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<h1 class="gmail-reader-title">Germany next up to face Gaza genocide charges in The Hague</h1>
<p class="gmail-node__submitted">
<span class="gmail-field gmail-field-author"><a href="https://electronicintifada.net/people/ali-abunimah">Ali Abunimah</a></span>
<span class="gmail-field gmail-field-blog"><a href="https://electronicintifada.net/blog/rights-and-accountability">Rights and Accountability</a></span>
<span class="gmail-field gmail-field-publication-date"><span class="gmail-date-display-single">25 March 2024</span></span> </p>
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<p>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.</p><small>
<span>Picture-Alliance/DPA</span></small>
<p>On April 8 and 9, the International Court of Justice will once again hold hearings on the Israeli genocide in Gaza.</p>
<p>This time the judges in The Hague will be listening to arguments in the case brought by Nicaragua against Germany.</p>
<p>The Central American nation <a href="https://www.icj-cij.org/sites/default/files/case-related/193/193-20240301-pre-01-00-en.pdf">accuses</a>
Berlin of violating its obligations under the 1948 Genocide Convention
and other “intransgressible principles of international humanitarian
law,” including the Fourth Geneva Convention.</p>
<p>Nicaragua <a href="https://www.icj-cij.org/sites/default/files/case-related/193/193-20240301-app-01-00-en.pdf">argues</a>
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.”</p>
<p>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.”</p>
<p><a href="https://www.dw.com/en/nicaragua-says-germany-facilitates-genocide-by-aiding-israel/a-68422846">According</a> to German government-funded media, Berlin “is one of the largest arms exporters to Israel” alongside the United States.</p>
<p>Germany is UNRWA’s <a href="https://www.aljazeera.com/news/2024/1/28/which-countries-have-cut-funding-to-unrwa-and-why">second biggest donor</a>, behind the United States.</p>
<p>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.</p>
<p>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.</p>
<p>The hearings will come after the ICJ in January <a href="https://electronicintifada.net/blogs/maureen-clare-murphy/world-court-orders-israel-halt-gaza-genocide">ordered Israel</a>
to halt all potentially genocidal acts – including any killing of
Palestinians – pending its consideration of South Africa’s genocide case
against Israel.</p>
<p>So far there has been little reaction from the German government, however one <a href="https://www.freiheit.org/southeast-and-east-asia/focus/about-us">German government-funded</a> agency that purports to promote “freedom” and “human rights” around the world <a href="https://www.freiheit.org/human-rights-hub-geneva/nicaragua-vs-germany-political-red-herring">published an article</a> smearing Nicaragua and accusing it of trying to divert attention from its own alleged human rights abuses.</p>
<p>This mimics the well-worn Israeli tactic of <a href="https://www.politico.eu/article/israel-accuses-south-africa-of-being-the-legal-arm-of-hamas/">smearing South Africa</a> and all other critics, rather than addressing the substance of their criticisms.</p>
<h2>Why Germany?</h2>
<p>As Nicaragua notes in its submission to the court, German leaders
assert regularly that Israel’s “security” is one of their highest
concerns.</p>
<p>Olaf Scholz, the German chancellor, <a href="https://www.bundesregierung.de/breg-de/service/newsletter-und-abos/bulletin/regierungserklaerung-von-bundeskanzler-olaf-scholz-2230150">told the Bundestag</a>
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.”</p>
<p>It is a sentiment that Scholz, like German leaders before him, repeats constantly.
</p>
Germany’s elites <a href="https://electronicintifada.net/blogs/ali-abunimah/palestinians-have-had-enough-europes-holocaust-hypocrisy">hypocritically and perversely</a> justify this <a href="https://electronicintifada.net/blogs/ali-abunimah/germany-affirms-support-famine-and-extermination-gaza">unconditional support</a>
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.
<p>At the same time, German authorities <a href="https://electronicintifada.net/content/video-how-germany-cracks-down-palestinians-within/44046">brutally crack down</a> on almost any dissent against their policy of unconditional support for Israel.</p>
<p>Such repression is necessary from the perspective of German leaders
because Israel’s vengeful Berlin-backed campaign of extermination and
destruction in Gaza is <a href="https://www.yahoo.com/news/survey-almost-70-germans-critical-164624463.html">opposed</a> by an overwhelming majority of the German public.
</p>
Germany’s <a href="https://electronicintifada.net/blogs/ali-abunimah/germany-supports-genocide-again">complete inability</a> to stop perpetrating or aiding genocides makes it obvious why Nicaragua would seek to hold it accountable at the world court.
<p>But Germany is not the only country helping Israel’s effort to murder Palestinians through bombing and deliberate starvation.</p>
<p>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 <a href="https://voelkerrechtsblog.org/germanys-strong-public-support-for-israel-has-made-the-country-the-main-target/">opted</a> <a href="http://www.preventgenocide.org/law/convention/reservations/">out</a>
of the provision that established the International Court of Justice as
the forum for resolving disputes about accusations of genocide.</p>
<h2>Why Nicaragua?</h2>
<p>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.</p>
<p>The governing Sandinista liberation movement has longstanding ties of
solidarity and struggle with Palestinians dating back to the 1960s.</p>
<p>At the same time, Israel <a href="https://merip.org/1986/05/israel-in-central-america/">armed and supported</a> the savage Washington-backed Somoza dictatorship that the Sandinistas overthrew in 1979, just as Tel Aviv <a href="https://www.washingtonpost.com/archive/politics/1982/05/29/palestinians-challenging-israel-for-influence-in-central-america/c88ee3e5-9c3a-4614-81d2-6c11365f75b1/">armed and trained</a> other US client regimes in Central America, <a href="https://electronicintifada.net/content/israels-shadowy-role-guatemalas-dirty-war/19286">helping</a> them to <a href="https://azvsas.blogspot.com/2017/02/israels-role-in-guatemalan-genocide.html">commit atrocities</a> including the <a href="https://www.usip.org/publications/1997/02/truth-commission-guatemala">genocide in Guatamala</a>.</p>
<p>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 <a href="https://www.icj-cij.org/case/70">upheld</a> Nicaragua’s claims.</p>
<h2>Did Nicaragua scare Canada into freezing new arms sales?</h2>
<p>In February, following the ICJ decision to impose provisional measures in South Africa’s case against Israel, Nicaragua sent <a href="https://english.almayadeen.net/news/politics/nicaragua-urges-4-western-nations-to-end-complicity-in-gaza">diplomatic notes</a>
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.”</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>Earlier this month – just a week after Nicaragua filed its ICJ case against Germany – Canada <a href="https://apnews.com/article/canada-unrwa-gaza-israel-aid-suspended-hamas-1ed2cdb6c9bf293775320c0b2d37d128">announced</a> that it was restoring funding to UNRWA, <a href="https://electronicintifada.net/blogs/maureen-clare-murphy/funding-freeze-could-halt-unrwa-operations-end-month">suspended</a> in the wake of <a href="https://www.reuters.com/world/no-evidence-israel-back-unrwa-accusations-says-eu-humanitarian-chief-2024-03-14/">baseless</a> Israeli allegations against the agency’s staff.</p>
<p>Canada, Sweden, Australia, <a href="https://twitter.com/MFAIceland/status/1770180072734855273?s=20">Iceland</a> and <a href="https://www.reuters.com/world/finland-resume-funding-unrwa-2024-03-22/">Finland</a> are so far the <a href="https://www.reuters.com/world/middle-east/saudi-arabia-boosts-funding-unrwa-by-40-million-targeting-gaza-relief-2024-03-20/">only ones</a> to restore their UNRWA funding from among the 18 countries, led by the United States, which paused their contributions.</p>
<p>And last week, Ottawa <a href="https://www.reuters.com/world/canadian-freeze-new-arms-export-permits-israel-stay-2024-03-20">announced</a> that it had not issued any new <a href="https://electronicintifada.net/blogs/nora-barrows-friedman/canadas-arms-exports-israel-skyrocket">arms export</a>
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.</p>
<p>This came after the Canadian parliament <a href="https://www.cjpme.org/pr_2024_03_18_parliament_vote_arms_exports">passed</a>
with a big majority a nonbinding resolution calling on the government
to “cease the further authorization and transfer of arms exports to
Israel.”</p>
<p>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.</p>
<p>They continue to push for a total embargo on all arms transfers to Israel.
</p>
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.
<p>Tel Aviv’s <a href="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">enraged reaction</a>
suggests it is worried that Ottawa has set a precedent others will
follow, or that Canada itself may impose more severe restrictions.</p>
<p>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.</p>
<p>Despite marketing itself as a multicultural haven and champion of human rights, Canada has had to <a href="https://www.theglobeandmail.com/canada/british-columbia/article-trudeau-accepts-indigenous-inquirys-finding-of-genocide/">confess</a> – albeit reluctantly and belatedly – to the genocide of its Indigenous people.</p>
<p>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.
</p>
<h2>Is Nicaragua’s case on firm legal ground?</h2>
<p>Some experts are warning that Nicaragua’s case could face a fatal
hurdle – a legal principle called the indispensable third-party rule.</p>
<p>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.</p>
<p>“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?” <a href="https://voelkerrechtsblog.org/germanys-strong-public-support-for-israel-has-made-the-country-the-main-target/">argues</a>
Stefan Talmon, professor of international law and director at the
Institute for Public International Law at the University of Bonn in
Germany.</p>
<p>“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.”</p>
<p>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.</p>
<p>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.</p>
<p>Pointing to the <a href="https://electronicintifada.net/blogs/ali-abunimah/court-orders-netherlands-stop-sending-warplane-parts-israel">recent order</a> by a court in The Hague that the Dutch government stop supplying Israel with spare parts for its F-35 warplanes, Longobardo <a href="https://www.ejiltalk.org/alleged-violations-of-the-duty-to-ensure-respect-for-ihl-and-the-monetary-gold-principle/">notes</a>
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 <em>clear risk</em> that this might be the case.”</p>
<p>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.</p>
<p>Other legal experts have <a href="https://law.anu.edu.au/interventions-and-inadmissibility-nicaragua-v-germany-monetary-gold-principle-and-genocide">weighed</a> <a href="https://verfassungsblog.de/conspicuously-absent/">in</a> on the debate and there are <a href="https://twitter.com/AdHaque110/status/1763990524665503983">arguments</a>
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.
</p>
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.
<p>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.”</p>
<p>“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 <em>and</em> is violating its own obligations to prevent genocidal acts,” Akram said.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<h2>Will Berlin Palestine conference be banned?</h2>
<p>Even as German government lawyers prepare to defend their position in
The Hague, Berlin’s repression against supporters of Palestinian rights
continues to mount.</p>
<p>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.
</p>
The invited <a href="https://palaestinakongress.de/">speakers</a> include the Palestinian German lawyer Nadija Samour who <a href="https://electronicintifada.net/blogs/ali-abunimah/german-leaders-face-criminal-complaint-over-gaza-genocide">recently filed a genocide case</a> against German leaders with national prosecutors; <a href="https://apnews.com/article/ghassan-abu-sitta-gaza-war-crimes-testimony-c0a40d6edc02bb0b91c94eb39cd8110d">Ghassan Abu Sitta</a>,
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.
<p>German <a href="https://www.sueddeutsche.de/politik/extremismus-berlin-senat-moegliches-verbot-von-palaestina-kongress-noch-unklar-dpa.urn-newsml-dpa-com-20090101-240318-99-377858">media</a> are smearing the gathering as <a href="https://www.bild.de/regional/berlin/berlin-aktuell/kongress-geplant-berliner-cdu-vermietet-nicht-an-juden-hasser-87550904.bild.html">anti-Semitic</a>, extremist and a “<a href="https://www.bild.de/regional/berlin/berlin-aktuell/kongress-geplant-berliner-cdu-vermietet-nicht-an-juden-hasser-87550904.bild.html">hate summit</a>.”</p>
<p>This has prompted calls to ban the conference, which German authorities are <a href="https://www.tagesspiegel.de/berlin/antisemiten-der-welt-wollen-sich-in-berlin-versammeln-behorden-prufen-verbot-des-israelhasser-kongresses-11381557.html">reportedly considering</a>. German media have also <a href="https://www.tagesspiegel.de/berlin/kongress-der-terrorverharmloser-in-berlin-diese-redner-sollen-fur-die-israelfeindliche-veranstaltung-zugesagt-haben-11363842.html">speculated</a> that authorities might issue entry bans on international speakers, including this writer.</p><br>
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