World Court refuses to take action against Germany for arms sales to Israel
ICJ says circumstances ‘at present’ do not require intervention, but reminds Germany of obligations not to violate Geneva and Genocide conventions when approving arms sales
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The International Court of Justice decided on Tuesday not to issue provisional measures against Germany for its arms sales to Israel, rejecting a demand filed by Nicaragua against the backdrop of Israel’s war against Hamas in Gaza.
The court ruled, however, that it would not dismiss the case from its docket as Germany had requested, saying it could only do so if there was a manifest lack of jurisdiction, which it asserted was not the situation in Nicaragua’s application.
Nicaragua filed its highly unusual application to the ICJ in February, accusing Berlin of violating the Genocide Convention for selling weapons to Israel during the ongoing conflict — during which, it alleged, Israel has committed genocide against Palestinians in Gaza — and for suspending its funding of the Palestinian humanitarian agency UNRWA, which has been accused of complicity in terrorist activity against Israel.
The application, thought to be the first such suit against another nation based on the actions of a third party, raised concerns that countries exporting arms to Israel could be dissuaded from doing so if the court would find that they might be legally liable for violations of international humanitarian law or even the Genocide Convention, as alleged by states such as Nicaragua, South Africa and others.
Germany is a major arms supplier to Israel, accounting for 30 percent of all Israeli arms purchases in 2023, according to the Stockholm International Peace Research Institute’s annual report for that year, behind only the United States, which provided 69% of Israeli arms purchases in 2023.
Nicaragua itself has a highly problematic human rights record, with the dictatorship of Daniel Ortega accused of torture and other severe violations, and maintains close diplomatic ties with other dictatorships such as Iran and Russia.
The ICJ in its decision declined to accede to Nicaragua’s request that it order Berlin to suspend any aid, military assistance and delivery of military equipment to Israel and resume its funding to UNRWA.
“Based on the factual information and legal arguments presented by the parties, the court concludes that at present the circumstances are not such as to require the exercise of its power under article 41 of the statute to indicate provisional measures,” read ICJ court president Nawaf Salam from the court order.
The decision was made 15 to 1, with just the ad hoc judge selected by Nicaragua, Awn Shawkat Al-Khasawneh, voting against the decision.
The decision noted specifically Germany’s arguments that although its arms sales by revenue had increased significantly in 2023 over 2022, 98% of the arms sales licenses granted since the October 7 atrocities were not for “war weapons” as defined by German law, but rather “other military equipment,” and that of the four licenses granted for “war weapons” since that date, only one, for 3,000 anti-tank weapons, was suitable for combat operations.
The Germans also noted in their response that a 2023 request for tank ammunition by Israel is still under scrutiny.
Nevertheless, the court took the opportunity to point out that states are obligated to ensure that they are not in violation of the Geneva Conventions regarding the laws of war when supplying weapons to other states involved in armed conflicts.
“The Court considers it particularly important to remind all States of their international obligations relating to the transfer of arms to parties to an armed conflict, in order to avoid the risk that such arms might be used to violate the above-mentioned Conventions. All these obligations are incumbent upon Germany as a State party to the said Conventions in its supply of arms to Israel,” stated the court.
When it came to Nicaragua’s claims about funding for UNRWA, the court pointed out that such funding was voluntary, and also noted Germany’s observation that when it froze funding, there was no pending payment for Berlin to the organization. In addition, the court noted that Germany had supported a €50 million ($53 million) payment to UNRWA by the European Union in March this year, as well as its funding for other humanitarian organizations in Gaza.
The court did state, however, that it remained “deeply concerned about the catastrophic living conditions of Palestinians in Gaza strip, in particular in view of the prolonged and widespread deprivation of food and other basic necessities to which they are being subjected.”
Israel’s military operation started after Hamas sent thousands of terrorists into southern Israel in a devastating assault on October 7, killing some 1,200 people amid widespread atrocities, including rape and torture, and abducting 253 to Gaza. Israel vowed to topple the Hamas regime in Gaza and secure the release of the hostages, some half of whom are still held in the Strip.
The Hamas-run Gaza health ministry says more than 34,000 people in the Strip have been killed in the fighting so far, a figure that cannot be independently verified and includes some 13,000 Hamas gunmen Israel says it has killed in battle.
