On Thursday, 10 September 2026, the oral proceedings regarding Germany’s preliminary objections in the Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory (Nicaragua v. Germany) case concluded. The case already has a complicated history. On 1 March 2024 Nicaragua filed its Application, alongside a request for provisional measures. On 30 April 2024 the Court declined to indicate measures, but neither did it find a manifest lack of jurisdiction. A year later, on 1 April 2025, Nicaragua notified the Court it wished to discontinue the case against Germany, but revoked that a week later (it might be worth noting that Nicaragua instead withdrew its Article 62 intervention in the South Africa v. Israel genocide case on 3 April 2025). Germany filed its Preliminary Objections on 21 October 2025.

It is thus perhaps unsurprising that this case has raised some particularly knotty procedural questions. I will attempt to unpack the most important and interesting, which were the focus of the oral proceedings.

The Arguments

Nicaragua’s ten discrete claims against Germany may be broadly bundled into four groups: first, failing to prevent, and being complicit in, genocide against the Palestinian people, through arms supplied to Israel (1-3); second, failing to ensure respect for the Geneva Conventions and customary international humanitarian law (IHL), and providing aid used in their violation (4-6); third, denying the Palestinian right to self-determination and assisting an unlawful occupation, racial discrimination, segregation and apartheid (7-9); and fourth, failing to prosecute war crimes and apartheid (10).

In reply, Germany raises three objections (again, broadly framed). First, that no dispute existed between the parties when Nicaragua filed its Application, so the case is inadmissible. Second, even taking Nicaragua’s alleged dispute at face value, a number of the claims fall outside the temporal scope of Germany’s 2008 optional clause declaration, or Nicaragua failed to fulfil necessary preconditions, depriving the Court of jurisdiction outright. Third, the Monetary Gold admissibility argument (on which much has already been written, see, e.g. here, here and here) that adjudicating the merits of this case would require the Court to rule on the lawfulness of Israel’s conduct without Israel’s participation or consent to jurisdiction.

Objection One: Inadmissible Due to Lack of Dispute

As is well known, the Court’s duty is to resolve disputes between States. As such, the existence of a dispute is a necessary precondition to the Court’s exercise of otherwise apparent jurisdiction. The litigating parties must hold clearly opposite views concerning the question of the performance of international obligations, and the respondent must have been “aware”, or could not have been “unaware”, that such positive opposition existed (for a more detailed consideration of the problems arising from this particular test, see here and here).

On this issue it must be said that at times Germany’s arguments devolved into the excessively formalistic. Nicaragua’s use of a Yahoo email address to send its Note Verbale to the German UN mission’s generic address was considered worth emphasizing despite its obvious triviality. The more substantive concern related to the speed with which proceedings were issued. Only a month (“the shortest month” (CR 2026/32 para. 10)) lapsed between the Note dated 2 February 2024 and the filing of the Application, and for two of those weeks Germany says it had not seen the email. Nevertheless, on 7 February 2024 a Foreign Office spokesperson said Germany was “aware of a press release” issued by Nicaragua restating the contents of its Note, and that “we naturally reject the relevant content of the press release” (CR 2026/30 para. 31).

Unfortunately for Germany, despite its claims that this “would be the first time that the Court would infer positive opposition from a reply to a journalist” (CR 2026/30 para. 33), it would certainly not be the first time that the Court would treat replies to journalists as binding undertakings from the State. Moreover, the general speed of proceedings does not seem to refute the existence of a dispute either; Ukraine’s application against Russia was filed only two days after the commencement of its “special military operation”.

Having said that, one area where Nicaragua may face difficulties is in establishing the existence of a dispute in relation to all its claims. The third and fourth listed above appear nowhere in the Note (save for self-determination) and the Application/Memorial appears to be the first time they were articulated. While the Court may at times adjudicate on ancillary claims, it is not clear that Germany’s alleged assistance to an apartheid regime (for example) is sufficiently related to the more core claims of failure to prevent a genocide such that it could be treated as ancillary. The Court may well find that certain claims were not adequately put to Germany so as to establish positive opposition.

Objection Two: Jurisdictional Limits

Germany’s optional clause declaration of 30 April 2008 covered “all disputes arising after the present declaration, with regard to situations or facts subsequent to this date” and Germany argues that many of Nicaragua’s claims have their “real cause” in Germany’s decades-long arms-export relationship with Israel, rather than in any activities post-dating the critical date. It seems difficult to sustain an argument that military exports form an unremitting monolith of conduct and cannot be parsed out into discrete acts, some of which took place after the critical date. It is worth noting that Judge Charlesworth at the conclusion of the hearings asked Nicaragua to specify, separately for each of the relevant claims 4-9, the situation or fact that is the source or real cause of the dispute (CR 2026/33, p. 38). If Nicaragua can do this, this argument about the critical date will likely become moot.

Separately, however, and at the risk of oversimplification for the sake of the word limit, paragraph (i) of Germany’s 2008 declaration excluded disputes “subject to another method of peaceful settlement chosen by all the Parties”. Germany argues that both States thus chose another method when they joined CERD in 1969 and 1978, respectively, and moreover that Nicaragua never attempted the negotiations demanded by Art. 22 of the CERD.

A sensible reading of Germany’s optional clause declaration would seem to suggest it was directed toward preventing parallel litigation or lis alibi pendens. Nevertheless, Nicaragua does invoke CERD in addition to the optional clause and Art. IX of the Genocide Convention as its basis for jurisdiction. This leads to a question of how the Court should consider competing grounds of jurisdiction, where some impose preconditions to their invocation, but others do not. As noted by the PCIJ in E.L.S.I. (relied upon by Nicaragua), multiple possible bases of jurisdiction suggest that the “Parties intended to open up new ways of access to the Court rather than to close old ways or to allow them to cancel each other out”, suggesting that the Court should proceed on the basis of the broadest possible ground of jurisdiction. The claims relating to racial discrimination and apartheid are not framed as breaches of CERD and could just as well be run exclusively as matters of customary international law. The issue is then what to do about paragraph (i) of Germany’s 2008 declaration. Does it import wholesale the requirements of a quite separate compromissory clause into an optional clause dispute, because there is substantive overlap between the treaty and the customary law? This strikes me as a complete reversal of the Court’s approach to jurisdiction in Military and Paramilitary Activities (again relied on by Nicaragua) insofar as customary law claims can endure a lack of treaty-based jurisdiction.

However, if the racial discrimination claims survive the dispute requirement, they perhaps face a small risk of being dismissed for want of jurisdiction should the Court accept Germany’s interpretation of its optional clause declaration.

Objection Three: Monetary Gold

While Germany’s first and second objections may succeed in relation to some claims (particularly the third and fourth bundles), progression to the merits for the genocide, self-determination, and IHL claims (the first and second bundles, as listed above) ultimately appears to turn on the Court’s interpretation of the parties’ Monetary Gold arguments. Alain Pellet, appearing for Nicaragua, spent much of his appearance trying to curtail Monetary Gold. Indeed, he was described as a “self-confessed Monetary Gold sceptic” by Sam Wordsworth (CR 2026/32, para. 1) which resulted in a reply accusation of Wordsworth being a “Monetary Gold fanatic” (CR 2026/33, para. 1). In its place, Pellet argued for the creation of a “Corfu Principle” – recognising that in Corfu Channel, the Court was able to adjudicate Albania’s responsibility related to the mines despite the fact that Yugoslavia, quite possibly the State that laid them, was absent. The existence of the mines was a fact, regardless of who put them there. Similarly, Pellet contended that Israel’s breaches of IHL could be treated by the Court as facts, established by inter alia the Court’s 2024 Advisory Opinion, and likewise the plausibility of genocide could be treated as a ‘fact’ established by the Court’s orders on provisional measures in South Africa v. Israel. He noted that if, in the end, Israel did not commit genocide, Israel could bring a case against Nicaragua for “slander” (“dénonciation calomnieuse” CR 2026/33 para. 28) a point no doubt inspired by the Ukraine v. Russia case where the Court endorsed the possibility of seeking a negative declaration of compliance with the Genocide Convention.

However, the underlying nature of the obligations owed by Germany is a hurdle which Nicaragua does not appear to have overcome. Germany is not committing genocide or breaches of IHL, it is allegedly failing to prevent it (or is complicit in its commission). Whether or not there has been a failure to prevent something from occurring can only be assessed once the thing in question has unquestionably occurred. If it never happened, how did one fail to prevent it? The Court would have to open the box to know what happened to the cat. While multiple experts have concluded that there is a genocide taking place in Gaza (see e.g. here, here and here) it remains for the Court an open question which it cannot (indeed must not) predetermine. For now, it must keep the box closed.

Conclusion

Will Nicaragua prevail, and the case move forward? It’s not a given by any means, and at least it seems unlikely that all of the claims brought by Nicaragua will continue. Nicaragua’s claims regarding IHL appear to pass all three hurdles raised by Germany. It is indeed possible that the unlawfulness of the Israeli occupation (in general terms) could be treated as an established juridical fact. But it is worth noting the 2024 Advisory Opinion explicitly precludes events taking place after October 7, and thus a large swathe of the conduct against which Germany’s complicity would likely be tested. The case could be narrowed down significantly, perhaps to a question whether Germany was complicit in the commission of IHL breaches in the OPT between 30 April 2008 and 7 October 2023.

On the one hand, this is unfortunate. All States that are parties to the Genocide Convention do have a clear obligation to prevent genocide, and it would be potentially of great benefit for this obligation to be enforceable by way of court proceedings. It would also assist other States, insofar as it would bring some much-needed clarity regarding the scope of the obligation to prevent, and more broadly on the obligations of third States in the face of serious breaches of international obligations. If this case continues to the merits, I would not be surprised to see interventions from other States that currently supply arms or dual-use materials to Israel.

But on the other hand, the Court’s function has never been the general enforcement of international obligations; it is the resolution of the particular disputes properly brought before it. This case may prove to be a careful lesson for prospective litigants regarding the need to take procedure, including notice requirements and the terms of compromissory clauses, seriously and not simply throw matters at the wall to see what sticks.