The Ukrainian Genocide Allegations Case Revisited after the Russia’s Counter-claims Admissibility Order

[Quazi Omar Foysal is a Bangladeshi-qualified international lawyer, currently pursuing a PhD at La Trobe University, Australia]

When the ICJ issued a press release dated 31 January 2025 stating that Russia had incorporated counter-claims in its Counter-Memorial in the Ukrainian Genocide Allegations case, there was a considerable degree of speculation within the international community regarding the contents of such counter-claims. It would not be surprising if Russia’s counter-claims had concentrated on the allegations of genocide levelled against Russia by Ukraine and its allies, contending that those allegations were equally unsubstantiated. However, when the ICJ issued an Order upholding the admissibility of Russia’s counter-claims on 5 December 2025, their contents appear to have generated more disbelief than disappointment. Indeed, the 11–4 ruling on the admissibility of the counter-claims raised considerable interest in the application of Article 80 of the Rules of Court, especially regarding the existence of discretionary power and its potential applicability in this case. However, this piece concentrates on the impacts of the Order of 5 December 2025 on the nature and prospects of the whole proceedings. In particular, it focuses on the changing nature of the subject matter of this case, its impacts on the evidentiary matters, possibility of third round of declaration of intervention, and the consequences for the final outcome of the case, especially with regard to the Russian narratives on the legality of invasion of Ukraine.

Mainstreaming the Ukrainian Genocide Allegations Case

The admissibility of Russia’s counter-claims has indeed transformed the nature of the original proceedings for the second time. At the time of the institution of proceedings, Ukraine’s principal claim, which was slightly modified in the Memorial, contained two distinct but interrelated parts. First, that there is no credible evidence that Ukraine is responsible for committing genocide, and second, that Russia’s use of force in and against Ukraine to prevent genocide, and its recognition of the independence of Donetsk and Luhansk, constitute a breach of the Genocide Convention. Though the Court upheld its jurisdiction over the second part of the claim on a prima facie basis in its Provisional Measures Order, it eventually adjudicated in the Preliminary Objections Judgment that such a claim falls outside the scope of the Genocide Convention.

As a result of this finding, the present case became limited to Ukraine’s reverse compliance claim under the Genocide Convention – namely, Ukraine did not breach the obligation not to commit genocide in the Eastern Ukraine – prompting it to seek a declaratory judgment from the Court without any question of State responsibility of Russia. Thus, the Preliminary Objections Judgment had transformed the nature of the case, and also the objects of the litigating parties, for the first time.

At this point, Russia’s counter-claims have effectively changed the nature (and also the objects) of the present case for the second time. In its Counter-Memorial, Russia alleged that Ukraine has violated several provisions of the Genocide Convention and requested the Court not only to declare the violations but also to order reparations. Though the contents of the claims are surprising at this stage of the proceedings, the claims are not surprising at all, because Russia has been accusing Ukraine of the commission of genocide in Eastern Ukraine since 2014. Russia’s counter-claims invite several comments.

First, Russia’s counter-claims involve obligations erga omnes partes. However, the admissibility of counter-claims involving obligations erga omnes arose for the first time in the Bosnian Genocide case, where the Court held them admissible despite Bosnia’s objections (grounded on the non-reciprocal nature of the obligations). In the present Order, the Court (and both parties) were silent on this issue, apparently treating it as settled, especially after the Rohingya Genocide case.

Second, Russia’s decision to bring these counter-claims before the Court nearly three years after the Ukraine invasion is ironically a welcome development for the peaceful settlement of disputes. It also implies that Russia should have taken the route to The Hague rather than invading Ukraine four years before. Politically speaking, the outcome of these counter-claims will raise questions about the legality of the Ukraine invasion itself, which this blog piece will return to in the following section.

Third, the Court will now face more counts of counter-claims by Russia than those of claims by Ukraine. Furthermore, the Court will be required to deal with the State responsibility of Ukraine, but not the State responsibility of Russia.

Fourth, Russia’s counter-claims are more than a defence to Ukraine’s claims. In fact, Russia has taken a heavier procedural burden in this case. It is alleging that there is not only credible evidence, but rather fully conclusive evidence of the commission of genocide by Ukraine, which will be dealt with in the next section.

Taken together, the current case has indeed been transformed into a new case. Now, an isolated look at Russia’s counter-claims would make it no different from the claims in the Rohingya Genocide and Gaza Genocide cases. It would not be an overstatement to predict that the future proceedings of this case will focus more on Russia’s counter-claims regarding the commission of genocide in Eastern Ukraine, rather than Ukraine’s reverse claim of non-commission of genocide. Thus, the Order of 5 December 2025 has the practical effect of mainstreaming the Ukrainian Genocide Allegations case, prompting calls to rename the case as the Ukraine Genocide Case.

Credible Evidence and the Question of Proof

It was predictable that the term “credible evidence” used in Ukraine’s claim would attract much contention between the parties. While there is agreement in the existing literature that its evidentiary standard is lower than that required for establishing the commission of genocide, i.e., the “fully conclusive” standard (Order of 5 December 2025, para. 47), there are disagreements about the nature and content of the former. However, given the negative nature of Ukraine’s claim, Weller illustrated the problems Ukraine might have faced in persuading the Court that there is no credible evidence without knowing the evidentiary basis upon which Russia concluded that Ukraine had committed genocide (and justified its invasion). Though it could have been argued that Russia has an obligation, based on the Corfu Channel case, to cooperate with Ukraine in evidential matters, it was hard to imagine good-faith compliance with such an obligation by Russia. It was anticipated that the Court might face the issue of the burden of proof in this case, arguing that the negative nature of Ukraine’s claim may reverse the burden of proof. The Counter-Claims Order of 5 December 2025 has apparently evaporated both problems.

The principle of actori incumbit onus probandi dictates that the respondent bears the burden of proof in respect of counter-claims. Thus, it is safe to predict that Russia has already furnished all the evidence in support of its allegations made in its counter-claims. Additionally, Russia is required to establish its allegations against Ukraine on the “fully conclusive” standard, which, as discussed earlier, is higher than the “credible evidence” standard. Given that the Court has granted Ukraine one year to submit its Reply, Ukraine will now get an extra opportunity to benefit from the evidence already presented by Russia in support of its counter-claims to adjust its construction and interpretation of “credible evidence.” Furthermore, it is now theoretically possible that even if the Court finds that Ukraine has not committed genocide, it may still find that there is credible evidence of the commission of genocide in Eastern Ukraine. Thus, Russia has voluntarily made this case more difficult for itself, for reasons known only to it.

Possibility of a Third Round of Intervention

The ICJ has already witnessed three major developments concerning Article 63 intervention in the Ukrainian Genocide Allegations case: mass interventions, bifurcation of the intervention procedure, and re-invitation of intervention. Now, the transformed case has given rise to another possible development. Following the Preliminary Objections Judgment, the Court re-invited the States that had already intervened at the Preliminary Objections stage either to submit new or adjusted interventions or to declare the maintenance of their original interventions. The purpose of the re-invitation was to urge the intervening States to limit their intervention in light of the excised subject matter of the case. In fact, the Court developed the excision approach to intervention – limiting intervention to the interpretation of the relevant provisions of the multilateral instrument in question – in the Rohingya Genocide case by its Order of 3 July 2024 (subsequently reiterated in its Order of 25 July 2025). Given that there was no intervention at the Preliminary Objections stage in that case, the re-invitation procedure in the present case can be seen as a logical adoption of its earlier ruling in a bifurcated setting.

Given that the Court has now expanded the subject matter of the current case following the admissibility of Russia’s counter-claims, the Court should reconsider sending another round of re-invitations. Understandably, the Court has exercised its inherent power to re-invite intervenors once, and there is no procedural bar to doing so again. The Court should exercise this power in the present scenario for at three reasons.

First, the rationale for re-invitation following the Preliminary Objections Judgment was the change in the subject matter of the case. Had the Court rejected Russia’s preliminary objections, it might have been sufficient to issue a Rohingya Genocide-style Order urging States to limit their interventions to the interpretation of the Genocide Convention. The Court should now apply the same rationale to consider re-inviting intervening States de novo following the expansion of the subject matter.

Second, such a re-invitation would also give practical effect to paragraph 64 of the Order of 5 December 2025, which reflects the Court’s regular practice since the Bosnian Genocide case. Paragraph 64 provides that:

“In order to protect the rights which third States entitled to appear before the Court derive from the Statute, the Court instructs the Registrar to transmit a copy of this Order to them.”

It is now difficult to imagine how the States entitled to appear before the Court – namely, the 23 States – would be able to protect their interests if they are not given a fresh opportunity to intervene in light of the expanded subject matter.

Third, a fresh opportunity to intervene should not be seen as a disruption of procedure in the present case. Although the Court has recently amended Articles 81 and 82 of the Rules of Court in response to its increasing caseload, a re-invitation would not affect the procedural timeline. Given that the Court will receive Ukraine’s Rejoinder on 7 December 2026 and Russia’s Reply on 7 December 2027, a re-invitation would still fall within the existing timetable. At this juncture, the Court may minimize its procedural and temporal burden by limiting and defining the scope of such intervention and restricting it to written submissions in light of the revised Article 86 of the Rules of Court. The Court’s approach in the Rohingya Genocide case is instructive in this regard.

Indeed, the interventions of the 23 States are mostly limited to the interpretation of Articles I and II of the Genocide Convention. However, the Court will now be required to adjudicate allegations of breaches of Articles I–VI of the Convention. Thus, the earlier interventions of the 23 States would not serve the purpose of Article 63 of the ICJ Statute if they are not given a renewed opportunity in the present case. It remains to be seen how the Court responds to this novel situation.

Resurfacing Ukraine’s Claims on the Legality of the Invasion

The counter-claims raised by Russia resurface the issue of the legality of its invasion of Ukraine, which the ICJ effectively set aside by dint of its Preliminary Objections Judgment. Even though an eventual positive finding of “no credible evidence of genocide” would suggest the illegality of the invasion, it would have done so in Ukraine’s language. Now, if Russia fails to prove the commission of genocide by Ukraine – which is very likely – it would imply that Russia violated the prohibition on the use of force by invading Ukraine, but in Russia’s own terms. Although such an inference would not amount to a determination of responsibility by the Court, States or institutions interested in the affairs of Ukraine would be able to highlight this point in discussions concerning Russia’s responsibility for the invasion or reparations with reference to the ICJ determination.

The incorporation of counter-claims is notable from other perspectives as well. At first glance, Russia’s decision to incorporate counter-claims appears, though on the most implausibly generous reading, to be a bona fide move demonstrating its trust in the peaceful settlement of disputes. Unfortunately, Russia departed from peaceful means of dispute settlement at the very outset by initiating the invasion of Ukraine. It even opted not to participate in the Provisional Measures hearings. Now, Russia’s approach to the Ukraine situation – resorting first to the use of force and only later seeking peaceful settlement – would have been unlawful even under the now-obsolete League of Nations system. Russia now appears to be attempting to establish its genocide narrative in Eastern Ukraine, legitimize its invasion, and potentially preserve an avenue to criticize the ICJ in the event that it fails to establish its counter-claims. However, this strategy will not help Russia avoid the repercussions of reopening the issue of the legality of the invasion. In that event, Russia – having struggled to secure the admissibility of its counter-claims in the face of Ukraine’s objections – may come to regard its success in obtaining the Order of 5 December 2025 as a Pyrrhic victory.

Final Thoughts

The effects of Russia’s counter-claims are not limited merely to the prolongation of the Ukrainian Genocide Allegations case, rather it changed the whole case. If Russia’s sole objective had been to justify its use of the term “genocide” for the Ukraine invasion – albeit unlawfully – a robust defence might have sufficed. Indeed, the ICJ has previously upheld respondent positions without the need for counter-claims. In addition to the politico-legal risks associated with the outcome of the case, Russia has imposed upon itself a heavier evidentiary burden by choosing to pursue core counter-claims that must be established on the “fully conclusive” standard. Russia has previously advocated the applicability of this standard in relation to alleged violations of the Convention on Racial Discrimination and, more recently, in relation to the destruction of the Flight MH17. It would be inconsistent with its earlier positions were it now to argue otherwise. Coincidentally, Judge Cleveland clarified that evidentiary standards fall within the domain of treaty interpretation, and if the Court ultimately permits a third round of interventions, many States may consider intervening on that basis, reinforcing the purpose of Article 63 interventions.

Photo Attribution: “Ukraine Flags at the Riga Congress Centre” by Tony Webster is licensed under CC BY 2.0