Nicaragua v. Germany: Arms Transfers, Genocide Prevention and Third-State Responsibility at the ICJ
- Edmarverson A. Santos
- 6 hours ago
- 32 min read
Introduction
The Nicaragua v Germany proceedings returned to the International Court of Justice (ICJ) in September 2026, but the Court is not yet deciding whether German arms transfers or other support for Israel breached international law. The hearings from 7 to 10 September concern Germany’s preliminary objections to the Court’s jurisdiction and to the admissibility of certain claims. A judgment at this stage will determine whether, and to what extent, Nicaragua’s case may proceed to the merits; it will not establish that Germany has violated the Genocide Convention or international humanitarian law (ICJ, 2026).
Nicaragua instituted proceedings on 1 March 2024, alleging that Germany had breached international obligations through its support for Israel, including the provision of military equipment. Nicaragua also challenged Germany’s suspension of funding for the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and requested provisional measures addressing military assistance, previously supplied weapons, humanitarian obligations, and UNRWA funding. On 30 April 2024, the Court found that the circumstances then before it did not require the indication of provisional measures. It also declined Germany’s request to remove the case from the General List because there was no manifest lack of jurisdiction, while expressly leaving jurisdiction, admissibility, and the merits undecided (ICJ, 2024).
The present dispute is consequently narrower than the underlying allegations against Germany. Nicaragua relies principally on the parties’ declarations accepting the Court’s compulsory jurisdiction under Article 36(2) of the ICJ Statute and on Article IX of the Genocide Convention. Germany disputes whether the jurisdictional requirements are satisfied, including whether a legal dispute had crystallized when Nicaragua filed its Application and whether the Court can adjudicate claims whose resolution may depend on determining the legality of Israel’s conduct.
The latter objection engages the principle associated with Monetary Gold Removed from Rome in 1943. Germany maintains that findings of responsibility against it would first require the Court to determine whether Israel committed the underlying internationally wrongful acts alleged by Nicaragua, although Israel is not a party to the proceedings and has not consented to their adjudication in this case (ICJ, 1954). Nicaragua argues instead that the proceedings concern Germany’s own international obligations, including the duty to prevent genocide, obligations relating to respect for international humanitarian law, and rules governing unlawful assistance. The immediate legal question is whether those alleged duties can be adjudicated against Germany without making Israel’s legal responsibility an indispensable prerequisite to the Court’s decision.
1. What the September 2026 Hearings Decide
The September 2026 hearings concern Germany’s preliminary objections, not the merits of Nicaragua’s allegations. Nicaragua instituted proceedings on 1 March 2024 and simultaneously requested provisional measures under Article 41 of the ICJ Statute. Following oral hearings on 8 and 9 April, the Court decided on 30 April 2024 that the circumstances then before it did not require the indication of provisional measures. It also declined Germany’s request to remove the case from the General List because there was no manifest lack of jurisdiction. That conclusion was deliberately limited: the Court expressly left jurisdiction, admissibility, and the merits unresolved (ICJ, Order of 30 April 2024).
The proceedings then moved into the written phase. By an Order of 19 July 2024, the Court fixed time limits for Nicaragua’s Memorial and Germany’s Counter-Memorial. Nicaragua filed its Memorial in July 2025. On 21 October 2025, Germany submitted preliminary objections concerning the Court’s jurisdiction and the admissibility of certain claims. Under Article 79bis(3) of the Rules of Court, the filing of preliminary objections suspends proceedings on the merits. Nicaragua subsequently filed its written observations within the prescribed time-limit, and oral argument on the objections was scheduled for 7–10 September 2026 (ICJ, 2026).
Jurisdiction, admissibility, and merits address different questions. Jurisdiction concerns the Court’s legal authority to decide a dispute and rests on the consent of the States concerned. In this case, the asserted bases include treaty compromissory clauses and declarations recognizing the Court’s compulsory jurisdiction under Article 36(2) of its Statute. Admissibility addresses whether a claim over which jurisdiction may exist is nonetheless unsuitable for adjudication for a distinct procedural reason. The merits would require the Court to determine whether Germany actually breached the international obligations invoked by Nicaragua.
Germany’s objections can produce several outcomes. Under Article 79ter of the Rules of Court, the Court may uphold or reject an objection or declare that it does not possess an exclusively preliminary character. Some objections may succeed while others fail, leaving only part of Nicaragua’s case for later adjudication. If the objections are rejected, the proceedings on the surviving claims would resume at the merits stage; if objections disposing of all claims are upheld, the case would end without a merits determination.
A judgment permitting any claim to continue would not establish German responsibility. It would not prove that Germany failed to prevent genocide, was complicit in genocide, violated international humanitarian law, or unlawfully assisted Israel. The converse is equally important: dismissal for lack of jurisdiction or inadmissibility would not establish that Germany’s conduct complied with international law. The September hearings concern the legal conditions under which the Court may adjudicate Nicaragua’s allegations, not whether those allegations have been proved.
2. Nicaragua’s Case Against Germany
Nicaragua presents the case as one concerning Germany’s own international obligations, even though the alleged breaches arise from German support for Israel and from conduct occurring in the Occupied Palestinian Territory. Its Application alleges that Germany provided political, financial, and military support to Israel while serious violations of international law were taking place. Particular attention is directed to German exports of military equipment and, in the original proceedings, to Germany’s suspension of funding for the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) (Nicaragua, 2024).
The claims invoke several bodies of international law. Under the Genocide Convention, Nicaragua relies on the obligation to prevent genocide in Article I and on the prohibition of complicity in genocide contained in Article III(e). It also invokes obligations under the Geneva Conventions and customary international humanitarian law, as well as rules of general international law concerning assistance to another State’s internationally wrongful conduct. These are separate bases of responsibility rather than different labels for the same allegation.
The duty to prevent genocide is an obligation of conduct. In Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro), the ICJ held that the duty arises when a State learns, or should normally have learned, of a serious risk that genocide will be committed. From that point, it must employ the means reasonably available to it that may contribute to prevention. The State’s capacity to influence the actors concerned is a central part of the due-diligence assessment, alongside factors such as political, military, geographical, and other relevant links (ICJ, 2007, para. 430).
The preventive duty does not, however, mean that international responsibility can be established merely because a serious risk existed. The ICJ also held that a State can ultimately be held responsible for failure to prevent genocide only if genocide, or another relevant act contemplated by Article III in the Court’s formulation, was in fact carried out. The duty to act arises prospectively when the serious-risk threshold is reached; responsibility for failure to prevent is assessed retrospectively in light of what subsequently occurred (ICJ, 2007, para. 431).
Complicity in genocide follows a different route. Article III(e) prohibits complicity in genocide, and the ICJ has required, at a minimum, knowledge that genocide was about to be committed or was underway, together with assistance that enabled or facilitated the prohibited conduct. A failure-to-prevent claim may rest on omission after knowledge, or constructive knowledge, of a serious danger. Complicity concerns affirmative assistance supplied with the requisite knowledge. German political or military support cannot be classified as complicity merely because it existed; the specific legal elements would have to be established (ICJ, 2007, para. 432).
Nicaragua’s humanitarian-law allegations raise a separate set of obligations. Common Article 1 of the four Geneva Conventions requires High Contracting Parties “to respect and to ensure respect” for the Conventions in all circumstances. Nicaragua argues that Germany’s continued support for Israel was incompatible with obligations arising from that provision and other rules of international humanitarian law. The precise external dimension of the duty to ensure respect, and the measures it requires of a State supporting a party to an armed conflict, must be distinguished from the obligations created by the Genocide Convention.
General State responsibility introduces another legal basis. Article 16 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts addresses aid or assistance by one State in the commission of an internationally wrongful act by another. It applies where the assisting State acts with knowledge of the circumstances of the wrongful act and where that act would also be internationally wrongful if committed by the assisting State (ILC, 2001, Art. 16). The ILC Commentary further explains the relationship required between the assistance and the wrongful conduct.
Article 16 must also be kept separate from Article 41(2) of the ILC Articles. Article 41 addresses serious breaches of obligations arising under peremptory norms of general international law and provides that no State shall recognize as lawful a situation created by such a breach or render aid or assistance in maintaining that situation. Aid in committing an internationally wrongful act under Article 16 and assistance in maintaining a situation resulting from a serious breach under Article 41(2) are distinct rules, even where the same factual conduct may raise questions under both.
These differences affect what Nicaragua would need to establish if the case reaches the merits. The relevant inquiry may concern knowledge of a serious risk, knowledge of genocidal conduct, the nature and timing of assistance, Germany’s capacity to influence Israel, the relationship between particular support and the underlying conduct, or the measures reasonably available to Germany. The legal significance of each fact depends on the particular obligation being invoked.
Nicaragua’s Memorial also developed a distinct claim under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The 2024 Application had already referred to racial discrimination, racial segregation, and apartheid, but the Memorial advanced a specific submission under Article 3 of CERD and invoked Article 22 as an additional jurisdictional basis. Germany contests both the procedural and jurisdictional foundations of that claim (ICJ, 2026).
3. Jurisdiction in Nicaragua v. Germany
For its Genocide Convention claims, Nicaragua relies on Article IX of the Convention. That provision confers jurisdiction on the ICJ over disputes between contracting parties concerning the interpretation, application, or fulfillment of the Convention, including disputes relating to State responsibility for genocide or for the other acts enumerated in Article III. Nicaragua and Germany are both parties to the Convention and are bound by Article IX in their relations with one another.
Article IX is not a general jurisdictional clause for every rule of international law implicated by the same facts. A dispute concerning the Geneva Conventions, customary international humanitarian law, or general State responsibility does not fall within Article IX merely because it arises in the same factual setting as an alleged breach of the Genocide Convention. Those claims require another jurisdictional title unless the relevant questions arise only incidentally within the determination of a claim properly before the Court under Article IX.
Nicaragua consequently also relies on the parties’ declarations accepting compulsory jurisdiction under Article 36(2) of the ICJ Statute. Germany deposited its current declaration on 30 April 2008. Nicaragua’s acceptance derives from a declaration made in 1929 under the Statute of the Permanent Court of International Justice, subsequently modified, which continues to operate within the terms recognized by Article 36(5) of the ICJ Statute. Compulsory jurisdiction exists only to the extent that the two declarations overlap reciprocally and subject to the reservations attached to them.
Germany’s 2008 declaration contains a temporal limitation that is central to one of its preliminary objections. Germany argues that certain Nicaraguan claims concern disputes whose relevant situations or facts predate the date from which Germany accepted compulsory jurisdiction. Nicaragua disputes that characterization, maintaining that the legally relevant conduct giving rise to the present dispute falls within the temporal scope of Germany’s declaration. The Court must identify the real source of the dispute before determining whether the temporal limitation applies.
The CERD claim introduces a further jurisdictional issue. Article 22 of CERD provides for referral to the ICJ of disputes concerning the interpretation or application of the Convention that have not been settled by negotiation or by the procedures expressly provided for in CERD, unless the parties agree on another method of settlement. The provision contains procedural conditions that differ from Article IX of the Genocide Convention and from the optional-clause system under Article 36(2).
Germany argues that Nicaragua did not satisfy the requirements for jurisdiction under Article 22. It also relies on the reservations contained in its Article 36(2) declaration, including the exclusion of disputes for which the parties have agreed to another method of peaceful settlement, as well as its temporal limitation. Nicaragua contests those objections and maintains that the Court has jurisdiction over the claim.
The existence of a substantive international obligation does not answer any of these jurisdictional questions. The ICJ emphasized in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) that even the erga omnes or peremptory character of a rule does not itself provide the Court with contentious jurisdiction. State consent remains indispensable (ICJ, 2006).
That distinction is particularly significant in Nicaragua v. Germany. Germany may be bound by rules of genocide prevention, international humanitarian law, or general international law regardless of whether the ICJ can adjudicate Nicaragua’s particular allegations. For each surviving claim, Nicaragua must establish a jurisdictional title that binds both States and show that the dispute falls within its substantive, temporal, and procedural scope.
4. Whether a Dispute Existed When Nicaragua Filed
Germany’s first preliminary objection concerns whether a legal dispute existed when Nicaragua instituted proceedings on 1 March 2024. The ICJ determines the existence of a dispute objectively. Its jurisprudence requires a disagreement on a point of law or fact, with the parties holding clearly opposed views concerning the performance or non-performance of an international obligation. The respondent must have been aware, or could not have been unaware, that its position was positively opposed by the applicant (Georgia v. Russian Federation, 2011; Marshall Islands v. India, 2016).
Nicaragua relies principally on diplomatic exchanges during February 2024. On 2 February, its Ministry of Foreign Affairs transmitted a Note Verbale to the German Federal Foreign Office through the States’ permanent missions to the United Nations in New York. The communication alleged that German supplies of arms, ammunition, technology, or components to Israel risked engaging Germany’s obligations under the Genocide Convention, the Geneva Conventions, and customary international law. It also addressed Germany’s decision concerning UNRWA funding and referred expressly to possible proceedings before the ICJ (Nicaragua, 2024).
The significance of Germany’s reaction is disputed. On 7 February 2024, a spokesperson for the German Federal Foreign Office rejected allegations contained in a Nicaraguan press release addressing substantially related issues. Nicaragua relies on that public response, together with the diplomatic correspondence, as evidence that Germany understood and opposed Nicaragua’s legal position before the Application was filed.
Germany disputes that inference. In its September 2026 pleadings, it argued that the 2 February Note Verbale had initially been sent to a general email address and was not identified by Germany’s Permanent Mission until 13 February, with formal receipt acknowledged the following day. On that account, the 7 February press statement could not have been a response to a diplomatic communication Germany had not yet received. Germany further argues that the exchanges before 1 March did not crystallize the full range of legal claims subsequently brought before the Court (Germany, Oral Pleadings, 7 September 2026).
Nicaragua maintains that the Court must assess the parties’ positions as a whole rather than treat formal acknowledgment of a diplomatic note as decisive. Its position is that Germany’s public rejection of the allegations, followed by its receipt of the Note Verbale and maintenance of the contested policies, demonstrated a positive opposition of legal views before Nicaragua instituted proceedings. The disagreement thus concerns both the facts known to Germany and the level of specificity required for a dispute to have crystallized.
The dispute requirement does not ordinarily impose a general obligation to conduct prolonged negotiations before invoking Article 36(2) of the Statute. In Marshall Islands v. India, the Court distinguished the objective existence of a dispute from a separate requirement of prior negotiations. Unless the jurisdictional instrument itself imposes negotiation or another procedural precondition, the decisive question is whether the requisite opposition of views existed when proceedings began (ICJ, 2016).
CERD illustrates why the distinction matters. Article 22 contains its own procedural language concerning negotiation and the procedures available under the Convention. Those requirements must be considered independently from the general test for the existence of a dispute. A State may have a legal disagreement with another State without necessarily having satisfied every additional precondition contained in the jurisdictional clause on which it seeks to rely.
The filing date remains the critical point for jurisdiction. Later statements and conduct may be relevant as evidence of the positions already held by the parties, but subsequent developments cannot ordinarily create retroactively a jurisdictional condition that was absent when the Application was filed. The Court must accordingly decide whether the exchanges before 1 March 2024 disclosed a sufficiently clear opposition of legal views and, for each claim now advanced, whether that claim corresponds to the dispute that existed at the critical date.
5. Israel’s Absence and the Monetary Gold Objection
A central preliminary objection concerns Israel’s absence from the proceedings. Nicaragua has brought the case against Germany, yet several claims arise from German support provided in circumstances where Israel is alleged to have committed genocide, violations of international humanitarian law, or other internationally wrongful acts. Germany argues that the Court cannot determine responsibility for those forms of support without first reaching legal conclusions about the underlying Israeli conduct (Germany, Oral Pleadings, 7 September 2026).
Germany relies on the principle associated with Monetary Gold Removed from Rome in 1943. The doctrine reflects the consensual basis of contentious proceedings before the ICJ: where determination of an absent State’s legal responsibility constitutes an indispensable premise of the judgment requested, the Court cannot proceed without that State’s consent. Israel is not a party to Nicaragua v. Germany and has not consented to the determination of its legal responsibility in these proceedings (ICJ, 1954).
The Court clarified the procedural character of this doctrine in Arbitral Award of 3 October 1899 (Guyana v. Venezuela). A Monetary Gold objection concerns the exercise of jurisdiction where jurisdiction otherwise exists, rather than the existence of jurisdiction itself. The distinction is important here because Germany’s preliminary objections encompass different issues: some contest a jurisdictional title, while the indispensable-third-State objection asks whether jurisdiction that might otherwise exist may properly be exercised (ICJ, 2023, paras. 60–74).
5.1 When an Absent State Becomes Indispensable
In Monetary Gold, Italy sought a determination concerning Albanian gold held pursuant to post-war arrangements. The Court concluded that Italy’s claim could not be decided without first determining Albania’s international responsibility toward Italy. Albania had not consented to the proceedings, and its legal interests would not merely have been affected by the judgment; they constituted “the very subject-matter” of the decision the Court was asked to make (ICJ, 1954).
The doctrine does not apply whenever a judgment has consequences for a third State. In Certain Phosphate Lands in Nauru, Australia argued that the United Kingdom and New Zealand were indispensable because all three States had participated in administering Nauru. The Court rejected the objection. Although a decision on Australia’s responsibility might affect the legal interests of the other administering States, the Court did not need to determine their responsibility as a prerequisite to deciding the claim against Australia (ICJ, 1992, paras. 54–55).
East Timor marks the other side of the boundary. Portugal challenged Australia’s conduct in concluding a treaty with Indonesia concerning resources in the Timor Gap. The Court found that it could not decide whether Australia had acted unlawfully without first determining Indonesia’s entitlement to act in relation to East Timor. Because Indonesia had not accepted the Court’s jurisdiction, adjudication could not proceed. The Court reached that conclusion despite recognizing the erga omnes character of the right of self-determination invoked by Portugal (ICJ, 1995, paras. 26–35).
Germany argues that several Nicaraguan claims have the same structural difficulty. Responsibility for complicity in genocide presupposes that genocide was committed. Responsibility under Article 16 of the ILC Articles presupposes an internationally wrongful act by the assisted State, while a final finding of failure to prevent genocide requires that genocide actually occurred. The ILC Commentary to Article 16 itself observes that the Monetary Gold principle may apply where adjudicating responsibility for aid or assistance would first require a determination of the assisted State’s wrongful act (ILC, 2001).
The issue is consequently more precise than whether a judgment against Germany might criticize Israel. Germany maintains that conclusions about Israeli conduct would constitute necessary legal premises of findings against Germany. If the Court accepts that characterization for a particular claim, Israel’s absence would affect the Court’s ability to exercise jurisdiction over that claim rather than merely adding political or factual sensitivity to the proceedings.
5.2 Nicaragua’s Answer: Germany Has Independent Duties
Nicaragua frames the dispute differently. Its Application directs the Court to decisions and omissions attributable to Germany: the authorization and continuation of military exports, Germany’s assessment of risks arising from the situation in Gaza, its diplomatic and political influence, and the measures available to prevent or avoid contribution to prohibited conduct. On that account, the immediate object of adjudication is Germany’s compliance with obligations binding Germany itself, not a declaration of Israel’s international responsibility (Nicaragua, 2024).
The distinction has particular force for the prospective operation of the duty to prevent genocide. Under Bosnia and Herzegovina v. Serbia and Montenegro, Article I requires preventive action when a State learns, or should normally have learned, of a serious risk that genocide will occur. Questions about Germany’s knowledge, available influence, and use of preventive measures can in principle be examined through Germany’s own conduct without first entering a binding judgment against Israel (ICJ, 2007, paras. 430–431).
That proposition does not remove the third-State difficulty from every claim. A final finding that Germany failed to prevent genocide requires that genocide was in fact committed. Complicity requires underlying genocidal conduct, and Article 16 requires an internationally wrongful act by the State receiving the assistance. The degree to which Israeli conduct forms an indispensable legal premise consequently varies among Nicaragua’s theories of responsibility.
The ICJ’s case law permits such differentiation. Certain Phosphate Lands in Nauru allows adjudication where another State’s legal interests may be affected but need not be determined as the basis of the judgment; East Timor prevents adjudication where the absent State’s legal position must first be resolved. The 2023 Guyana v. Venezuela judgment further confirms that even the prospect of addressing conduct attributable to an absent State does not automatically activate Monetary Gold.
The preliminary-objections judgment may accordingly distinguish among Nicaragua’s claims rather than treat Israel’s absence as either fatal to the entire case or irrelevant to all of it. The controlling inquiry is whether the Court can determine Germany’s alleged breach on its own legal terms or must first decide a legal question concerning Israel that cannot be resolved without Israel’s consent.
6. Nicaragua’s Standing and Erga Omnes Partes
Nicaragua does not rely on special or direct injury to itself in order to invoke the Genocide Convention. Its position rests on the common interest shared by the Convention’s contracting parties in preventing, suppressing, and punishing genocide. The ICJ has described treaty obligations protecting such a common interest as obligations erga omnes partes: obligations owed by each State party to all the other parties.
The Court applied this principle directly in The Gambia v. Myanmar. Myanmar argued that The Gambia lacked standing because it was not specially affected by the alleged genocide against the Rohingya. The Court rejected the objection, holding that any State party to the Genocide Convention may invoke another party’s responsibility for alleged breaches of relevant obligations erga omnes partes without demonstrating a special interest or direct injury (ICJ, 2022, paras. 107–114).
Nicaragua invokes the same conception of the Convention in its proceedings against Germany. If Germany is bound to comply with Article I and the other relevant provisions not only toward specially affected States but toward all contracting parties, Nicaragua possesses a legal interest in that compliance even though the conduct complained of occurred far from Nicaraguan territory and did not cause Nicaragua a distinct material injury.
Standing does not itself confer jurisdiction. In The Gambia v. Myanmar, entitlement to invoke responsibility operated together with Article IX of the Genocide Convention, which supplied the Court’s jurisdictional title. In Nicaragua v. Germany, the erga omnes partes character of an obligation likewise cannot substitute for the requirements of Article IX or overcome an independent procedural impediment to the exercise of jurisdiction.
East Timor makes the point particularly clearly. The Court accepted that self-determination is a right with an erga omnes character but nevertheless refused to determine Indonesia’s legal position without Indonesia’s consent. The collective character of the substantive interest and the consent required for contentious adjudication remain distinct components of the international legal system (ICJ, 1995).
International humanitarian law raises a parallel, though not identical, issue. Common Article 1 of the four Geneva Conventions requires each High Contracting Party to respect and ensure respect for the Conventions in all circumstances. In the Wall Advisory Opinion, the ICJ concluded that every State party, whether or not involved in the particular conflict, is under an obligation to ensure compliance with the Conventions. The Court recalled that proposition in its 30 April 2024 Order in Nicaragua v. Germany (ICJ, 2004, para. 158; ICJ, 2024, para. 23).
Common Article 1 contains no compromissory clause conferring contentious jurisdiction on the ICJ. A common legal interest in observance of humanitarian law cannot by itself establish the Court’s authority to determine a German breach at Nicaragua’s request. The substantive obligation, Nicaragua’s entitlement to invoke it, and the jurisdictional basis for adjudication must each be established on their own terms.
7. Germany’s Duty to Prevent Genocide
Article I of the Genocide Convention provides that contracting parties undertake to prevent and punish genocide. The preventive obligation is not confined to conduct occurring within the territory of the State charged with failing to act. In Bosnia and Herzegovina v. Serbia and Montenegro, the ICJ treated prevention as a due-diligence obligation whose practical content depends on the circumstances and the State’s capacity to influence those at risk of committing genocide (ICJ, 2007).
The Court found Serbia responsible for failing to prevent the genocide at Srebrenica, not because Serbia guaranteed the conduct of the Bosnian Serb forces, but because it possessed substantial influence over them and failed to employ all means reasonably available that might have contributed to preventing the genocide. Article I imposes an obligation of conduct, not an obligation to guarantee a particular result.
Nicaragua seeks to apply that framework to Germany as a State that is not a belligerent in Gaza but maintains close political, diplomatic, and military relations with Israel. If the case reaches the merits, the inquiry would concern when Germany’s preventive obligation became operational, what German authorities knew or should have known, what influence was realistically available to them, and how that influence was used.
7.1 Serious Risk, Knowledge and Capacity to Influence
The duty to prevent begins before genocide has occurred. The ICJ held that a State becomes obliged to act at the moment when it learns, or should normally have learned, of a serious risk that genocide will be committed. A State possessing means likely to have a deterrent effect must then make such use of them as the circumstances permit (ICJ, 2007, para. 431).
The “serious risk” threshold is deliberately preventive. It does not require a prior judicial finding that genocide is already being committed, since waiting for conclusive proof would defeat the purpose of Article I. The threshold nevertheless remains legally significant: the information available must support the existence of a serious risk rather than a merely hypothetical possibility.
A State’s capacity to influence the potential perpetrators is one parameter of the required diligence. The Court identified geographical distance, the strength of political and other links, and the State’s legal position in relation to the relevant persons or situation as factors bearing on that capacity. The assessment is contextual rather than reducible to a fixed hierarchy of diplomatic or military relationships (ICJ, 2007, para. 430).
Germany’s relations with Israel could become relevant on that basis. Diplomatic access, military cooperation, arms-export licensing, political communication, and other channels of influence may help establish which preventive measures were reasonably available. Their existence does not prove a breach; they form part of the factual inquiry into the means Germany possessed and the measures it actually employed.
Article I does not impose strict liability. A State is not responsible merely because genocide occurs despite genuine preventive efforts, nor is it obliged to use means that were not reasonably available or lawful. Responsibility depends on whether it manifestly failed to take measures within its power that might have contributed to prevention once the legally relevant risk was known or should have been known.
A further distinction concerns the eventual finding of responsibility. The duty to take preventive action arises prospectively when the serious-risk threshold is crossed, but the ICJ held that responsibility for failure to prevent can ultimately arise only if genocide was in fact committed. This separation between the trigger for preventive action and the later conditions for State responsibility is one reason Israel’s absence has become significant in Germany’s preliminary objection (ICJ, 2007, para. 431).
7.2 Prevention Is Not Complicity in Genocide
Failure to prevent genocide and complicity in genocide are separate legal wrongs. Article I establishes the preventive obligation, while Article III(e) lists complicity in genocide among the acts prohibited by the Convention. The ICJ has emphasized that their elements are materially different (ICJ, 2007, para. 432).
Complicity requires affirmative assistance to the perpetrators. Failure to prevent can arise from omission where a State does not employ reasonably available preventive means after the Article I duty has been triggered. A State may consequently breach its preventive obligation without having provided material assistance to anyone committing genocide.
The knowledge standards also differ. For complicity, the Court held that the assisting State’s organs must at least have been aware of the principal perpetrator’s specific genocidal intent. It left open whether the accomplice must itself share that intent, because awareness of the principal perpetrator’s dolus specialis was the minimum condition necessary to establish complicity. Failure to prevent operates earlier, when the State knew or should have known of a serious danger that genocide would be committed (ICJ, 2007, paras. 421, 432).
This distinction is materially important for German arms transfers. Evidence capable of showing awareness of a serious risk, and thus potentially relevant to Article I, would not by itself prove that German authorities knew of the specific genocidal intent required for complicity. Continued military assistance after the preventive threshold was reached similarly cannot be equated automatically with complicity.
Political support, factual facilitation, complicity under Article III(e), and failure to prevent under Article I describe different legal propositions. Each must be assessed through its own conduct and knowledge requirements. Treating them as interchangeable would obscure precisely the distinctions the Genocide Convention and the ICJ’s jurisprudence require.
8. Arms Transfers, IHL and Aid or Assistance
German arms exports are governed by legal rules extending beyond the Genocide Convention. Nicaragua also invokes international humanitarian law and the general law of State responsibility, while Germany’s export decisions are subject to the Arms Trade Treaty and the European Union’s common rules on military exports.
Germany is a State party to the Arms Trade Treaty (ATT). Article 6(3) prohibits a covered transfer where the exporting State has knowledge, at the time of authorization, that the arms or related items would be used to commit genocide, crimes against humanity, grave breaches of the Geneva Conventions, attacks against protected civilians or civilian objects, or other applicable treaty-defined war crimes (Arms Trade Treaty, 2013, Art. 6(3)).
Where Article 6 does not prohibit an export, Article 7 requires the exporting State to assess, among other risks, whether the arms could be used to commit or facilitate a serious violation of international humanitarian law or international human rights law. If, after considering possible mitigation measures, the State determines that an overriding risk of the specified negative consequences remains, the export must not be authorized (Arms Trade Treaty, 2013, Art. 7).
Germany is also subject to Council Common Position 2008/944/CFSP, as amended in 2025. Its current Criterion Two requires denial of an export licence where there is a clear risk that the military technology or equipment might be used to commit or facilitate serious violations of international humanitarian law. These EU rules form a distinct legal layer from the Geneva Conventions and the ATT and apply through the European Union’s arms-export control framework.
The ICJ did not determine in April 2024 that Germany had violated any of these rules. It nevertheless considered it particularly important to remind all States of their international obligations concerning transfers of arms to parties to an armed conflict so as to avoid the risk that such arms might be used to violate the Geneva Conventions, adding that those obligations were incumbent upon Germany in its supply of arms to Israel (ICJ, 2024, para. 24).
8.1 The Duty to Ensure Respect for the Geneva Conventions
Common Article 1 provides that the High Contracting Parties undertake to respect and ensure respect for the Geneva Conventions in all circumstances. The ICJ has interpreted this provision as having an external dimension. In the Wall Advisory Opinion, it stated that every State party, whether or not involved in the particular conflict, is obliged to ensure that the requirements of the Conventions are complied with (ICJ, 2004, para. 158).
The Court recalled the same principle in its 2024 Order in Nicaragua v. Germany. It also referred to its earlier Military and Paramilitary Activities in and against Nicaragua judgment, in which the Court held that States must not encourage persons or groups involved in a conflict to act contrary to humanitarian law (ICJ, 1986; ICJ, 2024, paras. 23–24).
The detailed content of the external obligation remains less settled than the existence of an obligation to ensure respect. The ICJ has not produced a comprehensive merits test governing every form of third-State military support. Questions concerning the precise knowledge threshold, required preventive measures, and consequences for particular categories of arms transfer remain the subject of State practice, institutional interpretation, and scholarly debate.
The ICRC’s 2025 Commentary to the Fourth Geneva Convention interprets Common Article 1 as containing both negative and positive dimensions. On that view, States must not contribute to violations of the Conventions and must use measures reasonably within their power to prevent or bring violations by others to an end. The Commentary treats foreseeability, knowledge, available means, gravity of the anticipated breach, and the State’s capacity to influence the supported party as relevant considerations (ICRC, 2025).
For arms transfers, the ICRC states that a High Contracting Party should assess the risk that its support will be used to commit or facilitate violations and should monitor the subsequent use of weapons or intelligence so that new information informs future transfer decisions and reassessment of existing licences. Conditioning, restricting, suspending, or refusing support may be among the measures available to an influential State (ICRC, 2025).
The legal status of that interpretation requires care. ICRC commentaries are highly influential expert interpretations and draw on treaty text, jurisprudence, State practice, and institutional materials, but they are not judicial decisions or treaty amendments. The ICJ’s statements establish authoritative judicial support for an external dimension of Common Article 1; the ICRC’s more detailed standards remain interpretive guidance whose application to individual German licences would have to be justified on the facts and applicable law.
8.2 Aid or Assistance Under State Responsibility
Article 16 of the ILC Articles on State Responsibility addresses one State’s aid or assistance in another State’s internationally wrongful act. The provision requires that the assisting State act with knowledge of the circumstances of the wrongful act and that the underlying act would also be internationally wrongful if committed by the assisting State (ILC, 2001, Art. 16).
Although the ILC Articles are not a treaty, the ICJ held in Bosnia and Herzegovina v. Serbia and Montenegro that Article 16 reflects a customary rule of State responsibility. The Court drew on that rule when comparing aid or assistance with complicity in genocide, while recognizing that the Convention imposed its own specific requirements for genocide-related responsibility (ICJ, 2007, para. 420).
The ILC Commentary explains that Article 16 concerns assistance supplied with a view to facilitating the wrongful act and that the assistance must actually facilitate it. The assistance need not be indispensable, but the Commentary requires a sufficiently substantial relationship, explaining that contribution may satisfy the rule even where it is not essential if it contributes significantly to the wrongful conduct (ILC, 2001).
A transfer of military equipment does not, by itself, establish Article 16 responsibility. The analysis must identify the underlying internationally wrongful act, determine what German authorities knew of its circumstances, and examine the purpose, timing, nature, and actual contribution of the assistance. The same category of equipment may produce a different legal assessment at different times as information available to the exporting State changes.
Article 41(2) of the ILC Articles addresses a different form of assistance. Where a serious breach of an obligation arising under a peremptory norm creates an unlawful situation, States must neither recognize that situation as lawful nor render aid or assistance in maintaining it. The ILC Commentary expressly distinguishes this obligation from Article 16 because Article 41 extends beyond assistance in committing the original wrongful act to assistance that helps maintain the resulting unlawful situation (ILC, 2001, Art. 41(2)).
The ICJ gave this rule particular relevance to the Occupied Palestinian Territory in its Advisory Opinion of 19 July 2024. The Court held that all States are under an obligation not to recognize as legal the situation arising from Israel’s unlawful continued presence in the Occupied Palestinian Territory and not to render aid or assistance in maintaining that situation (ICJ, 2024, para. 279).
That Advisory Opinion does not decide whether German arms exports for the current Gaza conflict constitute prohibited assistance. The Court expressly excluded from the policies and practices examined in the Advisory Opinion Israel’s conduct in the Gaza Strip in response to the attacks of 7 October 2023 (ICJ, 2024, para. 81). The non-assistance obligation concerning Israel’s unlawful continued presence and the legality of particular military exports connected with post-7 October hostilities are related questions in some factual settings, but they are not legally interchangeable.
German arms transfers can consequently engage several regimes at once: the ATT, EU export-control rules, Common Article 1, Article 16 of the law of State responsibility, Article 41(2), and the Genocide Convention. A fact sufficient to trigger concern under one regime does not automatically satisfy another. The governing knowledge threshold, type of risk, relationship to underlying conduct, and legal consequence must be identified separately.
9. What the Preliminary-Objections Judgment Could Decide
The judgment on Germany’s preliminary objections may dispose of all Nicaragua’s claims, leave most of them intact, or produce a differentiated result. Nicaragua relies on several jurisdictional titles and advances distinct substantive allegations, allowing the Court to reach different conclusions on different parts of the case.
Some objections concern the existence of jurisdiction: the presence of a legal dispute at the critical date, the temporal scope of Germany’s optional-clause declaration, and the conditions attached to the jurisdictional provisions Nicaragua invokes. Other objections have a different procedural character. In Guyana v. Venezuela, the Court clarified that the Monetary Gold principle concerns whether jurisdiction that otherwise exists may be exercised in the absence of an indispensable third State (ICJ, 2023).
If Germany succeeds only against particular claims or jurisdictional bases, the remaining claims may proceed. The Court could also determine under Article 79ter of its Rules that an objection does not possess an exclusively preliminary character, leaving it to be addressed in a later phase rather than finally resolving it at this stage.
A judgment rejecting Germany’s objections would not establish Nicaragua’s allegations on the merits. It would not determine that Israel committed genocide, that Germany failed to prevent genocide, that German arms exports violated the ATT or international humanitarian law, or that Germany incurred responsibility under Articles 16 or 41 of the ILC Articles. It would establish only that the surviving claims are capable of further adjudication before the Court.
The opposite result would be equally limited. A finding that jurisdiction is absent, a procedural condition has not been fulfilled, or Monetary Gold prevents the exercise of jurisdiction would not constitute a judicial finding that Germany’s conduct was lawful. It would mean that the ICJ cannot reach the substantive question through the claim before it.
The Court’s treatment of Israel’s absence could nevertheless influence the development of international litigation concerning third-State responsibility. The legal significance would lie in how the Court distinguishes between determining the conduct of an absent State as contextual or incidental to a claim and making that State’s legal responsibility an indispensable premise of the judgment.
Article 59 of the ICJ Statute limits the binding force of a judgment to the parties and the particular case. The Court’s reasoning nevertheless carries substantial jurisprudential authority. A narrow interpretation of Monetary Gold would leave greater scope for adjudicating independent obligations of supporting States; a broader interpretation could make such litigation more difficult where the applicant’s case depends upon establishing wrongful conduct by an absent State.
Also read
Conclusion
Nicaragua v. Germany remains at a procedural stage. Nicaragua seeks to invoke Germany’s own obligations concerning genocide prevention, international humanitarian law, arms transfers, and assistance to internationally wrongful conduct. Germany has raised several jurisdictional and procedural objections, among them the existence of a dispute at the filing date, temporal limitations on compulsory jurisdiction, objections concerning CERD, and Israel’s absence under the Monetary Gold principle.
The case exposes a genuine tension within the architecture of international adjudication. International law may impose independent duties on a State that supplies arms, political support, or other assistance to a party engaged in unlawful conduct. Yet contentious jurisdiction before the ICJ remains grounded in consent, and the Court cannot determine an absent State’s legal responsibility where that determination constitutes an indispensable premise of the judgment.
The Court’s jurisprudence does not make third-State involvement automatically fatal. Certain Phosphate Lands in Nauru permits adjudication where another State’s legal interests may be affected but need not be determined as the basis of the judgment, while Monetary Gold and East Timor mark the limit where the absent State’s legal position must first be resolved. Guyana v. Venezuela confirms that this is a question about the exercise of jurisdiction, not simply its existence.
If Nicaragua’s claims survive the preliminary objections, the merits would require a considerably different inquiry. The Court could then have to address the serious-risk threshold under Article I of the Genocide Convention, the distinction between prevention and complicity, Germany’s capacity to influence Israel, Common Article 1, the Arms Trade Treaty, Article 16 aid or assistance, and the prohibition on assistance in maintaining an unlawful situation. Until then, the September 2026 proceedings will determine how far the Court may go, not whether Germany has incurred international responsibility.
References
Arms Trade Treaty (2013) New York, 2 April 2013, entered into force 24 December 2014, 3013 UNTS 269. [online]. Available at: https://treaties.un.org/pages/ViewDetails.aspx?chapter=26&mtdsg_no=XXVI-8&src=TREATY (Accessed: 7 September 2026).
Convention on the Prevention and Punishment of the Crime of Genocide (1948) Paris, 9 December 1948, entered into force 12 January 1951, 78 UNTS 277. [online]. Available at: https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&mtdsg_no=IV-1&src=IND (Accessed: 7 September 2026).
Council of the European Union (2008) Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment, OJ L 335, 13 December 2008, p. 99, as amended by Council Decision (CFSP) 2019/1560 of 16 September 2019, OJ L 239, 17 September 2019, p. 16, and Council Decision (CFSP) 2025/779 of 14 April 2025, OJ L 2025/779, 15 April 2025. [online]. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02008E0944-20250415 (Accessed: 7 September 2026).
Federal Republic of Germany (2008) Declaration recognizing as compulsory the jurisdiction of the International Court of Justice under Article 36(2) of the Statute, 30 April 2008. [online]. Available at: https://www.icj-cij.org/index.php/node/7043 (Accessed: 7 September 2026).
Federal Republic of Germany (2025) Preliminary Objections of Germany, Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), 21 October 2025, General List No. 193. [online]. Available at: https://icj-web.leman.un-icc.cloud/case/193 (Accessed: 7 September 2026).
Federal Republic of Germany (2026) ‘Oral pleadings: first round’, Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), public sitting of 7 September 2026, ICJ Verbatim Record CR 2026/30. [online]. Available at: https://icj-web.leman.un-icc.cloud/sites/default/files/case-related/193/193-20260907-ora-01-00-bi.pdf (Accessed: 7 September 2026).
Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949) Geneva, 12 August 1949, entered into force 21 October 1950, 75 UNTS 31.
Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949) Geneva, 12 August 1949, entered into force 21 October 1950, 75 UNTS 85.
Geneva Convention (III) relative to the Treatment of Prisoners of War (1949) Geneva, 12 August 1949, entered into force 21 October 1950, 75 UNTS 135.
Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949) Geneva, 12 August 1949, entered into force 21 October 1950, 75 UNTS 287.
International Committee of the Red Cross (2025) ‘Article 1 – Respect for the Convention’, Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949: Commentary of 2025, Commentary of 17 October 2025. [online]. Available at: https://ihl-databases.icrc.org/en/ihl-treaties/gciv-1949/article-1/commentary/2025 (Accessed: 8 September 2026).
International Convention on the Elimination of All Forms of Racial Discrimination (1965) adopted 21 December 1965, opened for signature at New York on 7 March 1966, entered into force 4 January 1969, 660 UNTS 195. [online]. Available at: https://treaties.un.org/pages/ViewDetails.aspx?chapter=4&mtdsg_no=IV-2&src=IND (Accessed: 8 September 2026).
International Court of Justice (1954) Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), Preliminary Question, Judgment, 15 June 1954, I.C.J. Reports 1954, p. 19.
International Court of Justice (1986) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, I.C.J. Reports 1986, p. 14.
International Court of Justice (1992) Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, 26 June 1992, I.C.J. Reports 1992, p. 240.
International Court of Justice (1995) East Timor (Portugal v. Australia), Judgment, 30 June 1995, I.C.J. Reports 1995, p. 90.
International Court of Justice (2004) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, I.C.J. Reports 2004, p. 136.
International Court of Justice (2006) Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, 3 February 2006, I.C.J. Reports 2006, p. 6.
International Court of Justice (2007) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, I.C.J. Reports 2007, p. 43.
International Court of Justice (2011) Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, 1 April 2011, I.C.J. Reports 2011, p. 70.
International Court of Justice (2016) Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, 5 October 2016, I.C.J. Reports 2016, p. 255.
International Court of Justice (2022) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Preliminary Objections, Judgment, 22 July 2022, I.C.J. Reports 2022, p. 477.
International Court of Justice (2023) Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Preliminary Objection, Judgment, 6 April 2023, I.C.J. Reports 2023, p. 262.
International Court of Justice (2024a) Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), Provisional Measures, Order of 30 April 2024, I.C.J. Reports 2024, p. 560. [online]. Available at: https://icj-web.leman.un-icc.cloud/sites/default/files/case-related/193/193-20240430-ord-01-00-en.pdf (Accessed: 8 September 2026).
International Court of Justice (2024b) Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), Order of 19 July 2024, I.C.J. Reports 2024, p. 744. [online]. Available at: https://icj-web.leman.un-icc.cloud/sites/default/files/case-related/193/193-20240719-ord-01-00-en.pdf (Accessed: 8 September 2026).
International Court of Justice (2024c) Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion, 19 July 2024. [online]. Available at: https://www.icj-cij.org/index.php/node/204160 (Accessed: 8 September 2026).
International Court of Justice (2025) Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), Order of 22 October 2025, General List No. 193, fixing the time-limit for the written statement of observations and submissions on preliminary objections. [online]. Available at: https://icj-web.leman.un-icc.cloud/sites/default/files/case-related/193/193-20251022-ord-01-00-en.pdf (Accessed: 8 September 2026).
International Court of Justice (2026) Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany): Preliminary objections raised by Germany – Public hearings to be held from Monday 7 to Thursday 10 September 2026, Press Release No. 2026/21, 31 July 2026. [online]. Available at: https://icj-web.leman.un-icc.cloud/sites/default/files/case-related/193/193-20260731-pre-01-00-en.pdf (Accessed: 8 September 2026).
International Court of Justice (1978) Rules of Court, adopted 14 April 1978, entered into force 1 July 1978, as subsequently amended. [online]. Available at: https://www.icj-cij.org/rules (Accessed: 8 September 2026).
International Law Commission (2001) ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’, Yearbook of the International Law Commission, 2001, vol. II, Part Two, UN Doc. A/56/10, ch. IV. [online]. Available at: https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf (Accessed: 8 September 2026).
Republic of Nicaragua (1929) Declaration recognizing as compulsory the jurisdiction of the Permanent Court of International Justice, 24 September 1929, as modified by reservation dated 23 October 2001. [online]. Available at: https://www.icj-cij.org/declarations/ni (Accessed: 8 September 2026).
Republic of Nicaragua (2024) Application instituting proceedings and request for the indication of provisional measures, Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), 1 March 2024, General List No. 193. [online]. Available at: https://icj-web.leman.un-icc.cloud/sites/default/files/case-related/193/193-20240301-app-01-00-en.pdf (Accessed: 8 September 2026).
Republic of Nicaragua (2025) Memorial of Nicaragua, Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), 21 July 2025, General List No. 193. [online]. Available at: https://icj-web.leman.un-icc.cloud/case/193 (Accessed: 8 September 2026).
Republic of Nicaragua (2026) Written Statement of Nicaragua on the Preliminary Objections raised by Germany, Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany), 23 February 2026, General List No. 193. [online]. Available at: https://icj-web.leman.un-icc.cloud/case/193 (Accessed: 8 September 2026).
Statute of the International Court of Justice (1945) adopted 26 June 1945, annexed to and forming an integral part of the Charter of the United Nations, entered into force 24 October 1945. [online]. Available at: https://www.icj-cij.org/statute (Accessed: 8 September 2026).
