Another Setback for Ukraine? The ICJ Declares Russia’s Counter-Claims in the Ukraine v. Russia Genocide Case Admissible

On 5 December 2025, the ICJ delivered its order on the admissibility of Russia’s counter-claims in the Ukraine v. Russia genocide case. It is now the second decision by the Court in this unusual ‘reverse genocide case’ (see, on this blog, Raju, Milanovic, Weller) brought by Ukraine in which Ukraine has arguably suffered a setback, at least in its procedural position. The ICJ, by eleven votes to four, allowed Russia to proceed with its counter-claims that Ukraine has committed genocide, attempted genocide, is complicit in genocide, conspired to commit genocide, incited genocide, failed to prevent, investigate, and punish genocide, and failed to enact necessary legislation and provide effective penalties for genocide. As Russia further requested the Court to order Ukraine to make full reparation for its alleged violations of the Genocide Convention, now, even more than before, ‘Ukraine has to defend itself against the allegation of genocide, rather than the other way around’ (Weller).

Although the decision is concise and is supported by a convincing majority, the judges disagreed on two main issues: whether Russia’s counter-claims are legally connected to Ukraine’s principal claims and whether it is within the Court’s discretion not to entertain admissible counter-claims if there are ‘exceptional circumstances’. Both issues are very much tied to the unusual nature of Ukraine’s case. Ukraine does not invoke Russia’s international responsibility (anymore) but instead denies its own responsibility for an alleged genocide in Eastern Ukraine.

This commentary aims to shed light on the judges’ disagreements and argues that the Court was correct to admit Russia’s counter-claims, even if its reasons remain partly superficial.

Admissibility

Article 80(1) Rules of Court sets out two requirements counter-claims need to fulfil to be admissible: they need to come within the Court’s jurisdiction, which was not disputed in the case at hand, and must be directly connected with the subject-matter of the claim of the other party. According to the Court’s case law, a direct connection must exist in fact and in law (paras 37-38). The Court further recalls, to establish a direct connection in fact, it had examined whether ‘the parties’ respective claims relate to the same factual complex, including the same geographical area or the same time period’ and whether the parties rely on facts ‘of the same nature, in that they allege similar types of conduct’ (para 39). Regarding the direct connection in law, the Court reiterates that it must analyse whether the parties rely upon the same legal principles or instruments and are ‘pursuing the same legal aim by their respective claims’ (para 40).

Turning first to the direct connection in fact, the Court finds that both parties’ claims concern ‘alleged treatment by Ukraine of certain groups in the Donbas region’ taking place in the period from 2014 to 24 February 2022 (paras 51, 53-54). Thus, the Court finds little difficulty in concluding that the parties’ claims relate to the same geographical area (para 51) and to facts of the same nature (para 54). On the more contentious issue of the temporal connection, the Court rejects Ukraine’s argument that some of the facts and events referred to by Russia in its counter-claims allegedly occurred after 24 February 2022 and therefore fall outside of the temporal scope of Ukraine’s principal claim. In this regard, the Court reiterates that a direct connection in fact does not require that the alleged facts ‘occurred during an identical period’, rather, ‘a counter-claim could be based on facts ranging over a longer period of time than that covered by the principal claim’ (para 52). Moreover, the ICJ emphasises that the events ‘form part of the same continuing factual complex’ (para 53). Thus, the Court considers the claims to be sufficiently temporally connected and finds a direct connection in fact (para 53-55).

Regarding the direct legal connection, the ICJ only scratches the surface of its own jurisprudence. After confirming that both parties rely on the same legal instrument, the Genocide Convention, the ICJ briefly states that both parties are pursuing the same legal objective: ‘to establish whether Ukraine is responsible for violating its obligations under the Genocide Convention (para 57)’ According to the Court, the fact that Ukraine is only seeking a declaratory judgment is not decisive (para 57). Accordingly, the ICJ concludes that the respective claims are sufficiently legally connected and that the counter-claims are admissible (paras 58-59).

The Dissenting Opinions of Judges Abraham, Gómez Robledo, Cleveland and Judge ad hoc Daudet

The four dissenting judges essentially put forward three arguments against the majority opinion, which I will outline and discuss.

Firstly, Judges Abraham (paras 8-11) and, more cautiously, Gómez Robledo (para 8), as well as Judge ad hoc Daudet (paras 17-20), argue that Russia’s claims cannot be considered actual counter-claims as they cannot be distinguished from Russia’s defence on the merits but merge with it. This is based on the Court’s case law, in which it recognised that counter-claims need to ‘widen the original subject-matter […] by pursuing objectives other than the mere dismissal of the claim of the Applicant’ (Bosnia and Herzegovina v. Serbia and Montenegro, Counter-Claims, para 27). But is that not precisely the case here? In fact, Russia is requesting the Court not only to reject Ukraine’s claim that ‘there is no credible evidence that Ukraine is responsible for committing genocide’, but also to order that Ukraine violated its obligations under the Genocide Convention and to order Ukraine to make full reparation for its violations (para 21). Even though this is indeed closely linked to Russia’s defence, as credible evidence is an indispensable prerequisite for state responsibility, Russia’s submission goes far beyond this, as even Judge Abraham (paras 4, 11; see also Cleveland, n 4) admits. This (supposed) inconsistency in Judge Abraham’s dissenting opinion can most likely be explained by the fact that he does not treat this aspect as a stand-alone argument, but rather as one of ‘three closely related reasons’ against the existence of a direct connection (para 7). However, the Court generally first examines separately whether the respondent’s submissions constitute counter-claims within the meaning of Article 80 Rules of Court before dealing with their admissibility (Oil Platforms, Counter-Claims, para 32; Bosnia and Herzegovina v. Serbia and Montenegro, Counter-Claims, para 26; Jurisdictional Immunities, Counter-Claims, para 12), thus differentiating strictly between the two aspects.

In my view, the necessary distinction between counter-claims and a defence on the merits depends on whether the respondent’s claims would be final and binding under the principle of res judicata by a decision on the merits rejecting the applicant’s submissions. While a rejection of Ukraine’s claim – a finding that credible evidence exists – establishes an indispensable prerequisite for Ukraine’s state responsibility, it does not in itself establish that Ukraine committed genocide.

Secondly, the dissenting judges assert that the counter-claims improperly broaden and transform the subject of the dispute and the nature of the case since the counter-claims do not pursue the same legal aim as the principal claims (Abraham, para 15; Gómez Robledo, paras 3-7; Cleveland, paras 13-21; Daudet, paras 13-17). The first thing that stands out is that this argument is incompatible with the first one: either the claims constitute a pure defence by solely rejecting the principal claims, or they go far beyond the principal claims by pursuing a completely different legal aim. Both cannot be true at the same time.

The main point by the four judges is that Ukraine, in contrast to Russia, does not invoke Russia’s international responsibility but merely defends itself against Russia’s allegations by asking for a declaratory judgment. Indeed, Ukraine is not invoking a violation of the Genocide Convention by Russia (anymore) or even its international responsibility. It only seeks a ‘declaration of non-responsibility’ (see Cleveland, para 13). However, from a procedural economy standpoint, it is not far from a finding that evidence as a precondition for a violation exists to a finding that this evidence also establishes responsibility. Should Russia submit its claims to the ICJ in a new case, the Court would be obliged to dismiss them, based on the principle of res judicata, if the present case were decided in Ukraine’s favour.

Thirdly, Judges Abraham (paras 16-18) and Cleveland (paras 22-23, 28) raise issues relating to procedural equality against the admissibility of Russia’s counter-claims. Both use Ukraine’s case to portray a critical imbalance in the Court’s interpretation of the Rules of Court: A respondent may widen the subject-matter of the dispute by bringing counter-claims against the applicant. However, for an applicant to amend its claims or add new claims, the claims ‘must be implicit in the [a]pplication’ or they ‘must arise directly out of the question which is the subject-matter of the [a]pplication’ (Preliminary Objections, para 69). With this imbalance in mind, Cleveland (para 23) argues that the requirements of counter-claims should be interpreted as narrow as the requirements for additional or amended claims. While this does restore the balance between the requirements of counter-claims and additional or amended claims, it does not serve procedural economy, as argued above.

Instead, I would suggest a more flexible approach to additional or amended claims, or even admit an applicant to respond with its own counter-claims to counter-claims, if they are directly connected to the principal and the widened subject-matter. Given the broad discretion the Court enjoys in interpreting its own rules and the importance of procedural equality as a fundamental procedural guarantee, it does not seem inconceivable that the Court would approve such an approach. Whether Ukraine should argue, and is likely to succeed in claiming, that Russia is committing genocide after 24 February 2022 is another question entirely (on this, Weller, Marchuk/Wanigasuriya).

Discretion

Ukraine not only objected to the admissibility of the counter-claims but also argued that the ICJ should not accept them for consideration due to the ‘exceptional circumstances’ of the case, even if they were admissible (para 60). To the chagrin of some judges (particularly pronounced by Tladi, paras 3-5; see also Joint Decl., para 3), the ICJ did not explicitly address the question of whether it actually had discretion to reject admissible counter-claims, but merely stated that ‘in the circumstances of the present case, the sound administration of justice and the interests of procedural economy call for the simultaneous consideration of those counter-claims and the principal claim’ (para 62). Although this can be interpreted as an acknowledgement of the Court’s discretion (see Joint Decl., paras 2-3; Hmoud, para 2), it lacks clarity.

The question, whether the Court enjoys discretion, arises from the word ‘may’ in Article 80(1) Rules of Court. As the highly readable Separate Opinion of Judge Tladi and the briefer Joint Declaration show, textual, contextual, and functional arguments can be found for and against such discretion. If, like Tladi (para 18), one takes the view that the principles of procedural economy and sound administration of justice are already ‘built in’ to the procedural requirements, there is indeed little scope for discretion beyond that. Nevertheless, it is conceivable that a respondent might file apparently admissible counter-claims but otherwise does not participate in the proceedings in any way, thus clearly abusing the procedure to delay a decision. If so, procedural economy may demand to reject the claims as an exercise of discretion to prevent delay and to preserve the applicant’s rights. But even if one grants the Court discretionary power, it is difficult to speak of an abuse of process by Russia. Instead, Russia is acting consistently by asserting its alleged justification for its aggression against Ukraine in court.

Concluding Remarks

The Court correctly ruled that Russia’s counter-claims are admissible and that there are no exceptional circumstances that should compel it not to entertain the claims. The dissenting opinions are based on a restrictive, literal reading of counter-claims, which is more geared toward absolute symmetry between principal claims and counter-claims. A more liberal understanding, as demonstrated by the Court, enables it to resolve a continuing conflict entirely in a single proceeding. The criticism voiced by Judge Cleveland (paras 1, 11), who reproaches the Court for ‘mechanically [applying]’ and a ‘cursory analysis’ of the procedural requirements of counter-claims, is, however, justified to a certain extent. The decision remains superficial, particularly regarding contentious issues between the judges. In fact, the Court only touched on the atypical nature of the case in its reasoning.

Is this order, after all, a setback for Ukraine’s procedural strategy? Since the ICJ does not have jurisdiction to declare Russia’s aggression a violation of international law, Ukraine’s strategy aims to reject Russia’s asserted justifications for its use of force. Russia’s new comprehensive submissions in connection with Ukraine’s principal claim may even lead to a clearer judgment for Ukraine, by rejecting any involvement in and responsibility for alleged genocide in Eastern Ukraine. However, as has been clear from the outset, this will not prompt Russia to cease its illegal aggression.

Because of the new time-limits set for the reply and rejoinder, the Court will not decide on Ukraine’s application until mid-2028, more than six years after the case was filed. But this is not unique to Ukraine’s application. Instead, it reflects current procedural law and practice.