How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
EDITORIAL NOTE *
The allegations described here are those made by Sudan in its application to the International Court of Justice. The Court did not reach the merits, and nothing in these proceedings established or disproved them; the United Arab Emirates denies them. The characterisation of the parties reflects the author’s own perspective and that of the sources cited; this journal’s editorial position is neutral.
The manuscript contained a section discussing the judgment in Germany v. Italy on state immunity, a different question in a different case, which was presented as though it concerned the reservation at issue here. That passage has been removed, since retaining it would mislead readers about what the Court decided. The comparison it gestures at is a legitimate one and is taken up in the section added by this journal.
ABSTRACT *
This article examines the relationship between the failure of mediation and the limits of judicial recourse, through the case brought by Sudan against the United Arab Emirates at the International Court of Justice in 2025. After diplomatic efforts failed to halt alleged external support for the Rapid Support Forces, Sudan applied to the Court for provisional measures under the Genocide Convention. On 5 May 2025 the Court found that it manifestly lacked jurisdiction, because the respondent had entered a reservation to Article IX of the Convention, and removed the case from its list without examining the substance of the allegations. The article sets out the arguments advanced against the validity of that reservation, the majority’s reasoning in upholding it, and the objections raised in the dissenting opinions, before considering what the outcome implies for the availability of legal remedy where political channels have collapsed.
KEYWORDS
Article IX, mediation failure, Genocide Convention, jurisdiction, reservations to treaties, state consent, erga omnes partes, provisional measures, Sudan, International Court of Justice
INTRODUCTION
When mediation breaks down, how far can states rely on international courts to settle disputes? This article explores that question through the case of Sudan against the United Arab Emirates at the International Court of Justice. Before turning to the case it is necessary to understand why mediation failed in this situation and what mediation is. Mediation has long been a principal means of resolving international disagreements under Article 33 of the Charter of the United Nations. It is a political process in which third parties help conflicting states reach agreement, often addressing the cessation of hostilities, the building of trust, and the design of longer-term arrangements. Unlike court proceedings, mediation depends on the willingness of both sides to cooperate and to compromise, which makes it vulnerable where trust is low or interests are in direct conflict.
MAIN CORPUS
The collapse of mediation and the turn to legal recourse
In the Sudanese case, mediation began with efforts to construct a framework that included a ceasefire, confidence-building measures, and the establishment of a transitional administration. Regional and global actors encouraged participation in a high-level dialogue support framework, with the United Arab Emirates playing a prominent role in supporting ceasefire arrangements and providing humanitarian assistance, including substantial funding, aircraft, and shipping (Ahmad 2025). These efforts nonetheless failed.
Although the respondent state was active in humanitarian assistance, allegations of its support for the Rapid Support Forces damaged its standing as a neutral party. The Sudanese government regarded the process as unbalanced and considered that questions of accountability and security were not properly addressed. Diplomatic initiatives were also insufficiently coordinated to arrest the escalating violence, particularly the threat to El Fasher, a city sheltering hundreds of thousands of people. The violence had by then become a major humanitarian emergency.
Although mediation should in principle have reduced tension and moved the parties toward settlement, in practice it did not, owing to conflicting international interests, the weakness of voluntary diplomacy, and the urgency of the situation. With mediation having failed, Sudan turned to the International Court of Justice as a means of obtaining measures to prevent further harm to the Masalit population.
After diplomatic efforts had broken down and support for the Rapid Support Forces allegedly continued despite international criticism and reports by United Nations panels of experts, judicial intervention was sought (Spivey 2025; Wintour 2025). The initiation of proceedings followed directly from the failure of diplomatic approaches, and the case therefore serves as a study of the relationship between collapsed political mediation and the subsequent, often compelled, turn to adjudication. As articulated in its application, Sudan turned to the Court as a last resort in order to secure urgent provisional measures.
The Court, however, removed the case from its list on 5 May 2025, exposing the limits of legal recourse as a fallback. The ruling, turning on the respondent’s reservation to Article IX of the Genocide Convention, demonstrates how procedural questions of consent can determine the outcome even where allegations concern a peremptory norm. The majority, following its earlier jurisprudence in the case brought by the Democratic Republic of the Congo against Rwanda, held that the reservation was clearly formulated and compatible with the object and purpose of the Convention, on the basis that it related only to the jurisdiction of the Court and not to substantive obligations. This foreclosed any examination of the central allegations.
This outcome bears out the concerns raised in the joint partly dissenting opinion, which argued that the summary removal of the case at the provisional measures stage deprived the applicant of a full hearing on significant questions of international law. The narrow division on removing the case from the general list indicates the extent of disagreement on the bench and suggests that the absence of jurisdiction was not regarded by nearly half the Court as manifest. Judge ad hoc Simma, in his declaration, contended that the Court had missed an opportunity to reassess the validity of such reservations in the light of the purpose of the Convention.
The case therefore illustrates a paradox: a state compelled to seek legal recourse by the collapse of political channels found its case dismissed on a point that is itself the subject of intense doctrinal debate. This raises questions about the viability of legal forums as instruments of last resort, and suggests that without reform the international community risks maintaining a system in which broad reservations to compromissory clauses can indefinitely delay or deny adjudication of the most serious international crimes (Carli 2025).
The Court’s procedural approach: reservations to Article IX
The Court’s handling of the reservation represents a firm adherence to a formal, consent-based view of its jurisdiction, and this served as the procedural basis for dismissal. The approach, while consistent with long-standing precedent, has drawn criticism for prioritising procedural sovereignty over substantive adjudication in a case alleging violations of a peremptory norm (Becker 2025).
Sudan mounted a multifaceted challenge to the reservation in oral pleading. It argued that the wording was ambiguous, since it omitted the phrase concerning the responsibility of a state for genocide that appears in Article IX itself, creating uncertainty as to its intended scope. More fundamentally, it contended that even if the effect of the reservation was clear, it was incompatible with the object and purpose of the Convention. Sudan emphasised that the Convention is unique among human rights instruments in allowing for and depending upon direct access to the Court as the sole available international judicial forum for interstate enforcement, lacking any treaty body for supervision.
The majority dismissed these arguments. It found the reservation to be formulated in clear terms and concluded that the omission of certain language did not result in uncertainty as to its effects. It reaffirmed the distinction drawn in its earlier jurisprudence between substantive obligations and dispute settlement mechanisms, holding that a reservation to Article IX does not affect substantive obligations relating to acts of genocide but merely excludes a particular method of settling a dispute, and was accordingly not incompatible with the object and purpose of the Convention. This reasoning allowed the Court to find a manifest lack of jurisdiction and to remove the case from its list.
The consequences are considerable. By declining to re-evaluate the validity of such reservations, the Court left the allegations without any judicial forum. The joint partly dissenting opinion of six judges criticised what it described as a rush to judgment, arguing that the complex questions surrounding the validity of the reservation and the development of the law since the earlier case deserved a full hearing at a preliminary objections stage rather than summary dismissal at the provisional measures stage. Carli (2025) argues in the same direction that, for a convention establishing obligations erga omnes partes, the compromissory clause is not a peripheral mechanism but an enforcement tool integral to the treaty’s purpose, so that a reservation removing it undermines that purpose.
The decision underscores a deep tension within the international legal order. While the prohibition of genocide is a peremptory norm, its adjudication remains contingent on state consent to jurisdiction. The Court remains unwilling to challenge the legitimacy of reservations, even those that may create an accountability gap for the gravest crimes. As Becker acknowledges, whatever view one takes of such reservations, decades of practice have cemented their validity under the current framework. The ruling thus reaffirms that the Court’s role as guardian of international law is constrained by the very principle of consent it is tasked to uphold.
The tension between state consent and the object and purpose of the Convention
The central legal question turned on the primacy of state consent against the imperative of upholding the purpose of a peremptory norm. Counsel for Sudan argued that a formal interpretation prioritising consent would remove the essence of the Convention.
Central to the pleadings was the contention that the Convention is of a special character. Unlike other treaties, it was created not to facilitate reciprocal state interests but to protect the right of groups to exist and to serve a purely humanitarian and civilising purpose, as the Court itself recognised in its advisory opinion of 1951. Counsel emphasised that the Convention relies uniquely on the Court as the sole available international judicial forum for interstate enforcement. A reservation that severs this mechanism cannot therefore be a mere procedural formality; it strikes at the treaty’s reason for being. To allow a state to commit to the substantive prohibition while opting out of the only mechanism for adjudicating alleged violations would render the guarantees illusory.
This argument rested on a purposive reading, urging the Court to look beyond the text of the reservation to its effect. Sudan invoked the guidance of the International Law Commission on reservations, which cautions against reservations purporting to exclude or modify the legal effect of a provision essential to a treaty’s raison d’être. In a convention establishing obligations owed to the international community as a whole, the compromissory clause is not a dispensable accessory but the engine of collective enforcement.
The majority reaffirmed the orthodox, consent-based view, relying on a sharp distinction between the substantive and the procedural: the reservation bears on the jurisdiction of the Court but does not affect substantive obligations relating to acts of genocide themselves (Babu and Garimella 2025).
This approach was criticised in the dissenting and separate opinions, which argued that the Court had missed an opportunity to develop its jurisprudence. The joint partly dissenting opinion lamented the summary dismissal, which prevented a full hearing on whether the law regarding such reservations has developed since the earlier case, given the now-established understanding of the Convention’s erga omnes partes character. Judge ad hoc Simma went further, arguing that the unique character of the Convention means its procedural provisions cannot be isolated from its substantive goals.
The majority’s decision privileged sovereignty and procedural certainty over a dynamic interpretation of enforcement. It cemented the validity of such reservations. The dissent underscores a growing normative rift, leaving unresolved whether a treaty aimed at eradicating genocide can tolerate reservations that allow states to immunise themselves from legal accountability, thereby creating a gap between diplomatic failure and access to justice.
No review of the merits: the legal consequence
A critical consequence of the provisional measures phase, as underscored by the Court’s own directions and accepted by both parties, is that its procedural conclusions were reached without any review of the substantive allegations (McIntyre 2025). This ensures that the urgency of interim relief does not compromise the thorough examination required for a final judgment.
The Agent for Sudan explicitly acknowledged this limit, structuring the presentation to align with the Court’s criteria and separating the jurisdictional argument from the factual narrative. While detailing the allegations, he accepted that definitive proof was a matter for a later stage, which would be the subject of full argument at the merits stage (Kennedy et al. 2025).
This mutual recognition confirms that the purpose of the hearing was procedural and protective. Any order indicating provisional measures would have rested on a conclusion that the assertions were sufficiently credible to warrant protection pending a full investigation, not that they were proven. It would have implied only that the Court might have jurisdiction, that the rights claimed were capable of protection, and that there was an urgent need to avert irreparable harm. Whether genocide is occurring, and whether any state is legally complicit, remained entirely reserved for a merits phase that never came.
Implications for prevention, mediation, and justice
The outcome carries several consequences. First, it establishes that carefully drafted reservations can render the enforcement of the Genocide Convention optional, allowing states to accept its principles while avoiding legal accountability before its designated forum. Second, it weakens the standing of the Court as a final option when diplomacy fails, since a state that has exhausted political channels finds a forum that gives priority to procedure. Other routes, such as universal jurisdiction or action through the Security Council, remain available in principle but face political obstacles. The outcome therefore points to the need for states parties to consider objecting collectively to such reservations, or to amend the Convention so as to preclude them. If this is not addressed, the international community must accept that for some states the legal prohibition of genocide operates without the mechanism designed to enforce it.
SUMMARY *
The article traces a sequence that is more consequential than its individual steps. Mediation failed, in part because a party to the mediation was alleged to be a party to the conflict. The applicant then turned to the forum designed for precisely this situation and found that the respondent had removed itself from that forum’s reach decades earlier, by a single sentence entered at the moment of accession. What makes this more than a technical outcome is that the removal was accomplished without touching the substantive obligation: the respondent remains bound not to commit or facilitate genocide, and is simply not answerable to the body established to determine whether it has. The dissenting opinions, and the closeness of the vote, indicate that the bench itself is divided on whether an obligation without a forum is an obligation in the sense the Convention intended.
CONCLUSION
The case illustrates a critical difficulty in the international legal order. The dismissal on the basis of the reservation to Article IX gives priority to procedural consent over the enforcement of a peremptory norm. This adherence to a consent-based jurisdiction creates an accountability gap, allowing states to endorse the principles of the Convention while insulating themselves from judicial scrutiny of alleged violations. The ruling validates reservations that remove the treaty’s sole interstate enforcement mechanism, rendering its guarantees potentially illusory. Consequently, when mediation fails, judicial recourse is revealed as an uncertain last resort, constrained by the very sovereignty it seeks to regulate. This outcome calls for a reassessment of the permissibility of such reservations, so that the prohibition of genocide is supported by accessible and effective adjudication.
POTENTIAL SOLUTION *
The article identifies the gap correctly, and the routes that remain open are more numerous than its conclusion suggests. Naming them matters, because the finding that one door is closed is only useful alongside the knowledge of which others are not.
First, the reservation binds only the two parties to that case. Any state party to the Convention may bring proceedings against any other that has not entered such a reservation, on the basis of obligations owed erga omnes partes, and this route is now established: the Gambia proceeded against Myanmar on precisely that footing without itself being affected by the events, and the Court confirmed its standing. The consequence is that the accountability gap here is specific rather than general, and it exists because of a choice made by one state at accession rather than because of a defect in the Convention.
Second, the reservation may be objected to. The Vienna Convention on the Law of Treaties permits objections within twelve months of notification, and the practice of objecting to Article IX reservations has been sporadic, which is one reason such reservations have accumulated an appearance of acceptance. A coordinated set of objections by states parties would not remove existing reservations, but it would establish a record bearing directly on the question the dissenting judges wished to examine, namely whether the law has developed since the earlier case. Objections cost nothing and are the instrument states parties actually hold.
Third, the routes that do not depend on the respondent’s consent remain open. The Security Council may refer a situation to the International Criminal Court, which prosecutes individuals rather than states and is unaffected by treaty reservations; universal jurisdiction is available in national courts in a number of states; and the General Assembly may request an advisory opinion, which requires no respondent at all. That last route is worth emphasising because it addresses the article’s own question directly: the validity of Article IX reservations in the light of the erga omnes partes character of the Convention could be put to the Court as an abstract question of law, without any state having to submit to jurisdiction it has declined.
Two observations on the comparison the removed passage gestured at. The judgment on state immunity is genuinely instructive here, because the Court reached the same structural conclusion in a different field: the peremptory character of the underlying norm does not by itself displace a procedural bar, since the two operate on different planes. Whether that reasoning is right is the central doctrinal question, and stating it as a consistent position of the Court, rather than as a peculiarity of this case, makes the criticism sharper. The Court is not evading genocide; it is applying a view of the relationship between substance and procedure that it holds generally, and the argument for changing it must therefore be made at that level.
Finally, for readers of this journal, the sequence the article describes contains a warning about mediation itself. The process failed at least in part because a state that was a party to the mediation was alleged by the other side to be a party to the conflict. That is not a novel problem and it has a known remedy: disclosure of interest at the outset, and a distinction between the convener, who may have interests and leverage, and the mediator, who should not have a stake in the outcome. Where those roles are merged, the party that comes to believe it is negotiating with its adversary’s sponsor will leave the table, and the forum it turns to next may not be open.
* Added by the WMO Editorial Team
REFERENCES
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Supplementary references added by the WMO Editorial Team
Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Articles I, III and IX.
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p. 15.
Vienna Convention on the Law of Treaties, 1969, Articles 19 to 23.
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International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment of 22 July 2022, on standing based on obligations erga omnes partes.
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, ICJ Reports 1970, paragraphs 33 and 34.
Rome Statute of the International Criminal Court, 1998, Article 13(b) on referral by the Security Council.
Tams, C. J. (2005). Enforcing Obligations Erga Omnes in International Law. Cambridge University Press, Cambridge.
