Top UN court could decide to limit Germany’s arms sales to Israel, says legal expert

– ‘Germany feels a certain responsibility for Israel’s security,’ says Stefan Talmon 

– Germany’s arms and military equipment sales to Israel increased tenfold last year, reaching approximately $353.27M as compared to 2022

– Nicaragua filed lawsuit against Germany at International Court of Justice, alleging that Berlin’s support for Tel Aviv’s attacks on Gaza facilitated ‘committing genocide’ 

– ‘I believe Germany has made the mistake of being rather unconditional in its support,’ says legal expert, who is also professor at Bonn University   

ANKARA 

The International Court of Justice (ICJ) could decide to limit Germany’s arms sales to Israel when it takes up Nicaragua’s case against it for a preliminary hearing early next month, requesting that the top UN court order Berlin to cease its military support for Tel Aviv amid increasing pressure from human rights groups across Europe over allegations of genocide in Gaza, said a legal expert.

Despite increasing pressure from human rights groups in Europe, Germany stands out as the country providing the most significant arms support to Israel, which is being tried for genocide in Gaza at the ICJ.

According to a report from the German Ministry of Economic Affairs and Climate Protection, the country’s arms and military equipment sales to Israel increased tenfold last year, reaching €326.5 million (approximately $353.27 million) as compared to 2022.

Nicaragua filed a lawsuit against Germany at the ICJ, alleging that Germany’s support for Israel’s attacks on Gaza facilitated “committing genocide.”

On April 8 and 9, the ICJ will hear a South African case requesting additional sanctions against Israel for its war in Gaza, while Nicaragua has also petitioned the top UN court to order Germany to cease providing military support for Israel.    

‘Germany feels certain responsibility for Israel’s security’ 

Commenting on the case, Professor at Bonn University and legal expert Stefan Talmon told Anadolu that his country’s “unconditional” support and stance towards Israel are linked to the Holocaust.

“Not only this government but also the previous government declared that Israel’s security is Germany’s responsibility. Germany feels a certain responsibility for Israel’s security,” Talman said.

“While I am fully supportive of Israel’s right to self-defense, I believe Germany has made the mistake of being rather unconditional in its support,” he said, believing that this situation damages Germany’s credibility internationally.

Talmon said Germany refrains from criticizing Israel because it regards it as an “ally and friend.”

“Despite numerous reports from United Nations agencies and NGOs about the desperate situation of Palestinians, Germany has never really criticized Israel for what it has been doing.

“Considering personal relationships, if you have good friends, sometimes you may tell your friends when they make a mistake. In fact, if you think a good friend has made a mistake, you criticize him,” he said.    

‘Ignoring violations undermines credibility in terms of international law’ 

Germany, despite having a Holocaust past, has to speak out about Israel’s mistakes publicly, Talmon stressed, adding, “Ignoring (Tel Aviv’s) clear violations undermines its own credibility in terms of international law.”

“We cannot accuse Russia or Belarus or China or other countries of violating international law while looking the other way when our friends or allies do the same.”

He noted that Germany has recently become “more outspoken” about Israel’s actions in Gaza, but added, “I think Germany should have spoken up or out much earlier.

“Now, already in October 2023, when Israel declared that it would impose a total blockade on Gaza when some Israeli politician said there is no food, no water, no electricity going into Gaza anymore… Germany should already have spoken out about this.”

He said Nicaragua’s lawsuit against Germany has not gained widespread attention in the country, as “I don’t think this has become a general issue in the German public.”    

‘Nicaragua will point to Germany’s arms shipments to Israel’ 

Talmon said the court’s jurisdiction and admissibility of Nicaragua’s lawsuit against Germany for facilitating genocide will be determined during the hearing scheduled for April 8 and 9.
He pointed out that Nicaragua needs to overcome these obstacles to present its claims, saying: “Nicaragua will point to Germany’s outspoken support for Israel in the political sphere, supporting Israel’s right to self-defense.

“It’s a temporary halting of new funding to UNRWA – the UN agency for Palestinian refugees. And, of course, it will point to the weapons deliveries from Germany to Israel.”

The legal expert described the case’s procedural difficulty as “if you claim that Germany is complicit in genocide, then it would either be instigating genocide or aiding and abetting genocide.”

The first step in determining this would be to establish that there has been genocide. Now, Israel is accused of genocide. So the court cannot rule on complicity without first deciding on the main act, namely genocide, he explained.     

‘Respect for international humanitarian law must be ensured’ 

The expert noted that Nicaragua’s accusations against Germany include not only violating the Genocide Convention but also violating international humanitarian law, stating: “Nicaragua also claims that Germany is not complying with visits obligation to ensure respect for international humanitarian law (under the Geneva Conventions).”

He said some argue that the obligation to ensure respect for international humanitarian law can only be fulfilled in case of a violation.

“I don’t think that that is true. Because, of course, people or states have to ensure respect for international humanitarian law even before breaches actually happen,” he underlined.

Talmon concluded by saying: “If you know that someone is always breaching international humanitarian law, then there is a probability there is a risk that that state will also now violate international humanitarian law.

“So, the court could order that Germany shall not provide Israel with any weapons that may be used to commit violations of international humanitarian law.”

But again, the issue here is that Nicaragua would have to prove first, that Germany has supplied weapons used in Gaza, he said.

Germany could argue in court that it was unaware that the arms sold to Israel were being used against civilians, he added.

The expert said Nicaragua would have to prove that Germany had information about who the weapons were being used against, adding, “The law is sometimes very procedural, and it is sometimes very difficult to prove things.”  

*Writing by Alperen Aktas from Istanbul

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