Nicaragua's Call for Justice in Gaza: ICJ Proceedings Against Germany Under Genocide Convention
GHRTV
11-03-2024
Asuman Ece Yıldız
Team Middle East Researcher,
Global Human Rights Defence.
On February 6th, 2024, the Nicaraguan government warned Germany, Canada, the UK, and the Netherlands that it will take them to the International Court of Justice (“the ICJ”) on the basis that they were providing weapons to Israel that would be used to commit genocide against Palestinians. [1] The allegation was based on the premise that these states are facilitating the commission of genocide, and are therefore going against their obligation to prevent genocide under the 1948 Convention on Prevention and Punishment of Genocide. [2] Daniel Ortega, Nicaragua’s President, warned these states in a statement declaring, “Nicaragua has urged the government of the United Kingdom, Germany, the Netherlands and Canada to immediately halt the supply of arms, ammunitions, technology and/or components to Israel as it is plausible they might have been used to facilitate or commit violations of the genocide convention.” [3] The legal argument of Nicaragua was based on the provisional measures ruling of the ICJ. [4] In the statement, Nicaragua noted the obligation to prevent genocide is raised once the risk of genocide occurs, as supported by the ICJ’s provisional measures order. [5]
Following this warning, Nicaragua initiated the proceedings at the ICJ against Germany on March 1st, 2024. [6] In this application, Nicaragua stated that,
[...] Germany violated her obligations deriving from the Convention on Prevention and Punishment of the Crime of Genocide, the Geneva Conventions of 1949 and their Additional Protocols of 1977, ‘intransgressible principles of international humanitarian law’ and other norms of general international law in relation to the Occupied Palestinian Territories, particularly the Gaza Strip.[7]
Furthermore, Nicaragua highlighted in its application “the right to self-determination of Palestinian people” and the “crime of apartheid” allegedly committed by Israel. [8]
In the application, Nicaragua made it clear that Germany was aware the weapons provided would be used in the commission of genocide by Israel. [9] Therefore, the risk threshold triggering the obligation to prevent genocide is suggested to be met. Furthermore, alongside providing weapons to Israel, it is highlighted that Germany cut off assistance to the United Nations Relief and Works Agency for Palestine Refugees (UNRWA), which has been critical in bringing relief to millions of Palestinian refugees. [10] Another argument made by Nicaragua is a violation of Common Article 1 to the Geneva Conventions, which stipulates that States Parties are obliged to ensure respect for humanitarian law. [11] According to this obligation, states have both negative and positive duties under international humanitarian law to not support acts that violate international humanitarian law.
However, Nicaragua's efforts to address the alleged contribution to the act of genocide by Germany might face a key procedural hurdle. [12] The ICJ would need to evaluate Israel's actions because Israel might be an indispensable participant in the case. Failure to include such a crucial party could lead the ICJ to deem the case inadmissible, as established in the 1954 Monetary Gold case. [13] In this case, the ICJ held that it did not have jurisdiction to adjudicate the matter since some relevant parties had not consented to proceedings, which is needed to ensure a fair and comprehensive resolution. [14]
However, Nicaragua could potentially circumvent the Monetary Gold Principle by leveraging its intervention in the South Africa v. Israel case. [15] This argument might render the case admissible, as it could demonstrate that Israel's participation is unnecessary for the Germany vs. Nicaragua case. Since the allegations of genocide have already been addressed before the ICJ in another case, Nicaragua may argue that Israel's involvement is redundant in the current context. [16]
The hearing regarding the admissibility and merits of the case will take place at the Peace Palace in The Hague. Nicaragua’s session is scheduled for April 8th, 2024, while Germany's session is set for April 9th, 2024. [17]
Sources and further readings:
[1] Middle East Eye, ‘Nicaragua threatens to take UK and other to international court over Gaza war’, 6 February 2024 <Nicaragua threatens to take UK and others to international court over Gaza war | Middle East Eye> accessed 11 March 2024.
[2] Proceedings instituted by the Republic of Nicaragua against the Federal Republic of Germany (Germany v. Nicaragua), ICJ, 1 March 2024 <https://www.icj-cij.org/sites/default/files/case-related/193/193-20240301-app-01-00-en.pdf>access date 11 March 2024.
[3] Nicaragua’s statement on 6th of February 2024: <Kawsachun News on X: "PRESS RELEASE: Nicaragua calls on UK, Germany, the Netherlands and Canada to immediately halt the supply of arms, ammunition, technology and/or components to Israel as they may have been used to facilitate or commit acts of genocide in Gaza. https://t.co/jHoFJt3Pnz" / X (twitter.com)> access date 13 March 2024.
[4] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), ICJ, 26 January 2024 <Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (Sou (icj-cij.org)> access date 13 March 2024.
[5] Supra note 3.
[6] Supra note 2, paragraph 3.
[7] The Republic of Nicaragua institutes proceedings against the Federal Republic of Germany and requests the Court to indicate provisional measures, ICJ Press release 2024/19, 1 March 2024.
[8] Supra note 2, paragraph 32.
[9] Supra note 2, paragraph 13.
[10] Supra note 2, paragraph 14.
[11] Supra note 2, paragraph 17.
[12] Marco Longobardo, ‘Alleged Violations of the Duty to Ensure Respect for IHL and the Monetary Gold Principle’, Ejil Talk,11 March 2024, <Alleged Violations of the Duty to Ensure Respect for IHL and the Monetary Gold Principle – EJIL: Talk! (ejiltalk.org)> access date 13 March 2024.
[13] Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), ICJ (judgment), 15 June 1954, page 32-24 <INTERNATIONAL COURT OF JUSTICE (icj-cij.org)> access date 10 March 2024.
[14] Law for Palestine, ‘Monetary Gold principle: What is it and what is its connection to the case of Palestine before the International Criminal Court?’, 14 April 2021, <Monetary Gold principle: What is it and what is its connection to Palestine case in the ICC? (law4palestine.org)> access date 10 March 2024.
[15] Imogen Saunders, ‘Interventions and Inadmissibility: Nicaragua v Germany, the Monetary Gold principle and the Genocide Convention at the International Court of Justice’, Australian National University Press, 6 March 2024, <Interventions and Inadmissibility: Nicaragua v Germany, the Monetary Gold principle and the Genocide Convention at the International Court of Justice | ANU College of Law> access date 10 March 2024.
[16] Ibid.
[17] Press release 2024/22, Proceedings instituted by Nicaragua against Germany on 1 March 2024 - Request for the indication of provisional measures - Public hearings to be held on Monday 8 and Tuesday 9 April 2024, ICJ, 15 March 2024 <Proceedings instituted by the Republic of Nicaragua against the Federal Republic of Germany on 1 March 2024 (icj-cij.org)> access date 10 March 2024.
