Germany on trial
Germany is on trial in The Hague charged with facilitating genocide. The recent surge in arms supplies to Israel might constitute complicity in the brutal Gaza Strip slaughter.
BERLIN/TEL AVIV/THE HAGUE (own report) – Germany must, for the first time, answer to the highest UN court. The charge is complicity in genocide. Accusing Germany of violating its obligations under the Genocide Convention, Nicaragua’s legal intervention led to public hearings before the International Court of Justice (ICJ) in The Hague at the beginning of the week. Managua accuses Berlin of supporting Israel both politically and militarily through arms supplies, despite the fact that Israel’s conduct of the war in the Gaza Strip is currently being investigated by the ICJ for its potentially genocidal character. The ICJ has already established evidence for genocide that is at least plausible. If this suspicion is confirmed the German government would be guilty of aiding and abetting genocide by authorising arms exports to Israel. A first formal ruling by the ICJ is expected in April. A number of Western countries have already seen courts, parliaments and corporations moving to stop arms deals with Israel in order not to risk an open breach of international law. The death toll among Palestinians in the Gaza Strip now exceeds 33,400, including large numbers now dying of malnutrition or water deprivation.
First ICJ orders for provisional measures
The result of Nicaragua’s lawsuit against Germany depends effectively on the outcome of South Africa’s lawsuit against Israel centre on the accusation of genocidal intent in the Gaza Strip. On 29 December 2023, after 83 days of non-stop onslaught, Pretoria brought its case before the International Court of Justice (ICJ) in The Hague. At the same time, the South African lawyers filed several urgent applications for provisional measures, which the ICJ – following a public hearing on 11 and 12 January – partially granted on 26 January. In this ruling the highest court of the United Nations instructed Israel take immediate steps to ensure that its warfare does not breach Article II of the Genocide Convention. Among other violations, the Israeli government was found to be preventing the civilian population in the Gaza Strip from receiving adequate supplies of food and medicine.[1] On 28 March, the ICJ followed this up with a second order for provisional measures. This ruling stated that not only were Palestinians facing a “risk of famine” in the Gaza Strip, but that the famine was already “setting in”. It recorded confirmed cases of at least 31 people, including 27 children, having died from malnutrition or dehydration. The ICJ therefore once again ordered the facilitation of adequate aid supplies to the Gaza Strip.[2]
Plausible evidence
The ICJ’s orders for provisional measures are already a serious political blow to Berlin’s stance. On 12 January, the German government declared that it “firmly and explicitly rejects the accusation of genocide levelled against Israel ... This accusation has no basis whatsoever.”[3] Yet an ICJ order presupposes, of course, that the highest UN court does not consider the charge to be without basis. It had already seen plausible evidence of the incriminating acts. The German government’s case is therefore in clear contradiction to the ICJ’s legal opinion. Moreover, Berlin had chosen to intervene in the legal dispute with South Africa as a third party in support of Israel at the main hearing in The Hague. The ICJ’s provisional measures order puts Berlin on thin ice. For Germany is taking the risk of politically defending activities that the UN’s highest court ultimately categorises as genocidal.
Aiding and abetting genocide
The fact that the Federal Republic of Germany itself is now itself on trial – charged with actively supporting genocide – makes the situation all the more serious. Nicaragua filed a complaint with the ICJ on 1 March [4] and the hearings took place this week on Monday and Tuesday. Managua refers to the fact that the German government not only supports Israel politically but also militarily with extensive arms exports. Over the past year Berlin authorised military supplies to Israel worth 326.5 million euros. The majority of deliveries took place after the Hamas massacre on 7 October 2023, including the export of 3,000 portable anti-tank weapons and 500,000 rounds of ammunition for semi-automatic and fully automatic weapons.[5] In mid-January, when South Africa had already filed its charge of genocide, the media reported that Berlin was preparing to deliver 10,000 rounds of a precision ammunition for tanks from Bundeswehr stocks.[6] Although Berlin continues to reject the accusation of genocide, the government has now prophylactically claimed in The Hague that it has only licensed, at least for the most part, the supply of non-lethal military equipment such as helmets that cannot be used to kill anyone.[7] Of course, such goods are also indispensable components of a genocidal war.
Arms exports stopped
While the German government stubbornly defends German arms exports to Israel, other Western countries have now stopped or at least reduced them. The Netherlands, for example, which has a large depot with stocks of US F-35 jet components and spare parts, had to stop supplying these parts to Israel following a court ruling on 12 February – a ruling made in light of the ICJ’s provisional measures. The same consideration played into the decision by the government of Belgium’s Wallonia Region on 5 February to revoke two export licences for gunpowder to Israel. In Spain, the government has stated that it has not authorised any exports of weapons to Israel since 7 October 2023. In this case, however, critics revealed that ammunition deliveries have continued, though possibly covered by previous export licences. In Canada, no new exports have been granted since 8 January 2024, the government claims. A resolution passed by the Canadian Parliament on 18 March prohibits not only the granting of new licences but also the implementation of previously authorised exports deals,[8] though there are doubts as to whether Ottawa is complying with the latter aspect.
The “rules-based order”
Companies are also worried about getting into legal difficulties due to the ICJ orders on provisional measures. There is also pressure from boycott campaigners. The Japanese company Itochu has become the first major company from the spectrum of Western allies to respond. Itochu’s aircraft division discontinued its cooperation with the Israeli defence company Elbit in February.[9] The risks facing arms suppliers if they continue their exports to Israel were highlighted by reports in the British media at the end of March. It emerges that the Chair of the House of Commons Foreign Affairs Committee, Conservative MP Alicia Kearns, has confirmed that the British government’s own legal experts had unequivocally classified the Israeli war in the Gaza Strip as illegal under international law.[10] Legal experts were then pressed and quoted as saying that if the government continued to authorise arms supplies to Israel it would be aiding and abetting war crimes. Kearns has urged that the official legal advice to the UK government be made public and the consequences drawn. “Transparency is paramount,” she said, not least to uphold the “international rules-based order.”[11]
[1] See also: Der Westen, der Süden und das Recht.
[2] International Court of Justice: Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). Order. 28 March 2024.
[3] Erklärung der Bundesregierung zur Verhandlung am Internationalen Gerichtshof. bundesregierung.de 12.01.2024.
[4] See also: Der Westen, der Süden und das Recht (II).
[5] See also: Weapons for Israel (II).
[6] Matthias Gebauer, Christoph Schult, Gerald Traufetter: Bundesregierung prüft Lieferung von Panzermunition an Israel. spiegel.de 16.01.2024.
[7] Marlene Grunert: Deutliche Zurückweisung. Frankfurter Allgemeine Zeitung 10.04.2024.
[8] Frequently Asked Questions: Arms Embargo on Israel. cjpme.org 21.03.2024.
[9] Jack Dutton: Japan’s Itochu drops Israel’s Elbit defense systems as Gaza war impact deepens. al-monitor.com 05.02.2024.
[10], [11] Toby Helm: UK government lawyers say Israel is breaking international law, claims top Tory in leaked recording. theguardian.com 30.03.2024.
