On 1 March 2024, Nicaragua filed an official complaint against Germany before the International Court of Justice (ICJ) and requested that the Court issue provisional measures. The request, pursuant to Article 41 of the Statute of the Court, states that Germany, by assisting Israel in the current conflict with Hamas, is failing to comply with its obligations under the UN 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), the 1949 Geneva Conventions and their 1977 Additional Protocols, and other intransgressible principles of international humanitarian law.

To support the claim, Nicaragua alleged that Germany has failed:

  1. To fulfill its obligation to do everything possible to prevent the genocide committed and being committed against the Palestinian people in the Gaza Strip since October 2023.

  2. To comply with its obligations under the Geneva Conventions and the Additional Protocols by failing to enforce and ensure that those fundamental rules are respected in all circumstances.

  3. To comply with other peremptory norms of general international law, in particular by rendering aid or assistance in maintaining the illegal situation of the continued military occupation of Palestine, including its ongoing, unlawful attack in Gaza.

  4. To comply with other peremptory norms of general international law by providing aid, and particularly military equipment, to Israel that is used to deny the right of self-determination of the Palestinian people and not preventing the illegal regime of apartheid.

Nicaragua further asserted that Germany, by providing political, financial, and military support to Israel and by defunding the United Nations Relief and Works Agency for Palestine Refugees (UNRWA), is actively contributing to the facilitation of genocide.

Nicaragua indicated that, even taking into account that Israel's allies may justify a proportionate response to the Hamas attack on 7 October 2023, this cannot be an excuse for acting in violation of international law. Nicaragua described the invasion as a total siege of Gaza, leading to the destruction of entire neighborhoods and mosques, bombing schools—including UNRWA-operated facilities serving as refuges for the civilian population—and attacks on healthcare services.

Provisional measures requested by Nicaragua

Nicaragua asked the Court to indicate the following provisional measures against Germany:

  1. Suspend immediately its aid to Israel, in particular its military assistance, including military equipment, insofar as this aid may be used in the violation of the Genocide Convention, international humanitarian law, or other peremptory norms of general international law.

  2. Ensure that weapons already delivered to Israel are not used to commit genocide, contribute to acts of genocide, or are used to violate international humanitarian law.

  3. Must immediately do everything possible to comply with its obligations under humanitarian law.

  4. 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.

  5. Cooperate in ending serious breaches of peremptory norms of international law by ceasing its support, including the supply of military equipment to Israel.

The ICJ rejects Nicaragua’s request

Indeed, in a blow to Nicaragua’s request, 15 to 1 judges decided that there was currently no reason to impose preventive measures on Germany before a final decision regarding the nature of Germany's support for Israel, which might take years, was made.

The Court fails to offer appropriate legal reasoning for the decision. Specifically, the tribunal does not address or even mention the established criteria for the indication of provisional measures (i.e., standing, urgency in the sense of a real and imminent risk of irreversible prejudice, plausibility of the applicant's rights asserted, link between the rights asserted and the requested measures, and prima facie jurisdiction, including admissibility).

The Court merely affirms that “based on the factual information and legal arguments presented by the Parties, the Court concludes that, at present, the circumstances are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.”

Why did the ICJ reject Nicaragua’s request?

As indicated before, the Court does not provide appropriate legal reasoning for the decision to reject Nicaragua’s call to block German support for Israel.

Nevertheless, declining to issue provisional measures was expected because, as the Court clarifies, contributions to UNRWA are voluntary in nature. Germany supports the agency’s work via the European Union and provides financial and material support to other organizations operating in the Gaza Strip.

Moreover, the Tribunal, relying primarily on Germany's submissions during the public hearings, did not direct Germany to halt its exports of weapons and other military equipment to Israel. The Tribunal concluded that Germany's actions did not pose an immediate or substantial risk of causing irreparable harm to the humanitarian rights of the Palestinian people.

Germany argued that its strict domestic legal framework governing the export of war weapons and military hardware eliminated any risk of violating the rights at stake. The government specified that it rigorously reviewed each weapons export license to assess whether there was a demonstrable risk of the licensed items being used to commit crimes against humanity, genocide, or serious violations of the four Geneva Conventions.

Germany had also mentioned how, since November 2023, Israel's military aid has significantly decreased in terms of quantity, value, and content. In addition, 98 percent of the licenses granted since 7 October 2023 concerned “other military equipment” and not “war weapons.”

It was also noted that, since November 2023, German military aid to Israel had significantly declined in quantity, value, and content. Moreover, 98% of the licenses granted since 7 October pertained to "other military equipment" rather than "war weapons."

However, the Court declined Germany's request to dismiss the case entirely on grounds of lack of jurisdiction. The Court emphasized that the case would proceed, expressing deep concern about the dire living conditions of Palestinians in the Gaza Strip, particularly the prolonged and pervasive deprivation of food and other essential necessities. And, the Court nonetheless reminded Germany of its international obligation to ensure that, when supplying arms to parties involved in an armed conflict, it must avoid the risk that such arms be used to violate the Genocide and Geneva Conventions.

It is hard to dispute the Court’s decision to reject Germany’s appeal, given that the Genocide Convention represents one of the clearest assertions of universal principles upheld by international law. States and the international community inherently play a role in defending these shared values.

However, this involvement is not without risks, including the potential judicial politicization of the universal crime of genocide. Not least because “the criteria [or some of the conditions] for the indication of provisional measures have not been met in the present case, as Judge Julia Sebutinde states in her dissenting opinion regarding the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), on 26 January 2024. According to judge Sebutinde, [it] has not demonstrated, even on a prima facie basis, that the acts allegedly committed by Israel…[have been] committed with the necessary genocidal intent and that, as a result, they are capable of falling within the scope of the Genocide Convention.”

It is beyond the scope of this posting to see those risks and to analyze how and why states’ underlying political motivations could use litigation as a tool to advance their political agendas, rather than as a means of giving voice to the victims. Nicaragua and South Africa are not without blemish! Regrettably, in the words of judge Sebutinde, “the failure, reluctance, or inability of States to resolve political controversies such as this one through effective diplomacy or negotiations may sometimes lead them to resort to a pretextual invocation of treaties like the Genocide Convention, in a desperate bid to force a case into the context of such a treaty, in order to foster its judicial settlement: rather like the proverbial ‘Cinderella’s glass slipper.”

Leaving aside these controversies, the reality is that the Nicaragua vs. Germany case is problematic. We are legally in uncharted territory due to the doctrine or principle of inadmissibility in international law.

We are in uncharted territory

The case of Nicaragua is closely tied to the doctrine of inadmissibility, particularly in the context of international law principles concerning third-party consent. The doctrine holds that a case may be deemed inadmissible if adjudicating it requires the ICJ to determine the rights or obligations of a third party that has not consented to participate in the proceedings.

Consequently, a significant procedural obstacle stands in Nicaragua's way, particularly when viewed through the lens of the ICJ's jurisprudence. The case hinges on the conclusion that genocide is being committed, which would likely require the Court to make determinations about Israel's actions in Gaza. In this context, Israel would qualify as an indispensable third party. As such, the Court would need to assess Israel's actions in order to decide whether Germany has violated its obligations under the Genocide Convention. Legally assessing Israel’s actions poses a risk because, under ICJ precedent, a case is deemed inadmissible if an indispensable third party is not included in the proceedings.

The precedent for the doctrine of inadmissibility was set by the ICJ in 1953, in the Case of the Monetary Gold Removed from Rome in 1943 (Italy vs. France, the United Kingdom of Great Britain and Northern Ireland, and the United States of America). The case involved Albania, the indispensable third party that had not accepted the jurisdiction of the ICJ. Albania was not a party to the proceedings, nor had it filed any claim.

The ICJ concluded that ruling on the dispute without Albania's presence would effectively mean determining Albania's international responsibility without its consent. Such an action, the Court held, would contravene a fundamental principle of international law enshrined in its Statute: the requirement that the Court can exercise jurisdiction over a State only with that State's consent.

The Nicaragua case bears similarities to another involving a crucial third party: the case brought by Portugal against Australia concerning East Timor. As in the Nicaragua case, Portugal’s request would have required the Tribunal to assess the rights and obligations of a third State, Indonesia, without its consent. The central issue was whether Portugal’s claims against the respondent, Australia, could be considered independently of Indonesia’s actions.

As Indonesia was not a party to the dispute, the ICJ concluded that it lacked the jurisdiction to resolve the dispute brought before it by Portugal, in accordance with Article 36, paragraph 2, of its Statute.

Where does the case of Nicaragua vs. Germany stand in relation to the doctrine of inadmissibility?

The proceedings initiated by Nicaragua against Germany bear significant resemblance to the previous two cases, as they also involve addressing Israel's international responsibility potentially without its consent. This placed the case within the framework of the doctrine of inadmissibility, as stated earlier.

If Germany were found culpable of contributing to, or failing to prevent, Israel's alleged genocide, it would first need to be established that Israel had committed this universal crime against the Palestinian population in Gaza. Additionally, it would need to be demonstrated that Israel failed to protect this population from the commission of such a crime and breached the same international obligations it is bound to under the Convention.

The crux of the matter is that Israel, an indispensable third party, is not involved in the proceedings initiated by Nicaragua against Germany. Nicaragua has intervened under Article 62(1) of the Tribunal's Statute in the case brought by South Africa against Israel. However, the case against Germany is different because it goes beyond the question of whether Israel's legal interests are merely affected by the judgment. Instead, these interests constitute the core subject of the judgment itself. Article 62(1) specifies that "Should a State consider that it has an interest of a legal nature that may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene."

The Court has made it clear that its statute does not authorize proceedings, even by implication, in the absence of a third party. Nicaragua is a third party in the South Africa vs. Israel case, but Israel is not an indispensable third party in the proceedings initiated by Nicaragua against Germany.

Nicaragua's use of Article 62 appears to be an attempt to overcome the challenge set by the precedents set by ICJ jurisprudential practice. The threshold of showing that Nicaragua is not attempting to hold Germany accountable without determining that Israel incurs international responsibility for acts of genocide committed in Gaza, in the absence of the Jewish State in the proceedings, is extremely high.

If the threshold for overcoming the doctrine of inadmissibility is met, it could reshape how States and the court itself approach the doctrine, as well as their views on interventions and the role of indispensable third parties.

Also, a decision backing Nicaragua could have had broader implications for States that provide aid to Israel. However, the denial of Nicaragua's request means that providing weapons to Israel will continue. The ICJ’s outcome does not assert that Germany has breached, nor is it currently breaching, its obligations under the Genocide and Geneva Conventions as a matter of law. Is Germany providing weapons with knowledge that they will be used to commit acts amounting to genocide? Does Israeli use of German weapons qualify as outright genocide under the law?

Proving genocide requires demonstrating a clear and solid evidence of intention to completely or partially destroy a specific group based on nationality, ethnicity, race, or religion. The use of German weapons, by itself, would not automatically qualify as genocide under the law. Instead, the focus would need to be on the actions, clear and deliberate intentions of the parties supplying and using those weapons in order to prove genocide. This involves thoroughly analysing the situation on the ground, identifying patterns of behaviour, and assessing whether any acts or clear intentions meet the legal criteria for genocide, committing acts aimed at the group's destruction.

As can be noticed, the question of whether Germany is breaching the Genocide Convention by supplying weapons to Israel is complex and would depend on various legal and factual considerations. Germany argues that it provides weapons to Israel in the context of mutual defence agreements, not to facilitate genocide. Unless there is convincing evidence linking German weapons directly to acts of genocide and showing Germany's intent or complicity, it would be hard to prove a violation of the Genocide Convention.

Parallel domestic legal challenges

Besides Germany, other countries supply weapons to Israel and possibly legal challenges will emerge in domestic courts in the near future.

In fact, in a parallel recent domestic case, although not explicitly based on the inadmissibility doctrine, a Dutch court considered the provision of weapons to Israel with reference to international law. Indeed, on 14 Decembre 2024, The Hague District Court in the Netherlands rejected a motion by 10 Palestinian and Dutch Non-governmental Organizations (NGOs) to halt arms export to Israel.

The complainants, referencing high civilian casualties in Israel's war in the Gaza Strip, argued that the Dutch State, as a signatory of the Genocide Convention, is obligated to take all reasonable measures within its power to prevent genocide. To support their claim, the NGOs highlighted the 26 January 2024 ruling from the ICJ directing Israel to prevent acts of genocide in Gaza (South Africa vs. Israel case).

However, the Court concluded that there is no justification for imposing a complete ban on the export of military and dual-use goods by the State.

The Tribunal determined that the State has discretion in evaluating whether its arms export policy aligns with its international legal obligations. The Court observed that the State evaluates the permissibility of exports on a case-by-case basis and frequently denies such exports, highlighting the Dutch government’s commitment to upholding its obligations under international humanitarian law. As a result, there are no grounds to enforce a blanket ban on arms exports, even amid accusations that Israel’s actions in its conflict with Hamas in Gaza amount to genocide.

Additionally, the Court emphasized the need to distinguish between arms used for defending Israeli territory and those employed to attack the Palestinian population. Recognizing Israel’s right to territorial defence, the Court ruled that a total arms embargo on the government is not warranted.

As with accusations of Germany’s complicity in facilitating genocide, in this domestic case, similar claims have been made against Israel regarding its treatment of Palestinians during its military campaigns. Whether these acts legally constitute genocide is legally debated.

Israel maintains its actions are self-defence against terrorism, particularly from Hamas. Establishing genocidal intent under international law is challenging and requires rigorous evidence, as indicated before. However, the decision has faced criticism. The Court did not address obligations under Common Article 1 of the Geneva Conventions or the Genocide Convention, which were central to the claimants’ arguments. Critics have also noted the omission of any discussion on the impact on third States, as highlighted by the ICJ’s Advisory Opinion and provisional measures in the case brought by South Africa against Israel on July 19, 2024.

The Court did not address the implications of the doctrine of inadmissibility regarding the requirement for indispensable third-party consent, nor did it engage with the rejection of Nicaragua’s request for provisional measures against Germany. Consequently, the judgment leaves several critical issues unsettled.