Nicaragua to ICJ – stop German military backing for Israel
JVL Introduction
The following article and podcast from Al Jazeera explore the significance of Nicaragua’s request to the International Court of Justice to order Germany to stop supporting Israel’s military. The court is already considering submissions from South Africa and Colombia and has put in place provisional measures ordering Israel to cease “plausibly genocidal” acts. Israel has ignored the ruling and is trying to divert attention from the Gaza catastrophe by undermining the UNRWA relief agency and stoking conflict with Iran.
Al Jazeera notes that Nicaragua’s case is so far the only submission to involve two countries not directly involved in the alleged atrocities. It targets Germany as the world’s second largest supporter of the Israeli military after the US. Unlike the US, Germany fully accepts the jurisdiction of the ICJ and so could – in theory at least – find itself ordered to avoid “assisting the perpetrator”. Nicaragua has requested provisional measures to stop Germany supplying military assistance for Israel and to oblige it to resume funding of UNRWA.
NWI
This article was originally published by Al Jazeera on Mon 8 Apr 2024. Read the original here.
Nicaragua to ICJ: End Germany’s support of Israeli ‘genocide’ in Gaza
Nicaragua tells UN top court that Germany is ‘pathetic’ to supply aid to Palestinians while providing arms to Israel.
The podcast features an informative, in depth discussion with Matthias Goldmann, Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law; Diana Buttu, Palestinian lawyer and advocate of the Palestinian cause; Kenneth Roth, Visiting Professor at the Princeton School for Public and International Affairs and former Executive Director of Human Rights Watch.
Germany is facing charges at the top United Nations court for allegedly “facilitating the commission of genocide” against Palestinians in Gaza in coordination with its military and political ally, Israel.
Nicaragua presented its case before the International Court of Justice (ICJ) on Monday, demanding judges impose emergency measures to stop Berlin from providing Israel with weapons and other assistance.
In his opening statement, Carlos Jose Francisco Arguello Gomez, Nicaraguan Ambassador to The Netherlands and the lead of Nicaragua’s delegation said “serious breaches of international humanitarian law…including genocide, are taking place in Palestine” and are “being committed openly”.
“The case before us involves momentous events affecting the lives and wellbeing of hundreds of thousands of people, and even the destruction of an entire people.”
In such a situation, he said that other states must avoid to take steps “assisting the perpetrator”.
“Germany has violated this obligation imposed on all states,” Gomez said, adding that Germany has not be able “to differentiate between self-defence and genocide” in the case of Gaza.
“If the actions of Israel continue to be unrestrained as they have since 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 future,” he warned.
Daniel Mueller, a lawyer for Nicaragua, also told the court that it is “a pathetic excuse to the Palestinian children, women and men to provide humanitarian aid, including through airdrops, on the one hand and to furnish the military equipment that is used to kill and annihilate them… on the other hand.”
Speaking to reporters after the ICJ hearing in The Hauge, German legal representative Tania von Uslar-Gleichen called Nicaragua’s presentation “biased” and said Germany looks forward to rebutting the charges tomorrow.
“Nicaragua’s presentation was grossly biased and we will be telling you tomorrow how we fully live up to our responsibilities,” said Uslar-Gleichen.
In a 43-page submission to the court, Nicaragua argues that Germany is in breach of the 1948 UN Genocide Convention, set up in the wake of the Holocaust.
“By sending military equipment and now defunding UNRWA [UN agency for Palestinian refugees] … Germany is facilitating the commission of genocide,” says the submission.
‘Imperative and urgent’
“Germany’s failure is all the more reprehensible with respect to Israel given that Germany has a self-proclaimed privileged relationship with it, which would enable it to usefully influence its conduct,” added Nicaragua.
Nicaragua asked the ICJ to decide “provisional measures” – emergency orders imposed while the court considers the broader case.
It is “imperative and urgent” the court orders such measures given that the lives of “hundreds of thousands of people” are at stake, runs the Nicaraguan case.
The ICJ was set up to rule in disputes between nations and has become a key player in the war between Israel and Hamas that erupted after the October 7 attacks.
In a separate case, South Africa has accused Israel of perpetrating genocide in the Gaza Strip, charges Israel vehemently denies.
In that case, the court ordered Israel to do everything in its power to prevent genocidal acts and recently toughened its stance, ordering additional measures obliging Israel to step up access to humanitarian aid.
The court’s rulings are binding but it lacks an enforcement mechanism – for example, it has ordered Russia to stop its invasion of Ukraine, to no avail.
Nicaragua has requested five provisional measures, including that Germany “immediately suspend its aid to Israel, in particular its military assistance, including military equipment”.
It also calls on the court to order Germany to “reverse its decision to suspend the funding of UNRWA.”
Germany said in January it was halting funding pending an inquiry into Israeli accusations that several UNRWA staff members took part in the October 7 assault.
Nicaragua said in its submission that “it could be comprehensible” that Germany would support an “appropriate reaction” by ally Israel to the October Hamas attacks.
The bloodiest-ever Gaza war began with Hamas’s unprecedented October 7 attack on Israel that resulted in the deaths of 1,139 Israelis and foreigners, most of them civilians.
Israel has killed at least 33,175 people since then, including more than 13,800 children, according to Gaza’s Ministry of Health.
Being “nerdy”, I’ve now listened to all of Nicaragua’s legal case at the ICJ.
I’m about to listen to the whole of Germany’s defence.
Nicaragua charged Germany with facilitating Israel’s alleged genocide and apartheid. Given Nazi Germany’s crimes under both headings and the long haul modern Germany has had to cleanse its name and restore itself as a moral, democratic nation, these charges fundamentally undermine Germany’s sense of itself. They sting intolerably.
Germany is also by reputation a more law-respecting, agreement-respecting nation than many others. While the current governments of the UK and of Israel seem ready to deceive anybody and everybody and to break any agreements as soon as they don’t suit, if Germany is found to be the transgressor in this case I think it’ll abide by the ICJ’s rulings.
Follow on to previous post…
Snippets from today’s article in the “Guardian” suggest some German lawyers at least reckon that Nicaragua has a good chance of winning its ICJ case against Germany …
“Germany will face a fresh call to revoke all arms sales to Israel on Thursday in a lawsuit that puts more pressure on Berlin amid a rising outcry about the scale of deaths and destruction in the war on Gaza.
A lawsuit in the German DOMESTIC COURTS will ask judges to urgently direct the government to revoke all arms licences to Israel issued since 7 October”….
… AND that the UK government may have to defend its case in court for continuing to supply Israel with arms:-
“the Global Legal Action Network has now been given a date of 23 April for an oral hearing for its request for judicial review of the UK statement that arms exports can continue on the basis of legal advice that Israel is not acting unlawfully”.
Germany and the UK are already guilty of breaching the Genocide convention, the ICJ’s finding of plausible risk, together with the profound and escalating harm to the Palestinian people in Gaza, constitute a serious risk of genocide sufficient to trigger the UK’s legal obligations. Those genocidal statements by Netanyahu,Gallant and Hertzog at the start of the genocide followed immediately by actions of same are proof positive of ‘intent, more than enough to trigger ‘the required risk’.
(2) States are required “to employ all means reasonably available to them” to prevent genocide and responsibility is incurred if “the State manifestly failed to take all measures to prevent genocide which were within its power”. The notion of due diligence is of critical importance in this obligation.[63]
(3) The “obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit”.[64]
(4) The UK cannot deny from 26 January 2024, when the ICJ issued its order for provisional measures, knowledge of the plausible risk of genocide through the actions of Israel in Gaza. The ICJ’s finding of plausible risk, together with the profound and escalating harm to the Palestinian people in Gaza, constitute a serious risk of genocide sufficient to trigger the UK’s legal obligations.
https://lawyersletter.uk/wp-content/uploads/2024/04/Gaza-letter-FIN-3-April5.pdf