Tue, 09 Apr 2024 Feature Article

Germany, Gaza and the World Court: Broadening the Scope of Genocide

Germany, Gaza and the World Court: Broadening the Scope of Genocide

Can it get any busier? The World Court, otherwise known as the International Court of Justice, has been swamped by applications on the subject of alleged genocide. The site of interest remains the Gaza Strip, the subject of unremitting slaughter since the October 7, 2023 cross-border attacks by Hamas against Israel. The retaliation by Israel has been of such brute savagery as to draw the attention of numerous states, including those not directly connected to the conflict.

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 suppress 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 application last year seeking a judicial 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 January 26, and another on March 28. While the court has yet to decide the issue of whether Israel is culpable for genocide in waging 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 IDF against the civilian populace.

The implications of such findings also go to Israel’s allies and partners still keen to supply it with weapons, weapons parts, and support of a military industrial nature. Germany has been most prominent in this regard. In 2023 30% of Israel’s military equipment purchases totalling US$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, and that is by Israel’s side,” proclaimed German Chancellor Olaf Scholz to German lawmakers on October 12 last year. Foreign Minister Annalena Baerbock curtly stated that “It was not the job of politicians to tell the guns to shut up.”

Baerbock’s remarks were all the more jarring given the 2006 views of Frank-Walter Steinmeier, who was then serving as Germany’s foreign minister. 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 in “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 a genocidal enterprise. While its own human rights record is coarse – the government of Daniel Ortega boasts a spotty record which involves, among other things, the killing of protesters – Nicaragua has form at the ICJ. Four decades ago, it took the United States 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 further alleges 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.”

Stretches of the Nicaraguan case would make troubling reading. It notes that “by sending military equipment and now defunding UNRWA [United Nations Relief and Works Agency] which provides essential support for the civilian population, 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 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 application by Nicaragua 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 further asked, not merely to “end its assistance to Israel” but “cooperate to uphold international law and to bring the perpetrators of these atrocities to justice.”

On April 8, the ICJ opened preliminary hearings. 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 airdrops 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 on April 9. 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.” Berlin was “committed to the upholding of international law”.

If the defence fails to sway the 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.