Aman Kumar
On 01 March 2024, Nicaragua filed a case against Germany, at the International Court of Justice (ICJ/Court) for ‘facilitating the commission of genocide’ and failing ‘to prevent the commission of genocide’. It has requested the court to also issue five provisional measures.
On Jurisdiction
Nicaragua claims that the Court has jurisdiction under Article 36 of the ICJ’s statute. It notes that although both the parties have made reservations against this provision, none of those reservations are applicable in this scenario. The second basis of its jurisdiction is Article IX of the Genocide Convention, much like the earlier case of South Africa v Israel, and notes that neither of the parties have made reservation against that Article.
On Claims
Nicaragua claims that Germany has violated the Genocide Convention, peremptory norms of customary international law, the Geneva Conventions, including its Additional Protocols. This violation is because of Germany’s act of “providing political, financial and military support to Israel and by defunding the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)”.
On Dispute
Nicaragua claims that on 02 February 2024, it sent a Note Verbale to Germany. This Note Verbale, in relevant parts, noted that:
Nicaragua is of the opinion that these facts reveal that Germany is engaged in a gross and systematic failure to fulfill its obligations under the 1948 Genocide Convention. Therefore, it is the right and the duty of Nicaragua, as a State Party to the Genocide Convention to seek Germany’s compliance with its obligations under the Convention as recognized by the Court when it concerns erga omnes partes obligations. Consequently, Nicaragua will adopt all measures it considers appropriate in accordance with international law, to guarantee respect for this fundamental international text, including recourse to the International Court of Justice. (emphasis mine)
(The Note Verbale is signed on 02 February 2024, but was sent on 01 February 2024!)
Nicaragua also informed about the Note Verbale through a Press Release. On 07 February, replying to a question during a Press conference, Germany rejected the contents of the Press Release. Nicaragua thus claims that this rejection amounts to a dispute between the parties “concerning, but not limited to, the interpretation and application of the Genocide Convention, the Geneva Conventions of 1949 – and in particular the Convention IV relative to the Protection of Civilian Persons in Time of War – and their Additional Protocols of 1977, the principles and customary rules of international law, including intransgressible principles of international humanitarian law and peremptory norms of general international law, which involves the prohibition of racial discrimination and apartheid…”
On Facts
The Application details the chain of event, describing how Germany supplied weapons to Israel despite knowing of its potential use for commission of Genocide. It notes that “(b)y the end of 2023, the German Government had granted military exports to Israel in the amount of 326,505,156 euros.” It further notes that “(a)ccording to information made available by the German Government, export licences granted between January 2024 and 15 February 2024 concerned military equipment worth 9,003,676 euros.” It also refers to the decision by a domestic court in the Netherlands where the court ordered the government to not supply weapons to Israel.
Nicaragua then listed all the details pertaining to the cutting the finding of UNRWA. It presented data on the impact of fund-cuts and argued that by cutting its contribution to the UNRWA, “Germany is not only failing to uphold humanitarian law and to prevent genocide, but is actively contributing to violations of those fundamental rules; and to preserving the apartheid system and indiscrimination against the Palestinian people and their right to self determination”.
On Remedies Sought
Nicaragua has requested the court to order that Germany has violated its obligations under Article I of the Genocide Convention, by providing military equipment to Israel and by withdrawing from funding the UNRWA; has violated its obligations under Article I of the Fourth Geneva Convention, by supplying military equipment to Israel.
On Provisional Measures
Nicaragua has based its request for indication of Provisional Measures on the ‘recent announcement of an imminent military intervention at Rafah’. It claimed that through its Application, Nicaragua “seeks protection of its “plausible” rights arising from the erga omnes obligations under both the Genocide Convention and the 1949 Geneva Conventions and their Additional Protocols, as well as rights arising under general international law, in particular the inalienable principles of international humanitarian law”. It argued that, as per the Court’s jurisprudence, rights under both the Genocide Convention and the Geneva Conventions are of erga omnes character. For this claim, it referred to Court’s decisions in Gambia v Myanmar Provisional Measures decision and the Wall Advisory Opinion respectively.
To prove the risk of irreparable harm and urgency, Nicaragua relied on the Court’s Provisional Measures order in South Africa v Israel and the subsequent attacks on Palestinians since. It emphasised that its Application is broader than South Africa’s since it also relies on Geneva Convention and other rules of international law.
It thus requested the Court to issue Provisional Measures ordering Germany to immediately suspend its military aid to Israel, to immediately make efforts to ensure that its weapons are not used by Israel to commit Genocide, reverse its decision to suspend funding for the UNRWA.
Preliminary Thoughts
Based on my first reading of the Application, I feel that the Court can grant most of the provisional measures, though not all. While Nicaragua has convincingly presented its Erga Omnes rights claims under the Genocide Convention and the Geneva Conventions, I am not too sure about its claims for asking Germany to refund the UNRWA. Nicaragua has not proved, to my understanding, how defunding of UNRWA has led to violation its individual right under international law, or its erga omnes rights. One plausibility of this argument is saying that by not funding the UNRWA, Germany has facilitated starvation. But then the intent behind stopping the funding will be called in question and Nicaragua has not argued properly on this point.
And while its arguments for Provisional Measures are well articulated, the same can’t be said for its general Application. For example, it claims under the Geneva Convention, customary international law, jus cogens norms, aren’t properly mentioned. However, that shouldn’t be a problem as it can substantiate its arguments at later stage of the proceedings.
The Note Verbale, which is the basis of the dispute, was also sent to United Kingdom, Netherlands and Canada. Why have they not been made a party to the dispute is unclear. While a domestic court had ordered Netherlands to stop its supply of weapons to Israel, the involvement of United Kingdom and Canada continues. As such, it would be interesting to know why Nicaragua chose to not file a case against them also.
One final point – the Application noted the following:
As a matter of law all breaches of the Genocide Convention are necessarily breaches of the Geneva Conventions and international humanitarian law. (para 98)
This is a very interesting conflation of the international human rights regime with that of the international humanitarian regime. Readers might want to take this up and write further.
Indian Blog of International Law 