The Allegations of Genocide Case and Russia’s Judge Ad Hoc

The Allegations of Genocide case has entered a new phase. On 5 December 2025, the International Court of Justice (Court) issued an order on Russia’s counter-claims. By eleven votes to four, it found them admissible as such and forming part of the current proceedings. Naturally, the decision on the merits tends to overshadow procedural questions. Yet the Court’s composition deserves closer scrutiny.

Of the 15 judges, 13 were members of the Court. Only Judge Okowa (elected on 12 November 2025) and Judge Aurescu (for reasons that remain unexplained) did not participate. The other two judges were judges ad hoc: Mr Yves Daudet, nominated by Ukraine, and Mr Bakhtiyar Tuzmukhamedov, nominated by Russia when Judge Gevorgian’s term as a member of the Court expired on 5 February 2024.

Prima facie, the Court’s composition appears uncontroversial. This changes, however, when one notes that Judge ad hoc Tuzmukhamedov was permitted to decide on Russia’s counter-claims without making a solemn declaration. Because the Court heard Russia’s counter-claims without organising an oral phase (Order, para. 17), Judge ad hoc Tuzmukhamedov had no chance to make his solemn declaration at a standard public sitting. This Blog Post asks on what basis the Court allowed the participation of Judge ad hoc Tuzmukhamedov.

Statute and Rules of the Court

Article 8 of the Rules concerns the solemn declarations made by judges ad hoc. Paragraph 2 requires that such declarations “be made at a public sitting in the case in which the judge ad hoc is participating”. The duty to make a solemn declaration is independent of whether the same person currently sits or previously sat as a judge ad hoc in another case (Article 8(3) of the Rules). (Mr Tuzmukhamedov was Russia’s judge ad hoc in the ICAFT and CERD case.)

Under Article 31(6) of the Statute, the provisions on declarations made by members of the Court apply to judges ad hoc. Article 20 of the Statute establishes two conditions for judges’ declarations: a judge must make the solemn declaration “before taking up his duties” and “in open court” (see also Khan, para. 7).

“Before Taking Up His Duties”


A judge or judge ad hoc may assume his or her duties only after making a declaration. Accordingly, making a declaration is a condition sine qua non. The term “taking up his duties” does not coincide with the beginning of a judge’s term (see Khan, para. 9). In other words, a person may already be a judge but is not permitted to perform judicial functions until he or she has made the solemn declaration.

The Court’s practice has been to allow judges who have not yet been sworn to attend internal deliberations held before oral proceedings. This practice is consistent with Article 20, since such deliberations are generally preparatory and do not address matters of substance. There is “no true exchange of legal opinions”, let alone any final vote on a dispositif. Moreover, internal deliberations are followed by public sittings at which judges make their solemn declarations (Khan, para. 14). Participating in a decision on counter-claims is clearly not preparatory.

“In Open Court”

A declaration made at a public sitting satisfies the requirement of “open court”. If no public sitting is scheduled but a new judge needs to take up his or her duties, the Court organises a special sitting (Article 4(2) of the Rules). Khan even argues that such a special sitting is “indispensable … well before the Court enters into its deliberations on the substance of the case” (para. 15).

The Court has organised special sittings both for its members (see the solemn declaration of Judge Hmoud) and for judges ad hoc (see two solemn declarations of Judge ad hoc Koroma). There is therefore no apparent reason why the Court did not organise a special sitting for Judge ad hoc Tuzmukhamedov in the Allegations of Genocide case.

Practice of Judges ad hoc’ Declarations

As the Court stated in the Namibia opinion, the issue of judges ad hoc has “absolute logical priority. It has to be settled prior to the opening of the oral proceedings, and indeed before any further issues, even of procedure, can be decided. Until it is disposed of the Court cannot proceed with the case” (p. 25, para. 36).

The only example in which the Court allowed a judge ad hoc to examine a case without making a solemn declaration occurred in the Nuclear Tests cases. These were two parallel proceedings between Australia and France, and between New Zealand and France. Both Australia and New Zealand nominated the same individual as their judge ad hoc. He did not need to make a second declaration in New Zealand’s case because the Court considered his declaration in Australia’s case sufficient (VR 1973, p. 99 (President Lachs)). Rosenne notes that such a situation could not arise today, because Article 8(3) of the Rules now explicitly requires separate declarations in each set of proceedings (p. 28). Moreover, the Nuclear Tests practice does not justify the approach in the Allegations of Genocide case, as there are no parallel proceedings here.

True, the Court’s practice is to take routine decisions (like fixing time-limits) without the participation of judges ad hoc (Thirlway, p. 881 n. 371). However, this practice does not extend to more substantive decisions. For example, the Court decided to suspend the proceedings in the Germany v. Italy (II) case without the participation of Italy’s judge ad hoc. This appears to be because Italy’s judge ad hoc had not yet been sworn in at the time. In any event, the decision on Russia’s counter-claims cannot be considered “routine”, and the judges ad hoc had the right to participate. It remains inexplicable why Judge ad hoc Tuzmukhamedov was allowed to do so without making a solemn declaration at a public sitting.

The Allegations of Genocide case also appears at odds with the law and practice of the International Tribunal for the Law of the Sea (Tribunal). Although its procedure is closely modelled on that of the Court, the Tribunal’s practice has been to organise special sworn-in ceremonies for judges ad hoc even before any internal deliberations take place (see eg Zheng He and Heroic Idun (No. 2)).

Conclusion

Under the Court’s Statute and Rules, Judge ad hoc Tuzmukhamedov could take up his duties only after making a solemn declaration at a public sitting. The Court, however, allowed him to examine Russia’s counter-claims without fulfilling this requirement. This decision finds no support in the Statute, the Rules, or the Court’s own practice.

It is to be hoped that the Court will not follow this approach and will provide some explanation at a later stage of the Allegations of Genocide case. Because none of the other judges objected to Judge ad hoc Tuzmukhamedov’s participation, it must have had some legal basis, which is simply currently unknown.