Serbia ≠ Fidji? or: What happened to Serbia’s Intervention in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Sudan v. United Arab Emirates)

I. Introduction

Certain aspects and the (then still potential) outcome of the ICJ Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in Sudan (Sudan v. United Arab Emirates) were already discussed on this blog here and here, including the issue of a possible intervention by third States here. Yet, the way the Court has been dealing with (or rather has not been dealing with) Serbia’s (attempted) intervention under Art. 63 ICJ Statute in this case has so far not been analyzed despite the fact that this raises significant issues as to the Court’s procedural approaches over time.

II. Serbia’s (attempted) intervention in Sudan versus United Arab Emirates

The Sudanese application in the case here under consideration was submitted to the Court on March 5, 2025 accompanied by a request for provisional measures of the same day. On March 28, 2025 the Court informed the public by way of a Press Release that the hearing on the request for provisional measures will be held on April 10, 2005.

On April 24, 2025, i.e. at the time the oral hearing on provisional measures (which was limited to a single day of pleadings) had already come to an end, Serbia then submitted a declaration of intervention under Art. 63 ICJ Statute, as duly noted once again in a Press Release of the Court dated April 25, 2025.

In its declaration of intervention Serbia claimed that “reservations to Article IX of the [Genocide] Convention are permissible” (ibid., p. 4) and that Serbia itself (then still called Federal Republic of Yugoslavia) had entered such a reservation when it acceded to the said Convention in 2001. (ibid., p. 4-5; see also the objections by Bosnia-Herzegovina and Croatia to said accession here at note 16, as well as that of Sweden, ibid., at note 32).

The seemingly (political) background of this intervention was that Sudan had soon beforehand, i.e. on April 12, 2025, recognized Kosovo as an independent State.

It is also interesting to note that in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) the Court had already found in its 2008 Judgment on Preliminary Objections that “the FRY [i.e. today Serbia] in 1992 accepted the obligations of that [Genocide] Convention, including Article IX providing for the jurisdiction of the Court” and that a declaration and note adopted in 1992 in the wake of the dissolution of the Socialist Federal Republic of Yugoslavia (‘SFRY’) “had the effect of a notification of succession by the FRY to the SFRY in relation to the Genocide Convention.” (ibid., p. 45, para. 115). Accordingly, the Court then found that “the FRY [i.e. Serbia] in 1992 [had] accepted the obligations of that [Genocide] Convention, including Article IX providing for the jurisdiction of the Court.” (ibid.). Accordingly, the claim by Serbia, made in its recent declaration of intervention in the Sudan versus United Arab Emirates Genocide case, that it is not bound by Art. IX Genocide Convention, was hardly compatible with the Court’s prior jurisprudence.

III.    Court’s handling of Serbia’s attempted intervention

But be that as it may, what is worth noting is the way the Court has been dealing (so far at least) with Serbia’s request to intervene. Apart from the above Press Release the ICJ has neither mentioned, and even less addressed, Serbia’s attempted intervention in the Sudan versus United Arab Emirates proceedings in any official public document emanating from the Court.

This stands in sharp contrast to the Court’s previous practice in earlier cases where the Court, in either a separate order, or in the operative part of the main order dismissing an application, has also formally dismissed an intervention.

Notably, in the Nuclear Test cases (Australia versus France; New Zealand versus France), the Court on the very same day it decided by way of judgments that

“the claim of Australia [respectively that of New Zealand] no longer has any object and that the Court is therefore not called upon to give a decision thereon” (ibid., p. 272; respectively here, at p. 478),

also adopted Orders (see here, at p. 530 – 531; and here, at p. 535- 536) in which it decided that

“1. Whereas by a Judgment of 20 December 1974 in this case the Court finds that the claim of Australia [New Zealand] no longer has any object and that the Court is therefore not called upon to give a decision thereon,

2. Whereas in consequence there will no longer be any proceedings before the Court to which the Application for permission to intervene could relate,

Unanimously,

Finds that the Application of the Government of Fiji for permission to intervene in the proceedings instituted by Australia against France lapses, and that no further action thereon is called for on the part of the Court. (…)”

Accordingly, a formal decision to terminate the intervention proceedings had been considered necessary by the Court even where the main case to which the intervention related had come to an end.

Mutatis mutandis in the same vein, albeit somewhat differently procedure-wise, the Court in 1995, when dealing with the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Courts Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case included in the operative part of its Order dismissing the main request by New Zealand a separate paragraph also dismissing the various requests respectively declarations of intervention. The Court then accordingly found

“(…) that the ’Application for Permission to Intervene’ submitted by Australia on 23 August 1995, and the ‘Applications for Permission to Intervene’ and ‘Declarations of Intervention’ submitted by Samoa and Solomon Islands on 24 August 1995, and by the Marshall Islands and the Federated States of Micronesia on 25 August 1995, must likewise be dismissed.”

In sharp contrast thereto, in the recent Sudan versus United Arab Emirates case, however, the Court has (at least so far) neither adopted a separate order bringing to an end Serbia’s status as a possible intervener, nor has the Court included in the operative part of (nor at all in) its Order of May 5, 2025 terminating the main proceedings any reference or decision as to the fate of Serbia’s intervention.

It goes without saying that a request to intervene or a declaration of intervention, as being an incidental proceeding, cannot withstand a dismissal of the main case, such dismissal being adopted either for a (manifest) lack of jurisdiction or otherwise. Yet, it seems that the previous practice of the Court, as detailed above, confirms that this result that the intervention is thereby also been brought to an end ought to be formally decided by the Court, or at the very least be formally noted, be it only for the sake of legal clarity and transparency. It is also such practice only that can guide other States when contemplating intervening in contentious proceedings.

Similarly, one would also expect the Court to formally acknowledge at an appropriate moment the decision by a State to withdraw an application for permission to intervene or a declaration of intervention (or indeed other incidental proceedings), given the procedural effects such withdrawals might carry with them at some later stage, e.g. when an attempt might be made to later ‘withdraw’ such a previous withdrawal.