ICJ to hear that Germany is complicit in genocide by arming Israel

Case brought by Nicaragua asks The Hague court to rule on Israel and restore funding for UNRWA

Pro-Palestinian protesters outside The Hague when judges heard South Africa's case against Israel in January. Getty Images
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The war in Gaza returns to a courtroom in The Hague on Monday as friends of Palestine try to score a legal and political win over one of Israel's closest allies, Germany.

A case brought by Nicaragua alleges that Germany is complicit in genocide by selling arms to Israel and suspending funds for aid agency UNRWA.

Nicaragua will on Monday ask judges at the International Court of Justice to order those policies reversed, before Germany replies on Tuesday.

Even a vaguer interim order reminding Germany of its duties – as Israel received in a case brought by South Africa – could hand Nicaragua a victory in the court of public opinion.

“In terms of public relations, it would probably be interpreted as Germany losing the case,” Stefan Talmon, a British-German barrister who has appeared at the ICJ, told The National.

Nicaragua's case is “about alerting the public to the plight of the Palestinians, but also highlighting Germany being the second-biggest arms exporter to Israel, putting pressure on the German government”, he said.

Germany rejects Nicaragua's allegations. The country hopes to show the court that it is acting within the laws of war and genocide drawn up after it perpetrated the Holocaust.

It could try to have the case dismissed on the grounds that the hearings are missing an “indispensable third party” – namely Israel.

Pressure is growing for Israel's allies to cut off weapons supplies – with the US and Germany accounting for 99 per cent of them in recent years.

A vote at the UN on Friday called for a halt to arms sales, but Germany says only the Security Council could order an embargo, which is unlikely.

Turning to the courts, campaigners persuaded a Dutch court to stop the export of F-35 fighter jet parts and Nicaragua threatened Germany, the UK, the Netherlands and Canada with legal action.

The Central American nation – whose ruling left-wing Sandinistas have decades-old ties to the Palestinian cause – chose to file a case against Germany on March 1.

Germany exported arms worth €326.5 million ($351.7 million) to Israel last year, official figures show. It has made increasingly sharp appeals for Israel to reduce harm to civilians in Gaza.

Judges in The Hague have previously ruled that any state can act to uphold the Genocide Convention even if, like Nicaragua, it has no obvious link to events.

Sceptics have highlighted Nicaragua's own questionable human rights record and gaps in its 43-page filing to the ICJ.

What is Nicaragua's case?

In its filing, Nicaragua claims Germany has backed Israel despite being “fully aware” that its weapons might be used for “great breaches of international law”.

It accuses Germany of enabling genocide by pausing funds to UNRWA despite being “acutely aware of the deadly consequences for the Palestinians”.

Nicaragua says there is a genuine dispute for the ICJ to settle because it filed a formal diplomatic protest with Germany on February 2.

On that occasion, it said Germany's decision on UNRWA “contributes to the collective punishment of the Palestinians”.

Any ruling on whether Germany is in breach of either the Genocide Convention or international humanitarian law would typically take years.

However, the court could order “provisional measures” – as it did in the South Africa-Israel case – within weeks.

A ruling proposed by Nicaragua would order Germany to “immediately suspend its aid to Israel, in particular its military assistance”, and restore funding to UNRWA.

How will Germany reply?

Germany's legal team, including lawyers from the UK and Italy, will get three hours to respond to Nicaragua's case on Tuesday.

They will “lay out comprehensively” that Germany “has not violated either the Genocide Convention or international humanitarian law”, a Foreign Ministry spokesman said.

In trying to dismiss the case, Germany could turn to the 60-year-old precedent of a case concerning looted Nazi gold.

The ICJ ruled in 1954 that it could not hear a case about whether the gold belonged to Albania unless that country was part of the proceedings.

This principle could dictate that Israel is an “indispensable third party” that would have to answer to charges of genocide before Germany could be found complicit in it.

In the best case for Germany, judges could dismiss the matter at the first hurdle because of this so-called Monetary Gold principle.

“If the court was minded to get rid of the case, it could at that stage say it's so obviously clear that there is a party missing,” Mr Talmon said.

“If you build your case on Israel committing genocide, and Germany being complicit in Israel's genocide, at some stage, you will have to decide whether Israel committed genocide.

“But if Israel is not before the court, then the court cannot decide the complicity part.”

Germany will also take the stand on Israel's side when the South Africa case reaches its next stage.

“Not least against the backdrop of our own history, it is an expression of a special German responsibility to stand up for the integrity of the genocide convention,” officials say.

What will the court decide?

Mr Talmon believes there is no prospect of the case ultimately succeeding – but in the initial round Nicaragua needs only to prove that it could.

The court could find that there is “a risk of violations of international humanitarian law and you'd better err on the safe side”, he said.

If the case remains alive, the court could order provisional measures, but they need not be the ones Nicaragua has drafted.

In the South Africa-Israel case, it went a middle way by calling on Israel to prevent genocide while stopping short of ordering an end to its offensive in Gaza.

Nicaragua's call for a German arms embargo would almost certainly run into the claim that it would strip Israel of its right to self-defence.

On UNRWA, Germany can argue that it has increased funding for others such as the Red Cross even after it paused payments to the UN agency over alleged militant links.

However, even a cautious order reminding Germany of its obligations could pile pressure on Chancellor Olaf Scholz's government.

“Probably, if the court came up with such a general order, Germany would say 'we've always been complying with international law, we've always been complying with IHL; for us there is no need to change anything',” Mr Talmon said.

“But in public relations terms, it would be bad for Germany.”

Updated: April 08, 2024, 5:00 AM