ICJ Not Taking Action Against German Arms Exports to Israel
Examining Nicaragua's Case Against Germany For Supporting Genocide In Gaza In The Wider Context Of German Weapons Sales
Today, in a 15 to 1 decision, the International Court of Justice rejected the Nicaraguan request for provisional measures ordering Germany to suspend its arms shipments to Israel. The court states that their involvement is not warranted under current circumstances, although it leaves the door open for future involvement.
The Allegations
On 1 March 2024, Nicaragua brought this case to the International Court of Justice (ICJ) in the Hague, alleging Germany is violating its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, as well as the 1949 Geneva Convention and international law. Nicaraguan lawyers are arguing that Germany is facilitating genocide and failing in its obligation to do everything possible to prevent it, by providing "political, financial and military support to Israel" and by defunding the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)." This decision was made after the Israeli government claimed without providing evidence that the aid organisation had played a part in the Hamas attacks of 7 October, at a time when it was clear that Palestinians were facing widespread famine. It does not seem like a coincidence that this happened mere days after the ICJ ordered Israel to protect Gazans from genocide.
The German Defence
According to the German government, it is "continuously using all reasonable means at its disposal to exert its influence on Israel in order to improve the situation in Gaza and furnish humanitarian aid to the population." It also contends that "the obligation that could be derived" from the Geneva Conventions does not obligate them to completely refrain from giving military support to Israel.
The German government says that it has stringent controls in place to make sure human rights are respected. They further say that there is no evidence that their weapons could have contributed to genocide or to breaches of humanitarian law. This seems to go directly against the conclusions of a recent report by the UN Special Rapporteur on the situation of human rights in the Occupied Palestinian Territories, which stated that "there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met."
Furthermore, the German government claims that its arms sales to Israel have decreased from October 2023 to March 2024. Based on the available evidence, this seems to indeed be the case, although the value of the export licences issued was ten times more in 2023 compared to the year before, more than double the previous two years combined. In fact, what it sold to Israel in the second half of 2023 amounts to almost two-thirds of their total exports to Israel over the past three years (2021-2023). Based on that evidence, it seems to me that the argument that, after that massive increase, they decreased their sales again is disingenuous at best, as is their argument that 98% of the granted licences concerned military equipment and not war equipment. Further on in this post, I examine German arms exports in more detail.
The Court's Decision
The court concludes that "at present, the circumstances are not such as to require the exercise of its power." However, since they have jurisdiction over Gaza, the court will not remove the case from the list as Germany requested and remains open to states presenting further arguments.
The court "remains deeply concerned about the catastrophic living conditions of the Palestinians in the Gaza Strip, in particular in view of the prolonged and widespread deprivation of food, and other basic necessities, to which they are being subjected." The court also noted that all states are "under an obligation to respect and ensure respect" for the Conventions in all circumstances and to ensure requirements are complied with. It repeated that states are obligated to "employ all means reasonably available" to prevent genocide, and reminded all states, including Germany, of "their international obligation relating to the transfer of arms to parties to an armed conflict in order to avoid the risk that such arms might be used to violate the above Conventions."
The court's statements seem to suggest that they consider Germany's arguments regarding the export and use of its weapons credible enough not to warrant immediate action. Additionally, the ICJ did not accept Nicaragua's claim that withdrawal of UNRWA funding constitutes a violation of Germany's obligations under international law, because funding the aid organisation is voluntary.
More Legal Trouble for Germany
Today's decision, while certainly beneficial for the German government, does not mean the end of its legal troubles, seeing as further arguments and evidence could still be presented. Moreover, this ICJ case is not the only legal dispute the German government finds itself embroiled in because of its steadfast support for Israel. On 12 April, the European Center for Constitutional and Human Rights (ECCHR) filed a lawsuit against the German government for its arms shipments to Israel, on behalf of five Palestinians whose family members have been killed by Israeli rocket attacks. They are seeking to suspend the export licences that make these shipments possible, citing alleged violations of Germany's weapons control law, E.U. policy, and, similar to the Nicaraguan case, violations of both the Genocide and Geneva Conventions. Similar suits have been happening in the Netherlands, Denmark, France, and the UK.
Germany's Arms Exports at Record Heights
These suits show that none of what is happening in Germany is taking place in a vacuum. Global military expenditure is on the rise, reaching $2.44 trillion in 2023. As one of the top 10 weapons exporters in the world, Germany is no exception. Last year, the value of German arms licences issued amounted to a record 12.2 billion euros, a 30% increase compared to the previous record year of 2021. German weapons manufacturing and arms exports have seen large increases over the past decade, about 48% since 2014 (although it has seen similar periods of expansion in the past), especially since the start of the Ukraine war in 2021:
2010: €4.75 billion
2011: €5.38 billion
2012: €4.17 billion
2013: €5.85 billion
2014: €3.97 billion
2015: €7.86 billion
2016: €6.85 billion
2017: €6.24 billion
2018: €4.82 billion
2019: €5.3 billion
2020: €5.82 billion
2021: €9.35 billion
2022: €8.36 billion
First half of 2024: €5.2 billion
Looking at the past few years, the main recipients of these arms were Ukraine, Egypt, the Netherlands, and the United States:
Ukraine (2021 - 31 March 2024): €10.49 billion
Egypt (2021 - 30 June 2023): €4.34 billion
Netherlands (2021 - 30 June 2023): €2.73 billion
United States (2021 - 31 March 2024): €2.49 billion
Compared to the quantity of arms the German government is sending to a country like Ukraine, what it is sending to Israel, €446.77 million from 2021 to 2023, may not seem like much. But being only about 5.8% the size of Germany (0.2% compared to the continental U.S.) with only about 11% of the population, this makes up a significant portion of the weapons that Israel is importing. Looking at 2018-2022, in other words before Israel's assault on Gaza, Israel's main weapons suppliers were the United States (79%) and Germany (20%). However, when taking 2023 into account, where German exports to Israel grew tenfold compared to 2022, from €32.29 to €326.51 million, this balance shifts to 69% from the U.S. and 30% from Germany (2019-2023). Moreover, the majority of the German government's weapons sales to Israel occurred in the second half of 2023 (January - 30 June: €38.47 million, 1 July - 31 December: €288.03 million). There do not seem to be conclusive numbers on their exports for 2024, but they granted €9 million in licences between 1 January and 15 February 2024 (page 19573), and according to the German government's website Israel is not in the top 10 recipients for 2024, so that means that exports to Israel in 2024 so far are somewhere between 9 and 25.89 million euros. Currently, Israeli orders for tank munitions and one submarine are still pending approval by the German government, which it cited in its defence during the ICJ case.
The Big Picture: Going After the Dogs of War
While the Israeli government is scaling up local military production, mainly for munitions and guns, it remains highly dependent on imports when it comes to warplanes, helicopters, warships, and submarines. That is where the Nicaraguan ICJ case comes in. While Israel, the United States, and Germany have all signed and ratified the Genocide Convention, obligating them to take active steps to prevent genocide, the United States attached a reservation to its ratification. It states that before any case involving itself can be brought to the ICJ, U.S. consent is required. Clearly not happening. After all, this is the same country that has a law about invading the Netherlands, a NATO ally, if war crimes charges were ever brought against any of its military personnel. In other words, when it comes to the Genocide Convention that leaves Israel and Germany as possible targets for legal action.
In December, Israel was accused of committing genocide, charges which the U.N. court famously ruled as plausible, ordering its government to take measures to prevent genocide as well as the destruction of evidence, which it is of course ignoring. Germany is actively defending Israel during this case and is intending to intervene on Israel's behalf in order to present its own interpretation of the Genocide Convention, one in which what the Israeli government is doing—indiscriminately killing civilians, bombing hospitals and schools, blocking humanitarian aid and cutting off water supplies, and according to UN Human Rights Council experts sexually abusing and torturing Palestinian women and girls, all the while using a language of annihilation that I feel sick to have to repeat, so I'm not going to do it again—is somehow not genocide. For the coming future, far too long to be of much help to the people dying every day, that Genocide case is still ongoing, as is another case in which the court is reviewing the 57-year Israeli occupation of Palestinian territory.
That leaves Germany, which for both historical and political reasons seems uniquely willing to shield its eyes from what is happening in Gaza. Even if that comes at the cost of freedom of expression and the right to protest. As mentioned at the start of this article, the ICJ case that Nicaragua brings against Germany not only alleges that it is violating the Genocide Convention by supporting and funding Israel, but also that it is violating the Geneva Conventions, which established protections for civilians, prisoners of war, and soldiers. Contrary to the United States and Israel, both of which—crucially in this situation—did not ratify 2 of its protocols which include protections of civilians and aid workers (Protocol 1) and protection for victims of internal conflict (Protocol 2), Germany has signed and ratified all parts of the convention, and has accepted full ICJ jurisdiction. There is also the International Criminal Court, which can charge individuals who committed war crimes, whose jurisdiction has also only been accepted by Germany. However, the ICC does claim jurisdiction over Gaza, the West Bank, and East Jerusalem, which could become the basis for arrest warrants for Israeli leadership that the ICC may be working on (which the U.S. is reportedly trying to block).
It is not yet clear whether the ICJ or other courts are going to rule against Germany in any meaningful way in the future, but it seems inevitable that as long as the carnage in Gaza continues, and everything is indicating that it will, evidence for the crimes committed by Israel will keep piling up, after which more legal action—and public protests—will follow.
Edit - 1 May 2024: Added 2 sentences about ICC jurisdiction and the possibility of pending arrest warrants for Israelis
Well said: "the Israeli government claimed without providing evidence that the aid organisation had played a part in the Hamas attacks.... It does not seem like a coincidence that this happened mere days after the ICJ ordered Israel to protect Gazans from genocide."