Professor Alexander Orakhelashvili
The International Court’s latest Order of 30 April in Nicaragua v Germany has understandably attracted wide public attention and extensive media coverage because of its connection with the Gaza crisis. On the other hand, the Court’s reasoning also points to several things that ought to be noted within the discipline of international law as matters that are relevant well beyond this one single case.
The Court’s rationale
Description of Germany’s involvement in arms supply to Israel forms the central part of the Court’s reasoning and of its decision not to indicate interim measures. The measures are not indicated because, on the evidence presented to the Court, Germany is not doing anything wrong, and hence there is nothing to be prevented and prohibited at this stage of adjudication. The Court seems to adopt here a point of view centred on accountability to the effect that, even if, in the extreme case, it were to be proved later on, at the merits stage, that genocide is indeed committed in Gaza, as of now Germany would have made no part in it.
An alternative viewpoint could be described as the avoidance view, being roughly informed by the thesis that, much as certain things may be wrong and unacceptable, there is no judicial authority available to deal with these matters here and now. This latter attitude or viewpoint could potentially have been upheld through the possible Court’s findings on prima facie jurisdiction, standing, the indispensable party doctrine, or any version of plausibility. Instead, what the Court says in paragraphs 17 to 20 should be taken as an indication that the respondent’s jurisdiction and admissibility objections have not independently prevented the Court’s indication of provisional measures. It is plausible at least to suggest that, as the Court spoke about facts on the ground, it would have indicated interim measures had the facts been different. The avoidance view would suggest that, if the Court could see that Germany is potentially or plainly violating its obligations under the Genocide Convention and IHL, principles of jurisdiction and admissibility would still bar the Court’s involvement. That is, however, a mere and convoluted speculation, while what the Court says in its Order is a fact.
Removal of the case from the General List and the indispensable party doctrine
The Court has refused to remove the case from the Court’s General List. Overall, there is rather high threshold for such decision to be made. In Legality of the Use of Force, the Court did not act on the suggestion that there was its “inherent power” to remove the case from the List or some “inherent limitations” requiring doing the same thing, even though some judges have advocated such “inherent power”. As for reasons that could possibly have led to such removal, the indispensable party doctrine (dealt with rather tersely in Nicaragua’s pleadings), namely its extended East Timor version (elaborated upon earlier), would have been the most feasible or (less impracticable) way to secure the removal of the case from the List. The Court could have said that, given that the extended East Timor version of the indispensable party doctrine enables capturing legal interests of Israel as a third party, even if Nicaragua’s all claims (and consequently Germany’s alleged wrongdoings) were to be proved on merits, the Court would still be unable to exercise its jurisdiction in this case; and that hence its jurisdiction was manifestly lacking. This would have been very different from what the Court did in paragraphs 17 to 20 of its Order. Admittedly, achieving this outcome would still have been a somewhat long shot for Germany, both because the provisional measures stage is not very suitable for interpreting the principles of admissibility and this is more suitably done at the preliminary objections stage, and because the Court would have to be persuaded to make the unprecedented decision to remove the case from the List. Be that as it may, there was no better weapon in Germany’s arsenal to secure that outcome (or even the non-indication of provisional measures had the avoidance view prevailed) and their reliance on the indispensable party doctrine is thus understandable.
The Court’s monitoring role
The Court has said that Germany is bound to abide by its relevant international legal obligations. This is different, for instance, from FRY v Belgium et al. where the Court confirmed, in the abstract, the applicability of underlying but unspecified obligations. Instead, in the Order of 30 April both the substance of obligations (arms trade, IHL, genocide) and their addressee (Germany) are mentioned expressly. The Court thus remains in the monitoring position and Nicaragua would not be prevented from requesting another order from the Court should the situation on the ground change. Also rather importantly, the Order of 30 April does not contain what was said in similar cases in the past (Legality of the Use of Force, or DRC v Rwanda), namely that “there is a fundamental distinction between the question of the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law”. Instead, the Court prioritises here the accountability dimension of the case, not one that focuses on the techniques of avoiding adjudication.
Conclusion
In provisional measures proceedings the Court inevitably deals with uncertainty: factual uncertainty because allegations submitted to it have not been proved yet, and legal uncertainty, because neither the issue of what jurisdictional principles apply nor the relevance of substantive law have been conclusively clarified yet. The Statute requires the Court to act in the face of (or notwithstanding) that uncertainty and there is no way for it to eliminate that uncertainty. But what the Court can always do, and has indeed done in this case, is to choose which of the underlying uncertainties or probabilities should be prioritised to shape its decision.
These are the main implications of the Court’s Order from the viewpoint of international law as a discipline. Practising international lawyers are not invariably or necessarily keen on international justice. Like their domestic counterparts, their priority often is to let the relevant person or entity off the hook rather than improve the degree of (inter)national justice. However, with its Order of 30 April, the Court has sent around a signal that such a state of mind is not always beneficial, because the Court’s priority lies with accountability, not with the avoidance of adjudication.