ICJ’s Recent Order in Ukraine v Russia Genocide Case: Declaratory Relief, Asymmetric Counter-Claims, and Direct Connection Requirement

[Anastasiya Donets leads the Ukraine Legal Team at the International Partnership for Human Rights, working on strategic litigation and corporate accountability related to Russia’s full-scale invasion of Ukraine. Anastasiya holds an LLM degree from Harvard Law School and a PhD in International Law from Yaroslav Mudryi National Law University in Kharkiv, Ukraine.

Mariam Bezhanishvili is a Senior Legal Officer at International Partnership for Human Rights, working on strategic litigation for atrocity crimes and corporate accountability related to Russia’s full-scale invasion of Ukraine. She is a PhD candidate at the European University Viadrina.

Tamar Ruseishvili is a Legal Officer with the Ukraine Legal Team at the International Partnership for Human Rights and a PSVF Fellow of Harvard Law School. She holds an LL.M. from Harvard Law School and an LL.M. degree in Public International Law from Tbilisi State University.

Nazar Solomakha is a Legal Officer at the International Partnership for Human Rights. He holds an LL.M. from Columbia Law School and an LL.M. from Université Paris 1 Panthéon Sorbonne. He has passed the New York bar.]

On 5 December 2025, the International Court of Justice (ICJ) delivered an Order admitting eight Russian counter-claims submitted in Ukraine v. Russian Federation concerning Allegations of Genocide under the Genocide Convention. By eleven votes to four, the Court found the counter-claims admissible under Article 80 of the Rules of Court, extending the proceedings into 2027.

Procedural Background: From Responsibility to Declaration

Ukraine instituted proceedings in February 2022 to contest Russia’s allegation that genocide was being committed in eastern Ukraine—an allegation invoked by Russia as a justification for its use of force. Ukraine’s Application sought both a declaration that there was no credible evidence that it had committed genocide in Donetsk and Luhansk regions (Donbas region) and a finding that Russia had violated the Genocide Convention by misusing it as a pretext for its aggression.

In its 2024 Judgment on Preliminary Objections (para. 54-56), the Court drew a sharp distinction between these submissions. It found that it lacked jurisdiction over Ukraine’s responsibility-based claims against Russia, while retaining jurisdiction over the request for a declaratory judgment concerning the absence of credible evidence of genocide attributable to Ukraine. The Court clarified that this remaining submission sought clarification of Ukraine’s compliance with its obligations under the Convention, rather than the invocation of another State’s responsibility.

As a result of this Judgement, the proceedings were confined to a narrowly framed declaratory claim. Once so confined, the admissibility of Russia’s responsibility-based counter-claims in the recent order could no longer be assessed as if the case retained its initial character and Ukraine’s substantive claims. That procedural posture ought to have been central to the Court’s admissibility analysis, but was not; and this oversight lies at the heart of the present authors’ criticism of the Order.

The 2025 Order on Counter-Claims: Are the Principal Claim and the Counter-claims of a Fundamentally Same Nature?

Russia submitted eight counter-claims alleging that Ukraine had violated multiple obligations under the Genocide Convention, including committing and inciting genocide, failing to prevent genocide, and failing to investigate and punish perpetrators. These counter-claims seek affirmative determinations of breaches across several provisions of the Convention.

Article 80(1) of the Rules of Court provides that the Court may entertain counter-claims if they fall within its jurisdiction and are “directly connected” with the subject-matter of the principal claim. The Court had little difficulty finding that Article IX of the Genocide Convention conferred jurisdiction over Russia’s counter-claims. The key issue was therefore whether they were directly connected, in fact and in law, to Ukraine’s residual declaratory claim.

The Court defined the subject-matter of Ukraine’s claim as the question of whether acts of genocide attributable to Ukraine had been committed in the Donbas region. On that basis, it found a direct factual connection, noting overlap in geographical scope, temporal context, and the alleged conduct (Order, para. 51-54). It also found a direct legal connection, emphasizing that both Parties relied on the same Convention and that both sought a determination of whether Ukraine had violated its obligations under it (Order, para. 56-59). In the Court’s view, the difference between Ukraine’s request for a declaratory judgment of non-responsibility and Russia’s invocation of Ukraine’s international responsibility for violations of specific Convention provisions “does not alter this conclusion” (Order, para. 56–59). Thus, the Court took a predominantly formalist approach.

The difficulty with this approach is not that it is formal, but that it is incomplete, as explained in detail below. By treating formal points of overlap as sufficient, the Court effectively detached the admissibility analysis from the substantive function Article 80 is meant to serve, allowing counter-claims to reshape the proceedings rather than operate within them.

Declaratory Relief v. State Responsibility and Article 80’s Direct Connection Requirement

The aforementioned formalist approach warrants closer examination in light of the Court’s own characterization of Ukraine’s residual claim in the preliminary objections Judgment.

There, the Court explicitly underscored that Ukraine’s remaining submission was declaratory in nature (2024 Judgment, paras. 54, 78–79, 93). Declaratory judgments, as reflected in the Court’s jurisprudence and doctrine, serve to clarify legal relations independently of concrete remedial consequences. They do not entail findings of breach accompanied by obligations of cessation or reparation, nor do they require the same evidentiary burden as determinations of state responsibility (H. Lauterpacht, pp. 250–252; Nuclear Tests, para. 21).

Russia’s counter-claims, by contrast, allege multiple violations of the Convention and seek determinations of responsibility across several provisions (Order, paras. 21, 29). They therefore engage a different remedial and evidentiary logic, including questions of attribution of conduct to a State, breach of an international obligation, and reparations. Beyond the determination that counter-claims concern similar facts or rely on the same treaty, the Court ought to have considered whether they could properly be regarded as “reacting” to or “countering” a declaratory claim. Several dissenting judges (see here, here, here, and here) expressed concern that, once the principal claim had been confined to declaratory relief, counter-claims seeking affirmative determinations of responsibility could no longer satisfy the requisite direct connection. From this perspective, the distinction between declaratory clarification and responsibility determination is not quantitative, but qualitative.

In this connection, questions about the boundary between counter-claims and the defence on the merits also arise. The Court has consistently held that counter-claims must not widen the subject-matter of the dispute by pursuing objectives other than the dismissal of the principal claim (see Bosnia v. Serbia, Counter-Claims, para. 28). In the present case, at most, Russia’s submissions could have been advanced as part of a defence on the merits. Indeed, Judge Abraham noted that Russia’s counter-claims resemble a defence on the merits rather than counter-claims properly so called (para 9). Judge Daudet similarly concluded that the legal purposes pursued by Russia have nothing in common with those pursued by Ukraine, such that the counter-claims merge with—or collide with—the defence on the merits, in departure from the Court’s jurisprudence (paras. 14, 17, 19) and from the Court’s own Preliminary Objections Judgement in the case.

Admitting counter-claims in circumstances where the Applicant is procedurally unable to introduce corresponding claims of its own at this stage creates a glaring asymmetry between Ukraine’s and Russia’s procedural positions. In such circumstances, the distinction between defence and counter-claim assumes practical importance for ensuring the equality of arms of the parties and overall balance of the proceedings.

Discretion under Article 80 and Procedural Economy

Article 80(1) provides that the Court “may” entertain counter-claims, language traditionally understood to confer discretion even where the formal requirements of jurisdiction and direct connection are satisfied. In prior cases, judges have emphasized that this discretion plays an important role in safeguarding procedural economy and the sound administration of justice (see Bosnia v. Serbia, Judge ad hoc Lauterpacht, para 18; Nicaragua v. Colombia, Joint Opinion, para 4)

In the present Order, the Court invoked considerations of the “sound administration of justice” and “procedural economy” primarily to justify the admission of Russia’s counter-claims (Order, para. 62), without directly addressing the question of whether those same considerations might warrant declining to entertain them, even where the formal admissibility requirements of Article 80(1) are met. This omission is consequential in a case already marked by significant procedural delay. As the dissenting opinions emphasized, Russia’s counter-claims substantially expand the scope of the proceedings and prolong their adjudication— effects that are relevant to the issue of discretion under Article 80(1) (see Judge Gómez Robledo, para. 10-11; Judge Daudet, para. 21-22).

The Order thus reflects a relatively restrained conception of discretion, one in which the identification of a formal connection appears to carry ultimate weight. Whether this approach will be sustained at later stages of the proceedings remains to be seen.

Broader Implications

The broader significance of the Order lies in the procedural architecture it appears to endorse for the application of Article 80. At its core, Article 80 serves a structural function: it channels counter-claims into the proceedings only insofar as their purpose remains compatible with the purposes of the principal claim. The Order’s approach, however, suggests a conception of “direct connection” that operates largely as a test for overlap, rather than a constraint aimed at ensuring procedural economy and grounded in the role counter-claims are meant to play within an already-defined dispute. This produces a form of procedural aggregation, in which claims that would ordinarily require separate procedural treatment are consolidated within a single case, with immediate consequences for the scope of the dispute, along with the structure and length of the pleadings.

This shift matters because it reallocates procedural advantage, creating potential negative and largely unpredictable outcomes. Under the current interpretation of Article 80(1), jurisdictional narrowing of an applicant’s claims can place the respondent in a privileged position by enabling it to use counter-claims to reintroduce adjudicative categories excluded at the preliminary stage, turning them against the applicant. The practical effect is not only an asymmetry, but a change in the litigation’s orientation. In such settings, “direct connection” becomes the site where the Court decides whether the principal claim remains the organising centre of the case, or whether the respondent may displace it by completely recasting the proceedings.

The Order also has implications for the Court’s temporal and evidentiary economy. Once admitted, counter-claims can restructure pleadings, multiply contested factual questions, and alter the evidentiary burdens that must be addressed before any meaningful resolution of the principal claim can be reached. In cases involving allegations of atrocity crimes, this is not simply a matter of docket management: time and evidentiary structure shape what the Court can decide, and when. An overly permissive admissibility practice, therefore, risks entrenching delay as a by-product of procedural design, particularly where counter-claims introduce additional elements (including intent and attribution questions) that go beyond the original case and are inherently complex and resource-intensive.

These concerns are not confined to this case. They bear on how the Court will handle counter-claims in other disputes—including those arising under the Genocide Convention. The Order therefore invites a more general question about Article 80’s future operation: whether “direct connection” will continue to be applied as a functional safeguard of incidental litigation, or will instead evolve into a general joinder mechanism through which respondents may introduce autonomous responsibility claims within proceedings framed, at least initially, in a materially different remedial posture.

Issues Remaining Open

Importantly, the Court has previously recognized that finding counter-claims admissible “as such” under Article 80 does not exhaust questions of jurisdiction and admissibility, nor does it prejudge issues that may be raised at the merits stage (see Oil Platforms, Judgment, paras. 103, 105; Armed Activities, Judgment, paras. 27, 332-333). Ukraine, therefore, retains the possibility of contesting the scope, character, and admissibility of Russia’s counter-claims during the merits phase, including arguments that certain claims could properly have been brought only by separate application. In parallel, interventions by third States may assist the Court in situating the proceedings within the object and purpose of the Genocide Convention and the Court’s own procedural framework.