Nicaragua’s case against Germany for complicity in Israel’s genocide in Gaza
An interview with Dr. Carlos Argüello by Don Debar
Don Debar began the interview asking Dr. Argüello to explain the case Nicaragua has brought against Germany in the International Court of Justice.
Nicaragua’s case against Germany for complicity in Israel’s genocide in Gaza
An interview with Dr. Carlos Argüello by Don Debar
Don Debar began the interview asking Dr. Argüello to explain the case Nicaragua has brought against Germany in the International Court of Justice.
Dr. Carlos Argüello: Thank you for your question. The case was brought against Germany for its assistance in abetting what is happening in Palestine, what Israel is doing in Palestine. As everybody knows there is a case already against Israel brought by South Africa for the crimes directly committed by Israel. The crimes claimed by South Africa are only based on the Genocide Convention because that is the only basis of jurisdiction against Israel because Israel doesn't recognize the jurisdiction of any other Convention. So the only crime they can be accused of is the crime of genocide.
Faced with that situation and to speak let's say at a personal level, for me it was qjuite impressive that the case was brought by South Africa and in the first days of January this year of course the first country to react was Germany and say that they were going to intervene in the case in favor of Israel. And then you had interviews with law professors with very important people and the impression was “Well you know, genocide is very difficult to prove”. So the impression on the public listening to all that was that there was doubt whether Israel was doing something wrong,
But there is no doubt, absolutely no doubt. Israel is committing all the crimes in international humanitarian law. The only reason is that a country can go against Israel solely on the basis of the Genocide Convention. So at the hearing in which Nicaragua wanted to assist as much as possible for the Palestinian People and we have experience in the court. We are not discovering the International Court of Justice. We had a case against the United States 40 years ago which included changing the history of the Court itself. The Court has changed, it has become used by many countries after the Nicaragua case.
We have had more cases than practically most countries in the world except perhaps for the United States. We have had 15 cases in my time in the Court. About as much as France and the UK and a little bit less than the United States. So it's not that we are discovering the Court and doing something special. We know the Court. It's one of the things we know about, our litigation in the Court. It's one of the things with which we could help the Palestinian People. So where could our help reside?
According to the Conventions, including the Genocide Convention but also in international humanitarian law, the Convention of Geneva of 1949 and its Protocols and all customary international law relating to the peremptory norms, those legal norms that cannot be avoided or contradicted, going against all principles of humanity like slavery, like apartheid, like genocide. All those are precisely norms of peremptory international law and we have absolutely open jurisdiction, total jurisdiction against several countries that accept the jurisdiction of the Court on all bases.
One of them is Germany. Obviously, the principal supplier and abettor of what is happening with Israel is the United States. But we don't have any jurisdiction against the United States to bring it to the Court. The United States was very careful because the United States was one of the last to become a party to the Genocide Convention. The Genocide Convention is from 1948. The United States became a party in 1988, forty years later and with a lot of reservations that make it impossible to bring it to the Court or to do anything.
So it's not possible or feasible to bring the United States to the Court so the next possibility was the second principal supplier of weapons to Israel which is Germany. And why did we go against Germany? Because all these conventions have the obligation of prevention. The Genocide Convention for example says that all countries have the obligation to prevent and punish genocide. If you have the obligation to prevent that doesn't mean that a genocide has already been completed or that a court of justice has to say that a genocide has already been done, no you have an obligation to prevent it. And on what does that obligation arise?
The only logical way is that it arises when you are aware of what is happening. And Germany yes, we told in the Court very clearly in our application, Germany has been aware of this from the first few days when this started. The Secretary General of the United Nations said on the 9th of October, the President of the Red Cross, all the authorities, we presented a document of hundreds, thousands of people who have been saying this, authorities, that genocide, international humanitarian law is being violated. And Germany had the obligation to stop selling weapons and stop abetting Israel.
So that is why we are claiming against Germany. Not because Germany is directly killing people or massacring people in Palestine, but because they are supplying the tanks and the airplanes that they are preparing for the ones doing the killing. So that is the background to the case we have in the Court. And if you allow me a few seconds more, one minute. The importance of this case, unfortunately it's difficult to even say, I can't even find the words to say it appropriately because there's nothing that goes beyond the horror that's happening there...
But the importance of this case also goes beyond the present circumstances. It is that there's an obligation, an international obligation, the international community has the obligation to help prevent these horrors that are happening in Palestine now, that have happened in the past, in the recent past in other areas of the world and things are not done. Countries have an obligation to do something and that's why this case is very important not only because of the immediate effect we hope it will have, because if the Court accepts Nicaragua's request and orders Germany to stop aiding and abetting Israel then this will be a message to the international community, a very clear message.
And hopefully the result will be something like what happened in South Africa when finally the world was convinced that the only way to finish with the apartheid regime and the horrors of what was happening in South Africa was to stop aiding and abetting the white apartheid regime there and that simply fell down. So our hope also is that if countries stop aiding and abetting Israel the same thing will happen and a solution will finally come to that very sad part of the world. That let's say is a summary of our position.
Don Debar: On Monday when you made your presentation and when your team made their presentation, you had anticipated two defenses that Germany would raise the following day. I guess maybe they suggested those in other pleadings or somewhere else in the record. One, was that there was no genocide and two, if there was they were not aware of it. I think those were the two. Yesterday they presented their defense. Could you give us your take on what you heard yesterday?
Dr. Carlos Argüello: Well I think most of the thrust of the presentation yesterday by Germany was first to say that they were helping the Palestinian people that they had not stopped helping the Palestinian people, although they could not deny that they had stopped the aid to UNRWA, the refugee organization of the United Nations. They stopped that help for operations in Gaza which is precisely where the famine is going to happen.
They can start giving money all around the world but that doesn't change the situation that they stopped funding for Gaza. But they went around explaining largely all the funds they are giving all over and all their preoccupation, how they are dropping aid by air to poor Gazans which frankly it's cynical to be saying yes we are dropping food by air but we are selling guns... I mean, it's incredible. And then they were trying to minimize the amount of weapons that they are selling to Israel. Let me make a point on that.
I mentioned in my speech on Monday, the day before yesterday, just as an example, because we mentioned other examples that in November of last year, two months, November 2023 I think last year, two months after everything began, there was a great ceremony in Berlin because Israel had sold US$3.6bn in weapons to Germany, not Germany to Israel, Israel to Germany. And they were celebrating that. So when we are talking about the amount of weapons being interchanged there, well they went around and increased by five million or ten million or whatever...
I mean, if you are talking about a country like Israel which is among the top 10% of the most powerful countries in the world and probably by size is the most powerful country in the world, the military expenses that I pointed out is I think US$16bn a year which is higher than its neighbors, Egypt which has a population 20 times bigger and a territory 50 times larger has less of a budget. Iran with a population more than ten times as large and the military budget of Iran is lower.
So when we are talking about Israel and we are talking about Germany as the second supplier of weapons we're not talking about a few million dollars, because obviously that's irrelevant, But if you're talking about a poor country like Nicaragua a couple of million dollars would be a great advantage to the army or the defenses of Nicaragua. But in Israel, that is irrelevant. You're talking about a great deal of money and we also emphasize that it's also a big business in Germany. It's not only a great preoccupation for supposedly the Jewish people.
And I mentioned that I specified distinctly that they should make a very clear distinction if they feel, as they constantly emphasize, that they feel empathy because of what happened in Germany during the Nazi period, to help the Jewish people. As I told them, the Jewish people are not Israel. Israel is a State that does not represent the Jewish sentiments. If you want to help the Jewish people, do it some other way.
But anyway, they emphasized the help they were giving, minimizing the amount of military expense and then on the legal point, they made, well, what was an obvious argument which is that they can't be... or that no decision can be made on the question of crimes being committed because Israel is not a party to the case and that they can't be convicted, let's say, for helping, while nobody has yet convicted Israel officially that a crime has been committed.
It is a legal point but it is not the first time that it has come up. We are not questioning that Germany directly is committing the crime, but they are responsible, they have a responsibility independent of that just as soon as they have knowledge that a genocide might be in course, not even having been terminated or committed completely, they have the obligation to prevent it from happening. So that's where we are...anyway those are more or less the arguments with the way the Court is handling the situation...
I mean our situation was that we presented our application which is our explanation of our original 60 page document. Germany had a copy for over a month of that. Then we went first the day before yesterday and presented our case and up to that moment when we spoke we had not heard a single word on the legal issues from Germany who presented yesterday. So in fact, it leaves us in a difficult situation because we didn't have the opportunity to respond directly to them, although we could anticipate some of the arguments, obviously we did. But we had no opportunity to respond directly. So your opportunity now is an opportunity to respond outside the court, what we should have been able to do, very happily, the day after.
Don Debar: Yes it's a tactic in litigation that some people refer to as sandbagging, when you hold back your papers to the last moment so as to try and minimize the time the other side has to consider and respond... could I ask just one last point, you've had the opportunity to see how the Court operates for a very long time. Back in January when they issued their opinion regarding the case brought by South Africa, one of the pieces of relief that South Africa sought was to have Israel stop interfering with the delivery of aid and in fact the Court, after finding, by the way, that there was a probability that genocide had occurred, directed Israel to not interfere and to affirmatively enable the delivery of aid and that was one day before Germany and the United States cut off funding to the principal agent of aid, UNRWA. How do you think the Court is going to treat what looks like an insult basically to its order?
Dr. Carlos Argüello: Well, hopefully they will act upon it and frankly this gives them the opportunity of doing so with the case of Germany, because before Germany came before the Court it was only South Africa against Israel. But the point you are mentioning frankly was something that was very shocking and I emphasized it in my presentation on the day we spoke and I made a comparison which is obvious when you think about it.
You have, apart from the cynicism of making this accusation one day after the Court gave the order which of course as you pointed out is absolutely incredible. I mean it's just a move making fun of the Court but from the point of view of the other countries, Germany, the United States, all the other countries they acted on the sole statement of Israel, saying that certain six or a dozen persons supposedly had participated in the events of 7th of October that began the attacks now going on.
Now, this to this day has not been proven, apart from the fact even 12 individuals out of 12,000 or 15,000, I don't know how many, but it's more than 12,000 workers and staff people in UNRWA, working in that area, we're talking about a ridiculous amount. We're not going to end up... even if it was entirely true, it wasn't proved, it was just the word of Israel. And at that moment as you mentioned, immediately they suspended the aid.
So one of the questions I asked them in the Court is, on the sole say so of Israel you suspended the aid. But you have been listening from the Secretary General of the United Nations to everybody, everybody, that a genocide is going on and you haven't stopped the aid to Israel. How cynical can you get? What are you talking about? You are imposing sanctions and who are you, imposing sanctions, and that is the problem with the sanctions also. The sanctions are simply a political decision. They try to say they are based on international law, we are defending international law... No. They are political decisions. Like this... it is so evident... it's incredible.
Don Debar: Thank you very much Ambassador, I appreciate your time.
Dr. Carlos Argüello: Thank you very much for your time.