A Complex Relationship

In Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), Nicaragua took Germany to the International Court of Justice (ICJ) for alleged violations not only of international humanitarian law, but also of the Genocide Convention (GC), in particular the obligation to prevent genocide and the prohibition of complicity in genocide.

In the oral proceedings on the indication of provisional measures, Germany invoked the so-called Monetary Gold Principle (“MGP”), arguing that the Court is not “able to exercise jurisdiction […] given the manifest absence of an indispensable third party, namely Israel” (CR 2024/16 (Mr. Wordsworth), at 23). While the Court did not rule on the applicability of the MGP in its provisional measures order of 30 April 2024, this question will be key in the next stage of the proceedings. Despite fundamental criticism of the MGP (see e.g. Mollengarden and Zamir), it is unlikely that the Court will abandon it altogether. However, the Court should carefully scrutinise whether to apply the MGP in Alleged Breaches.

This post examines three specific features of the GC, which might collide with the MGP. It argues that the third-party link inherent in many primary norms of the GC and the intention of the states parties expressed in Art. IX GC render the MGP inapplicable (for posts that focus on other aspects of the MGP in Alleged Breaches see here, here, here, here, here and here).

The erga omnes (partes) Effect of the Obligations Contained in the GC

In the Case of the Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), the ICJ declined to exercise its jurisdiction on the basis that “Albania’s legal interests would not only be affected by a decision, but would form the very subject-matter of the decision” (Monetary Gold, Judgment of 15 June 1954, at 32).

The adoption of the Monetary Gold formula by Germany in Alleged Breaches could be questioned in view of the erga omnes (partes) nature of the obligations in the GC (see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment of 22 July 2022, at para.107). As “the contracting States [to the Genocide Convention] do not have any interests of their own; they merely have, one and all, a common interest” (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion of 28 May 1951, at 23), it could be argued that a dispute over possible breaches of the GC does not affect any state individually.

However, one has to differentiate two separate potential legal interests of third states:

On the one hand, every state (party) has a legal interest in the enforcement of the GC. Prima facie, this legal effect of erga omnes (partes) norms could trigger the application of the MGP. However, on a closer look, this would be an absurd conclusion since it would render any erga omnes (partes) norms practically unenforceable before the ICJ. Thus, the legal interest in the sense of the Monetary Gold formula can only be an individualised one and not a common one. Therefore, the MGP is indeed inapplicable with regard to the legal interest in the enforcement of an erga omnes (partes) norm (see also Thienel, at 340, for a different justification of the same result).

Yet, on the other hand, a third state which has allegedly contributed to an alleged breach of the GC could, in principle, have a legal interest in the judicial determination of the breach in question. This is the legal interest Germany assumes Israel to have in the case at hand. In this constellation, the erga omnes (partes) character of the GC cannot in itself preclude the applicability of the MGP. As the ICJ has stated in Case Concerning East Timor (Portugal v. Australia), Judgment of 30 June 1995, at para. 29, “[T]he erga omnes character of a norm and the rule of consent to jurisdiction are two different things.”

The Third-Party Link Inherent in Many Primary Norms of the GC

The exact scope of the MGP is contested. In East Timor, the ICJ further specified the Monetary Gold formula with regard to those constellations in which a third state is involved in the alleged violation of a norm: The Court assumed that the MGP applies if the Court „would necessarily have to rule upon the lawfulness of [the third state’s]…conduct as a prerequisite“ (Case Concerning East Timor (Portugal v. Australia), Judgment of 30 June 1995, at para. 33) for deciding the case. If this formula is applied to the GC, this would imply that all norms contained therein which require contributions from different parties (i.e. which have a third-party link) could only be enforced before the Court by instituting proceedings against all states that are potentially involved in the alleged breach.

However, there might be a notable difference between the constellations arising under the GC and the constellation in East Timor. While the third-party link in the determination of state responsibility in East Timor was the result of a factual coincidence, the GC makes the third-party link a legal requirement of the relevant primary norms. In view of this legal third-party link, the application of the Monetary Gold formula, as specified in East Timor, would categorically exclude the adjudication of the responsibility of an individual state for the alleged violation of such a norm. Thus, the prohibition of complicity in genocide, the prohibition of conspiracy to commit genocide and the obligation to prevent genocide (as interpreted by the ICJ in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judgment of 26 February 2007, at para. 431) could never be enforced in bilateral proceedings before the ICJ.

This undermines Art. IX GC, which stipulates that “the responsibility of a state for…any of the acts enumerated in article III [and the responsibility for breaching the obligation to prevent genocide] shall be submitted to the International Court of Justice at the request of any of the parties to the dispute” (emphasis by the authors). Thus, while the East Timor formula appears prima facie applicable to the constellations arising under the GC, both constellations must, on closer inspection, be differentiated.

Art. IX GC as an Anticipated Waiver of the MGP or as Consent to the Court’s Jurisdiction in abstracto

Irrespective of the above-mentioned concerns, there remain doubts regarding the application of the MGP in Alleged Breaches in view of the principle’s purpose and legal basis, which are contested. Most assume that the MGP derives either from the principle of consent (see e.g. Bonafé, at 167) or from the principle of audiatur et altera pars (see e.g. Rosenne, at 543) or from a combination of both principles under the umbrella of the protection of the Court’s judicial character (see e.g. Thienel, GYIL 57 (2014), 321 at 335). Yet, none of these teleological foundations of the MGP justifies an application of the principle in Alleged Breaches.

Israel’s ratification of Art. IX GC could be interpreted as an anticipated waiver of the application of the MGP, irrespective of the MGP’s telos (the Court’s judgement in Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Preliminary Objections, Judgment of 6 April 2023, at para. 97, could be interpreted in this way; see also Judge ad hoc Al Kasawneh in his dissenting opinion on the Court’s provisional measures order in Alleged Breaches at para. 15). While the MGP is not at the disposal of the parties to the legal dispute, it is arguably at the disposal of the third state (Thienel, GYIL 57 (2014), 321 at 348), since the MGP at least indirectly serves to protect the third state’s rights.

The proposed interpretation of Art. IX GC as a waiver of the MGP must take into account the fact that Israel ratified the GC before the ICJ’s Monetary Gold judgment. Therefore, it is not surprising that the drafting materials of Art. IX GC are silent in this regard. However, this does not preclude the proposed interpretation of Art. IX GC since it is based on the context of Art. IX GC: the application of the MGP would render many primary obligations of the GC unenforceable before the Court and Art. IX GC would become ineffective to this extent, in contradiction to the intentions of the states parties.

There are further reasons why the telos of the MGP militates against its application in Alleged Breaches:

First, there is no reason to be concerned about the principle of consent since Israel’s ratification of Art. IX GC must be considered at least as its consent to the ICJ’s jurisdiction in abstracto (cf. Thienel, GYIL 57 (2014), 321 at 346 et seq.).

Second, the principle of audiatur et altera pars is sufficiently safeguarded by the fact that the third state has the possibility to intervene under Art. 62 ICJ Statute and to institute proceedings against the applicant state, seeking a negative declaratory judgement (for the possibility of an intervention under Art. 62 ICJ Statute as majore ad minus to the MGP see Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Application by Nicaragua for Permission to Intervene, Judgment of 13 September 1990, at para. 56; for the possibility of an application for a negative declaratory judgement under Art. IX GC see Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment of 2 February 2024, at para. 109). The insistence on an actual intervention by the third state (see Thienel, GYIL 57 (2014), 321 at 346) is not persuasive: It follows from Art. 53 ICJ Statute that the principle of audiatur et altera pars is envisaged in the Statute as a mere possibility for the parties to actively participate in the legal dispute. The possibility of active participation (by way of intervention or an application for a negative declaratory judgement) must also be sufficient for the third state as a hypothetical party to the legal dispute. The hypothetical (non-)participation of a state in proceedings must be taken into account in either way. Otherwise, the rights of the third state as a hypothetical party would exceed the rights that it would enjoy as an actual party to the proceedings.

In any case, in Alleged Breaches, the principle of audiatur et altera pars is safeguarded by the fact that South Africa has already instituted proceedings against Israel under Art. IX GC, giving the Court the opportunity to consider Israel’s arguments in these parallel proceedings. In this respect, the erga omnes (partes) character of the respective norms of the GC could ultimately still gain significance: Although, in principle, Nicaragua is also entitled to invoke the alleged breach of the prohibition of genocide by Israel by virtue of the erga omnes (partes) effect of the norm, it is questionable whether, due to lis pendens, Nicaragua is barred from instituting additional judicial proceedings against Israel and is hence limited to intervening in the parallel proceedings, as it has already applied for.

Conclusion

There are several reasons militating against the application of the MGP in Alleged Breaches with regard to the alleged violations of the GC. Although the non-applicability of the MGP does not follow from the erga omnes (partes) nature of the norms of the GC, the East Timor formula is inadequate in face of the third-party link inherent in the respective primary norms of the GC. In addition, the purpose of the MGP militates against its application to the GC in view of Art. IX GC. This provision should be interpreted either as anticipated waiver of the MGP or as the states parties’ consent to the ICJ’s jurisdiction in abstracto. Finally, concerns with regard to the principle of audiatur et altera pars are unwarranted in view of the hypothetical possibility of an intervention under Art. 62 ICJ Statute and the possibility of an application for a negative declaratory judgement as well as the current proceedings initiated by South Africa against Israel.