“We fear that this already catastrophic situation, as many Palestinians celebrate the holy month of Ramadan – a period that should honor peace and tolerance – will slide deeper into the abyss if Israel launches its threatened military offensive on Rafah, where 1.5 million people have been displaced in deplorable, sub-human conditions.
Any ground assault on Rafah would cause massive loss of life and increase the risk of further atrocities. This must not be allowed to happen. We also fear that further Israeli restrictions on Palestinian access to East Jerusalem and Al-Aqsa Mosque during Ramadan could further inflame tensions.
The UN High Commissioner for Human Rights reiterates that there must be an immediate end to this conflict and that the killing and destruction must stop.
Spokesperson, UN High Commissioner for Human Rights, Geneva, “Fears of Gaza catastrophe as the brutal conflict enters the sixth month”, official statement, 8 March 2024
On 15 March 2024, the International Court of Justice (ICJ) announced that hearings in the case brought by Nicaragua against Germany have been set for 8 and 9 April before the International Court of Justice in The Hague.
This is a case filed by Nicaragua on 1 March 2024, accompanied by a request for urgent provisional measures, accusing Germany of failing to prevent genocide in Gaza, using the 1948 Convention on the Prevention and Punishment of Genocide (a multi-party convention to which both are states parties) as the basis for jurisdiction.
The ICJ’s official press release on the establishment of these hearings is available in English and French.
Brief background
This case brought by Nicaragua stems in large part from the case originally brought by South Africa against Israel.
As will be recalled, South Africa first filed an application with the ICJ against Israel on 29 December 2023, to which the ICJ responded by an order on 26 January 2024 (see the official text of this order in English and French and in particular the order to Israel in operative paragraph 86).
Subsequently, South Africa
– a second application on 12 February 2024, to which the ICJ responded on 16 February in a simple press release (see text in English and French), stating that for the time being no further action was necessary beyond the measures ordered against Israel on 26 January;
– a third application from South Africa (a full and detailed reading of which is recommended), submitted on 6 March 2024, can be consulted at this official ICJ link in English, to which the ICJ has not yet responded.
It should be recalled that Nicaragua, like more than 150 other States, expressed its satisfaction and support for the South African complaint submitted to the international judicial system (see Swiss Info press release of 10 January 2024). In Latin America, Bolivia was the first state to express its support for the South African claim in an official diplomatic communiqueé on 7 January (see full text of the communiqueé).
It should also be noted that Nicaragua has not had diplomatic relations with Israel since June 2010, due to the attack by the Israeli army on a Turkish humanitarian flotilla (see article in El Tiempo / Colombia of 1 June 2010): a situation that Nicaragua shares with other Latin American states, with Bolivia (October 20-23) and Belize (November 20-23) being the last two states to break off diplomatic relations with Israel (Note 1).
Nicaragua in support of South Africa and the civilians under siege in Gaza
About other states supporting South African diplomacy against Israel, we have already had the opportunity in a previous note to explain the scope of the request for intervention submitted by Nicaragua on 22 January and published by the ICJ on 8 February 2024: see our previous note entitled “Gaza / Israel: on Nicaragua’s recent request for intervention before the International Court of Justice (ICJ) in South Africa’s case against Israel”.
However, in addition to this request to intervene as a third state in the dispute between South Africa and Israel, Nicaragua has also applied with the ICJ, this time against Germany. As mentioned above, this application was accompanied by an urgent request for provisional measures.
This initiative was formally registered on 1 March (see the official text of the complaint), with Nicaragua claiming that Germany’s actions and official statements in favor of Israel violate the obligations that every state party to the 1948 Genocide Convention must respect, including the obligation to prevent a new genocide, especially if it is a state that exports arms to Israel.
The lawsuit also challenges Germany’s decision to suspend indefinitely its contributions to the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), a decision taken along with several other states following Israeli accusations against the UN agency: interestingly, these Israeli accusations came just hours after the announcement of the ICJ’s decision on 26 January. A coincidence of timing or a subtle maneuver to divert attention from Israel’s resounding diplomatic failure in The Hague?
As of 1 March, Israel had still not sent the “irrefutable evidence” to the UN investigators (see Guardian report). In this context, it is worth noting that Sweden and Canada announced on 10 March that they would resume funding this important humanitarian agency (see BBC report), as did Australia, as announced by the Australian authorities on 15 March (see AP report). Norway, for its part, had indicated that it would not suspend its contributions until “hard evidence” of the alleged involvement of its staff in the 7 October Hamas attack was made public (see Times of Israel report of 1 February). An initial New York Times article of 3 March (see text) and a BBC report of 11 March note that Israel’s alleged “damning evidence” against several UNRWA staff members was obtained through confessions after threats, intimidation, torture, and all manner of ill-treatment. This contrasts with the casualness with which the initial decision to suspend contributions to UNRWA by Germany, the US, and other states was taken on the sole basis of information provided by Israel (note 2).
About Nicaragua and arms transfers to Israel, it should be noted that a month earlier, on 1 February, an official communiqueé from Nicaragua warned Germany, Canada, the Netherlands, and the United Kingdom against such an action: see the text of this communiqueé, reproduced in this link from the Nicaraguan media El19Digital. This document, attached to the Nicaraguan complaint, details the content of Nicaragua’s initial letter to Germany (pages 2-9).
It seems that, at least for the time being, it is against Germany that Nicaragua has decided to concentrate its actions before the judge in The Hague. The exact reasons for this choice among the states that supply arms to Israel are not made explicit in the letter.
In the case of the Netherlands, the Israeli authorities were informed on 12 February of a decision by a national court ordering an immediate halt to the export of components for F-35 fighter jets to Israel from the Netherlands (see BBC report of 12 February). In the case of the UK, it was indicated on 21 February (see Guardian report) that UK arms exports to Israel would be suspended if Israel launched its offensive on Rafah. In the case of Canada, it was reported on 14 March (see CBC News report) that an Israeli request for military vehicles – possibly of an urgent nature – was being handled by the Canadian authorities in an unprecedented manner.
Arms transfers to Israel before an international judge who called the risk of genocide in Gaza “plausible”.
A recent EuroNews press release of 11 March on the global arms trade states:
“The US and Germany accounted for 69% and 30% respectively of arms imports by Israel, which is currently waging a deadly war against Hamas in Gaza that has killed more than 30,000 people, most of them civilians.”
To date, we have not had access to any technical report or comparative table of a public nature, published in a specialized center on arms transfers, on the exact origin of the weapons, ammunition, and electronic components that Israel imports to equip its army (and we thank our esteemed readers for referring it to the author if they know of its existence by sending a message to: cursor (a)gmail.com). If the above information is confirmed, Germany would be the second largest arms supplier to Israel after the United States.
In its complaint against Germany, Nicaragua states (paragraph 53)
“53. /By the end of 2023, the German government had approved military exports to Israel worth 326,505,156 euros. In January 2024, German media reported that Israel had requested tank shells, specifically 10,000 120-millimetre Rheinmetall precision rounds. Der Spiegel reported that Germany had agreed to supply the request from its stocks to meet the “urgency”. According to the German government, “the export licenses granted between January 2024 and 15 February 2024 concerned military equipment worth 9,003,676 euros”.
It should be noted that the arms trade is a specific area of international law, with ramifications in domestic law when there is a risk of abuse, and with a legal regime that entails domestic responsibilities for arms exporting states, as well analyzed in a paper published in 2021, which concludes (page 53):
“Legal challenges are gradually becoming a pragmatic response to manifestly unlawful decisions by arms-exporting states. Governments should recognize this shift and the possibility that their arms export decisions will increasingly be challenged in domestic courts. Their decisions must be able to withstand judicial scrutiny and comply with obligations under both international and domestic law” (note 3).
It is worth noting that the pressure on the US executive branch increased on 6 March when the Washington Post published a report entitled “U.S. floods arms into Israel despite mounting alarm over war’s conduct” (the full report is recommended reading), revealing the total opacity of arms transfers from the United States to Israel since 7 October.
From a legal point of view, it is worth noting that neither Israel nor the United States are parties to the 2013 Arms Trade Convention, which has 113 signatories (see official status of signatures and ratifications). Within the United Nations Security Council, of the five permanent members, only the United States and Russia continue not to comply with the obligations contained in this multilateral treaty.
With regard to the United States and the opacity mentioned above, we must add the limited understanding that the American public has of the reality of life in Gaza, and the biased way in which the inhuman drama being lived in Gaza is reported in the United States: in this regard, we recommend listening to this recent (and very complete) interview by Democracy Now.
Finally, in the case of France, a very precise question put to the French Ministry of Defense by a senator on 7 March 2024 concerning the use of “ML4” military components exported to Israel (see question) is still awaiting an answer. An earlier, more general question from November 2023 was answered in February 2024. The answer concluded (see link) that:
“La France a rappelé le droit d’Israel à se défendre, qui doit s’exercer dans le respect du droit international humanitaire. Respect for human rights and international humanitarian law by the recipient country, as well as the consequences for peace, security, and regional stability, are fully taken into account in the CIEEMG’s examination of exports of war material. This strict analysis has not led to an overall suspension of the flow of exports of war material from 7 October 2023.
Nicaragua’s last request will not end soon
In Nicaragua’s application to the ICJ, and in particular in the final part of its application in which it asks the ICJ to order urgent provisional measures against Germany, Nicaragua makes several requests to the ICJ judges, namely (paragraph 101)
“…, Nicaragua respectfully requests the Court, as a matter of extreme urgency, pending the Court’s decision on the merits of this case, to order the following provisional measures against Germany for its participation in the ongoing plausible genocide and serious violations of international humanitarian law and other peremptory norms of general international law in the Gaza Strip:
(1) Germany shall immediately suspend its assistance to Israel, in particular its military assistance, including military equipment, insofar as such assistance may be used in violation of the Genocide Convention, international humanitarian law or other peremptory norms of general international law, such as the right of the Palestinian people to self-determination and not to be subjected to an apartheid regime;
(2) Germany must immediately make every effort to ensure that arms already supplied to Israel are not used to commit genocide, to contribute to acts of genocide or to be used in a manner that violates international humanitarian law;
(3) Germany must immediately do everything in its power to comply with its obligations under humanitarian law;
(4) Germany must reverse its decision to suspend funding to UNRWA as part of fulfilling its obligations to prevent genocide and the violation of the humanitarian rights of the Palestinian people, including the obligation to do everything possible to ensure that humanitarian aid reaches the Palestinian people, particularly in Gaza;
(5) Germany must contribute to putting an end to the grave violations of peremptory norms of international law by ceasing its support, including the supply of military equipment to Israel, which may be used to commit serious crimes under international law, and by continuing its support for UNRWA, on which this organization has relied and on which its activities have been based.”
Since Germany is not Israel’s only supplier of arms or electronic components for military purposes, Nicaragua’s petition should be of interest to many other states that are parties to the 1948 Genocide Convention; and, incidentally, it should raise concern (in Germany) of groups of social organizations which, unless we are mistaken, have not been concerned to activate the legal mechanisms provided for when German arms are exported to destinations where their misuse against defenseless civilian populations is evident (Note 4).
Israel’s futility against the civilian population of Gaza
The latest UN situation report as of 15 March 2024 (see report) points to the level of senselessness that Israel has reached by ignoring the ICJ’s order since 26 January 2024, stating that
“Intense Israeli bombardment and ground operations, as well as heavy fighting between Israeli forces and Palestinian armed groups, continue to be reported throughout much of the Gaza Strip, particularly in the Hamad area of Khan Younis, resulting in further civilian casualties, displacement and destruction of homes and other civilian infrastructure.
Between the afternoon of 14 March and 10:30 on 15 March, 149 Palestinians were killed and 300 Palestinians were injured, according to the Gaza Ministry of Health (MoH). Between 7 October 2023 and 10:30 on 15 March 2024, at least 31,490 Palestinians were killed and 73,439 Palestinians were injured in Gaza, according to the MoH in Gaza.
Between the afternoons of 14 and 15 March, no Israeli soldiers were killed in Gaza, according to the Israeli military. As of 15 March, 247 soldiers have been killed and 1,476 injured in Gaza since the beginning of the ground operation, according to the Israeli military. In addition, more than 1,200 Israelis and foreigners have been killed in Israel, most of them on 7 October. As of 15 March, the Israeli authorities estimate that 134 Israelis and foreigners remain in captivity in Gaza, including those whose bodies are being withheld”.
Regarding the death and injury figures provided by the United Nations, we refer to an answer we should have given to the Israeli Ambassador to Costa Rica, in the framework of a public forum organized by the University of Costa Rica (UCR) on 13 March, entitled “History and Disinformation: Critical perspectives on the Gaza/Israel conflict”: in a rather questionable manner, Israel’s highest representative in Costa Rica considered it useful and opportune to “warn” the organizers of the event, hours before the event, of the lack of validity of the figures circulating on the number of dead and wounded in Gaza (see our response in the video of the activity, at mn. 1:25:11). It is worth noting that 24 hours after the forum, it was reported that the rector of the UCR had refused an invitation from the same Israeli diplomat to meet her at her home (see Semanario Universidad, 14 March 2024).
In conclusion
The haste with which the ICJ has convened the hearings in the case of Nicaragua vs. Germany corresponds to the total urgency of the inhuman drama to which Israel has subjected the Palestinian civilian population since the afternoon/evening of 7 October. Let us note that these hearings will begin just 24 hours after 6 months from 7 October 2023.
From a legal point of view, it should be noted that Germany is a State Party to the 2013 Arms Trade Convention (see full text), Article 6(3) of which reads as follows:
“A State Party shall not authorize the transfer of conventional arms covered by Article 2, paragraph 1, or of items covered by Articles 3 or 4, if, at the time of authorization, it knows that the arms or items could be used to commit genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, attacks directed against civilian objects or protected civilians, or other war crimes as defined in international agreements to which it is a party” (emphasis added).
Given that the 1948 Genocide Convention has been ratified by 153 states (see official status of signatures and ratifications), and that the ICJ ruling of 26 January 2024 refers to a “plausible” risk of genocide in Gaza, the fact that only Nicaragua has initiated such action against states that export arms to Israel raises the question: what can everyone else expect?
Beyond Nicaragua’s action against Germany, the use of international justice to curb Israel’s impulses in the Occupied Palestinian Territories is an appropriate avenue, given the defiant attitude of the current Israeli authorities.
About the role of international justice to mediate in the conflict between Palestine and Israel, in one of the interventions recently made by a French jurist of great trajectory before the judges of the ICJ on behalf of the Organization of Islamic Cooperation (OIC) – whose complete reading is recommended – in the framework of a consultative procedure initiated in December 2022, it is stated in its conclusions (see full text and video reproduced by the AURDIP):
“30. Et pour finir, je voudrais, Monsieur le président, Mesdames et Messieurs les juges, vous citer les propositions du contre-amiral israélien Ami Ayalon, qui a dirigé pendeurs années le service du renseignement intérieur israélien. His personal journey has led him to question the concept of the enemy and to assess the impasse in which Israel finds itself, having chosen violent repression to accompany its refusal of a political solution. He concluded an interview with a French newspaper a few weeks ago by saying: “The international community should play a useful role. We need someone from outside to remind us of our mistakes.
– Notes – – – –
Note 1: Cuba has had no relations with Israel since 1967. Venezuela, for its part, broke off diplomatic relations with Israel in January 2009, following the dramatic military offensive in Israel between December 2008 and January 2009 (see press release from El Pais/Spain). Like Venezuela in 2009, Bolivia also broke off diplomatic relations with Israel, officially resuming them at the end of November 2019 (see press release from Turkish news agency TRT), only to suspend them on 31 October 2023 (see official Bolivian communiqueé of the same date). On 14 November 2023, Belize decided to take a similar measure to Bolivia (see official communiqueé).
Note 2: The New York Times reported on 28 January that (see full article): “Two Western officials, speaking on condition of anonymity, confirmed that they had been briefed on the contents of the dossier in recent days but said they had not been able to verify the details. Although the United States has yet to corroborate the Israeli allegations, American officials say they found them credible enough to justify suspending aid. One would expect journalists and investigators to conduct a thorough investigation to confirm the exact date of the “last few days” mentioned in this extract. This to find out whether, beyond a mere calendar coincidence, this was a communication operation by Israel aimed at diverting the attention of the international community to the scope of the ICJ order read out in The Hague on 26 January 2024. It would not hurt to investigate based on what the US President described on 30 January as “highly credible” evidence (see Times of Israel report).
Note 3: See ATT Expert Group, Domestic Accountability for International Arms Transfers: Law, Policy and Practice, Saferworld, 2021, 54 pages. Text is available by clicking on “download” here. See also, in relation to the European Union’s regional regulations on the subject, MERLIN J.-B., “Les contentieux nationaux relatifs à la vente interétatique d’armes”, Vol. 65 Annuaire Français de Droit International, Année (2019) pp. 71-103. The full text of this article is available here. For Canada and the debate on the illegality of arms sent to the Saudi-led coalition in the civil war in Yemen, see AZAROVA V., DAVID E., TURP D., WOOD B., Opinion on the International Legality of Arms Transfers to Saudi Arabia, the United Arab Emirates and Other Members of the Coalition Militarily Involved in Yemen, IPIS, 102 pages, December 2019. Full text is available here.
Note 4: In October 2018, Germany suspended its arms exports to Saudi Arabia due to the Saudi-led coalition’s violations against Yemeni civilians in Yemen and the brutal murder of a Saudi journalist in the Saudi consulate in Turkey (see DW report). A few years earlier, in February 2011, France decided to suspend all arms exports to Egypt in the face of the brutal repression of protesters (see Le Monde report). More recently, in June 2020, it was Spain that decided to suspend the delivery of 600,000 cartridges to Nicaragua due to the disproportionate repression of demonstrators by the Nicaraguan police authorities (see Mesa Redonda report).
