Analysis: International Court of Justice severely limits the transfer of arms to Israel
The court made it clear that Germany was under an obligation to avoid the risk that arms transferred to Israel might be used to violate the Genocide Convention or the 1949 Geneva Conventions on the laws of war
On April 30, 2024, the International Court of Justice (ICJ) issued its Order on Provisional Measures in the case concerning Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany).
Two months earlier, Nicaragua had instituted proceedings before the ICJ because of Germany’s strong political and military support of Israel with regard to the latter’s military operation in the Gaza Strip, which, in the words of judge Awn Shawkat al-Khasawneh, has given rise to “an ongoing human tragedy of semi-apocalyptic proportions.”
In its application, Nicaragua had asked the court to indicate provisional measures as a matter of extreme urgency with respect to Germany’s “participation in the ongoing plausible genocide and serious breaches of international humanitarian law and other peremptory norms of general international law occurring in the Gaza Strip.”
Initially, Nicaragua had requested the indication of five provisional measures to protect the rights of the Palestinian people, particularly in the Gaza Strip. During the oral hearings on April 8, 2024, Nicaragua limited its request to the following three measures: Germany was to suspend its export to Israel of military equipment and war weapons, in so far as these items would be used to commit or facilitate serious violations of international humanitarian law or genocide; ensure that military items already delivered by Germany to Israel were not used to commit or facilitate serious violations of international humanitarian law or genocide; and resume its support and financing of the UN agency for Palestinian refugees (UNRWA) in respect of its operations in Gaza. Germany, on the other hand, asked the court to reject Nicaragua’s request for provisional measures and to remove the case from its general list of cases due to a lack of jurisdiction.
Jurisdiction
In its order, the ICJ decided not to accede to Germany’s request to remove the case from its list because there was “no manifest lack of jurisdiction”. This means that the case will go ahead. However, it is expected that, as a next procedural step, Germany will raise preliminary objections to the court’s jurisdiction and the admissibility of Nicaragua’s application. In that case, the proceedings on the merits will be suspended and a new oral hearing will be held on the questions of jurisdiction and admissibility. This will not take place before the end of 2025. Only if the court rejects Germany’s preliminary objections, the case will proceed on the merits. Even in the best-case scenario, a final decision in the case will not be made before 2027.
The more important aspect of the decision was, however, that the court declined to indicate any provisional measures of protection and, in particular, did not order Germany to suspend the export of war weapons and other military equipment to Israel. In an almost unanimous decision, by 15 votes to 1, the court found that “the circumstances, as they now present themselves to the court, are not such as to … indicate provisional measures.” Only judge ad hoc al-Khasawneh, who had been appointed by Nicaragua, dissented. In the media, this was widely interpreted as a victory for Germany. It was said that Germany could thus continue to deliver arms to Israel. But is this, what the decision really said?
What does the decision really say?
The court’s Provisional Measures Order is unusual in several respects. It is one of the shortest orders ever; the actual decision is less than two pages. It does not provide any proper legal reasoning and, in particular, does not mention, let alone engage with, the well-established requirements for the indication of provisional measures (prima facie jurisdiction, standing, plausibility of rights, link between rights asserted and measures requested, urgency in the sense of a real and imminent risk of irreparable prejudice). Instead, the court simply found that “based on the factual information and legal arguments presented by the Parties…, at present, the circumstances are not such as to … indicate provisional measures.” A close reading of the decision and the declarations, as well as separate and dissenting opinions by individual judges, reveals the reason why the court did not indicate provisional measures.
In light of Germany’s statements during the oral hearings, to which the court expressly referred no less than nine times, the court considered that there was no real and imminent risk that irreparable prejudice would be caused by the conduct of Germany before the court could give its final decision. Germany had pointed out that its rigorous domestic legal framework for arms exports was sufficient to prevent any risk of prejudice to the rights at issue in this case. It had also stated that the domestic legal framework functioned properly in practice, as evidenced by the significant decrease in the value, content, and volume of military assistance to Israel since November 2023. Ultimately, no provisional measures were necessary because no arms or other military equipment was exported that could be used to commit serious violations of international humanitarian law or genocide.
However, the court made it clear that Germany (as well as any other state) was under an obligation to avoid the risk that arms transferred to Israel might be used to violate the Genocide Convention or the 1949 Geneva Conventions on the laws of war. Germany continues to be subject to an obligation of due diligence. By expressly emphasizing that “at present,” circumstances did not require the indication of provisional measures, the court made it clear that it was prepared to indicate such measures if Germany resumed the export of arms and other military equipment to Israel that could be used to commit or facilitate serious violations of the Genocide Convention or international humanitarian law.
Source: AA
