THE HAGUE – The International Court of Justice (ICJ) holds public hearings in the case Nicaragua v. Germany

Please be seated. The sitting is open. The Court meets today and will meet in the coming days to hear the oral argument of the parties on the preliminary objections raised by the Respondent in the case concerning alleged breaches of certain international obligations in respect of the occupied Palestinian territory, Nicaragua v. Germany. This morning, the Court will hear Germany's first round of oral argument. For reasons duly made known to me, Judge Schuere is unable to participate in these proceedings. As a preliminary matter, I'd like to take the opportunity to welcome the newly elected Registrar, Mr. Santiago Villalpando, who earlier this morning made a solemn declaration before the Court in accordance with Article 24 of its Rules. Since the Court does not include upon the bench a judge of Nicaraguan nationality, Nicaragua availed itself of the right conferred upon it by Article 31, paragraph 2, of the Statute to choose a judge ad hoc to sit in the case. It chose Mr. Akasofna who was duly installed as a judge ad hoc on 8 April 2024, during the phase of the present case that was devoted to the request for the indication of provisional measures submitted by Nicaragua. I shall now recall the principal steps of the procedure in the present case. On 1 March 2024, Nicaragua filed in the registry of the Court an application instituting proceedings against Germany for alleged violations by the latter of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, to which I shall refer as the Genocide Convention, under the Geneva Conventions of 1949 and their Additional Protocols, as well as in transgressible principles of international humanitarian law and other conventional and customary norms of international law in relation to the occupied Palestinian territory, particularly the Gaza Strip. To found the jurisdiction of the Court, the applicant invoked the declarations by which both states accept the compulsory jurisdiction of the Court, to which I shall refer as the optional clause declarations and the compromissory clause contained in Article 9 of the Genocide Convention. The application contained a request for the indication of provisional measures submitted with reference to Article 41 of the Statute and to Articles 73, 74, and 75 of the Rules of Court. By an order dated the 30th of April 2024, the Court, having heard the parties, found that the circumstances that they then presented themselves to the Court were not such as to require the exercise of this power under Article 41 of the Statute to indicate provisional measures. By an order dated the 19th of July 2024, the Court fixed the 21st of July 2025 and the 21st of July 2026 as the respective time limits for the filing of the Memorial of Nicaragua and the Counter-Memorial of Germany. The Memorial of Nicaragua was filed on the 21st of July 2025 within the time limit fixed by the Court. In the Memorial, Nicaragua states that the Court's jurisdiction in the present case is based on the parties' respective optional clause declarations and for the claims concerning alleged violations of obligations stemming from the Genocide Convention on the compromissory clause contained in Article IX of that Convention. Nicaragua adds that the jurisdiction of the Court is also based on Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination, to which I shall refer as CERD. On 21 October 2025, Germany raised preliminary objections to the jurisdiction of the Court and the admissibility of the application with respect to certain claims of Nicaragua. Consequently, by an order of the 22nd of October 2025, the Court noted that the proceedings on the merits were suspended by virtue of Article 79 bis, paragraph 3, of the Rules of Court, and fixed the 23rd of February 2026 as the time limit within which Nicaragua could present a written statement of its observations and submissions on the preliminary objections raised by Germany. Nicaragua filed its written statement within the time limit so prescribed, and the case thus became ready for hearing in respect of the preliminary objections. After the closure of the written proceedings, Germany requested the inclusion of a new document in the case file in accordance with Article 56 of the Rules of Court and Practice Direction 9. Taking account of the views of the parties, Court authorized the Respondent to produce a copy of certain correspondence exchanged between the legal directorate of the German Federal Foreign Office and the respective offices of other states, together with a statement confirming that the document in question comprised the entirety of the relevant exchanges of which the Respondent was aware. These documents were submitted by Germany on the 24th of August 2026 and were added to the case file as Annex 9 to the preliminary objections of Germany. I would now like to welcome the representatives of Nicaragua and Germany who are in the Great Hall of Justice today. In particular, I note the presence of the agent of Nicaragua and agent of Germany, each accompanied by members of their respective States' delegation. In accordance with the arrangement for the organisation of the proceedings, which have been decided by the Court, the hearings will comprise a first and a second round of oral argument. The first round of oral argument will begin today with the statement of Germany and will close tomorrow, Tuesday, the 8th of September 2026, following Nicaragua's first round of oral pleading. Each party has been allocated a period of three hours for its first round. The second round of oral argument will begin on the afternoon of Wednesday, the 9th of September, 2026, with the statement of Germany, and close on the afternoon of Thursday, the 10th of September, 2026, with the statement of Nicaragua. Each party will have a maximum of one and a half hours to present its reply. In this first sitting, Germany may, if required, avail itself of a short extension beyond 1:00 p.m. in view of the time taken up by my introductory remarks. I now give the floor to Ms. Ulla Monar, agent of Germany. You have the floor, Madame.

Monsieur le President, Mr. President, ladies and gentlemen of the Court, it's an honour to appear before you today in my capacity as agent of the Federal Republic of Germany. I should like to take this opportunity to extend my personal congratulations and those of my government to the Court's new Registrar, Mr. Santiago Villalpando, on his election. As a loyal friend of the Court, Germany unreservedly supports the peaceful settlement of international disputes. Germany's deep respect for the principal judicial organ of the United Nations, as well as the trust it places in it, is demonstrated not only through its active support for the widespread ratification of treaties containing compromissory clauses, but also through the declaration made in 2008 accepting the Court's compulsory jurisdiction. However, the instant case should not have been brought before this Court. As Germany will explain today, the conditions on which this Court's jurisdiction is based are not met in this case. Indeed, what Nicaragua is requesting of the Court disregards the fundamental principles upon which the exercise of the Court's jurisdiction is based, in particular, the principle of prior consent to such jurisdiction. Germany, therefore, respectfully submits that if the Court were to declare itself competent and agree to exercise that jurisdiction in respect of Nicaragua's claims, this would set a dangerous precedent. There are three reasons for this which underpin Germany's preliminary objections.

First, Germany respectfully submits that admitting Nicaragua's claims would empty the requirement of the existence of a dispute at the time of the filing of an application of all meaning. The existence of a dispute is a central condition for the Court to exercise its mandate, which is the peaceful settlement of disputes. The requirement of an existing dispute has been included in both Articles 36 and 38 of the ICJ Statute for a reason. That reason is that a state should not be deprived of the opportunity to react before the institution of proceedings to the claim made against its own conduct. Here, however, Nicaragua's conduct indicates that it was not interested in hearing Germany's view on its allegations, but simply in bringing Germany before this Court. Were the Court to admit Nicaragua's claims, no state that has accepted the Court's jurisdiction could be certain that it would be given an opportunity to consider, let alone react to, another state's allegations before facing them before this Court. This matters all the more in the current case. Mr. President, Members of the Court, For the first time in the history of this Court, it is being asked to adjudicate a case that is twice removed from a classic bilateral dispute. Neither Nicaragua nor Germany is a party to the conflict that forms the real subject matter of this case, the Israeli-Palestinian conflict. In such circumstances, it was critical that Germany be properly advised of the claims made against it and be given a fair opportunity to respond. It was not. It had no reason to expect claims from Nicaragua. It was caught cold and brought before this Court before any dispute could conceivably have been crystallized. Second, Germany respectfully submits that admitting Nicaragua's claims would distort the meaning of Germany's voluntarily submitted declaration of 2008 by which it accepted the Court's compulsory jurisdiction. It would distort its meaning, especially beyond its temporal limitation. Indeed, it appears that Germany's conduct in the aftermath of the horrific terrorist attacks by Hamas on 7th of October 2023 has prompted Nicaragua to use the opportunity to accuse Germany of violating international law with respect to alleged wrongful conduct that took place well before 30th of April 2008. However, such claims are excluded by Germany's Optional Clause Declaration. Like the optional clause declarations of many other states, Germany's declaration precludes litigation concerning facts and situations that predate the date of submission. As Germany's counsel will explain in more detail, central claims put forward by Nicaragua have their real cause in facts or situations that predate 30th of April 2008. In line with its established jurisprudence, the Court should reject these claims. Any disregard of such clearly defined temporal limitations may undermine the confidence of states in accepting the compulsory jurisdiction of the Court. Third, admitting Nicaragua's claims would inevitably require the Court to determine the legality of the conduct of a third party, Israel. that has neither given its consent to, nor is in any way hurt in these proceedings. I have already made the point that neither Nicaragua nor Germany is directly engaged in the Israeli-Palestinian conflict. Instead, the case brought before this Court by Nicaragua involves an applicant asserting a right to act in pursuit of a public interest, and a respondent said to have violated ancillary and other obligations, the assessment of which necessarily requires evaluating the conduct of an absent state. Were the Court to declare Nicaragua's claims admissible, the conduct of any state could at any time be brought before the Court and ruled on regardless of the absence of consent. provided that a third party has accepted the Court's jurisdiction and that third party can be alleged to have engaged in some ancillary or similarly related wrongful conduct. We fear this would be an invitation to circumvent the principle of consent, the fundamental pillar of this Court's jurisdiction. Mr. President, Members of the Court, The three preliminary objections will be addressed in detail by Germany's counsel. Before they do so, I would like to offer a few clarifications with respect to the factual allegations made by Nicaragua. A substantial part of Nicaragua's written statement does not address Germany's preliminary objections, but contains very serious allegations against Germany, portraying it as a state that, and I quote, "persistently refuses to meet the most fundamental obligations "imposed by international law, "favoring other alleged competing principles "and hiding behind a purported robust system of domestic law." End of quote. Please allow me to make two preliminary points in this regard. Firstly, These allegations have no place in this phase of the proceedings. They do not concern Germany's preliminary objections. If anything, they concern the merits of this case. Germany notes that Nicaragua itself is mindful of the limited scope of the present phase of the proceedings and does not intend to address issues that pertain to the merits of the case. Germany regrets that Despite Nicaragua's professed awareness of the scope of these proceedings, it did not act accordingly. Mr. President, Members of the Court, this brings me to my second point. Germany cannot be expected to engage with these allegations at this stage of the proceedings. However, Germany feels compelled to point out that Nicaragua's factual statements are not only inapposite at this stage of the proceedings, but also create an inaccurate and distorted picture. Please allow me to first address what Nicaragua describes as Germany's purported robust system of domestic law, which, according to Nicaragua, allows German authorities to favour competing principles over Germany's obligations under international law when deciding on export licences. Mr. President, Members of the Court, All German exports of military technology and equipment to Israel, as to any country, are subject to strict licensing requirements which exceed international requirements. Contrary to what Nicaragua claims, these licensing requirements do not leave any discretion to German authorities to disregard Germany's obligations under international law. Instead, the strictness of Germany's legal framework was recently underlined by the German Federal Constitutional Court. The court, Germany's highest judicial organ, thoroughly examined Germany's legal framework in light of this court's order of 30th of April 2024. The court clarified that the German legal regime on arms exports, and I quote, dictates that when assessing an application for licenses of armament exports, it must be examined whether the export of the military equipment entails risks for compliance with international humanitarian law and international human rights. The license must be denied if such a risk is sufficiently high." End of quote. Licensing decisions follow a strict procedure based on a distinction between war weapons and other military equipment. According to the German War Weapons Control Act, a license for the export of war weapons shall be denied, inter alia, if there is a reason to assume that such export would violate Germany's international obligations or endanger their fulfillment. Other military equipment, which, for example, refers to parts and components, requires a license for export, which can only be granted on the basis of binding criteria. These notably include the condition that the granting of any such license must be in compliance with Germany's international legal obligations, including those under international humanitarian law. Accordingly, It is very clear that Germany's domestic legal regime does not leave any leeway for Germany's obligations under international law to be disregarded. Indeed, even Nicaragua ultimately appears to accept the robust character of Germany's domestic legal framework as such. Rather, Nicaragua argues that Germany allegedly does not comply with these domestic laws and accuses Germany of a lack of transparency with respect to its decisions on arms exports. Mr. President, Members of the Court, Germany regularly publishes detailed reports on its arms exports, allowing for public scrutiny both by domestic and international actors, which is already in itself rather exceptional by international standards. Germany also makes publicly accessible the responses by the government to parliamentary questions relating to arms exports, and specifically relating to arms exports to Israel. Indeed, Nicaragua cites several of these reports and responses in its written statement. But they simply do not substantiate Nicaragua's accusation that Germany persistently refuses its most fundamental obligations under international law. On the contrary, they confirm that Germany takes concrete measures to ensure the compliance of its export licensing practice with international law. Allow me to draw your attention to three aspects in particular. First, the reports and responses confirm that Germany has not, since 2024, authorized any export of weapons of war with a final destination in Israel that can be used in the Gaza conflict. Second, they confirm that Germany closely monitors the developing situation in Israel, Gaza, and the region, taking into account the relevant political and military situation. Hence, Germany has in the past restricted its export licensing relating to other military equipment destined for Israel. Even Nicaragua acknowledges as much in its written statement. Any such restrictions are preceded and accompanied by a third measure, namely the constant dialogue between German officials and their Israeli counterparts in which German officials have repeatedly emphasized that granting licenses for the export of arms to Israel depends on the compatibility of such action with international humanitarian law and on receiving assurances from Israel that military equipment will be used in accordance with international humanitarian law. Germany's licensing practice is adapted as necessary. For example, since December 2024, only partial licenses have been granted for certain large volume applications. This enables the government to take account of the changing situation on the ground, even at short notice, when deciding whether to grant licenses for the remaining goods. At certain times, notably in the summer of 2025, Germany has even suspended the authorizing of any export licenses for any military equipment that can be used in the Gaza Strip altogether. As the German government stated in August 2025, in reaction to a push, to a military push by Israel at the time, Germany would, until further notice, authorize no military equipment exports that can be used in the Gaza Strip. As a consequence, the figures for licenses granted for the final export of arms to Israel fell significantly in the period from 8 August to 23 November 2025, during which the Federal Government restricted its arms exports to Israel. In fact, no arms exports licenses for final export to Israel were issued in the period from 8th of August to 12th of September. For the rest of the period until 23rd of November, licenses were only issued on the basis of the federal government's assessment that none of the items can be used in the Gaza Strip. When the processing of license applications for such arms exports was resumed in late 2025, This was directly linked to the reaching of a ceasefire agreement in Gaza on 10 October 2025. Mr. President, Members of the Court, Germany's export licensing practice with respect to military equipment is not only subject to continuous evaluation by the competent executive organs, but also to comprehensive and careful judicial review by German courts. An equivalent to the political question doctrine, known to many other jurisdictions, does not exist within the German judicial system. Accordingly, several domestic courts have been seized with a question of the legality of Germany's arms export practices, including the Federal Constitutional Court. Importantly, and contrary to what Nicaragua has been alleging, all of these courts have considered Germany's obligations under international law as forming part of the relevant applicable law. A closer reading of the actual text of these decisions reveals that the courts examined the conduct in question in detail on the basis of a thorough consideration of international law including this Court's decisions, as applied to the concrete facts of the cases. However, they found that the facts of the respective cases simply did not support the claims made by the applicants. Please allow me to draw your attention once more to the decision by the Federal Constitutional Court of Germany of 3 February 2026. This decision concerned a constitutional complaint submitted by a Palestinian complainant living in Gaza, who argued that the licenses granted for the export of military equipment to Israel violated German constitutional and international law. The court rejected the complaint after a careful and comprehensive assessment of Germany's licensing practice in light of its obligations under international law, noting that And I quote, "The federal government is in constant dialogue with the Israeli government, both bilaterally and as a member of the European Union. It works towards ensuring compliance with international humanitarian law and international human rights provisions and provides extensive humanitarian aid. The federal government has not only taken general protective measures, but has also adapted its practice of granting licenses to export weapons designed for warfare and military equipment intended to remain in Israel throughout the course of the continued Israeli military offensive in Gaza." End of quote. Accordingly, Germany respectfully notes that there is no basis for alleging that Germany's licensing practice is not thoroughly reviewed by German courts. Mr. President, Members of the Court, in its written statement, Nicaragua also claims that no investigations have been initiated against Israeli armed forces for criminal offenses falling under Germany's Code of Crimes against International Law, the Völkerstrafgesetzbuch, committed in Gaza since 7th of October 2023. This statement is misleading at best. Since the beginning of the Israeli military operation in the Gaza Strip in late 2023, the Federal Prosecutor General has continuously observed the situation in the conflict zone and has analyzed and examined cases in which there are indications of links to Germany. German authorities have received several criminal complaints against members of the Israeli Defense Forces. All of these complaints are carefully examined by German authorities. Some of these complaints are still under consideration and it is thus not apposite to comment on them. As for the complaints that have not led to charges, these decisions have been communicated by letter to the persons who filed the criminal complaints. In these letters, the German authorities set out in detail the reasons why they decided not to open a formal investigation. Germany would like to draw your attention to the fact that Nicaragua itself refers to such a letter from the Federal Prosecutor. In this letter, he explains why certain preliminary examinations he had undertaken did not lead to the prosecution of the individuals in question. These reasons notably include the absence of evidence identifying either the accused individual or conduct that would meet the requirements of a crime falling within the scope of the Völkerstrafgesetzbuch. Germany thus underlines that there is simply no basis for inferring from the absence of charges being brought against Israeli soldiers that the allegations in question have not been thoroughly analysed by the German authorities. Mr. President, Members of the Court, Germany hopes that these explanations have demonstrated that Nicaragua's claim that Germany prioritizes political principles over its obligations under international law is baseless. Nicaragua claims in particular that Germany would set aside its obligations in favor of a competing principle of its Staatsraison. However, on the contrary, Germany's Staatsraison is inextricably linked to its compliance with its obligations under international law. It is true that Germany's unwavering support for the existence and security of the State of Israel constitutes the core of German-Israeli relations resulting from Germany's lasting historical responsibility. However, Germany's commitment to the existence and security of the State of Israel does not in any way imply a disregard for international law. Germany fully recognizes the right of Palestinians to self-determination to be exercised in the territory that came under occupation in 1967, and has expressed its support for a two-state solution as the only path towards a lasting peace in the Middle East on numerous occasions. It is for this reason that Germany has been providing significant support to Palestinians living in the occupied Palestinian territory for decades, and contributes to the establishment of a future Palestinian state as part of a two-state solution. It should be noted that Germany is one of the largest donors to the Palestinian territories, with an active bilateral development cooperation portfolio of approximately 1 billion US dollars, and is currently the largest bilateral donor to UNRWA, with yearly contributions in support of the agency exceeding 100 million US dollars. Germany has repeatedly and strongly condemned attempts to undermine the two-state solution, such as through the expansion of illegal settlements and the violence perpetrated by radical Israeli settlers. In this regard, Germany has left no doubt in its public statements that it fully respects and supports the conclusions this Court reached in its advisory opinion of 19th of July 2024, and that Germany will act in line with the obligations under international law set out in it. Germany has furthermore repeatedly emphasized the paramount importance of humanitarian access to Gaza by United Nations agencies. Within the General Assembly, Germany has voted in favor of the request addressed to this Court, as well as the resolution welcoming this Court's advisory opinion of 12th of December, 2025. At the same time, the humanitarian situation in Gaza remains extremely dire, as Germany continuously points out in both multilateral and bilateral fora. Since October 2023 alone, Germany has provided up to 480 million US dollars in humanitarian assistance. But it is fully aware that this is barely sufficient and stands ready to contribute in every way possible to conditions for lasting peace and security in accordance with its obligations under international law.

Mr. President, members of the court, let me conclude these few factual comments by stating once again that Germany is deeply committed to reaching a lasting peace and establishing peace, justice and security, both for Israelis and Palestinians, in accordance with the advisory opinions rendered by your court in 2004, 2024, and 2025. This, it seems to Germany, is a goal shared by Nicaragua. However, Germany has serious doubts that the case brought to your court by Nicaragua would in any way bring us any closer to this shared goal. By way of consequence, Germany respectfully requests the Court reject Nicaragua's claims. Mr. President, ladies and gentlemen of the Court, Having heard these introductory remarks, I should like for you to hear me give you the order in which the pleadings will be made on behalf of Germany. Professor Antonios Tsanakopoulos will outline the first preliminary objection, namely that there was no dispute between Nicaragua and Germany relating to the claims made by Nicaragua when Nicaragua filed its application. In the second preliminary objection, Professor Christian Tams will show that some of the main claims made by Nicaragua do not come under the temporal jurisdiction of the Court under the optional clause, even though the claims made by Nicaragua relating to racial discrimination do not meet the prerequisites under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination to bring a case to the Court. He will then be followed by Mr. Samuel Wordsworth, who will cover the third preliminary objection put forward by Germany, namely that Under the indispensable party rule, the Court cannot exercise its jurisdiction relating to Nicaragua's claims in the absence of Israel. Mr. President, Honourable Members of the Court, I should like to thank you for your kind attention. I ask respectfully, Mr. President, that you give the floor to Professor Antonios Tsanakopoulos, who will introduce Germany's first preliminary objection.

I thank the agent of Germany for her statement. I now invite Professor Antonios Tsionakopoulos to take the floor. You have the floor, sir.

Mr. President, Members of the Court, It is a privilege to appear before you today representing the Federal Republic of Germany. I will establish that no dispute existed between Nicaragua and Germany at the critical time of the filing of Nicaragua's application with the Court with respect to any of the claims that appear in Nicaragua's memorial. As a result, what the Court has referred to as the primary condition for the exercise of its judicial function is not met. This primary condition is all the more important where, as here, the respondent state is said to have committed a breach of an obligation owed erga omnes, yet is not itself involved in the underlying conflict around which this claim revolves. As the agent has just noted, this is a situation that is not merely once, but twice removed from the usual bilateral dispute settlement framework. I will be making three points. First, I will explain that it is not sufficient, as Nicaragua suggests, to make some generic reference to international humanitarian law or even to international law at large in order to establish the existence of a dispute. The respondent state, Germany, must be able to identify that there is a given claim with respect to some specific legal subject matter. This concerns what we have described for convenience, as you can see in our overview document in tab three of your judges folder, as Nicaragua's self-determination claim, its non-recognition and non-assistance claim, its racial discrimination claim, and its non-prosecution claim. Second, given that Nicaragua commenced these proceedings without allowing Germany an opportunity to respond, I will examine whether there could be, in this case, a failure to respond. This concerns Nicaragua's genocide claims, its common Article 1 claims, as well as its general international humanitarian law claim. to the extent that the latter can be considered specific enough to be meaningful and meaningfully different from its common Article 1 claims. But the point I will be making is also fatal to Nicaragua's other claims. Third, I will take issue with Nicaragua's argument in its written statement that we are somehow asking the Court to apply a stricter or different test for the determination of the existence of a dispute. This is not the case, and I will explain why. Finally, and as a coda, I will briefly highlight how Nicaragua's arguments regarding conduct subsequent to the filing of the application cannot absolve it from the requirement of establishing the existence of a dispute. Even taken at face value, these arguments are of no help to Nicaragua's case. Mr. President, Members of the Court, I turn to the first of these issues. As a starting point, Nicaragua and Germany are more or less at one when it comes to identifying the criteria established in the Court's jurisprudence for determining the existence of a dispute. A dispute, a disagreement over facts or law, must exist between the parties at the critical time of the filing of the application. This is a primary condition for the Court to exercise its judicial function. Such a disagreement requires an objectively determinable exchange between the parties, which evinces positive opposition in their views. The claim of one must be positively opposed by the other. For positive opposition to be established, a state must not be deprived of the opportunity to react before the institution of proceedings to a claim made against its conduct. The term claim here is important. The relevant exchanges between the states must refer to the subject matter of a rule or of the obligation under a rule, quote, "with sufficient clarity to enable a state against which a claim is made to identify that there is or may be a dispute with respect to that subject matter," end quote. The reading of this last requirement is the first point where Germany diverges from Nicaragua. Leaving aside the fact that there were no material exchanges between Nicaragua and Germany at all in this case, a matter to which I shall return, Nicaragua relies on only two documents in order to assert the existence of a dispute between itself and Germany, the note verbale of 2 February 2024 and the press release of 1 February 2024. Notably, the latter document was not even addressed to Germany, and the claims that it contains are different to those in the note verbale. This reliance on only two documents, one of which is a press release, is in itself something that sets this case apart from other cases where the Court has found a dispute to exist between the two parties. In allegations of genocide, the Court referred not only to relevant statements by the highest authorities of the Russian Federation, including at the United Nations, but also to Ukrainian denunciations of Russian allegations going back almost a decade, to 2014, in order to establish the existence of a dispute. In The Gambia v. Myanmar, the Court relied on the history of exchanges at the UN between the two states over a period of more than a year, exchanges that were themselves based on reports issued by the relevant fact-finding mission. Nothing of the sort has happened in this case. The two documents are the only allegations that Nicaragua can refer to, and they are both far removed from consider from from constituting excuse me exchanges. In any event, in neither of these documents did Nicaragua mention not once its claims regarding self-determination, non-recognition, and non-assistance, racial discrimination, and non-prosecution. You can find the two documents in tabs 5 and 6 of the Judges' folder, but you can also see relevant parts on the screen now. There is no reference to any of these claims. The non-prosecution claim, to take an example, is nowhere to be found in either the note verbale or the press release on which Nicaragua relies to establish the existence of a dispute. The word "prosecution" is not even mentioned anywhere in these two documents. That alone should be enough to demonstrate that there could be no dispute as to Germany's refusal to prosecute persons responsible for grave crimes under international law. What is more, the claim in the Application, and eventually in the Memorial, is extremely broad in its formulation and does not even attempt to specify which persons Germany is alleged to have failed to prosecute and for which specific crimes. By contrast, say, to Belgium v. Senegal, where the claim referred to a specific individual and over specific crimes. In fact, even in that case, the Court refused to accept that a dispute existed over the prosecution or extradition with respect to certain crimes, because Belgium, while mentioning them, did not state or imply that Senegal had an obligation under international law to exercise its jurisdiction over those crimes if it did not extradite the specific individual. Of note also is the fact that Nicaragua does not attempt to develop its non-prosecution claim. even after the critical date in its memorial or written statement, where it limits itself to brief references in two and then one paragraphs respectively. Similar considerations apply also to the other claims discussed under this heading. Now, in response to Germany's position that none of these terms or claims are mentioned in Nicaragua's note verbale or press release, Nicaragua spends 10 paragraphs in its written statement to highlight the importance of various rules of international law allegedly being violated by Israel in the occupied Palestinian territory, including the prohibition of acquisition of territory by force, international humanitarian law at large, and international human rights law, again at large. But these references cannot help Nicaragua's case. The simple fact remains that at no point before instituting proceedings did Nicaragua raise with Germany any concern relating to questions of non-recognition and non-assistance, racial discrimination, or non-prosecution. Generic references to international law plainly do not meet the test formulated by this Court. In all the cases already mentioned, that is, allegations of genocide, The Gambia v. Myanmar, Georgia v. Russia, and Belgium v. Senegal, the Court emphasized that exchanges between the parties referred to specific rules. in particular genocide, ethnic cleansing, and the obligation to extradite or prosecute specific persons accused of torture. Nicaragua's references, by contrast, do not refer to the subject matter of a rule or the obligation under a rule with sufficient clarity to enable a state against which a claim is made to identify that there is or may be a dispute with respect to that subject matter. It was thus not enough for Nicaragua to refer in vague terms to international humanitarian law, coupled with a reference to customary international law. How could a respondent state understand from such a wording that it was to be brought to the Court to answer claims concerning racial discrimination, or non-recognition and non-assistance, or a failure to prosecute? Much the same applies, Mr. President, to Nicaragua's self-determination claim. Neither in the not verbal nor in the press release is there any actual claim that Germany's conduct, which is before the court today, is in breach of the principle of self-determination. Rather, the reference to self-determination in both documents, as Nicaragua itself admits, is made with respect to the funding of UNRWA. But Nicaragua then goes on to claim in its written statement that perhaps other acts by Germany may be in breach of that same principle. With respect, that is beside the point. The communication referred to the funding of UNRWA, a matter that was much discussed at that time. It should have specified, at least in general terms, which further conduct Nicaragua considered to be in breach of what rule. Otherwise, it remains open to the claimant state to continuously reframe a dispute that has supposedly been established. Not to mention that the recipient state is not able to respond to the allegation if it is not clear to it which conduct is allegedly in breach of what rule. All this I mention as additional points to Germany's main point with respect to the self-determination claim. No such claim exists in the Notverbal or the press release. The reference to self-determination in both documents is made in passing and as part of the purported factual background. Indeed, Nicaragua uses the reference to self-determination and the funding of UNRWA to then conclude that, and I quote, "These facts reveal that Germany is engaged in a gross and systematic failure to fulfill its obligations under the 1948 Genocide Convention." Nicaragua itself refers to them as facts that establish, in its view, the purported violation of the Genocide Convention. In sum, none of the claims as to self-determination, non-recognition and non-assistance, racial discrimination, and non-prosecution in Nicaragua's memorial was raised in any discernible form in the not verbal or the press release. Some of them appear in rudimentary form in its application, while others appeared for the first time in the memorial. These issues were not raised at all, let alone raised with sufficient clarity, before Nicaragua rushed to the Court. Germany was therefore deprived of any opportunity to react to any such claims. Thus, there could not exist a dispute between the parties regarding these late claims at the critical time of the filing of the application. Mr. President, Members of the Court, I turn now to the genocide, common article 1, and general international humanitarian law claims raised in Nicaragua's submissions 1 to 6. As set out in Germany's preliminary objections, there was likewise no dispute with respect to any of these claims on 1 March 2024. This is so because no dispute regarding these claims had crystallised. Nicaragua did raise issues under the Genocide Convention and under the Geneva Conventions of 1949, specifically common Article 1 and its not verbale of 2 February. However, Germany never had the opportunity to respond to those claims because no time was allowed for Germany to do so. To recall, the Court has stated that it may infer from a respondent's silence that the latter rejects the future applicant's claims and, therefore, that there is positive opposition and thus a dispute. But for the Court to so infer, the respondent must have failed to reply to the applicant's claims in circumstances where a response is called for. Nicaragua says in its written statement, and I quote: Failure to respond to a claim in circumstances where a response is called for confirms the existence of a dispute, citing Georgia versus Russia and Cameroon versus Nigeria, neither of which actually uses the term "confirms." A failure to respond when a response is called for does not confirm the existence of a dispute. It is required to establish the existence of a dispute in the absence of explicit exchanges. But whether an alleged failure does, in fact, establish the existence of a dispute depends, as can only be the case, on the circumstances. Thus, the Court has made clear that whether a respondent may be considered as having failed to reply quote, "depends on the specific particular circumstances of each case," end quote. And the relevant circumstances include, per the Court's jurisprudence, the period of time during which a respondent maintained its silence after being presented with a claim, the clarity and the specificity of the claims as formulated, and the history of prior diplomatic exchanges between the parties bearing on the same subject matter. Now, I have dealt with the clarity of certain claims already. I add here that the more unspecified or unclear the allegations are, the longer the states to which these are addressed may need to consider them in order to try and understand what they may be about. The genocide claims, the common Article I claims, and the general IHL claim are not specified, but put in the most generic manner, and this needs to be borne in mind. But that aside, neither the period of time during which Germany maintained its silence after being presented with the claim, nor the history of prior diplomatic exchanges between the parties bearing on the same subject matter, suffice to crystallize a dispute in this case. Nicaragua puts heavy emphasis on the Court's finding in the Gambia v. Myanmar that one month of silence between the receipt of a non-verbal and the filing of an application is enough to establish positive opposition, given also the seriousness of the allegations. It also seeks to argue that even a shorter time, only hours, may occasionally suffice, relying on the allegations of genocide case. Nicaragua, however, does not mention that the Court, in finding that a dispute existed in that latter case, set out clear evidence of explicit positive opposition of views between Russia and Ukraine, some going back even to 2014. It was only against this background that the Court found that, "in the specific circumstances of the case, Ukraine could seize it without any further delay." As to the period of one month considered sufficient by the Court in The Gambia v. Myanmar, again, the Court did not make this finding in a vacuum. As it does with the allegations of genocide case, Nicaragua conveniently forgets several paragraphs of the Court's judgment in the Gambia v. Myanmar case. In paragraph 65 and following, the Court describes in great detail how the two states had come to blows over the matter that eventually came before the Court in the UN General Assembly, and indeed, on the back of detailed fact-finding mission reports over more than one year. Most importantly, the Court highlighted how the note verbale sent by the Gambia did not signify the first time that relevant allegations were made known to Myanmar. In fact, it indicated that the two parties had already expressed opposing views on the matter even before the note verbale was sent. The circumstances, thus, are quite different than those in our case. Nicaragua can point to no instance where it had made relevant claims against Germany at any time before the not verbal or the press release that was actually not addressed to Germany at all. I will not dwell on the untenable assertion that Germany should have considered that there might exist disputes between itself and Nicaragua as to potentially all provisions of the four Geneva Conventions of 1949, all provisions of Additional Protocol I of 1977, all of IHL that has passed into customary international law, or even all of customary international law at large, and should have then responded to all these claims within one month. Plainly, even if discrete claims could somehow be identified, one month is not enough time for a state to formulate a position and revert on claims that potentially span the totality of IHL or even international law at large, including the law of state responsibility. The additional point here is that Germany did not even have that one month to consider and respond to the allegations in the not verbal even taken in their narrowest possible form this is because Germany did not actually receive the not verbal until 13 February 2024 Nicaragua says that both of the e-mail addresses used for the communication of the not verbal were the official ones registered with the UN protocol and liaison service. That is beside the point, however. Germany notes that, registered as the e-mail addresses may be, these are not the channels customarily used, at least exclusively, for important diplomatic communications, including by Nicaragua itself. Nicaragua repeatedly stresses how important and urgent its communication was, asserting, as it did, grave violations of international law. But if a state wishes to rely on the prompt receipt and consideration of an important communication, it does not limit itself to sending it from a Yahoo e-mail address to a generic info address. I suggest that a seasoned diplomat, such as the Permanent Representative of Nicaragua to the United Nations, would naturally have been expected in such circumstances to send this, at least in parallel, to Germany's embassy in Managua or to the Federal Foreign Office in Berlin, and of course not just to rely on electronic communications. Nicaragua also notes in its written statement that both Canada and the Netherlands replied to its note verbale to confirm receipt and that neither of them considered the channel of communication employed by Nicaragua as inappropriate. But both of these states, as well as the United Kingdom, did indeed consider the channel of communication as at least bizarre, if not flat out inappropriate. All four states, as you can see, in the e-mail exchanges here, had been actively looking for the note verbale and holding coordination meetings ever since being informed of the press release on 2 February 2024. You can see further in the e-mail chain in tab 8 of your judges folder. The first to discover the note verbale was the Netherlands on 12 February. That's the e-mail on the top left. It notes that it was received on 2 February, but was sent to a general inbox of the UN Permanent Mission and went unnoticed for over a week. On 13 February, the United Kingdom, immediately below, on the left side, writes that: "We can now confirm receipt of a similar note verbale, which was sent to the wrong mailbox at our New York mission." You can see the replies of Germany in the central column. The first reply by Germany is on the same date, and Germany notes that, "We have not yet found a note addressed to us. Our New York mission is still looking into the matter." And immediately below, You can see that on the next day, Germany reports that our mission in New York has managed to find the note addressed to us, which was sent to our wrong e-mail inbox. Canada then, on the top right, reverts on 14 February to note, "Mystery solved. Canada received the attached note today." It had been sent to an incorrect box in the first instance and was resent by Nicaragua. So it was not just Germany that was wrong footed by Nicaragua's unusual communications channels in such an important matter. Now, Nicaragua continues to argue that Germany rejected, or rather unequivocally rejected, Nicaragua's claims. But it offers nothing new with respect to that argument. It just reprises a position that the German government offered this rejection during a regular press conference on 7 February 2024. Germany has already fully set out the proper reading of the government spokesperson's answer on that day. a date to recall at which Germany had not yet received the not verbal. The German Federal Foreign Office spokesperson was asked in particular, as you can see in the excerpts, a, to confirm receipt of the not verbal, and b, to indicate how Germany intends to react to the steps being taken by Nicaragua. The spokesperson replied that the Federal Foreign Office was aware of a press release, but noted that nothing else other than the press release is known. Accordingly, she continued, we have no reason to comment further. This is a clear reservation of Germany's position with respect to the notverbal and the reaction to the steps taken by Nicaragua. While the spokesperson did also note that we naturally reject the relevant content of the press release, this referred to the receipt of the note verbale, which was suggested in the press release and with respect to which the journalist had inquired. This was an instance of a spokesperson giving an ad hoc response to an unexpected question and not any form of official legal assessment of or response to the claims. At no point during the short exchange at the press conference did the representative of the Federal Foreign Office engage in any way with any of the material claims contained in Nicaragua's press release. The journalist was pressing on the receipt of the note verbale. You can see the question there. The verbal note has not yet arrived. The journalist asks again. To this, the Federal Foreign Office spokesperson responds that I have now answered your question twice without offering any further comment. Now, to seek to portray this as an unequivocal rejection of the Nicaraguan claims stretches credibility. Beyond the question of how one is to interpret the spokesperson's response to a journalist, however, I should also stress that statements made at a press conference cannot be regarded as "statements or documents exchanged between the parties or exchanges made in multilateral settings," which this Court takes into account for the determination of the existence of a dispute. The evidentiary value of this exchange for determining the existence of a dispute is thus questionable. This is all the more so since neither the actual nor the intended addressee of these statements was, in fact, Nicaragua. The addressee was the journalist seeking to find out whether Germany had received Nicaragua's not verbal. It would be the first time that the Court would infer positive opposition from a reply to a journalist, and this would broaden the term positive opposition. Far more importantly, however, Germany never failed to respond to Nicaragua's allegations. Quite the opposite. As we have stated repeatedly, and as you have seen, Germany was actively considering its position in coordination with the other three states that turned out to have received similar not verbals. Nicaragua questions whether this is in fact true, and with that, it also questions Germany's good faith. there is no evidence on the record showing that Germany was actively considering its position by 13 or 14 February 2024 or that Germany was seeking coordination with the three states, the Netherlands, the United Kingdom, and Canada, that had received not verbal from Nicaragua. End quote. But there is evidence for this, Mr. President, members of the court. The e-mail chain that you can find in tab 8 of the judges' folder and on screen now, you can see that negotiations were taking place between the four states regarding the organization of numerous coordination meetings, along with discussions on locating the not verbal. Once the not verbal have been located and studied by all four states, The UK suggests 7 March 2024 for the next coordination meeting. This is the e-mail on the top right. Germany, immediately below, confirms its availability on the morning of 1 March 2024, a few hours before it finds out that Nicaragua had filed an application with the Court on that very day. In these circumstances, it is simply not serious to suggest that Germany failed in any way to respond to Nicaragua's claims. Claims that had never been raised in any form before February 2024. Claims that were different in the press release and in the not verbal. Claims that were ill-defined to begin with and would require a very detailed consideration in order to begin to formulate a proper response. Germany was actively looking for the not verbal, coordinating with the other states named in the press release as recipients of equivalent not verbal, and considering its position together with these states already on 13 February 2024. Just over two weeks after it had received the not verbal, and while the coordination and discussion between the four states was taking place, Nicaragua rushed to the court, but only against Germany. Nicaragua did not even afford Germany enough time to fail. The impression left is that Nicaragua was just trying to tick boxes as easily and as quickly as possible in order to bring the matter to the Court. But in its hurry, it failed to establish that a dispute had emerged between itself and Germany regarding its submissions 1 to 6. Mr. President, Members of the Court, Nicaragua argues in its written statement that Germany is trying to suggest that you should somehow apply a stricter test than you have thus far for establishing the existence of a dispute. This is a misrepresentation of Germany's position. Both in the written and in the oral proceedings, Germany has stuck to the well-established criteria that the Court considers for the existence of a dispute. This is even, perhaps unconsciously, admitted by Nicaragua in paragraph 56 of its written statement. There, It quotes Germany's written submissions, including the passage where Germany argues that the Court's usual test for the determination of the existence of a dispute be stringently applied. The reference is to the usual test, not a different test, not a stricter test. Germany calls upon the Court to be strict in the application of the requirements of the usual test, precisely because the case before it is unique. Nicaragua may claim that there is nothing special about this case, but there is. The special thing about it is not that it has been brought by a state other than the injured state on the basis of erga omnes or erga omnes partes obligations. Such cases are usually only once removed from the usual bilateral setting of dispute settlement between an allegedly injured and an allegedly responsible state. The unique thing about it is that in no other case that has been brought before this Court could the respondent have been any one of a number of states, rather than only a specific state. This is confirmed by the fact that, originally, Nicaragua implicated no less than four states in its assertions, and it would have undoubtedly implicated more if it had considered that there was a plausible jurisdictional basis for doing so. The case then is twice removed from the usual bilateral setting. In such a case, an application may be lodged by any state against virtually any other state. And that may well be unproblematic as long as one state, the one state that takes it upon itself to lodge the application, at least makes sure to establish the existence of a dispute between itself and one of its many potential targets. The Court should therefore be strict in applying the requirements, the usual requirements, mind, for establishing the existence of a dispute in these circumstances. Otherwise, the claim remains floating in the ether as a potential claim of all against all, until the moment when an unprepared respondent suddenly receives unheralded application. Nicaragua fails to establish the existence of a dispute between itself and Germany at the critical time of the filing of the application, even based on the test that Nicaragua itself puts forward. And it is quite aware of that. This is evident in Nicaragua's attempt in section D of chapter 2 of its written statement to rely on conduct subsequent to the critical date to shore up a failing case. But none of this can help Nicaragua establish a dispute that it not exist at the critical time, on the 1st of March of 2024. Mr. President, members of the court, Nicaragua fails to pass the bar that it sets for itself even if it sets it lower than the Court has done in its jurisprudence. The truth is that it sent a non-verbal to Germany almost pro forma, in the vaguest possible terms, as it turns out from the case that it eventually submitted, and without waiting for any response. The almost unimaginable complexity of an open-ended set of claims that could be subsumed under its general formulations should have been examined and responded to within a couple of weeks, Nicaragua argues, even when no such issues had been raised with Germany in the past, even when all sorts of claims could be made by all states against all other states in the context of the situation in the occupied Palestinian territory. The correct position is that no dispute existed between Nicaragua and Germany at the time of Nicaragua's secession of the court with respect to any of the Nicaraguan claims as they appear in its submissions 1 to 10 in the memorial. Mr. President, members of the court, thank you for your kind attention. May I now ask, Mr. President, that you give the floor to Professor Christian Tams, who will speak to Germany's second preliminary objection, unless, of course, the Court considers this to be an appropriate moment for a short coffee break. Thank you.

I thank Professor Danakopoulos. Before I give the floor to the next speaker, the Court will indeed observe a break of ten minutes. The sitting is adjourned. Read the city. The sitting is resumed. I will now give the floor to Professor Christian Thomsen. You have the floor, sir.

Mr. President, members of the court, It is an honor to address you on behalf of Germany. I will be developing Germany's argument that even if there was a dispute, as alleged by Nicaragua, a majority of Nicaragua's claims would fall outside the court's jurisdiction. I will first deal with limits to the court's jurisdiction under the two states' respective optional clause declarations. Following that, I will move on to discuss particular problems with respect to Nicaragua's racial discrimination claim in Article 22 of the CERD. In the overview document, which we have submitted as tab 3, these matters are referred to as preliminary objection 2a and 2b, respectively. Mr. President, Germany recognized the Court's jurisdiction under the Optional Clause on 30th of April 2008. As many other states, Germany took great care to specify what disputes would be covered by its declaration. You have the full text of the relevant declaration at tab 9 of the Judges' folder. Its first paragraph you see on the slide. And I draw your attention to the highlighted passage at the end, which determines the temporal scope of the Court's jurisdiction. As you read, the Court's jurisdiction is limited to, and I quote, "disputes arising after the present declaration", that is 30th of April 2008, "with regard to situations or facts subsequent to this date", end of quote. This temporal limitation is highly relevant in this instance. Central claims put forward by Nicaragua do not relate to situations of facts subsequent to 30th of April 2008. And specifically, this is true for Nicaragua's claims set out in submissions four through to nine. That is its claims relating to common article one and general international law, to self-determination, to non-recognition and non-assistance, and to racial discrimination. Mr. President, the Court is very familiar with limitations to the temporal scope of its jurisdiction, which feature in the declarations of many States. The formula used by Germany has been referred to as a double exclusion clause, a double exclusion that precludes the litigation of, first, disputes that arose before a critical date, and that is in our case the 30th of April 2008, and second, of later disputes that relate to situations or facts predating the critical date. And it is the second prong of this double exclusion that is relevant here. The Court's jurisprudence provides guidance on the proper interpretation of double exclusion clauses. The parties' written pleadings reflect this, and they provide some common ground. I make three points. First, Nicaragua and Germany both draw on the Phosphates in Morocco case, in which the Permanent Court clarified the rationale of such relevant temporal limitations. By including such a clause, the Permanent Court clarified a state France and the phosphates case, and the same applies to Germany here, makes clear its intention, and I quote the Permanent Court, "only to submit to the court's jurisdiction disputes having actually arisen from situations or facts that took place after the critical date." Second, both parties accept that when applying this limitation, the critical issue, as this court put it in the certain property judgment, is the date of the facts or situation in relation to which the dispute arose." End of quote. And third, in addressing this critical issue, the Court and its predecessor have focused on the real cause or the source of a dispute. As this Court put it in the Rite of Passage case, and I quote, "The facts or situations to which regard must be had are only those, only those, which must be considered as being the source of the dispute, those which are its real cause." End of quote. Now, as Nicaragua notes, this focus on the real cause or the source implies that a dispute can be entertained if earlier facts and situations are merely the backdrop or part of the broader context, but not the real cause of the dispute. Conversely, as noted in the PhosPhate case, where claims focus on, and I quote, "subsequent factors that either presume the existence or are merely the confirmation or development of earlier situations or facts," end of quote, the double exclusion clause applies and the matter falls outside the Court's jurisdiction. And all this, I believe, is common ground. Where the parties diverge is in the characterization of the matter Nicaragua has put before you, and to this I will now turn to assess whether Nicaragua's claims in this instance relate to situations or facts that predate the critical date, 30th of April 2008. My focus in this is naturally on the claims put forward by Nicaragua in the memorial. or, in the words of the Court, and I quote, "on the subject of the dispute presented by the claimant," end of quote. And seeking to identify the source or the real cause of the dispute presented by Nicaragua, I will consider the very questions that the Court has considered in its jurisprudence. What is the situation which the claimant denounces as unlawful? What is the situation that the claimant has referred to the court and for which it seeks to secure a remedy? Or finally, in the language of the jurisdictional immunities case, what are, and I quote, "the facts advanced by the claimant as showing the failure of the respondent to comply with its obligations." End of quote. Mr. President, Germany has set out its position on these matters in some detail in Chapter 4 of the written preliminary objections. To reiterate the essential point, the claims Nicaragua puts forward in its submissions 4 to 9 relate to facts and situations that predate 30th of April 2008 and therefore cannot be brought on the basis of the Optional Clause declaration. I will deal with these claims in turn, and I begin with Nicaragua's self-determination claim. In line with the Court's approach, I begin by asking what is the dispute that Nicaragua intends to submit to the Court. And on the slide, you see how Nicaragua puts the matter in paragraph 356 of its memorial under the heading "Germany's breaches of its obligations". And you see that Nicaragua begins by referring to its earlier account, which had, and I quote, "described how Germany has concluded a long-term policy of cooperating with and providing a wide range of assistance to Israel up to the present day." End of quote. Now, this is not a mere opening phrase. It is the beginning of a specific claim. Nicaragua accuses Germany of violating the right of self-determination, and I quote again, "by reason of this conduct," end of quote. And it is through this conduct that is the long-term policy that Germany is said to have violated international law and thus incurred responsibility. This is the dispute that Nicaragua intends to bring before the court. Now, this is how Nicaragua, in the very section detailing Germany's alleged breaches of international law, describes the situation which it denounces as unlawful. It seeks to redress, and I quote, "the longstanding violation of the right of self-determination of the Palestinian people," end of quote, a situation which it describes as a "continuous denial," and I quote again, "an illegal situation that spans decades." And it is in this context Nicaragua insists that, and I quote again, "Germany has an obligation to respect the right of the Palestinian people to self-determination," end of quote, which obligation Nicaragua asserts Germany has breached through its long-term policy. So how does Nicaragua seek to substantiate these claims? What "facts", in the language of the Court, does it advance as showing Germany's alleged failure to comply with its obligations? Nicaragua refers to a variety of acts and omissions. Certain of these date from after 30 April 2008, but clearly many do not. Permit me to take you to three examples. More are referred to in Germany's written pleadings. First, arms exports. Nicaragua puts forward a sweeping claim that, and I quote, "By providing Israel with significant military aid and advanced weapons systems, knowing that these could be used in the occupied Palestinian territory, Germany directly undermines the Palestinian right to self-determination." End of quote. A sweeping claim because nothing in the memorial suggests that, according to Nicaragua, Germany's conduct became lawful after 30th of April 2008. Rather, to make good on its claim, Nicaragua points to arms exports that date back to 1999. It lists export licenses since 2003, and all of this, if Nicaragua is to be believed, is unlawful, as it, and I quote again from the memorial, enables the military oppression of the Palestinian people in the occupied Palestinian territory. Now, second, the same sweeping approach characterizes Nicaragua's arguments on specific arms deliveries. Submarines are central to Nicaragua's case. It refers to the delivery, and I quote, of "five Dolphin-class submarines," end of quote. These are, in Nicaragua's words, and I quote again, "particularly significant." Their delivery, says Nicaragua, directly undermined Germany's obligations under international law. But the evidence suggests and indicates that this claim concerns facts from well before 2008. The first three of the five Dolphin submarines mentioned were ordered and approved between 1990 and 1994. They were delivered in 1999 and 2000. A contract for further deliveries, including the purchase of two additional submarines mentioned, was agreed in 2005 to 2006. And all of this, of course, is well before the critical date of 30th of April, 2008. To take a third example, military training and information exchange. According to Nicaragua, through training and information exchange, Germany has, and I quote again, "enabled the military oppression of the Palestinian people." Again, Nicaragua's claim is sweeping, and so are the facts that it relies on to support it. You see them on the slide. Training, as Nicaragua itself notes, began in 1984. It was formalized, as Nicaragua asserts, in an agreement on mutual training from 2008. And the evidence Nicaragua puts forward makes clear that this was an agreement concluded in March 2008, before the critical date. And the same is true for exchanges of staff referred to the end of the passage. Nicaragua's Evidence leaves no doubt. Germany and Israel have been holding army general staff meetings on an annual basis since 1997. This is what Nicaragua's evidence tells us. And, Mr. President, all these statements come directly from Nicaragua's memorial. Contrary to what Nicaragua asserts, Germany does not unduly rewrite the dispute submitted by Nicaragua to the court. We are engaging with Nicaragua's claims set out in the memorial, in the very sections that accuse Germany of breaching international law. And the memorial leaves no doubt. The dispute Nicaragua intends to bring before the Court relates to Germany's long-term policy vis-a-vis Israel, in place since well before 2008. It is this long-term policy that, adapting the words of the Court, Nicaragua denounces as unlawful. And in order to establish Germany's alleged failure to comply with its obligations, Nicaragua advances facts, manifold facts, from before 30th of April 2008. And all of this, Mr. President, leads to one inescapable conclusion. The dispute that Nicaragua intends to bring before the court is not one that has actually arisen from situations or facts subsequent to 30th of April 2008. Its real cause, its source, predates that critical date. Mr. President, members of the Court, in its written observations, Nicaragua offers two arguments to suggest that the Court could nonetheless entertain the dispute. The first I can deal with briefly. This is Nicaragua's assertion that its dispute is really related to Germany's actions arising after 30th of April 2008. And everything else, as Nicaragua says, is just part of the historical background or the broader overall context. But this is plainly incorrect. Nicaragua specifically accuses Germany of having breached international law through conduct predating 30th of April 2008. And to give just one example, consider the five Dolphin-class submarines that Nicaragua referred to, approved well before 2008. These are not background. This is not context. This is a central plank of Nicaragua's case. Mr. President, Nicaragua also says that Germany's conduct after 30 April 2008 is separable from what came beforehand, and that it can be assessed, and I quote, "independently of any previous similar conduct by Germany". But this does not help Nicaragua either. In fact, referring to the supposed separability of conduct occurring over decades, Nicaragua ignores the wording of Germany's declaration and the Court's guidance on how the real cause of a dispute is to be identified. Now, Nicaragua is not the first applicant to come to the Court encouraging the Court to focus on later facts and situations which, if looked at in isolation, would fall within the Court's temporal jurisdiction. And this is not the first case in which the Court has had to assess acts of the same nature that took place before and after a critical date. And we suggest that the Court's jurisprudence on the real cause of disputes is precisely meant to address this. The Certain Properties case illustrates the Court's approach very well. As the Court will recall, Liechtenstein in that case had challenged judicial decisions of the 1990s in which German courts had refused to seize for the benefit of Liechtenstein's owner, prior owner, a painting confiscated after World War II. Liechtenstein asked the Court to focus on these later Court decisions, which, if seen in isolation, would have fallen within the Court's temporal jurisdiction. Germany, in the certain property case, by contrast, noted that the later decisions had their basis in Germany's long-standing policy regarding post-World War II confiscations. There was, as Germany noted, in certain property, and I quote, "no change of position," end of quote. And the court decisions that had prompted Liechtenstein to bring the case, and I quote Germany again, "did not depart from prior German case law on the subject," end of quote. The court's response to this debate is instructive, and you see the relevant passage on this slide. The Court, of course, recognized that German court decisions of the 1990s had been rendered after the critical date. But that was not the relevant test. Rather, the Court asked whether, in light of the dispute submitted by Liechtenstein and the facts it had relied on, these later court decisions, and I quote, "departed from a previous position." or whether, in the alternative, and I quote again, "for the first time, they addressed a new situation after the critical date," end of quote. And on both aspects, the answer was no. Germany's conduct, the court found in certain property, was consistent. It began at a time when the court possessed no jurisdiction, and it stretched into the period after the critical date. There was no departure. And even though German courts had never addressed claims relating to Liechtenstein's property prior to the critical date, for German courts to do so in the 1990s did not give rise to a new situation. The dispute Liechtenstein had brought before the court concerned questions that had been addressed before. It had its source, its real cause, in facts and situations that predated the critical date. Mr. President, the implications of the Court's approach in Certain Property for our case are clear. Like Liechtenstein, Nicaragua needs to show that the German conduct it attacks, adapting the words of the Court, either departed from a previous position or for the first time addressed a new situation. But even on Nicaragua's case, that test is not met. In fact, Nicaragua's claim is directed against Germany's long-term policy, against a previous position that Germany has maintained, and that, as Nicaragua expressly asserts, is said to have been in violation of international law before the critical date. So applying the test set out in the Certain Property case, it is clear that to the extent that Nicaragua refers to Germany's actions after 30th of April 2008. These are, in the words used by the Court, "merely the confirmation or development of earlier situations or facts." And so, on the basis of the Court's jurisprudence, the self-determination claim that Nicaragua submitted and to which I have taken you to, falls outside the Court's jurisdiction under the Optional Clause. Mr. President, I turn to Nicaragua's other claims, and I will be much briefer. Much briefer because Nicaragua's submissions follow the pattern of its self-determination claim. Nicaragua seeks to bring before the Court a dispute that it defines in very broad terms. It makes clear that through its claims, it intends to redress a situation that began well before 2008, and to sustain its claims, It advances facts from before 2008 to assert that Germany had violated its obligation. And this is true first for Nicaragua's racial discrimination claim, its ninth submission. It is a sweeping claim. Nicaragua accuses Germany of not having, and I quote, "condemned Israel's racial discrimination, segregation, and apartheid against the Palestinian people, and of supporting and sustaining Israel's regime of discrimination," end of quote. This is not a dispute that relates to developments since 2008. Nicaragua describes it as a situation of racial discrimination and apartheid. to which it says the Palestinian people has been exposed for at least, and I quote, 20 years. As with self-determination, the situation which Nicaragua denounces as unlawful predates the critical date. And as with self-determination, Nicaragua accuses Germany of having violated its obligations through conduct from well before 2008. To illustrate, and you see the quotes on the slide, It refers to Volkswagen's involvement in the supply of vehicles to Israel by MAN, a German company. This, says Nicaragua, is, and I quote, "a telling example of Germany's alleged breaches." MAN trucks, Nicaragua asserts, are used, and I quote, "for maintaining the occupation regime through force," end of quote. and MAN buses and chassis are also supplied, says Nicaragua, to Israel's public transport group, Egged. But the timing for these claims is revealing. Volkswagen acquired shares in MAN in 2006. MAN has delivered trucks and chassis to Israel since the 1960s. These are not new facts in the sense of the Court's prudence, They date from well before 2008. And the same is true of another plank of Nicaragua's racial discrimination claim. That is the delivery, and you see the quote, of naval vessels constructed and delivered by German companies. A clear reference is to the Dolphin-class submarines. Nicaragua describes these, and you see the quote on the slide, as an essential element for the maintenance of racial discrimination, and it says, that Germany's conduct was fundamentally and incontrovertibly incompatible with its obligations. But, Mr. President, as discussed already, the deliveries of five Dolphin-class submarines referred to by Nicaragua was based on contracts from before 30th of April 2008. And as with respect to self-determination, this is not background or context These are the very facts that Nicaragua advances to establish Germany's responsibility, and they clearly predate the critical date. Mr. President, the same applies to Nicaragua's submissions 4 to 6, which relate to common Article 1 and general international law. Here, Nicaragua's case is that Germany has been under a duty to take active measures to ensure Israel's compliance with international humanitarian law for decades. This duty, Nicaragua asserts, was, and I quote, "triggered as soon as Germany knew or should have known of plausible violations of IHL by Israel." And according to Nicaragua, Germany has been under such a duty to ensure respect for IHL since at least 1967. Now, As regards the facts, Nicaragua accuses Germany of having been, what it says, a devoted friend of Israel and of not speaking up against Israel, another sweeping accusation directed against Germany's long-term policy. Nicaragua identifies points in time at which, in its view, Germany was expected to criticise Israel. including, and you see the quote on the slide, in General Assembly debates about the Wall Advisory Opinion in July 2004. And Nicaragua also accuses Germany of permitting German companies to engage in commercial activity in the occupied Palestinian territory and to sustain its claim at points, amongst others, to the conduct of Heidelberg Materials. Specifically, its concern is that Heidelberg Materials has been operating, and I quote, "through its Israeli subsidiary, Hanson Israel, since 2007," end of quote. And this is, again, not background or context. Just as with respect to Volkswagen or MAN or the submarines, the specific claims that Nicaragua advances show that its dispute with Germany is not one that has actually arisen from situations of fact subsequent to the critical date of 30th of April 2008. The parallel with a certain property claim, property case is plain. Mr. President, permit me finally to take you to Nicaragua's claim of non-recognition and non-assistance. We see the same pattern. Nicaragua seeks to redress the situation that it characterizes as one of decade-long unlawfulness. Germany's obligations arise in the face of what Nicaragua calls an ongoing use of force in the form of Israel's 58-year military occupation, end of quote. For 58 years, Nicaragua asserts, the, what it calls, ongoing aggression has engaged legal obligations of third states, including Germany, of non-recognition and non-assistance. The same pattern. And the same pattern, too, as far as Nicaragua's assertion of breach are concerned. You see it on the slide. Nicaragua leaves no doubt. Germany is expressly accused of, and I quote, "active conduct of aiding and assisting Israel for decades in its illegal conduct." End of quote. And again, what is at issue is Germany's long-term policy acts of the same nature occurring over decades that in Nicaragua's argument amount to unlawful support of Israel, as Nicaragua says, "in all areas of life, diplomatic, economic, scientific, cultural, and military." End of quote. Mr. President, members of the court, we have provided further details about Nicaragua's claims other than self-determination in paragraphs 102 to 117 of Germany's preliminary objections. But the illustrations I have taken you to illustrate The pattern. Whether we look at the specific allegations of breach or at Nicaragua's claim that Germany for decades had to take proactive steps to redress breaches of IHL and to condemn racial discrimination, the picture is the same. From the way Nicaragua has presented its claims, it is clear that it perceives the situation as one of decade-long illegality since well before 2008. Nicaragua's claim is that Germany has maintained its long-term policy vis-a-vis Israel, not that it departed from a previous position, to use the words of the Certain Property judgment. And from the specific facts that it relies on to substantiate its claims in submissions 4 to 9, it is clear that these submissions do not have their source or their real cause in facts subsequent to 30th of April 2008. They fall outside the Court's temporal jurisdiction. under the optional clause. Mr. President, members of the court, I move on to what we have referred to in the document at tab 3 of the folder as Germany's preliminary objection 2B. This is a targeted objection, which is directed against the ninth of Nicaragua's submissions, its racial discrimination claim. Now, to establish the Court's jurisdiction over this claim, Nicaragua had initially invoked Article 22 of the Racial Discrimination Convention's CERD. In response to Germany's preliminary objections, Nicaragua later suggested that its racial discrimination claim could, in any event, be brought under the Optional Clause. But both arguments fail. I begin with Article 22 of the CERD, whose text you see on the slide. The court is very familiar with that compromissory clause. In recent decisions, it has clarified the meaning of the key passage of article 22, which is the phrase that disputes can only be submitted to the court, as you see in the highlighted passage, if they are not settled by negotiation or by the procedures expressly provided for in this convention. And this phrase, as you noted in the Georgia-Russia case, and I quote, "establishes preconditions to be fulfilled before the season of the court," end of quote. Prior to initiating proceedings, a claimant must have sought an amicable settlement, either via the specific procedure provided for in Articles 11 to 13, which Nicaragua never pursued, or through negotiations. The Court's jurisprudence also provides clear guidance on how the precondition of prior negotiation is to be construed. Claimants must have made, in the words of the Court, as shown on the slide, a genuine attempt to engage in discussions with the other disputing party with a view to resolving the dispute about racial discrimination. Such negotiations, you have noted, are distinct and they require more than mere protests or disputations. And you have made clear that the claimant needs to show that there has been, and I quote, "a failure of negotiations" or that negotiations have become futile or deadlocked. And all this is well established. Now, it is plain that Nicaragua has made no attempt to settle the alleged dispute over racial discrimination through negotiations. As Professor Tsanakopoulos has shown, at no point before initiating proceedings did Nicaragua raise concerns about questions of racial discrimination with Germany, neither in its non-verbal, sent to a generic e-mail account, nor in its press release. And at no point did Nicaragua bring up concerns about racial discrimination after Germany had eventually received the non-verbal on 13th of February 2024. Now, Nicaragua, of course, is aware of this. It accepts that it made no attempt to negotiate. It says the circumstances did not allow for it as the situation in Gaza in February 2024 was dire. But, Mr. President, it is plainly implausible that the situation on the ground precluded Nicaragua from making, in the words of a court, a genuine attempt to engage in discussions with Germany. Nicaragua could have followed up with a not verbale. It could have initiated discussion. Nicaragua made a choice. It chose to ignore the precondition set out in Article 22 of the CETA. And the upshot of this, Mr. President, is clear, and I can put it in the words used by the court in the case between Georgia and Russia, quote, manifestly In the absence of evidence of a genuine attempt to negotiate, the precondition of negotiation is not met. End of quote. Nicaragua's racial discrimination claim cannot be brought on the basis of Article 22 of the CERD. Mr. President, members of the court, Nicaragua now seeks to bring its racial discrimination claim on the basis of the two states' respective optional clause declarations. But this attempt to circumvent the requirements of Article 22 of the third cannot succeed for two reasons. The first I have mentioned already. Nicaragua's racial discrimination claim falls outside the court's temporal jurisdiction under Germany's optional clause. But there's a second reason, and it is derived from paragraph one of Germany's optional clause declaration, which you see on the slide. And you see that Germany excludes from the jurisdiction of the court, and I quote, "any disputes which the parties thereto have agreed or shall agree to have recourse to some other method of dispute settlement, or which is subject to another method of peaceful settlement chosen by all the parties," end of quote. Now, this passage contains a special agreement reservation, common feature of optional clause declarations submitted under Article 36, paragraph 2 of the Court Statute. The rationale of this reservation is not in doubt. Like many other States, Germany seeks to ensure that special regimes of dispute resolution, with their tailor-made preconditions and requirements, are not circumvented. Put simply, State claimants cannot ignore these preconditions and bring materially the same claim under the optional clause. Yet this is precisely what Nicaragua seeks to do. Adapting the terms of the German declaration, Nicaragua's racial discrimination claim, developed on the basis of Article 3 of the CERN, is subject to another method of dispute settlement. That is, dispute settlement under Article 22 of the CERN. A method of dispute settlement that Nicaragua expressly evokes in the present case. In the words used by Germany in the special agreement reservation, Germany and Nicaragua have chosen to accept dispute settlement under Article 22 CERD when they became bound by the convention in 1969 and 1978, respectively. And dispute settlement under Article 22 of the CERD is, in the words used in the reservation, another method of dispute settlement because it envisages various forms of amicable dispute resolution and makes recourse to them a precondition before this Court can be seized. Now, in its written statement, Nicaragua suggests that giving effect to Germany's special agreement reservation would result in what it calls an endless loop, because Article 22 leaves room for the disputants to agree on another method of dispute settlement as well. But this, Mr. President, is a smokescreen. Germany's position does not lead into loops. let alone endless ones. We are not concerned here with the interpretation of article 22 of the CERD. The clause on its express terms presupposes the existence of a dispute about racial discrimination, which the disputants could then, in the course of subsequent negotiations, agree to submit to an alternative mode of settlement. But none of this is remotely relevant here. if only because Nicaragua never raised questions of racial discrimination before initiating proceedings. Germany simply asked the Court to give effect to a perfectly meaningful reservation, a reservation that is intended to streamline the Court's jurisdiction under different titles of jurisdiction. And that ensures that the parties' insistence on prior negotiations, an eminently sensible precondition consciously included in Article 22 of the CERD, cannot simply be circumvented. Mr. President, Members of the Court, this concludes my presentation on the temporal scope of the Court's jurisdiction under the parties' respective optional clause declarations and on the problems facing Nicaragua's claim relating to racial discrimination. I thank you for your kind attention. And I will ask you now, Mr. President, to call upon Mr. Samuel Wordsworth to continue Germany's first round presentation.

I thank Professor Tams for his statement. I now invite Mr. Samuel Wordsworth to take the floor. You have the floor, sir.

Mr. President, Members of the Court. It is a privilege to appear before you and to have been asked by Germany to develop its position that the Court should not exercise jurisdiction because Nicaragua's claims require the Court to adjudicate upon the lawfulness of Israel's conduct, despite the absence of its consent or participation. There are three key issues. The first concerns the precise contours of the monetary gold principle. Here, there is some agreement, because Nicaragua has to accept that the Court has consistently found that it will not exercise its jurisdiction where the legal interests of an absent and non-consenting state would not only be affected by a decision but would form the very subject matter of the decision. or to use the court's formulation of the test from the East Timor case, where the court would necessarily have to rule upon the lawfulness of the absent state's conduct as a prerequisite for deciding on the claimant state's contention that the respondent state violated its obligation. The second issue and this is probably the key point of difference between the parties, is whether the monetary gold principle is engaged in the current case, that is, whether the Court would necessarily have to rule upon the lawfulness of Israel's conduct as a prerequisite for deciding on Nicaragua's claims of breach by Germany, such that the legal interests of Israel would form the very subject matter of the case. The third issue, which is of wide systemic importance, is whether the monetary gold principle can be bypassed to the extent of the factual determinations and legal characterisations made by the court in the exercise of its advisory jurisdiction. in particular in its 2024 opinion on the policies and practices of Israel in the occupied Palestinian territory. On Nicaragua's argument, an advisory opinion can be used as a stepping stone to a judgment in a contentious proceeding, even though the very subject matter of that judgment is the state responsibility of a non-consenting party. In Germany's view, that would be radically inconsistent with Article 36 of the Court's statute and also many decades of the Court's jurisprudence in both contentious and advisory cases. I turn then to the contours of the monetary gold principle, and there are five short points to make. It's useful to start with the Court's 2023 judgment in the Guyana and Venezuela case. As you can see, the Court is recalling at paragraph 60 its past consideration of whether a state that is not party to the proceedings before it should be deemed to be an indispensable third party, without the consent of which the Court cannot adjudicate, with the relevant principle then being set out by reference to the Monetary Gold and East Timor cases. Thus, quoting East Timor, the Court recalls at paragraph 62 its conclusion that it could not exercise its jurisdiction because, in order to decide the claims of Portugal, it would have to rule as a prerequisite on the lawfulness of Indonesia's conduct in the absence of that state's consent. And moving on, the court then explained at paragraph 60 that an objection that a third state is an indispensable third party, without the consent of which the court cannot adjudicate, goes to the exercise rather than the existence of jurisdiction. With further clarification then following, this is how the monetary gold principle operates. That term the principle being expressly defined. I will make five short points. First, in its written statement, Nicaragua contends that the court has rejected the existence of a rule on indispensable third parties. That is obviously incorrect. Nicaragua refers to the 1984 judgment in Military and Paramilitary Activities But there, the court was specifically rejecting the existence of the indispensable parties rule of the kind argued for by the United States, which was extremely broad and purported to rely on the self-defense rights of neighboring states. By contrast, the court in that case expressly referenced monetary gold, finding that this probably represented the limits of its power not to exercise jurisdiction. In a related attempt to call into doubt the existence of the monetary gold principle, Nicaragua characterizes this as a so-called or alleged principle. Yet the established existence and legal effect of the monetary gold principle could not be more clear. As you've just seen, the court has even taken the trouble to define the principle by reference to its past jurisprudence. Second, and following from this, the legal test for when the principle applies is very well established. The question asked in Monetary Gold was whether the legal interests of Albania in the contested gold formed the very subject matter of the decision. The answer is yes, because, as the Court subsequently explained in the Nauru case, the determination of Albania's responsibility was a prerequisite for a decision to be taken on Italy's claim. So, borrowing the formula from East Timor that the Court has set out in Guyana and Venezuela, the question now for the Court is whether, in order to decide the claims of Nicaragua, it would have to rule as a prerequisite on the lawfulness of Israel's conduct in the absence of that state's consent. My third point is that this is actually a reasonably straightforward test to apply. It does not require, as Nicaragua suggests, recourse to this distinction that the court made in the completely different context of the Barcelona Traction case between a right infringed and a mere interest affected. There, of course, the court was concerned with the distinction between the rights of a shareholder and the mere interest of the shareholders with respect to acts infringing only the rights of the company. Of course, that distinction is a complete irrelevance when it comes to monetary gold. Here, the relevant distinction is between, one, a claim where the legal interests of the third state form the very subject matter of the decision, That is, the claim requires the court to rule as a prerequisite on the lawfulness of an absent state's conduct, and two, a claim which merely allows for inferences or implications as to the legal position of third states. And that second possibility was illustrated by Nauru. where the court held that it was not sufficient that its finding of breach by Australia of the 1947 trusteeship agreement might have implications for the legal situation of the two other states parties that made-up the relevant administering authority, New Zealand and the United Kingdom. As the court explained, the question was whether a finding of the responsibility of those two states was, as a matter of logic, a necessary step to finding responsibility on the part of Australia. And the answer was no. The issue of Australia's breach of the trusteeship agreement was a free-standing question. There was nothing under the agreement that debarred the court from considering a claim of breach by Australia in isolation. So in the current case, the key question is whether, in order to establish that Germany has breached an obligation incumbent on it, for example, by failing to prevent or being complicit in genocide, whether the court would first have to decide that Israel has committed an act of genocide. I'll return to this very shortly, but the answer is yes, the court would have to decide that issue. My fourth initial point There is no basis for adding, as Nicaragua seeks to add, a further requirement that the legal interests of the third state be identical or similar to those of the respondent state. According to Nicaragua, the Monetary Gold case turned on there being a competing claim to the same gold. And similarly, it says that in East Timor, The key point concerned which of two competing states could enter into a given treaty, Portugal or the absent Indonesia. Yet there is no suggestion of this further requirement in any of the cases, and there is no reason for a consent-based principle such as monetary gold suddenly becoming inapplicable in a case involving, for example, obligations of prevention or differing forms of ancillary liability. Indeed, in its commentary to Article 16 of the 2001 Articles on State Responsibility, the ILC expressly recognised that the monetary gold principle may well apply to cases under Article 16, since it is of the essence of the responsibility of the aiding or assisting state that the aided or assisted state itself committed an internationally wrongful act. The commentary notes that the monetary gold principle is not all-embracing and may not be a barrier to judicial proceedings in every case, which must be correct. because a third state may have consented to the Court's adjudication. However, there is no consent from the third state in the current case. Fifth and finally, on the contours of the monetary gold principle, Nicaragua says that the application of the principle is quite exceptional. But that is pure assertion and does not form part of the relevant test. The principle is either engaged by a claim or it is not. Nicaragua says that there are various cases in which the court has found that the principle is not engaged, but that is not remotely surprising. Cases such as Nauru simply demonstrate how the monetary gold principle is not engaged where the court does not have to rule, as a prerequisite, on the lawfulness of the absent state's conduct. The same applies to the other cases that Nicaragua refers to in this context. Indeed, in military and paramilitary activities, as the judgment records, it was Nicaragua's express position that its application did not put in issue the right of a third state to receive military assistance from the United States. the respondent state in that case, of course. By contrast, here, the central pillar of Nicaragua's claim is its challenge to the right of Israel to receive military assistance from Germany, the respondent state now before you. As the DRC and Uganda, as the Court explained, It did not have to decide on any alleged responsibility of Rwanda as a necessary stepping stone to finding responsibility on the part of Uganda. And the same was true in the Interim Accord case. The Court was able to assess the alleged wrongful conduct of Greece independently of NATO's decision on the candidacy of what is now North Macedonia. As the Court explained, the applicant was challenging Greece's conduct in the period prior to the taking of any NATO decision and not the decision itself. And hence, the conduct of third states or of NATO was not called into question. I turn then to the application of the monetary gold principle to the current case. and I start with Nicaragua's submissions one to three alleging breach of the genocide convention and it is to be emphasized up front that these three claims are not formulated so as to depend upon or relate in any way to the outcome of the genocide claims in the South Africa and Israel case at submission one of its Memorial Nicaragua seeks a declaration from the Court that Germany has breached and continues to breach its obligations under the Genocide Convention, in particular the obligations provided in Article 1, by, with full knowledge of the situation, failing to prevent the ongoing genocide against the Palestinian people, in particular Palestinians in the Gaza Strip. At submissions 2 and 3, it then brings closely related claims of breach of Article 1 through Germany's provision of military aid to Israel and of Article 3E concerning Germany's alleged complicity, both in the commission of genocide by Israel. As to the first of these three submissions, the Court's jurisprudence on Articles 1 and 3 could not be more clear. As this Court explained in the Bosnian genocide case, a state can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the prohibited act Genocide, or any of the other acts listed in article 3 of the convention, which of course would include complicity, begins that the breach of an obligation of prevention occurs. There is then a reference to article 14.3 of the ILC articles on state responsibility. The court then explains This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences. That would be absurd, since the whole point of the obligation is to prevent or attempt to prevent the occurrence of the act. But as it emphasizes in conclusion to this paragraph, if neither genocide nor any of the other acts listed in Article 3 of the Convention are ultimately carried out, in a state that omitted to act when it could have done so, cannot be held responsible a posteriori, since the event did not happen, which under the rule set out above must occur for there to be a violation of the obligation to prevent. And that is the Court's carefully reasoned conclusion by reference to the nature of the obligation of prevention and Article 14 of the ILC Articles on State Responsibility, subsequently confirmed by the Court in the Croatian genocide case. A finding of failure to prevent genocide is dependent on the existence of a prior finding that a genocide has indeed taken place. There is no such finding in the current case. In order for Germany to be found responsible for any failure to prevent or for complicity in genocide, the Court would have first to find that there has been a genocide. Thus, for the purposes of monetary gold, the Court would indeed have to find the commission of a genocide by Israel as a prior and necessary step to finding a breach by Germany. Nicaragua has no serious answer to that. It says three things. First, it says that there is a question as to whether the obligation to prevent genocide has been triggered, referring to the knowledge of serious risk threshold from the Bosnian genocide. That is to sidestep the actual nature of the claim that Nicaragua has brought, which is for breach of the article 1 obligation of prevention, not a preliminary declaration as to whether the obligation is engaged or not. Second, Nicaragua invites the court to make an important contribution by establishing that article 1 can be breached where there is a failure to exercise due diligence and to take appropriate measures, regardless of whether or not the crime of genocide actually occurs. And that, of course, is just a thinly disguised invitation for the court to depart from its existing jurisprudence in Bosnian genocide and, of course, the Croatian genocide case. Third, this time relying on Bosnian genocide, Nicaragua argues that the Court could just decide that certain individuals and groups have committed a genocide in Gaza and that there is no need to find state responsibility on the part of Israel. It says that the Court only needs to note that these crimes occurred, while the commission of genocidal acts is well documented. But that, of course, still requires the Court to make findings of genocide, as in the Bosnian genocide case. And there, of course, there was no third state involved, so the current issue did not arise. The genocide alleged was conducted by an entity, the Bosnian Serb army, whose acts could not be attributed to Serbia or any other state. Here, by contrast, Nicaragua alleges breach by Germany with respect specifically to the commission of genocide by Israel, as follows from multiple references in Nicaragua's application and memorial and the express terms of Nicaragua's submissions that you've just seen up on the screen. It is by supplying military equipment to Israel, and not to any other actor, that Nicaragua alleges that Germany is breaching its obligation of prevention. Likewise, the evidence that Nicaragua deploys purports to show the commission of a genocide by Israel, not by any other party. reality is that Nicaragua's case requires the Court to find as a necessary first step that there has been a genocide in Gaza. And no such finding could be made in isolation from the question of who has committed the alleged genocide, including who has the requisite genocidal intent, as to which the only alleged perpetrator is Israel. As a separate point, it may also be that Nicaragua is seeking to rely on some supposed distinction between a determination that there has been commission of a genocide by Israel and a determination of Israel's state responsibility. If so, that could make no sense. As article 1 of the ILC articles on state responsibility recognises, every internationally wrongful act of a state entails the international responsibility of that state. There is no relevant distinction in the current context And consistent with this, the Court has found without distinction that the monetary gold principle applies where it has to rule as a prerequisite on the lawfulness of an absent state's conduct or on the responsibility of the absent state. So this all goes nowhere. Nicaragua similarly has no answer when it comes to its claims of aiding genocide and complicity, its submissions numbers two and three. The customary law obligation not to aid or assist is of course reflected in article 16 of the ILC articles on state responsibility, as to which it is well established that there cannot be a breach unless the internationally wrongful act is actually committed by the aided or assisted state. The same requirement applies for a claim of complicity contrary to article 3 of the Genocide Convention, as was explained by the Court in the Bosnian genocide case. It follows that so far as concerns each of the three genocide claims in the current case, the monetary goal principle applies. The determination of each claim requires the Court to adjudicate on the alleged genocide by Israel, and Israel's rights and obligations would thus constitute the very subject matter of the judgment sought by Nicaragua. I turn to Nicaragua's submissions 4 to 6, alleging Germany's breach of an obligation to ensure respect by Israel of Israel's obligations under the fourth Geneva convention and customary international humanitarian law, as well as related breaches of aiding and assisting Israel's breaches of the convention and international humanitarian law. This claim is brought by reference to article 1 of the fourth convention, as well as an analogous obligation said to exist as a matter of customary law. The nature and content of commonal article 1 of the 1949 conventions is, as the court will be well aware, a controversial matter. However, for the purposes of the current case on inadmissibility, Germany has been willing to assume that Nicaragua is correct in its characterisation that article 1 entails, first, a positive obligation to exert influence on parties to an armed conflict to observe international humanitarian law, and second, a negative obligation not to encourage or aid violations of IHL by another state, such as Israel, that is engaged in an armed conflict. Germany's point is that the Article 1 obligation to ensure respect, that is, an obligation to ensure another state's compliance, is, so far as is now relevant, equivalent to an obligation to prevent that state's non-compliance. They are two sides of the same coin. Hence, the court's approach in the Bosnian genocide case, derived from Article 14 of the ILC Articles on State Responsibility, applies equally here. the same basic question arises. How can it be said that state A has failed to ensure compliance by state B, unless as a matter of fact, there was non-compliance? If there was compliance, how can it be said that there was a failure to ensure compliance? To a significant extent, this is common ground. In Nicaragua's written statement, it is said in terms that Nicaragua does not dispute that the obligation to ensure respect may be partly analysed as an obligation of prevention. However, Nicaragua also contends that the obligation to ensure respect also includes a negative dimension which is more far-reaching than an obligation to prevent. Quoting from the 2020 ICRC commentary, it contends that this additional dimension implies that the high contracting parties must abstain from certain conduct. In particular, they may neither encourage nor aid or assist in violation of the convention. Germany makes three points in response. First, for good reason, Nicaragua has not pleaded out a case that Germany has encouraged Israel to breach the Fourth Convention or customary rules of IHL. There is no analogy to the Nicaragua and USA case where the Court found that the USA was responsible for encouraging a breach of common article 3 through the publication of a CIA manual of psychological operations that the Court found encouraged the commission of acts contrary to international law. The facts here are completely different, and that case does not assist. Second, The essential reference point for any obligation not to aid or assist, including if that obligation forms part of common article 1, is article 16 of the ILC articles on state responsibility. And as already noted, there cannot be a breach of aiding or assistance under article 16 unless the internationally wrongful act is actually committed by the aided or assisted state. The monetary gold principle is squarely engaged where, as here, the consent of the allegedly aided or assisted state is lacking. Third, in an apparent riposte to this, Nicaragua refers to a passage from the 2025 ICRC commentary to the Fourth Convention. which seeks to distinguish aiding and assisting under article 1 from the rule under article 16 of the ILC articles on the basis that the former is concerned with primary liability as opposed to derivative responsibility for complicity. That interpretation is not supported by any widespread state practice and appears inconsistent with Article 31 of the Vienna Convention. But in any event, as the Court can see, and this is eight lines down in the paragraph before you, the specific point of distinction put forward by the ICRC is that under Article 1, and in contrast to Article 16, There is no requirement that the aiding state have intended to facilitate the occurrence of the wrongful act. The ICRC commentary is not saying that it would be possible for an international court or tribunal to find a failure to ensure respect in the abstract without identifying whether there was indeed an actual failure to respect in the first place. And it would be surprising if it were otherwise. The characterization of common article one as a primary obligation of due diligence and not as a prohibition of complicity could not somehow change the logical and legal requirement in this context of finding the third state's breach of international law in order to determine whether the respondent state had violated a due diligence obligation to ensure that there would be no breach. Nicaragua appears to argue that the Tehran hostages case may suggest otherwise, and it relies on the court's conclusion there that Iran had failed to take appropriate steps to protect the US mission. It's not understood how this helps Nicaragua. In Tehran hostages, there was no question of ensuring the compliance by an absent third state of its obligations. There was no question as to whether the militants had indeed wrongfully entered the US embassy. And hence, there was no difficulty in establishing that Iran had breached its obligation to take all appropriate steps to protect the premises of the mission against any intrusion or damage. In its conclusion on common article 1 and general international humanitarian law, Nicaragua alleges that Germany is invoking monetary gold to escape its responsibility for not preventing gross violations of obligations deriving from international humanitarian law. That is regrettable, but it also demonstrates Germany's point. Nicaragua not only recognizes here that common article one is for relevant purposes analogous to an obligation to prevent. It also makes an assertion as to gross violations of obligations under IHL. That is gross violations by Israel. and the Court cannot decide on whether or not that is a valid assertion in the absence of the party portrayed as responsible for the gross violations. Finally, Nicaragua contends in its submission 7 that Germany has breached its conventional and customary law obligations by providing aid and particularly military equipment, to Israel that is used to deny the right of self-determination of the Palestinian people. It alleges a similar breach of submission 9 with respect to alleged unlawful assistance to what is described as Israel's commission of racial discrimination, segregation and apartheid. It appears obvious that all this is predicated on a prior determination of the relevant wrongful conduct by Israel, just as breach by Indonesia of the right to self-determination was a necessary prior step in the East Timor case, but not a permissible step in the absence of the non-consenting party, Indonesia. The same point applies to submission 8, that is Nicaragua's allegation of breach by Germany of an obligation of non-recognition under Article 41 of the ILC's Articles on State Responsibility. A finding of any breach by Germany is dependent on the existence of a prior and serious breach by Israel. This leads to the third of the issues on application of the monetary gold principle, which is Nicaragua's attempt to bypass the principle through reliance on determinations that the Court has made in its advisory jurisdiction. On Nicaragua's case, even though the very subject matter of a contentious case is the state responsibility of a non-consenting party, the Court can still make findings concerning that absent state by reference to determinations made in past advisory opinions. Nicaragua refers to all three of the Court's advisory opinions concerning Israel, but with a particular focus on your 2024 opinion concerning policies and practices of Israel in the occupied Palestinian territory. However, as the Court expressed very clearly in that case, The 2024 opinion is not concerned with the conduct of Israel in Gaza following 7 October 2023. It follows that, at best, findings made in the exercise of the Court's advisory opinion jurisdiction could offer only a very partial answer to the application of monetary gold in the present case. But there are, in any event, two interrelated reasons why such findings provide no answer at all. And Germany emphasizes the very real systemic importance of maintaining a clear boundary between the exercise of the court's contentious and advisory jurisdictions. First, as to the exercise of its contentious jurisdiction, consent is, of course, essential. The monetary gold principle is merely one reflection of that. It is precisely because there is no requirement of consent in the context of an advisory opinion that the court has far greater freedom, including where it makes findings on matters that could also be seen as highly contentious aspects of a bilateral dispute. such as in the wall or Chagos cases, to take two well-known examples. But it is very problematic if findings that are made because the opinion is only of an advisory character can then be deployed to defeat the absence of otherwise necessary consent in a contentious proceeding. The opinion is then no longer only of an advisory character, but is instead a source of findings that both enable and acquire binding effect in a contentious case. That would be both contradictory and destabilising. Second, and consistent with its past practice, in the opinion of 2024 concerning the occupied Palestinian territory, the Court indicated that as to disputed facts, its concern was only that it had sufficient information for the specific purposes of giving the requested opinion. As the Court explained, in these advisory opinion proceedings, The Court considers that in its request, the General Assembly has not sought from the Court a detailed factual determination of Israel's policies and practices. The object of the questions posed by the General Assembly to the Court is the legal characterization by the Court of Israel's policies and practices. Therefore, in order to give an advisory opinion in this case, it is not necessary for the Court to make findings of fact with regard to specific incidents allegedly in violation of international law. The Court need only establish the main features of Israel's policies and practices, and on that basis, assess the conformity of these policies and practices with international law. So the Court was only looking at the broad picture. It was expressly not looking at specific incidents as to which it could be said, for example, that the use made by Israel of a given weapon allegedly licensed by Germany was in breach of some specific provision of the Fourth Geneva Convention. Further, in contrast to a contentious case with all parties present, the court did not hear a full account of the facts from the state alleged to be in breach of international law and did not have the benefit of hearing the evidence before it being tested, including through cross-examination. None of that need be an issue where the court exercises its advisory jurisdiction. but it becomes very problematic if findings in that specific context are going to be applied in contentious proceedings with respect to an absent party whose alleged wrongdoing is the very subject matter of the contentious case. Consistent with that, in its 2025 UNRWA opinion, the Court emphasised that it was not to be understood as prejudging matters of fact or law that will be determined in the South Africa and Israel case or other contentious cases, recalling that the parties to pending contentious proceedings will have the opportunity to present evidence and arguments on questions of fact and law on the basis of which the Court will decide in those proceedings. By contrast, on Nicaragua's approach, there would be no such opportunity for Israel to respond in this case to allegations of genocide and serious breaches of other fundamental norms. And yet somehow that is thought not to matter. Nicaragua relies on the controversial decision of a special chamber of ITLOS in the Mauritius and Maldives case for the proposition that judicial determinations of the International Court of Justice made in advisory opinions carry no less weight and authority than those in judgments because they are made with the same rigor and scrutiny by the principal judicial organ of the United Nations with competence in matters of international law. But it is very important to recognise that in its advisory and contentious cases, the court is exercising different competences for different purposes, and as is entirely appropriate, different processes are followed. That would appear undeniable. Nicaragua also seeks to make something of Germany's vote in the UN General Assembly endorsing the 2024 advisory opinion and calling upon all states to comply, and likewise of a statement by Germany's representative that Germany would act in line with the obligations of international law set out in the opinion. It also refers to statements that Germany has made on the illegality of settlement construction in the occupied territory. Yet the monetary gold principle is concerned with the consent of the absent third state. Germany's position and views with respect to that absent third state cannot somehow fill that gap. It is not for Germany to seek to anticipate, oppose or adopt whatever position Israel might take in respect of the allegations of Israeli wrongdoing that Nicaragua makes. Germany merely emphasises the existence of those allegations of Israeli wrongdoing and considers that the Court would have to rule on these as a prerequisite in order to decide Nicaragua's claims against Germany. Finally, I note that Nicaragua also wishes to rely on findings, in particular on imminent risk and plausibility of rights, that were made in the context of the South Africa and Israel provisional measures proceedings, as if these could be sufficient to ground its claims. But the current claims, which aim to establish unlawful conduct on the part of Germany and Israel could in no way be based on findings that merely go to the existence of a risk or of plausible rights. The court's findings in the South Africa case served a different purpose in a different case and could not be used to circumvent the need for the consent of the absent state in the current case. Mr. President, Members of the Court, that concludes my presentation and, indeed, Germany's opening submissions, and we thank you very much for your attention.

I thank Mr. Wordsworth, whose statement brings to an end today's sitting. Oral argument on the preliminary objections raised by Germany will resume at 10:00 a.m. tomorrow, Tuesday, the 8th of September 2026 for Nicaragua's first round of oral argument. The sitting is closed.

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