Earlier this month, Nicaragua initiated proceedings against Germany in the International Court of Justice (‘ICJ’) alleging facilitation of, and failure to prevent, ongoing genocide in Gaza. The fact it is the 60th anniversary year of the Monetary Gold case is coincidence: but it is this case that may be pivotal for Nicaragua’s success.
Prior to 2019, the Genocide Convention had been the subject of International Court of Justice proceedings arising from two matters: the 1951 Advisory Opinion on the legality of reservations to the Convention, and cases arising from the Bosnian War and genocide in Srebrenica (brought by Bosnia against the Federal Republic of Yugoslavia/Serbia and Montenegro, and an application for revision of a judgment in that case by Yugoslavia).
In contrast to this rate of two primary (and one related) cases in the first 68 years the Genocide Convention had been in force, the last 4 ½ years has seen four new cases, brought by four new States, against four different States. First, the Gambia initiated proceedings against Myanmar in November 2019 over allegations of genocide committed against the Rohingya people. Second, Ukraine initiated proceedings against Russia in February 2022 alleging breaches of the Genocide Convention though Russia’s characterisation of Ukrainian conduct as genocidal, thus justifying Russia’s ‘special military operation’. Third, South Africa initiated proceedings against Israel in December 2023, alleging Israel is both committing genocide and failing to prevent and punish acts of genocide in Gaza. Most recently, on 1 March 2024, Nicaragua initiated proceedings against Germany alleging Germany’s ‘political, financial and military support’ of Israel has both contributed to the commission of genocide and failed to prevent genocide in Gaza. It is this last case this post will focus on but all four cases are notable for many reasons.
The Gambia’s case invigorated the use of erga omnes partes as a ground for standing (following Belgium’s invocation of the same ground in its case against Senegal in 2009 for failing prosecute Hissène Habré for alleged acts of torture). This ground of standing does not require direct injury to a state: allowing The Gambia which is geographically remote from Myanmar and has no nationals injured in the alleged genocide to nonetheless enforce Myanmar’s Genocide Convention against it. South Africa’s case against Israel follows in the same suit: the three cases taken together seem to signal a clear acceptance by the ICJ of the use of this ground of standing for a at the very least breaches of the Genocide Convention and the Convention Against Torture. This is a positive development in that for such crimes as genocide and torture, the victims are often unable to be protected by their state of nationality. This is the case in Myanmar, where the State of nationality is also the alleged perpetrator of the genocide; and in Gaza, where Palestine is not recognised as a State in international law and thus unable to use the ICJ itself.
The Ukraine’s case against Russia is remarkable on different grounds - including the unprecedented number of third-party interventions: 32 states have successfully made 31 interventions (with Canada and the Netherlands intervening jointly). Described by ICJ procedural expert Dr Juliette McIntyre as ‘less as a wave than a tsunami’, the sheer number of interventions required the ICJ to bring in short procedural timelines to keep the case moving forwards.
However, against the background of these significant developments, Nicaragua’s case against Germany stands out: it is the first case to allege contribution to the act of genocide rather than the commission of the act itself.
There is one big procedural stumbling block standing in Nicaragua’s way. The case rests on a finding that genocide is being committed in Gaza. To make this finding, it seems inevitable that the Court would have to make findings about the actions of Israel. Israel, in this sense, would be an ‘indispensable third party’ to the case, as its legal interest must necessarily be determined to decide in Germany has breached their obligations. When an indispensable third party is not included in a case, the ICJ find the case inadmissible.
This doctrine was first expressed by the ICJ in 1954 in the Monetary Gold case brought by Italy against France, the UK and the USA. In the rather complex facts of that case, the Tripartite Commission (France, UK and US) who were charged with distributing gold looted by Germany during World War II, commissioned an arbitration over a certain quantity of gold looted from Rome in 1943. The question for the arbitrator was whether the gold belonged to Italy or Albania: the arbitrator concluded it belonged to Albania. France, the UK and the USA then entered an agreement saying the gold could be diverted to the UK, in partial satisfaction from Albania for the judgment against it in the earlier Corfu Channel case: unless Italy or Albania made an application to the ICJ as to whether the gold really belonged to Italy; or if it did rightfully belong to Albania, whether it should be delivered to the UK, or rather to Italy for wrongs Italy alleged Albania committed against it during WWII.
Italy duly brought a case on this second ground: not contesting ownership of the gold, but rather contesting that Albania should pay the gold to Italy. Albania, which had not accepted the jurisdiction of the ICJ, did not bring a claim. This led to Italy itself bringing a preliminary objection, questioning the jurisdiction of the court as its application invited the Court to make a finding of the international responsibility of Albania, a situation the Court described as ‘unusual’.
The Court nonetheless entertained, and ultimately upheld the objection. In doing so, it laid out that to determine whether Italy would be entitled to receive the gold it would first need to determine;
- That Albania committed some international wrong against Italy;
- That the wrong in question gives rise to an obligation to pay compensation to Italy; and
- To determine the quantum of the compensation required.
For these questions – ‘which relate to the lawful and unlawful character of certain actions of Albania vis-à-vis Italy’, the Court concluded that adjudicating upon them without Albania present would
‘adjudicate upon the international responsibility of Albania without her consent [which] would run counter to a well-established principle of international law embodied in the Court's Statute, namely, that the Court can only exercise jurisdiction over a State with its consent.’
Where then does this leave Nicaragua? It seems that the questions it is asking the ICJ of Germany require a very similar process regarding Israel’s international responsibility. For Germany to have contributed to a genocide carried out by Israel; or failed to prevent one, it would have to be shown that:
- Israel had taken certain acts against people in Gaza, or failed to protect people in Gaza;
- That rose the level of the thresholds in the Genocide Convention;
- Which breached Israel’s own international obligations in respect of that Convention.
In this way, the case is also similar to another indispensable third party case, that brought by Portugal against Australia in the East Timor case. There, Australia successfully argued that any conclusion that its entry into a 1989 treaty with Indonesia (following Indonesia’s annexation of (then) East Timor in 1975) was illegal was necessarily predicated on finding that Indonesia had no right to enter into that treaty, because its annexation of East Timor was itself illegal. As Indonesia was not a party to the dispute, the ICJ ruled Portugal’s claim as inadmissible.
However, there is one more twist to Nicaragua’s case. Although Israel is not a party to the proceedings Nicaragua has brought against Germany, Nicaragua has intervened in the case that South Africa has brought against Israel. There are two avenues to third party intervention in the ICJ. One, through Article 63 of the ICJ’s Statute operates when the case concerns the construction of a treaty. When this occurs, all other states party to that treaty have the right to intervene in the case (with the caveat they will be bound by the construction of the treaty given by the ICJ in its judgment). It is under this ground all of the interventions have been made in the Ukraine v Russia case.
The second ground, through Article 62 of the Court’s Statute allows a third party to intervene when it has a ‘interest of a legal nature in the case’. It is under this ground that Nicaragua has intervened in South Africa v Israel. The choice to use Article 62 rather than Art 63 has been the subject of commentary: including why the choice may be ultimately unhelpful to South Africa’s case.
However, the choice is less puzzling when considering that an argument made 60 years ago in the Monetary Gold case was that Albania might have intervened in the proceedings under Article 62 (although it did not). The argument made in the case was the very existence of Article 62 contemplates the situation of a case affecting a non-party State’s interest proceeding:
It has been contended that the inclusion of the provisions for intervention indicate that the Statute contemplates that proceedings may continue, notwithstanding that a third State may have an interest of a legal nature which might enable it to intervene. It is argued that the fact that a third State, in this case Albania, may not choose to intervene should not make it impossible for the Court to give judgment on rights as between the Parties.
That argument was rejected by the ICJ: as Albania had not intervened, and its legal interests would form the very subject matter of the decision, the court held the Statute could not, ‘by implication… authorise proceedings to be continued in the absence of Albania’.
The situation is different here – rather than Israel intervening in Nicaragua v Germany which would be directly analogous, Nicaragua has intervened in the case against Israel. But the use of Article 62 by Nicaragua could be an attempt to surmount the challenge that Monetary Gold presents – showing that Nicaragua is not attempting to hold Germany responsible without also determining the question of Israel’s own liability for their acts in their absence. If Nicaragua is to succeed this may change the way states – and the ICJ – think about interventions, inadmissibility and indispensable third parties.
