Unlike Washington, Berlin – Israel’s second-largest arms supplier – has consented to full jurisdiction of the ICJ so it is an easier target for Nicaragua’s lawsuit, writes Marjorie Cohn

AS ISRAEL’S genocidal campaign against the Palestinians in Gaza — which has killed more than 33,000 Gazans — enters its seventh month, Nicaragua sued Germany in the International Court of Justice (ICJ, or World Court) for facilitating genocide.

Nicaragua charged that, ‘Germany has provided political, financial and military support to Israel fully aware at the time of authorisation that the military equipment would be used in the commission of great breaches of international law’, adding,

‘The military equipment provided by Germany enabling Israel to perpetrate genocidal acts and other atrocities, included supplies to the front line and warehouses, and assurances of future supplies such as ammunition, technology and diverse components necessary for the Israeli military.’

Nicaragua also cited Germany’s defunding of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, which “provides essential support to the civilian population.’

Germany is the second-largest arms supplier to Israel, accounting for 30 percent of imports between 2019 and 2023. The United States, Israel’s chief enabler, provided it with 69 percent of its arms imports during the same period.

On Oct. 12, German Chancellor Olaf Scholz stated,

‘At this moment, there is only one place for Germany: the place at the side of Israel. This is what we mean when we say that Israel’s security is a German raison d’État. Our own history, our responsibility arising from the Holocaust, makes it our perpetual duty to stand up for the existence and security of the State of Israel. This responsibility guides us.’

In a historic hearing on April 8 and 9, Nicaragua presented its case to the ICJ and Germany denied the charges. Nicaragua asked the World Court to order five provisional measures ‘as a matter of extreme urgency’ for Germany’s alleged ‘participation in the ongoing plausible genocide and serious breaches of international humanitarian law and other peremptory norms of general international law occurring in the Gaza Strip.’

Daniel Müller, a lawyer on Nicaragua’s legal team, reminded the ICJ that 10 days prior, when the court ordered additional provisional measures against Israel in South Africa’s case, it 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”.’

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

Gómez said that although Nicaragua hasn’t been subjected to as much inhuman treatment and destruction as the Palestinians have suffered for more than 75 years, ‘it has also been subject to intervention and military attacks for most of its existence and feels empathy for the Palestinian people.’

In the 1984 case of Military and Paramilitary Activities in and against Nicaragua (Nicar v US), the ICJ ruled against US intervention in Nicaragua, which included the mining of ports, the destruction of oil installations, and the training, arming and equipping of the Contras (who were trying to overthrow the Nicaraguan government).

Gómez stated the Israeli government ‘should not be confused and equated with the Jewish people’, noting that Jewish victims of the Holocaust ‘would feel sympathy and empathise with the more than 30,000 civilians, including 25,000 mothers and children massacred so far in Palestine, and the 20,000 children orphaned and the two mothers being killed every hour.’

Military aid, cuts to UNRWA as genocide unfolded

THE Genocide Convention imposes on third parties the obligation to prevent genocide from the time they become aware that genocide might be committed. Gómez told the court ‘there can be no question’ that Germany ‘was well aware and is well aware of at least the serious risk of genocide being committed, most certainly after your Order of 26 January [for provisional measures].’

Gómez argued that Germany was on notice of Israel’s international lawbreaking, citing 32 statements made from October 9, 2023 to April 5, 2024, by hundreds of highly respected experts, authorities, organisations, legal scholars and practitioners accusing Israel of breaching or plausibly breaching the Genocide Convention.

‘With all this undeniable knowledge of the situation’, Gómez declared, ‘Germany’s reaction was to increase its military assistance to Israel.’ He also cited Germany’s announcement that it would intervene in favour of Israel in the case of South Africa v. Israel, which is pending in the ICJ.

And, Gómez said, in spite of the ICJ’s January 26 finding that Israel was plausibly committing genocide, ‘Germany continued, and still continues to this day, to supply weapons and military assistance in general to Israel.’

For the year 2023, the German government authorised 326 million euros for exports of military equipment and weapons of war to Israel, Nicaragua’s attorney Müller told the court.

Export licenses for war weapons worth 20 million euros included ‘3,000 anti-tank weapons — which according to one manufacturer in Germany are “a complete toolbox of shoulder-launched infantry weapon[s]” used against tanks, but also vehicles, structures and buildings, and persons — 500,000 rounds of machine gun ammunition, 44 propellant charges — a key component in artillery ammunition — and 239 ignition charges.’

Müller said these weapons are ‘built to and aimed at destroying and killing, or to quote from Germany’s own definition, “objects [and] substances… capable… of causing destruction or damage to persons or property and of serving as a means of using force in armed conflicts between States.”’

In spite of the Security Council resolution demanding an immediate ceasefire, Germany continues to provide military assistance to Israel. Germany is facilitating or improving the provision of humanitarian aid in Gaza. But, Müller argued,

‘It is indeed a pathetic excuse to the Palestinian children, women and men in Gaza to provide humanitarian aid, including through air drops, on the one hand, and to furnish the weapons and military equipment that are used to kill and annihilate them — and to kill also humanitarian aid workers as most recently evidenced by the missile attack against vehicles and workers of World Central Kitchen, on the other hand.’

Gómez noted the involvement of German companies in the military industry which ‘are directly profiting from the situation as they have seen their share prices rise since October and they have substantially increased the joint development contracts for weapons with their Israeli counterparts.’

Nicaragua also cited Germany’s suspension of funding for UNRWA in Gaza the day after the ICJ’s January 26 order, ‘based on the sole say-so of the Israeli government’, as evidence of Germany’s facilitation of genocide. ‘UNRWA is the most important partner for providing assistance to the people in the Gaza Strip’, Germany’s federal minister admitted on November 7, 2023. The suspension of funding deprived UNRWA of $450 million.

Debunked self-defence argument

NICARAGUA argued that Israel was confusing the right to protect its people with the right of self-defense under Article 51 of the UN Charter, citing the 2004 ICJ’s advisory opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In that case, the court held that Israel, as an occupying power, cannot claim self-defence in the territory it occupies. ‘Surprisingly’, Gómez stated, ‘Germany seems not to be able to differentiate between self-defence and genocide.’

Moreover, Nicaragua asserted that ‘the Palestinian people have the right to self-determination’ which includes ‘the right to take up arms against alien occupation and against racist régimes in the exercise of their right of self-determination as enshrined in the [UN] Charter’ and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States.

Gómez noted that the events of October  7 ‘did not occur in a void, on the spur of the moment, without any provocation.’ He quoted UN secretary general António Guterres, who said on October 24, ‘It is important to also recognise the attacks by Hamas did not happen in a vacuum. The Palestinian people have been subjected to 56 years of suffocating occupation.’

‘If the actions of Israel continue unrestrained as they have since its birth as a State, and they continue to receive the indiscriminate support of States like Germany, then a new generation of Palestinians will rise up again in the near future’, Gómez predicted.

Seeking 5 provisional measures

NICARAGUA asked the ICJ to order that Germany not make the situation in Gaza worse, by ‘providing or allowing the provision of munitions of war and other direct support for Israel at this juncture and by depriving UNRWA… of funding and of the ability to continue working in accordance with its mandate.’

These are the provisional measures that Nicaragua is requesting:

(1) Germany shall immediately suspend its aid to Israel, in particular its military assistance including military equipment, in so far as this aid may be used in the violation of the Genocide Convention, international humanitarian law or other peremptory norms of general international law such as the Palestinian People’s right to self-determination and to not be subject to a regime of apartheid;

(2) Germany must immediately make every effort to ensure that weapons already delivered to Israel are not used to commit genocide, contribute to acts of genocide or are used in such a way as to violate international humanitarian law;

(3) Germany must immediately do everything possible to comply with its obligations under humanitarian law;

(4) Germany must reverse its decision to suspend the funding of UNRWA as part of the compliance of its obligations to prevent genocide and acts of genocide and the violation of the humanitarian rights of the Palestinian People which also includes the obligation to do everything possible to ensure that humanitarian aid reaches the Palestinian people, more particularly in Gaza;

(5) Germany must cooperate to bring to an end the serious breaches of peremptory norms of international law by ceasing its support, including its supply of military equipment to Israel that may be used to commit serious crimes of international law and that it continue the support of the UNRWA on which this Organisation has counted and based its activities.

Germany claims it can’t be held responsible

GERMANY’S legal team raised two main defences. First, the ICJ has no jurisdiction in the case because Germany’s responsibility is dependent on a finding that Israel is committing genocide and Israel is not a party to this case. Second, Germany has a ‘robust legal framework’ to assess on a case-by-case basis whether export licenses comport with its domestic and international obligations and most of its exports since October 2023 have not been ‘war weapons.’

Agent Tania von Uslar-Gleichen argued on behalf of Germany that Nicaragua’s accusations ‘have no basis in fact or law. They are dependent on an assessment of conduct of Israel, not a party to these proceedings.’ She said the case was brought to the court ‘on the basis of the flimsiest of evidence.’

Samuel Wordsworth, also representing Germany, told the ICJ it had no jurisdiction to hear this case. He explained that Israel was not before the court and determinations about its conduct were a prerequisite to finding responsibility on the part of Germany. In South Africa v Israel, the ICJ held it was ‘plausible’ that Israel was committing genocide.

A final determination on the merits will take a number of years. Before determining whether Germany is breaching its international obligations, ‘the Court must first determine that Israel has committed genocide’, Wordsworth maintained.

‘The responsibility of Germany is alleged, but in complete reliance on asserted wrongful acts of Israel.’ Thus, he said, Israel is ‘an indispensable third party.’

But Anne Peters, another member of Germany’s legal team, admitted that if the court found it ‘plausible’ that Israel is violating international law, it can then determine whether ‘plausible facts’ establish ‘plausible violations’ by Germany.

Germany says most exports aren’t ‘war weapons’

PETERS said that Nicaragua hasn’t presented any 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.’

Von Uslar-Gleichen told the court that since October 7, 2023, 98 per cent of the licences granted in Germany for exports to Israel were not for ‘war weapons’, but rather for ‘other military equipment.’ Eighty percent of the volume approved for export was authorised in October 2023, she said.

Since October 2023, ‘we see no artillery shells, no munitions. Nearly all exports involve what is known as “other military equipment,” typically of a subordinate or defensive nature’, she stated. This generally includes ‘defence equipment against chemical hazards, protective gear such as helmets or body protection plates, communication equipment, camouflage paint and components, parts and other equipment of a subordinate character.’

Von Uslar-Gleichen admitted, however, that Germany did license the export of war weapons to Israel four times in the past six months. Two licenses for ‘training’ (not combat) ammunition, including 500,000 pieces of ammunition, were approved in November, and an additional 1,000 pieces were approved in early 2024.

A third license was approved for propellant charge in connection with a joint project between German and Israeli industry but they were for test purposes. The fourth license was for the export of 3,000 portable anti-tank weapons ‘in the immediate context of Hamas massacres’, she said.

In 2023, Israel asked Germany for tank ammunition, but no license has yet been granted. One license has been granted for a submarine, but since it is a ‘war weapon’ it requires two licences for export so it has not yet been approved, Von Uslar-Gleichen told the ICJ. Nicaragua’s references to artillery shells and munitions to be used in Gaza ‘simply bear no relation to reality. Germany rejects them’, she stated.

Gómez argued on behalf of Nicaragua that ‘it does not matter if an artillery shell is delivered straight from Germany to an Israeli tank shelling a hospital’ or replenishes Israel’s stockpiles.

‘The fact is that the assurance of supplies and replacement of armaments is crucial to Israel’s pursuit of the attacks in Gaza’, he told the ICJ, adding that Germany is aware of ‘the serious risk of genocide being committed.’

Diplomatic and organizing tool

ALTHOUGH the United States is by far the largest provider of weapons to Israel, it hasn’t been sued in the ICJ because it won’t accept the court’s jurisdiction except in cases where the US government explicitly consents. Germany has consented to full jurisdiction of the ICJ so it is an easier target than the US for Nicaragua’s lawsuit.

‘The ICJ is not going to end the war in Gaza, but it is a diplomatic tool that foreign policy uses to apply additional pressure on Israel’, Brian Finucane, senior adviser at the International Crisis Group, told the New York Times. ‘In the Nicaragua case, it further applies pressure on Germany.’

Civil society also stepped up the pressure to coincide with the ICJ hearing on Nicaragua’s case against Germany. CODEPINK delegations picketed, rallied and delivered petitions to German missions throughout the US.

These actions were part of an international campaign of solidarity with Palestinian Germans who risk beatings and arrest when they demonstrate against Germany’s complicity in Israel’s genocide.

The ICJ will issue a ruling on Nicaragua’s request for provisional measures in Nicaragua v. Germany in the next few weeks.

Consortiumnews.com, April 18. Marjorie Cohn is professor emerita at Thomas Jefferson school of law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defence and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers.