Rights and Accountability 25 March 2024
Chancellor Olaf Scholz, right, believes that unconditional support for Israel as it perpetrates genocide in Gaza qualifies as atonement for the extermination of European Jews perpetrated by Adolf Hitler, his World War II precedecessor as German leader.
Picture-Alliance/DPAOn April 8 and 9, the International Court of Justice will once again hold hearings on the Israeli genocide in Gaza.
This time the judges in The Hague will be listening to arguments in the case brought by Nicaragua against Germany.
The Central American nation accuses Berlin of violating its obligations under the 1948 Genocide Convention and other “intransgressible principles of international humanitarian law,” including the Fourth Geneva Convention.
Nicaragua argues that “each and every” party to the Genocide Convention has a duty “to do everything possible to prevent the commission of genocide” and that since October 2023 there has been “a recognized risk of genocide against the Palestinian people, directed first of all against the population of the Gaza Strip.”
By sending vast quantities of military equipment to Israel and defunding UNRWA, the UN agency that provides essential humanitarian support to the population of Gaza, Nicaragua charges that “Germany is facilitating the commission of genocide and, in any case has failed in its obligation to do everything possible to prevent the commission of genocide.”
According to German government-funded media, Berlin “is one of the largest arms exporters to Israel” alongside the United States.
Germany is UNRWA’s second biggest donor, behind the United States.
Nicaragua is asking the court to issue immediate provisional measures ordering Germany to end its “participation in the ongoing plausible genocide and serious breaches of international humanitarian law” in the Gaza Strip.
This would include suspending military aid to Israel and ensuring that already delivered German weapons are not used to commit genocide. Nicaragua also asked the court to require that Germany comply with international humanitarian law, and resume its funding to UNRWA.
The hearings will come after the ICJ in January ordered Israel to halt all potentially genocidal acts – including any killing of Palestinians – pending its consideration of South Africa’s genocide case against Israel.
So far there has been little reaction from the German government, however one German government-funded agency that purports to promote “freedom” and “human rights” around the world published an article smearing Nicaragua and accusing it of trying to divert attention from its own alleged human rights abuses.
This mimics the well-worn Israeli tactic of smearing South Africa and all other critics, rather than addressing the substance of their criticisms.
Why Germany?
As Nicaragua notes in its submission to the court, German leaders assert regularly that Israel’s “security” is one of their highest concerns.
Olaf Scholz, the German chancellor, told the Bundestag on 12 October, while Israel’s savage and indiscriminate bombardment and total siege of Gaza was already underway, “At this moment, there is only one place for Germany: at the side of Israel. This is what we mean when we say that Israel’s security is a German raison d’État.”
It is a sentiment that Scholz, like German leaders before him, repeats constantly.
Germany’s elites hypocritically and perversely justify this unconditional support for a genocidal apartheid settler-colony as atonement for the holocaust against Jews perpetrated by Adolf Hitler, Scholz’s World War II predecessor as German leader.At the same time, German authorities brutally crack down on almost any dissent against their policy of unconditional support for Israel.
Such repression is necessary from the perspective of German leaders because Israel’s vengeful Berlin-backed campaign of extermination and destruction in Gaza is opposed by an overwhelming majority of the German public.
Germany’s complete inability to stop perpetrating or aiding genocides makes it obvious why Nicaragua would seek to hold it accountable at the world court.But Germany is not the only country helping Israel’s effort to murder Palestinians through bombing and deliberate starvation.
What about the United States? Unfortunately, no country can bring a similar case against the United States: Although Washington has ratified the Genocide Convention, it opted out of the provision that established the International Court of Justice as the forum for resolving disputes about accusations of genocide.
Why Nicaragua?
Nicaragua points to the obligation of all states to uphold the Genocide Convention and international law as its motive for bringing the case against Germany. Yet it has its own special relationship with the Palestinian people.
The governing Sandinista liberation movement has longstanding ties of solidarity and struggle with Palestinians dating back to the 1960s.
At the same time, Israel armed and supported the savage Washington-backed Somoza dictatorship that the Sandinistas overthrew in 1979, just as Tel Aviv armed and trained other US client regimes in Central America, helping them to commit atrocities including the genocide in Guatamala.
Nicaragua also has its own history with the International Court of Justice. In the 1980s, Nicaragua took the United States to the ICJ, over Washington’s military support for the rightwing Contra counterrevolutionaries. The court upheld Nicaragua’s claims.
Did Nicaragua scare Canada into freezing new arms sales?
In February, following the ICJ decision to impose provisional measures in South Africa’s case against Israel, Nicaragua sent diplomatic notes to four countries – Germany, the United Kingdom, the Netherlands and Canada – urging them “to immediately halt the supply of arms, ammunitions, technology and/or components to Israel as it is plausible they might have been used to facilitate or commit violations of the Genocide Convention.”
These were in effect legal warnings: Nicaragua subsequently cited its diplomatic note to Germany in its complaint to the ICJ as establishing that a dispute exists between them and that therefore the case is admissible according to the world court’s rules.
So Nicaragua might still bring cases against the other three countries. It may also consider that the symbolic value of charging Berlin with aiding genocide is enough.
However, it is possible that Nicaragua’s action against Germany is having the desired effect on at least one of the other countries, namely Canada.
Earlier this month – just a week after Nicaragua filed its ICJ case against Germany – Canada announced that it was restoring funding to UNRWA, suspended in the wake of baseless Israeli allegations against the agency’s staff.
Canada, Sweden, Australia, Iceland and Finland are so far the only ones to restore their UNRWA funding from among the 18 countries, led by the United States, which paused their contributions.
And last week, Ottawa announced that it had not issued any new arms export licenses for Israel since 8 January and that a freeze would remain in place until Canada is certain that Israel is using such weapons in accordance with Canadian law.
This came after the Canadian parliament passed with a big majority a nonbinding resolution calling on the government to “cease the further authorization and transfer of arms exports to Israel.”
Ottawa’s announcement comes with the caveat that licenses issued prior to 8 January will not be canceled – a move campaigners are slamming as an effort to limit the effect of the decision.
They continue to push for a total embargo on all arms transfers to Israel.
Notwithstanding these important reservations, Ottawa’s announcement is a momentous one, especially for a NATO member and a close ally of Israel and the United States.Tel Aviv’s enraged reaction suggests it is worried that Ottawa has set a precedent others will follow, or that Canada itself may impose more severe restrictions.
While the Liberal government of Prime Minister Justin Trudeau may have been reacting to sustained domestic outrage at his government’s support for Israel’s genocide, it cannot be ruled out that Nicaragua’s case against Germany also concentrated minds in Ottawa.
Despite marketing itself as a multicultural haven and champion of human rights, Canada has had to confess – albeit reluctantly and belatedly – to the genocide of its Indigenous people.
Canadian leaders may hope that slightly pulling back on their support for Israel will spare them the embarrassment of ending up in the world court dock alongside Israel and Germany.
Is Nicaragua’s case on firm legal ground?
Some experts are warning that Nicaragua’s case could face a fatal hurdle – a legal principle called the indispensable third-party rule.
In simple terms, this rule bars the court from hearing cases where the judges would have to decide on a matter affecting the rights of a state that is not a party to that case. In Nicaragua vs. Germany, the absent third party would be Israel.
“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?” argues Stefan Talmon, professor of international law and director at the Institute for Public International Law at the University of Bonn in Germany.
“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.”
Since the court has yet to adjudicate whether Israel has committed genocide in the case of South Africa vs. Israel – a process that could take years – in Talmon’s view, the Nicaraguan case against Germany stands little chance of success.
But this assessment is contested by other experts. Marco Longobardo, a professor of international law at the University of Westminster in the UK, points out that Nicaragua has brought its case against Germany not only under the 1948 Genocide Convention, but under other provisions of international humanitarian law including the Fourth Geneva Convention.
Pointing to the recent order by a court in The Hague that the Dutch government stop supplying Israel with spare parts for its F-35 warplanes, Longobardo notes that “the duty to ensure respect for [international humanitarian law] arises when a state is aware that another state is committing serious violations of [international humanitarian law] … or when there is a clear risk that this might be the case.”
Longobardo argues that in order to find Germany guilty of failing to meet its obligations under international humanitarian law, it is enough to show that Germany was aware that there was a clear risk of violations by Israel without the judges needing to determine definitively whether Israel did in fact commit such violations.
Other legal experts have weighed in on the debate and there are arguments that even if the indispensable third-party rule applies, it would not necessarily come into play at the first stage where the court is deciding only on Nicaragua’s demand for provisional measures ordering Germany to stop aiding Israel’s crimes.
According to Susan Akram, director of the International Human Rights Clinic at Boston University’s School of Law, “the jurisprudence is not settled” as to whether and at what point the indispensable third-party rule might kick in.Akram told The Electronic Intifada that in her view, “since this is the provisional measures phase, the ICJ can find that as a matter of admissibility it can go forward to determine whether Germany is provisionally complicit in genocidal acts being committed or not without the need for including Israel as a party.”
“The court does not have to find that genocide is being committed, but that if Germany is providing weapons to a state that may be engaging in genocidal acts, it is at least provisionally complicit and is violating its own obligations to prevent genocidal acts,” Akram said.
The differing views underscore that the law in this area is not settled and so it is difficult to predict what the court might do. Germany is likely to argue that the indispensable third-party rule applies and that the case should be thrown out.
The written submission from Nicaragua does not directly address the matter, so it remains to be seen whether its legal team will preemptively raise it in the upcoming oral arguments.
The bottom line is that the judges have a lot of leeway. But if they are uneasy about having to decide if Germany is responsible – at least in part – for yet another genocide, they could invoke this rule as an easy way out.
Will Berlin Palestine conference be banned?
Even as German government lawyers prepare to defend their position in The Hague, Berlin’s repression against supporters of Palestinian rights continues to mount.
Last week the pro-Berlin press went into a panic about a conference planned for April organized by a grassroots coalition including Palestinian and Jewish German groups.
The invited speakers include the Palestinian German lawyer Nadija Samour who recently filed a genocide case against German leaders with national prosecutors; Ghassan Abu Sitta, the British Palestinian surgeon who recently returned from Gaza; anti-Zionist Israeli and Jewish activists Dror Dayan, Yuval Gal and Shir Hever, and Palestinian journalists including Hebh Jamal; former Greek finance minister and left-wing politician Yanis Varoufakis; and this writer.German media are smearing the gathering as anti-Semitic, extremist and a “hate summit.”
This has prompted calls to ban the conference, which German authorities are reportedly considering. German media have also speculated that authorities might issue entry bans on international speakers, including this writer.
Comments
Vile
Permalink Max replied on
There goes Germany being fascist still... Go get 'em Ali
German racism
Permalink Shiva Shankar replied on
Abdulrazak Gurnah and afterlives of German colonialism, Tom Menger
Gurnah’s Nobel Prize invites us to ponder Germany’s colonial past between the Scramble for Africa and the First World War in what is now Tanzania, Burundi, and Rwanda.
https://africasacountry.com/20...
European perpetrators of colonial violence employed such “spectacles” of brutal violence as they believed these would send a message to what, in British colonial discourse, was frequently referred to as “the native mind.” Once the Germans had subjugated the coast in 1890, they turned their attention to wresting control of the Arab-dominated caravan trade that ranged from the sea to the Congo. German rule continued to penetrate inland territories until the turn of the 20th century. The wars that ensued were characterized by especially destructive violence. Indiscriminate targeting of fields, harvests, and villages was part of the colonial wars’ standard repertoire (not only that of the Germans) to starve the evasive enemies into submission. The most devastating episode in this mode of warfare was the Maji Maji War of 1905-1907, when several ethnicities simultaneously revolted against the forced labor and punitive taxation of colonial rule. Gurnah is unambiguous about the gruesomeness of the war: “the Germans have killed so many that the country is littered with skulls and bones and the earth is soggy with blood.” Research estimates that the war cost up to 300,000 lives, principally due to the starvation that resulted from the scorched-earth tactics. When the First World War reached the shores of East Africa, Europeans for the first time battled other Europeans. Lettow-Vorbeck’s troops ruthlessly confiscated the stores of the local population to feed themselves, and then proceeded to burn everything in their wake to stall their enemies. The result was desperate hunger. Local populations that resisted faced severe reprisals
Canada's grudging move
Permalink Eric replied on
Since the Trudeau Liberals managed to force the NDP to water down the resolution, especially its demand to recognize Palestine as a state, government politicians are spinning it as an endorsement of existing policy. Notably they claim it doesn't block military sales to Israel approved before January 8, when supposedly Ottawa stopped issuing new permits (three months after Israel began its slaughter).
But some comfort can be taken in its clear opposition to the genocide, which Liberals had tried to avoid, the overly harsh reaction by Israel, and that a parliamentary debate on this issue over an opposition bill was held. It reportedly also endorsed the ICJ and ICC to investigate Israel, which the government had resisted. And how can Canada live up to its obligation to do what it can to block genocide if it continues to send (already approved) military goods to the county plausibly committing genocide?
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