Symposium on Jurisdiction, Responsibility, and Temporality: Nicaragua v. Germany Before the ICJ – Temporality and Third-State Responsibility in Prolonged Occupations

[Ihsan Adel is the Founder and Chair of Law for Palestine and an international lawyer currently pursuing a PhD in Germany.]

The preliminary objections proceedings in Nicaragua v Germany raise a temporal question extending beyond that case: when an occupation lasts for decades and its legal character evolves over time, how should a court identify the “situations or facts” giving rise to a dispute concerning the obligations of third States?

Germany’s Optional Clause declaration of 30 April 2008 accepts the jurisdiction of the International Court of Justice only over disputes arising after that date “with regard to situations or facts subsequent to this date”. Germany argues that significant aspects of Nicaragua’s case concern longstanding German policies and conduct towards Israel which predate the critical date and continued thereafter. On this view, the post-2008 conduct is merely the continuation of an older situation whose “source or real cause” predates Germany’s acceptance of jurisdiction. Nicaragua responds that its claims concern post-2008 situations and facts, including discrete German decisions taken after the critical date. 

This disagreement raises a question concerning the application of temporal limitations to prolonged occupations. Neither the historical commencement of an occupation nor that of a third State’s relationship with the occupying Power can necessarily determine the temporal location of every subsequent dispute. Prolonged occupations are factually continuous but need not be juridically static. This matters in two respects. First, an unlawful situation originating before the critical date may itself continue beyond it. Secondly, and more importantly, subsequent developments may alter the legal character of that continuing situation and, consequently, the obligations governing third States’ dealings with it.

From the Source of Rights to the Source of the Dispute 

The starting point is Right of Passage over Indian Territory (Portugal v India), which concerned a temporal limitation closely resembling that in Germany’s declaration. India’s Optional Clause declaration excluded disputes arising before 5 February 1930 or “with regard to situations or facts” prior to that date (para. 199). Portugal’s claimed right of passage, and the historical practice from which it derived, long predated the critical date; India’s obstruction of passage occurred in 1954.

The Court distinguished between situations or facts which “constitute the source of the rights claimed” and those “which are the source of the dispute”. Only the latter were relevant to the temporal reservation. A dispute may therefore presuppose an older legal relationship or historical situation without arising “with regard to” it. The Court emphasised that the dispute could not arise until all its constituent elements existed, including India’s obstruction of Portugal’s passage.

The converse proposition emerges from Phosphates in Morocco and Certain Property (Liechtenstein v Germany). Subsequent events cannot establish temporal jurisdiction where they merely confirm, develop or give effect to a pre-critical-date situation constituting the real cause of the dispute. In Certain Property, post-critical-date German judicial decisions could not be separated from the earlier confiscations and legal regime governing the property concerned.

The inquiry is therefore not an archaeological search for the earliest historical antecedent of a claim. Nor may jurisdiction be created simply by selecting the latest manifestation of an already constituted dispute. The question is whether post-critical-date facts merely continue or give effect to a fully constituted pre-critical-date situation, or are themselves legally operative in constituting or transforming the situation giving rise to the obligations and alleged breaches now in dispute.

Continuing Situations can Cross the Critical Date

A first difficulty with Germany’s argument concerns wrongful acts of a continuing character. International law distinguishes between a completed act whose effects persist and a breach which itself continues. Article 14(2) ARSIWA provides that a breach having a continuing character extends throughout the period during which the act continues and remains inconsistent with the relevant obligation.

The European Court of Human Rights’ judgment in Loizidou v Turkey illustrates the distinction. Although the territorial situation preventing the applicant’s enjoyment of her property originated before Turkey’s acceptance of the Court’s jurisdiction, the continuing denial of access to and control over that property persisted beyond the critical date. Its historical origin did not exhaust its temporal existence.

The point is relevant to Nicaragua v Germany. In its 2024 Advisory Opinion, the ICJ characterised Israel’s unlawful continued presence in the Occupied Palestinian Territory as a “wrongful act of a continuing character” (para. 267). If the underlying unlawful situation continued beyond Germany’s critical date, the third-State obligations applicable in relation to that situation likewise remained relevant to Germany’s post-2008 conduct.

Nicaragua’s case is, moreover, not confined to the continuing effects of pre-2008 German decisions. It relies upon successive post-critical-date authorisations for exports of weapons and military equipment; increased military export authorisations; military cooperation and procurement from Israeli arms manufacturers; and Germany’s failure to prevent German companies from participating in settlement-related infrastructure, exploitation of Palestinian natural resources and the supply of equipment facilitating discriminatory practices. Whether these allegations establish breaches is a question for the merits. For temporal purposes, the narrower point is that Nicaragua challenges Germany’s own conduct during the post-critical-date continuation of allegedly unlawful situations, not simply a German policy completed before 2008.

More than Continuity: Juridical Transformation

Continuity, however, is only part of the answer. The more fundamental difficulty is that a prolonged occupation may not simply persist: subsequent developments may alter its juridical character, and the post-2008 facts should not simply be dealt as later manifestations of an already complete pre-2008 situation.

The Court’s 2024 Advisory Opinion provides the conceptual basis. It held that prolongation does not, in itself, change an occupation’s status under international humanitarian law. At the same time, an occupying Power’s exercise of effective control must “at all times” remain consistent with the prohibition on territorial acquisition by force and the right to self-determination (para. 109). The legality of continued presence must therefore be assessed over time.

An occupation may consequently remain an occupation while settlement expansion, territorial integration and fragmentation, appropriation of natural resources, extension of domestic law, demographic transformation and assertions of permanence alter the legal character of the occupying Power’s continued presence. In 2024, the Court assessed Israel’s policies and practices cumulatively and concluded that they entrenched permanent control, amounted to annexation of large parts of the Occupied Palestinian Territory and frustrated Palestinian self-determination. Those findings, in turn, informed its conclusion that Israel’s continued presence was unlawful.

Namibia provides an instructive precedent for the consequences of such juridical change. South Africa’s physical presence did not commence when that presence became unlawful. What changed was its legal character following the termination of the Mandate and subsequent United Nations action. Once its continued presence was unlawful, consequences followed not only for South Africa but for other States, which were required to recognise its illegality and refrain from dealings implying recognition or lending support or assistance to it. Physical continuity therefore did not entail juridical continuity. The legal character of a prolonged occupation must be assessed throughout its duration, and changes in that character may alter the application of third-State obligations as the situation evolves.

Legally Constitutive Facts

Not every development during an occupation creates a new legally operative situation. Mere passage of time does not. The critical question is whether post-critical-date facts are legally constitutive: whether they independently engage an obligation, contribute materially to satisfying the factual predicates of a primary rule, cross a legal threshold through cumulative conduct, or materially alter the juridical character of a continuing situation.

Article 15 ARSIWA provides a useful analogy. Where a breach consists of a series of actions or omissions defined in aggregate as wrongful, a composite breach occurs only once sufficient conduct has accumulated to constitute the wrongful act. This does not mean that annexation or unlawful occupation must themselves be classified as composite acts under Article 15. Rather, the provision illustrates a broader temporal point: later conduct may be constitutive of an aggregate legal situation rather than merely another manifestation of a situation already completed.

Settlement construction, for example, may independently violate international humanitarian law while simultaneously contributing, together with land appropriation, infrastructure, territorial integration and extension of domestic law, to annexation or permanent control. Similar cumulative reasoning may apply to systematic discrimination and the frustration of self-determination. Different obligations may accordingly possess different temporal predicates; there need not be a single date on which a prolonged occupation acquires the character of a “new situation”.

Palestine Across the 2008 Critical Date

This distinction matters in Nicaragua v Germany. Israel’s occupation, settlement policy and restrictions on Palestinian self-determination plainly predate 30 April 2008. The 2004 Wall Advisory Opinion had already found the settlements contrary to international law and held that the wall and associated regime severely impeded Palestinian self-determination.

Yet the 2004 Opinion itself illustrates why the legal situation cannot simply be frozen at that point. The Court described the wall and associated regime as creating a fait accompli that “could well become permanent” and, if it did, would be tantamount to de facto annexation (para. 121). Twenty years later, the Court concluded that Israel’s policies and practices had entrenched permanent control and amounted to annexation of large parts of the territory.

The blockade of the Gaza Strip and breakdown of a fragile ceasefire in 2008, which eventually led to Operation Cast Lead, the first in a series of major assaults on the Gaza Strip, marked a radical change in the situation on the ground. In the West Bank including East Jerusalem, settlement expansion, land appropriation, territorial fragmentation and the increasing integration of settlements and their infrastructure into Israel further entrenched Israeli control; the kinds of policies and practices upon which the Court later relied in finding annexation and permanent control. 

Important legal and institutional developments accompanied these changes. Security Council Resolution 2334 (2016) reaffirmed that the settlements have no legal validity and called upon all States to distinguish, “in their relevant dealings”, between Israel and the territories occupied since 1967, directly addressing third-State conduct. In 2017, the then UN Special Rapporteur on Palestine, Michael Lynk, issued a report warning that Israel’s continued settlement expansion and de facto annexation had transformed the longest-running modern military occupation into an illegal regime. In 2018, Israel’s Nation-State Basic Law provided that national self-determination in Israel is unique to the Jewish people and recognised the development of Jewish settlement as a national value. Whatever weight each development carries individually, together they form part of a post-critical-date factual and legal record that cannot be treated as temporally irrelevant merely because some constituent practices had earlier antecedents.

The 2024 Advisory Opinion should therefore be understood, for present purposes, as the culmination rather than the commencement of this legal trajectory: an authoritative judicial assessment of policies and practices accumulated over time and of the legal character of the situation they had produced.

Third-State Obligations and an Unchanged German Policy

This brings the analysis back to Germany’s contention that its policies towards Israel did not fundamentally change after 2008. Even assuming that proposition, the legal conclusion does not follow. Germany’s conduct cannot be assessed in isolation from the situation towards which it was directed and the obligations applicable to Germany in those circumstances. An unchanged third-State policy can acquire different legal significance when the juridical character of the underlying situation changes. Indeed, the alleged breach may lie precisely in maintaining an unchanged policy towards a situation whose legal character has materially altered.
Nor does this require retrospectively treating every German act since 2008 as assistance in maintaining an unlawful occupation. The analysis must remain date- and obligation-specific: what obligation bound Germany at the relevant time; what factual and legal situation engaged that obligation; and what German conduct allegedly breached it? Germany’s own position that export licences undergo individual governmental assessment further underscores that subsequent authorisations are discrete decisions taken in the circumstances prevailing at the time. The relevant question is therefore whether those assessments adequately reflected changes in the legal character of the situation and the obligations applicable to Germany at the time of each decision.

That inquiry must ultimately be conducted claim by claim. This approach is reflected in Judge Charlesworth’s question at the close of the September 2026 hearings, asking Nicaragua to identify, for each of submissions 4 to 9, the situations or facts constituting the “source or real cause” of its dispute with Germany in light of the temporal limitation in Germany’s declaration.

Conclusion 

Nicaragua v Germany therefore raises a broader question about how international law treats time in prolonged unlawful situations. The critical date cannot freeze either the legal character of an evolving situation or the obligations of third States in relation to it. What matters is not simply when the underlying situation began, but whether it continued, how it developed, and what legal significance those developments had: contribute to cumulative legal thresholds or alter the juridical character of a continuing situation and thereby the application of third-State obligations.

The broader implication is that third-State obligations cannot be discharged through a once-and-for-all assessment of a situation or of relations with a State involved in it. Where changes in that situation engage or alter the application of international obligations, states maintaining military, economic or other relevant relations must assess those developments on an ongoing basis and, where required, adjust their conduct accordingly. This is particularly important in prolonged occupations -whether unlawful from their inception or becoming unlawful through subsequent developments- as well as in situations involving continuing violations of international humanitarian law or systematic racial discrimination.