Introduction to the Symposium on Jurisdiction, Responsibility and Temporality: Nicaragua v. Germany Before the ICJ

[Jinan Bastaki is Associate Professor of Legal Studies at New York University, Abu Dhabi.]

The International Court of Justice’s proceedings in Alleged Breaches of Certain International Obligations in Respect of the Occupied Palestinian Territory (Nicaragua v. Germany) raise questions that extend well beyond the immediate dispute between the two States. At their core is the question of when international law can hold one State responsible for its own conduct, in line with its obligations arising from erga omnes obligations, treaty law, and customary international law, in circumstances where the underlying situation involves another State that is not before the Court. The case brings into sharp focus questions concerning jurisdiction, admissibility, and the scope of States’ obligations to prevent, refrain from assisting, and ensure respect for violations of fundamental rules of international law.

Nicaragua instituted proceedings against Germany in March 2024, alleging violations of international obligations arising, among other sources, under the Genocide Convention, international humanitarian law, and international human rights law. Germany has challenged both the jurisdiction of the Court and the admissibility of Nicaragua’s claims. The preliminary-objections phase has consequently raised questions that go to the architecture of international adjudication itself: when does determining the responsibility of one State require the Court to determine the responsibility of another State? What weight may be given to findings made in advisory proceedings when the State concerned is not a party to the contentious case? Where an obligation exists independently under customary international law, does the existence of a treaty-based mechanism constrain the procedural avenues through which that obligation may be invoked? And finally, does the professed robustness of domestic procedures preclude international scrutiny?

A related question concerns the Monetary Gold principle. Originating in Monetary Gold Removed from Rome in 1943 and subsequently developed in cases including East Timor, the principle limits the Court’s ability to adjudicate disputes where the legal rights or responsibility of a State not before the Court constitute the very subject matter of the dispute. Germany argues that Nicaragua’s claims cannot be determined without findings concerning Israel’s conduct and responsibility. Nicaragua, by contrast, maintains that the dispute concerns Germany’s own obligations and that the Court can determine Germany’s responsibility without making Israel’s responsibility a necessary prerequisite to judgment. In “The Monetary Gold Principle and Preliminary Objections in the Nicaragua v. Germany Case”, Marco Longobardo examines this question in relation to Germany’s obligations to prevent genocide and ensure respect for international humanitarian law, emphasizing their preventive character. Adil Ahmad Haque, in “Nicaragua’s Monetary Gold Problem (and its Solution)”, argues that Germany’s responsibility for failing to prevent genocide can be assessed by reference to the acts of individuals without first determining Israel’s responsibility as a State.

A second set of contributions addresses the temporal scope of the Court’s jurisdiction. Germany’s declaration accepting compulsory jurisdiction, made on 30 April 2008, applies only to disputes concerning “situations or facts” subsequent to that date. In “From Historical Context to Succeeding Conduct: Germany’s Arms Transfers and the Temporal Scope of ICJ Jurisdiction”, Nahed Samour examines whether Germany’s post-2008 arms transfers constitute subsequent conduct falling within that temporal scope, particularly in light of the sharp increase in arms licensing after October 2023 and the warnings and developments surrounding the South Africa v. Israel proceedings. Ihsan Adel, in “Temporality and Third-State Responsibility in Prolonged Occupations”, develops a related analysis, distinguishing between the historical source of a situation and the source of the dispute. He argues that prolonged occupations cannot necessarily be treated as juridically static, since subsequent developments may constitute continuing wrongful conduct or alter the legal character of the underlying situation and, consequently, the obligations of third States.

Turning to the legal framework within which Nicaragua’s claims are brought, Jinan Bastaki and Victor Kattan, in “Competing Jurisdictions? Apartheid Under CERD and Customary International Law”, examine whether CERD’s dispute-settlement mechanisms necessarily govern claims based on obligations that also exist independently under customary international law. Drawing on the ICJ’s reasoning in Nicaragua v. United States, they argue that treaty codification does not extinguish the independent customary status of an obligation. In “Insulating Legal Reality? Assessing Germany’s Position on the Relevance of Advisory Opinions”, Shahd Hammouri examines Germany’s position concerning the legal relevance of the Court’s advisory opinions, focusing on the distinction between their formal non-binding character and their broader legal authority.

Finally, two of our contributions concern Germany’s domestic framework for regulating arms transfers and the extent to which that framework provides meaningful avenues for legal scrutiny. Matthias Goldmann’s “Empty Promises: Germany’s Questionable Commitment to International Law”, examines the interaction between the Arms Trade Treaty, the Genocide Convention, and Germany’s constitutional framework. He focuses on the discretion and evidentiary thresholds governing arms-transfer decisions and argues that these structures may make Germany’s professed commitment to international law difficult to test in practice. Sué González Hauck, in “Setting the Record Straight: Germany’s ‘Robust Legal Framework’ on Weapons Export Licences” examines how that framework has operated in practice, focusing in particular on recent German judicial decisions that have disposed of challenges to arms-export licences without reaching the merits. Her contribution questions whether the existence of a formal regulatory framework can itself establish effective judicial scrutiny of Germany’s arms-transfer decisions. 

Taken together, the contributions examine complementary dimensions of the preliminary-objections proceedings: the relationship between Germany’s and Israel’s responsibility, the temporal limits of the Court’s jurisdiction, the interaction between treaty and customary obligations, the legal significance of advisory opinions, and the institutional and evidentiary structures through which Germany’s international obligations may ultimately be assessed.

The questions raised by the case may also extend beyond the particular claims before the Court. States increasingly invoke international adjudication to challenge the conduct of other States that contribute to, facilitate, or fail to prevent violations committed in situations to which they are not themselves parties. How international law responds to such claims will have implications for the invocation and enforcement of obligations concerning genocide, international humanitarian law, racial discrimination, apartheid, self-determination, and other fundamental rules of international law.

Organized in conjunction with Law for Palestine, this symposium brings together these contributions to examine questions raised at a critical stage of the proceedings. Taken together, they illuminate different dimensions of a common problem: how international law should understand erga omnes obligations, the preventative character of international norms, and the responsibility of States whose own conduct is implicated in an unlawful situation.