Germany, Gaza and the World Court: Broadening the scope of genocide

Can it get any busier? The International Court of Justice, aka the World Court, has been swamped by submissions alleging genocide. The site of interest remains the Gaza Strip, the subject of Israel’s unremitting slaughter since 7 October last year and the cross-border incursion by Hamas. The retaliation by Israel has displayed such brute savagery that it has attracted the attention of numerous states, including those not directly connected to the issue.

Given that genocide is a crime of universal jurisdiction abominated by international law, and given the broad application of the UN Genocide Convention intended to prevent and punish it, countries not normally associated with the tormented and blood-drenched relationship between Israel and the Palestinians have taken a keen interest. South Africa got matters moving with its December submission to the ICJ seeking a determination that Israel was committing genocidal acts in the Gaza Strip.

Since then, Pretoria has convinced the court to issue two interim orders, one on 26 January, and another on 28 March. While the court has yet to decide the issue of whether Israel is culpable for genocide in Gaza, the interim binding orders demand a lifting of restrictions on humanitarian aid, the prevention of starvation and famine, and observing the UN Genocide Convention. These all hint strongly at the unconscionable conduct on the part of the Israel Defence Forces (IDF) against Palestinian civilians.

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The implications of such findings also affect Israel’s allies that are still keen to supply it with weapons, weapon parts and other support of a military industrial nature.

Germany has been most prominent in this regard. In 2023, 30 per cent of Israel’s military equipment purchases totalling $326 million came from Berlin. The Scholz government has also been a firm public supporter of Israel’s offensive. “There is only one place for Germany at this time,” the German chancellor told his country’s; lawmakers on 12 October, “that is by Israel’s side.” Foreign Minister Annalena Baerbock added curtly that it was “not the job of politicians to tell the guns to shut up.”

Baerbock’s comment was all the more jarring given a 2006 statement by Frank-Walter Steinmeier, one of her predecessors in the role. With puffed up confidence, he claimed then that Europeans and Germans had played a seminal role in ending the conflict between Israel and Hezbollah in Lebanon by the “silencing of the guns.”

Cognisant of such a stance, Nicaragua is now taking the South African precedent further by alleging that Germany is complicit in genocide. While its own human rights record is less than blemish-free – Daniel Ortega’s government boasts a record which involves, among other things, the killing of protesters – Nicaragua has form at the ICJ. Four decades ago, it took the US to the World Court for assisting the counterrevolutionary Contras in their attempt to overthrow the Sandinista government.

Its 43-page submission to the court insists that Germany is responsible for “serious violations of peremptory norms of international law taking place” in Gaza in its failure to prevent genocide “against the Palestinian people” and “contributed” to its commission by violating the Genocide Convention. It alleges further that Germany failed to comply with humanitarian law principles derived from the Geneva Conventions of 1949, its protocols of 1977 and “intransgressible principles of international law” in failing to “ensure respect for these fundamental norms in all circumstances.”

The application also compacts Israel’s attack on Gaza with “continued military occupation of Palestine”, taking issue with Germany’s alleged “rendering aid or assistance” in maintaining that status quo in the Occupied Territories while “rendering aid or assistance and not preventing the illegal regime of apartheid and the negation of the right of self-determination of the Palestinian people.”

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Stretches of the Nicaraguan case would make troubling reading. It notes that “by sending military equipment and now defunding UNRWA [the UN Relief and Works Agency for Palestine refugees] which provides essential support for the civilian population in occupied Palestine and refugee camps in neighbouring Jordan, Lebanon and Syria, Germany is facilitating the commission of genocide” and had failed, in any case, “in its obligation to do everything possible to prevent the commission of genocide”.

Such conduct, claims Nicaragua, was all the more egregious “with respect to Israel given that Germany has a self-proclaimed privileged relationship with it, which would enable it to usefully influence its conduct.”

With these considerations in mind, the Nicaraguan submission argues that Germany is obligated to “immediately” halt its military support for Israel “that may be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes.” Germany is asked further not merely to “end its assistance to Israel,” but also to “cooperate to uphold international law and to bring the perpetrators of these atrocities to justice.”

The ICJ opened preliminary hearings on the submission on 8 April. Alain Pellet, representing Nicaragua, argued that “Germany was and is fully conscious of the risk that the arms it has furnished and continues to furnish Israel” could be used in the commission of genocidal acts. Another legal representative, Daniel Mueller, called the provision of humanitarian air drops to “Palestinian children, women and men” a “pathetic excuse” given the furnishing of “military equipment that is used to kill and annihilate them”. Nicaragua’s ambassador to the Netherlands, Carlos José Argüello Gómez, derided Berlin’s seeming inability “to be able to differentiate between self-defence and genocide.”

Berlin’s defence follows today. A sense of its bitter flavour can be gathered from one of its top legal briefs, Tania von Uslar-Gleichen: “Germany completely rejects the accusations. We never did violate the Genocide Convention nor humanitarian law either directly or indirectly.” Moreover, she has said that Berlin is “committed to the upholding of international law.”

If the German defence fails to sway the ICJ judges, the case may well chart a line about third party responsibilities on preventing genocide in international humanitarian law. At this point, the momentum towards some clarity on the point seems inexorable.

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