Published: 15 January 2024 Author: Stefan Talmon
On 7 October 2023, Hamas and other terrorist groups launched an attack against Israel, during which 695 Israeli civilians, including thirty-six children, as well as 373 security forces and seventy-one foreigners were killed, some 3,300 wounded, and more than 240 abducted to the Gaza Strip. In response, the Israel Defence Force (IDF) conducted a massive military operation in the Gaza Strip in order to eliminate Hamas, return the hostages and ensure that Gaza will never again constitute a threat to Israel. According to the Palestinian Ministry of Health in Gaza as of 28 December 2023 at least 21,320 Palestinians had been killed in Gaza. Approximately 70 per cent of those killed were said to be women and children. In addition, 55,603 Palestinians had been injured and many more were missing. Of the 2.2 million inhabitants of the Gaza Strip, 1.9 million, or nearly 85 per cent of the population, were estimated to be internally displaced. According to the World Health Organization, out of Gaza’s thirty-six hospitals only thirteen were partially functional. There was an electricity blackout and warnings of famine. The UN Secretary-General reported to the UN Security Council that the ‘people of Gaza are in the midst of an epic humanitarian catastrophe before the eyes of the world.’ While acknowledging Israel’s right to self-defence, even close allies like Germany spoke of ‘unspeakable conditions’ in Gaza, called for humanitarian pauses in the fighting, and urged Israel to ‘resort to less intensive warfare’.
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. South Africa also applied to the ICJ for the indication of provisional measures, asking the Court, inter alia, to order Israel to ‘immediately suspend its military operations in and against Gaza.’ On 3 January 2024, the Court scheduled hearings on the request for provisional measures, set to take place on 11 and 12 January 2024.
Germany rejected the genocide charges brought against Israel by South Africa. On 5 January 2024, the federal government was asked during the regular government press conference whether it supported South Africa’s case against Israel. A spokesperson for the Federal Foreign Office replied:
South Africa has indeed filed a genocide case at the International Court of Justice. We have taken note of the application. It is now up to the International Court of Justice to examine it.
You know the Genocide Convention, which defines the crime of genocide. It requires the intention to destroy, in whole or in part, members of a national, ethnical, racial or religious group because of their membership of that group. However, targeted action against armed attackers; that is, fighters in an armed conflict, is not action with the intention of destroying an ethnic group. …
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.
During a visit to Jerusalem on 7 January 2024, the Israeli Foreign Minister asked his German counterpart for support regarding South Africa’s ‘absurd’ lawsuit against Israel.
One day before the start of the hearings on the request for provisional measures, on 10 January 2024 Federal Foreign Minister Annalena Baerbock said during a visit to Beirut:
By definition, genocide requires the intention to destroy, in whole or in part, members of a national, ethnic, racial or religious group because of their membership in this group. I cannot see this intention in Israel’s self-defence against an armed terrorist organization Hamas.
Foreign Minister Baerbock also announced that the federal government would follow the hearing closely and ‘set out its legal opinion on the interpretation of the Genocide Convention through its own intervention’ in the main proceedings.
Vice-Chancellor and Federal Minister for Economic Affairs and Climate Action, Robert Habeck, also rejected the genocide charge against Israel. During a visit to Jerusalem, he stated:
My personal and political opinion is that one can criticise the Israeli military for acting too harshly in the Gaza Strip. However, that does not constitute genocide. Those who would commit or desire to do so, if given the opportunity, are Hamas. Their agenda is to wipe out the State of Israel. So we can understand the slogan ‘From the River to the Sea’ not as meaning that Jews should leave Israel by boat, but as an extermination fantasy. Accusing Israel of genocide, in my view, is a complete reversal of victims and perpetrators, and is just wrong.
South Africa set out its legal position to the ICJ on 11 January 2024, and Israel responded the next day. Less than two hours after Israel had finished its pleadings on provisional measures in The Hague, the Federal Government issued a statement declaring its intention to intervene under Article 63 of the ICJ Statute 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 cabinet spokesperson issued a press release, which in its first version – rather embarrasingly – was entitled ‘Statement by the Federal Government on the Proceedings at the International Criminal Court’. The statement, whose title was later corrected, read as follows:
On 7 October 2023, Hamas terrorists brutally attacked, tortured, killed and kidnapped innocent people in Israel. Hamas’ goal is to wipe out Israel. Since then, Israel has been defending itself against the inhumane attack by Hamas.
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].
We know that different countries assess Israel’s operation in Gaza differently. However, the 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’.
The move was immediately praised by Israel. Only hours after the announcement, the Israeli Prime Minister called Federal Chancellor Olaf Scholz to thank him ‘for Germany’s willingness to send a delegation to The Hague to help refute this despicable lie [of an Israeli genocide].’
On the other hand, the announcement to intervene on behalf of Israel was strongly criticised by several independent human rights experts appointed by the United Nations Human Rights Council. For example, the UN Special Rapporteur on the Right to Housing wrote on the platform X: ‘Shocking abdication of all responsibility by Germany. … Germany should be supporting efforts to enforce the Genocide Convention, not oppose it.’ The United Nations Special Rapporteur on the Occupied Palestinian Territories wrote that because of its own history, ‘Germany should not obstruct’ the proceedings, and the UN Special Rapporteur for the Right to Health wrote that ‘[t]he state that committed more than one genocide throughout its history is trying to undermine the efforts of a country that is a victim of colonialism and apartheid’.
The strongest reaction, however, came from Namibia, which reminded Germany of its history and appealed to the German Government to reconsider its untimely decision to intervene as a third-party. On 13 January 2024, the Namibian Presidency issued a press release chastising Germany for its decision to intervene. The press release read as follows:
Namibia rejects Germany’s Support of the Genocidal Intent of the Racist Israeli State against Innocent Civilians in Gaza
On Namibian soil, Germany committed the first genocide of the 20th century in 1904-1908, in which tens of thousands of innocent Namibians died in the most inhumane and brutal conditions. The German Government is yet to fully atone for the genocide it committed on Namibian soil. Therefore, in light of Germany’s inability to draw lessons from its horrific history, President Hage G. Geingob expresses deep concern with the shocking decision communicated by the Government of the Federal Republic of Germany yesterday, 12 January 2024, in which it rejected the morally upright indictment brought forward by South Africa before the International Court of Justice that Israel is committing genocide against Palestinians in Gaza.
Worryingly, ignoring the violent deaths of over 23 000 Palestinians in Gaza and various United Nations reports disturbingly highlighting the internal displacement of 85% of civilians in Gaza amid acute shortages of food and essential services, the German Government has chosen to defend in the International Court of Justice the genocidal and gruesome acts of the Israeli Government against innocent civilians in Gaza and the Occupied Palestinian Territories.
Germany cannot morally express commitment to the United Nations Convention against genocide, including atonement for the genocide in Namibia, whilst supporting the equivalent of a holocaust and genocide in Gaza. Various international organizations, such as Human Rights Watch have chillingly concluded that Israel is committing war crimes in Gaza.
President Geingob reiterates his call made on 31 December 2023, ‘No peace-loving human being can ignore the carnage waged against Palestinians in Gaza’. In that vein, President Geingob appeals to the German Government to reconsider its untimely decision to intervene as a third-party in defence and support of the genocidal acts of Israel before the International Court of Justice.
Namibia was apparently particularly incensed by the federal government’s announcement to intervene because it was made on 12 January – the date on which the ‘build up to the Herero-Nama genocide in Namibia, perpetrated by Germany started’ in 1904. However, it should be noted that the date did not mark the actual start of German colonial atrocities in Namibia but the date when the Hereros rose up against German colonial rule and launched their first attacks against German settlers. In any case, the President Geingob’s statement will have wider repercussions for German-Namibian relations.
The German Embassy in South Africa tried to pour oil on troubled water by issuing a series of posts on the platform X on 14 January 2024, which read:
ICJ Due to the darkest chapters of our history, Germany has to live with the terrible responsibility for genocide perpetrated in its name. In colonial times, Germans perpetrated what today would be called genocide against two ethnic groups in Namibia. These days, around 12 January, we are especially mindful of this stain on our history. Nazi Germany committed one of the worst crimes in human history, the Holocaust against Jews in Europe. Bearing all of this in mind, we think that self-defence against a terrorist regime that hides behind the civilian population as human shields to maximise suffering and to render defence against its actions impossible, is not genocidal intent. This is an important legal question, and it is important that it is discussed. That is why Germany will intervene in the ICJ case brought against Israel. But it is even more important that we continue to do everything for peace in the Middle East. That is why we are stepping up our diplomatic efforts in support of a negotiated two-state-solution, and are massively increasing our humanitarian aid to the Palestinian people.
Not surprisingly, the announcement was also heavily criticised by Palestinian Authority. Within hours of Germany announcing its intention to intervene in the proceedings before the ICJ, the Ministry of Foreign Affairs and Expatriates of the State of Palestine issued a statement in response to Germany’s announcement regarding the genocide case at the ICJ, accusing Germany of shielding Israel from accountability and thereby exacerbating the misery of the Palestinian people and perpetuating the crime. The statement read as follows:
To debate the genocide case brought before the ICJ is one thing. But to insist after the murder of 22,000 innocent civilians including over 12,000 children that such massive crimes are ‘self-defense’ can only be construed as an attempt to acquit the perpetrator and entrench impunity.
We are deeply dismayed by the position of the German government regarding the case brought by South Africa before the ICJ, as expressed in a statement issued today by the government’s spokesperson.
This position reminds us of a similar past approach to cases relating to Palestine brought before international courts, such as Germany’s position regarding the ICJ’s advisory opinion on Israel’s separation wall in 2004, or its position regarding the ICC’s jurisdiction over the State of Palestine in 2021. In both cases, the German position proved to be wrong given the final determinations of the said judicial bodies.
Germany’s position regarding the current case also contradicts its stated commitment in support of cases relating to genocide brought before the ICJ, including a position as recent as November 2023.
It is equally surprising that in justifying this untenable position, the statement cites the commitment to ‘never again’. One would assume that a commitment to ‘never again’ would prompt heightened sensitivity toward human rights violations and decisive action against massive crimes. Germany’s position regarding the current case is self-contradictory.
An earlier version of the statement confused the ICC with the ICJ. Perhaps this conflation reflected more than a spelling error. Rather, it revealed an unyielding German readiness to shield Israel from any form of international accountability, irrespective of the court, the substance of the case, or the scope of the misery it inflicts. It is deeply regrettable. We urge the German government to reconsider.
The Palestinian position was reiterated the next day by the Deputy Permanent Observer of the State of Palestine to the United Nations in New York who wrote on the platform X:
When we joined the ICC [International Criminal Court], Germany intervened against the Court declaring it had jurisdiction to investigate crimes committed in the Palestinian territory.
When the General Assembly adopted a resolution requesting an advisory opinion on denial by Israel of the right to self-determination of the Palestinian people, occupation and annexation and discrimination, Germany voted against the resolution.
When South Africa brought forward a case against Israel for genocide before the ICJ, Germany declared it will intervene against South Africa.
Shielding Israel and fostering its impunity is not compatible with a claim of being a defender let alone champion of international law.
Treating Israeli governments as being above the law has encouraged them to act as outlaws!
Several States expressed support for either South Africa’s or Israel’s position and were in the process of consulting and coordinating a legal response. On 4 January 2024, the Jordanian Foreign Minister indicated that Arab and Islamic countries were preparing to intervene, stating:
There are 43 Arab and Islamic countries that are members of the 1948 Convention on the Prevention and Punishment of Genocide, and one of the decisions of the joint Arab-Islamic summit [of 11 November 2023] was to assign the general secretariats of the Arab League and the OIC to prepare legal files, and we are now working on formulating a joint effort to follow up.
On 7 January 2024, the Jordanian Foreign Minister indicated that Jordan would present a legal pleading to the ICJ but did not yet make a formal announcement of intervention. Germany was thus the first country to make public statement announcing that it would intervene in the case.
Under Article 63 of the ICJ Statute and Rule 82 of the Rules of Court, Germany had every right to intervene in the case, as South Africa had every right to bring the case against Israel. Although one may question whether South Africa would have brought its case under Article IX of the Genocide Convention if the ICJ had had jurisdiction for crimes allegedly committed in Gaza other than genocide such as war crimes or crimes against humanity.
Rushing to make a public announcement of intervention only two hours after the close of the oral hearings on provisional measures, and before the ICJ could examine, let alone find that, prima facie, it had jurisdiction to deal with the case, was politically motivated. It seems as if the Federal Government, by hook or by crook, wanted to show its support for Israel.
In the two other recent cases under the Genocide Convention – Ukraine v. Russian Federation and The Gambia v. Myanmar – Germany had acted more prudently.
In the case of Ukraine v. Russian Federation, Germany first declared that it considered ‘a possible intervention in these proceedings’ on 20 May 2022; that was eighty-three days after the institution of proceedings by Ukraine and sixty-five days after the Court had issued the first Order in the case finding that it had prima facie jurisdiction and indicating provisional measures. When it announced its intention to intervene Germany did so in a joint statement together with forty other States and the European Union. The Federal Foreign Office emphasised that in that case Germany intervened ‘only after the pleadings had been made and the first orders of the Court had been issued.’
In the case of The Gambia v. Myanmar, Germany announced its intention to intervene in the proceedings on 25 August 2022 – the fifth anniversary of the attacks against Rohingya communities in Myanmar. The announcement came three years into the proceedings and after two decisions by the ICJ on provisional measures and preliminary objections. When Germany finally intervened in the case on 15 November 2023, it did so jointly with five other States. Against this background the rushed and unilateral action on 12 January 2024 seems ill advised. Announcing the intention to intervene before the Court could even rule on the question of jurisdiction seems disrespectful towards the ICJ and may ultimately undermine the credibility and strength of Germany’s intervention.
Irrespective of the timing of the announcement, Germany set itself a formidable task with this intervention. The Federal Government made it clear that it would argue that there was no intent on the part of Israel to destroy, in whole or in part, a national, ethnical, racial or religious group as such. This may prove an uphill struggle in light of Germany’s observations in its intervention in the case of The Gambia v. Myanmar.
Between October 2016 and August 2018, an estimated 25,000 people had been killed and over 700,000 had fled over the border to Bangladesh as a result of so-called ‘clearance operations’ by Myanmar’s military in Rakhine state. On 11 November 2019, The Gambia instituted proceedings against Myanmar in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), alleging that Myanmar had committed genocide against members of the Rohingya group on its territory.
Germany’s intervention in that case (and that of the other five European States) was, at least in part, politically motivated. After thirty-two Western States had intervened in 2022 in support of Ukraine in the case of Ukraine v. Russian Federation, the joint intervention by six Western States in November 2023 was to demonstrate to non-Euorpen States, especially those in the global south, that Germany and other Western States were not focusing solely on violations of international law of direct interests to them but were also standing up to human rights violations elsewhere. Announcing Germany’s intervention in The Gambia v. Myanmar, a Federal Foreign Office Spokesperson declared:
We ask others to condemn Russia’s war of aggression as a breach of international law and to protect the international legal order. And now we support The Gambia in order to enforce international law and to strengthen it in the fight against human rights violations. Therefore, Germany will intervene in the proceedings before the International Court of Justice.
Aligning themselves with The Gambia, however, meant that the intervening States had to put forward a more expansive interpretation of genocidal intent than previously adopted by the ICJ, in order to bring the atrocities allegedly committed against the Rohingya in Myanmar’s Rakhine state within the ambit of the Genocide Convention.
In its previous case law concerning the Genocide Convention, the ICJ had stressed that ‘in order to infer the existence of dolus specialis from a pattern of conduct, it is necessary and sufficient that this is the only inference that could reasonably be drawn from the acts in question.’ Germany intimated that that this restrictive standard of ‘the only inference that could reasonably be drawn’ set the bar unduly high. It therefore argued that:
[I]t is crucial for the Court to adopt a balanced approach that recognizes the special gravity of the crime of genocide, without rendering the threshold for inferring genocidal intent so difficult to meet so as to make findings of genocide near-impossible.
It argued that the ‘only reasonable inference’ test applied only between alternative explanations that had been found to be reasonably supported by the evidence, and only with respect to drawing an inference of specific intent from a ‘pattern’ of conduct. It was not to apply when examining the scope and severity of a perpetrator’s conduct to evidence specific intent.
Furthermore, Germany suggested that the Court ‘must assess the evidence available to it comprehensively and holistically’; that is, it must assess ‘whether all of the evidence, taken together, demonstrated a genocidal mental state’, rather than whether individual acts or statements were reflective of a genocidal intent.
Beyond these general considerations, Germany stated that ‘the large-scale killing of group members is the most obvious and immediate manifestation of an intention to destroy a group in whole or in part.’ In this connection, it suggested that the question of scale as a basis on which to infer intent did not relate solely to killings and that ‘the victimized population should be taken to include all victims targeted by the various underlying acts of genocide and not be limited to those victims who were killed.’
Germany also argued that the targeting of children played an important role in determining specific intent. It stated that ‘evidence of harm to children may contribute to an inference that the perpetrators intended to destroy a substantial part of the protected group’, and that evidence that children have been targeted on a significant scale ‘would be likely to preclude a defense that members of a protected group were targeted solely for certain other reasons’.
Last but not least, Germany submitted that ‘a violent military operation triggering the forced displacement of members of a targeted group may similarly contribute to evidence of a specific intent to destroy the protected group, regardless of whether the acts triggering the forced displacement fall within one of the five categories of underlying acts of genocide.’
With regard to the procedural question of proving genocidal intent, Germany argued that reports generated by the United Nations had ‘a particular probative value in establishing the elements required to demonstrate the existence of genocide.’ Such reports were particularly credible because they emanated from disinterested witnesses.
When Germany finally files its declaration of intervention in South Africa v. Israel, it will have to explain how these arguments apply, or why they do not apply to Israel’s military operation in Gaza in light of the large number of Palestinian children killed, the large-scale destruction of homes and infrastructure, the humanitarian catastrophe with some twenty-five per cent of households in Gaza facing extreme hunger, and the forced displacement of some 1.9 million people – 85 per cent of the population of Gaza.
Germany will also have to explain why reports generated by UN bodies such as UNICEF’s finding that ‘Gaza has become a graveyard for thousands of children’ are not to be given particular evidentiary value in the construction of the Genocide Convention in this case.
When finally making its formal submissions in the case of South Africa v. Israel, Germany may revert to a more restrictive interpretation of genocidal intent, or it may try to distinguish the situation in Gaza from that in Rakhine on the facts. Both options are fraught with difficulties.
Reverting to a more restrictive interpretation of genocidal intent, or supporting the Court’s ‘only reasonable inference’ test would contradict Germany’s submissions in The Gambia v. Myanmar. Such contradictory submissions would not carry much weight with the ICJ. Should the Court adopt Germany’s expansive interpretation and render its judgment in the case of The Gambia v. Myanmar before deciding the case of South Africa v. Israel, Germany would be precluded from submitting any contradictory interpretation, as the interpretation given by the Court in the judgment in The Gambia v. Myanmar will be binding upon Germany. In any case, once the Cout has settled on the construction of a provision of the Genocide Convention, any intervention to submit an alternative construction will in practice be moot.
The option to distinguish the situation of Israel from that of Myanmar on the facts is not open to Germany. The Federal Government was thus mistaken when it stated that ‘[w]e stand with Israel as a third party in these proceedings and … [will] defend it.’ Interventions under Article 63 of the ICJ Statute are strictly limited to observations on the construction of particular treaty provisions in question in a case. The intervening State is not entitled to address or to refer to the merits of the case; that is, it is not permitted to address matters such as the existence of a dispute between the parties, the evidence, the facts or the application of the treaty in the specific case. Germany thus will not be permitted, for example, to submit that Israel did not have genocidal intent or that certain statements by Israeli officials were not indicative of genocidal intent. All Germany can address is how the Court may, in general, establish genocidal intent or how particular provisions of the Genocide Convention are to be construed.
Irrespective of whether Germany will succeed in its legal endeavour to support Israel in this case, the political fallout from and the political cost of this intervention are already immense. Many States, especially in the global south, will see the German intervention as yet another example of double standards in international law.
Category: International Court of Justice
DOI: 10.17176/20240116-004344-0
