Historic irony: Germany is being sued over complicity in Israel's Gaza Genocide

A globally widespread turn against Israel is far from complete, but Managua’s case at the ICJ is one of its clearest indications

On April 8 and 9, the International Court of Justice (ICJ), often referred to as the World Court, will hold hearings on a case brought by Nicaragua against Germany. Managua is accusing Berlin of facilitating genocide and breaches of international law by Israel against Palestinians and seeks to end military aid to the Jewish state.

The outcome of the hearings is unpredictable. But this is clearly an important event that could have far-reaching consequences, for three reasons: First, this is the highest court of the United Nations. It has no independent capacity to enforce its rulings, but they carry political weight, whether in the short or long term. Second, while Israel is not directly present in the courtroom, its ongoing genocide in Gaza is at the core of the proceedings. Third, whichever way the ICJ ends up ruling, its decision will have implications for other countries, especially in the West, which have supported Israel and its assault.

Nicaragua’s main argument is not complicated: the UN’s 1948 Convention on the Prevention and Punishment of the Crime of Genocide (in short, Genocide Convention) codifies more than one offense. Under its terms, perpetrating a genocide – Article 3(a) – is only one way to commit a horrific crime. In addition, so is serving as an accomplice – Article 3(e). And, finally, all signatory states commit themselves not only not to be either perpetrators or accomplices, but they have also signed up to prevent and punish genocide – Article 1.

Managua’s representatives argue that Berlin is guilty on two main counts: “Germany is facilitating the commission of genocide,” they maintain, which means acting as an accomplice. And “in any case has failed in its obligation to do everything possible to prevent the commission of genocide.” In addition, Nicaragua also accuses Berlin of being in breach of international humanitarian law, also known as the law of armed conflict, as well as various other binding norms of international law – by helping Israel continue its illegal occupations, its apartheid system, and its “negation of the right of self-determination of the Palestinian people.”

Despite persistent misinformation, the term “apartheid” does not refer only to the historic case of the racist South African regime between (formally) 1948 and the early 1990s. Rather, apartheid has been an internationally recognized crime against humanity for half a century already, as confirmed again by Article 7 of the Rome Statute (the basis of the International Criminal Court) of 1998. Put simply, apartheid is a crime of the same category as, for instance, “extermination” or “enslavement” and can occur, unfortunately, anywhere.

In the same vein, the right to self-determination is not a matter of ideology or political rhetoric or, for that matter, choice. Rather, it is a bedrock principle of modern international law. It was codified in the UN Charter and has been reaffirmed repeatedly in key conventions and treaties as well as perhaps most famously in the 1960 UN General Assembly “Declaration on the Granting of Independence to Colonial Countries and Peoples.”

Nicaragua, in sum, is not fooling around: Its case appeals to numerous cardinal obligations under international law. It also digs much deeper than “merely” Germany’s actions during Israel’s currently ongoing genocidal attack on the Palestinians. In that respect, the case focuses on Germany’s continuing and, as a matter of fact, escalating military exports to Tel Aviv and on Berlin’s decision to cut off financial support to the United Nations Agency for Palestinian Refugees (UNRWA). But Managua is also targeting the fundamentals of Berlin’s long-standing policy toward Israel and thus, inevitably, also toward Palestine. The stakes, hence, are even higher than they may appear at first sight.

The public response in Germany has been muted and often unserious: The arch-conservative Welt newspaper, for instance, suspects that Nicaragua is acting in Russia’s interest: Germany is a key supporter of EU sanctions on Russia over Ukraine, so Managua – caricatured in the best Cold War style as “Moscow-loyal” – must be trying to deliver payback on the Kremlin’s behalf. Evidence? Zero, of course. (Welt is of course a flagship publication of the Axel Springer media group, which is extremely pro-Israel. It also makes money from brokerage in Israel’s illegal settlements in the occupied West Bank.)

But Germany and its convoluted motivations and rationalizations are not, actually, the most interesting aspect of this case. That, instead, lies in its international implications: This is the first time the ICJ has been asked to rule on an accusation of complicity in the Gaza Genocide.

South Africa’s complaint against Israel was, of course, about Israel’s role as the main perpetrator of the crime. The ICJ, it is important to recall, found that there is a plausible possibility that Israel is indeed committing genocide, which at this point was the worst possible outcome for Tel Aviv (because full decisions in such cases always take years). The judges issued several instructions to Israel (all of which its government has treated with total contempt) and, of course, allowed the case to proceed. In view of the way in which Israel has since only escalated its lawless violence, it may, hence, well find itself fully convicted in the not so distant future.

Meanwhile, even the ICJ’s preliminary finding that genocide is plausible has increased the urgency of the complicity issue: If genocide is at least a plausible possibility, then so is being an accomplice. Hence, the key question becomes how the court will define complicity. It is hard to see how supplying arms and ammunitions would not qualify. Likewise, Germany’s suspension of financial support for UNRWA was absurd, based on Israeli allegations that, in turn, are likely to have involved extorting false confessions by torture.

There is a reason that many other countries (such as Norway, Ireland, Belgium, Türkiye, Spain, Portugal, and Saudi Arabia) never cut off support for UNRWA, while others that did initially stop paying resumed funding (France, Japan, Sweden, Finland, Canada, and the EU). Germany’s foul compromise – to partially restore funding but to specifically exclude Gaza, where help is most urgently needed – may not impress the judges.

Nicaragua, nonetheless, is unlikely to prevail with all its charges, even if – in this author’s opinion – they all make perfect sense. But even a partial victory for Managua would have implications far beyond Germany. If the judges follow the plaintiff’s key argument about complicity even to some extent, then every government and international body that has supported Israel during its current assault on the Palestinians will be at risk of facing similar charges. As they should be.

This potential precedent effect would be reason for deep concern for the US, Great Britain, France, and the EU as a whole, or at least its power-grabbing Commission under the ruthless Israel supporter Ursula von der Leyen. As the Washington Post has noted, there is a growing global momentum, at long last, for stopping arms supplies to Israel. The US and Germany, supplying almost 99% of all arms imports to Israel, are the two major holdouts, but they also appear increasingly isolated.

And not only institutions would have reason to worry, but individuals as well. Some British civil servants are already rebelling because they resent being made accomplices to a genocide. In the same vein, more than 600 important lawyers, academics and former judges, including former Supreme Court judges have publicly warned the British government “that it is breaching international law by continuing to arm Israel.” 

This turn toward a more critical attitude toward Tel Aviv has been catalyzed mightily by the recent Israeli massacre of seven staffers of the World Central Kitchen (WCK) aid organization. While one of the victims was a young Palestinian, the others were, generally speaking, “Westerners.” Clearly, these deaths meant much more to Western elites and, on the whole, publics than those of over 30,000 Palestinians. Even in the US, dozens of Democrats in Congress have now publicly demanded that arms transfers to Israel stop. The signers included not only traditional critics of Israel such as Rashida Tlaib but also hardcore Israel supporter Nancy Pelosi.

Nicaragua filed its case with the ICJ on March 1. The hearings will take place now. As it has turned out, the viciousness of Israeli forces in general, and in the particular case of the attack on the WCK convoy, has meant that Berlin, and indirectly, Tel Aviv are now facing those hearings against a widespread, if far from complete, turn against Israel. The judges at the ICJ are, of course, jurists of the highest caliber. Their assessment of the case will not depend on this immediate background, and they may even decide to throw out Managua’s case, although they should not. But the issue of complicity in Israel’s genocide will not go away, one way or the other.

Finally, what many Germans seem to be missing, such as the hapless yet arrogant Welt with its blinkered and tired Cold War phraseology, is the fact that Nicaragua is a classical representative of both the Global South and the emerging multipolar world. In the shape of Germany, it is challenging an equally traditional, if secondary and crisis-ridden, representative of the West. The fact alone that the West is losing control of both key institutions and narratives marks fundamental change. In the infamously racist terms of EU foreign policy chief Josep Borrell, the “jungle” is paying a visit to the “garden.” And it’s the garden that is on the defensive: legally, morally, and in the eyes of most of humanity.

First published on RT.com on 7 April 2024