Symposium on Jurisdiction, Responsibility, and Temporality: Nicaragua v. Germany Before the ICJ – Empty Promises: Germany’s Questionable Commitment to International Law

[Matthias Goldmann is Professor of International Law at EBS University (Oestrich-Winkel, Germany) and a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law.]

The recent hearings before the ICJ in the case of Nicaragua v. Germany revolved around preliminary objections. Yet the arguments the parties exchanged reached well beyond questions of admissibility and touched repeatedly on the merits. This should not surprise anyone. The German government knows perfectly well that this case is, first and foremost, about Germany’s standing in world public opinion. Before that invisible tribunal, Berlin will not prevail through legal loopholes about whether a dispute exists or how far its declaration under Article 36(2) of the ICJ Statute reaches in time. Only a victory on the merits — a finding that Germany did not violate the laws of war or the Genocide Convention — can begin to repair a reputation that is already damaged. Seen from that angle, the sheer volume of preliminary objections to jurisdiction and admissibility, most of them unconvincing with the possible exception of the Monetary Gold argument, is rather remarkable. It risks a pyrrhic victory that would backfire on Germany and on the Court alike, in a manner uncomfortably reminiscent of the South West Africa case.

Be that as it may, knowing that the world was once again watching The Hague, the Counsel for Germany in her opening statement emphasized the country’s commitment to international law. Germany, she argued, was constitutionally bound to comply with international law (alluding to the doctrine of “Völkerrechtsfreundlichkeit”, the international legal openness of the German constitution as a result of the Second World War). Therefore, it would be inconceivable for the German government to violate international law. At that point, I was reminded of the German poet Christian Morgenstern, whose narrator reasons away his own fatal accident on the grounds that it resulted from a violation of traffic regulations — “for, he reasons pointedly, that which must not, cannot be.” 

The Architecture of an Empty Promise

The claim deserves to be taken seriously precisely because it is so easy to dismiss with irony. Germany’s professed fidelity to international law is not simply false. Germany does not just practice double standards that could be clearly spotted and called out. Rather, its promise to respect international law is sincerely made, but structurally hollow. The hollowness is not incidental. It is built into powerful countries’ approach to the international legal order — and of the German constitutional order that is supposed to lend some domestic constitutional teeth to it. In the field of arms trade, at almost every point where an affected person, an NGO, or a foreign state might hold Germany to account, the relevant legal or evidentiary standard turns out to be discretionary, indeterminate, or set so high that it cannot realistically be met. The problem pervades both international and domestic constitutional law. 

Discretion by Design: The Arms Trade Treaty

Begin with the Arms Trade Treaty. Article 7 requires exporting states to conduct a risk assessment before authorizing arms transfers. They need to establish whether there is an “overriding risk” that the weapons might be used to commit or facilitate serious violations of international humanitarian or human rights law. In principle, this looks like a meaningful constraint, and the point has been made that Germany violated this standard. In practice, however, the assessment is entrusted entirely to the exporting state itself. There is no independent international committee reviewing the outcome, and no requirement to reveal the criteria underpinning the risk assessment (Article 13 only requires summary notifications of licensed arms exports). The result is that risk assessment under the Treaty lies squarely in the hands of the very states — overwhelmingly Western arms exporters — whose conduct it is supposed to discipline.

A second discretionary opening compounds the first. States parties take the opportunity to contaminate the required risk assessment under international law with other factors, including their own economic and strategic interests. Denmark has been one of the states that are rather explicit about this balancing exercise, but a study shows that it is rather common practice (for an illustrative example from the Netherlands, see here). However, this kind of balancing sits uneasily with international humanitarian law (IHL) and human rights: These legal regimes do not ask whether a state receiving weapons has itself been the victim of an armed attack, or whether the supplying state has a strategic interest in the outcome. Allowing such balancing under the Arms Trade Treaty, in other words, imports a logic of geopolitical calculation into fields of international law designed to oppose exactly that logic.

Germany is a bit more ingenious in this regard. If some balancing occurs, it borders the impossible to prove it. The reason is Germany’s absolute lack of strategic clarity. The political principles for arms trade exports only refer to strategic considerations in abstract terms; while the country’s most recent national security strategy, adopted under the Scholz government, reads like a hotchpotch of platitudes, good intentions and wishful thinking – whether by design or by lack of critical self-reflection and strategic thinking. Hence, on the basis of the available evidence, it is not even possible to establish with certainty that Germany balances strategic interests with international law – an issue whose legality the ICJ would be called upon to resolve. Any attempt to disentangle strategic and legal considerations in Germany’s regulatory framework feels like running against the wall of a padded cell. (To be fair, the applicable EU law does not help to clarify the matter.)

The Genocide Convention offers a structurally similar escape hatch, though for different reasons. Its obligations — to prevent, to refrain, and to punish — are triggered by genocidal intent, and the dolus specialis requirement has been notoriously controversial and difficult to prove. While the obligation to prevent genocide applies even in the absence of final proof of genocidal attempt, it is unclear what an exporting state needs to do to (1) establish there is no risk of genocide; (2) to ensure that, in any event, its arms exports play no role in it. Hence, the genocide convention requires a risk assessment similar to the one required by the Arms Trade Treaty. 

A Weak Standard, Twice Over: the German Constitution

If international treaty law leaves generous room for discretion, one might hope that German constitutional law would close the gap. Two recent decisions of the Federal Constitutional Court (Bundesverfassungsgericht) — the Ramstein decision of July 2025 and the February 2026 judgment on arms deliveries to Israel — suggest the opposite.

The constitutional starting point is promising enough. In line with “Völkerrechtsfreundlichkeit”, the Court held the basic law’s fundamental rights guarantees to comprise a protective obligation (Schutzpflicht) that can, in principle, extend to Germany’s involvement in third states’ violations of international law abroad. But that obligation only bites if a sufficient attributional nexus (“Zurechnungszusammenhang”) can be established between German conduct and the violation in question. And it is precisely at the level of attribution that the Court has constructed not one, but two independent discretionary filters. Their combination is likely to defeat most claims. 

The first filter concerns the standard applied to the underlying violation of international law committed by Germany’s allies. Here the Court has been willing to accept a comparatively low threshold of scrutiny: in the Ramstein case, the court considered the position of the United States that members of irregular groups can be subject of targeted killings even if they are not deployed to be in conformity with international law – or at least not to amount to an outright violation of international law, despite the International Committee of the Red Cross rejecting this view. While the position is indeed controversial (and while certain states continuously produce legal advice that undermines the substance of IHL), it is a pretty low standard for fundamental rights protection to endorse such watered-down standards of IHL. Worse, such indirect endorsement might help said standards to become customary law, even if they contradict Germany’s policies. Still, the Court on this point followed a problematic tradition in German constitutional adjudication that subjects the constitution to a Northern Atlantic security agenda.

The second filter concerns the degree of German control or contribution required before responsibility can attach at all — and here the Court applies an extraordinarily demanding standard. In Ramstein, the court was inconclusive as to whether international treaties allowing the technical relay of satellite signals through German infrastructure would suffice to establish the necessary connection to the resulting strikes; indicating that something closer to a German act of decision-making role would be required. In the arms deliveries case, that act of decision-making did exist in the form of export licenses. However, the plaintiffs faced an evidentiary burden that was, for all practical purposes, impossible to discharge. Not only were they required to show which role German arms play in the conflict. Rather, the Court made it clear that the plaintiffs would have had to show that the German government exceeded the wide scope of discretion given to it by the constitution, which comprised strategic considerations, the fundamental rights of the recipients of arms exports (leaving it unclear how that should fall within Germany’s jurisdiction), and the country’s general security and foreign policy considerations. In other words, the court set up a standard that is almost by definition impossible to meet for any plaintiff. 

Hence, Counsel for Germany could indeed claim with a straight face that Germany was constitutionally obliged to respect international law, knowing that it could never be held to account. The combined structure of the Arms Trade Treaty and the constitutional protective duties (and perhaps international and constitutional law generally) allocates all the darkness to the plaintiff and all the light to the state.

Reversing the Burden of Proof

If the case might move to the merits, the ICJ faces a clear choice. Either it follows the German narrative. Accordingly, it would suffice for Germany to set up some framework of arms export control, however low its standards and however intransparent and incontrollable it would be from the outside. That would strip the Arms Trade Treaty and much of IHL of its effectiveness. The ICJ would appear as a dog that barks but does not bite. Or it establishes standards for risk assessment which are not entirely discretionary and intransparent. This would amount to a reassessment of the burden of proof in line with the Court’s jurisprudence, particularly the Corfu Channel case. Once the plaintiff state has established a prima facie case, the Court could rely on indirect inferences to look into the black box of matters under the exclusive control of the respondent state. Human rights law has moved in a similar direction: the European Court of Human Rights has, in a number of contexts, shifted or eased the evidentiary burden onto the state where it alone controls the relevant facts — detention conditions, custodial deaths, the circumstances of an operation under its exclusive command. This evidentiary standard would require the ICJ to become even more of a conflict manager, an international expert institution rather than a bilateral dispute settlement power. But if the choice is to change or to succumb, the outcome should be clear. 

Absent such a reversal, Germany’s professed commitment to international law will remain what it has largely been so far: an empty promise precisely because it is never tested against a standard the government could actually fail. This is not a German problem alone. It is the signature of a Western commitment to international law that talks in the register of binding obligation while quietly retaining, at every critical juncture, the discretion to decide for itself whether that obligation has been triggered. Such an order has no real future, because it offers no genuine perspective to those outside the tiny circle of superpowers. Germany has yet to realize that it stands on the outside.