Germany has denied Nicaragua’s allegation that it has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.

At the International Court of Justice (ICJ) in The Hague yesterday (Tuesday), the director-general for legal affairs at the German Foreign Office, Tania von Uslar-Gleichen, told the panel of judges that Germany firmly rejected Nicaragua’s accusation.

Nicaragua was taking a one-sided view of the conflict in question and failed to properly appreciate both the facts and the law in this situation, Von Uslar-Gleichen said.

Von Uslar-Gleichen said Germany was asking the ICJ to reject Nicaragua’s request for the indication of provisional measures and to remove the case from the court’s General List.

She said that Nicaragua’s request to the court had no basis in law or fact and there were no legal reasons to justify the requested provisional measures.

Nicaragua says that Germany has provided political, financial, and military support to Israel while fully aware that the military equipment would be used in the commission by Israel of “great breaches of international law” and in disregard of its own obligations.

It is calling on the ICJ to indicate provisional measures, including ordering Germany to immediately suspend its aid to Israel, including military equipment, “in so far as this aid may be used in the violation of the Genocide Convention, international humanitarian law, or other peremptory norms of general international law”.

Nicaragua says that the military equipment provided by Germany has enabled Israel to perpetrate genocidal acts and other atrocities.

Counsel for Germany questioned how Germany could be complicit in a case of genocide when it had not yet been established that Israel had committed genocide.

In her initial remarks, Von Uslar-Gleichen emphasised the responsibility Germany felt towards Israel because of the Holocaust and honed in on the attack by Hamas on October 7 last year.

Von Uslar-Gleichen told the ICJ judges that Germany had learned from its past and this included the responsibility for one of the most horrific crimes in human history, the Shoah.

“Our history is the reason why Israel’s security has been at the core of German foreign policy,” she said.

Von Uslar-Gleichen cited former chancellor Angela Merkel’s speech to the Knesset on March 18, 2008, in which, Von Uslar-Gleichen said, Merkel spoke of Germany’s special historical responsibility for Israel’s security as part of Germany’s “raison d’état”.

Merkel’s speech was made on the 60th anniversary of the founding of the State of Israel. She told the Knesset: “As far as the Holocaust is concerned, Germany’s historical responsibility is part of my country’s raison d’état. This means that Israel’s security is never negotiable for me as German Chancellor.”

In parliament on October 12 last year, the German Chancellor, Olaf Scholz, echoed Merkel’s statement when he said: “Our own history, our responsibility deriving from the Holocaust, makes it our permanent duty to stand up for the existence and security of the State of Israel. This responsibility guides us.”

Von Uslar-Gleichen said yesterday: “Indeed this responsibility must continue to guide us because Israel’s right to exist continues to be denied.”

Germany had always been an advocate for the promotion and strengthening of international humanitarian law and humanitarian principles, Von Uslar-Gleichen said.

“This also guides our response to the conflict at stake here. Germany is doing its utmost to live up to its responsibility vis-a-vis both the Israeli and the Palestinian people,” she told the court.

Germany only supplied arms on the basis of detailed scrutiny, a scrutiny that not only respected but far exceeded the requirements of international law, Von Uslar-Gleichen said.

She told the court that Germany was the largest individual donor of humanitarian assistance to the Palestinians.

“Germany has provided significant support to Palestinians living in the occupied Palestinian territories for decades,” she said.

“To date, Germany has bilaterally supported the economic and social development of the Occupied Palestinian Territories and administrative capacity building with a total of 1.5 billion euro.

“Germany recognises the right of Palestinians to self-determination to be exercised in the territories that came under occupation in 1967. It has firmly condemned attempts to undermine this two-state solution, such as through the expansion of illegal settlements.”

Von Uslar-Gleichen said that Germany remained committed to a two-state solution “as the only path towards a lasting peace in the Middle East”.

Professor of international law Christian Tams told the ICJ judges that Nicaragua’s factual claims in its application to the court did not withstand scrutiny and were based on speculation and at times misrepresentation.

As regards military exports to Israel, Tams said that, for every licence granted, the German government carefully assessed whether there was a clear risk that the item would be used in the commission of genocide, crimes against humanity, or grave breaches of the Geneva conventions.

Tams said Nicaragua’s references to artillery shells or munitions [provided to Israel by Germany] that would be used in Gaza simply bore no relation to reality and Germany rejected them.

He said that, since October 2023, Germany had granted four licences for war weapons for export to Israel, but Nicaragua completely misrepresented what they covered. Three licences concerned items for tests and training and were unsuitable for use in combat operations, he said.

“The fourth licence, which was in the immediate context of Hamas massacres, concerned the export of 3,000 portable anti-tank weapons,” Tams said.

One licence had been granted for a further military item – a submarine – but it was not yet approved for export as war weapons required two licences, he added.

Tams said that 98% of the licences granted by Germany after October 7, 2023, did not concern war weapons but other military equipment. More than 25% of this equipment was designed for eventual re-importation and use by the German armed forces, he said.

Tams told the ICJ judges that. after the Hamas attacks in Israel, Germany decided to prioritise pending licence requests, but, after October, the total volume of Germany’s exports to Israel had dropped sharply.

He said the most recent licence, granted on March 8, 2024, was for a slip ring for installation in a radar system.

“This is not an item that could plausibly be used to commit war crimes,” Tams said. A limited number of requests for exports remained under review by the German authorities “in light of the developing situation and of the potential impact that the particular item might have”, he added.

Tams said the two Heron drones referred to by Nicaragua were owned by Israel, not Germany. “At no point have they left Israel,” he said. “German soldiers were trained on them while in Israel under a lease agreement.” The two drones were unarmed after October 7, Tams said.

Counsel for Germany Samuel Wordsworth (pictured left) focused heavily on the question of jurisdiction. He said Germany’s position was that no order on provisional measures could be made by the court, “given the absence of prima facie jurisdiction and/or a prima facie basis for any exercise of jurisdiction”.

He added: “Nicaragua must establish that at least prima facie the court is able to exercise jurisdiction and it cannot do so, given the manifest absence of an indispensable third party, namely Israel.”

In his presentation, Italian law professor Paolo Palchetti said it was not because of a lack of financing that humanitarian aid was not arriving to the population of Palestine.

“The true problem is that there are restrictions to the entry and distribution of this humanitarian aid,” he said.

There was an urgent need to increase the capacity and number of open land crossing points into Gaza, Palchetti said.

“In these circumstances, it is useless to focus on the suspension of our financing of UNRWA,” he added.

It was clear, Palchetti said, that, if there were restrictions on the entry and distribution of humanitarian aid that might cause an “imminent risk” to the rights of the Palestinians in Gaza, this risk was not attributable to Germany.

Germany had never had any control over the territory and had many times, including at the highest levels, urged Israeli officials to facilitate the entry of humanitarian aid, he added.

Peters said in her presentation: “The situation in Gaza is unbearable. Too many lives have been destroyed; too many life plans shattered. We all want this to end, but this type of strategic litigation between proxies will not bring us closer to this goal.”

She said the case brought by Nicaragua was the first case in the ICJ’s history in which provisional measures were sought against a state that stood accused of complicity in, and lack of vigilance and prevention of, acts of another state that was not party to the proceedings.

This attempt to request provisional measures against one state by reference to the conduct of another state stretched the “plausibility assessment” to breaking point in an unprecedented manner, Peters said.

“This court will first have to find on the basis of evidence that there are plausible facts that establish plausible violations on the part of Israel. Second, the court will have to find that there are plausible facts that establish plausible violations on the part of Germany,” she told the judges.

“Here, the court will especially have to establish whether there are plausible objective and subjective links between the conduct of Germany and the conduct of the absent third state, Israel.”

Peters said Nicaragua had offered no evidence as to how any of the military equipment from Germany could have made a significant contribution to an alleged genocide or to breaches of international humanitarian law.

“Given Germany’s stringent licensing standards that scrutinised precisely these risks, there is no indication that German equipment would have naturally or normally lead to plausible violations of international law by Israel,” she said.

It could take the ICJ years to issue a final ruling on Nicaragua’s case against Germany, but the court is expected to decide whether to order provisional measures within weeks.

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