Symposium on Jurisdiction, Responsibility, and Temporality: Nicaragua v. Germany Before the ICJ – From Historical Context to Succeeding Conduct: Germany’s Arms Transfers and the Temporal Scope of ICJ Jurisdiction

[Dr Nahed Samour is Associate Researcher at Radboud University in Nijmegen, The Netherlands.]

While the oral hearings in the ICJ Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany) from September 7-10, 2026 raise questions of jurisdiction and admissibility only, it would be misleading to understand the question of temporal limitations (ratione temporis) as merely a technical jurisdictional doctrine. Germany’s declaration accepting the compulsory jurisdiction of the International Court of Justice, made on 30 April 2008, is subject to a temporal limitation, extending only to disputes arising from “situations or facts” occurring after that date (see the rule of temporal limitation established in Phosphates in Morocco case, Italy v France, para 31) . Accordingly, violations of international rights or obligations attributable to Germany that occurred before 30 April 2008 would, in principle, fall outside the temporal scope of Germany’s declaration and, consequently, outside the Court’s jurisdiction under that declaration.

Temporal limitations serve an important rule-of-law function: they establish the temporal scope within which a court may assess conduct and determine which historical events can acquire legal relevance in contemporary litigation. In this sense, ratione temporis is necessary to preserve the predictability, legitimacy, and consensual foundations of international adjudication. 

At the same time, however, temporal limitations become particularly consequential where contemporary claims are rooted in historical processes. This is especially evident in cases involving colonialism, occupation, racial domination, or other forms of structural injustice whose effects may persist long after the conduct that initially produced them. In such cases, applying temporal limitations risks creating a gap between historical causation and contemporary legal responsibility. Conduct may have originated before the relevant temporal threshold while continuing to produce legal consequences, or while contributing to a situation that subsequently becomes subject to the Court’s jurisdiction. In fact, any present dispute brought to the ICJ needs to be understood by addressing the preceding situations or facts (background information). The real question is not whether the rule of temporal limitation applies, but whether Germany is using these limitations to place intensifying violations beyond judicial scrutiny.

The “Schlusstrich” Debate in International Law?

Germany’s argument (p. 39-50) is that certain claims have their real cause in situations or facts that pre-date 30 April 2008, and therefore those claims fall outside Germany’s consent to jurisdiction. Germany’s position, as presented in the proceedings, is that several of Nicaragua’s claims cannot be separated from pre-2008 situations or facts. It argues that Nicaragua relies on matters such as the Palestinian people’s right to self-determination, Israel’s occupation of Palestinian territory since 1967, racial discrimination, segregation and apartheid predating 2008, and Germany’s longstanding military relationship with Israel, including arms transfers. Germany argues that the post-2008 German conduct cannot be treated as a series of new and autonomous disputes if that conduct forms part of an existing situation whose legal significance derives from facts predating Germany’s acceptance of jurisdiction. Arguably, German is making a case for a Schlussstrich ( lit. a drawing of a line under the past), a term associated with German history because it concerns the recurring question of whether, and when, Germany can regard past historical wrongdoings as “closed” and move on. This Schlussstrichdebate creates the tension between demands for accountability, remembrance, prosecution, restitution, and reparations in case of gross violations of international law, particularly in the case of genocide, and the arguments that Germany needs to reconcile and leave the past behind. This debate is associated with Historikerstreit (historians’ dispute) over Germany’s responsibility for the Holocaust and has resurfaced in what has been termed Historikerstreit 2.0, particularly in debates over Germany’s colonial crimes and their implications for questions regarding political and legal support for Israel in context of crimes against Palestinians. Regardless of how the principle of temporal limitations applies legally in each case, its operation cannot insulate states from broader societal debates regarding historical responsibilities and the ongoing injustices it creates.

Legally, the temporal analysis must specifically account for developments occurring after the relevant date (2008) where those developments constitute new acts, materially alter the situation, or otherwise have an independent legal significance within the Court’s jurisdiction. This is particularly relevant to the obligation of all states to prevent acts of genocide. For this obligation to be activated, it is not necessary for a definitive determination that genocide is taking place. As the International Court of Justice held in Bosnia v Serbia 2007 (para 431, p. 222), a “State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.”

International Warnings of Genocide, Continuing Arms Transfers

In this regard, the chronology preceding and surrounding the proceedings is legally significant. Nicaragua argues that each relevant German act after 30 April 2008 can itself constitute a post-2008 fact or situation, even if Germany violated international law decades earlier, specifically by authorizing or supplying arms and military equipment to Israel and thereby failing to comply with obligations under international humanitarian law and contributing to violations of the Palestinians people right to self-determination.

This specifically applies to the warnings and developments concerning Germany’s increasing arms licences, particularly in the period between October and December 2023, and, subsequently, the ICJ’s provisional-measures (January, March and May 2024) in the South Africa v Israel case. These facts provide a temporal sequence that cannot simply be collapsed into the pre-2008 origins of the broader situation. 

As early as 11 and 12 October 2023, German Chancellor Scholz declared, before the Bundestag, that “there [was] only one place for Germany: the place at the side of Israel”. Similarly, Foreign Minister Baerbock stated in the Bundestag that Germany “offered Israel all [its] support in every area”. In November 2023, Germany publicly stated that it opposed a ceasefire and Germany authorized and continues to authorize millions in military exports despite the ICJ’s pronouncement from April 30, 2024 that “[a]ll these obligations are incumbent upon Germany as a State party to the said Conventions in its supply of arms to Israel” (para. 24), as also pointed out by Nicaragua to the ICJ again (para 46, 51). Germany’s unconditional support for Israel, also called Staatsräson (reason of state), fatally materialized at a time when warnings about grave violations of international humanitarian law were being committed by Israel. These concerns were urgently expressed through a number of statements by the Secretary-General of the United Nations on 9 October 2023, the President of the International Committee of the Red Cross on 11 October 2023, and, at the political level, in a statement issued by the High Representative of the European Union on 10 October, with Germany participating fully in its adoption (para.20).

On 27 October 2023, the UN Committee on the Elimination of Racial Discrimination (CERD/the Committee) acted under its Early Warning and Urgent Action (EWUA) procedure and issued Statement 5 (2023) on Israel and the State of Palestine. The Committee referred to the statement by Israel’s Minister of Defense, Yoav Gallant, describing Palestinians as “human animals”, language which, in the Committee’s view, could incite genocidal actions, drawing on its extensive expertise in identifying indicators relevant to the prevention of genocide under the EWUA procedure.

On November 13, 2023, 15 United Nations Special Rapporteurs and 21 members of United Nations Working Groups “pointed to a genocide in the making“. They illustrated evidence of increasing genocidal incitement, overt intent to “destroy the Palestinian people under occupation”, loud calls for a ‘second Nakba’ in Gaza and the rest of the occupied Palestinian territory, and the use of powerful weaponry with inherently indiscriminate impacts, resulting in a colossal death toll and destruction of life-sustaining infrastructure.

These public statements and warnings formed an integral part of the circumstances unfolding at the time. Against this background, in its Order of 26 January 2024, the Court found plausible the existence of rights under the Genocide Convention and recognized a real and imminent risk of irreparable prejudice to those rights in the context of the alleged crime of genocide against the Palestinian people. 

The ICJ expressly stated that the prohibition of genocide is an obligation erga omnes owed by each State to the international community as a whole (para. 31), i.e., an obligation of universal applicability. Under the Rome Statute of the International Criminal Court (ICC), responsible ministers may face individual criminal responsibility under international criminal law for soliciting, aiding and abetting Israel’s crime of genocide (Article 6; Article 25, Rome Statute of the International Criminal Court).

Germany’s Arms to Israel: Material Support in the Face of Genocide

The question of temporal limitation as raised by Germany thus cannot be answered solely by looking at the historical origin of the situation, calling it a mere “continuation” as Germany did. In this regard, the chronology preceding and surrounding the proceedings is legally significant, especially with regard to Germany’s arms licensing regime during the deadliest time for Palestinians between October and December 2023, as well as the licensing and delivery of German arms since the ICJ has issued the first of three provisional measures attesting to a serious risk of genocide (January 2026, 2024). Empirical material submitted to the ICJ (para.27), comprising German parliamentarian requests (Kleine Anfrage) shows a sharp post-7 October acceleration in German arms-export licensing to Israel. Germany authorized €326.5 million in military-equipment export licences in 2023—roughly ten times the 2022 figure—with 88% of the licences issued in the second half of 2023 and 60% between 7 October and 2 November only; the largest monthly spike was in October, when licences reached about €203 million. The vast majority of the 2023 total was approved immediately after 7 October. Importantly, the increase was concentrated in the last three months of 2023 (para 25-30): approximately 75% of the year’s €326.5 million was authorized in October–December 2023. Thus, the reports portray October–December 2023 not as a continuation of Germany’s pre-existing military support of Israel, but as a decisive escalation in arms licensing precisely as the violence in Gaza intensified—making temporal limitations difficult to treat as a procedural temporal boundary rather than a shield against scrutiny of Germany’s conduct when the risks were most acute. This spike also calls into question the repeated mantra of Germany’s legal adequacy in risk assessment and export-control obligations under domestic law.

This is particularly important where the alleged violations are not confined to a completed historical event but concern not simply continuing but rather subsequently intensified conduct that risks violation not just of international law in general, but ius cogens (such as the duty to prevent genocide) in particular. It should be recalled that in its Order of 30 April 2025, the ICJ (para24.) expressly emphasized Germany’s international obligations concerning the transfer of arms to parties to an armed conflict, stating 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.”

Conclusion: Temporal Limitation does not Shield from Jurisdictional Scrutiny

At no point since October 2023 has Germany suspended or ceased its delivery of weapons and military equipment to Israel. These are not merely historical facts or circumstances predating Germany’s acceptance of the Court’s compulsory jurisdiction on 30 April 2008; they constitute subsequent acts and omissions attributable to Germany itself. Germany therefore cannot place such conduct outside the temporal scope of its declaration by invoking the historical origins of the situation. Nor can it shield its post-2008 conduct behind claims of “substantive financial support to the Palestinians” (para. 32), a domestic “robust and rigorous legal régime” (paras 11-15) allegedly designed to preclude violations of international law, or “assurances” (para.19) concerning Israel’s respect for international humanitarian law. The relevant dispute instead concerns subsequent facts arising after October 2023, including Germany’s continued conduct in the face of an objectively discernible risk of genocide—facts that could not have formed part of any dispute concerning the situation as it stood before 30 April 2008.