Germany’s Gaza Liability Test Cannot Die on Procedure -By Fransiscus Nanga Roka

On the morning of September 7, Germany walked into the Peace Palace to ask judges to terminate Nicaragua v. Germany before being forced to confront the moral gut: can a state allow an ally to use its weapons if those weapons could enable genocide or crimes against humanity?

Germany’s preliminary objections are being heard at the International Court of Justice from now until September 10. Berlin contends that (i) the Court lacks jurisdiction, (ii) Nicaragua did not demonstrate it was an existing bilateral dispute existed at the time the case was filed, and (iii) because Israel is absent from these proceedings a ruling cannot be rendered as to Israel’s conduct.

That’s a serious interstate layer of what amounts to procedural defense. But procedure must not devolve into diplomatic body armor.

The case was brought by Nicaragua in March 2024 against Germany, Israel’s second-largest arms supplier at the outbreak of hostilities for breaching the Genocide Convention, Geneva Conventions and customary international law through the provision of military materials to Israel, political support for Israel and withholding financial assistance to UNRWA. Germany denies the allegations, insisting that its export controls are beyond international standards.

Even though Nicaragua has not been injured on the battlefield, it relies on the duties owed to all parties to the Genocide Convention. This is Germany’s own claimed failure not to prevent genocide and/or crimes against humanity, but not Germany’s criminal guilt; and not merely about Israel’s conduct. The origins of the dispute date back to 2024 and it returned to The Hague in September 2026. Because arms-exporting states cannot uphold the imperatives of military action when they treat weapons licences as neutral legal documents. By persisting in providing assistance despite being aware of credible intelligence indicating that supplied matériel might facilitate prohibited acts.

Provisional measures were not ordered by the Court, however: 19 April 2024 It didn’t acquit Germany nor dismiss Nicaragua’s case. The Court rather highlighted that states providing arms must refrain from transfers which can be used in violation of international law.

The “something” problem in Germany’s case, the claim to be the “indispensable third party” threatens to carve out a deadly exclusionary zone: when the original alleged perpetrator is outside of the Court’s reach, every facilitating state could become as unreachable. All international responsibility would then be folded into a jurisdictional triangle.

We are all well aware of Nicaragua’s own authoritarian track record, but it does not negate the question of law. The very existence of erga omnes partes obligations is exactly because prevention cannot rely on the geopolitical qualification of the applicant. But Nicaragua still has to demonstrate jurisdiction, a prior dispute and a breach with some seizable legal basis; outrage doesn’t substitute for evidence.

The ICJ should retain claims that are justiciable by analyzing Germany’s actions, and only dismiss isclaims requiring deciding on Israel’s legal culpability in its absence. It should define the knowledge, foreseeability and due-diligence standards for arms transfers under the duty to prevent genocide and Common Article 1 of the Geneva Conventions.

Germany, in the meantime, should immediately suspend licenses that there are serious humanitarian risks involved with and produce assessments on a weapon-by-weapon basis. Other exporting states must implement similar safeguards to those in the new law and permit opacity regarding licensing decisions to judicial review.

Buried behind procedural technicalities, this will be a ruthless message: international law binds the hand triggering the gun but not the hefty hand supplying it.

Fransiscus Nanga Roka

Faculty of Law University 17 August 1945 Surabaya and Managing Partner Law Firm Victorious Indonesia