The Gambia v Myanmar, the Court found that it had prima facie jurisdiction under Article IX of the Genocide Convention and that The Gambia’s claims were plausible (Order of 23 January 2020, paras 22–30). It clarified that a full jurisdictional determination was not required at the provisional stage and concluded that the risk of irreparable harm to the Rohingya population warranted intervention (paras 62–63). In Ukraine v Russia, the Court accepted that a dispute existed under the Convention, even though Russia objected to the claim’s legal basis. It treated Ukraine’s interpretation as arguable and proceeded to assess urgency and plausibility (Order of 16 March 2022, paras 18–26, 75). In both cases, jurisdiction needed to be arguable, not conclusively resolved.

UAE v Sudan departed from this approach. Invoking a “manifest lack of jurisdiction,” the Court dismissed the case outright without a hearing or substantive engagement with Sudan’s arguments. Sudan had contested the UAE’s reservation as vague and incompatible with the Convention’s object and purpose, and it invoked Article 44 of VCLT to challenge the reservation’s effect (para 24-25). The Court treated the reservation as legally dispositive without testing its validity or examining its scope (Order of 5 May 2025, paras 13–15, 29–30).

As Judge Yusuf observed, the dispute over jurisdiction merited hearing. He criticised the Court for denying Sudan the chance to present its arguments and warned that procedural foreclosure without adversarial exchange was “foreign to the normal judicial process” (Dissenting Opinion, paras 13–15). The joint dissent echoed this concern, noting that the Court bypassed its usual procedural protections and introduced an untested threshold for jurisdictional dismissal (Joint Dissent, paras 6–14, 16–19). Judge Gómez Robledo likewise criticised the Court for failing to engage with Sudan’s legal reasoning and for treating reservations as dispositive without analysis (Separate Opinion, paras 3–5, 12–15).

This comparative trajectory underscores a broader procedural shift. By invoking “manifest lack of jurisdiction” to remove the case without testing Sudan’s legal arguments, the Court treated a contested reservation as legally dispositive. As the dissenting judges noted, this approach lacks grounding in the Court’s Statute or Rules and introduces an untested procedural threshold. The decision quietly recasts how jurisdictional objections may function at the provisional stage, with implications for the Court’s protective role under Article 41.

This procedural asymmetry is doctrinally significant. Earlier cases tolerated substantial jurisdictional ambiguity where plausible claims of mass atrocity were raised. In UAE v Sudan, a reservation was used to preclude even preliminary review. The Court’s discretion did not serve protection but operated as a procedural filter.

The Court’s shift toward prioritising jurisdictional certainty over humanitarian urgency has particularly grave implications for states like Sudan, whose limited access to adjudicatory resources already constrains their ability to pursue legal protection. When such procedural filters pre-empt even preliminary engagement, Global South litigants risk not only legal dismissal but systemic exclusion from international fora (Makau Mutua; James Gathii).

III. Reservations, Interpretation, and Judicial Retrenchment

The Court’s finding of manifest lack of jurisdiction in UAE v Sudan rested entirely on the UAE’s reservation to Article IX of the Genocide Convention. This reservation excludes the jurisdiction of the ICJ over disputes arising under the Convention. The Court accepted the reservation at face value and held that it applied conclusively to the dispute, thereby precluding both provisional measures and further adjudication (Order of 5 May 2025, paras 13–15).

This reasoning represents a departure from the Court’s prior practice in cases involving reservations to Article IX. In Armed Activities on the Territory of the Congo (New Application: 2002), the Court examined Rwanda’s reservation in light of the Convention’s object and purpose and explicitly rejected a mechanical reading of jurisdictional exclusions (Judgment of 3 February 2006, paras 92–96). Similarly, in Croatia v Serbia, the Court permitted the case to proceed despite jurisdictional complexity and addressed the scope and legal effect of reservations only at the merits stage (Judgment of 3 February 2015, paras 86–93). In both cases, the Court avoided treating the reservation as an automatic bar and instead subjected it to legal scrutiny.

In UAE v Sudan, no such scrutiny occurred. It did not test whether the UAE’s reservation was vague or overly broad, nor did it examine Sudan’s argument that the reservation should be interpreted in light of the Convention’s protective purpose. Sudan also invoked Article 44 of the VCLT, which allows for the severability of reservations that undermine essential treaty obligations. As William Schabas has observed, reservations to Article IX are not unusual, but their legal effect must be assessed contextually to prevent erosion of the Convention’s enforcement regime

Judge Yusuf rejected this approach. He noted that the Court had historically engaged with reservations as legal objects requiring judicial interpretation. By treating the UAE’s reservation as dispositive without any analysis, the majority abdicated its responsibility to examine the legal basis of its own jurisdiction (Dissenting Opinion, para 14). The joint dissent similarly criticised the Court for permitting what amounted to a procedural veto, warning that such deference undermines the protective structure of the Genocide Convention (Joint Dissent, paras 9–10).

Judge Gómez Robledo also objected to the decision to strike the case. He noted that although he did not support granting provisional measures, he saw no justification for removing the case from the list without engaging the legal issues raised. He called attention to recent developments in international human rights law that have treated reservations as subject to rigorous scrutiny (Separate Opinion, paras 3–5, 12). This includes the International Law Commission’s Guide to Practice on Reservations to Treaties, which affirms that reservations affecting core treaty obligations must be examined in light of their compatibility with the object and purpose of the instrument.

This raises a broader interpretive concern. By treating reservations as dispositive at the earliest stage, the Court privileges textual certainty over contextual reasoning and avoids asking whether such reservations are consistent with the Convention’s protective logic. Yet courts charged with interpreting human rights and humanitarian treaties carry a responsibility to read jurisdictional clauses in ways that preserve access, particularly where procedural formalism may preclude urgent legal protection. Where Article 41 once operated to preserve rights amid legal uncertainty, it now risks functioning as a procedural gate that blocks even preliminary review.

UAE v Sudan signals a departure from that responsibility. Article IX, once a pathway for judicial intervention, now risks functioning as a procedural barrier. If left unchecked, reservations may evolve into jurisdictional shields that obstruct emergency measures in precisely the cases where they are most needed.

IV. Provisional Measures, Procedural Tightening, and the Erosion of Protection

The dismissal of UAE v Sudan at the provisional measures stage marks a significant recalibration in the Court’s use of Article 41. While provisional measures have always required certain legal conditions, the Court has previously interpreted these flexibly to preserve rights at risk of irreparable harm. That tradition appears to be narrowing. The 5 May 2025 Order suggests that the Court may now require greater jurisdictional certainty from the outset, even in disputes involving allegations of genocide.

In The Gambia v Myanmar, the Court confirmed that it had prima facie jurisdiction under Article IX of the Genocide Convention, found The Gambia’s claims plausible, and concluded that the situation met the urgency requirement for provisional measures (Order of 23 January 2020, paras 22–30, 62–63). In Ukraine v Russia, the Court followed a similar structure, treating Ukraine’s interpretation of the Convention as arguable and issuing measures on the basis of urgent risk (Order of 16 March 2022, paras 18–26, 75).

These decisions reflect an understanding of Article 41 as a precautionary mechanism. The Court did not treat jurisdictional objections as dispositive at the provisional stage. Instead, it focused on whether the applicant’s claims were arguable and whether the situation called for immediate judicial intervention to preserve rights at risk of irreparable harm.

By contrast, UAE v Sudan bypassed this protective sequence entirely. The Court held that jurisdiction was manifestly lacking and therefore declined to consider plausibility or urgency (Order, para 14). There was no oral hearing. The Court did not examine the factual record or Sudan’s claims regarding the situation in Darfur. It treated the UAE’s reservation as a definitive bar and removed the case from the General List. This raises a more foundational concern. Under Article 36(6) of the Court’s Statute, it is for the Court itself to determine whether it has jurisdiction in the event of dispute. That procedural responsibility does not vanish merely because a reservation is invoked. By refusing to hear Sudan’s objections or assess the scope of the reservation, the Court sidestepped a core judicial function. The issue, then, is not whether the Court could override consent, but whether it discharged its obligation to interpret the basis of that consent.

This shift transforms Article 41 from a protective tool into a jurisdictional gatekeeping provision. As Shabtai Rosennewarned, the Court must not allow procedural discretion to undermine its ability to prevent harm in crisis situations (pp 1433 – 1437).

The dissenting judges raised serious objections. Judge Yusuf argued that denying Sudan a hearing contravened fairness and procedural integrity, and weakened the Genocide Convention’s protective aims (Dissenting Opinion, paras 13–15). As the joint dissent notes, this is the first time the Court has removed a case at the provisional measures stage where jurisdiction was actively contested. The few prior examples, such as the 1999 Legality of Use of Force cases, involved no such dispute and were based on clear absence of jurisdiction (Joint Dissent, paras 17–18). Judge Gómez Robledo, though unconvinced of Sudan’s jurisdictional case, declined to endorse the summary removal of proceedings (para 3).

What remains is a more rigid procedural threshold. States seeking provisional protection may now be required to establish jurisdictional certainty before any engagement occurs. In legally complex disputes involving mass violence, that threshold risks denying access to precisely those in need of urgent relief.

V. Recalibrating Access: Procedure, Power, and the Future of Protection

UAE v Sudan marks a subtle but far-reaching redefinition of the Court’s protective role under the Genocide Convention. By allowing an unexamined reservation to terminate proceedings at the provisional stage, the ICJ placed procedural exclusion above interpretive scrutiny. Article IX now risks becoming a clause that can be disabled by reservation, without legal testing or hearing.

The dissenting opinions confront what the majority sidestepped: that procedural rigour cannot substitute for judicial responsibility. The danger lies not simply in rigid doctrine, but in treating contested access as a reason to disengage.

What is at stake is more than Sudan’s claim. It is the Court’s credibility when its protective function matters most. If access to adjudication depends on textual clarity alone, states with limited institutional leverage may be denied voice altogether (Koskenniemi, 2009). Whether this decision becomes an exception or a precedent will shape the future of legal protection in international adjudication.