[News] Germany next up to face Gaza genocide charges in The Hague

[Anti-Imperialist News]

electronicintifada.net
<https://electronicintifada.net/blogs/ali-abunimah/germany-next-face-gaza-genocide-charges-hague>
Germany next up to face Gaza genocide charges in The Hague

Ali Abunimah <https://electronicintifada.net/people/ali-abunimah> Rights
and Accountability
<https://electronicintifada.net/blog/rights-and-accountability> 25 March
2024
------------------------------

Chancellor Olaf Scholz, right, believes that unconditional support for
Israel as it perpetrates genocide in Gaza qualifies as atonement for the
extermination of European Jews perpetrated by Adolf Hitler, his World War
II precedecessor as German leader.
Picture-Alliance/DPA

On April 8 and 9, the International Court of Justice will once again hold
hearings on the Israeli genocide in Gaza.

This time the judges in The Hague will be listening to arguments in the
case brought by Nicaragua against Germany.

The Central American nation accuses
<https://www.icj-cij.org/sites/default/files/case-related/193/193-20240301-pre-01-00-en.pdf>
Berlin of violating its obligations under the 1948 Genocide Convention and
other “intransgressible principles of international humanitarian law,”
including the Fourth Geneva Convention.

Nicaragua argues
<https://www.icj-cij.org/sites/default/files/case-related/193/193-20240301-app-01-00-en.pdf>
that “each and every” party to the Genocide Convention has a duty “to do
everything possible to prevent the commission of genocide” and that since
October 2023 there has been “a recognized risk of genocide against the
Palestinian people, directed first of all against the population of the
Gaza Strip.”

By sending vast quantities of military equipment to Israel and defunding
UNRWA, the UN agency that provides essential humanitarian support to the
population of Gaza, Nicaragua charges that “Germany is facilitating the
commission of genocide and, in any case has failed in its obligation to do
everything possible to prevent the commission of genocide.”

According
<https://www.dw.com/en/nicaragua-says-germany-facilitates-genocide-by-aiding-israel/a-68422846>
to German government-funded media, Berlin “is one of the largest arms
exporters to Israel” alongside the United States.

Germany is UNRWA’s second biggest donor
<https://www.aljazeera.com/news/2024/1/28/which-countries-have-cut-funding-to-unrwa-and-why>,
behind the United States.

Nicaragua is asking the court to issue immediate provisional measures
ordering Germany to end its “participation in the ongoing plausible
genocide and serious breaches of international humanitarian law” in the
Gaza Strip.

This would include suspending military aid to Israel and ensuring that
already delivered German weapons are not used to commit genocide. Nicaragua
also asked the court to require that Germany comply with international
humanitarian law, and resume its funding to UNRWA.

The hearings will come after the ICJ in January ordered Israel
<https://electronicintifada.net/blogs/maureen-clare-murphy/world-court-orders-israel-halt-gaza-genocide>
to halt all potentially genocidal acts – including any killing of
Palestinians – pending its consideration of South Africa’s genocide case
against Israel.

So far there has been little reaction from the German government, however
one German government-funded
<https://www.freiheit.org/southeast-and-east-asia/focus/about-us> agency
that purports to promote “freedom” and “human rights” around the world
published
an article
<https://www.freiheit.org/human-rights-hub-geneva/nicaragua-vs-germany-political-red-herring>
smearing Nicaragua and accusing it of trying to divert attention from its
own alleged human rights abuses.

This mimics the well-worn Israeli tactic of smearing South Africa
<https://www.politico.eu/article/israel-accuses-south-africa-of-being-the-legal-arm-of-hamas/>
and all other critics, rather than addressing the substance of their
criticisms.
Why Germany?

As Nicaragua notes in its submission to the court, German leaders assert
regularly that Israel’s “security” is one of their highest concerns.

Olaf Scholz, the German chancellor, told the Bundestag
<https://www.bundesregierung.de/breg-de/service/newsletter-und-abos/bulletin/regierungserklaerung-von-bundeskanzler-olaf-scholz-2230150>
on 12 October, while Israel’s savage and indiscriminate bombardment and
total siege of Gaza was already underway, “At this moment, there is only
one place for Germany: at the side of Israel. This is what we mean when we
say that Israel’s security is a German raison d’État.”

It is a sentiment that Scholz, like German leaders before him, repeats
constantly.
Germany’s elites hypocritically and perversely
<https://electronicintifada.net/blogs/ali-abunimah/palestinians-have-had-enough-europes-holocaust-hypocrisy>
justify this unconditional support
<https://electronicintifada.net/blogs/ali-abunimah/germany-affirms-support-famine-and-extermination-gaza>
for a genocidal apartheid settler-colony as atonement for the holocaust
against Jews perpetrated by Adolf Hitler, Scholz’s World War II predecessor
as German leader.

At the same time, German authorities brutally crack down
<https://electronicintifada.net/content/video-how-germany-cracks-down-palestinians-within/44046>
on almost any dissent against their policy of unconditional support for
Israel.

Such repression is necessary from the perspective of German leaders because
Israel’s vengeful Berlin-backed campaign of extermination and destruction
in Gaza is opposed
<https://www.yahoo.com/news/survey-almost-70-germans-critical-164624463.html>
by an overwhelming majority of the German public.
Germany’s complete inability
<https://electronicintifada.net/blogs/ali-abunimah/germany-supports-genocide-again>
to stop perpetrating or aiding genocides makes it obvious why Nicaragua
would seek to hold it accountable at the world court.

But Germany is not the only country helping Israel’s effort to murder
Palestinians through bombing and deliberate starvation.

What about the United States? Unfortunately, no country can bring a similar
case against the United States: Although Washington has ratified the
Genocide Convention, it opted
<https://voelkerrechtsblog.org/germanys-strong-public-support-for-israel-has-made-the-country-the-main-target/>
out <http://www.preventgenocide.org/law/convention/reservations/> of the
provision that established the International Court of Justice as the forum
for resolving disputes about accusations of genocide.
Why Nicaragua?

Nicaragua points to the obligation of all states to uphold the Genocide
Convention and international law as its motive for bringing the case
against Germany. Yet it has its own special relationship with the
Palestinian people.

The governing Sandinista liberation movement has longstanding ties of
solidarity and struggle with Palestinians dating back to the 1960s.

At the same time, Israel armed and supported
<https://merip.org/1986/05/israel-in-central-america/> the savage
Washington-backed Somoza dictatorship that the Sandinistas overthrew in
1979, just as Tel Aviv armed and trained
<https://www.washingtonpost.com/archive/politics/1982/05/29/palestinians-challenging-israel-for-influence-in-central-america/c88ee3e5-9c3a-4614-81d2-6c11365f75b1/>
other US client regimes in Central America, helping
<https://electronicintifada.net/content/israels-shadowy-role-guatemalas-dirty-war/19286>
them to commit atrocities
<https://azvsas.blogspot.com/2017/02/israels-role-in-guatemalan-genocide.html>
including the genocide in Guatamala
<https://www.usip.org/publications/1997/02/truth-commission-guatemala>.

Nicaragua also has its own history with the International Court of Justice.
In the 1980s, Nicaragua took the United States to the ICJ, over
Washington’s military support for the rightwing Contra
counterrevolutionaries. The court upheld <https://www.icj-cij.org/case/70>
Nicaragua’s claims.
Did Nicaragua scare Canada into freezing new arms sales?

In February, following the ICJ decision to impose provisional measures in
South Africa’s case against Israel, Nicaragua sent diplomatic notes
<https://english.almayadeen.net/news/politics/nicaragua-urges-4-western-nations-to-end-complicity-in-gaza>
to four countries – Germany, the United Kingdom, the Netherlands and Canada
– “to immediately halt the supply of arms, ammunitions, technology and/or
components to Israel as it is plausible they might have been used to
facilitate or commit violations of the Genocide Convention.”

These were in effect legal warnings: Nicaragua subsequently cited its
diplomatic note to Germany in its complaint to the ICJ as establishing that
a dispute exists between them and that therefore the case is admissible
according to the world court’s rules.

So Nicaragua might still bring cases against the other three countries. It
may also consider that the symbolic value of charging Berlin with aiding
genocide is enough.

However, it is possible that Nicaragua’s action against Germany is having
the desired effect on at least one of the other countries, namely Canada.

Earlier this month – just a week after Nicaragua filed its ICJ case against
Germany – Canada announced
<https://apnews.com/article/canada-unrwa-gaza-israel-aid-suspended-hamas-1ed2cdb6c9bf293775320c0b2d37d128>
that it was restoring funding to UNRWA, suspended
<https://electronicintifada.net/blogs/maureen-clare-murphy/funding-freeze-could-halt-unrwa-operations-end-month>
in the wake of baseless
<https://www.reuters.com/world/no-evidence-israel-back-unrwa-accusations-says-eu-humanitarian-chief-2024-03-14/>
Israeli allegations against the agency’s staff.

Canada, Sweden, Australia, Iceland
<https://twitter.com/MFAIceland/status/1770180072734855273?s=20> and Finland
<https://www.reuters.com/world/finland-resume-funding-unrwa-2024-03-22/>
are so far the only ones
<https://www.reuters.com/world/middle-east/saudi-arabia-boosts-funding-unrwa-by-40-million-targeting-gaza-relief-2024-03-20/>
to restore their UNRWA funding from among the 18 countries, led by the
United States, which paused their contributions.

And last week, Ottawa announced
<https://www.reuters.com/world/canadian-freeze-new-arms-export-permits-israel-stay-2024-03-20>
that it had not issued any new arms export
<https://electronicintifada.net/blogs/nora-barrows-friedman/canadas-arms-exports-israel-skyrocket>
licenses for Israel since 8 January and that a freeze would remain in place
until Canada is certain that Israel is using such weapons in accordance
with Canadian law.

This came after the Canadian parliament passed
<https://www.cjpme.org/pr_2024_03_18_parliament_vote_arms_exports> with a
big majority a nonbinding resolution calling on the government to “cease
the further authorization and transfer of arms exports to Israel.”

Ottawa’s announcement comes with the caveat that licenses issued prior to 8
January will not be canceled – a move campaigners are slamming as an effort
to limit the effect of the decision.

They continue to push for a total embargo on all arms transfers to Israel.
Notwithstanding these important reservations, Ottawa’s announcement is a
momentous one, especially for a NATO member and a close ally of Israel and
the United States.

Tel Aviv’s enraged reaction
<https://www.haaretz.com/israel-news/2024-03-19/ty-article/report-canada-will-stop-sending-arms-to-israel-foreign-minister-says/0000018e-58a9-d88e-a39e-7dbb83210000>
suggests it is worried that Ottawa has set a precedent others will follow,
or that Canada itself may impose more severe restrictions.

While the Liberal government of Prime Minister Justin Trudeau may have been
reacting to sustained domestic outrage at his government’s support for
Israel’s genocide, it cannot be ruled out that Nicaragua’s case against
Germany also concentrated minds in Ottawa.

Despite marketing itself as a multicultural haven and champion of human
rights, Canada has had to confess
<https://www.theglobeandmail.com/canada/british-columbia/article-trudeau-accepts-indigenous-inquirys-finding-of-genocide/>
– albeit reluctantly and belatedly – to the genocide of its Indigenous
people.

Canadian leaders may hope that slightly pulling back on their support for
Israel will spare them the embarrassment of ending up in the world court
dock alongside Israel and Germany.
Is Nicaragua’s case on firm legal ground?

Some experts are warning that Nicaragua’s case could face a fatal hurdle –
a legal principle called the indispensable third-party rule.

In simple terms, this rule bars the court from hearing cases where the
judges would have to decide on a matter affecting the rights of a state
that is not a party to that case. In Nicaragua vs. Germany, the absent
third party would be Israel.

“The decisive question is: Can the Court rule on the allegations against
Germany without having to rule first on alleged violations of international
law by Israel?” argues
<https://voelkerrechtsblog.org/germanys-strong-public-support-for-israel-has-made-the-country-the-main-target/>
Stefan Talmon, professor of international law and director at the Institute
for Public International Law at the University of Bonn in Germany.

“In my view this is impossible because a state can be held responsible for
breaching the obligations to prevent genocide or not to be complicit in
genocide only if genocide was actually committed by another state.”

Since the court has yet to adjudicate whether Israel has committed genocide
in the case of South Africa vs. Israel – a process that could take years –
in Talmon’s view, the Nicaraguan case against Germany stands little chance
of success.

But this assessment is contested by other experts. Marco Longobardo, a
professor of international law at the University of Westminster in the UK,
points out that Nicaragua has brought its case against Germany not only
under the 1948 Genocide Convention, but under other provisions of
international humanitarian law including the Fourth Geneva Convention.

Pointing to the recent order
<https://electronicintifada.net/blogs/ali-abunimah/court-orders-netherlands-stop-sending-warplane-parts-israel>
by a court in The Hague that the Dutch government stop supplying Israel
with spare parts for its F-35 warplanes, Longobardo notes
<https://www.ejiltalk.org/alleged-violations-of-the-duty-to-ensure-respect-for-ihl-and-the-monetary-gold-principle/>
that “the duty to ensure respect for [international humanitarian law]
arises when a state is aware that another state is committing serious
violations of [international humanitarian law] … or when there is a *clear
risk* that this might be the case.”

Longobardo argues that in order to find Germany guilty of failing to meet
its obligations under international humanitarian law, it is enough to show
that Germany was aware that there was a clear risk of violations by Israel
without the judges needing to determine definitively whether Israel did in
fact commit such violations.

Other legal experts have weighed
<https://law.anu.edu.au/interventions-and-inadmissibility-nicaragua-v-germany-monetary-gold-principle-and-genocide>
in <https://verfassungsblog.de/conspicuously-absent/> on the debate and
there are arguments
<https://twitter.com/AdHaque110/status/1763990524665503983> that even if
the indispensable third-party rule applies, it would not necessarily come
into play at the first stage where the court is deciding only on
Nicaragua’s demand for provisional measures ordering Germany to stop aiding
Israel’s crimes.
According to Susan Akram, director of the International Human Rights Clinic
at Boston University’s School of Law, “the jurisprudence is not settled” as
to whether and at what point the indispensable third-party rule might kick
in.

Akram told The Electronic Intifada that in her view, “since this is the
provisional measures phase, the ICJ can find that as a matter of
admissibility it can go forward to determine whether Germany is
provisionally complicit in genocidal acts being committed or not without
the need for including Israel as a party.”

“The court does not have to find that genocide is being committed, but that
if Germany is providing weapons to a state that may be engaging in
genocidal acts, it is at least provisionally complicit *and* is violating
its own obligations to prevent genocidal acts,” Akram said.

The differing views underscore that the law in this area is not settled and
so it is difficult to predict what the court might do. Germany is likely to
argue that the indispensable third-party rule applies and that the case
should be thrown out.

The written submission from Nicaragua does not directly address the matter,
so it remains to be seen whether its legal team will preemptively raise it
in the upcoming oral arguments.

The bottom line is that the judges have a lot of leeway. But if they are
uneasy about having to decide if Germany is responsible – at least in part
– for yet another genocide, they could invoke this rule as an easy way out.
Will Berlin Palestine conference be banned?

Even as German government lawyers prepare to defend their position in The
Hague, Berlin’s repression against supporters of Palestinian rights
continues to mount.

Last week the pro-Berlin press went into a panic about a conference planned
for April organized by a grassroots coalition including Palestinian and
Jewish German groups.
The invited speakers <https://palaestinakongress.de/> include the
Palestinian German lawyer Nadija Samour who recently filed a genocide case
<https://electronicintifada.net/blogs/ali-abunimah/german-leaders-face-criminal-complaint-over-gaza-genocide>
against German leaders with national prosecutors; Ghassan Abu Sitta
<https://apnews.com/article/ghassan-abu-sitta-gaza-war-crimes-testimony-c0a40d6edc02bb0b91c94eb39cd8110d>,
the British Palestinian surgeon who recently returned from Gaza;
anti-Zionist Israeli and Jewish activists Dror Dayan, Yuval Gal and Shir
Hever, and Palestinian journalists including Hebh Jamal; former Greek
finance minister and left-wing politician Yanis Varoufakis; and this
writer.

German media
<https://www.sueddeutsche.de/politik/extremismus-berlin-senat-moegliches-verbot-von-palaestina-kongress-noch-unklar-dpa.urn-newsml-dpa-com-20090101-240318-99-377858>
are smearing the gathering as anti-Semitic
<https://www.bild.de/regional/berlin/berlin-aktuell/kongress-geplant-berliner-cdu-vermietet-nicht-an-juden-hasser-87550904.bild.html>,
extremist and a “hate summit
<https://www.bild.de/regional/berlin/berlin-aktuell/kongress-geplant-berliner-cdu-vermietet-nicht-an-juden-hasser-87550904.bild.html>
.”

This has prompted calls to ban the conference, which German
authorities are reportedly
considering
<https://www.tagesspiegel.de/berlin/antisemiten-der-welt-wollen-sich-in-berlin-versammeln-behorden-prufen-verbot-des-israelhasser-kongresses-11381557.html>.
German media have also speculated
<https://www.tagesspiegel.de/berlin/kongress-der-terrorverharmloser-in-berlin-diese-redner-sollen-fur-die-israelfeindliche-veranstaltung-zugesagt-haben-11363842.html>
that authorities might issue entry bans on international speakers,
including this writer.
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