States providing military assistance should take note.
As the war in Gaza rages on, it is already being litigated before the International Court of Justice (ICJ) in the Hague.
Following-up on South Africa's case against Israel for alleged violations of the 1948 Genocide Convention, brought at the end of 2023, Nicaragua brought a case against Germany in March 2024.
Nicaragua alleges mainly that Germany's military assistance to Israel violates Germany's obligations under the Genocide Convention and has asked the Court to order, in particular, the cessation of the assistance.
Although the Court has not ordered provisional measures (as Nicaragua requested) the case is still pending. It is a remarkable case, as it alleges complicity by one state in the wrongdoing of another.
As such, the case also has significant implications for other states providing military support to Israel.
Nicaragua has already notified its intention to bring similar cases against the UK, Canada, and the Netherlands at the ICJ.
This litigation prospect is paralleled by cases seeking to end weapons exports at domestic courts in the UK, France, Canada, the Netherlands, Denmark, and Germany.
New trends at the ICJ
The cases concerning the war in Gaza have put the ICJ into the global media spotlight in an unprecedented way. But they also align with several trends in litigation that are partly interrelated.
First, the ICJ is busier than ever. Established in 1945, the Court has seen relatively low case numbers for most of its existence. In the past decade, however, that has changed:
39 cases, i.e. 20 per cent of all cases ever brought to the Court, have been filed in the past ten years. This trend has further intensified in recent years, with nine cases (i.e. five per cent of all cases in ICJ history) having been brought between April 2023 and April 2024 - around four times as many as in an average year.
A considerable number of these cases concern disputes relating to wars. Besides Gaza, recent examples include Ukraine's cases against Russia relating to the 2014 annexation of Crimea and the large-scale invasion of 2022; mutual cases between Armenia and Azerbaijan regarding the war in Nagorno Karabach; The Gambia's case against Myanmar alleging genocide against the Rohingya minority; and a case brought by Canada and the Netherlands against Syria for alleged violations of the Convention against Torture during the Syrian civil war.
Inter-state litigation is also becoming increasingly multilateral. In cases like those brought by South Africa and Nicaragua, the applicant state is not directly injured but argues that interests of the international community as a whole are affected.
These states have invoked violations of legal rules that are owed to all states (or at least those that are party to a specific treaty). Many, though not all, of these cases are brought by states from the so-called Global South.
Nicaragua's case against Germany brings this trend of public interest litigation to another level by extending it - on the defendant side - to a state which is accused of supporting the alleged primary violation of international law.
Provisional measures
Nicaragua's case also aligns with the broader trend that states increasingly request provisional measures of the ICJ. Such measures are usually issued within a few weeks, while a final judgment generally takes years.
Given these challenges, it is noteworthy that the Court has made no attempt to tighten the conditions for granting provisional measures.
It's natural that applicant states seek quick decisions in cases related to ongoing armed conflict. But there is a risk these countries make use of the ICJ's lower bars for granting provisional measures to seek a quick victory - and global public attention - regardless of prospects for a favourable final judgement.
For the Court, the trend adds to the difficulties in managing its workload and creates a risk of it being drawn into micro-managing armed conflicts.
Given these challenges, it is noteworthy that the Court has made no attempt to tighten the conditions for granting provisional measures. In fact, the Court reached its decision not to grant provisional measures in Nicaragua's case without even referring to the conditions established in its own case law.
Instead, the Court simply concluded that the current factual circumstances do not warrant issuing provisional measures. This was because Germany had a robust domestic legal framework in place intended to prevent licenced material being used in the commission of genocide, crimes against humanity, or grave breaches of the Geneva Conventions. Since 7 October 2023, Germany has only granted four licences to export 'war weapons' to Israel, for training ammunition, test propellant charges, and anti-tank weapons.
The Court's narrow factual focus seems intended as a message to Germany and other states providing military support to Israel: that the Court remains vigilant and willing to react swiftly to changing patterns in weapons exports.
The Court is also indicating that that a decision in a similar case might well look different if the factual circumstances of militarily support differ from Germany's.
The Court underscored that messaging by reminding all states of their obligations to ensure respect for international humanitarian law, to prevent genocide, and of their responsibilities regarding weapons exports. As Nicaragua's case against Germany might continue for years, it remains to be seen whether the assistance of other states will be litigated before the Court too.
The trend may well continue
Although Nicaragua did not succeed in having the ICJ order provisional measures in its case against Germany, the Court's decision will not discourage similar cases in the future.
In fact, the Court's liberal approach to standing for claims invoking community interests leaves the door for such cases wide open.
The prospect of countries having their day in court, and potentially even securing provisional measures...might well provide sufficient incentives for further similar cases.
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There is one significant unresolved issue raised by Nicaragua's claim: can the Court decide on a state like Germany's alleged breaches of international law without first deciding on the legality of the alleged primary wrongdoer's acts (Israel in Nicaragua's case) - which is not a party to the proceedings?
Despite such obstacles to an eventual win, however, the prospect of countries having their day in court, and potentially even securing provisional measures - a binding ICJ decision against the defendant pending the final judgment - might well provide sufficient incentives for further similar cases.
Since 1 August, following a cooling off period required by the UK's and Canada's declarations accepting the ICJ's jurisdiction, Nicaragua can bring its new cases against these two states to the Court. On 2 September the UK announced it would suspend a portion of its arms export licences to Israel, citing risks of facilitating serious violations of international humanitarian law.
This move reflects a sense of caution that might, among other things, be aimed at pre-empting further litigation. Whether this decision will avert the prospect of facing provisional measures at the ICJ remains to be seen.
The ICJ's approach so far suggests the best defence in court may be a policy of strict scrutiny to avoid exported arms being used to violate international humanitarian law.
(This comment draws in part on two blogposts co-authored with Dr Robert Stendel here and here).
