International Court of Justice (“ICJ”): The ICJ with 16 attending members, while considering the application filed by Republic of Nicaragua alleging breaches of certain international obligations by Germany in the Occupied Palestinian Territory, rejected application for indication of provisional measures with a ratio of 15: 1. Judge ad Hoc Al-Khasawneh gave a dissenting opinion in the matter.. The majority was of the view that the German conduct did not pose an imminent threat of irreparable prejudice to the rights of Nicaragua.
Background
Nicaragua had filed an application in the Registry of the International Court of Justice on 01-03-2024, instituting proceedings against Germany concerning their alleged breaches of certain international obligations in the Occupied Palestinian Territory. Nicaragua asserted that, by providing weapons to Israel and by suspending the provision of funds to the United Nations Relief and Works Agency (UNRWA) for Palestine Refugees in the Near East , Germany had failed to comply with its obligations under the Genocide Convention and international humanitarian law, including the Geneva Conventions of 12-08-1949 (“Geneva Conventions”) and the Additional Protocols of 8-06-1977, and its intransgressible principles.
The application contained a Request for indication of Provisional Measures by the Court, against Germany’s participation in the ongoing plausible genocide and serious breaches of international humanitarian law and other peremptory norms of general international law.
Nicaragua requested the Court to order on the following:
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Immediate suspension of aid to Israel by Germany, particularly, military assistance, export of military equipment and war weapons, to the extent that these aids, assistance and exports could be used to commit violations of the Genocide Convention, international humanitarian law, and other peremptory norms of general international law.
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Immediate assurance by Germany that military equipment, war weapons, and other equipment used for military purposes already delivered by Germany a to Israel are not used to commit the above-mentioned violations.
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Resumption of support and financing to the United Nations Relief and Works Agency (“UNRWA”)’s Gaza operations by Germany.
Per contra, Germany had contended that it had fulfilled its obligations as per the Genocide Convention to prevent the occurrence of genocide by continuously using all reasonable means at its disposal to exert its influence on Israel in order to improve the situation and to furnish humanitarian aid to the population of Gaza.
Court’s Analysis and Order
The Court recalled its power to indicate any provisional measures to preserve the rights of a party, provided under Article 41 of the Statute of the International Court of Justice (“Statute”). In the instant case, the Court considered ascertaining whether Nicaragua had sufficiently shown the circumstances requiring the exercise of this power.
While perusing the contentions of both the parties, Court noted Germany’s statement that 98% of the licenses granted since October 2023 were for “other military equipment” and not for war weapons”. It was further noted that according to Germany, only four licenses for “war weapons” have been granted: two for training ammunition, one for propellant charges for test purposes, and one concerned the export of 3,000 portable anti-tank weapons.
= In the light of German commitments to the UNRWA operations in Gaza, the Court observed that the contributions to the UNRWA are voluntary in nature, and that no new payments to the Agency were due by Germany after their retraction from these commitments.
The Court recalled its recent order in the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), to reiterate its concerns about the living conditions of the Palestinians in the Gaza Strip.
The Court also laid emphasis on obligations of all State parties to the Geneva Conventions, irrespective of their part in a specific conflict. The Court opined that it was important to remind all States of their international obligations relating to the transfer of arms to the parties in an armed conflict. All these obligations are incumbent upon Germany as well as other State party to the Conventions.
The Court concluded that the circumstances existing at the time did not require the exercise of its power under Article 41 of the Statute to indicate provisional measures as requested by Nicaragua.
Separate Opinions and Declarations
1. Separate opinion of Vice-President (“VP”) Sebutinde
While the VP voted in the majority, rejecting the request of Nicaragua for provisional measures, she disagreed with the Court’s reasoning for the Order. The VP was of the view that the Court did not have prima facie jurisdiction as the dispute between the parties had not solidified, and Nicaragua made a premature application. The VP also considered that the Court could not exercise its jurisdiction for Nicaragua’s claims against the German conduct, as doing so would prerequisite the assessment of Israeli conduct as an indispensable third-party to the present proceedings-to which Israel had not consented. Lastly, she noted that the requirement of urgency as presented by Nicaragua was not met, since Nicaragua failed to show that Germany’s impugned conduct posed an imminent threat of irreparable prejudice to the rights of Nicaragua.
2. Separate opinion of Judge Iwasawa
Judge Iwasawa as agreed with the VP on the matter of failure of meeting requirements of urgency. He further highlighted that Germany’s military exports framework was robust. Lastly, as to the request of indication of provisional measures, he said that there were five requirements to be satisfied for indication of provisional measures, and since one of those requirements was unfulfilled, the Court was not obliged to examine the others.
3. Declaration by Judge Cleveland
Judge Cleveland underscored the obligations imposed on the State parties to the Convention on the Prevention and Punishment of the Crime of Genocide, 1948, and the Geneva Conventions, that require the State parties to be proactive in ascertaining the risks of breach of international law associated with weapons transfer. Lastly, she explained that owing to the vigorous military trade and assistance review system of Germany, there did not exist an imminent risk of irreparable prejudice, by the conduct of Germany, to the rights of Nicaragua.
4. Declaration of Judge Tladi
Judge Tladi explained that Germany and other States supplying weapons to Israel, remained under a continuing duty of exercising due diligence in the export of arms and supply of military aid to Israel irrespective of the Court’s decision to not indicate measures; ensuring that weapons transferred to Israel are not used in the violation of international humanitarian law.
Dissenting opinion of Judge ad hoc Al-Khasawneh
Judge ad hoc Al-Khasawneh gave a dissenting opinion stating that the character of Court Order was unusual due to the adoption of minimalistic approach and the lack of reasoning, that contrasted with rich jurisprudence of the Court. He noted that the requirements of indication of provisional measures were met in the instant case. Judge ad hoc referred to the evidence of transfer of 3,000 anti-tank weapons to Israel used by them against civilians in Gaza. He also noted that Germany’s decision to support Israel had come at a time of genocidal statements by the Israeli leadership.
[Nicaragua v. Germany, 2024 SCC OnLine ICJ 1, decided on 30-04-2024]
