{"id":22509,"date":"2024-06-06T14:00:34","date_gmt":"2024-06-06T12:00:34","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=22509"},"modified":"2024-06-10T13:08:49","modified_gmt":"2024-06-10T11:08:49","slug":"nicaraguas-suit-against-germany-may-be-good-as-gold-part-i","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/nicaraguas-suit-against-germany-may-be-good-as-gold-part-i\/","title":{"rendered":"Nicaragua\u2019s Suit against Germany May Be Good as Gold (Part I)"},"content":{"rendered":"

This two-part piece analyzes the legal viability of Nicaragua\u2019s suit against Germany in the International Court of Justice over shipment of armaments from Germany to Israel. Nicaragua claims that those armaments are used in an unlawful manner by Israel in the Gaza sector of Palestine. Germany contends that the ICJ should not adjudicate Nicaragua\u2019s claims since Israel is not a party to the case, and the claims depend on wrongdoing by Israel. This piece argues that Israel\u2019s absence does not preclude adjudication. Part I explains why Germany\u2019s reliance on Monetary Gold<\/em>, the major prior ICJ case on situations involving an absent state, is misplaced.<\/p>\n

No Manifest Lack of Jurisdiction<\/strong><\/p>\n

As recited in its March 1 Application<\/a> to the ICJ, Nicaragua alleges complicity by Germany in what it claims are Israel\u2019s international humanitarian law (IHL) violations in Gaza and Israel\u2019s commission of genocide there, plus Germany\u2019s alleged failure to prevent genocide. The complicity arises, according to Nicaragua, from armaments purchased by Israel in Germany, and whose shipment to Israel is authorized by Germany. Nicaragua claims jurisdiction for the IHL violations under ICJ Statute Article 36(2)<\/a> jurisdictional declarations filed by Germany<\/a> and itself<\/a>. Nicaragua claims jurisdiction for genocide, additionally, under the Genocide Convention<\/a>. A legal norm of complicity has been affirmed by the International Law Commission in Article 16 of its draft on state responsibility<\/a>, the Commission having found that it is part of customary international law<\/a>. The ICJ has said<\/a> that complicity can give rise to state responsibility under the Genocide Convention (Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide<\/em>, Bosnia v. Serbia, 2007, para. 381).<\/p>\n

Nicaragua\u2019s suit survived the preliminary measures stage. When Nicaragua asked for an injunctive order against further deliveries, Germany asked the ICJ to dismiss the suit entirely, on grounds that Nicaragua\u2019s claim is legally defective. Germany asked the ICJ (transcript 9 April p. 50 para. 6) to remove<\/a> the case from the ICJ list of cases.<\/p>\n

At a 9 April oral hearing, Germany acknowledged (para. 6) that \u201cat the provisional measures phase, the Court will of course examine both the existence of prima facie jurisdiction and the issue of whether, prima facie, it is able to exercise jurisdiction.\u201d In an Order issued 30 April, the ICJ denied<\/a> the requests of both parties. In the case by then styled as Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory,<\/em> it said that circumstances did not warrant an injunction, but it refused<\/a> to dismiss the case. It said (para. 21) that it found \u201cno manifest lack of jurisdiction.\u201d<\/p>\n

The ICJ even cautioned that the Geneva conventions of 1949 and the Genocide Convention, as cited by Nicaragua, may be in play. It said pointedly (para. 24) that it is \u201cparticularly important to remind all States of their international obligations relating to the transfer of arms to parties to an armed conflict, in order to avoid the risk that such arms might be used to violate the above-mentioned Conventions. All these obligations are incumbent upon Germany as a State party to the said Conventions in its supply of arms to Israel.\u201d The ICJ has previously said<\/a> that, in the context of state responsibility for genocide, complicity \u201cincludes the provision of means to enable or facilitate the commission of the crime.\u201d (Bosnia v. Serbia, 2007, para. 419)<\/p>\n

Is Israel a Necessary Party?<\/strong><\/p>\n

Once Nicaragua files its memorial, Germany is likely to file a preliminary objection to challenge\u00a0 jurisdiction and admissibility, making the same argument it made at the preliminary measures stage. Germany argued (transcript 9 April p. 23 para. 3) that Nicaragua\u2019s suit cannot proceed without Israel as a party. Germany said that a step towards its claimed liability is the liability of Israel, and that the ICJ is not in a position to make a finding on Israel\u2019s liability in Israel\u2019s absence. Germany said (transcript 9 April p. 23 para. 3), \u201cNicaragua seeks determinations on the conduct of Israel, an absent party, which determinations are a prerequisite to any finding of responsibility on the part of Germany.\u201d Israel has given no indication that it might seek to participate.<\/p>\n

Germany referenced (transcript 9 April p. 25 para. 7 and p. 29 paras. 19-20) the 1954 judgment in Monetary Gold Removed from Rome in 1943,<\/em><\/a> wherein the ICJ declined a case that turned on the obligations of a state that was not a party to the proceedings. At an 8 April oral hearing<\/a>, Nicaragua sought to deflect Germany\u2019s reliance on Monetary Gold<\/em>, Nicaragua arguing\u00a0 that in Monetary Gold<\/em> the legal position of the absent party was the \u201cvital issue\u201d of the case, whereas in Nicaragua\u2019s suit, it is not (transcript 8 April p. 39 para. 10).<\/p>\n

The 1954 judgment arose out of Germany\u2019s wartime occupation of Italy, when Germany\u2019s army took and carried away a quantity of gold bars on deposit in Rome. As the war ended, three of the Allies occupying Germany (France, UK, USA) came into possession of the gold. They regarded the gold as Albania\u2019s. It had belonged to the National Bank of Albania, which was, however, 88.5% owned by the Government of Italy. Albania had purported to nationalize the assets of the Bank by a law of 13 January 1945.<\/p>\n

Italy Makes a Claim against a Non-Party<\/strong><\/p>\n

Italy claimed the gold as its own, challenging the validity of the Albanian nationalization law of 13 January 1945. The Allies offered Italy the option of suing them in the ICJ, so that it could assess that claim. They said they would consent to jurisdiction. Italy did file. The ICJ set a schedule<\/a> for the parties to file their memorials.<\/p>\n

Italy, however, first wanted to know whether there was a possibility of a ruling in its favor. Albania was not party to the arrangement to submit the matter to the ICJ and had not sought to intervene. Italy posed to the ICJ what it called a preliminary question<\/a>, raising not an issue of jurisdiction as between it and the Allies, but the question of what relief the ICJ might be able to grant Italy against Albania.<\/p>\n

The ICJ agreed<\/a> with Italy (Judgment, p. 31) that jurisdiction was valid under ICJ Statute Article 36(1), based on consent between Italy and the Allies. The ICJ asked itself, however, \u201cwhether this jurisdiction is co-extensive with the task entrusted to it.\u201d Italy wanted the ICJ to say whether Albania, by the law of 13 January 1945, had violated its rights: \u201cIn order, therefore, to determine whether Italy is entitled to receive the gold, it is necessary to determine whether Albania has committed any international wrong against Italy.\u201d (Id. p. 32) Italy was seeking relief from a party against whom the ICJ had no capacity to issue a binding ruling. The ICJ decided against adjudicating, since it could not issue a binding ruling against the absent third state.<\/p>\n

The ICJ said that the issue it was being asked to resolve related \u201cto the lawful or unlawful character of certain actions of Albania vis-\u00e0-vis Italy.\u201d And further, \u201cTo go into the merits of such questions would be to decide a dispute between Italy and Albania. The Court cannot decide such a dispute without the consent of Albania.\u201d By that, the ICJ meant Albania\u2019s consent to jurisdiction. \u201cThe Court,\u201d it said, \u201ccan only exercise jurisdiction over a State with its consent.\u201d (Id. p. 32). The ICJ said that, under ICJ Statute Article 59, any decision it reached could not bind Albania, as a non-party. (Id. p. 33)<\/p>\n

From Monetary Gold to East Timor <\/strong><\/p>\n

The circumstance that led the ICJ in Monetary Gold<\/em> to decline to adjudicate is quite distant from that in Nicaragua\u2019s suit against Germany. Nicaragua\u2019s claim is not against the absent state. Whereas in Monetary Gold<\/em> the ICJ could not give the relief sought, in Nicaragua\u2019s suit it is fully able to do so. Nicararagua\u2019s suit is against a state over which the ICJ has jurisdiction and is party to the proceeding. The ICJ is not being asked to \u201cexercise jurisdiction\u201d over Israel.<\/p>\n

Perhaps revealing its realization that Monetary Gold<\/em> may not apply, Germany, at the oral hearing, also invoked the 1995 ICJ judgment in East Timor<\/em> (transcript 9 April p. 30 para. 21). Germany claimed that the facts in East Timo<\/em>r are \u201cprecisely analogous\u201d to those in Nicaragua\u2019s suit, a claim it did not make with regard to the facts in Monetary Gold<\/em>. Part II<\/a> of this blog piece will examine whether East Timor<\/em> gives Germany a better argument for keeping Nicaragua\u2019s suit out of the International Court of Justice.<\/p>\n","protected":false},"excerpt":{"rendered":"

This two-part piece analyzes the legal viability of Nicaragua\u2019s suit against Germany in the International Court of Justice over shipment of armaments from Germany to Israel. Nicaragua claims that those armaments are used in an unlawful manner by Israel in the Gaza sector of Palestine. Germany contends that the ICJ should not adjudicate Nicaragua\u2019s claims […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3717,3743,7412],"authors":[7455],"article-categories":[6000],"doi":[],"class_list":["post-22509","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-germany","tag-icj","tag-nicaragua","authors-john-b-quigley","article-categories-article"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20240607-005007-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/22509","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=22509"}],"version-history":[{"count":3,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/22509\/revisions"}],"predecessor-version":[{"id":22538,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/22509\/revisions\/22538"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=22509"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=22509"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=22509"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=22509"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=22509"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=22509"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}