Separate opinion of Vice-President Sebutinde

SEPARATE OPINION OF VICE-PRESIDENT SEBUTINDE
Although I have voted with the majority in rejecting Nicaragua’s Request for provisional
measures, I do not agree with the approach that the Court has adopted in handling the Request, nor
do I agree with the scanty reasoning that underpins the Order  There is a need to strictly adhere
to the criteria that the Court has developed in its jurisprudence for the indication of provisional
measures  It is highly doubtful whether the Court has prima facie jurisdiction as Nicaragua has
not demonstrated that a dispute had crystalized between the Parties as of 1 March 2024 when it filed
its Application  In any event, the Court is precluded from exercising its jurisdiction at this stage
or at all in relation to any of Nicaragua’s claims against Germany, since deciding on Germany’s
impugned conduct, would as a prerequisite, require the Court to first assess the lawfulness of the
conduct of Israel, an indispensable third party that has not consented to these proceedings  The
requirement of urgency has not been met because Nicaragua has not demonstrated that Germany’s
impugned conduct poses a real and imminent risk of irreparable prejudice to the rights of
Nicaragua  Nicaragua’s Request for provisional measures was rightly rejected.
I. INTRODUCTION
1. Of recent, there is an increasing inclination amongst States to resort to the procedures
referred to in Article 41 of the Statute of the Court. This trend may be attributed to the fact that the
procedures offer easier and quicker means of obtaining binding orders from the Court, coupled with
a relatively modest standard of proof required, even if ultimately, the success of the primary claim
of an applicant seems bleak or uncertain. Furthermore, Article 74 of the Rules of Court gives priority
to requests for the indication of provisional measures over other cases, ensuring prompt binding
decisions from the Court, compared to substantive proceedings that could potentially span months or
years before completion. Whilst the above characteristics underscore the importance and efficiency
of provisional measures procedures within the Court’s framework, the Court must jealously guard
its judicial function by ensuring that these procedures are not abused or misused, and that applicant
States strictly and transparently comply with the criteria the Court has developed in its jurisprudence
relating to the indication of provisional measures. In my respectful opinion, the Court is once again
being asked by a State to micro-manage the conduct of hostilities in the ongoing conflict between
Israel and Hamas by issuing “provisional measures”. Nicaragua’s Request for provisional measures,
if granted, would restrict military assistance to one of the parties to the conflict (Israel), regardless of
whether that assistance is intended for Israel’s own self-defence; while allowing the other party
(Hamas) to maintain access to all kinds of military assistance from its friends and allies, regardless
of whether that assistance is intended for unlawful purposes. Considering the immense global
attention and public scrutiny surrounding this conflict, alongside its political nuances, the Court
ought to have rigorously adhered to the criteria for the indication of provisional measures, to mitigate
any perception of bias. Regrettably, the Court has deviated from this well-established approach,
opting not to reference or apply any specific criteria but rather making general allusions to “the
circumstances” of the case.
Need for a strict adherence to the criteria developed in the Court’s
jurisprudence for the indication of provisional measures
2. The Court has progressively developed legal standards to determine whether and when it
should exercise its power under Article 41 of its Statute to indicate the provisional measures. These
criteria include the determination of the Court’s prima facie jurisdiction (and in some cases prima
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facie standing of the requesting party)1; a plausibility test to establish if the rights asserted by the
requesting party are plausible and if they have a link with the requested provisional measures2; and
an assessment of urgency in the sense that there is a real and imminent risk that irreparable prejudice
will be caused to the rights asserted before the Court gives its final decision3. The Court has held that
where any one of the above criteria is not met, the request for the indication of provisional measures
will not be granted. In the present case, Nicaragua’s failure to meet several of the above criteria is,
in my view, fatal to the Applicant’s Request.
3. Although I have voted with the majority in rejecting Nicaragua’s Request for provisional
measures against Germany, I do not agree with the strange approach that the Court has adopted in
handling the Request, nor do I agree with the scanty reasoning that underpins the Order of the Court.
There is also no discernible reason for shying away from an outright rejection or dismissal of the
Request in the operative clause, in accordance with the usual practice of the Court. Instead, the Court
has for no discernible reason, chosen to adopt the softer language reflected therein. The fact of the
matter is that the Court has rejected Nicaragua’s Request because it does not meet the criteria that
the Court has developed in its jurisprudence for the indication of provisional measures. In this
separate opinion, I give the reasons for my rejection of Nicaragua’s Request.
II. PRIMA FACIE JURISDICTION
4. In the Order, the Court makes no mention whatsoever of the requirement for a showing of
prima facie jurisdiction. Regrettably, other than a cursory conclusion in paragraph 21 of the Order
that “[i]n the present case, there being no manifest lack of jurisdiction, the Court cannot accede to
Germany’s request” (to remove the case from the list), there is nothing in the Order showing how the
Court arrived at such a conclusion ; nor is there any indication that the Court gave any prior
consideration to the Parties’ extensive arguments relating to jurisdiction and the exercise of
jurisdiction.
5. The Court may indicate provisional measures only if the provisions relied on by the
applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but it need
not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case4. In
the present case, Nicaragua relies for jurisdiction on the Parties’ Declarations accepting the
compulsory jurisdiction of the Court under Article 36 (2) of the Court’s Statute and Article IX of the
Genocide Convention to which both Germany5 and Nicaragua6 are parties; there being no
reservations in either Declaration relevant to the present case7. The Court would have jurisdiction
over Nicaragua’s claims under Article IX of the Genocide Convention only if it is demonstrated that
1 See e.g. Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of
Genocide (Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 6,
para. 24; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 3, paras. 16-42.
2 See e.g. Alleged violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic
Republic of Iran v. United States of America), Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II),
p. 638, para. 53.
3 See e.g. ibid., pp. 645-646, paras. 77-78.
4 Allegations of Genocide Under the Convention on the Prevention and Punishment of the Crime of Genocide
(Ukraine v. Russian Federation), Provisional Measures, Order of 16 March 2022, I.C.J. Reports 2022 (I), p. 6, para. 24.
5 United Nations Treaty Series, Vol. 201, p. 369.
6 United Nations Treaty Series, Vol. 120, p. 300.
7 Nicaragua’s reservation contained its Declaration dated 24 December 1929 relates to matters before 1901, while
Germany’s reservation contained in its Declaration dated 30 April 2008 relates to the deployment of its armed forces abroad
and the use of German territory for military purposes.
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they involve a dispute relating to the interpretation, application, or fulfilment of that Convention.
Article IX of the Genocide Convention provides that:
“Disputes between the Contracting Parties relating to the interpretation,
application, or fulfilment of the present Convention, including those relating to the
responsibility of a State for genocide or for any of the other acts enumerated in
Article III, shall be submitted to the International Court of Justice at the request of any
of the parties to the dispute.”
6. For prima facie jurisdiction to be established, (i) a dispute must exist between the Parties as
at the date of filing the Application (1 March 2024) and (ii) the acts complained of by the Applicant
must be capable of falling within the scope of the treaty or treaties invoked.
The existence of a dispute
7. In the present case, the existence of a dispute (i.e. a disagreement on a point of law, a conflict
of legal views or interests between the parties relating to “the interpretation, application, or fulfilment
of the present Convention, including those relating to the responsibility of a State for genocide or for
any of the other acts enumerated in Article III”) is a sine qua non for the exercise of jurisdiction8. To
establish the existence of a dispute, the Court must consider any statements, conduct and exchanges
between the Parties and determine whether, at the time Nicaragua submitted its Application, a dispute
existed between the Parties concerning the claims at issue. Nicaragua’s claims against Germany are
categorized as follows9:
(a) Germany’s alleged violation of the Genocide Convention through its failure to prevent the
genocide against the Palestinian people in Gaza; its complicity in or facilitation of genocide by
providing aid and assistance to Israel, in particular weapons that would or could be used in the
commission of genocide; and by suspending the provision of funds to UNRWA.
(b) Germany’s alleged violation of the Geneva Conventions of 1949 in particular, the Convention IV
relative to the protection of Civilian Persons in times of war, and their Additional Protocol of
1977, by providing aid and assistance to Israel, in particular weapons that would or could be used
in the commission of genocide, war crimes and crimes against humanity, including attacks
directed against civilians or civilian objects.
(c) Germany’s alleged violation of the principles of customary rules of international law, including
erga omnes principles of international humanitarian law and peremptory norms of general
international law, including the prohibition of racial discrimination and apartheid, including
rendering assistance to Israel in its serious breaches of those norms.
(d) Germany’s alleged violation of international law by failing to prosecute, bring to trial and punish
persons responsible for, or accused of grave crimes of international law, including war crimes
and apartheid, whether such persons are German nationals or not.
8. To prove the existence of a dispute, Nicaragua refers to two statements that it contends set
out its complaint against Germany. First, the Applicant refers to a press release dated 1 February
2024 stating that Nicaragua had “notified the governments of the United Kingdom, Germany, the
Netherlands and Canada of its decision to hold them responsible under international law for gross
and systematic violations to the Convention on the Prevention and Punishment of the Crime of
8 Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11.
9 Application of Nicaragua, para. 67.
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Genocide, international humanitarian law and customary law, including the law of occupation in the
Occupied Palestinian Territories, in particular the Gaza Strip”10. Secondly, the Applicant refers to a
Note Verbale dated 2 February 2024 sent by Nicaragua to Germany in which Nicaragua sets out its
claim that Germany has violated the Genocide Convention as well as international humanitarian law
and customary international law “in the context of its failure to prevent and facilitation of breaches
of international law by Israel in its operation against Palestinians in the Occupied Palestinian
Territories, particularly Gaza”11. Nicaragua argues that a spokesperson of the German Foreign Office
made clear Germany’s rejection of Nicaragua’s claims in a press conference on 7 February 202412.
The Applicant also asserts that Germany continued to publicly reiterate its support for Israel after
receiving Nicaragua’s Note Verbale13 and that Germany expressed its opposition to Nicaragua’s
claims on 11 March14.
9. According to Germany, Nicaragua did not send its said Note Verbale using the ordinary
diplomatic channels and Germany only located it on 13 February and acknowledged its receipt on
14 February 202415. Subsequently, while Germany was considering its response. Nicaragua launched
proceedings, without allowing for any opportunity to engage16. Accordingly, Germany contests the
existence of a dispute and consequently, of prima facie jurisdiction. It argues that for a dispute to
have existed, there must have been some form of meaningful engagement by Germany with
Nicaragua’s claim that would have crystallized the dispute17.
10. In my view, Nicaragua’s statements and communications referred to above contain only
some but not all the claims that Nicaragua has asserted in its Application. Notably the statements
refer to Germany’s support for Israel and its temporary suspension of financial assistance to UNRWA
as violating Germany’s obligations under the Genocide Convention and international humanitarian
law. However, Nicaragua’s statements did not detail the third and fourth category of claims
pertaining to Germany’s alleged complicity in Israel’s violation of the Palestinian people’s right of
self-determination, the maintenance of “an apartheid régime” and the failure by Germany to
prosecute and punish persons responsible for grave crimes under international law18. The term
“self-determination” is not mentioned at all in the Note Verbale and is mentioned only once in the
press release. The word “apartheid” does not appear at all in either document and nor does either
document mention any obligation by Germany to prosecute or punish any individuals for war crimes.
Nicaragua’s press release contains a single reference to “international humanitarian law and
customary law” with no mention of any specific obligation violated or of the Geneva Conventions
or of common Article 1, a key element in Nicaragua’s claims. Thus, assuming, arguendo, that
Nicaragua effectively communicated its claims to Germany (which is doubtful) this would only
concern Nicaragua’s allegations in relation to the Genocide Convention, and not its other claims.
11. More importantly however, is Germany’s response to Nicaragua’s Note Verbale and Press
statement. On 7 February 2024 before Germany had located or seen Nicaragua’s Note Verbale, a
spokesperson for the German Foreign Ministry stated at a press conference in response to questioning
10 Ibid., Ann. 3.
11 Ibid., Ann. 1.
12 Ibid., para. 30.
13 CR 2024/15, p. 50, para. 7 (Argüello Gómez).
14 CR 2024/15, pp. 50-51, para. 8 (Argüello Gómez).
15 CR 2024/16, pp. 31-32, para. 28 (Wordsworth).
16 CR 2024/16, p. 31, paras. 30-31 (Wordsworth).
17 CR 2024/16, p. 31, para. 27 (Wordsworth).
18 Application of Nicaragua, paras. 67 (5) and (6).
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about the 1 February 2024 press release that “We reject the contents of the press release”19. Whilst
in Nicaragua’s view, this statement suffices to demonstrate Germany’s opposition to all the claims
of Nicaragua, this single statement by one German spokesperson is insufficient to show that a dispute
existed regarding all of Nicaragua’s claims at the time the Application was submitted. It is unclear
which aspects of the press release or of Nicaragua’s claims in this case Germany is said to have
rejected. Nicaragua has not demonstrated how Germany’s rejection of the press release can be said
to have demonstrated its opposition to all of Nicaragua’s claims contained in its Application,
particularly given that most of those claims were not set out in the press release. At best, Germany’s
response or answer of its spokesperson can be said to demonstrate its opposition to Nicaragua’s claim
concerning the Genocide Convention, the only claim that was discussed in any detail in the press
release. But even with respect to that claim, the relatively general and vague “rejection” does not
clearly express opposition to the specific claims of complicity in genocide made in the press release.
In my view, it is doubtful whether the Court has prima facie jurisdiction in the sense that a dispute
had not crystalized between the Parties as of 1 March 2024 when Nicaragua prematurely filed the
Application. Considering the foregoing conclusion, it is not necessary for me to determine whether
Nicaragua’s claim under the Genocide Convention is “capable of falling” within the provisions of
that treaty. Besides the problem of prima facie jurisdiction, there is a bigger concern regarding
whether the Court can exercise jurisdiction, assuming, arguendo, that it did have prima facie
jurisdiction.
III. EXERCISE OF THE COURT’S JURISDICTION AND
THE MONETARY GOLD PRINCIPLE
12. A more difficult hurdle for Nicaragua to overcome relates to Germany’s argument that
even if the Court were to find that it has jurisdiction (as indeed it appears to do in paragraph 21 of
the Order) it is precluded from exercising that jurisdiction20. Germany argues that, since Israel’s
alleged violations of international law constitute the bedrock of Nicaragua’s Application and Request
for provisional measures (Nicaragua frequently refers to serious breaches by Israel of international
humanitarian law (“IHL”) and other peremptory norms of international law taking place in
Palestine)21, the Court must examine whether it is able to exercise jurisdiction during these
proceedings, in the absence of Israel, an indispensable third State that has not consented to these
proceedings22. Germany argues further that indicating provisional measures in the present case would
entail a prior assessment of wrongful conduct on the part of Israel, yet Israel would have no standing
to challenge the order without Nicaragua’s consent23, and that accordingly, the Monetary Gold
principle requires the Court to reject Nicaragua’s Request on that ground. For its part, Nicaragua
contends that the subject-matter of its claims is not the conduct of Israel but that of Germany, namely,
the alleged violation by Germany of its own obligations under the Genocide Convention and IHL24.
13. A fundamental principle of international law is that the Court will not decide a dispute
between sovereign States without their consent to its jurisdiction25. In a series of cases the Court,
referring to this principle, has explained that it cannot exercise its jurisdiction in situations whereby
deciding on the claim of one State against another State, would require it to rule, as a prerequisite,
19 Application of Nicaragua, Ann. 4.
20 CR 2024/16, pp. 24-25, para. 6 (Wordsworth).
21 CR 2024/16, p. 26-29, paras. 13-17 (Wordsworth).
22 CR 2024/16, pp. 24-25, para. 6 (Wordsworth).
23 CR 2024/16, pp. 25-26, paras. 8-9 (Wordsworth).
24 CR 2024/15, pp. 39-48, paras. 10-33 (Pellet).
25 Article 36 of the Statute of the Court.
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on the lawfulness of the conduct of a third State (also referred to as an indispensable third party)26.
This is often referred to as the Monetary Gold principle, taking its name from the relevant case. For
the Monetary Gold principle to apply, there must be two key elements, namely (i) the legal interest
of a third State must form “the very subject-matter of the decision”; and (ii) deciding upon the
conduct of the third State must be a “prerequisite” for deciding upon the claim before the Court. If
the principle is implicated, the Court should decline to exercise jurisdiction, even prima facie. To
conclude otherwise would allow an applicant to receive the benefit of a binding order of the Court in
circumstances when its claim will clearly be subject to dismissal for lack of jurisdiction or
admissibility at a later stage of the proceedings. To determine whether the Court’s prima facie
jurisdiction is not barred by the Monetary Gold principle, it is necessary to examine each category
of the Applicant’s claims as presented in Nicaragua’s own words.
1. Alleged violation of obligations under the Genocide Convention
14. The first category of Nicaragua’s claims concerns the allegation that Germany has:
(a) breached and continues to breach its obligations under the Genocide Convention, in particular
the obligation provided in Article I by, with full knowledge of the situation, failing to prevent the
ongoing genocide against the Palestinian people in particular Gazans;
(b) breached and continues to breach its obligations under the Genocide Convention, in particular
the obligation provided in Article I by . . . providing aid, including military equipment, to Israel
that would be used in the commission of genocide by Israel, and by withdrawing the financial
assistance to victims provided by UNRWA27.
15. The obligation to prevent genocide arises as soon as there is a risk or indication that
genocide may occur. State parties to the Convention have a legal duty to take measures to prevent
genocide within their territories or under their jurisdiction. The international community as a whole
has a responsibility to prevent genocide and States are encouraged to co-operate in preventing and
suppressing acts of genocide. The obligation not to be complicit in genocide arises whenever a State
has the knowledge or reasonable belief that genocide is being committed or is about to be committed
and that State fails to take active steps to prevent or stop it. The obligation also entails refraining
from any actions that could contribute to or facilitate genocide. However, the Court has held that “a
State can be held responsible for breaching the obligation to prevent genocide only if genocide was
actually committed”28. Thus, for the Court to be able to find that Germany has “failed to prevent the
ongoing genocide by Israel against the Palestinian people in Gaza” or has been complicit in genocide
by “providing aid, including military equipment, to Israel that would be used in the commission of
genocide by Israel” as alleged by Nicaragua, it must necessarily find, as a prerequisite, that genocide
has in fact been committed in Gaza by Israel. The latter is a precondition for the former. In other
words, the conduct of Israel (an indispensable third party that has not given its consent in these
proceedings) would form “the very subject-matter of the decision” and deciding upon that conduct
would be a prerequisite for deciding upon Germany’s impugned conduct. In my view, the above
26 See 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, I.C.J. Reports 1954, p. 32; Certain Phosphate
Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 261-262, para. 55; East
Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 28; Arbitral Award of 3 October 1899
(Guyana v. Venezuela), Preliminary Objection, Judgment of 6 April 2023, paras. 86-107.
27 Application of Nicaragua, para. 67.
28 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnian and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 221, para. 431.
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circumstances pose an irreconcilable obstacle to the exercise of the Court’s jurisdiction. Exercising
jurisdiction in those circumstances would run afoul of the Monetary Gold principle.
2. Alleged violation of obligations under Article 1 of the Fourth Geneva Conventions
of 1949 and customary international law
16. The second category of claims concerns the allegation that Germany has:
(a) breached and continues to breach its obligations under Article 1 of the Fourth Geneva
Conventions and the . . . principles of humanitarian law, not only by failing to ensure that the
requirements of that Convention are complied with by Israel, but also by
(b) providing aid, including military equipment that would be used in the commission of genocide,
crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed
against civilian objects or civilians protected as such, or other war crimes, in violation of its
duties under the Geneva Conventions of 1949 and customary international law and
(c) by withdrawing Germany’s financial assistance to UNRWA29.
17. Under Article 1 of the Fourth Geneva Convention, which is common to the four Geneva
Conventions, a State party undertakes to respect and ensure respect for the Conventions in all
circumstances, regardless of whether it is a party to the conflict or not. States are under an obligation
to take effective measures to prevent and suppress violations of the Conventions by their own armed
forces, as well as by any persons or groups over which they exercise control. In its Wall advisory
opinion, the Court observed that “It follows from that provision that every State party to that
Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the
requirements of the instruments in question are complied with”30. Nicaragua does not claim that
Germany itself has committed acts in Gaza amounting to serious violations of IHL. Rather,
Nicaragua asserts that Germany has failed to comply with this provision to the extent its conduct has
aided or assisted Israel in violating international humanitarian law or has failed to ensure Israel’s
respect for these norms31. As is clear from Article 16 of the ILC’s Articles on State Responsibility
and its commentary, a finding of aid or assistance requires as a prerequisite that a wrongful act be
committed in the first place32. Determining the IHL violations by Israel would require the Court to
engage in a detailed examination of Israel’s military operations in Gaza and at the very least, to come
to a tentative conclusion concerning the legality of those operations. This would run afoul of the
Monetary Gold principle as it would require the Court to make determinations regarding Israel’s
conduct without Israel’s consent33.
18. A similar conclusion applies to Nicaragua’s claim under common Article 1 of the Geneva
Conventions. In examining this claim, is not clear whether the Court would be required to definitively
conclude whether Israel’s acts violate international humanitarian law. It may be enough for
Nicaragua to show that the commission of such violations was “likely or foreseeable” for Germany’s
29 Application of Nicaragua, para. 67.
30 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, pp. 199-200, para. 158.
31 Application of Nicaragua, para. 88.
32 Articles on the Responsibility of States for Internationally Wrongful Acts, Article 16 and commentary.
33 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 28.
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obligations under common Article 1 to be triggered34. However, even determining the likelihood or
foreseeability of IHL violations by Israel would require the Court to engage in a detailed examination
of Israel’s military operations in Gaza and at the very least, to come to a tentative conclusion
concerning the legality of those operations. This would fall afoul of the Monetary Gold principle as
it would require the Court to make determinations regarding Israel’s conduct in the absence of
Israel’s consent35. In other words, deciding upon the conduct of Israel in Gaza would form “the very
subject-matter of the decision” and is a “prerequisite” for deciding upon Germany’s impugned
conduct.
3. Alleged violation of other obligations under customary international law
19. The third category of claims concerns the allegation that Germany has breached and
continues to breach its conventional and customary law obligations, including the obligation to
facilitate and co-operate in bringing about the Palestinian people’s right to self-determination, by
providing aid and particularly military equipment to Israel that is used to deny this right of
self-determination and moreover helps to maintain and impose an alleged apartheid regime.
20. A State is said to assist or be complicit in the violation of peremptory norms of international
law, such as the right to self-determination, when it provides support, assistance, or encouragement
that facilitates or enables the commission of violations of such norms by another State or non-state
actor. For the Court to determine whether Germany’s conduct amounts to a violation of this
obligation, it would have to make a prior determination that Israel (an indispensable third State that
has not consented to these proceedings) had violated those norms in the first place. This too would
be inconsistent with the Monetary Gold principle as it would require the Court to make
determinations regarding Israel’s conduct in the absence of Israel’s consent36. As the Court noted in
the East Timor case, the Monetary Gold principle applies even if the right in question is a right erga
omnes37.
4. Alleged violation of the obligation to prosecute and punish
21. The last category of claims concerns the allegation that Germany has breached and
continues to breach international law by refusing to prosecute, bring to trial, and punish persons
responsible for, or accused of grave crimes under international law, including war crimes and
apartheid, whether such persons are German nationals or not38. In this regard, Nicaragua seems to
expect Germany to assert universal criminal jurisdiction over persons allegedly committing these
grave crimes outside Germany (i.e. in the Occupied Palestinian Territories).
22. States are obliged to investigate and prosecute individuals within their jurisdiction who are
responsible for committing grave crimes under international law. Treaty law, such as the Geneva
Conventions and their Additional Protocols, the Rome Statute of the International Criminal Court
and the Genocide Convention, establish specific obligations for States parties thereto to prosecute
and punish individuals responsible for grave crimes. Whilst some States may choose to assert
universal jurisdiction over individuals accused of serious international crimes, there is no obligation
34 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgment, I.C.J. Reports 1986, p. 130, para. 256.
35 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 28.
36 Ibid.
37 Ibid., p. 102, para. 29.
38 Application of Nicaragua, para. 67.
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under international law for Germany to establish universal jurisdiction over grave crimes committed
outside Germany or by non-German nationals. A decision to establish universal jurisdiction is
ultimately a matter of national law and policy for each State. In the present case, for the Court to
determine whether Germany’s impugned conduct amounts to a violation under international law, it
would have to make a prior determination that Israel (an indispensable third State that has not
consented to these proceedings) was in violation of the Genocide Convention or the prohibition
against apartheid or that individuals in Israel had committed grave crimes under the Rome Statute.
This too would run afoul of the Monetary Gold principle as it would require the Court to make prior
determinations regarding Israel’s conduct without Israel’s consent39.
23. In conclusion, I am of the view that even if one was to conclude that the Court did have
jurisdiction in this case, prima facie the Court cannot exercise that jurisdiction in relation to any of
Nicaragua’s claims against Germany, since deciding on Germany’s impugned conduct, would
require the prior assessment, of the lawfulness of the conduct of Israel, an indispensable third party
that has not given its consent to these proceedings. For me, this conclusion is not only dispositive of
Nicaragua’s Request for provisional measures but is also fatal to Nicaragua’s primary case against
Germany. I would have disposed of Nicaragua’s case at this stage.
IV. THE PRE-CONDITION OF URGENCY AND RISK OF IRREPARABLE PREJUDICE
24. Germany argues that there is no imminent risk of harm to Palestinians in Gaza associated
with Germany’s provision of assistance to Israel. In this regard, Germany notes that its existing legal
procedures for exporting arms remove any imminent risk that Germany would assist Israel in
violating international law40. Furthermore, Germany highlights the significant drop in military
assistance to Israel since 7 October 202341. Finally, Germany emphasizes that it continues to provide
humanitarian assistance and that, in any event, the lack of humanitarian aid in Gaza is not caused by
a lack of funding, but rather a lack of coordination in distribution of humanitarian aid, amongst other
problems42.
25. The Court has stated that “the power of the Court to indicate provisional measures will be
exercised only if there is an urgency, in the sense that there is a real and imminent risk that irreparable
prejudice will be caused before the Court gives its final decision”43. In assessing the existence of
such a risk, the Court is not requested to establish breaches of the relevant international rules or make
definitive findings of fact, but instead, may consider whether the asserted rights are of such a nature
that their violation may entail irreparable consequences44.
26. In its rulings in the South Africa v. Israel provisional measures Orders, the Court noted the
dire humanitarian situation in the Gaza Strip and concluded that the situation is at severe risk of
39 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 28.
40 CR 2024/16, p. 44, paras. 14-16 (Palchetti).
41 CR 2024/16, p. 46, paras. 25-27 (Palchetti).
42 CR 2024/16, p. 47, paras. 32-35 (Palchetti).
43 Alleged violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of
Iran v. United States of America), Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II), p. 645,
para. 78.
44 Ibid., p. 649, para. 90.
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further deterioration before the Court issues its final judgment45. However, the present case is not
about Israel’s ongoing military offensive in Gaza, as such. Rather, it concerns the role played by
Germany in relation to Israel’s conduct. In paragraphs 16 to 20 of the Order, the Court rightly
highlights Germany’s role and conduct regarding the kind and value of military assistance it has
supplied to Israel during the Israeli/Hamas war. In particular, the Court rightly notes that Germany’s
existing legal framework for the manufacture, export and marketing of weapons and other military
equipment is stringent and rigorous enough to removes any “real and imminent risk of irreparable
harm to Nicaragua’s asserted rights” that Germany’s conduct would otherwise cause46. Furthermore,
Germany highlights the significant drop in military assistance to Israel since 7 October 202347.
Finally, although Germany emphasizes that it continues to provide humanitarian assistance to the
victims in the Occupied Palestinian Territory and that, the lack of humanitarian aid in Gaza is not
caused by a lack of funding but rather of maldistribution48, Germany is under no legal obligation
under international law, much less under the Genocide Convention, to donate humanitarian
assistance to victims of war anywhere. Accordingly, the requirement of urgency has also not been
met in this case.
V. CONCLUSION
27. Considering the foregoing, the conditions for the indication of provisional measures in the
present case have not been met. The Court does not have prima facie jurisdiction to entertain
Nicaragua’s claims on the grounds that Nicaragua’s Application was prematurely filed before a
dispute had crystalized between the Parties. Alternatively, the Court cannot exercise its jurisdiction,
even prima facie, in relation to any of Nicaragua’s claims against Germany, on the grounds that
deciding on Germany’s conduct would require it to assess, as a prerequisite, the lawfulness of the
conduct of Israel, an indispensable third party that has not given its consent in this case. Finally, the
requirement of urgency has not been met. Nicaragua’s Request for provisional measures was
therefore rightly rejected.
(Signed) Julia SEBUTINDE.
___________
45 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip
(South Africa v. Israel), Provisional Measures, Order of 26 January 2024, para. 72; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Request for the
Modification of the Order of 26 January 2024 indicating Provisional Measures, Order of 28 March 2024, para. 40.
46 CR 2024/16, p. 44, paras. 14-16 (Palchetti).
47 CR 2024/16, p. 46, paras. 25-27 (Palchetti).
48 CR 2024/16, p. 47, paras. 32-35 (Palchetti).