Symposium on Jurisdiction, Responsibility, and Temporality: Nicaragua v. Germany Before the ICJ – Nicaragua’s Monetary Gold Problem (and its Solution)

[Adil Ahmad Haque is a Distinguished Professor of Law and Judge Jon O. Newman Scholar at Rutgers Law School.]

In its Preliminary Objections, Germany argues that Nicaragua’s claims are inadmissible because their resolution would require the Court to find Israel responsible for illegal conduct in its absence and without its consent. In its prior cases, namely Monetary Gold and East Timor, the Court declined to exercise its jurisdiction when it would have to rule on the legal rights or responsibility of an absent State as a prerequisite to ruling on the legal rights or responsibility of the parties to the case. In such cases, the legal rights or responsibility of the absent State formed part of “the very subject matter” of the dispute.

In its Written Statement and oral arguments (here and here), Nicaragua makes three primary arguments in response. First, the Court should narrowly interpret Monetary Gold and East Timor to render a claim inadmissible only where a party to a case claims a legal right that is also claimed by an absent State. Second, the Court can find that Germany breached various obligations of conduct without finding that this conduct resulted in Israel’s commission of illegal acts. Finally, the Court can treat as “givens” the findings contained in its provisional measures orders in South Africa v. Israel as well as in its advisory opinions of 2024 and 2025. I will not discuss Nicaragua’s primary arguments here.

Instead, I will focus on an alternative argument contained in Nicaragua’s Written Statement (paras. 216-221). According to this alternative argument, the Court can find Germany responsible for failing to prevent genocide committed by certain individuals without attributing the acts of those individuals to Israel. Presumably, the individuals Nicaragua has in mind are Israeli officials, including members of Israel’s government and armed forces. Obviously, the acts of Israeli officials are attributable to Israel. But Nicaragua’s point is that the Court does not need to attribute the acts of these individuals to Israel in order to find that Germany failed to prevent these acts. The Court does not need to find Israel responsible for these acts as a prerequisite of finding Germany responsible for failing to prevent these acts. It follows that the “Monetary Gold principle” invoked by Germany does not render inadmissible Nicaragua’s claim that Germany failed to prevent genocide.

Nicaragua’s alternative argument is correct. Indeed, its logic extends to Nicaragua’s claims that Germany is complicit in acts of genocide and that Germany failed to ensure respect for international humanitarian law. I discussed the latter claims more systematically in an earlier essay on Just Security. In this post, I will simply explain how Nicaragua’s alternative argument should be understood.

Nicaragua’s Alternative Argument

According to Nicaragua’s alternative argument, the Court can find that Germany failed to prevent the commission of acts of genocide by certain individuals without deciding that the State of Israel is responsible for those acts. As Nicaragua explains, 

the responsibility of another State for genocide or genocidal acts is not a condition for finding that a State is responsible for not preventing these acts. In the Bosnian Genocide case, the Court did not determine that any State Party was responsible for having actually committed genocide. It determined that genocide was committed by individuals and groups, and that an obligation to prevent genocide arose when there was a “serious risk” of the crime being committed.

Written Statement, para. 216

This is correct. Under the Genocide Convention, genocide is an act committed by individuals, which States Parties undertake to prevent, by using whatever influence they may have over those individuals, when they become aware of a serious risk that those individuals will commit genocide. It does not matter whether the acts are performed within a State Party’s territory, or by its citizens, or in the territory of another State, or by citizens of another State, or by a non-state armed group, or by a political organization, or by the officials of another State. The obligation to prevent genocide works exactly the same way: as an obligation to prevent individuals from committing genocide.

Nicaragua continued:

If necessary and in the alternative, if it deems it more appropriate, the Court could proceed in the same manner here: after having noted that acts of genocide have been committed, it could determine to which extent Germany has provided aid and assistance in the commission of this genocide without having to decide that the State of Israel itself is responsible for genocide.

Written Statement, para. 221

This is correct. The Court could proceed by finding that acts of genocide have been committed by individuals in Gaza, and that Germany provided aid and assistance to these individuals in their commission of genocide, or that Germany failed to use its influence over these individuals to prevent their commission of genocide. Notably, aiding or assisting individuals in their commission of genocide establishes complicity in genocide under the Genocide Convention, in contrast to aiding or assisting another State in its commission of an internationally wrongful act. As Nicaragua explains, the Court could proceed in this manner without having to decide that the State of Israel itself is responsible for genocide.

In its oral argument, Germany responded that Nicaragua’s alternative argument

still requires the Court to make findings of genocide, as in the Bosnian Genocide case, and there, of course, there was no third State involved, so the current issue did not arise: the genocide alleged was conducted by an entity ⎯ the Bosnian-Serb army ⎯ whose acts could not be attributed to Serbia or any other State. Here, by contrast, Nicaragua alleges breach by Germany with respect, specifically, to “the commission of genocide by Israel” …. And it is by supplying military equipment to Israel (and not to any other actor) that Nicaragua alleges that Germany is breaching its obligation of prevention. Likewise, the evidence that Nicaragua deploys purports to show the commission of a genocide by Israel, not by any other party.

Verbatim Record, para. 24

Germany’s response fails in at least two ways. First, it is irrelevant that Nicaragua refers to the commission of genocide by Israel in its primary arguments, since its alternative argument clearly shifts the focus to the commission of genocide by individuals. The alternative argument must be evaluated on its own terms.

Second, it is beside the point that the acts of the Bosnian-Serb army were not attributed to Serbia or any other State. The point is that the responsibility of a third State (hypothetically, Russia) for failing to prevent the Bosnian-Serb army from committing genocide would depend on that third State’s influence over the Bosnian-Serb army, not on the attribution of the Bosnian-Serb army’s acts to Serbia. This is a simple point of legal logic, but it helps to illustrate with a hypothetical example. 

Suppose that State A has influence (short of effective control) over an armed group, and is aware of a serious risk that the armed group is about to commit genocide, but fails to use its influence to prevent the latter’s commission of genocide. Clearly, State A would be responsible for its failure to prevent genocide by the armed group. Crucially, this conclusion follows irrespective of whether the acts of the armed group are attributable to any other State. Put the other way around, the attribution or non-attribution of the acts of the armed group to another State is not a prerequisite to establishing the responsibility of State A for failure to prevent genocide by the armed group.

Now suppose that the armed group in question turns out to be a covert unit of the armed forces of State B. Nothing changes. State A is still responsible for failing to prevent the commission of genocide by the unit, and this conclusion does not depend on attributing the acts of the unit to State B. Obviously, the acts of the unit are attributable to State B, since the unit turns out to be an organ of State B. But the attribution of the unit’s commission of genocide to State B is not a prerequisite to finding State A responsible for failing to prevent genocide. State A’s responsibility depends on its own failure to use its influence over the individual members of the unit.

The point can also be expressed in (semi-)formal terms:

P1: If a State fails to use its influence over individuals despite its awareness of a serious risk that the individuals will commit genocide, and the individuals commit genocide, then that State breaches its obligation to prevent genocide.

P2: State A had influence over the unit and was aware of a serious risk that the unit would commit genocide.

P3: State A failed to use its influence over the unit to prevent the unit from committing genocide.

P4: Members of the unit committed genocide. 

C1: Therefore, State A breached its obligation to prevent genocide.

Clearly, the preceding line of reasoning does not depend on the attribution of the acts of the unit to State B, which would proceed along intersecting but distinct lines: 

P4: Members of the unit committed genocide.

P5: The unit’s acts are attributable to State B.

P6: State B is responsible for acts attributed to it.

C2: State B is responsible for genocide.

The two arguments share a common premise (P4) but neither conclusion depends on the other. C1 does not depend on C2, and C2 is not a prerequisite for C1. In other words, a finding of State A’s responsibility does not depend on a finding of State B’s responsibility, and a finding of State B’s responsibility is not a prerequisite for a finding of State A’s responsibility. It follows that the Monetary Gold principle is not engaged.

Conclusion

Nicaragua’s alternative argument is correct. The Court can find that Germany breached its obligation to prevent acts of genocide committed by individuals over whom it had influence, namely Israeli officials, without finding Israel responsible for those acts. Israel’s responsibility is not a prerequisite for Germany’s responsibility, so Israel’s responsibility is not part of the “very subject-matter” of the dispute. It follows that the Monetary Gold principle is not engaged.

The logic of Nicaragua’s alternative argument extends to its claims regarding complicity in genocide and failure to ensure respect for international humanitarian law (see here). However, its logic may not extend to Nicaragua’s claims regarding denial of self-determination, racial discrimination, segregation and apartheid. While genocide may be committed by individuals and only then attributed (or not attributed) to States, these other claims involve violations of legal obligations binding on States as such. The admissibility of these other claims therefore depends on Nicaragua’s primary arguments summarized above.

Nicaragua’s alternative argument is correct, but that does not mean that it will succeed. The alternative argument does not appear in Nicaragua’s Memorial, and was not mentioned in Nicaragua’s oral arguments. In Nicaragua’s 132-page Written Statement, it takes up six paragraphs. While its logic is sound, its meaning is not always clear. The Court may miss it entirely or simply not understand it. That would be a great pity, since Nicaragua’s alternative argument is correct.