ICJ hearings : Nicaragua accuses Germany’s complicity in Israel’s aggression on Gaza

Inès Najeh and Héloïse Carel /GICJ

On 1 March 2024, Nicaragua filed an application before the International Court of Justice (ICJ), UN’s top court, against Germany for alleged violations of international law and international humanitarian law, notably in failing to uphold its obligations to the Convention on the prevention and punishment of the crime of genocide of 1948 (“Genocide Convention”, “the Convention”), as well as the Geneva Convention of 1949 and its protocols in regards to the occupied Palestinian territory (OPT). In its petition, Nicaragua sought the Court's intervention to prescribe provisional measures concerning Germany. Consequently, the International Court of Justice held hearings on the 8th and 9th of April 2024.

The first provisional measure sought by Nicaragua was to call for an immediate end to Germany’s financing and exporting of military equipment and weapons of war to Israel, which the latter risks using to commit widespread international human rights violations. The second provisional measure calls for Germany to ensure that the already sent military equipment, weapons and other supplies are not used to commit serious violations of international humanitarian law, international law and genocide according to the Genocide Convention or other norms of general international law. Finally, regarding the last measure, Nicaragua asked for the release of funds from Germany to UNRWA for its operations in Gaza. When considering the requested provisional measures, Nicaragua stressed the importance of the Court ordering “concrete measures that admit no rationalisations in their compliance. An order by the Court that simply recalls clear pre-existing obligations that should be compiled without any specific order would not be effective”.

The Court may indicate provisional measures only if the provisions invoked by the applicant appear, at least prima facie, to constitute a basis on which its jurisdiction could be founded. Accordingly, Nicaragua explained that Article 9 of the Genocide Convention, which both Nicaragua and Germany have ratified, serves as an initial basis for establishing the Court's jurisdiction. Alain Pellet, Counsel and Advocate for Nicaragua, also argued that in the present case, the Court has prima facie jurisdiction to rule on the application based on previous case-law[1], as well as the provisional measures requested.

During the first hearing, Nicaragua argued that Germany is facilitating the genocide of the Palestinians by sending funds, military equipment and weapons to Israel, and by cutting support for UNRWA since January 2024. It was mentioned that Germany has authorised arms exports to Israel worth approximately 327 million euros (drones, machine gun ammunition, etc.), used for bombing Palestinians and destroying their homes and infrastructure. Nicaragua noted that Germany’s participation in military programs with the United States, involving the manufacturing of equipment, was widely known. They noted Germany’s involvement in this arrangement, especially considering the possibility of a new transaction of fighter jets between the United States and Israel, must cease. Nicaragua also argued that German firms engaged in the defence sector are directly benefiting from the situation, seeing as their stock prices rose since 7th October. According to Nicaragua, Germany observed a significant expansion of collaborative weapon development contracts with their Israeli counterparts. It was noted that, on 23 November 2023, the Israeli Ministry of Defense proudly declared the finalisation of a deal to sell the Arrow 3 air defence system to Germany, valued at approximately US$3.6 billion.

Furthermore, Nicaragua stated that Germany did not and could not have ignored the situation in Gaza, and ultimately understood the risks associated with supplying Israel with military equipment and weapons of war used to commit atrocities. Germany's 'raison d'état' for assisting the State of Israel stems from its sense of historical culpability for the crimes of the Holocaust, which has embedded with a sense responsibility for the establishment and safeguarding of the occupier. It would be erroneous to think, however, that this commitment in any way justifies providing Israel the means to commit the very same crime Germany did – genocide – this time against the Palestinian people.

Alain Pellet further pointed out that Germany, being a signatory party to the Geneva Conventions and the Genocide Convention, is obliged to remind other signatory members to abide by the principles of the Conventions and international humanitarian law more generally.

Pellet also recalled the 26 January order of the ICJ, which stated that “all the States parties to the Convention have a common interest to ensure the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the obligations contained in the Convention”. Nicaragua’s lawyer noted that Germany was well aware of their obligation to prevent genocide – a duty it invoked to intervene in the case of the genocide against the Rohingyas. He provided the following statement from German lawyers in November 2023: “Germany feels it has a special responsibility to contribute to the fight against and the prevention and investigation of any potential genocide and to send a message that states will be held accountable for all acts of genocide. Genocide concerns us all, wherever in the world it occurs”.

In light of the ICJ not yet having officially recognised the atrocities committed against Palestinians as genocide, the applicant State recalled a previous ICJ statement which highlighted that a State’s responsibility for failing to prevent genocide can only be accepted if genocide has in fact been committed. Nicaragua recalled that the Court also specified that the responsibility to prevent genocide arises not only when the act of genocide begins, but rather when a State becomes aware, or should have become aware, of a significant risk of genocide occurring. It would be illogical for this obligation to materialise only after the genocide has already occurred, as the primary aim is to prevent, or at least attempt to prevent, such atrocities from happening[2]. For Nicaragua’ s lawyer, all States acting in good faith would recognise that this threshold of awareness of a potential genocide unfolding in Gaza has been well exceeded. In failing to meet its obligations through its furnishing of weapons to Israel, Germany is enabling said genocide, in addition to a humanitarian disaster in the Occupied Palestinian territories.

Finally, during the hearing, Nicaragua stated that while being one of the most important donors to UNRWA, Germany decided to cut its funding to the agency in January 2024. This prevented the agency from playing its vital humanitarian role in Gaza, and worsened the humanitarian catastrophe. Nicaragua still supports Germany’s release of funds for UNRWA’s regional work in Lebanon, Syria, the West Bank and Jordan.

Day 2 of the ICJ’s hearings : Germany’s response