Symposium on Jurisdiction, Responsibility, and Temporality: Nicaragua v. Germany Before the ICJ – The Monetary Gold Principle and Preliminary Objections in the Nicaragua v. Germany Case

[Dr Marco Longobardo is a Reader in International Law at the School of Law of the University of Westminster. He is the author of The Use of Armed Force in Occupied Territory (Cambridge University Press, 2018) and Sufficient Gravity before the International Criminal Court (Edward Elgar 2026).]

Introduction

In the week that started on 7^th September 2027, the ICJ heard the pleadings of Nicaragua and Germany in relation to the preliminary objections in the case Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory. Many important legal issues were debated passionately by the agents and counsel. This post discusses only whether the case is inadmissible in light of the so-called Monetary Gold principle, according to which the ICJ cannot decide a case if the decision will require the Court to rule, directly or incidentally, on the responsibility of a state that it is not a party to the proceedings. In the instance at hand, obviously, the question is whether the ICJ should consider the Nicaragua v. Germany case to be inadmissible because it would require a legal determination of the commission of wrongful acts by Israel, which is not a party to the proceedings.

This post will focus only on two specific allegations brought by Nicaragua: the alleged violation by Germany of the duty to prevent genocide under Article I of the 1948 UN Genocide Convention, and of the duty to ensure respect for IHL under Article 1 common to the 1949 Four Geneva Conventions. The next section will recollect why, in my view, cases involving alleged violations of these obligations are not inadmissible under the Monetary Gold principle. The sections immediately following will summarise the positions of Nicaragua and Germany in the case at hand, discussing how sound they appear.

The Duty to Prevent Genocide, the Duty to Ensure Respect for IHL, and the Inapplicability of the Monetary Gold Principle

The Monetary Gold principle, in a nutshell, it an exceptional inadmissibility ground precluding the ICJ from entertaining a case if: i) its very subject matter is the responsibility of a state that it is not a party to the proceedings; or ii) if, to decide on the responsibility of the respondent state, the ICJ needs to ascertain the responsibility of another state that is not a party to the proceedings. As I have argued in detail in a long article of mine, on the whole, I do not believe that the Monetary Gold principle renders inadmissible cases on alleged violations of the duty to prevent genocide and the duty to ensure respect for IHL only because the state that might have committed a genocide or IHL violations is not a party to the proceedings. To use the example at hand, I believe that the case against Germany for not having done enough to ensure that Israel did not commit a genocide in Gaza and/or did not violate IHL in Gaza is not inadmissible per se only because Israel is not a party to the proceedings.

This conclusion is based on the consideration that both the duty to prevent genocide and the duty to ensure respect for IHL are not triggered by the commission of a genocide or of IHL violations, but by the existence of a serious risk of their commission. According to the ICJ, ‘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’ (Bosnia v Serbia, para 431); this point has been recently endorsed by Belgian case law. The same conclusion has been reached, in relation to the duty to ensure respect for IHL, by UK courts and Dutch courts, both mentioning the existence of a ‘clear risk’ of IHL violations as the trigger of the obligation. The fact that there is no need to ascertain the occurrence of a genocide or of IHL violations is fully in line with the preventive (rather than reactive) function of the two obligations at hand.

Now, if the trigger is the clear/serious risk of a violation, then, there is no need to ascertain that Israel has actually committed a genocide or IHL violations to determine the wrongful conduct of Germany. It would be sufficient to demonstrate, on the plane of facts rather than of legal conclusions, that there was a serious risk of these violations that triggered Germany’s obligations. Indeed, the Monetary Gold principle only prevents a legal determination, rather than the fact that a judgment might reflect negatively on the position of a non-participating state, which would be free to intervene in the case to voice its concerns (East Timor (Portugal v. Australia), para 34; Kolb, pp. 572-574).

Accordingly, in principle, the ascertainment of the violation of the duty to prevent genocide and the duty to ensure respect for IHL by Germany in relation to the conduct of Israel in the Gaza Strip does not require, de jure, the participation of Israel in the proceedings. The case would thus be admissible in relation to these allegations. 

The Position of Nicaragua and Germany in the Preliminary Objections Phase

Nicaragua and Germany decided to discuss the Monetary Gold principle following slightly different arguments from the ones I suggested above. After a brief exchange of views in the hearings pertaining to a request for provisional measures (paras 8-11 and paras 5-23), Germany challenged the admissibility of the case brought by Nicaragua invoking the Monetary Gold principle in its preliminary objections. 

Germany’s position on the Monetary Gold principle can be summarised as resting mainly on two prongs. First, according to Germany, the application by Nicaragua is ‘replete with assertions that Israel is in breach of multiple and fundamental norms of international law, and the great majority of its claims against Germany are dependent on the Court making prior determinations as to these breaches by Israel’ (para 124). Germany criticises Nicaragua’s reliance on determinations of violations by Israel already stated by the ICJ in a series of advisory opinions (ibid, para 126). In this regard, Germany refers multiple times to assertions of violations by Israel and their alleged consequences for Germany as reproduced in Nicaragua’s proceedings documents (eg, paras 147). These claims are repeated in the oral pleadings (eg here and here). Overall, Germany suggests that Nicaragua considers the ascertainment of Israeli responsibility as a preliminary step for determining Germany’s responsibility. 

The second argument by Germany rests on the idea that under international law the duty to prevent genocide first requires an ascertainment of the commission of a genocide (here, paras 147-154; pp. 60-61; pp. 27-28). This conclusion rests on a dictum in the 2007 Bosnia v Serbia case (para 431), according to which the duty to prevent genocide is violated only if a genocide occurs (with the Court citing Article 14(3) of ARSIWA in support). Germany considers this reasoning to be applicable also to the duty to ensure respect for international humanitarian law (paras 167-173; pp. 62-65).

For its part, Nicaragua denies that the responsibility of Israel is the subject matter of the dispute (paras 188-206). Nicaragua considers that the determination of the occurrence of a genocide cannot be a prerequisite for ascertaining responsibility for failure to prevent it, otherwise the preventive function of the obligation would be lost (eg para 215). Nicaragua also rejects the idea that the occurrence of a genocide is needed to ascertain responsibility for violations of the duty to ensure respect for IHL, which is a conclusion never mentioned in any judicial decision. Nicaragua, however, insists that the commission of genocide and of IHL violations is well documented (eg para 217; pp. 71-73; pp. 30-35). Nicaragua, on the basis of ICJ and ITLOS case law, recalls that advisory opinions by the Court and other authoritative determinations are ‘givens’ that the Court can take into consideration without triggering the application of the Monetary Gold principle (pp. 30-31). As noted by McIntyre, one of the key precedents for Nicaragua is the Corfu Channel case, where the ICJ ascertained the responsibility of Albania in relation to mines placed by Yugoslavia, not a party to the proceedings (p. 34). 

Merits and Demerits of the Parties’ Arguments

The exchange between Nicaragua and Germany on the application of the Monetary Gold principle is a delightful intellectual sparring match between first-rate international lawyers on a fascinating point of international procedural law, rendered far less delightful and less fascinating, however, by the fact that the subject matter of the dispute pertains to the alleged commission (and assistance in the commission) of atrocities.

Some of the points raised by Germany are not without merits. It is true that the claims by Nicaragua are sometimes worded as if the Court had to decide on the responsibility of Israel, or as if the entire proceedings against Germany were being used as a forum to ascertain Israeli responsibilities. The words used by Nicaragua in the proceedings are important since the way a claim is presented to the Court might be decisive in relation to the application of the Monetary Gold principle. Similarly, Germany has a good point in referring to the Bosnia v Serbia dictum according to which there is a need for a judicial determination of a genocide to ascertain a violation of a duty to prevent: it’s a low-hanging fruit.

As mentioned above, I think that Nicaragua would have provided a more persuasive argument if it had framed the entire claim around the serious risks of genocide and IHL violations in Gaza rather than on actual violations. I can only speculate as to why a different line of argument has been selected. While the entire exchange on the Monetary Gold principle is highly personalised by two members of the German and Nicaraguan delegations (eg p. 25; p. 23), we must recall that the state before the Court is responsible for the statements of counsel (as I reconstruct here); Nicaragua, through its Agent, might have had political interests in framing some of the claims on violations of IHL and the Genocide Convention by Israel that are, nevertheless, weaker points from a legal perspective for the issue of the Monetary Gold principle.

While I think there would have been a more solid line of argument, I am persuaded that the German claims are not conclusive on the application of the Monetary Gold principle, and that the Court should consider the allegations based on the duty to prevent genocide and the duty to ensure respect for IHL to be admissible. First, notwithstanding the rhetoric on Israeli responsibilities, Nicaragua is very clear in stressing that as a matter of law it is not requesting a declaration to that effect, but rather, it is only focused on obtaining a decision against Germany for German responsibility. In the name of the principle of sound administration of justice (on which, recently, see Bonafé), taking into consideration the exceptional nature of the Monetary Gold principle, the Court could well decide the case on German responsibility, stressing that any findings on a serious risk of genocide and/or IHL violations do not amount to a conclusive determination on Israeli responsibility. This would be something similar to what the ICJ has noted in relation to its findings in the UNRWA advisory opinion and its possible repercussions on the South Africa v Israel case (para 31: ‘this Opinion is not to be understood as prejudging matters of fact or law that will be determined in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) case or other contentious cases’). 

Second, while I do not believe that the horrific amount of authoritative evidence on genocide (including by UN HRC mandate holders and the ICJ orders on provisional measures in the South Africa v Israel case) can be considered as a legal ‘given’ by the ICJ in the sense of proving that Israel has committed a genocide in Gaza (otherwise, the South Africa v Israel case should be considered already decided), I believe that they constitute overwhelming factual evidence on the materialisation of a serious risk which has triggered Germany’s duty to prevent. More directly, the Court’s advisory opinions on Israel’s numerous, consistent, and grave IHL violations and the ensuing obligations upon third states have a central role in triggering the application of the duty to ensure respect for IHL. While these advisory opinions, formally speaking, do not amount to res judicata, they contributed decisively to the materialisation of a serious risk of IHL violations (otherwise, why should the ICJ have bothered to spell out legal consequences for third states?). Following the ITLOS case law, such advisory opinions, in relation to IHL violations, might also amount to ‘givens’ displacing the application of the Monetary Gold principle; as noted recently, it is the judicial nature of the body offering the assessment, rather than the binding character of the opinion, that makes a difference with respect to the weight that a court can afford to them in the absence of the participation of the concerned state in the proceedings (pp. 206-208). 

Finally, I do not believe that there is a need to demonstrate that a genocide in fact occurred to hold a state responsible for lack of prevention, nor do I think that a similar argument would apply to the duty to ensure respect for IHL. As I argued elsewhere, Article 14(3) of ARSIWA is a relic of Roberto Ago’s codification, which was entirely rejected by the final project finalised by James Crawford. There are no corresponding state practice and opinio juris to support its application today. I believe that the ICJ should abandon its view on the applicability of Article 14(3) to the duty to prevent genocide; indeed, changes in the Court’s case law are possible, as demonstrated by the saga on the standing of indirectly injured states. Even if the Court decides to stick to its (unfounded in customary international law) precedent, it is nonetheless clear that this rule does not apply to the duty to ensure respect for IHL, but only to obligations of prevention strictu sensu, as confirmed in the 2024 Ukraine v. Russia case (para 138), where the ICJ considered a duty to cooperate for prevention to be outside the scope of Article 14(3). 

Conclusions: Less Is More?

In conclusion, I believe that, in relation to the duty to prevent genocide and the duty to ensure respect for IHL, the Court should not consider the Nicaragua v. Germany case to be inadmissible due to the Monetary Gold principle. In the shoes of Nicaragua, I would have emphasised more the autonomous nature of these two obligations, triggered by the existence of a serious risk that another state commits a genocide or IHL violations, rather than by a judicial ascertainment of actual violations. Yet, I do not believe that the arguments advanced by Germany are strong enough for the Court to declare the case inadmissible with respect to these allegations.