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Nicaragua’s Suit against Germany May Be Good as Gold (Part I)


This two-part piece analyzes the legal viability of Nicaragua’s 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’s claims since Israel is not a party to the case, and the claims depend on wrongdoing by Israel. This piece argues that Israel’s absence does not preclude adjudication. Part I explains why Germany’s reliance on Monetary Gold, the major prior ICJ case on situations involving an absent state, is misplaced.

No Manifest Lack of Jurisdiction

As recited in its March 1 Application to the ICJ, Nicaragua alleges complicity by Germany in what it claims are Israel’s international humanitarian law (IHL) violations in Gaza and Israel’s commission of genocide there, plus Germany’s 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) jurisdictional declarations filed by Germany and itself. Nicaragua claims jurisdiction for genocide, additionally, under the Genocide Convention. A legal norm of complicity has been affirmed by the International Law Commission in Article 16 of its draft on state responsibility, the Commission having found that it is part of customary international law. The ICJ has said 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, Bosnia v. Serbia, 2007, para. 381).

Nicaragua’s 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’s claim is legally defective. Germany asked the ICJ (transcript 9 April p. 50 para. 6) to remove the case from the ICJ list of cases.

At a 9 April oral hearing, Germany acknowledged (para. 6) that “at 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.” In an Order issued 30 April, the ICJ denied 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, it said that circumstances did not warrant an injunction, but it refused to dismiss the case. It said (para. 21) that it found “no manifest lack of jurisdiction.”

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 “particularly 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.” The ICJ has previously said that, in the context of state responsibility for genocide, complicity “includes the provision of means to enable or facilitate the commission of the crime.” (Bosnia v. Serbia, 2007, para. 419)

Is Israel a Necessary Party?

Once Nicaragua files its memorial, Germany is likely to file a preliminary objection to challenge  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’s 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’s liability in Israel’s absence. Germany said (transcript 9 April p. 23 para. 3), “Nicaragua 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.” Israel has given no indication that it might seek to participate.

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, 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, Nicaragua sought to deflect Germany’s reliance on Monetary Gold, Nicaragua arguing  that in Monetary Gold the legal position of the absent party was the “vital issue” of the case, whereas in Nicaragua’s suit, it is not (transcript 8 April p. 39 para. 10).

The 1954 judgment arose out of Germany’s wartime occupation of Italy, when Germany’s 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’s. 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.

Italy Makes a Claim against a Non-Party

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 for the parties to file their memorials.

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, 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.

The ICJ agreed 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, “whether this jurisdiction is co-extensive with the task entrusted to it.” Italy wanted the ICJ to say whether Albania, by the law of 13 January 1945, had violated its rights: “In 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.” (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.

The ICJ said that the issue it was being asked to resolve related “to the lawful or unlawful character of certain actions of Albania vis-à-vis Italy.” And further, “To 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.” By that, the ICJ meant Albania’s consent to jurisdiction. “The Court,” it said, “can only exercise jurisdiction over a State with its consent.” (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)

From Monetary Gold to East Timor

The circumstance that led the ICJ in Monetary Gold to decline to adjudicate is quite distant from that in Nicaragua’s suit against Germany. Nicaragua’s claim is not against the absent state. Whereas in Monetary Gold the ICJ could not give the relief sought, in Nicaragua’s suit it is fully able to do so. Nicararagua’s suit is against a state over which the ICJ has jurisdiction and is party to the proceeding. The ICJ is not being asked to “exercise jurisdiction” over Israel.

Perhaps revealing its realization that Monetary Gold may not apply, Germany, at the oral hearing, also invoked the 1995 ICJ judgment in East Timor (transcript 9 April p. 30 para. 21). Germany claimed that the facts in East Timor are “precisely analogous” to those in Nicaragua’s suit, a claim it did not make with regard to the facts in Monetary Gold. Part II of this blog piece will examine whether East Timor gives Germany a better argument for keeping Nicaragua’s suit out of the International Court of Justice.

John B. Quigley

John B. Quigley is a Professor Emeritus of law. He has widely published in public international law, with focus on international judicial institutions, international humanitarian law, and war and peace.

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