The ICJ’s Insufficient Engagement with Germany’s Interpretation of the External Dimension of Common Article 1 in the Nicaragua v Germany Proceedings

[Parisa Zangeneh is a PhD researcher at the Irish Centre of Human Rights, University of Galway, where she is supported by the Hardiman Scholarship]

Introduction 

This blog post focuses on the interpretation of Common Article 1 that was presented to the International Court of Justice (ICJ) in the Nicaragua v Germany proceedings. It argues that Germany’s interpretation of Common Article 1 is not only incorrect, but teleologically against the spirit of the Geneva Conventions of 1949. Germany’s interpretation, as indicated by the Verbatim record, lacks support in international practice and in the majority of academic commentary on the external dimension, or obligations of third states under Common Article 1. Further, Germany’s interpretation of Common Article 1 is too restrictive and circumvents the fact that the external dimension is a broad obligation of due diligence, not just prevention. Moreover, Germany’s reliance on Monetary Gold as a means of challenging the admissibility of a Common Article 1 claim should also be contested, as the consent of Israel is not required and Israel is not an indispensable third party. As a state bound by the Geneva Conventions, Germany’s conduct in shipping arms to Israel, with a solid, reasonable basis to believe that Israel has allegedly violated IHL, is sufficient for Common Article 1 to be invoked as a base of jurisdiction in the present case. 

Further, the ICJ’s order of April 20^th 2024, Alleged Breaches of Certain International Obligations in Respect of the Occupied Palestinian Territory (Nicaragua v Germany) Request for the Indication of Provisional Measures, falls short of adequately analyzing the submissions of Nicaragua and Germany regarding their interpretation of Common Article 1 and elaborating on the obligations that flow from the external dimension of Common Article 1 regarding third states, specifically in the context of arms sales. In addition, the ICJ has neither confirmed nor denied Germany’s interpretation of Common Article 1 as a general provision of the 1949 Geneva Conventions, the external dimension, and the content of the obligations of the external dimension. It does not provide any analysis or critical engagement with Germany’s highly problematic interpretation of Common Article 1, which would limit the protections that are offered under the 1949 Geneva Conventions by reducing the scope of the obligation on third states. In this context, the reduction of protection may have consequences for the sale of arms to Israel by Germany. A potential explanation for the Court’s avoidance of the topic is that it deemed it unnecessary at that stage, which was a request for provisional measures rather than a judgement. This post attempts to highlight some of the problems in Germany’s presentation of its interpretation of Common Article 1 that have been disregarded by the ICJ.

Background

On March 1^st, 2024, Nicaragua filed an application at the International Court of Justice, Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Application). In its Application, Nicaragua requested that the ICJ rule that Germany’s continued support of Israel amounts to ‘serious violations of peremptory norms of international law taking place in the ‘Occupied Palestinian Territory’, and that Germany a) violated the Genocide Convention by not satisfying its obligation to prevent genocide and that it contributed to the commission of genocide; b) that it did not uphold its obligations under IHL, specifically the external dimension of Article 1, the obligation to ensure respect for IHL in all circumstances; c) that Germany falls short of upholding international obligations by contributing to the illegal occupation and conflict in Gaza, and d) that it has contributed to the system of apartheid and denial of Palestinian self-determination. 

Common Article 1 of the 1949 Geneva Conventions provides: ‘The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.’ As Article 1 is rather vague, its precise scope and the exact obligations that flow therefrom have been subject to academic debate. Notably, Professor Frits Kalshoven published an article in the 1999 Yearbook of International Humanitarian Law in which he questioned the scope of Article 1. He expressed skepticism that Article 1 has two components, an internal and an external dimension. Generally speaking, the internal obligation confers obligations on states to respect IHL, and the external dimension requires third states to ensure respect for IHL in their international relations. While there is still sharp division in international legal discourse regarding the existence of an external obligation, Lawrence Hill-Cawthorne observes that: ‘common Article 1 does indeed contain external obligations in relation to the conduct of other actors.’ There is no set list of acts that can satisfy the internal or external dimensions of Article 1, though its existence and scope have been disputed. However, Nicaragua, Germany, and the ICJ concur that an external dimension exists. 

Germany’s Interpretation of the Operation of Article 1

In Germany’s response to Nicaragua’s Application, it was argued that for Article 1 to operate, there must be a finding that IHL, or Article 1, had been violated, in a manner analogous to the operation of the obligation to prevent and act to prevent genocide under the Genocide Convention. They appear to suggest that Common Article 1 is only violated when there is a suspicion of a violation of IHL by the Party to the conflict with whom Germany is engaged. Further, Germany seems to understand the external dimension as merely preventative in nature in a manner that is analogous to the external dimension of the Genocide Convention of 1948. Germany’s interpretation is reductive. The external dimension of Common Article 1 is similar to the external dimension, or obligation to prevent, of the Genocide Convention, but it is not identical. Common Article 1 does not consider itself to be an obligation that is merely preventative. Rather, it states expressly that it imposes an obligation on High Contracting Parties to respect and to ensure respect for the Conventions in all circumstances. Further, the ICRC explains that ‘[t]he duty to ensure respect […] constitutes a general duty of due diligence to prevent and repress breaches of the Conventions by private persons over which a State exercises authority, including persons in occupied territory.’ Common Article 1 is also ‘an obligation of means, whose content depends on the specific circumstances, in particular the foreseeability of the violations and the State’s knowledge thereof, the gravity of the breach, the means reasonably available to the State and the degree of influence it exercises over the private persons.’ Thus, it is clear that Germany’s interpretation is far too narrow and does not capture the breadth of the external dimension of Common Article 1. 

Further, a narrow reading of Common Article 1 necessarily excludes Germany’s conduct, which would otherwise be captured under a more generous interpretation that is in line to the ICRC’s understanding of the external dimension. For example, Germany exercises authority over the individuals and entities involved in its sale of arms to Israel and may exert some authority over the use of the arms in Gaza, which is an occupied territory. Moreover, it is not just foreseeable that international law has and will continue to be violated. It is common knowledge. World dignitaries, such as the Secretary-General of the United Nations Antonio Guterres and UN Special Rapporteur Francesca Albanese have engaged in detailed analyses of Israel’s violations of international law, and their statements and reports are publicly available and are easily accessible. Further, the UN Commission on Inquiry on the Situation in Palestine has established that IHL has been violated by Israel following the October 7^th attacks.

Palestinian NGOs have also raised their voices regarding potential violations of international law committed by Israel in the current conflict, such as Al-Haq Director Shawan Jabarin. On April 6^th, 2024, the NGO Law for Palestine released a communication prepared to be submitted to the International Criminal Court, in which it detailed alleged violations of international law in a document spanning 220 pages. The Expert Reviewers of their work include luminaries in the field of ICL, such as Professor Schabas. Their statements and reports are publicly available and easily accessible. A broad reading of the external dimension would require Germany to be vigilant in avoiding the sale of arms to a state that has elicited widespread criticism for violating international law.

In addition, Germany has also invoked Common Article 1 as a means to challenge the jurisdiction of the ICJ in a manner analogous to a Monetary Gold challenge to admissibility. It could be argued on the basis of Monetary Gold that Nicaragua’s application is inadmissible on the basis of Israel’s lack of consent, as Israel is an indispensable third party. Indeed, Germany argues that: ‘it makes no difference at all if common Article 1 is envisioned as a rule of due diligence, as that is just how the obligation to prevent under the Genocide Convention is interpreted. The basic question remains: how can it be said that there was a failure to “ensure respect” of a third State if the failure on the part of that third State to “respect” is not established in the first place?’ Further, 

19. As to the Court’s jurisprudence, the current case is substantially the same as Monetary Gold. There the Court explained: “The Court is not merely called upon to say whether the gold should be delivered to Italy or to the United Kingdom. It is requested to determine first certain legal questions upon the solution of which depends the delivery of the gold.”³³ 

20. Well, just so here. The Court is not merely called upon to pronounce on the State responsibility of Germany. It is required first to make determinations as to the State responsibility of Israel. And Nicaragua cannot avoid this by saying that the Court can find breach by Germany on the basis of a serious risk of a breach by Israel. On the correct analysis, such determinations would not be sufficient to establish breach by Germany as follows from the analogy to the Bosnian Genocide case; but anyway, as a matter of principle it makes no difference whether the required determination is an actual breach or of serious risk of breach. There is still an essential prior determination of the conduct of an absent third State on which the responsibility of the respondent State wholly depends.  [etc]

Germany seems to be invoking Common Article 1 as an attempt at a Monetary Gold objection to the ICJ’s jurisdiction. The second point regarding knowledge is substantive and is beyond the scope of this post. Regarding Monetary Gold, drawing on the International Tribunal for the Law of the Sea’s (ITLOS) decision in Mauritius v Maldives, in which the ITLOS rejected Maldives’ Monetary Gold admissibility challenge against its jurisdiction, this challenge should not succeed. The ITLOS found that because Mauritius exercised sovereignty over the Chagos Islands, and not the UK, the UK was not an indispensable party to the proceedings. As such, the case could proceed without the consent of the UK. In the present case, it has been established as a matter of law by numerous experts that Israel has violated international law. Yet Germany seems to continue to ship arms to Israel with the knowledge that international law is being violated, and that it is also bound by IHL. Germany is clearly a state whose conduct is within the purview of the external dimension of Common Article 1, even if Israel is not a party to the proceedings and has not consented. As Nicaragua’s petition concerns primarily the conduct of Germany, Israel is not an indispensable third party and the challenge to admissibility should be challenged. Therefore, it is not necessary to obtain the consent of Israel under Common Article 1 as a base of jurisdiction, as Israel’s rights are not at stake. Further, the conduct of Germany is the conduct in question under Common Article 1. It is not necessary for there to be a substantive violation of IHL for Common Article 1 to be operative and for Germany’s conduct to be examined under that Article. Moreover, the interpretation of the external dimension of Common Article 1 that is analogous to Monetary Gold should also be avoided.

Conclusion

As shown above, the interpretation put forth by the German legal team is based on a questionable interpretation of the external dimension of Common Article 1 that departs from the apparent understanding of Common Article 1. In the event that Germany is correct, however, the interpretation of the external dimension would be highly problematic and should be torn apart as a matter of law and as a matter of policy. A great number of obligations, legal and moral, flow from the external dimension of Article 1, which may be satisfied by a wide range of interventions and acts. Some of those interventions may be diplomatic; others may be seeking the assistance and protection of the international judiciary, as seems to be the case in Nicaragua’s international practice by requesting that the ICJ indicate provisional measures against Germany. If Germany is correct, however, their interpretation would shrink the obligation to ensure respect and significantly reduce the protections that it offers to vulnerable populations, such as those in Gaza, by reducing the obligations on third states, such as Germany, to take actions to reduce the harm that they may cause in their international relations. Without commenting on whether Germany’s state practice is actually contributing to the humanitarian catastrophe in Gaza, the interpretation that has been offered undermines the principles and objectives of humanitarianism that are at the core of IHL and, more generally, the maintenance of international peace and security. Time will tell whether the arms shipments to Gaza are in fact in compliance with IHL, but in the present case, the ICJ, and the international community, should not just avoid, but should reject, Germany’s interpretation of the external dimension of Common Article 1.

Further, the invocation of Monetary Gold should not block the admissibility of a claim under Common Article 1. This is due to the fact that Germany is undeniably aware that Israel has been accused of violating international law, but more importantly, Monetary Gold and a restrictive interpretation of the external dimension of Common Article 1 should not be used to obstruct an examination of Germany’s conduct. Further, it is far from clear that Germany’s awareness is even a requirement. Thus, Germany’s shipment of arms to Israel can and should give rise to judicial scrutiny under a Common Article 1 analysis.

Now, it is the role of the ICJ to consider these issues and confirm that it will not follow Germany’s interpretation of the external obligation of Common Article 1. Nicaragua has until July 21^st, 2025 to file its written pleadings, whereas Germany has until July 21^st, 2026. The ICJ has important work before it.