Arms sales to Israel against the backdrop of the war in Gaza: the ICJ rejects Nicaragua’s request for provisional measures against Germany

Catherine MAIA, Aklesso Jacques AKPE

On 1 March 2024, Nicaragua lodged an application with the International Court of Justice (ICJ) against Germany concerning Alleged Breaches of Certain International Obligations in respect to the Occupied Palestinian Territory, especially in the Gaza Strip, the scene of a devastating war between Israel and Hamas since the latter’s attack on 7 October 2023. Echoing the application lodged by South Africa against Israel on 29 December last year concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip, Nicaragua’s application is the latest legal attempt by a country that has long been an ally of the Palestinian people to halt the ongoing Israeli offensive.

While Israel, which is not a party to these new proceedings, continues to deny that its strikes in Gaza constitute an act of genocide and insists that it is acting in self-defence, pending a decision on the merits, Nicaragua’s application was accompanied by a request for the indication of provisional measures to prevent imminent and irreparable harm. Although this request was almost unanimously rejected by the ICJ judges, it did provide an opportunity to recall certain duties of States in terms of humanitarian law and genocide.

The justification for rejecting provisional measures

Nicaragua had asked the ICJ for five provisional measures considering, in particular, that 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’’. Furthermore, Germany ‘‘must reverse its decision to suspend the funding of UNRWA [United Nations Relief and Works Agency for Palestine Refugees in the Near East] 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).

The indication of provisional measures implies an assessment of the periculum in mora, i.e. the existence of a ‘‘danger in delay’’. This is done on the basis of the nature of the dispute and the importance of the rights claimed by the applicant. In this case, Nicaragua’s accusation essentially pointed to Germany’s responsibility for the violation of human rights and humanitarian law in the current Israeli-Palestinian conflict. According to Nicaragua, Germany is guilty of complicity in genocide and war crimes in the Gaza Strip by supplying arms to Israel and suspending funding for UNRWA (§14). In this respect, it should be pointed out that Nicaragua directed its application against Germany rather than the United States, Israel’s main ally, because Washington does not recognise the jurisdiction of the ICJ, while Berlin is second-biggest supplier to Israel’s military.

Germany’s line of argument was to minimise its involvement in the violations of international law in question. In fact, according to Germany, “there is no evidence that the supply of military equipment to Israel by Germany would have contributed to an alleged genocide or to breaches of international humanitarian law”, even going so far as to detail the drastic reduction in its supply of military equipment to Israel between the end of 2023 and the beginning of 2024.

Moreover, although contributions to UNRWA are not compulsory, Germany stated that it had made a payment of 50 million euros to UNRWA through the European Union, in addition to providing financial and material support to other organisations operating in the Gaza Strip (§19). It should be remembered that several countries decided to suspend their funding to UNRWA following Israel’s accusations last January that some of its employees were involved in the Hamas attack on 7 October 2023. These accusations were considered credible by the United States, which opted to maintain the suspension until March 2025. Germany, for its part, announced at the end of April that it would soon resume its cooperation with UNRWA, following the publication of the Colonna Report, the result of an investigation launched by the United Nations that found no evidence of links between the agency and terrorist organisations.

Germany’s arguments won over the majority of the ICJ judges, who concluded by fifteen votes to one (that of the ad hoc judge appointed by Nicaragua, Mr Al-Khasawneh) that ‘‘the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures” (§26). However, in perfect harmony with its previous case law, the ICJ ruled that, in the absence of manifest lack of jurisdiction, it could not accede to Germany’s request to remove the case from the list (§21). In other words, the decision does not prejudge any questions relating to the admissibility of the application or to the merits themselves (§25).

A reminder of the duties of States with regard to humanitarian law and genocide

Against the backdrop of the current conflict in Gaza, this stage of the consideration of the provisional measures requested by Nicaragua offered the ICJ the opportunity to make a number of reminders in the last paragraphs preceding the operative part of its order.

First of all, referring to the two orders issued on 26 January and 28 March 2024 in the case currently pending between South Africa and Israel, in which it ordered Israel not to commit genocidal acts and to allow access of humanitarian aid to Gaza, the ICJ took care to once again express its concern both in the face of the numerous deaths and injuries and the massive destruction caused by the military operation led by Israel since the attack of 7 October 2023 and in the face of the disastrous conditions in which the Palestinians of the Gaza Strip live (§22).

Then, referring to the conventions invoked by the applicant State in the present case, the ICJ made two reminders. On the one hand, under the 1949 Geneva Conventions, States Parties have an obligation to respect and ensure respect for their provisions in all circumstances, whether or not they are parties to a particular conflict. This obligation derives not only from the Conventions themselves, but also from the general principles of international humanitarian law (§23). On the other hand, under the 1948 Genocide Convention, States Parties that are aware, or that should normally have been aware, of the serious risk that acts of genocide would have been committed, have an obligation to employ “all means reasonably available to them to prevent genocide so far as possible” (§23). However, the ICJ did not reiterate here the imperative nature of the prohibition of genocide –  a nature that was nevertheless recognised in 2006 in its judgment on Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), while Nicaragua used the term 26 times in its application – nor did it specify its extra-conventional scope.

Finally, with regard to the proper application of these conventions, the ICJ considered “it particularly important to remind 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 above-mentioned conventions’’ (§24). As Germany has ratified these conventions, it is therefore subject to these obligations when it supplies arms to Israel. Implicitly, this reminder of the duty of States to be vigilant is also addressed to other arms-selling countries, especially the Hebrew State’s Western allies.

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