Nicaragua takes Germany to the ICJ

Tuesday 16 Apr 2024

By taking Germany to the International Court of Justice for supporting Israel’s genocidal war against Gaza, Nicaragua has set a precedent for the prosecution of other Israeli allies

Nicaragua takes Germany to the ICJ
ICJ members during the second day of the hearing (photo: AFP)


Four months ago, South Africa made history when its legal team presented documented arguments to the International Court of Justice (ICJ) testifying to Israel’s violations of the Genocide Convention in its war on Gaza.

Despite Israel’s protests, the court both accepted South Africa’s request to issue provisional measures to stop the genocide and said it found merit in Pretoria’s accusations, thus proceeding with the case.

While the ICJ’s rulings are binding, it does not have the means to enforce them. But the weight of their political impact has encouraged other countries like Nicaragua to follow South Africa’s example, including when it filed an application with the ICJ last month accusing Germany of “facilitating the commission of genocide” against Palestinians in Gaza through its staggering arms exports to Israel.

The Hague-based court held public hearings on 8-9 April for both sides.

Nicaragua requested that the court declare that Germany had failed to comply with its obligations under both national and international humanitarian law by aiding Israel in maintaining its illegal Apartheid regime, the occupation of Palestine, and the ongoing “unlawful attack in Gaza.”

It asked the court to issue provisional measures banning Germany from exporting more weapons to Israel and to resume funding for UNRWA, the 74-year-old UN relief agency for Palestinian refugees.

Nicaragua also requested that Germany ensure that military equipment, 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 norms of general international law.

Germany requested that the court reject Nicaragua’s case and remove from the General List the case it introduced to the court on 1 March 2024.

A press release by the court said it would begin deliberations and deliver its decision at a public sitting, the date of which will be announced in due course.

In the early days of the war, Germany’s Chancellor Olaf Scholz proclaimed that “Israel’s security is a German raison d’etat.”

In January, Berlin announced that it would intervene before the ICJ on behalf of Israel as a third party in the genocide case filed by South Africa. In the same vein, when Israel accused staff from UNRWA of links to Hamas on 28 January, Germany, the second-largest donor to the agency, immediately froze aid to it on the same day.

Both Germany and Nicaragua are state parties to the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), which stipulates, as Nicaragua emphasised in its 43-page application to the court, that each and every Contracting Party to the Genocide Convention has a duty to do everything possible to prevent the commission of genocide.

“It is indeed a pathetic excuse to the Palestinian children, women, and men to provide humanitarian aid, including through airdrops, on the one hand, and to furnish the military equipment that is used to kill and annihilate them… on the other,” Daniel Mueller, a German lawyer who represented Nicaragua, told the court.

Mueller reminded the ICJ that 10 days before this when the court had ordered additional provisional measures against Israel in South Africa’s case, it had called the living conditions in Gaza “catastrophic” and the recent developments “exceptionally grave.”

The court found “an imminent risk of irreparable harm to the right of the Palestinians in Gaza to be protected from acts of genocide.”

Mueller also reminded the court of Israel’s racist violence against and illegal detention of Palestinians in the West Bank who are living under a system of Apartheid, while “Germany continues to assure and implement full support to Israel for its war against Gaza and its population.”

Mueller revealed to the court that the German government had authorised exports of military equipment and weapons in the amount of more than €326 million to Israel in 2023 alone.

“Most of these licences were granted in the second half of 2023, after the invasion of Gaza by Israel and the start of its war in the territory and against its population,” he added.

Nicaragua’s Ambassador to the Netherlands Carlos José Argüello Gómez told the court that his country was acting not only on its own behalf on the basis of the rights and obligations conferred by the norms invoked, but also “on behalf of the Palestinian people that are being subjected to one of the most destructive military actions in modern history.”

Gómez said that German companies involved in the military industry are directly profiting from the situation as they have seen their share prices rise since 7 October and have substantially increased joint development contracts for weapons with their Israeli counterparts.

Citing the repeated and urgent statements by the UN secretary general, the president of the International Committee of the Red Cross, and the high representative of the European Union of Israel’s violations of international law, Gomez argued that Germany had full knowledge of Israel’s violations.

Gomez also cited a non-exhaustive list from October to April of 32 statements from hundreds of respected authorities, organisations, experts, legal scholars, and practitioners on questions of international humanitarian law, “calling out that Israel was breaching or plausibly breaching the Genocide Convention and that it was breaching the most important norms of international humanitarian law” while also provoking famine in Gaza.

Germany denied the accusations, arguing that Nicaragua had distorted the quantity of arms sales to Israel and their purpose. Its lawyers told the ICJ that it had no jurisdiction to hear the case since the court had not determined that Israel was committing genocide.

Anne Peters, a member of Germany’s legal team, said that if the court found it “plausible” that Israel is violating international law, it could then determine whether “plausible facts” establish “plausible violations” by Germany.

She said that Nicaragua did not present evidence that “military equipment from Germany could have made a significant contribution to an alleged genocide or to breaches of international humanitarian law” in the light of “Germany’s stringent licensing standards.”

Lamees Deek, a US-based Palestinian-American rights lawyer, said that politically and legally Nicaragua’s case “sets the stage for ‘global’ actionable liability for all who have aided Israel’s genocide in Gaza.”

“There is no sovereign immunity for genocide,” she wrote on X, formerly known as Twitter. “A brilliant move by Nicaragua, which is well seasoned in leveraging precedent via the ICJ,” Deek added.

Within a week of the hearing, Germany rescinded a prestigious professorship offered by the University of Cologne to leading Jewish-American philosopher Nancy Fraser for signing a letter expressing solidarity with the Palestinians and calling for a ceasefire.

The German authorities also clamped down on a Palestine conference in Berlin, while denying entry to British-Palestinian surgeon Ghassan Abu Sitta who was scheduled to give a lecture there.

Former Greek finance minister Yanis Varoufakis, who was also invited to speak at the same event, was also banned from entering Germany and threatened.

* A version of this article appears in print in the 18 April, 2024 edition of Al-Ahram Weekly


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