Nicaragua v. Germany

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Nicaragua v. Germany
Seal of the International Court of Justice.png
Court International Court of Justice
Full case nameAlleged Breaches of Certain International Obligations in Respect of the Occupied Palestinian Territory (Nicaragua v. Germany)
Started1 March 2024
Claim"Germany is facilitating the commission of genocide and, in any case has failed in its obligation to do everything possible to prevent the commission of genocide." [1] :  16 
Keywords

On 1 March 2024, Nicaragua instituted proceedings against Germany at the International Court of Justice (ICJ) under, inter alia, the Genocide Convention, concerning Alleged Breaches of Certain International Obligations in Respect of the Occupied Palestinian Territory arising from Germany's support for Israel in the Israel–Hamas war. [2] [1] [3] It sought the indication of provisional measures of protection including the resumption of suspended German funding of the UNRWA and the cessation of military supplies to Israel. [3]

Contents

Background

On 7 October, Hamas and other Palestinian armed groups attacked Israel. Israel then invaded Gaza.

South African application

In earlier proceedings before the Court, South Africa alleged that Israel has committed, and is committing, genocide against Palestinians in the Gaza Strip, in violation of the Genocide Convention, and places the charges in what it describes as the broader context of Israel's conduct towards Palestinians, including what South Africa described as a 75-year apartheid, 56-year occupation, and 16-year blockade of the Strip. [4] [5] South Africa requested that the ICJ render immediate provisional measures of protection by issuing an order to Israel to immediately suspend its military operations in and against Gaza. [6] [7]

Israel's Foreign Ministry characterized South Africa's charges as "baseless" [8] and further described South Africa as "functioning as the legal arm" of Hamas. [9] Israel argues that it is conducting a war of self-defence in accordance with international law following the Hamas-led attacks on its territory on 7 October 2023. Approximately 1,200 people, most of them civilians, were killed in these attacks. [10] Israel points to ongoing firing of missiles at civilian population centres, the kidnapping and holding of Israeli hostages in Gaza, [11] [12] and contends that its war cabinet and military authorities directives show no genocidal intent. While acknowledging the high incidence of civilian casualties, Israel attributes them to Hamas and other militant groups using civilian infrastructure as cover for their military assets and operations. [12] Israel asserts compliance with international law and claims to facilitate humanitarian aid into the territory. [10] [13]

The court issued an Order in relation to the provisional measures request on 26 January 2024, in which it ordered Israel to take all measures to prevent any acts that could be considered genocidal according to the 1948 Genocide Convention. [14] [15] [16] The court said "at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the [Genocide] Convention". [17] The court did not order Israel to suspend its military campaign in the Gaza Strip, which South Africa had requested. [18] [19] Both South African and Israeli officials welcomed the decision, with each considering it a victory. [20] The court also expressed "grave concern" about the fate of the hostages held in the Gaza Strip [14] and recognized the catastrophic situation in Gaza "at serious risk of deteriorating further" prior to a final verdict. [21]

Proceedings

Nicaragua's application

Jurisdiction

Nicaragua submitted that both it and Germany have accepted the compulsory jurisdiction of the court in the matter, since the reservations of neither party at the time of their acceptance of that jurisdiction include the present case. [1] : ¶¶ 20–3  Article IX of the Genocide Convention provides for the jurisdiction of the Court in disputes as to the "interpretation, application or fulfilment" of its provisions, and neither Nicaragua nor Germany have stated any reservations under which Article IX falls. [1] : ¶¶ 24–5  Nicaragua further submitted that such a dispute exists. [1] :  26  By a note verbale dated 2 February 2024 to the Federal Foreign Office of Germany, Nicaragua urged Germany to halt arms supplies to Israel and alleged that they could be used in violation of the Genocide Convention, denounced the suspension of funding of the UNRWA as contrary to Germany's obligations under international law, and accused Germany of failing to comply with its obligations under the Genocide Convention. [1] :  27  In the note, Nicaragua said that, in view of its own obligations erga omnes partes, it was prepared to institute proceedings before the Court, and reminded Germany of its own obligations. [1] :  27  Nicaragua claimed that, because Germany "rejected the…contents" of a press release concerning the contents of the note verbale, a dispute exists concerning, inter alia, "the interpretation and application of the Genocide Convention, the Geneva Conventions of 1949", and international law. [1] : ¶¶ 30–1 

Germany's actions

Nicaragua submitted that Germany was aware of "violations being committed by Israel from the moment of their first occurrence" including Israel's alleged intent to "target the civilian population, a clear act of collective punishment". [1] : ¶¶ 39–40  It cited the remarks of the Chancellor of Germany, Olaf Scholz, who said that "Israel's security is a German raison d'État", [1] :  44  supplies of weapons to Israel, [1] : ¶¶ 45, 47, 51, 53, 56  and concerns expressed about harm to Palestinian civilians and a risk of genocide. [1] : ¶¶ 41–3, 48–50, 52, 54–5  It argued that German policy on aid towards Palestinians "increased the vulnerability of the Palestinian population, particularly Gazans, and contributed to the very present risk of irreparable prejudice." [1] :  57  It claimed that Germany suspended funds on the basis of allegedly unreliable Israeli allegations that members of the UNRWA were involved in Hamas's attack of 7 October. [1] : ¶¶ 58–9  Nicaragua submitted that funding for the UNRWA was "relied upon" for the continuation of its work, on which "over two million people [depend]", [1] : ¶¶ 60–3  including for health services, [1] :  62  environmental health, pest control, water quality, education, and microfinance. [1] :  63  Nicaragua cited the UNRWA's warning that suspension of funding could lead to the cessation of its operations "by the end of February", despite the presence of widespread hunger in the Gazan population according to UN reports. [1] : ¶¶ 64–6 

Remedies sought

Nicaragua sought an adjudication and declaration that [1] :  67 

  • in assisting, supplying, and failing to pressure Israel, Germany breached its obligations under the Genocide Convention, Fourth Geneva Convention, its duty to uphold the right to self-determination of the Palestinian people;
  • in suspending funding to the UNRWA, Germany breached its obligations under the Genocide Convention, international humanitarian law, and the Fourth Geneva Convention;
  • in failing to institute proceedings against persons responsible for crimes under international law including war crimes and apartheid, Germany breached its own obligations under international law; and
  • Germany must cease the alleged breaches above, assure their non-repetition, and "make full reparation for the injury caused its internationally wrongful acts[sic]".

Provisional measures

Nicaragua further asked the court to indicate provisional measures pursuant to its own obligations erga omnes. [1] :  68  Nicaragua alleged an "imminent risk of a complete humanitarian catastrophe". [1] :  74  It cited the remarks of Israeli officials, [1] :  70  and UN officials. [1] : ¶¶ 71–3  It submitted that the court had prima facie jurisdiction because of the existence of a dispute between Nicaragua and Germany. [1] :  83–4  Nicaragua further submitted that both it and Germany had, in acceding to the Genocide Convention, "undertaken to prevent genocide", including prohibitions on certain acts and positive duties to seek to prevent such acts. [1] :  86  Nicaragua submitted that there was therefore a "risk of irreparable harm and [an] urgent need to protect the rights of the Palestinian people", that the court had already reached such a conclusion in earlier proceedings instituted by South Africa, [1] :  94  that it had expressed concern that the situation was worsening, [1] :  95  and that its application engaged not only the obligations under the Genocide Convention by which the court was concerned in those proceedings but also "those of convenitional[sic] and customary international law". [1] :  98  Accordingly, it submitted that "the rights Nicaragua seeks to preserve involv[e] the lives of hundreds of thousands of people". [1] :  99 

Nicaragua therefore sought the indication of provisional measures including [1] :  101 

  • the immediate suspension of German aid and military assistance to Israel so far as it could be used in violation of the Genocide Convention or international law;
  • German efforts to ensure that weapons it had already delivered were not used for such purposes; and
  • resumption of German funding of the UNRWA.

The Rules of Court provide that "request[s] for the indication of provisional measures shall have priority over all other cases". [22]

Oral proceedings

On March 15, 2024, the court announced oral arguments would be heard on 8–9 April. [23] Nicaragua presented its case on 8 April. [24] German response was presented the following day.

Provisional measures by the court

On April 26, it was announced that first ruling on provisional measures will be delivered on April 30. [25]

On April 30, the court ruled against provisional measures, though declining to throw out Nicaragua's case, as requested by Germany. [26] [27]

Germany's response to Nicaragua's application

Germany responded that the case would be at odds with the "indispensable third party" principle established in the Monetary Gold case. It stated that only a small amount of the 326 million euros worth of arms/military equipment deliveries in 2023 would be for war weapons (Kriegswaffen). Moreover, 80% of exports since October 2023 occurred in that month alone. And despite the pause in payments to UNRWA since January 2024, the German government helped the Palestinians with payments to UNICEF, the World Food Programme and the International Red Cross. [28]

Commentary

Imogen Saunders of the Australian National University wrote that Nicaragua's application was the "first…to allege contribution to the act of genocide rather than the commission of the act itself". [29] Saunders wrote that Nicaragua's case "rests on a finding that genocide is being committed in Gaza", in which case Israel would be an "indispensable third party" to the case; in the absence of an indispensable third party, a case is inadmissible. [29] Saunders suggests that Nicaragua may have intervened in South Africa's proceedings against Israel under Article 62 of the Statute of the International Court of Justice in order to avoid impediments to the admissibility of its case. [29]

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References

  1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Argüello Gómez, Carlos J. (1 March 2024). "Application instituting proceedings" (PDF). International Court of Justice.
  2. ↑ "Nicaragua files application to World Court, accusing Germany of complicity in Gaza genocide". Middle East Eye. 1 March 2024.
  3. 1 2 van den Berg, Stephanie (1 March 2024). "Nicaragua files case at World Court against Germany for aiding Israel". Reuters.
  4. ↑ Maupas, Stéphanie (1 January 2024). "Israel-Hamas war: South Africa brings 'genocide' case before international courts". Le Monde.fr. Archived from the original on 6 January 2024. Retrieved 6 January 2024. 'Long years of apartheid'... The South African lawyers have relied on UN reports, reports by Palestinian journalists and research by NGOs, because Israel prevents the international press from entering the Gaza Strip, as well as investigators from the International Criminal Court and the UN Human Rights Commission. They added that this genocide is committed "against a background of apartheid, expulsion, ethnic cleansing, annexation, occupation, discrimination and ongoing denial of the right of the Palestinian people to self-determination."
  5. ↑ Powell, Anita (5 January 2024). "South Africa to Take Israel to Top UN Court on Genocide Claim in Gaza". Voice of America . Archived from the original on 6 January 2024. Retrieved 6 January 2024. In the court application, South Africa argues that the treatment of Palestinians also bears strong resemblance to South Africa's own racially motivated apartheid regime, which ended in 1994 with Mandela's election. "It is important," the submission reads, "to place the acts of genocide in the broader context of Israel's conduct towards Palestinians during its 75-year-long apartheid, its 56-year-long belligerent occupation of Palestinian territory and its 16-year-long blockade of Gaza, including the serious and ongoing violations of international law associated therewith, including grave breaches of the Fourth Geneva Convention, and other war crimes and crimes against humanity."
  6. ↑ The request for provisional measures is made under Article 74 of the Rules of the Court Archived 6 January 2024 at the Wayback Machine , which states that "A request for the indication of provisional measures shall have priority over all other cases."
  7. ↑ "Proceedings instituted by South Africa against the State of Israel on 29 December 2023" (PDF). International Court of Justice . 29 December 2023. Archived from the original on 5 January 2024. Retrieved 5 January 2024. ALT Link
  8. ↑ "Israel: South African genocide claims at ICJ are baseless". The Jerusalem Post. 11 January 2024. Archived from the original on 21 January 2024. Retrieved 22 January 2024.
  9. ↑ "Lior Haiat - Spokesperson of the Israeli Ministry of Foreign Affairs". X (formerly Twitter). 11 January 2024. Archived from the original on 17 January 2024. Retrieved 22 January 2024.
  10. 1 2 "War against Hamas in Gaza is act of self-defence, Israel tells world court". UN News. 12 January 2024. Archived from the original on 12 January 2024. Retrieved 21 January 2024.
  11. ↑ "Public sitting in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)" (PDF). International Court of Justice. The Hague. 12 January 2024. p. 14. Retrieved 19 January 2024. ... thousands of Hamas and other militants breached Israeli sovereign territory by sea, land and air, invading over 20 Israeli communities, bases and the site of a music festival. What proceeded, under the cover of thousands of rockets fired indiscriminately into Israel, was the wholesale massacre, mutilation, rape and abduction of as many citizens as the terrorists could find before Israel's forces repelled them. Openly displaying elation, they tortured children in front of parents, and parents in front of children, burned people, including infants, alive, and systematically raped and mutilated scores of women, men and children. All told, some 1,200 people were butchered that day, more than 5,500 maimed, and some 240 hostages abducted, including infants, entire families, persons with disabilities and Holocaust survivors, some of whom have since been executed; many of whom have been tortured, sexually abused and starved in captivity
  12. 1 2 Berman, Lazar (12 January 2024). "Full text of Israel's opening address against South Africa genocide case at World Court". The Times of Israel. Archived from the original on 21 January 2024. Retrieved 22 January 2024.
  13. ↑ "Public sitting in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel)" (PDF). International Court of Justice. The Hague. 12 January 2024. p. 72. Retrieved 19 January 2024. The conflict with Hamas poses serious operational and legal challenges: in conducting close-quarter urban combat, while mitigating harm to the surroundings; in seeking to put a stop to Hamas' military use of hospitals, while minimizing disruption of medical services; in helping civilians leave areas of the most intense fighting, while Hamas forces them to stay in the line of fire; in facilitating the provision of aid, when that aid is constantly stolen by Hamas, to sustain its military efforts; in balancing humanitarian considerations with the need to act forcefully against an adversary that still fires rockets deep into our country and holds our citizens hostage.
  14. 1 2 "Gaza war: ICJ says Israel must prevent genocidal acts in Gaza". BBC News. Archived from the original on 26 January 2024. Retrieved 26 January 2024.
  15. ↑ "Israel-Hamas War: Update from Patrick Kingsley". The New York Times. 26 January 2024. Archived from the original on 26 January 2024. Retrieved 26 January 2024.
  16. ↑ "Order respecting South Africa's request for provisional measures" (PDF). International Court of Justice. 26 January 2024.
  17. ↑ Rajvanshi, Astha (26 January 2024). "U.N. Court Says Israel Must Prevent Genocidal Acts in Gaza, But Doesn't Order a Ceasefire". TIME. Archived from the original on 26 January 2024. Retrieved 26 January 2024.
  18. ↑ "Israel-Hamas war: ICJ stops short of ordering cease-fire, tells Israel to prevent acts of genocide in Gaza". NBC News. 27 January 2024. Archived from the original on 27 January 2024. Retrieved 27 January 2024.
  19. ↑ "World Court stops short of Gaza ceasefire order for Israel". Reuters. 27 January 2024. Retrieved 27 January 2024.
  20. ↑ AlLawati, Nadeen Ebrahim, Abbas (26 January 2024). "Why both South Africa and Israel are welcoming the UN court's ruling in a landmark genocide case". CNN. Archived from the original on 27 January 2024. Retrieved 27 January 2024.{{cite web}}: CS1 maint: multiple names: authors list (link)
  21. ↑ "Israel reined in by ICJ rulings on Gaza - but will it obey?". 26 January 2024. Archived from the original on 26 January 2024. Retrieved 26 January 2024– via www.bbc.com.
  22. ↑ "The Republic of Nicaragua institutes proceedings against the Federal Republic of Germany and requests the Court to indicate provisional measures" (PDF). International Court of Justice. 1 March 2024.
  23. ↑ "Proceedings instituted by Nicaragua against Germany on 1 March 2024 - Request for the indication of provisional measures - Public hearings to be held on Monday 8 and Tuesday 9 April 2024" (PDF). International Court of Justice. 15 March 2024.
  24. ↑ ICJ to hear Nicaragua case against Germany for ‘facilitating Gaza genocide’
  25. ↑ Press Release of April 26, 2024
  26. ↑ "Live: ICJ rules against imposing measures on Germany over Israel aid". aljazeera.com. Aljazeera. Retrieved 30 April 2024.
  27. ↑ "The top UN court rejects Nicaragua's request for Germany to halt aid to Israel". AP News. 30 April 2024. Retrieved 30 April 2024.
  28. ↑ "Deutschland verteidigt sich gegen Nicaragua: Alles nur Testwaffen und Helme?". www.lto.de (de:Legal Tribune Online) (in German). 9 April 2024. Retrieved 2 May 2024.
  29. 1 2 3 Saunders, Imogen (6 March 2023). "Interventions and Inadmissibility: Nicaragua v Germany, the Monetary Gold principle, and the Genocide Convention at the International Court of Justice". ANU College of Law.
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