The Genocide Convention Before the World Court, Again

On 6 March 2025, Sudan brought proceedings against the United Arab Emirates (UAE) before the International Court of Justice (ICJ), alleging breach of the 1948 Genocide Convention. 

Sudan’s application relates to the treatment of the Masalit group in Sudan, in particular in West Darfur, where an organisation known as the “Rapid Support Forces” (RSF), and related militias, have been in operation.

Sudan claims that the UAE has given “direct support” to the RSF and is “complicit in the genocide on the Masalit”. Sudan has requested that, pending final judgment, the ICJ indicate provisional measures. 

Both the application itself, and the request for provisional measures, provide the most recent example of States invoking the Genocide Convention and requiring the World Court to adjudicate on active conflicts across the globe.

Three Conflicts in Recent Years

The conflict in Sudan is the third in recent years to give rise to a dispute before the ICJ which relies on the Genocide Convention dispute.

First, in Allegations of Genocide Under the Convention on Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Ukraine asserted that the basis upon which Russia justified its 2022 invasion gave rise to a dispute under the Convention.

On 16 March 2022 the ICJ made an order to indicate provisional measures, including (by 13 votes to 2), to require the Russian Federation to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine”. 

The order also, by unanimity, required both Ukraine and the Russian Federation, to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve”. The proceedings remain ongoing, and as of early 2025 the Court is seized with the question as to whether or not certain counter-claims made by the Russian Federation are admissible.

Second, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), the Court initially indicated interim measures on 26 January 2024. In a carefully reasoned Order, it concluded that it has prima facie jurisdiction (jurisdiction “on the face of it”) over the dispute, and that South Africa has prima facie standing to bring the claim.

In one of the more misunderstood aspects of the analysis, the Court also concluded that at least some of the rights asserted by South Africa are plausible (i.e. the right of Palestinians in Gaza to be protected from acts of genocide and related prohibited acts), and that there was a link between those plausible rights and the provisional measures sought. As a result the ICJ indicated certain measures which, in effect, require Israel to comply with the Genocide Convention. 

On 28 March 2024, after a renewed application from South Africa, the Court once again indicated provisional measures, this time aimed at the prevention of famine and starvation, as well as access to basic services, humanitarian assistance, and medical care. 

Then, on 24 May 2024, after a further application, the Court ordered Israel to “immediately half its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part”. The proceedings are ongoing.

Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany) also relates to the conflict in Gaza. In contrast with South Africa’s case, however, Nicaragua’s application relates not to Israel, but to Germany, on the basis of the latter’s support for Israel. And, in contrast with both the Ukrainian and South African applications, Nicaragua was not successful in its request for the indication of provisional measures. 

The analysis in the Court’s order of 30 April 2024, refusing the request, is notable for its brevity in contrast with the orders in South Africa v. Israel. It is less methodical and largely consists of an account of the facts as alleged by both Parties. Despite the short shrift given to the request (described elsewhere as a “pragmatic” approach) the Court also refused Germany’s request to delist the case entirely. As a result proceedings, too, are ongoing.

Sudan’s Application to the Court

Sudan has now added another conflict to the first two – its struggle against the RSF in West Sudan. Sudan’s application, entitled Proceedings Instituted by Sudan against the United Arab Emirates, relates to the activities of the RSF, and the UAE’s alleged support for the organisation and related militias. The conflict in Sudan, and the impact on the Masalit people in particular, has already attracted attention at the United Nations.

Sudan claims that the UAE has violated its obligations under Article I of the Genocide Convention (an obligation to prevent and to punish genocide). It alleges that the UAE is “complicit in the genocide on the Masalit” by direction of and provision of “extensive financial, political, and military support” for the RSF. 

As with the three cases already before the Court, in relation to Ukraine and Gaza, the ultimate resolution of Sudan’s application will take years. In the interim, however, the request for provisional measures will, once against, bring the Genocide Convention before the Court.

Request for Provisional Measures

In addition to the final relief, Sudan has also requested, pursuant to Article 41 of the ICJ Statute the indication of provisional measures. This approach follows a recent trend – both in the cases brought pursuant to the Genocide Convention (set out above) as well as more generally – whereby applications to the Court have been accompanied with robust, even ambitious, requests for provisional measures.

In Sudan’s case, the request is for the Court to order the UAE to take “all measures within its power” to prevent the commission of acts contrary to Article II of the Genocide Conventions, as well as to order the UAE to ensure that any “irregular armed units” which it directs or supports (and related persons and organisations) do not commit any acts contrary to Article II, or any related acts. 

In some respects, a request for the indication of provisional measures may be more impactful than the ultimate determination of the case. The threshold for the indication of provisional measures is necessarily lower than that which applies when the case comes for final determination before the Court. 

Moreover, provisional measures raise the prospect of the Court having an immediate impact on an ongoing situation, rather than an after the fact determination of the lawfulness of things already done. 

As former ICJ President, Judge Joan Donoghue, has said, once the Court delivers a final judgment, it is not a “monitoring mechanism”. In contrast, in South Africa v. Israel, the Court has required Israel to report on its compliance with provisional measures, and Israel has done so. 

In Sudan’s case, it will be of interest to see which of the two approaches relied upon more recently prevails: the more methodical approach of South Africa v. Israel, or the more cursory – “pragmatic” – approach in Nicaragua v. Germany. And, if the Court does indicate provisional measures, the actual impact of those measures on the ground will give a further indication of the Court’s influence. 

Law’s Potency and Limitations

Sudan’s application, then, is a reminder of the potency of, and limitations of, both procedural and substantive law in the face of conflicts which have devastating daily impacts on the lives of millions.

In terms of procedure, part of the potency of a request for the indication of provisional measures is that, in accordance with Article 74 of the Rules of the Court, such a request “shall have priority over all other cases”. The procedure therefore offers States an opportunity to achieve a timely intervention in an ongoing situation. After careful consideration in South Africa’s case, the reasoning in Nicaragua’s was more conclusory, and it remains to be seen if this marks a sea-change or not.

In terms of substantive law, it is notable that Ukraine, South Africa, Nicaragua, and Sudan, have all relied on the Genocide Convention. The Convention is a potent tool, both because of the moral force of a claim that acts of genocide are being carried out, and – relatedly – because of the legal force which those claims have had, in particular since the decision in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). 

However, not all disputes are capable of characterisation as falling within the nexus of the Genocide Convention. In the future, a treaty on crimes against humanity may provide a jurisdictional basis to bring a conflict before the Court, resort to the morally, legally, and politically difficult concept of genocide. (See also on this the comments of Judge Donoghue). That treaty, though, remains some way off. 

In the interim, however slow the wheels may turn, the Genocide Convention is likely to remain grist to the mill of international justice. No adjudicative body, or indeed international organisation of any kind, has proven capable of preventing all conflict. Still, in the face of diplomatic malaise, the ICJ’s authority as an independent judicial organ makes it an ever more valuable forum for a rules-based international order.