Nicaragua Takes Germany to World Court
On April 9, the International Court of Justice (ICJ) concluded two days of hearings on Nicaragua's request for provisional measures to compel Germany to fulfill its obligations with respect to humanitarian law and its participation in the ongoing "plausible genocide" by Israel against the Palestinian people in Gaza and the occupied territories, as per the Court's earlier ruling.
The provisional measures requested of the Court by Nicaragua are:
1) Germany must immediately suspend its aid to Israel, in particular its military assistance, export and authorization of export of military equipment and war weapons, in so far as this aid is used or could be used to commit or to facilitate serious violations of the Genocide Convention, international humanitarian law or other peremptory norms of general international law;
2) Germany must immediately ensure that military equipment, war weapons, and other equipment used for military purposes already delivered by Germany and German entities to Israel are not used to commit or to facilitate serious violations of the Genocide Convention, international humanitarian law or other peremptory norms of general international law; and
3) Germany must resume its support and financing of UNRWA in respect of its operations in Gaza.
The Federal Republic of Germany presented its response and asked the court:
1) to reject the request for the indication of provisional measures submitted by the Republic of Nicaragua; and
2) to drop the case entirely.
The significance of Nicaragua's case is discussed by Abdel Ghany Sayed in an article entitled "The juridical breakthrough in Nicaragua's case against Germany at the World Court," published by the independent media organization Madamasr.com, founded in Egypt.
The article points out that in its application, Nicaragua accuses Germany of breaching its obligations to prevent genocide and war crimes, as well as facilitating and participating in these crimes. The scope of the claim against Germany is broad, addressing not only its role in acts committed in Gaza falling under the Genocide Convention but also encompassing war crimes committed in all of Palestine's occupied territories, according to the Geneva Conventions and its Additional Protocol I.
Nicaragua's claim is that Germany's provision of 'political, financial and military support to Israel,' with knowledge of the crimes being committed, especially through the use of German military equipment, constitutes a crime.
Nicaragua identified two legal grounds that criminalize Germany's actions. First, it cites the Genocide Convention of 1948, accusing Germany of breaching its obligations under the convention by providing political, financial and military support to Israel. Besides providing weapons to Israel, Nicaragua also accuses Germany of effectively facilitating genocide by halting funding to the United Nations Relief and Works Agency for Palestine Refugees (UNRWA). Nicaragua views the cessation of funding to UNRWA, which plays a crucial role in relief efforts and documenting the situation on the ground, as a higher level of complicity in the crimes committed. The second legal basis that sets Nicaragua's case apart from South Africa's is international humanitarian law, particularly the Geneva Conventions of 1949 and its Additional Protocol I of 1977, making its claim broader in scope compared to South Africa's, as it pertains to the commission of numerous war crimes in all occupied Palestinian territories since 1967, not just genocide in Gaza.
The article explains that normally, a state cannot be compelled to appear before the ICJ unless a dispute between two or more states is presented to the court with the states' consent. Knowing that Israel would never give its consent, South Africa's lawsuit put to use a specific legal provision that grants the ICJ jurisdiction without the parties' consent as long as the dispute relates to the Genocide Convention (Article 9 of the Genocide Convention). Because of this strategic move, South Africa was forced to narrow its claim against Israel to involve only the accusation of genocide.
In contrast, Nicaragua's application is predicated on the fact that both Nicaragua and Germany signed a declaration recognizing the jurisdiction of the court "as compulsory ipso facto and without special agreement" (Article 36 of the Statute of the International Court of Justice). Germany lodged this declaration in 2008, rendering the ICJ's jurisdiction compulsory toward it without requiring its prior consent. Israel and the United States have not made such a declaration, as they fear being subject to the ICJ's jurisdiction, which is precisely why Nicaragua filed its claim against Germany rather than the United States.
Nicaragua's request to the ICJ addresses a critical matter, claiming that Germany's political, financial and military support of Israel constitutes a breach of its obligations to ensure respect for international humanitarian law (common Article 1 of the Geneva Conventions) and customary rules which dictate that states "may not encourage violations of international humanitarian law by parties to an armed conflict. They must exert their influence, to the degree possible, to stop violations of international humanitarian law." (par. 17, 18 of Nicaragua's application; Rule 144, International Committee of the Red Cross' International Humanitarian Law Databases).
The significance of Nicaragua's request lies in its potential to set a legal precedent that would deter countries from supporting military operations involving serious international crimes. The case could lead to the unprecedented enforcement of states' obligations to refrain from actions such as engaging in arms trade and exports to countries committing serious international crimes. In the case of the current war, this deterrent extends not only to countries backing Israel's actions in Gaza since October 2023 but also in the occupied territories since 1967.
The Palestinian Resistance movement Hamas issued a statement hailing Nicaragua's action before the ICJ and called on the countries of the world "to follow the lead of Nicaragua, South Africa, and other countries that have refused to turn a blind eye to the crime committed by the Zionist occupation entity in Gaza, with clear support from Western governments." Hamas also called on the ICJ to issue "firm decisions that would lead to the cessation of the ongoing genocide in Gaza, despite its previous decisions, which the Zionist enemy has disregarded, like all international decisions, agreements, and laws."
Nicaragua's Case
Nicaragua argued that German officials at the highest level "have recognized that the situation in Gaza raises doubts about the respect of elementary rules of international law and that these questions need to be addressed," and "Yet, while we speak, the export of German weapons and military equipment to Israel likely to be used to commit these grave violations of international law is continuing."
In his opening statement, the Nicaraguan Ambassador to the Netherlands Carlos Argüello explained that "Serious breaches of international humanitarian law including genocide are taking place in Palestine," and are "being committed openly. [...] When a situation of this nature occurs or is in danger of occurring, the obligations for all states are clear ... not only states must not abet the situation by aiding or assisting the perpetrator, but they must use their best efforts ... to prevent their breaches." The ambassador said, "Germany has violated these obligations imposed on all states."
With regard to the ICJ's January 26 ruling that it is plausible that Israel may be committing acts of genocide in Gaza, Germany had an obligation to stop abetting Israel. "The obligation to prevent genocide arises once it becomes clear that genocide is being committed," said Ambassador Argüello. Germany, however, "continues to this day to provide military assistance to Israel."
Argüello added, "Germany cannot but be aware that the munitions, the military equipment, and the war weapons it is supplying" to Israel are supporting the genocide in Gaza. He argued, "The fact is that the assurance of supplies and replacement of armaments is crucial to Israel's pursuit of the attacks in Gaza."
"[Germany] is responsible to the extent that these breaches have made possible or facilitated these grave violations of general international legal norms directed at the Palestinian people, not only in the Gaza Strip but also in the occupied territories and in Israel itself.... It is this that justifies both Nicaragua's application addressed at Germany and also the request for provisional measures," said French lawyer Alain Pellet, who also represented Nicaragua before the ICJ.
With respect to the United Nations Relief and Works Agency for Palestine Refugees (UNRWA), Nicaragua argued that Germany's decision to suspend funds to the UNRWA was also aiding and abetting genocide against the Palestinian people.
Article 3 under the UN's Genocide Convention outlines "complicity in genocide" as a punishable act. "Germany was aware and continues to be aware of the risk of the weapons they are furnishing could be used by Israel to commit genocide against the Palestinians," Pellet said. "It is extremely urgent that Germany suspend its aid they are supplying to Israel to this end. This aid and assistance are straight from the definition of 'complicity' set out in Article 3," he added.
Germany's Argument
Demonstration in Berlin, Germany in support of Palestine and in opposition to Israel's genocide,
March 16, 2024. Actions have been taking place despite attempts to criminalize them.
The newspaper The Guardian summed up Germany's argument as follows: "Germany has said Israel's security is at 'the core' of its foreign policy because of the history of the Holocaust, but it denied accusations that it is aiding genocide in Gaza by arming Israel." Germany's legal representatives told the court: "Our history is the reason why Israel's security has been at the core of Germany's foreign policy." In 2008, then Chancellor Angela Merkel spoke about "Germany's special historical responsibility for Israel's security" as part of Germany's "raison d'état." Chancellor Olaf Scholz reiterated this point in his speech to the German Bundestag on October 12, 2023: "Our own history, our responsibility deriving from the Holocaust, makes it our permanent duty to stand up for the existence and security of the State of Israel. This responsibility guides us."
Regarding weapons, Germany responded to Nicaragua's case saying, "Where Germany has provided support to Israel, including in a form of export of arms and other military equipment, the quality and purposes of these supplies have been grossly distorted by Nicaragua." As concerns humanitarian aid, it says: "Germany continues to provide humanitarian support [in Gaza] every single day."
Germany argued it cannot be guilty of breaching its obligations under International Humanitarian Law or the ICJ's earlier ruling of plausible Israeli genocide because Germany supports a two-state solution, and the right of Palestinians to self-determination, to be exercised in the territories that came under occupation in 1967. It argued too that Germany is the largest individual donor of humanitarian assistance, with 203.55 million euros in 2023 and 50.95 million euros in 2024 so far, implemented not only via UNRWA but also organizations like the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), the World Food Program, the International Red Cross (ICRC) and the German Red Cross. Germany has increased its support threefold since October 2023, it claims.
In its opening statement to the court Germany said: “The bulk of Nicaragua's Application and Request to the ICJ assesses Israel's conduct and alleged violations of international law by Israel. But this is not a case brought against Israel. Nicaragua has initiated proceedings against Germany. Germany firmly rejects Nicaragua's accusations: they have no basis in fact or law. They are dependent on an assessment of conduct by Israel, not a party to these proceedings.”
Where Germany has provided support to Israel, including in the form of exports of arms and other military equipment, it claims that "the quantity and purposes of these supplies have been grossly distorted by Nicaragua. [...] Germany only supplies arms on the basis of detailed scrutiny, a scrutiny that not only respects, but in fact far exceeds the requirements of international law. [...] Germany's supply of arms and other military equipment to Israel is subject to a continuous evaluation of the situation on the ground."
In its concluding statement, Germany reiterated: "We stand by Israel's right to security and to self-defence, while insisting upon its limits being scrupulously respected."
Challenges
In his article about Nicaragua’s case, Abdel Ghany Sayed lays out a number of challenges it faces. He said the ICJ could summarily reject Nicaragua's request on the basis that Israel has not accepted the court's jurisdiction in this dispute and that Israel's alleged behaviour involving Germany has not yet been judicially determined as genocide.
He said the court could also summarily reject Nicaragua's request on the grounds that it cannot adjudicate Israel's conduct in the context of the Geneva Conventions' war crimes, and thus cannot determine whether Germany's support breaches the Geneva Conventions.
Finally, he said Nicaragua's demand for Germany to resume its financial support to the UNRWA was a contentious one, and that “[w]hile it may be permissible to consider the campaign undertaken by Germany and other countries, including the United States, against the UNRWA as part of an organized effort to support Israel's crimes in Gaza, the legal obligation to prevent and penalize genocide and war crimes does not inherently entail providing financial support to any organization or entity.”
This article was published in
Volume 54 Number 26 - April 15, 2024
Article Link:
https://cpcml.ca/Tmlm2024/Articles/MS542613.HTM
Website: www.cpcml.ca Email: editor@cpcml.ca