THE HAGUE – The International Court of Justice (ICJ) holds public hearings in the case Nicaragua v. Germany
International Court of Justice
Date: 10 September 2026
Language: English
Transcript: https://transcripts.un.org/en/asset/k1w/k1wtlavz1k
Transcripts available through this tool are created by using automatic speech recognition and are not official records nor official documents of the United Nations. Official records and official documents are available on the Official Document System of the United Nations.

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ICJ · President [23:11]:

Please be seated. The sitting is open. The Court meets today to hear the second round of oral arguments of Nicaragua on the preliminary objections raised by Germany in the case concerning alleged breaches of certain international obligations in respect of the Occupied Palestinian Territory, Nicaragua v. Germany. I shall now give the floor to Dr. Alfredo Cruzatto. You have the floor, sir.


Nicaragua · Alfredo Cruzatto [24:21]:

Good afternoon, Mr. President, Members of the Court. I shall begin Nicaragua's second round presentation by addressing Germany's first preliminary objection. As recalled by the President on Tuesday, I shall keep my presentation as succinct as possible. limiting myself to responding to what Germany had to say yesterday. Let me start with a few brief general remarks. First, Germany put some emphasis yesterday on the importance of the existence of a dispute as a jurisdictional requirement. Nicaragua, a state with ample experience in this Court, does not contest such importance and certainly does not regard the relevant criteria as a mere formality that can be overlooked. The parties are in principle in agreement on the test to be applied. The question before you is how to apply that test to the facts of the present case. Second, and relatedly, Germany appears to have walked back its call for the Court to apply that test in a strict or stringent manner. Our colleagues opposite did not insist on this further. The nature of a dispute and the type of legal claims advanced by a party have indeed nothing to do with the criteria to determine the existence of the dispute. Those criteria ought to be uniformly applied in all cases. Germany did reiterate that it had no particular reason to anticipate a claim from Nicaragua, and that it was not a party to the conflict at the heart of this case. But this argument is disingenuous. Germany was well aware of the dire situation in the occupied Palestinian territory, not least after the events of 7 October 2023, and considering Germany's uniquely close relationship with Israel. As we explained on Tuesday, Nicaragua's claims were not made in a vacuum. It is therefore somewhat surprising to hear Germany suggest that its conduct, providing significant assistance to Israel, including military assistance, would not be subject to any sort of scrutiny. In fact, as recalled in the written statement, Germany had been urged by various other actors to cease such support for Israel in this context, long before Nicaragua did. Third, in advancing this preliminary objection, Germany adopts a far too formalistic approach. It seeks to deny the existence of a dispute by relying on a few selected past cases and drawing comparisons between the type of exchanges that took place in those cases and in this case. But that is not the way in which the existence of a dispute is to be determined. There is no specific formula for the type of exchanges through which two parties may express opposing views, or for the length of those exchanges. What matters, as Germany acknowledges, is substance, not form. Each case must be analyzed on its own merits and in its context. With these two, Germany ultimately agreed yesterday. Fourth, Germany presented you with a timeline that was not entirely accurate. One should add to that timeline the fact that on 2 February 2024, Germany began to consider Nicaragua's claims as set out in the press release and to coordinate on this issue with Canada, the Netherlands, and the UK. one must also include Germany's conduct after the filing of the application on 1 March 2024, which is of relevance in this case. With these general remarks in mind, I now turn to Germany's main arguments. It is by now clear that Germany's position rests essentially on two facts, or rather, on an attempt to have the Court ignore or look away from two facts. the official statements of the German Foreign Ministry on 7 February 2024, and Germany's conduct after the present proceedings were instituted. First, Germany argues, to no avail, that it could have never positively opposed Nicaragua's claims and that no dispute exists between the parties. I shall not return to questions of when a certain e-mail was sent, found, replied to, or ignored, we have made clear our position on how the exchanges between the parties took place. The case before you is a serious one. Germany's apparent attempt to reduce it to a story of lost e-mail messages is vain and hardly merits a response at this stage. Mr. President, Let me now address the public official statements of the German Foreign Ministry on 7 February 2024. Both statements are for convenience once more on your screens. We have seen a significant change in Germany's position on this matter. On Monday, the Council for Germany argued that what the Foreign Ministry intended to do was to reserve Germany's position. or that the Foreign Minister was merely rejecting the receipt of the non-verbal. These official statements say no such thing. The interpretation suggested by Germany is contradicted by the plain text of the statements. And so yesterday, we heard a quite different explanation. Council for Germany spent some time trying to describe the context of the press conference where these official statements were made. He noted that in such conferences, the German government usually responds to questions that span every conceivable issue within the competence of the federal government, that these conferences take a long time, and that the answers provided by the foreign ministry in relation to Nicaragua's claims were brief. What was the point of this argument? Germany, in essence, now seems to be saying that official statements by its foreign ministry should not be taken seriously, that those statements were made in a rush amongst other statements concerning separate issues, and that therefore the rejection of the contents of the press release, including Nicaragua's claims, should not be understood as such. Nothing but empty words, so to speak. This, Mr. President, Members of the Court, is not a credible argument. As we noted on Tuesday, and Germany did not contest this yesterday, Germany had been considering Nicaragua's claims as soon as it became aware of the press release. And it began coordinating its response with the other states concerned on 2 February 2024. We may add, and I surmise our friends opposite would agree, that the German foreign service is among the most serious and professional that exists. The foreign ministry would not make a public official statement in an amateurish way, especially when it concerns matters of the utmost gravity, such as those raised by Nicaragua. Consideration must have been given to Nicaragua's claims in the circumstances. Counsel for Germany said that Germany needed some reasonable time to formulate and voice a response to Nicaragua. Yet we know that when South Africa's case against Israel was filed, Germany declared within a few days that it would intervene in the case to support Israel. Germany's mind was made-up rather swiftly. It did not need a long time to reflect on its position. We invite the Court to consider Germany's unqualified rejection of Nicaragua's position on 7 February in light of its conduct only weeks earlier in relation to the South Africa/Israel case. Yesterday, Germany once more stressed that the German Foreign Ministry was not addressing Nicaragua directly but rather responding to a journalist. This is of no relevance. The Foreign Ministry was making an official statement referring to claims advanced by Nicaragua and to action that Nicaragua intended to take before this Court if Germany did not change its conduct. The Foreign Ministry's message, the rejection of the contents of the press release, including Nicaragua's claims, was clear and public. It was addressed not to a single journalist in some obscure ad hoc fashion, but to anyone having an interest in the matter, which naturally included Nicaragua. Germany has never suggested, we should emphasize, that the statements of its foreign ministry do not represent the official position of Germany. Clearly, they do. Germany confirmed receipt of the not verbal a week after the official statements by its foreign ministry on 14 February. From that moment, all we have is Germany's silence. And this, notwithstanding the gravity of the matters raised by Nicaragua and about which Germany, again, had knowledge. There was not a single not verbal by Germany indicating that it was considering Nicaragua's claims or that it was reserving its position, as Germany now claims for purposes of these proceedings. Nor were there signs whatsoever that Germany viewed Nicaragua's claims in a positive way, that it agreed with Nicaragua's legal and factual position, or that it envisaged changing its conduct to meet Nicaragua's concerns. That is not, as counsel for Germany suggested yesterday, speculation. It is simply what the record shows. Germany has not been able to produce any evidence, any evidence, showing that, contrary to the 7 February official statements, it did not oppose Nicaragua's claims. What the facts prior to the filing of the application demonstrate, in brief, is expression by Germany of an opposing view, coupled by silence in circumstances that called for a serious response. Things being so, it was perfectly reasonable for Nicaragua to understand that a dispute had arisen between the parties and that it was possible for it to resort to the Court, including by requesting provisional measures in light of the urgency of the humanitarian catastrophe unfolding in the occupied Palestinian territory. Mr. President, I now turn to Germany's conduct after the filing of the application. We had hoped to hear something from Germany on this issue yesterday, but it appears that it remains adamant in its attempt to sweep it under the carpet entirely. Be that as it may, such conduct is certainly relevant and it cannot be ignored. Counsel for Germany showed you on the screen a passage of your judgment on preliminary objections in the Gambia v. Myanmar case. As I noted, the parties are in principle in agreement on these criteria. But Germany omitted mentioning an important and well-established element of those criteria. I quote, "Conduct of the parties subsequent to the application may be relevant for various purposes, in particular to confirm the existence of a dispute." In the Marshall Islands case, the Court further noted that conduct subsequent to the filing of an application is also relevant to clarify the subject matter of a dispute and to determine whether a dispute has ceased to exist. We understand that Germany's reluctance to give an account of its conduct after the filing of the application is connected to its assertion that no dispute existed on 1 March 2024. But such assertion, as we have shown, is untenable. The opposing views between the parties had already become apparent on 7 February. And even if there was some room to doubt that Germany had rejected Nicaragua's claims, and this is a big if, that would not be enough to set aside Germany's subsequent conduct as irrelevant. That conduct would allow precisely to confirm the existence of a dispute where any doubt may exist in that regard. I will not take you again through every statement by Germany rejecting all of Nicaragua's claims after the application was filed. You can now see some of them on your screens. All of them were made shortly after 1 March 2024, and Germany has not denied neither their existence nor their content. These, Mr. President, are not statements made by a State which was considering or reserving its position just weeks before. Germany would have you believe that before 1 March it had not opposed Nicaragua's claims in any way and that only very shortly thereafter it somehow decided that it did oppose those claims. This approach is artificial and makes no sense when one considers the full record of the exchanges between the parties in its proper context. Consistent with the Court's case law, conduct subsequent to the filing of an application not only confirms the existence of a dispute, it also serves the function of clarifying the subject matter of the dispute. As we noted on Tuesday, to the extent that any of Nicaragua's claims was not conveyed with sufficient clarity before 1 March 2024, this is solved by Germany's opposition to Nicaragua's claims as laid down in more detail in its application. Germany did not appear to take issue with this position yesterday. In conclusion, Mr. President, Germany's attempt to deny the existence of a dispute and to have the Court dismiss the entire case before it on this basis alone lacks merit. The factual record before you leaves no doubt that a dispute between the parties existed on 1 March 2024, when the application was filed, a dispute which has been confirmed and further crystallised by Germany's subsequent conduct. Germany's first preliminary objection must accordingly be rejected. Mr. President, Members of the Court, this is the end of my presentation. I thank you once more for your kind attention, and may I ask you, Mr. President, to now invite Dr. Daniel Mueller to the podium to continue Nicaragua's submissions.


ICJ · President [41:27]:

I thank Dr. Crosato for his statement. I now call Dr. Daniel Mueller to the podium. You have the floor, sir.


Nicaragua · Daniel Mueller [41:40]:

Mr. President, Members of the Court, I shall present Nicaragua's comments and responses to what Germany had to say. It was very little. about its second preliminary objection. I will comment on both limbs of that objection, and I start with the question of the temporal limitation. The first point I must raise this afternoon concerns Germany's repeated assertion that Nicaragua is presenting facts from well before the critical date to claim that Germany has breached its international obligations. I return to this issue only reluctantly because Nicaragua's written submissions the full text of the Memorial rather than carefully selected and truncated extracts of it, Nicaragua's submissions speak for themselves. Germany attempts to create a confusion between facts and situations that provide context or shed light on the present dispute and facts, particularly the conduct of Germany, on which Nicaragua relies to prove Germany's responsibility. I will only take two examples that were mentioned yesterday afternoon again. Council for Germany referred to Volkswagen's shareholding in MAN, shareholding which was acquired, according to Germany, in 2006. However, members of the Court, Nicaragua does not make any assertions and does not draw any conclusions from the fact that Volkswagen acquired shares in MAN, a German company, in 2006. Nor does it allege that MAN has delivered trucks and chassis to Israel since the 1960s, as Germany does, without offering any proof. The facts and the evidence that Nicaragua has submitted and relies upon in its memorial concern deliveries of vehicles or chassis by MAN to Israel, police forces, and the like. deliveries that occurred after the critical date. We have included the relevant references to the Memorial in the footnote. Germany simply adds facts that Nicaragua has not relied upon. The second example concerns the submarines. There are several problems with Germany's arguments in this respect. First of all, Nicaragua did not claim that Germany approved the sale to Israel of five Dolphin-class submarines from a German manufacturer. This is what Germany claims in its preliminary objections, in just one of the numerous truncated quotes from Nicaragua's memorial. In paragraph 142 of its memorial, to which Germany refers, Nicaragua simply stated that, and I quote, Israel also has a total of five dolphin class submarines from the same German manufacturer, Thyssenkrupp, end of quote. This is a simple factual statement that forms part of the section on German Israeli military cooperation. Moreover, the date of the contractual arrangement for these submarines is simply irrelevant, contrary to what was said on Monday. In April, 2024, Germany itself assured this Court that exporting a submarine necessitates two licences, one under the War Weapons Control Act and one under the Foreign Trade and Payments Act. According to Germany, it is at this moment that it assesses, it claims, whether a submarine can be exported or whether the export of such a weapon of war must be denied. As I also explained on Tuesday, German authorities authorized the export of one of these submarines in December 2023 and in the second quarter of 2026, despite having no information on whether these submarines were being used in the war in the Gaza Strip. Mr. President, my colleague and friend is certainly a better accordion player than I am. Because it is Germany that has stretched Nicaragua's written submissions to include allegations and facts that were never made. It is our position that Nicaragua's claims, and indeed the dispute submitted to the Court's scrutiny, concerns facts and situations that occurred after Germany's Optional Clause declaration. There's nothing to squeeze, nothing to stretch. Or through Nothing would prevent a party, or indeed the Court, from reducing the scope of a dispute, including at the preliminary objection stage, and directing the parties to confine their arguments to the reduced disputes when it comes to the merits phase of the proceedings. This brings me to my second point. Yesterday afternoon, Council for Germany suggested that Nicaragua, of course, must accept that its memorial explicitly accuses Germany of what Council referred to as past violations. And that, and I quote Germany's Council, "Nicaragua considers that these past violations then Nicaragua considers these past violations to be of the same character as alleged later breaches." End of quote. Well, members of the Court, that is plainly incorrect. It is entirely sufficient to recall that it was Germany, not Nicaragua, it was Germany that introduced this question of past violations in its preliminary objections, it, Germany. except argued that its more recent conduct, and I quote from the preliminary objections, "cannot be separated from conduct predating 13th of April 2008 and does not give rise to a new separate dispute. It is," and I'm still quoting from Germany's preliminary objections, "inextricably linked to prior conduct by which, if Nicaragua is to be believed, Germany violated its international obligations relating to self-determination, non-recognition and non-assistance, racial discrimination, segregation and apartheid, and international humanitarian law." Our response to this untenable position was and remains straightforward. As a matter of common sense, the mere existence of similar or comparable facts or, as counsel put it yesterday, of facts of the same nature occurring in the past, does not mean that the fait generateur of the dispute are those past facts or situations. On Tuesday, we took you to a particular telling example in the Court's own case law, the right of passage case. Let me explain the point again. If a state commits an act in the past that is not prohibited under international law at the time, and then commits the same act again after the critical date under its optional clause declaration, at the moment when it is bound by international obligations not to do so, would that prior act, a fact of the same nature, nevertheless be the fait generateur of the dispute brought by another state? Certainly not, Members of the Court. And is there any reason why the answer should be different if the act committed before the critical date would also have engaged the state's responsibility? There's none. It remains a similar or identical fact. And there's no basis for the proposition that in such circumstances, the dispute must necessarily concern the ILIA Act too, or that the ILIA Act must necessarily be the source or the real cause of the dispute. Otherwise, Mr. President, a state could insulate itself from proceedings concerning any post-critical date fact by having committed similar facts before the critical date. Simply because a dispute is based on facts of the same nature as previous facts does not mean that its real cause are those previous facts. Whether those facts could have engaged the state's responsibility on the same or similar basis and arguments is entirely irrelevant. Mr. President, Germany can neither hide behind its substantive financial support to the Palestinians, nor behind a robust regulatory framework that allegedly precludes violations of international law simply because it requires respect for international law. and certainly not behind assurances concerning the respect of international humanitarian law by Israel, assurances that in Germany's own appreciation were anything but sufficient. And Germany can certainly not escape the Court's jurisdiction by claiming that if Nicaragua were right, Germany would have engaged its responsibility also by facts of a similar or of the same nature that occurred before the critical date, irrespective of whether Nicaragua relies on or invokes those earlier facts to establish Germany's responsibility. Germany's optional clause declaration consents to the Court's jurisdiction in respect of all disputes arising with regard to situations or facts subsequent to 30th of April 2008. It does not limit the Court's jurisdiction to disputes arising with regard to situation or facts different from those that occurred prior to that date. Finally, Mr. President, counsel for Germany put yesterday a question to us on the basis of what he described a hypothetical certain property case. To recall this hypothetical case, You were asked to assume that Lichtenstein would have challenged German court decisions of the 1990s from after the critical date, pointing out also to earlier decisions rendered somewhere in the 1960s or 1970s before the critical date. These court decisions, so goes the hypothetical case, would have been portrayed by Lichtenstein as part of a long-term German jurisprudence. And Liechtenstein would have argued that decisions from before and after the critical date raised comparable or identical legal arguments. I hope I summarised this correctly and faithfully. Members of the Court, even if it might come as a disappointment, I will not provide an answer to the two questions specifically formulated by counsel for Germany yesterday. Not because I do not want to, but simply because this great hall of justice is not the right place to opine on whether it would have been plausible for hypothetical Liechtenstein to assert in these hypothetical circumstances that its dispute fell within the Court's temporal jurisdiction, or to speculate on the relevant basis for such a hypothetical argument to a hypothetical case. What I can say, however, is that I agree with counsel for Germany that the Court would have had little difficulty in finding that the hypothetical claim of hypothetical Liechtenstein fell outside the Court's temporal jurisdiction. The reason is not, however, the hypothetical edited decisions of German courts rendered before the critical date as part of a long-term jurisprudence. In this regard, members of the Court, the hypothetical case is not hypothetical at all. As the Court pointed out in its judgment in the Certain Property case, the real one, in 2005, and I quote from the Court, "German courts have consistently held that the Settlement Convention deprived them of jurisdiction to address the legality of any confiscation of property treated as German property by the confiscating state." However, the Court did not consider that any of these earlier decisions of German courts and tribunals was the fait generateur or the real cause of the dispute, as counsel for Germany seems to imply. The source of the dispute was in the opinion of your the Settlement Convention and the Banach degrees to which the post critical date decisions, as well as previous ones on the confiscation of German external assets, these are again the words of the court, was inextricably linked. And this would also be the case in the so-called hypothetical third and property case of Germany's counsel. However, members of the court, as I explained on Tuesday, There is no such thing as the settlement convention or the banish decrees in the present case. Germany does not rely upon or invoke any effect or situation prior to 13th of April 2008 upon which the entirety of its conduct depends. It relies upon and invokes nothing but similar previous conduct, and at the same time assures that each of its export licenses is based on a case-by-case analysis. This, Mr. President, distinguishes the present case from the certain property case, the real one, as well as the Council's hypothetical one, which adds nothing to the debate. Mr. President, I now turn to the issue of Nicaragua's claims concerning racial discrimination, racial segregation, and apartheid. I shall be brief. Not because this issue is not important. It is extremely important for Nicaragua and, of course, for the Palestinians, whose rights are severely impeded day by day. But I can be brief because Germany did not say much on this point either. Most notably, members of the court, counsel for Germany said nothing to rebut Nicaragua's position presented on Tuesday by Professor Imseis. concerning claims in respect of obligations of Germany relating to racial segregation and apartheid that are grounded in rules of international law outside of third. These claims fall not under third and its dispute resolution mechanism. They are covered by Germany's and Nicaragua's optional clause declarations, and this is uncontested. We also consider that claims that fall under CERD's substantive provisions are covered by Germany's optional clause declaration. They are not barred by what Council called yesterday the special agreement reservation. It was argued that there is no fear of an endless loop because Article 22 of CERD does not refer back to the optional clause declarations. In Germany's view, the terms unless the disputants agree to another mode of settlement, terms contained in Article 22, must necessarily refer to an ex post agreement, to one that can only be reached after the dispute has arisen, a special agreement or a compromis. But this is not what the terms of Article 22 say. The only question is whether the disputants, the parties to the dispute at hand, agree on a different mode of settlement. Germany and Nicaragua did exactly that in their optional clause declarations. Arguing otherwise is depriving Article 16 of CERD of any effet utile, because contrary to the terms of that article, the dispute settlement provisions of CERD would prevent the state parties from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them. It also remains Nicaragua's position that if Article 22 of CERN would be the only relevant jurisdictional basis for claims concerning the application or interpretation of the Convention, the Court has jurisdiction under that provision. As Dr. Power explained on Tuesday, The situation on the ground in the Gaza Strip was apocalyptic. The Third Committee had already issued two decisions under the early warning and urgent action mechanism. These circumstances must be taken into account when assessing the conditions of Article 22 in light of the object and purpose of the Convention as set out by this Court. Germany cannot blame Nicaragua now that it did not seek negotiations why Palestinian children, women and men lost their lives day after day, and why Germany did not even deem it necessary to respond to Nicaragua's claims, but discussed these claims with others. Of course, the Court was able to consider issues of urgency in April 2024. Indeed, it voiced its deep concern about the situation in the Gaza Strip, and the catastrophic living conditions of the Palestinians. But this is precisely because Nicaragua acted swiftly, in full accordance with its obligations under CERD. There would have been no possibility for urgent relief during negotiations. Mr. President, Members of the Court, I thank you for your kind attention, and, Mr. President, may I ask you to give the floor to Professor Pele.


ICJ · President [1:00:23]:

I thank Dr. Mueller for his statement. And I now invite Professor Pelet to take the floor.

You have the floor, sir.


Nicaragua · Professor · Pellet [1:00:35]:

Thank you very much, Mr. President.

Mr. President, gentlemen, ladies and gentlemen of the court, it is true that I'm rather a monetary gold skeptic in contrast to Mr. Wordsworth, who turns out to be a monetary gold fanatic, a passionate defender of the principle deduced by some legal scholars from the 1954 judgment. But it should also be noted that nowhere in the 1954 judgment does the court describe the reasoning it follows there as a principle. It does indeed use the word principle once, but only in relation to consent to jurisdiction. Yet what has been made the principle in the Monetary Gold case is merely a narrowly circumstantial exception that is limited to that indisputable principle, i.e. consent to jurisdiction. Moreover, two paragraphs further on, the Court sets out, without naming it, the principle according to which Albania's legal interests would not only be affected by a decision, but would form the very subject matter of that decision, prefacing the statement, which is barely a dictum, with the clarification "in the present case". That said, The differences in perspective between Mylne and Fred and myself do not, I believe, prevent us from agreeing on the substance and conditions of what is commonly referred to as the monetary gold principle. I shall not revisit in abstracto the conditions for applying that principle, and I shall follow the German counsel along the line he traced yesterday, demonstrating on the one hand that this principle, or more precisely, as I showed on Tuesday, that the exception to the principle of consent to the court's jurisdiction set out in the 1954 judgment does not apply in the present case. And on the other hand, that one of the reasons for its inapplicability lies in the fact that Israel's failure to comply with the rules and principles at issue is a given, a fait accompli, notwithstanding the objections raised by Mr. Wordsworth. On the first issue, Mr. Wordsworth raises three allegations. The first is that Nicaragua deliberately omitted to mention the East Timor case, which is purported to establish the monetary gold principle. It is true that I more generally preferred to rely on the 1954 judgment rather than on the 1995 one for two reasons. Firstly, I believe that the original is always best, and secondly, this would not have contributed anything to the reasoning. The circumstances of the East Timor case are no more amenable to comparison with those of our case than those in Monetary Gold. I note, moreover, that the wording of the principle is couched in exactly the same terms in both cases. The Court dismissed Portugal's claim in East Timor by quoting the Monetary Gold case word for word, Indonesia's rights and obligations with thus form the very subject matter of such a judgment made in the absence of that state's consent. Such a judgment would run directly counter to the well-established principle of international law embodied in the court statute, namely that the court can only exercise jurisdiction over a state with its consent." Thus, in terms of the understanding and wording of the principle, the East Timor case neither adds nor It neither adds to nor subtracts anything from the monetary gold principle. The facts in these two cases obviously differ from one another, but they also differ from those of our case. These differences preclude the 1954 and 1995 judgments from being regarded as precedents that could be relied upon in the present case, notwithstanding the absence of stare decisis in international law. This was the contention I offered two days ago with regard to the differences between our case and the Monetary Gold case, and I shall do so also briefly with regard to the East Timor case. One of the significant differences between East Timor and the instant case relates to one of the grounds on which the Court, based on which the Court declined to exercise its jurisdiction in its 1995 judgment. The Court held that in the circumstances of that case, the resolutions invoked by Portugal could not be regarded as givens which constitute a sufficient basis for determining the dispute between the parties. And in particular, because Portugal was attributing Yes, Portugal was attributing meanings to the resolutions that they did not actually convey. As I already pointed out on Tuesday, in the case under consideration, an impressive body of case law establishes the reality, diversity, and wide range of internationally wrongful acts attributable to Israel, and extensively so. so extensively, in fact, that it is absolutely unnecessary for this Court to establish this in its forthcoming judgment. I take as but one example the resolutions adopted by the Security Council, which explicitly and indisputably condemn Israel's violations of international humanitarian law. Unlike in the case of East Timor, these are quite clearly facts or givens that preclude from the outset the application of the monetary gold principle. I'll return to this in a moment. I also note that several judges in their separate opinions to the East Timor judgment, as well as a number of legal scholars, have emphasized that it was unclear whether the circumstances of that case met the requirements of the monetary gold principle as set out by the court some 40 years prior. However, there's no need to take a position on this matter. The significant differences between both of those cases and the one brought before you by Nicaragua preclude them from being regarded as usable precedents. Moreover, you firmly reiterated in your judgment on East Timor that the Court is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a state which is not a party to the case. The second criticism voiced by Germany's counsel concerns PowerPoint slide 1, which is in tab 10 of the judge's files submitted by Nicaragua. We are alleged to have deliberately misled the Court, a rather unpleasant accusation, by omitting the passages that Germany added in red. Oh, they're no longer in red. So I sought an explanation from my assistant, Issam Souali, whom I would like to thank, incidentally, for their invaluable help. And it is simple. The entire text simply did not fit on our slide. The full quotation, which is currently on screen, is indeed barely legible. Aware as we are that pursuant to the Statute, the official languages of the Court are French and English, we endeavoured to display quotations in both languages, nothing more. Perhaps we were wrong to do so. Germany's PowerPoint supports our position even further. It sets out these two claims in detail and confirms, as if that were necessary, that they were directed solely at Germany and in no way related to Israel. Mr. Wordsworth also complained that in our PowerPoint presentation comparing the two cases, we did not also display Nicaragua's third claim. The full comparison now appears on your screens, and I do believe it's more legible. Our comments remained unchanged. Whilst the applicant states in the monetary gold case requested the court to rule that Albania, the absent state, should hand over the gold to Italy, here again, Nicaragua's claim relates solely to Germany's own responsibility. as a complicit state, true, but as I shall show in a moment, that really changes nothing. Third criticism levelled at us by Germany's counsel, he again emphasized paragraph 431 of your 2007 judgment. I do not think it's necessary to dwell on this at great length. Nicaragua addressed it in its memorial, in its preliminary objections, and then through me on Tuesday morning. Mr. Wordsworth offers little by way of response, save for a somewhat convoluted argument distinguishing, I quote, "between, one, the substantive conditions for triggering the obligation to prevent genocide, and two, the substantive conditions required for a breach of the obligation," end of quote. Now, I am but a man of simple mind, Mr. President. What I gather from this, above all, is that the obligation not to commit genocide, which concerns Israel here, and the obligation to prevent it, which is incumbent upon Germany, are two distinct obligations. This was also the Court's position in the hostages case. But There is something even more interesting and important. My learned opponent then relied on paragraph 431 of the 2007 judgment on genocide, which was the same as that displayed last Monday, but highlighted differently. On Monday, what Germany's counsel emphasized were the two passages underlined in black. This was to develop the argument which we sufficiently refuted. Yesterday's slide, which you can see on your screens, also highlights in red, and now we do have the red, another passage that I also commented on on Tuesday. I must admit that this new underlining highlighting leaves me confused, as this passage contradicts or, at any rate, considerably qualifies what is stated at the beginning of paragraph 431. And what Mr. Wordsworth added seems to me to confirm exactly our overall interpretation of it. The two passages that are not underlined are of further interest because the Court was keen to emphasize that genocide and complicity in genocide are two different crimes, each of which is criminalized separately under the 1948 Convention. When Mr. Wordsworth referred to complicity yesterday, he reiterated that establishing the responsibility of a complicit state, I quote, "would require a determination of the conduct of an absent third state as a prerequisite to the court being able to make the declaration sought." This approach to complicity reflects his statement made on Monday regarding controversial draft Article 16 of the ILC Articles on State Responsibility. This provision, in the words of Special Rapporteur James Crawford, "had a difficult birth, and multiple iterations of the provision were presented to the ILC over its 25-year gestation." In reality, our opponents pay little heed to what article 16 actually says. They cling to one paragraph, not from the provision itself, but from its commentary, which, for your convenience, we've reproduced fully, and you'll find it under tab 14 of your files. Here again, as with the interpretation of the monetary gold principle, they overlook their main point, which is the text of article 16, to focus on the ancillary point, which is the commentary. I apologize. The text of the draft article is clear. A state which aids or assists another state in the commission of an internationally wrongful act by the latter is internationally responsible for doing so. And this is the case based on subject to two conditions that, A, the state does so with knowledge of the circumstances of the international wrongful act, and B, that the act would be internationally wrong if committed by that state. The commentary then clarifies the scope of these two conditions, and it states in particular that, with regard to Article 16, a distinction must be drawn between aid or assistance provided by a state and the responsibility of the acting state. It follows that, in the present case, Germany's responsibility for having contributed to Israel's internationally wrongful acts is distinct from Israel's own responsibility Furthermore, the Commission explains in paragraph 2 of the commentary that, no, it's not a quote, the Commission explains that while certain treaty or customary rules concern specific cases of derived responsibility, it would be wrong to infer from them the non-existence of any rule. The Commission also said The Commission also specifies what it means by emphasising that, in accordance with article 16, the assisting State is responsible for its own act, that is, in deliberately assisting another State to breach an international obligation by which they are both bound. It is not responsible as such for the act of the assisted State.

Je sais bien, M. le Président, que, négligeant tout cela, l'Allemagne se polarise exclusivement sur le dernier long paragraphe du commentaire, qui est lui aussi projeté à l'écran.


ICJ · President [1:17:32]:

Sorry to interrupt you.


Nicaragua · Professor · Pellet [1:17:33]:

Oh, sorry. My, my, yes. I do know, Mr. President. So, as I was saying, I know, Mr. President, that Germany overlooks all this and focuses exclusively on the final and lengthy paragraph of the commentary, which you will see up there on the screen, which also states that Article 16 does not address the question of admissibility of judicial proceedings. The commentary then moves on to referring to the monetary gold principle in a somewhat confused and definitely cautious way. And I will let you decide, Honourable Members of the Court. It states that That principle may well apply to cases under article 16, since it is of essence of the responsibility of the aiding or assisting state that the aided or assisted state itself committed an internationally wrongful act. Further on, the commentary also says: This may present practical difficulties in some cases, in establishing the responsibility of the aiding or assisting state, but it does not vitiate the purpose of article 16. Moreover, it states that that principle is not all embracing and the monetary goal principle may not be a barrier to judicial proceedings in every case. And also states that States are entitled to assert complicity in the wrongful conduct of another state, even though no international court may have jurisdiction to rule on the charge." So, the least that can be said is that it's sort of all over the place and somewhat arcane. And when you read the commentary, there's something else that is striking. Beyond a few very specific treaty provisions and a handful of diplomatic incidents, the commission does not refer to any authority from case law or doctrine to support its analysis. Conversely, it is fairly common for international jurisdictions to engage a state's responsibility for violation of human rights. notwithstanding the absence of a state with prime responsibility. Let me give you a handful of examples. Maybe the European Court of Human Rights and the Inter-American Court of Human Rights have looked at complicit states without having to rule on the responsibility of states not party to the case. My learned colleague also somewhat belabours a point relating to what Nicaragua mentions. And to quote the relevant part of the Larsen v Hawaiian Kingdom award, which he rails against, and I quote.

It, "The legal finding against an absent sovereign state could be taken as given, for example, by reason of an authoritative decision of the Security Council on the point, the principle may well not apply.

According to Mr. Wordsworth, this precedent, as understood in civil law, is not relevant insofar as it refers to an authoritative decision and only gives a Security Council decision as an example. And I think there may be some misunderstanding here. When we speak of givens or of fait acquis, We are not necessarily referring to a specific legally binding decision, but rather a set of findings, some of which may be binding, such as, for instance, the Security Council resolution, including the one mentioned at footnote 324 of my presentation on Tuesday. Or, for instance, your findings on the plausibility of risk of genocide in the provisional measures orders in South Africa v. Israel, which Mr. Wordsworth considered has deprived Israel of a fair hearing in, which does not do justice to proceedings before your court. Other findings may not be decisions as such, while coming from perfectly respectable bodies such as the Human Rights Council or even the General Assembly. But the surfeit of findings, the way in which they match, the lack of any authorized challenge leaves no doubt. Admittedly, as the Court stated in its judgment of 2007, the Court must itself make its own determination of the facts that are relevant to the law that the applicant claims the respondent has breached. That precisely means that the court itself must see for itself whether the evidence submitted to it enables the court to determine the facts in the case and cannot rely on court rulings considered as res judicata for the parties to the case. In such cases, there is nothing left to appreciate. The example put forward by my learned colleague, also drawn from the judgment of 2007, is very telling. I will quote Mr. Wordsworth: "Also noted.

It had the assistance of judgements on criminality and relevant conduct from the ICTY, which were of highly persuasive value. Oui, justement.

Yes, exactly. As such, these judgements were not in law binding on the relations between parties before the court, yet the court considered that the content could be considered as a given. It exercised its power and obligation of appreciation. As for common article 1 of the Geneva Conventions, our learned colleagues remained oddly silent about the way it should be interpreted. Now, I shan't be repeating what we ourselves said about it on Tuesday. Let me add that, in addition to the commentary by the ICRC, there are other international instruments that can be used for the interpretation of the provision that enable us to say that a state's responsibility may be engaged if it exports arms to another state when a factual risk of them being used in breach of international humanitarian law exists. As concerns the decision of the IDLOS Special Chamber, I, of course, cannot criticise the distinguished commentator that Mr. Wordsworth mentions at footnote 69. That commentator has, with his usual brutal honesty, considered that the ruling of the Chamber was absurd, and it does indeed seem absurd to me, in that the Chamber, rather than exercising its power of appreciation in accordance with the wise practice and principles of the Court, and which I referred to a moment ago, the Chamber considered that your ruling on the Chagos was oven-ready and ready to use in a very different case. There again, my learned friend remained rather quiet about other decisions applying a similar principle and approach to the ITLOS, for instance, those of the Court of Justice of the European Union or the African Court of Human People's Rights. Similarly, we are not saying and claiming that your findings in the three Palestine opinions apply always and everywhere, despite their exceptional authority. But there are three of them, and they are part of an impressive set of consistent findings, all pointing in the same direction. By way of conclusion, Mr. President, can I once again state that we must have a cautious and balanced approach to the monetary gold principle, and we trust it will indeed be yours. Undoubtedly, had the Court ruled in 1954 in favour of Italy on the ownership of the gold taken in Rome, then Albania's rights and interests would have been irreversibly affected, notwithstanding Article 59 of the Statute. Albania would have had no way to get its gold back. But it is not the case here for Israel, which isn't barred and would not be barred from bringing a case against Nicaragua for what you might call slander. And I must say that I am authorized to say here today on behalf of Nicaragua that it would not raise any preliminary objections to such proceedings. Now, the interests of Israel may be affected by your decision, but it is not, would not be, the subject matter of your order or judgment. And Israel could argue against it. The possibility for abstent states to assert its right. once the judgment has been rendered, is clearly one of the criteria which must guide the court's use or non-use of the monetary gold principle or exceptions thereto. It can only serve as the final bulwark when article 59 cannot, could not be relied upon. And as the court stated in the military and paramilitary activities case, The circumstances of the Monetary Gold case probably represent the limit of the power of the Court to refuse to exercise its jurisdiction. What in the Monetary Gold case justified this refusal does not justify it in this case brought by Nicaragua. Were you to feel that it would be necessary to consider the legality of Israel's activities, You are not required to determine the responsibility of that state, and you cannot rule ultra petita. But it must be open for the court, and it is indeed its duty, to give the fullest decision it may in the circumstances of each case, unless, of course, as in the Monetary Gold removed from Rome in 1943, the legal interests of the third state would not only be affected by a decision, but would form the very subject matter of a decision. And that is not the case here. Moreover, and similarly, you must adjudicate on the disputes that are brought to you, and that is indeed the purpose of the court. And Indeed, the function that is assigned to it under Articles 36 and 38 of the Statute, and it is in fact the basic principle of the monetary gold case. The exception that it includes must be interpreted strictly, or it would in fact mean favouring the legal interests of an absent state that is avoiding its duty to settle its disputes peacefully. over the interests of two states that are party to the case and that are ready to see their acts subject to the review of the court. That also derives from the principle of consent to jurisdiction. We would require overwhelming reasons to reject the Nicaraguan claims and application. The principle of consent to jurisdiction cannot be in only one direction and a negative one. It cannot just mean that there is no jurisdiction without consent. It is a positive principle, and if both states have consented to the jurisdiction, the court must exercise it. And indeed, it has done so in a number of cases where the rights and obligations of abstent states was indeed irrelevant and the court did not find it was unable to adjudicate on the two states at play. Indeed, you find this in the original story of the monetary gold principle, indeed, the Corfu Channel case, where the court indeed ruled on the responsibility of Albania, while at the same time saying that Yugoslavia may have indeed laid the mines that the British ships sailed into. "Given the lack of Yugoslavia in the proceedings, the Court finds it unnecessary to express an opinion on the evidentiary value of the documents that may have confirmed or otherwise the responsibility of Yugoslavia." That did not prevent it from reaching a conclusion on the breach of Albania's obligations. It might, in fact, be more judicious to speak of a Corfu principle namely, that the court cannot hide behind the legal interests of one or more absent states to refuse to exercise its jurisdiction. The circumstances of the Monetary Gold case are the exception, and the court applies them strictly. Many other cases illustrate my point. Let me give one example among many. In the land, island and maritime frontier dispute opposing Salvador and Honduras, the Court said, and I quote, "Nicaragua had a legal interest which may be affected by the decision of the Chamber on the question." But it then also expressly considered that the Nicaraguan interest was not such as to prevent it from exercising its jurisdiction. Members of the Court, to paraphrase what you said in 1984 in another iconic case brought by Nicaragua, Israel in this case cannot be regarded as in the same position as Albania in the case of Monetary Golds, so as to be truly indispensable to the pursuance of the proceedings. As to whether Germany has indeed breached its obligation, as indeed Nicaragua is convinced it was, We should not mix up the stages. This is an issue of substance, even though our learned colleagues showed us on Monday and yesterday again that they seem to forget that the only question the Court must settle for now, a question raised by Germany itself, relates to the Court's jurisdiction and not to the responsibility that Germany constantly tries to avoid. Mr. President, members of the Court, thank you for your attention, and I will respectfully request you give the floor to the agent for Nkharadwe, Ambassador Carlos Arguello Gomez, for a few concluding words.


ICJ · President [1:35:08]:

I thank Professor Pelley for his presentation.

I invite the agent to take the floor. You have the floor, sir.


Nicaragua · Agent · Carlos Arguello Gomez [1:35:28]:

Mr. President, Members of the Court, good afternoon. Before proceeding to read the submissions of Nicaragua, I will make some short remarks in response to some of Germany's observations. First, Germany detailed some of the civic and humanitarian institutions it finances in the occupied Palestinian territory. Mr. President, This financial support is entirely neutralized by Germany's export of weaponry to Israel, the occupying power. The legal and moral absurdity is profound. Germany is contributing to these Palestinian initiatives while simultaneously arming the state actively engaged in the displacement and destruction of the Palestinians. Israel renders its humanitarian ledger a futile exercise in funding relief for the very casualties its military exports help create. Second, Germany explained that it supported the implementation of the so-called comprehensive plan to end the conflict in Gaza. Since the so-called ceasefire, 1,358 Palestinians have been killed and 4,541 others have been wounded only in the Gaza Strip. In fact, a few days ago, and for the second time in a month, a mass funeral for children was held in the Gaza Strip. It is clear that this futile initiative does not justify Germany's continued support for the commission of egregious crimes against the Palestinians, which we have itemized in our memorial and during these hearings. The lack of any effective support by Germany for any solution or even a small contribution to the solution of the tragedy in Palestine can be appreciated in its refusal to join the very recent initiative of a group of European states plus Canada. Two days ago, while Mikawa presented his oral argument 12 countries issued a joint declaration announcing plans to impose national trade restrictions on goods from illegal Israeli settlements. Germany decided not to join these countries. These 12 countries were not strangers, but rather neighbors and allies of Germany. Two of the countries that received Nicaragua's note verbal in February of 2024, the United Kingdom and Canada, and of which Germany has tried to make much during these hearings, are part of the joint measure. The narrative that Nicaragua filed these applications against Germany and not against other countries out of convenience simply does not survive the scrutiny. Mr. President, my final and main point. In 1948, the Convention on the Prevention and Punishment of the Crime of Genocide imposed the obligation on all state parties, as its title emphasizes, to prevent and punish the crime of genocide. A year later, the Geneva Conventions of 12 August 1949 imposed the obligation on all states parties to ensure respect for the conventions in all circumstances. Mr. President, members of the court, if these most fundamental erga omnes obligations cannot be exercised before this Court without also involving the state that is directly violating the conventions, then the erga omnes obligations becomes only a right for any party to bring the state directly causing the physical violations before the Court. It would be a sad result in these tumultuous times for the Court to curtail the effects of these fundamental erga omnes obligations. Mr. President, I will now proceed to read the submissions of Nicaragua. For the reasons presented in its written statement and during the oral proceedings on preliminary objections, the Republic of Nicaragua requests the Court to reject the preliminary objections submitted by the Federal Republic of Germany, both in respect of jurisdiction and admissibility. and to proceed with the examination of the merits with the urgency required by this case. Mr. President, Members of the Court, this concludes Nicaragua's pleading. Thank you for your kind attention. I would also like to thank the Registry, its staff, and the interpreters for their invaluable assistance. My thanks also to the Nicaraguan team and to the members of the German delegation. Thank you.


ICJ · President [1:40:32]:

I thank the Agent of Nicaragua, whose statement brings to an end today's sitting. The Court takes note of the final submissions, which you have just read, on behalf of Your Excellency's Government. Before the end of this set of hearings, I would like to give the floor to Judge Charlesworth, who wishes to put a question to Nicaragua. Judge Charlesworth, you have the floor.


ICJ · Judge · Charlesworth [1:41:01]:

Thank you, President. So my question is, in light of the temporal limits to Germany's optional clause declaration, which is confined in the relevant part to, and I quote, "disputes with regard to situations or facts subsequent to 30 April 2008," end of quote, can Nicaragua specify the situational facts that are the source or real cause of its dispute with Germany, with respect to each of Nicaragua's claims listed in submissions 4 to 9. Thank you, President.


ICJ · President [1:41:39]:

I thank Judge Charlesworth. The written text of this question will be communicated to the parties as soon as possible. Nicaragua is invited to provide its written reply to the question no later than 16 September 2026 at 6:00 p.m. Any comments that Germany may wish to make on Nicaragua's response in accordance with Article 72 of the Rules of Court must be submitted no later than the 22nd of September 2026 at 6:00 p.m. This brings the present series of sittings to an end. I'd like to thank the agents, counsel, and advocates of the two parties for their statements. In accordance with the usual practice, I shall request both agents to remain at the Court's disposal to provide any additional information the Court may require. With this proviso, I declare closed the oral proceedings in the case concerning alleged breaches of certain international obligations in respect of the Occupied Palestinian Territory, Nicaragua v. Germany, on the preliminary objections raised by Germany. The Court will now retire for deliberation. The agents of the parties will be advised in due course as to the date on which the Court will deliver its judgment. Since the court has no other business before it today, the sitting is declared closed.