Published: 21 March 2026 Author: Stefan Talmon
On 29 December 2023, South Africa instituted proceedings against Israel in the International Court of Justice (ICJ) accusing Israel of breaches of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) in the Gaza Strip. In particular, it accused Israel of failing to prevent genocide and committing genocide in manifest violation of the Genocide Convention. Germany rejected the genocide charges brought against Israel by South Africa and announced its intention to intervene in the proceedings.
On 5 January 2024, a spokesperson for the Federal Foreign Office declared: ‘We … have made it very clear that, in our opinion, the claim that Israel is committing genocide in the Gaza Strip is false and not covered by the Convention.’ A week later, the Federal Government issued a statement declaring its intention to intervene in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). The statement read in part:
In light of Germany’s history and the crime of humanity – the Shoah, the Federal Government sees itself as particularly committed to the Convention against Genocide. This Convention is a central instrument of international law to implement ‘Never Again’. We firmly oppose a political instrumentalization [of the Convention]. …
[T]he Federal Government firmly and expressly rejects the accusation of genocide that has now been levelled against Israel at the International Court of Justice. This accusation has no basis whatsoever.
The Federal Government supports the International Court of Justice in its work, as it has done for many decades. The Federal Government intends to intervene as a third party in the hearing on the merits.
The German Ambassador to the United States made it clear that Germany’s intervention would be an intervention ‘on Israel’s behalf’.
During the regular government press conference on 15 January 2024, the cabinet spokesperson reiterated Germany’s intention to intervene, declaring:
[I]t is true that we, of course, continue to support the International Court of Justice, and this Court explicitly provides for the possibility of third parties participating in the proceedings on the merits. The Federal Government is exercising this right. It has announced this intention. … Because of our history, because of the Holocaust, we feel a particular obligation to examine this issue very closely, and we are not convinced that the arguments presented justify this accusation. Therefore, we have stated that we will stand with Israel in these proceedings as a third party and will also make our position known. It is clear, however, that this is a case being heard and adjudicated before the International Court of Justice, and just as there are plaintiffs and people seeking to prove their case, we stand with Israel and defend it.
A spokesperson for the Federal Foreign Office added:
The Genocide Convention sets out certain criteria for what constitutes genocide. The legal definition of genocide requires the intent to destroy, in whole or in part, members of a national ethnic, racial, or religious group because of their membership in that group, and we cannot, in good conscience, discern this intent in the Israeli actions. Therefore, we are taking the position we are taking.
There are two ways to intervene in proceedings before the ICJ. States which consider that they have an interest of a legal nature which may be affected by the decision in a case, may submit a request to the Court under Article 62 of the ICJ Statute to be permitted to intervene. It is for the Court to decide upon such requests. The second way to intervene is under Article 63 of the Statute which gives every State Party to a treaty the right to intervene in a case whenever the construction of the treaty is in question in the case. Germany made it clear that it intended to exercise its right to intervene in the case between South Africa and Israel as a State Party to the Genocide Convention under Article 63 of the Statute. In response to a parliamentary question, the State Secretary at the Federal Foreign Office Susanne Baumann declared on 7 February 2024:
In these main proceedings, the Federal Government intends, as it has already done in other proceedings initiated before the ICJ under the Genocide Convention, to present its legal opinion on the interpretation of the relevant provisions of the Genocide Convention to the Court by way of an intervention under Article 63 of the ICJ Statute. Against the backdrop of German history, the Federal Government sees itself as having a special responsibility to uphold the integrity of the Genocide Convention.
In March 2024, the Federal Government further clarified its motivation for the intervention. In response to a parliamentary interpellation, the Federal Government stated:
The Federal Government supports the work of the International Court of Justice (ICJ) and respects South Africa’s referral to the Court. … Germany will present its general position on the interpretation of the Genocide Convention as part of an intervention in the case of South Africa v. Israel before the International Court of Justice. Particularly in light of its own history, upholding the integrity of the United Nations Genocide Convention is an expression of Germany’s special responsibility. Consequently, Germany has already presented its legal position in two other cases brought before the International Court of Justice under the Genocide Convention by way of an intervention (Ukraine v. Russia; Gambia v. Myanmar). In this spirit, the Federal Government will also address Nicaragua’s accusation before the International Court of Justice that Germany is violating its obligations under the Genocide Convention. The intervention in the case of South Africa v. Israel will—in accordance with the Court’s rules of procedure—focus solely on the legal questions of the interpretation of the Convention, not on its specific application to a disputed set of facts.
From the Federal Government’s perspective, it is important to note that the legal definition of genocide requires actions carried out with the intent to destroy, in whole or in part, a specific group as such. The will to defend oneself against attacks and the deliberate intention to exterminate a group as such are not the same.
In the following months, the Federal Government repeatedly stated its intention ‘to submit its general view on the interpretation of the Genocide Convention by way of an intervention in the case of South Africa against Israel.’ In November 2024, the Federal Government declared that it was examining the option under Article 53(1) of the Rules of Court to request access to the pleadings in the case in order to prepare its intervention.
Following the assumption of office by a new federal government under Chancellor Friedrich Merz on 6 May 2025, no further statements were made regarding a possible intervention in the case. After the UN Human Rights Council’s Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, had concluded that ‘the State of Israel bears responsibility for the failure to prevent genocide, the commission of genocide and the failure to punish genocide against the Palestinians in the Gaza Strip’, the Federal Government was asked during the regular government press conference on 17 September 2025 whether it still intended to intervene on the merits in the case brought by South Africa against Israel. A spokesperson for the Federal Foreign Office did not directly answer the question but stated:
I will not comment in detail on the strategy in this case. However, I can tell you that the next deadline for submitting documents is in January 2026, and there is still some time until then.
A State which desires to avail itself of the right to intervene under Article 63 of the Statute shall file a declaration to that effect ‘as soon as possible, and no later than the date fixed for the filing of the Counter-Memorial.’ The same deadline applies to interventions under Article 62 of the Court’s Statute by States having an interest of a legal nature which may be affected by the decision in the case.
Israel initially was to file its Counter-Memorial by 28 July 2025. However, at the State’s request the deadline for the filing of the Counter-Memorial was extended twice, first to 12 January 2026 (the date the Federal Government referred to in its answer in September 2025) and then to 12 March 2026. The final deadline for the filing of interventions was thus 12 March 2026. By that date, twenty-two States, including the United States, and EU Member States Belgium, Ireland and the Netherlands had filed their interventions, but not Germany. The country that had first rushed to declare its intention to intervene ultimately did not file a declaration of intervention.
During the regular government press conference on 18 March 2026, the Federal Government was asked about the Federal Government’s declared intention to intervene in the case between South Africa and Israel. A spokesperson for the Federal Foreign Office replied:
[T]here will be no such intervention. … I believe you are referring to a statement made by the previous government in January 2024, immediately after South Africa filed its lawsuit in December 2023. You are also aware that there have been new developments since then, including Nicaragua bringing a case against Germany before the ICJ shortly thereafter, in the spring of 2024. We are now ourselves a party to contentious proceedings before the ICJ and have therefore decided not to make use of this option and instead to concentrate on these proceedings, in which we are a party.
With regard to the previous government’s position that the genocide allegations against Israel were completely unfounded, the Federal Government was asked whether this was no longer its position. The Foreign Office spokesperson replied:
I did not say that. I said: We are concentrating on proceedings before the ICJ, in which Germany itself is a party. Everything else will be decided by a court. That means the accusation you are making will be clarified before the ICJ, and we naturally want to wait for that.
This was a remarkable U-turn. The explanation that the Federal Government wanted to concentrate on the proceedings brought by Nicaragua against Germany for violating its own obligations under the Genocide Convention by assisting Israel in its alleged genocide against the Palestinian people in Gaza appeared to be merely a pretext. Nicaragua had instituted the proceedings against Germany on 1 March 2024; that is, more than two years earlier. All this time, this did not seem to be a factor impacting on Germany’s intention to intervene in order to stand with Israel in these proceedings. Surely, a country like Germany should be able to handle two cases at the ICJ at the same time.
The real reasons for Germany’s change of course may have been different. First, it may have finally dawned on the Federal Government that an interpretation of the Genocide Convention helpful to Israel would have been difficult to reconcile with the expansive interpretation of the Genocide Convention which it had submitted on 15 November 2023 together with five other Western States in The Gambia v. Myanmar case (the ‘joint intervention declaration’). In that case, Germany had in fact argued for a lowering of the evidentiary standards for proving genocidal intent in order to bring the atrocities allegedly committed by the Myanmar government against the Rohingya in Myanmar’s Rakhine state within the ambit of the Genocide Convention. That the interpretation of the Genocide Convention advocated by Germany in The Gambia v. Myanmar case was actually supporting the case against Israel is demonstrated by the fact that several States intervening in support of South Africa’s position relied on the joint intervention declaration. In particular, the Netherlands – one of the Western States intervening together with Germany in The Gambia v. Myanmar case – repeatedly emphasised that its essentially pro-South African position was ‘consistent with and based upon the Declaration of Intervention of 15 November 2023 and subsequent Written Observations of 3 March 2025 submitted by the Netherlands, together with Canada, the Kingdom of Denmark, the French Republic, the Federal Republic of Germany, and the United Kingdom of Great Britain and Northern Ireland, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar).’
Second, the shift in Germany’s position may have been an expression of a distancing from Israel with regard to the war in Gaza. When pressed whether the decision not to intervene meant that Germany no longer considered that there was ‘no basis whatsoever’ for the accusation of Israel committing genocide in Gaza, the spokesperson for the Federal Foreign Office did not answer the question but stated:
We categorically reject the accusations that Nicaragua is making against Germany in this case before the ICJ. Therefore, we would like to focus on this case. Everything else is a matter for clarification before an international court, and so I simply do not want to comment further on this question from this spot.
While intellectually demanding and challenging it would not have been impossible for Germany to intervene in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) offering an interpretation of the Genocide Convention supportive of Israel’s position that would nevertheless have been compatible with the joint intervention declaration in The Gambia v. Myanmar case. Rather than focusing on potential evidence of genocidal intent and the evidentiary standard for establishing such intent, Germany could have focused in its intervention observations on questions not previously addressed in the joint intervention declaration in order to avoid any contradictions and accusations of double standards. For example, it could have addressed the question of the application and interpretation of the Genocide Convention in the context of intense urban warfare. The armed conflict between Israel and Hamas gave rise to numerous novel questions concerning combatants embedded within civilian infrastructure, the use of civilian shields, civilians directly participating in the hostilities, civil-military dual use objects and especially combatant strategies employing massively amassed civilian shields. Germany could have put forward the position that genocidal intent was not the only reasonable inference to be drawn from civilian casualties, even widespread civilian casualties including women and children, when these casualties occurred in the context of an armed conflict involving intense urban combat. It could also have taken the position that genocidal intent was not a reasonable inference, and definitely not the only reasonable inference, in situations of armed conflict where a warring party makes efforts to comply with the laws of armed conflict with respect to the protection of civilians by giving advance warning of attacks on military objectives in order to allow for the evacuation of civilians, establishing safety zones for civilians, or agreeing to the temporary cessation of hostilities in order to allow the provision of food, water and medical supplies to civilians. Furthermore, Germany could have taken the position that even serious breaches of international humanitarian law and disproportionate attacks in urban warfare situations do not automatically establish genocidal intent. An intervention along these lines would also have provided Germany with an opportunity to state once again publicly, like the United States, that ‘the claim that Israel is committing genocide in the Gaza Strip is false and not covered by the Convention.’ The fact that the new Federal Government under Chancellor Merz chose not to adopt this approach suggests that it did not want to intervene for political reasons, rather than that it could not intervene because of Germany’s earlier intervention in The Gambia v. Myanmar case.
Category: International Court of Justice
DOI: 10.17176/20260322-145619-0
