Berlin's unconditional support for Israel

The Convention on the Prevention and Punishment of the Crime of Genocide, commonly known as the Genocide Convention, is one of many pieces of international law created in response to the worst genocide of the 20th century.

Under the auspices of the newly formed United Nations, the 1948 treaty aims to make good on "never again", a refrain that arose from Germany's systematic extermination of 6 million European Jews and millions of others during the Holocaust.

By laying out a legal framework for "genocide", the convention hopes to prevent another one – although a number of large-scale war crimes have taken place around the world in the decades since. Germany and Israel are two of more than 150 countries party to the convention, along with the small Central American country of Nicaragua. That means each signatory has the legal responsibility to uphold the convention's provisions and reserves the right to formally accuse another of violating them.

That's what Nicaragua has done. On 1 March, it initiated proceedings against Germany at the International Court of Justice (ICJ) in The Hague. The filing alleges that Germany, due to its steadfast support for Israel including weapons deliveries, has "failed to fulfill its obligation to prevent the genocide committed and being committed against the Palestinian people" and thus has "contributed to the commission of genocide in violation of the Convention" and other elements of international law.

The proceedings request that the court implements "provisional measures" against Germany, which could call for a suspension of its support for Israel, "in particular its military assistance including military equipment, in sor (sic) far as this aid may be used in the violation of the Genocide Convention".

Defining 'genocide' a matter of legal opinion

In the wake of the October 7 attacks by Hamas – categorised as a terrorist group by the United States, the EU and other governments – which Israeli officials say killed about 1,200 people including at least 850 civilians, Israel has bombarded and besieged the Gaza Strip. The resulting death toll has exceeded 32,000 people, or more than 1.5% of the population, according to the Hamas-run Health Authority. Many thousands more are missing. Some aid organisations have said the figure could be an undercount.

The United Nations and human rights groups have accused Israeli forces of indiscriminate attacks against civilians. Even staunch allies of Israel, such as the United States, have called the civilian death toll too high.

Whether Israel's actions amount to "genocide" is a matter of legal opinion. In a January ruling of a South African case against Israel, the ICJ found "at least some of the acts and omissions alleged by South Africa to have been committed by Israel in Gaza appear to be capable of falling within the provisions of the Convention".

In a subsequent announcement on 28 March, the court added additional provisions, including asking Israel to report to the court how it is fulfilling its obligations under international law.

Germany has been an outspoken defender of Israel's rejection of the accusations, which goes hand-in-hand with denying wrongdoing itself.

"We value the ICJ and will of course participate in the proceedings and defend ourselves," Christian Wagner, a spokesperson for Germany's Foreign Ministry, told reporters following the Nicaragua filing. "But let us make it very clear that we of course reject this accusation made against us by Nicaragua."

Potential impact of Nicaragua's case

The Nicaragua case leans heavily on the South African one, and may test a legal argument that the January ruling triggers certain obligations of third states, such as Germany.

"A considerable degree of ambiguity surrounds these issues. However, Nicaragua's case on the merits faces serious obstacles," said Michael Becker, an assistant professor of international human rights law at Trinity College Dublin.

One challenge for Nicaragua is accusing Israel of genocide without Israel's direct involvement in the case. To get a ruling against Germany, "it will likely be important for Nicaragua to establish that some of Germany's obligations do not turn on whether Israel has violated international law but are triggered only by a serious risk," said Becker.

While every treaty signatory has the same right to appear before the court, Nicaragua faces a higher bar in the court of public opinion.

"Nicaragua is clearly a dictatorship," said Sophia Hoffmann, an international relations scholar at the University of Erfurt. "Unlike South Africa, which is not only a democracy, but also has this incredibly successful positive narrative behind itself."

In other words, South Africa has more credibility on the world stage, given the dismantling of its own apartheid regime and transition to democracy in the 1990s. To take just one metric, the latest Democracy Index from the Economist Intelligence Unit ranked South Africa 47th – a "flawed democracy," akin to the U.S. and Israel. At 143, Nicaragua is grouped with "authoritarian" regimes and just one place ahead of Russia.

Still, "there is of course also a very legitimate, important claim to be made," said Hoffmann. "The rules are for everyone," she added, and Germany "is being very duplicitous here with regards to supporting international law on the one side, looking at what's going on in Ukraine, and turning a blind eye with regards to important political allies."

Germany one of Israel's strongest allies

Germany is hardly Israel's only ally, but it is one of its strongest. After the United States, it was Israel's largest weapons supplier between 2019 and 2023, accounting for 30% of imports, according to SIPRI, a conflict research institute. The German government greenlighted considerable additional deliveries following the October 7 attacks.

"The idea that German weapons are contributing to the killing of many, many civilians – thousands of civilians, women, children – is an awful idea," said Hoffmann.

Before filing its case, Nicaragua sent diplomatic notes to a handful of Western countries, including Germany, that support Israel or had withdrawn funding from UNRWA, the UN agency for Palestinian refugees, due to thinly supported Israeli allegations that UNRWA staff were involved in the October 7 attacks. 

The diplomacy campaign may have had some effect on those countries, since some have since paused arms sales or restored funding against the backdrop of worsening conditions in Gaza. Germany, however, stayed the course. UNRWA aid restarted only last week, but without Gaza relief, due to an ongoing investigation into Israel's claims. 

Germany's 'reason of state' under pressure

The ICJ has no means of enforcing its decisions. However, it can add to political and public pressure on a government.

Whatever the tangible consequences, Germany faces an existential bind. Its postwar identity is rooted in upholding the universal principles of international law that was prompted largely by its own historical crimes, which Germany seeks to make good on with specific support for Israel, despite the Jewish state's growing estrangement from many Jews around the world.

Germany's support for Israel is couched in the country's Staatsräson, or "reason of state", an ambiguous political concept that makes certain state policy unassailable. Germany's Federal Agency for Civic Education understands the concept more in an authoritarian or monarchal context than a democratic one. Among other problems, Germany's support for Israel due to its past genocide of the Jews risks conflating the state and the people, which could be antisemitic according to the controversial IHRA anti-Semitism definition that Germany uses at various governmental levels.

The case dovetails with broader international criticism of Germany's domestic clampdowns on freedom of academic and cultural expression, which has led to people being the "victims or targets of this repression against this very wide, broad definition of anti-Semitism," said Hoffmann.

The court has set aside two days to hear the case, on 8 and 9 April, with Nicaragua and Germany getting one day each to present oral arguments. A ruling could follow within weeks.

"International law would benefit from clarification with respect to the actions that a state must take to abide by these obligations," said international law professor Becker. "Nicaragua's claims against Germany present a concrete case within which those issues can potentially be examined."

William Noah Glucroft

© Deutsche Welle 2024