The Germans are in a big trouble

The Convention on the Prevention and Punishment of the Crime of Genocide, commonly known as the Genocide Convention, is one of many pieces of international law created in response to the worst genocide of the 20th century.

Under the auspices of the newly formed United Nations, the 1948 convention aims to fulfill the heartily repeated slogan "never again", created after Germany's systematic killing of six million European Jews and millions of other peoples in the Holocaust.

By setting this legal framework, the convention hopes to prevent possible genocides.

However, in the decades that followed, a series of large-scale war crimes took place around the world. Germany and Israel are signatories to the convention with more than 150 countries.

The small Central American country of Nicaragua also signed the document.

Each signatory has a legal responsibility to comply with the provisions of the convention and reserves the right to formally accuse the other of violating them. That's what Nicaragua did.

On March 1, Nicaragua initiated proceedings before the International Court of Justice (ICJ), in the Dutch city of The Hague, against Germany.

The submission states that Germany, due to its continued support to Israel, including the supply of weapons, "failed to fulfill its obligation to prevent the genocide committed against the Palestinian people" and that in this way "contributed to the commission of genocide in violation of the Convention" and other elements of international law.

The lawsuit asks the court to apply "provisional measures" against Germany, which could require the suspension of its support to Israel, "in particular its military aid including military equipment, to the extent that this aid can be used in violation of the Genocide Convention."

Defining "genocide"

After a terrorist attack by Hamas in Israel on October 7, in which according to official Israeli data about 1,200 people died, including at least 850 civilians, Israel bombed and occupied the Gaza Strip.

According to official figures from Hamas health authorities, the death toll has exceeded 32,000 people, which is more than 1.5 percent of the population.

Some humanitarian organizations say that figure could be even higher.

The UN and human rights organizations have accused Israeli forces of indiscriminate attacks on civilians.

Even staunch allies of Israel, such as the United States, have taken the position that too many civilians are being killed.
 

Whether Israel's actions constitute "genocide" is a matter of legal opinion.

In a January ruling on South Africa's claim against Israel, the International Court of Justice found that "at least some of the acts and omissions alleged by South Africa to have been committed in Gaza may fall within the provisions of the Convention."

In a follow-up statement on March 28, the court made additional provisions, including a requirement that Israel inform the court of how it is fulfilling its obligations under international law.

Germany has openly sided with Israel in rejecting the accusations, which goes hand in hand with denying the injustice itself.

"We respect the International Court of Justice and of course we will participate in the proceedings and defend ourselves," said Christian Wagner, a spokesman for the German Foreign Ministry, after Nicaragua submitted the request.

"But let's make it clear that it goes without saying that we reject this accusation made against us by Nicaragua."

Potential impact of the Nicaragua case

The case brought by Nicaragua relies heavily on the South African one and may be a test case for the legal argument that the January ruling triggers certain obligations of third countries, such as Germany.

"These issues are imbued with a high degree of uncertainty. However, the case brought by Nicaragua faces serious obstacles in terms of content," Michael Becker, assistant professor of international law and human rights at Trinity College Dublin, told DW.

The challenge for Nicaragua is the accusation of Israel for genocide without Israel's direct participation in the case. In order to obtain a ruling against Germany, it will probably be important for Nicaragua to establish that some of Germany's obligations do not depend on Israel violating international law, but are only triggered by a serious threat," Becker said.

Each signatory to the agreement has the same right to appear before a court of justice, but Nicaragua faces a major obstacle of public opinion.

"Nicaragua is clearly a dictatorship," Sofia Hoffmann, an international relations expert at the University of Erfurt, told DW.

"Unlike South Africa, which is not only a democratic country, but also has an incredibly successful positive narrative behind it. In other words, South Africa has more credibility on the world stage, given the overthrow of its own apartheid regime and transition to democracy in the 1990s. By just one measure such as the Democracy Index published annually by the Economist Intelligence, South Africa ranks 47th — as a "deficient democracy", similar to the US and Israel. Nicaragua ranks 143rd, along with "authoritarian" regimes, one place ahead of Russia. Hoffman says that the rules apply to everyone and there is a legitimate claim to be reconsidered.

She adds that nevertheless, "of course, there is also a very legitimate, important claim that needs to be made. The rules are for everyone," she added, and Germany "is somehow very ambivalent here in terms of supporting international law, on the one hand, it looks at what is happening in Ukraine and in a way it is turning a blind eye when it comes to important political allies".

Why does Germany stand out?

Germany is not the only ally of Israel, but it is one of the strongest.

After the US, Germany is Israel's largest arms supplier between 2019-2023 - according to the Stockholm Peace Institute (SIPRI), as much as 30 percent of Israel's arms imports come from Germany.

The German government gave the go-ahead for additional shipments after the October 7 attack.

"The idea that German weapons are contributing to the killing of many civilians - thousands of civilians, women, children - is a terrible idea," Hoffmann said.

Before filing the lawsuit, Nicaragua sent diplomatic notes to Germany and several Western countries that support Israel or have withdrawn funding from the UN Refugee Agency (UNRWA) over Israel's poorly substantiated allegations that agency personnel were involved in the October 7 attack.

The diplomatic campaign may have had some effect on those countries, as some have since halted arms sales or restored funding to the agency due to deteriorating conditions in Gaza.

Germany, however, stayed the course. Aid to the agency was only launched earlier this week, but without direct aid to Gaza, due to an ongoing investigation into Israel's claims.

"State reason" under pressure

The International Court of Justice has no way of enforcing its decisions, but it can contribute to political and public pressure on the government.

Whatever the tangible consequences, Germany faces a fundamentally difficult situation.

Its post-war identity is rooted in an upholding of universal principles of international law that was fueled largely by its own historical crimes.

Germany seeks to correct them with concrete support for Israel, despite the growing alienation of the Jewish state from many Jews around the world. Germany's support for Israel is contained in the "state reason", an ambiguous political concept that makes certain state policies inviolable.

The German Federal Center for Political Education understands the concept more in an authoritarian or monarchist context than in a democratic context.

Among other problems, Germany's support for Israel because of its past genocide of the Jews risks equating the state with the people, which according to the International Holocaust Remembrance Alliance's (IHRA) controversial definition of anti-Semitism, which Germany uses at various levels of government, could qualify as anti-Semitic.

The case is also in line with broader international criticism of Germany's domestic pressures on freedom of academic and cultural expression, which has led to people becoming "victims or targets of repression against this very broad definition of anti-Semitism," Hoffmann said.

The court set aside two days to hear the case, April 8 and 9, with Nicaragua and Germany each given one day to present oral arguments. A verdict could follow in a few weeks.

"International law would benefit from clarification regarding the actions a state must take to comply with these obligations," said Becker, a professor of international law. "Nicaragua's claims about Germany represent a concrete case in which these issues can potentially be examined."