Course: International Dispute Settlement
Topic: The relevance of Monetary Gold in Nicaragua’s suit against Germany
Background
In March 2024, Nicaragua instituted proceedings against Germany before the International Court of Justice (ICJ) concerning Germany’s alleged responsibility for assisting and failing to prevent the commission of genocide in the Gaza Strip by Israel. Specifically, Nicaragua argued that, by providing political, financial and military support to Israel, and by defunding UNRWA, Germany is facilitating the commission of genocide in Gaza and failed in its obligation to prevent genocide.
One of the central legal issues in the case is whether the Court can rule on the responsibility of Germany without Israel being a party to the proceedings. Nicaragua and Germany already exchanged views on this issue at the provisional measures stage. In its order on Nicaragua’s request for the indication of provisional measures, the Court declined to indicate interim measures (without much reasoning), but did not dismiss the case in its entirety.
In her separate opinion, Vice-President Sebutinde argued that the Court is barred from exercising jurisdiction in this case:
“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 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.”1
Germany is likely to challenge the admissibility of the case on the ground that Israel is not a party to the proceedings.
Questions
In your essay, please address the following questions:
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Do you think that Israel is a necessary third party in the Nicaragua v Germany case? Why?
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More generally, do you think the ICJ is a suitable avenue for adjudicating complicity claims and claims concerning failure to prevent genocide? Why?
Support your analysis by referring to relevant legal instruments, the jurisprudence of the ICJ, as well as legal literature. Make sure your paper has a clear structure and is well argued. Your paper should not exceed a total of 2,000 words including footnotes. It should be typed in Times New Roman, font size 12 points. Footnotes and the bibliography should be established in accordance with OSCOLA.