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“Germany’s Strong Public Support for Israel Has Made the Country the Main Target”

An Interview with Stefan Talmon

11.03.2024

On 1 March 2024, the Republic of Nicaragua instituted proceedings against the Federal Republic of Germany before the International Court of Justice. The core allegation: With its support for Israel, Germany is contributing to the commission of genocide and other serious violations of international law against the Palestinian people in the Gaza Strip. Nicaragua’s application raises certainly not only legal but also sensitive political questions. In order to discuss the most pressing legal issues, I have spoken to Professor Stefan Talmon. He is one of the most visible and vocal international lawyers in Germany commenting on the devastating situation in Gaza and a renowned expert of German practice in international law.

 

Professor Talmon, in the past, you shared the view of Jordan’s King Abdullah II, criticising that “the West is conspicuously silent on any violations of international humanitarian law currently going on in Gaza”. Are you welcoming Nicaragua’s initiative? Will the international rule of law be strengthened by Nicaragua’s proceedings against Germany?

First of all, let me say that Nicaragua is, of course, entitled to institute these proceedings against Germany. Nicaragua claims violations of obligations erga omnes partes as well as obligations erga omnes, and such violations give Nicaragua standing before the International Court of Justice (ICJ) to bring such a case. The Court also has jurisdiction, both under Article IX of the Genocide Convention and the two countries’ optional declarations under Article 36 (2) of the ICJ Statute. I assume that Nicaragua would even argue that it does not only have a right to bring this case but also an obligation to do so, as by bringing the case it is fulfilling its obligations to prevent violations of the Genocide Convention and to ensure respect for international humanitarian law.

Having said that, I assume these proceedings will lead to further divisions in the international community. One side will see these proceedings as purely politically motivated, as an abuse of process and an exercise of “lawfare”, while the other side will see these proceedings as a means to hold Israel to account and to strengthen the international rule of law.

I think the action by Nicaragua, a country of the global south, is a reaction to the conspicuous silence of Western countries with regard to what is happening in the Gaza Strip. While countries like Germany acknowledge the humanitarian catastrophe in the Gaza Strip and the plight of the Palestinians and call for a humanitarian pause or pauses (rather than for a ceasefire) to allow for the delivery of aid, they do not publicly address, let alone criticize Israel for any violations of international humanitarian law in Gaza. The focus in Germany is on Israel’s right to self-defence. At best, Israel is reminded that the right to self-defence must be exercised in line with international law.

Germany’s strong public support for Israel and its policy of unquestioning solidarity has made the country the prime respondent for the present proceedings; especially as Israel’s main backer, the United States, cannot be brought before the ICJ for complicity in Israel’s alleged genocide because of its reservation to the compromissory clause in Article IX of the Genocide Convention. As you will recall, on 2 February 2024 Nicaragua sent a diplomatic note to four States – Canada, the Netherlands, the United Kingdom, and Germany – reminding them of their obligations under the Genocide Convention and international humanitarian law. In the end, the only country Nicaragua instituted proceedings against was Germany.

Coming back to your initial question: Do I welcome Nicaragua’s initiative? I generally welcome the peaceful settlement of disputes which contributes to strengthening the international rule of law. In addition, the present case also may provide the Court with an opportunity to clarify the law in an area that is still largely uncharted territory: the obligations to prevent and not to be complicit in genocide. After all, the Bosnian Genocide case left open many questions. With regard to the ultimate goal of the proceedings, to improve the situation of the Palestinians in Gaza, the case may, however, be detrimental, if anything. If the case is dismissed on procedural grounds, this may encourage both Germany and Israel to persist with their present conduct.

You have touched on an interesting point with the last part of your answer: What does Nicaragua hope to achieve with the proceedings? Why is it that Nicaragua, a State with an appalling human rights record (see here and here), has taken the initiative?

Nicaragua’s institution of proceedings against Germany must be seen against the background of the historical relationship between Nicaragua under the Somoza government and Israel, and between the Sandinista Liberation Front and the Popular Front for the Liberation of Palestine (PFLP), which later became the Palestine Liberation Organization (PLO). Israel supported the Somoza dictatorship militarily, especially during the Sandinista insurrection of 1978/1979. As you will recall, the Somoza government was overthrown by the Sandinista rebels. During the insurrection, the Sandinista rebels received support from the PFLP. The first president of Nicaragua under the Sandinista government was Daniel Ortega, who returned to power in 2007 and is the present president of Nicaragua. Ortega and the Sandinistas thus have a long-standing friendly relationship with the Palestinians. This may explain why Nicaragua is so committed to the Palestinian cause. As you know, Nicaragua is not just bringing the case against Germany, it has also applied to intervene in the case brought by South Africa against Israel. Unlike the interventions by third States in the cases of Ukraine v. Russia and The Gambia v. Myanmar, Nicaragua is not intervening under Article 63 of the ICJ Statute in order to assist the Court in construing the provisions of a convention at issue in the case, but under Article 62 of the ICJ Statue, claiming that it has its own interest in the case. That shows the strong feeling on the part of Nicaraguans to further the Palestinian cause.

We have already touched upon what Nicaragua hopes to achieve. I think the ultimate aim is to stop German military and political support for Israel and to make Germany resume funding of UNRWA or, at least, make it much more costly in foreign policy terms to continue its present policy. The other purpose is to draw the world’s attention to the fate of the Palestinians in Gaza. Nicaragua will be able to do so by way of its application for provisional measures. A request for provisional measures has priority over all other cases. The Court is therefore expected to hold a hearing within the next few weeks. The hearing in the Peace Palace in The Hague will give Nicaragua a world stage to highlight the catastrophic humanitarian situation of the Palestinians in Gaza and to publicly shame Germany for its military and political support of Israel and its decision to suspend any decision on new funding for UNRWA. Last but not least, the case might also serve to make the German public aware that the world is not as black and white as it is sometimes portrayed on German media, and that there is also a Palestinian side to the conflict.

Moving away from the context and focusing more on the application itself; Nicaragua’s application makes little, or no mention of the atrocities committed by Hamas and the suffering of the people in Israel.  While this is without a doubt horrific and alarming, will it ultimately diminish any chances of success in Court? And with respect to the ICJ’s indispensable third party rule (p32), will the Court refuse to render a decision given that Israel is not a party to the proceedings?

You are quite right. The unfathomable atrocities of 7 October 2023 are not mentioned at all. Perhaps even worse, the application in paragraph 6 speaks of “Palestinian paramilitary forces from Hamas [attacking] the Israeli settlements located in the occupied Palestinian territories of Sderot, Kfar Azza, Nir Oz and Be’ri.” The four settlements mentioned are all in territory which  according to the UN Partition Plan of 1947 was to be part of the Jewish State and which has been part of Israel since 1948. This sentence either reflects ignorance or implicitly calls into question Israel’s right to exist by labelling as “occupied Palestinian territories” territories which are clearly part of Israel. If it were the letter, it would be very alarming and unbefitting of an application to the ICJ. And, of course, referring to the atrocities as “attacks” by “paramilitary forces” glosses over the fact that Hamas and other armed groups present in the Gaza Strip killed more than 1,200 persons, injured thousands and abducted some 240 people, many of whom continue to be held hostage. Actions which may be considered gross violations of international humanitarian law, war crimes, crimes against humanity and, possibly, genocide.

These considerations may call into question the credibility of the application but will not affect its chances of success. The application will be judged on its legal merits. In my view, the biggest legal hurdle to overcome is the indispensable third-party rule, which is sometimes also referred to as the Monetary Gold Principle as it was first developed in the case concerning Monetary Gold Removed from Rome in 1943. 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? 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. Similarly, a breach of the obligation to ensure respect for international humanitarian law presupposes that international humanitarian law is actually violated or that there is at least a serious risk of such violations based on past violations by the other State. If there were no established present or past violations of international humanitarian law, the obligation to ensure respect would be based on pure speculation. With regard to Nicaragua’s allegations against Germany, I cannot see how the Court could rule on them without first or at the same time ruling on the alleged (past) violations of international law by Israel. Israel, however, is not before the Court. As it is an indispensable party to the proceedings, the Court does not have jurisdiction to decide the allegations against Germany. In my view, the case will therefore hit the buffer stop at the preliminary objections stage – at the latest.

Things may be slightly different at the provisional measures stage of the proceedings. Here, the applicant must prove only on a prima facie basis that the Court has jurisdiction and that the case is admissible. This is a rather low threshold. The indispensable third-party rule does not concern the Court’s jurisdiction but relates to the admissibility of the case. I assume that even at the provisional measures stage, Israel, or better Israel’s absence, will be the elephant in the Great Hall of Justice. It is therefore surprising that Nicaragua has not addressed this question at all in its application. Will Nicaragua be able to establish prima facie the admissibility of the case, or is it so obvious that the Court cannot decide the allegations levelled against Germany without Israel’s presence? Although it is difficult to predict how the Court will decide, I think a good case could be made for the Court to dismiss the case already at the preliminary measures stage due to Israel’s absence.

You have mentioned the important aspects of admissibility but let us nevertheless advance to the substance of Nicaragua’s application with respect to the provisional measures. In its order in the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), the ICJ found that at least some of the rights claimed by South Africa and for which it is seeking protection, including “the right of the Palestinians in Gaza to be protected from acts of genocide”, are plausible (para. 54). It is certainly difficult to predict the outcome of the proceedings, but do you think the Court will similarly find that at least some of the rights claimed by Nicaragua are plausible?

I think Nicaragua would first have to overcome the indispensable third-party hurdle before the Court can address this question. If the Court were to decide this question, I think there would be a good chance that the Court reaches a similar result. After all, the facts and circumstances with regard to the Palestinians in Gaza are the same in both cases. One could argue that the situation today is even worse than it was on 26 January 2024, when the Court issued its Order in South Africa v. Israel. In that Order, the Court found not only the right of the Palestinians in Gaza to be protected from acts of genocide to be plausible but also their right to be protected from “related prohibited acts identified in Article III” of the Genocide Convention. These related prohibited acts, of course, include complicity in genocide – one of the allegations levelled against Germany. As the obligations not to be complicit in genocide and to prevent genocide are obligations erga omnes partes, Nicaragua also has its plausible own right to seek Germany’s compliance with the latter’s obligations under the Convention. Some of the provisional measures Nicaragua is requesting (para. 101 of the application) are also clearly aimed at preserving the plausible rights it asserts on the basis of the Genocide Convention. As the Court has already established that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, it would seem likely that the Court indicated provisional measures to Germany.

Already in October 2023, you were critical of Germany’s approach to international law, writing: “Solidarity does not have to be blind or unquestioning. After all, Germany is under an obligation ‘to ensure respect’ for the Geneva Conventions and for international humanitarian law more generally. Looking the other way when friends and allies violate international law while calling out the slightest infraction of international law committed by strategic rivals and opponents in the long run undermines Germany’s credibility with regard to international law.” Do you view Nicaragua’s application as a direct result of Germany’s position on international humanitarian law in the Gaza War and do you expect other States that now want to denounce Germany to intervene on the side of the applicant?

As I said before, Germany’s strong public support for Israel and its policy of unquestioning solidarity has made the country the main target for such proceedings. You may recall that, for example, at the end of October 2023 the German Chancellor declared that “one can be certain that the Israeli army will also respect the rules that arise from international law in everything it does. I have no doubt about that.” This statement was made at a time, when the UN Secretary-General, the EU’s High Representative for Foreign Affairs and Security Policy and the ICRC already accused Israel of actions “not compatible with international humanitarian law” or even “clear violations of international humanitarian law”.

Unlike in the case between South Africa and Israel, I do not expect many other States to intervene. In fact, I would be surprised if any other State intervened in Nicaragua’s case against Germany. Such interventions are always politically sensitive and come at a certain political and economic cost.

Germany has stylised itself as a champion of international law. Germany is not tired to stress its fight against impunity, even declaring that this forms “one of the most significant tenets of German justice and foreign policy”, and arguing that “[f]ighting impunity is not only a question of principle, it is also a moral and political imperative, and a matter of security for the international community”. Does Nicaragua have a point when it asks the International Court of Justice to decide that Germany “has breached and continues to breach international law by refusing to prosecute, bring to trial and punish persons responsible for, or accused of grave crimes under international law” (para. 67 (6)) or would it indeed be conceivable for an Israeli official to be tried for war crimes in Germany?

Taking the first question first, I do not think that Nicaragua has got a point here. What would be the legal basis for such a general and far-reaching obligation? I cannot see any basis for such a sweeping obligation – especially one that does not distinguish between suspects present in the territory of a State and those that are not. The obligation in common Article 1 of the Geneva Conventions to ensure respect for the Conventions does not include a general obligation to prosecute, bring to trial and punish. Otherwise, the specific obligations with regard to grave breaches of the Conventions; namely to enact legislation and to search for persons alleged to have committed such grave breaches, would be superfluous. There is also no State practice to establish a customary international law obligation to prosecute grave crimes under international humanitarian law. I also think that such an obligation would be unfeasible as it would mean that every State would have to prosecute and bring to trial potential suspects worldwide. While States may prosecute international crimes on the basis of universal jurisdiction, they are not obliged to do so. I therefore think that this submission will fail for the simple reason that there is no corresponding obligation under international law.

With regard to your second question, whether Israeli officials could be tried for war crimes in Germany: Yes, of course, that is possible. Under the Code of Crimes against International Law, Germany has assumed universal jurisdiction for genocide, war crimes and crimes against humanity worldwide. German courts can hear cases irrespective of the nationality of the perpetrator or the place where the crime was committed. But it is not only Israeli officials that could be tried in Germany, the same applies to members of Hamas or other groups that have committed international crimes in Israel or in Gaza.

On a final note, do you expect the proceedings to lead to any shifts or revisions in Germany’s foreign policy with respect to Israel and Palestine?

I do not think that the proceedings will substantially affect Germany’s foreign policy; after all, Israel’s security has officially been declared “Germany’s reason of State”. This means that Germany has a special responsibility to protect and assist Israel in defending itself. I cannot see Germany stopping aid and assistance to Israel.  And I do not think that Germany will be forced to do so. As I said before, I do not think that Nicaragua’s application will ultimately be successful.

Thank you very much.

Authors
Stefan Talmon

Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute for Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of German Practice in International Law – GPIL.

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Julian A. Hettihewa

Julian A. Hettihewa is currently a law clerk at the Higher Regional Court of Cologne. He completed his doctoral research project at the Institute for Public International Law at the University of Bonn, where he also worked as a research assistant. He studied law in Berlin and London and is an editor at Völkerrechtsblog.

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3 Comments
  1. Thank you for the interesting interview!
    Especially positive is
    Germany’s Strong Public Support for Israel Has Made the Country indeed the Main Target – but just for the authoritarian state of Nicaragua.
    That is neither surprising, nor worrying.

    The war could end any second if Hamas/ISIS releases the hostages and lays down its arms.

    1.
    Nicaragua’s charge – like South Africa’s application – contains various false statements.

    To name just one example of a false statement made by both Nicaragua and South Africa:
    The expression “human animals” (חיות אדם), deplored by Nicaragua (p. 16 of its statement) and South Africa, was used by Israel’s president Herzog only for the Hamas terrorists, but NOT for all the inhabitants of Gaza.
    The expression is quite common in the Hebrew language in general.
    It is used to describe behavior that is considered “inhuman”; its telos is not to deny the addressee’s humanity.
    For example, it was also used to describe a group of (Jewish-Israeli) teenagers who brutally beat up a peer, filmed it and then shared the video on social networks [1].

    Nicaragua and South Africa ignore this linguistic background. Moreover, they claim something that Israel’s president, Isaac Herzog, did not even say in words.
    They are therefore lying.

    2.
    Nicaragua’s trial is – as the title of the article itself recognizes – a political trial.
    Germany’s decision to support Israel is a foreign policy standpoint that is also understandable because of the Holocaust.
    This does not please Nicaragua, a regime whose ally Iran denies the Holocaust.
    This has brought Germany into Nicaragua’s sights.
    Consequently, it is a purely political move and it is a shame that international law is being abused for such a political stunt.

    Germany’s support is, however, NOT “blindly”, which I will outline in the following.

    In this regard, it should be mentioned that Germany abstained several times from anti-Israeli UN resolutions of the General Assembly, in which Hamas terror was not even mentioned with a word, and did not vote against them like other EU states.
    Moreover, Germany resumed payments to the Palestinian Authority and UNRWA very shortly after the Hamas/ISIS pogrom, although Israel has repeatedly stated for years that at least part of these payments flow into so-called martyrdom pensions as well as terrorist infrastructure.
    The view that Germany is “blindly” supporting Israel has no factual basis whatsoever.

    3.
    Prof. Talmon’s statements regarding the connection between Nicaragua and the PFLP are correct.
    The PFLP is a Palestinian terrorist organization whose actions show parallels to the National Socialist machinery of extermination.
    In Entebbe, for example, PFLP terrorists carried out the first selection of Jews and non-Jews since the rail tracks of Auschwitz [2].

    The fact that Nicaragua allies itself with such radical Jew-haters testifies to the deep-seated anti-Semitism of this regime.
    In addition to the PFLP, Iran is also a close ally of Nicaragua. The Iranian regime openly calls for the annihilation of Israel and denies the Holocaust.

    Against this background, it is not surprising that Nicaragua does not accept the existence of Israel in its statement, as it speaks of “the Israeli settlements located in the occupied Palestinian territories of Sderot, Kfar Azza, Nir Oz and Be’ri.” All these settlements are inside the territory, that the UN partition plan of 1947 gave to the Jewish state. By the way, the Jewish leadership accepted the partition plan, the Arab leadership didn’t accept it and started a war against Israel.
    As Professor Talmon rightly pointed out, the wording of Nicaragua’s application is either pure ignorance – which is absurd given the regime’s hatred of Jews – or – and this is the case – an attempt to deny Israel’s right to exist.
    In result, in an application to the ICJ, one UN member state does not accept the existence of another UN member state. This is a violation of Article 2 (4) of the UN Charter.

    4.
    It is true that Hamas’ actions – not Israel’s – constitute genocide.
    Also Gregory H. Stanton, a professor in Genocide Studies and Prevention, sees in Hamas’ attacks a genocide.
    Hamas already propagates in its charter that it wants to murder all Jews:

    “The Day of Judgment will not come about until Muslims fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Muslims, O Abdulla, there is a Jew behind me, come and kill him.” [3]

    Without the Israeli military, Hamas would have murdered not 1,200 Israelis, but millions of Israelis.

    5. The accusation that Israel is violating international humanitarian law is not plausible to me.
    Prof. Dr. Matthias Herdegen has also stated that Israel’s actions are in accordance with international law [4].

    Let’s look at the assessments of Israel’s actions by the world-leading military experts:
    a) Maj. (ret) John W. Spencer is the Chair of Urban Warfare Studies at the Modern War Institute at West Point and Co-Director of MWI’s Urban Warfare Project, one of the world’s leading experts in Urban Warfe:

    1st statement: “Israel has implemented more measure to prevent civilian casualties in urban warfare than any other military in the history of war. This includes many measure the U.S. has (or has not) taken in wars & battles but also many measures no military in the world has ever taken.” [5]

    2nd statement: “Israel is upholding the laws of war.” [6]

    3rd statement: “In their criticism, Israel’s opponents are erasing a remarkable, historic new standard Israel has set. In my long career studying and advising on urban warfare for the U.S. military, I’ve never known an army to take such measures to attend to the enemy’s civilian population, especially while simultaneously combating the enemy in the very same buildings. In fact, by my analysis, Israel has implemented more precautions to prevent civilian harm than any military in history—above and beyond what international law requires and more than the U.S. did in its wars in Iraq and Afghanistan.” [7]

    b) Col. Richard Kemp CBE, for more than 30 years a commander of British troops & Head of the international terrorism intelligence team at the British Prime Minister’s Office: “The Israel Defense Forces have achieved a significantly better civilian:combatant casualty ratio in battle than most if not all other armies.” [8]

    c) Lt. Gen. David Deptula (Ret.), U.S. Air Force, 36-years of experience, planned the US Air-Force campaigns in many wars: “I have seen the exquisite care the Israeli Defense Force takes to avoid civilian casualties. They have extraordinarily stringent rules for avoiding collateral damage.” [9]

    So far, I have not seen one person who has been able to prove even a single, concrete case in which Israel has deliberately and intentionally violated International Humanitarian Law.
    Have there been mistakes on Israel’s part? Unfortunately, mistakes are inevitable in such complex conditions. After months of war, that will certainly have been the case. But mistakes are not war crimes, and they are definitely not a genocide.

    The US has killed 11,000 civilians in Mosul in the fight against 4,000 IS terrorists – these figures put the supposed figures from Gaza in a completely different light and show how successful the IDF is in its efforts to avoid civilian casualties. And this despite the fact that the IDF is up against tens of thousands of Hamas terrorists (and not just 4,000 like in Mossul) and a 500 km network of tunnels (which was not existent in Mossul).
    Unfortunately, mistakes are inevitable in such complex conditions – 20% of Israeli soldiers have been killed by friendly fire.
    Many more soldiers have died because the IDF often puts its own soldiers at great risk in its efforts to avoid civilian casualties as much as possible.

    War is fought by humans and humans make mistakes – even the German armed forces have not always acted 100% perfectly in the past, although their missions were – in comparison to those of the IDF – less complex.
    Just think on the bombardment of two fuel trucks in Kunduz, that killed almost 100 civilians, and was based on false intelligence information.
    However, no reasonable person would come up with the idea of accusing Germany of systematic violations of International Humanitarian Law.

    6.
    While the “humanitarian catastrophe” in Gaza has been mentioned several times, I want to explain who is responsible for it.
    The main problem is not a lack of aid, but rather the fact that it is stolen by Hamas [10] and not distributed evenly among the population. Add to that, the UN is not distributing tons of aid packages which are waiting on Gaza border crossings [11].
    Of the 13,713 trucks that entered Gaza, JUST 10,846 trucks were distributed [11]. Why is that? Where are the other trucks? No knows this.
    Also on this day, hundreds of trucks with humanitarian aid were sent to Gaza.
    Enough food is coming in, but it is not reaching those who need it the most.
    You can compare this in principle with the situation of hungry people in New York: Tens of thousands of people in New York are hungry, even though there is enough to eat in New York. The problem is that the food is not distributed evenly.
    Israel does not limit the amount of aid that reaches Gaza. The problem is that the UN is not keeping up with the distribution of the aid as well as the constant looting by Hamas.
    This was confirmed again just last week by the former German minister and current member of the Bundestag, Julia Klöckner [12].

    Unfortunately, Egypt’s inglorious role is not mentioned at all.
    Egypt – like all Arab states – does not grant temporary protection to a single person from Gaza who wants to escape the war.
    This is remarkable and unprecedented in recent history.
    Just think of the reception of millions of Ukrainians in Europe – but above all the reception of millions of Syrians by Lebanon and Jordan.
    However, no one is granting protection to the Palestinians, as they are – once again – being misused by the Arab states as a bargaining chip against Israel.
    As if all this were not enough, Egyptian officials earn a lot of money by selling entry permits to desperate Gaza residents to Egypt. This despicable corruption is well known and well documented [13]. It costs $10,000 to escape the war in Gaza. The money is transferred between the Egyptian officer and the so-called intermediary (in Arabic: وكيل).
    Where is the international outcry about the anti-Palestinian policy by Egypt?

    At the end, I am remembering again that the humanitarian suffering can end at any time if Hamas lays down its arms and releases the hostages.

    [1] https://www.mako.co.il/entertainment-celebs/local-2023/Article-0b013dcdd188a81027.htm
    [2] https://zeithistorische-forschungen.de/2-2004/4742
    [3] https://www.theatlantic.com/international/archive/2023/10/hamas-covenant-israel-attack-war-genocide/675602/; https://avalon.law.yale.edu/20th_century/hamas.asp
    [4] (https://www.welt.de/politik/ausland/article249085984/Israels-Vorgehen-im-Gaza-Streifen-verhaeltnismaessig-und-vom-Voelkerrecht-gedeckt.html
    [5] https://twitter.com/SpencerGuard/status/1752181728016277765
    [6] https://edition.cnn.com/2023/11/07/opinions/israel-hamas-gaza-not-war-crimes-spencer/index.html
    [7] https://www.newsweek.com/israel-has-created-new-standard-urban-warfare-why-will-no-one-admit-it-opinion-1883286
    [8] https://twitter.com/COLRICHARDKEMP/status/1732779663313801339?
    [9] https://www.pbs.org/newshour/show/military-experts-discuss-israels-use-of-unguided-bombs-and-harm-to-civilians-in-gaza
    [10] https://www.theguardian.com/world/2024/mar/06/food-aid-convoy-bound-for-northern-gaza-looted-after-being-stopped-at-israeli-checkpoint
    [11] https://twitter.com/cogatonline/status/1773661183758770675/photo/1 and https://twitter.com/cogatonline/status/1771441823031984444
    [12] https://www.juedische-allgemeine.de/israel/israel-limitiert-die-hilfe-nicht-das-nadelohr-ist-die-un/
    [13] https://www.haaretz.com/israel-news/2024-04-05/ty-article-magazine/.highlight/hamas-actually-believed-it-would-conquer-israel-and-divided-it-into-cantons/0000018e-ab4a-dc42-a3de-abfad6fe0000 and https://www.zdf.de/politik/auslandsjournal/auslandsjournal-gaza-schlepper-flucht-100.html

  2. Germany’s Strong Public Support for Israel Has Made the Country the Main Target for Antisemites

    The war could end any second if Hamas/ISIS releases the hostages and lays down its arms.

    1.
    Nicaragua’s charge – like South Africa’s application – contains various false statements.

    To name just one example of a false statement made by both Nicaragua and South Africa:
    The expression “human animals” (חיות אדם), deplored by Nicaragua (p. 16 of its statement) and South Africa, was used by Israel’s president Herzog only for the Hamas terrorists, but NOT for all the inhabitants of Gaza.
    The expression is quite common in the Hebrew language in general.
    It is used to describe behavior that is considered “inhuman”; its telos is not to deny the addressee’s humanity.
    For example, it was also used to describe a group of (Jewish-Israeli) teenagers who brutally beat up a peer, filmed it and then shared the video on social networks [1].

    Nicaragua and South Africa ignore this linguistic background. Moreover, they claim something that Israel’s president, Isaac Herzog, did not even say in words.
    They are therefore lying.

    2.
    Nicaragua’s trial is – as the title of the article itself recognizes – a political trial.
    Germany’s decision to support Israel is a foreign policy standpoint that is also understandable because of the Holocaust.
    This does not please Nicaragua, a regime whose ally Iran denies the Holocaust.
    This has brought Germany into Nicaragua’s sights.
    Consequently, it is a purely political move and it is a shame that international law is being abused for such a political stunt.

    Germany’s support is, however, NOT “blindly”, which I will outline in the following.

    In this regard, it should be mentioned that Germany abstained several times from anti-Israeli UN resolutions of the General Assembly, in which Hamas terror was not even mentioned with a word, and did not vote against them like other EU states.
    Moreover, Germany resumed payments to the Palestinian Authority and UNRWA very shortly after the Hamas/ISIS pogrom, although Israel has repeatedly stated for years that at least part of these payments flow into so-called martyrdom pensions as well as terrorist infrastructure.
    The view that Germany is “blindly” supporting Israel has no factual basis whatsoever.

    3.
    Prof. Talmon’s statements regarding the connection between Nicaragua and the PFLP are correct.
    The PFLP is a Palestinian terrorist organization whose actions show parallels to the National Socialist machinery of extermination.
    In Entebbe, for example, PFLP terrorists carried out the first selection of Jews and non-Jews since the rail tracks of Auschwitz [2].

    The fact that Nicaragua allies itself with such radical Jew-haters testifies to the deep-seated anti-Semitism of this regime.
    In addition to the PFLP, Iran is also a close ally of Nicaragua. The Iranian regime openly calls for the annihilation of Israel and denies the Holocaust.

    Against this background, it is not surprising that Nicaragua does not accept the existence of Israel in its statement, as it speaks of “the Israeli settlements located in the occupied Palestinian territories of Sderot, Kfar Azza, Nir Oz and Be’ri.” All these settlements are inside the territory, that the UN partition plan of 1947 gave to the Jewish state. By the way, the Jewish leadership accepted the partition plan, the Arab leadership didn’t accept it and started a war against Israel.
    As Professor Talmon rightly pointed out, the wording of Nicaragua’s application is either pure ignorance – which is absurd given the regime’s hatred of Jews – or – and this is the case – an attempt to deny Israel’s right to exist.
    In result, in an application to the ICJ, one UN member state does not accept the existence of another UN member state. This is a violation of Article 2 (4) of the UN Charter.

    4.
    It is true that Hamas’ actions – not Israel’s – constitute genocide.
    Hamas already propagates in its charter that it wants to murder all Jews:

    “The Day of Judgment will not come about until Muslims fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Muslims, O Abdulla, there is a Jew behind me, come and kill him.” [3]

    Without the Israeli military, Hamas would have murdered not 1,200 Israelis, but millions of Israelis.

    5.
    The accusation that Israel is violating international humanitarian law is not plausible to me.
    Prof. Dr. Matthias Herdegen has also stated that Israel’s actions are in accordance with international law. [4]
    The vast majority of international law experts are certainly excellent lawyers, but they are not military experts.
    So what does a lawyer or a judge when he has to assess a subject that is foreign to him?
    He asks for an expert opinion.
    Let’s look at the assessments of Israel’s actions by the world-leading military experts:

    a) Maj. (ret) John W. Spencer is the Chair of Urban Warfare Studies at the Modern War Institute at West Point and Co-Director of MWI’s Urban Warfare Project, one of the world’s leading experts in Urban Warfe:

    1st statement: “Israel has implemented more measure to prevent civilian casualties in urban warfare than any other military in the history of war. This includes many measure the U.S. has (or has not) taken in wars & battles but also many measures no military in the world has ever taken.” [5]

    2nd statement: “Israel is upholding the laws of war.” [6]

    3rd statement: “In their criticism, Israel’s opponents are erasing a remarkable, historic new standard Israel has set. In my long career studying and advising on urban warfare for the U.S. military, I’ve never known an army to take such measures to attend to the enemy’s civilian population, especially while simultaneously combating the enemy in the very same buildings. In fact, by my analysis, Israel has implemented more precautions to prevent civilian harm than any military in history—above and beyond what international law requires and more than the U.S. did in its wars in Iraq and Afghanistan.” [7]

    b) Col. Richard Kemp CBE, for more than 30 years a commander of British troops & Head of the international terrorism intelligence team at the British Prime Minister’s Office: “The Israel Defense Forces have achieved a significantly better civilian:combatant casualty ratio in battle than most if not all other armies.” [8]

    c) Lt. Gen. David Deptula (Ret.), U.S. Air Force, 36-years of experience, planned the US Air-Force campaigns in many wars: “I have seen the exquisite care the Israeli Defense Force takes to avoid civilian casualties. They have extraordinarily stringent rules for avoiding collateral damage.” [9]

    So far, I have not seen one person who has been able to prove even a single case in which Israel has deliberately and intentionally violated International Humanitarian Law.
    Have there been mistakes on Israel’s part? Unfortunately, mistakes are inevitable in such complex conditions. After months of war, that will certainly have been the case. But mistakes are not war crimes, and they are definitely not a genocide.

    The US has killed 11,000 civilians in Mosul in the fight against 4,000 IS terrorists – these figures put the supposed figures from Gaza in a completely different light and show how successful the IDF is in its efforts to avoid civilian casualties. And this despite the fact that the IDF is up against tens of thousands of Hamas terrorists and a 500 km network of tunnels.
    Unfortunately, mistakes are inevitable in such complex conditions – 20% of Israeli soldiers have been killed by friendly fire.
    Many more soldiers have died because the IDF often puts its own soldiers at great risk in its efforts to avoid civilian casualties as much as possible.

    It is very pleasant to judge Israel from the security of Germany, far away from the terror of Hamas.
    But we should always remember that war is fought by humans and that humans make mistakes – even the German armed forces have not always acted 100% perfectly in the past, although their missions were – in comparison to those of the IDF – less complex. Hereby, I want to highlight bombardment of two fuel trucks in Kunduz, Afghanistan, that killed almost 100 Afghan civilians.
    However, no reasonable person would come up with the idea of accusing Germany of systematic violations of International Humanitarian Law.

    6.
    While the “humanitarian catastrophe” in Gaza has been mentioned several times, it has unfortunately not been addressed who is responsible for it.
    The main problem is not a lack of aid, but rather the fact that it is stolen by Hamas [10] and not distributed evenly among the population.
    Add to that, the UN is not distributing tons of aid packages which are waiting on Gaza border crossings [11].
    Of the 13,713 trucks that entered Gaza, JUST 10,846 trucks were distributed [12].
    You can compare this with the situation of hunger in New York: Tens of thousands of people in New York are hungry, even though there is enough to eat in New York. The problem is that the food is not distributed evenly.
    Israel does not limit the amount of aid that reaches Gaza. The problem is that the UN is not keeping up with the distribution of the aid as well as the constant looting by Hamas.
    This was confirmed again just last week by the former German minister and current member of the Bundestag, Julia Klöckner.
    Unfortunately, Egypt’s inglorious role is not mentioned at all.
    Egypt – like all Arab states – does not grant temporary protection to a single person from Gaza who wants to escape the war.
    This is remarkable and unprecedented in recent history. Just think of the reception of millions of Ukrainians in Europe – but above all the reception of millions of Syrians by Lebanon and Jordan.
    However, no one is granting protection to the Palestinians, as they are – once again – being used by the Arab states as a bargaining chip against Israel.
    As if all this were not enough, Egyptian officials earn a lot of money by selling entry permits to desperate Gaza residents to Egypt. This despicable corruption is well known and well documented [13]. It costs $10,000 to escape the war in Gaza. The money is transferred between the Egyptian officer and the so-called agent, in Gaza better known as “Wakil” (وكيل).
    Where is the international outcry about the anti-Palestinian policy by Egypt?

    At the end, I am remembering again, that the humanitarian suffering can end at any time if Hamas lays down its arms and releases the hostages.

    [1] https://www.mako.co.il/entertainment-celebs/local-2023/Article-0b013dcdd188a81027.htm
    [2] https://zeithistorische-forschungen.de/2-2004/4742
    [3] https://www.theatlantic.com/international/archive/2023/10/hamas-covenant-israel-attack-war-genocide/675602/; https://avalon.law.yale.edu/20th_century/hamas.asp
    [4] (https://www.welt.de/politik/ausland/article249085984/Israels-Vorgehen-im-Gaza-Streifen-verhaeltnismaessig-und-vom-Voelkerrecht-gedeckt.html
    [5] https://twitter.com/SpencerGuard/status/1752181728016277765
    [6] https://edition.cnn.com/2023/11/07/opinions/israel-hamas-gaza-not-war-crimes-spencer/index.html
    [7] https://www.newsweek.com/israel-has-created-new-standard-urban-warfare-why-will-no-one-admit-it-opinion-1883286
    [8] https://twitter.com/COLRICHARDKEMP/status/1732779663313801339?
    [9] https://www.pbs.org/newshour/show/military-experts-discuss-israels-use-of-unguided-bombs-and-harm-to-civilians-in-gaza
    [10] https://www.theguardian.com/world/2024/mar/06/food-aid-convoy-bound-for-northern-gaza-looted-after-being-stopped-at-israeli-checkpoint
    [11] https://www.juedische-allgemeine.de/israel/israel-limitiert-die-hilfe-nicht-das-nadelohr-ist-die-un/ and https://twitter.com/cogatonline/status/1771441823031984444
    [12] https://twitter.com/cogatonline/status/1773661183758770675/photo/1
    [13] https://www.haaretz.com/israel-news/2024-04-05/ty-article-magazine/.highlight/hamas-actually-believed-it-would-conquer-israel-and-divided-it-into-cantons/0000018e-ab4a-dc42-a3de-abfad6fe0000 and https://www.zdf.de/politik/auslandsjournal/auslandsjournal-gaza-schlepper-flucht-100.html

  3. There is an inherent contradiction in the statement that “Germany is a champion of International law”, yet at the same time Germany continues to facilitate the actions of Israel in Gaza through military, financial and political support – actions which have indisputably been found to contravene numerous laws which prohibit collective punishment against an innocent civilian population. It would be surprising if Germany were not found to be complicit or even supportive of these crimes.

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