Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany)

Nicaragua requests the Court to adjudge and declare that Germany has failed to:

• Fulfil its obligation to prevent the genocide committed and being committed against the Palestinian people – including those in Gaza – and has contributed to the commission of genocide, in violation of the Genocide Convention;
• Comply with its obligations under IHL, under the Geneva Conventions and the intransgressible principles of IHL;
• Comply with other peremptory norms of general international law, in particular by providing aid or assistance to Israel in “maintaining the illegal situation of the continued military occupation of Palestine including its ongoing, unlawful attack in Gaza”;
• Comply with other peremptory norms of general international law in particular by providing aid or assistance and not preventing the “illegal regime of apartheid and the negation of the right to self-determination of the Palestinian people”.

Nicaragua argues that Germany has had knowledge from the “very beginning” or could not have ignored that Israel’s actions in Gaza constitute serious breaches of IHL and peremptory norms of international law. Moreover, in the South Africa v. Israel case on the application of the Genocide Convention, the ICJ came to the conclusion that there was a risk of serious and irreparable prejudice to the “right of the Palestinians in Gaza to be protected from acts of genocide”. Considering the public reporting and the ICJ Order of 26 January 2024, Nicaragua states that Germany “cannot deny knowledge” of the serious illegality of Israel’s conduct or that it triggered its obligations under the Genocide Convention, IHL, and other peremptory norms of international law.

With this knowledge, Germany has provided political, financial, and military support to Israel, as well as suspended funding to UNRWA.

The Application outlines Germany’s provision of military aid to Israel, including anti-tank weapons, ammunition for machine guns, detonators, propellant charges, land vehicles, and technology for the development, manufacture, operation, maintenance, and repair of weapons, which would be used to commit grave crimes under international law. The Application lists the following examples:

• Germany authorised the “handing over of” two Heron drones, and flak jackets to Israel. On 11 October 2023, video footage of overnight strikes conducted with these drones was posted by the Israel Defence Forces (IDF) on their official X account.
• In early October 2023, the Germany Defence Minister confirmed that Israel requested “ammunition for [its] warships”. The day before this request was made, the Israeli Navy had conducted attacks in central areas of Gaza along the Mediterranean coast and Khan Yunis city’s residential areas.
• In January 2023, German media reported that Israel had requested 10,000 120-millimetre Rheinmetall precision rounds of tank shells. It was also reported that Germany agreed to deliver the request from its own stocks to comply with the “urgency” of the request.
• By early November 2023, it was widely reported that Germany’s defence export approvals to Israel had increased tenfold in comparison to the previous year, reaching €303 million, while 185 out of 218 individual export permits were granted as a priority after 7 October 2023. In 2023, Germany granted €326,505,156 worth of military exports to Israel. Between 1 January and 15 February 2024, Germany granted export licences for military equipment worth €9,003,676, according to information made public by the German government.

The Application also states that Germany’s policy of halting bilateral assistance to the Palestinians soon after 7 October 2023, including suspending funding to UNRWA, further increases the vulnerability of the Palestinian population, particularly in Gaza (given the high risk of famine and epidemics), and contributes to the risk of irreparable prejudice, and that Germany is aware of the impact of this decision. The Application further states that Germany is thereby failing to prevent genocide or uphold IHL or the Palestinian people’s “right to self-determination”, and instead is actively contributing to violations of these fundamental rules and to the preservation of the “apartheid system”.

In its Order of 30 April 2024, the Court declared that it did not manifestly lack jurisdiction over the case, denying Germany’s request to remove it from the “General List” of cases filed and brought before the court. The Court recalled its Orders of 26 January 2024 and 28 March 2024 regarding the humanitarian situation in Gaza. It further recalled that pursuant to Common Article 1 of the Geneva Conventions, all States Parties to the Conventions, whether or not party to a specific conflict, are obligated to “ensure that the requirements of the instruments in question are complied with”. States’ obligations are also derived from the general principles of IHL. States Parties are also bound by the Genocide Convention. It further reminded “all States of their international obligations relating to the transfer of arms to parties to an armed conflict, in order to avoid the risk that such arms might be used to violate [the Genocide and Geneva Conventions]”.

The Application also requests that the Court indicates provisional measures due to the “imminent risk of a complete humanitarian catastrophe” and Germany’s continued delivery of political, financial and military aid to Israel, while reducing its humanitarian support for the Palestinian people by suspending funding for UNRWA. The provisional measures requested by Nicaragua are intended to ensure Germany’s compliance with its obligations under the Genocide Convention and IHL, and the avoidance of irreparable harm. The following measures are requested:

• Germany shall immediately suspend its aid to Israel, in particular military assistance including military equipment, “in so far as this aid may be used in the violation of the Genocide Convention, [IHL] or other peremptory norms of general international law” such as the Palestinian people’s right to “self-determination and not be subject to… apartheid”;
• Germany must immediately make every effort to ensure that weapons already delivered to Israel are not used in ways that violate the Genocide Convention or IHL;
• Germany must immediately do everything possible to comply with its IHL obligations;
• Germany must reverse its decision to suspend the funding of UNRWA;
• Germany must cooperate to end serious breaches of peremptory norms of international law by ceasing support, including in its supply of military equipment, to Israel, and continue its support of UNRWA.

Oral hearing on the request for provisional measures

In the oral hearing held on 8 and 9 April 2024, Nicaragua made the following arguments regarding its request for provisional measures:

• Nicaragua is invoking Germany’s “own responsibility” for the violations of “its own obligations” under the Genocide Convention and under IHL in these proceedings, as the violations of IHL by Israel create obligations for Germany, as it does for all States.
• The violations of the peremptory norms are facts that are evident and of public knowledge. Moreover, the ICJ’s Order of 26 January 2024 acted as an “alarm” indicating that genocide was plausibly being committed against the Palestinian people.
• Germany continues to justify its support for Israel. One justification for this support seems to be on the basis that Israel is not violating the Genocide Convention. Another justification seems to be that Israel has the right to self-defence. On the second point, Nicaragua states that Israel “as occupying power” has the duty to “restore, and ensure… public order and safety, while respecting… the laws in force in the country”. Regardless, the right to self-defence does not justify violations of the norms of the Genocide Convention.
• Palestinians have the right to self-determination, which gives them the right to take arms against “alien occupation and against racist regimes” in line with the norms of international law. Any violations of these norms that occurred on 7 October 2023 are not justified, but do not negate the rights of the Palestinian people, especially the “right to exist as a people”.
• German companies involved in the military industry are directly profiting from the situation as they have seen their share prices rise since 7 October 2023 and they have substantially increased the joint development contracts for weapons with their Israeli counterparts.
• In addition to suspending direct exports of arms to Israel, Germany should also suspend any indirect transfers to Israel through third countries, such as the US, given the current context.
• Germany cannot invoke that Israel is in some state of necessity of its assistance for self-defence and survival, as it is a military power in its own right.

Nicaragua also outlined some of the legal principles underpinning the case:

• The Geneva Conventions set out erga omnes Therefore, any State party has a legal interest to ensure the respect of these Conventions and obligations, including by filing proceedings at the ICJ. Furthermore, Nicaragua asks that the Court take note of Germany’s violations of its obligations under peremptory norms of general international law (inter alia the crimes of genocide or apartheid or fundamental principles of IHL or IHRL). Regardless, at this stage of the proceedings, it is up to the Court to rule only on its prima facie jurisdiction, rather than making definitive findings on the jurisdiction or the merits of the case.
• The Monetary Gold principle is not relevant to this case (in anticipation of Germany’s response at the Oral hearing). According to this principle, the ICJ should not exercise its jurisdiction to adjudicate on a case between two parties when the case implicates the legal interests of a third party not involved in the case. This is primarily because this case pertains to Germany’s “own responsibility” and “obligations” under international law.
• Nicaragua is not accusing Germany of being responsible for the “genocide against the Palestinian people”, but rather for failing in its obligation to prevent and stop the “crime of genocide”. The Genocide Convention invokes “complicity”, which, as the Court has previously stated, should not be differentiated from “aid or assistance”.

In its response at the oral hearing, Germany made the following arguments:

• Germany has been brought before the Court in the absence of a dispute. The Court also cannot exercise its jurisdiction in the absence of Israel, an indispensable party to the case. The case against Germany on genocide and IHL is entirely dependent on “prior finding of breach by Israel”. The Monetary Gold principle is relevant in this case.
• Nicaragua’s request is not linked to any plausible rights that are at issue in this case. This is the first case in the Court’s history in which provisional measures are sought against a State accused of “complicity” and a failure to “prevent” acts of a third State not party to the proceedings. Regardless, there is a failure to establish a causal relationship between Germany’s aid and assistance and a “[significant contribution] to the alleged wrongful act”.
• In Gaza, there is no immediate risk of irreparable prejudice concerning the rights that Nicaragua asserts vis-a-vis Germany. Nicaragua has not demonstrated that Germany’s behaviour gave rise to such risk to the rights mentioned in the dispute. The risk in question, mentioned in the ICJ’s Order, arises from the behaviour of Israel.

On the facts of the case, Germany presented the following arguments during the oral proceedings:

• Germany’s decision to suspend funding to UNRWA was a temporary decision – funding has since resumed partially. Regardless, even this temporary decision had no operational impact on UNRWA’s activities. Moreover, Germany has increased its support for Gaza outside of UNRWA.
• All German exports of military technology and equipment, distinguished as “war weapons” and “other military equipment”, to Israel are subject to strict licensing requirements.
  • Each exported item is first assessed for “clear risk” that it “would be used in the commission of genocide, crimes against humanity or grave breaches or the Geneva conventions”.
  • 98 percent of licences granted since 7 October 2023 concern the “other military equipment”, with only four instances of “war weapons” being licensed.
    • The licences issued for the “other military equipment” were for “daylight observation binoculars, bonding devices for hydrogen storage on submarines and infrared protection systems for defence against guided missiles”. The most recent licence was granted for “a slip ring for the installation in a radar system” which cannot “plausible be used to commit war crimes”.
    • Two of the “war weapons” licences concerning ammunition were for “training ammunition… not suitable for combat operation”. A third licence concerning “propellant charges… for test purposes”. The fourth licence was granted for 3,000 portable anti-tank weapons, which was “in the immediate context of Hamas massacres”.
    • In 2023, Israel approached Germany for tank ammunition. However, this application is being scrutinised and no licence has yet been approved.
    • With regards to the Heron drones, mentioned in Nicaragua’s Application and oral submission, German soldiers were trained on them in Israel under a lease agreement, which specified Israeli ownership and control. At no point had these drones left Israel.
  • Over 25 percent of exports were not destined for final use in Israel, but rather to be processed in Israel and then transferred back to Germany for use by the German armed forces.
  • The risks are being assessed not just with respect to particular military goods, but also a particular point in time. Almost 80 percent of exported items were approved before the end of October 2023, in “’the immediate context of Hamas’ horrendous massacres”.

In its order of 30 April 2024, the Court ruled that the circumstances were not such as to require the indication of provisional measures.