Taking the Road Less Travelled: The ICJ’s Pragmatic Approach to Provisional Measures in Nicaragua v Germany

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When President Salam announced the ICJ’s decision not to indicate provisional measures against Germany as requested by Nicaragua on Tuesday, the legal advisers of States lending support to the warring parties in Gaza were probably closely listening. As we argue in this post, the ICJ was acutely aware of the implications any decision would have for other States. This awareness may have driven the Court down the road less travelled by framing its decision outside its established framework to assess provisional measures, with a peculiarly framed operative part (dispositif). We will, first, look at the Court’s reasoning – or rather, the lack thereof – for refraining from indicating provisional measures. Secondly, we will look more closely at the operating part of the order to try and make sense of the wording of the dispositif. Thirdly, we will close by drawing out some broader implications of the Court’s decision. Even though the ICJ did not indicate provisional measures against Germany, the Court’s order seems to give States’ supporting warring parties little reason to relax. On the contrary, the Court’s pragmatic, fact-driven approach to reasoning and dispositif leaves room for the Court to react flexibly to changing or varying circumstances, perhaps even at its own initiative.

In essence, Nicaragua requested the Court to indicate several provisional measures, inter alia prohibiting Germany from supplying further support to Israel and enjoining Germany to resume its financial support for UNRWA (Order, para. 11). The Court did not indicate these – or other measures, as it found ‘that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.’

One peculiarity of this order is the ‘unusual’ approach of the Court in reaching this conclusion, as Mike Becker has pointed out over at the Verfassungsblog in an insightful first analysis of the order and the opinions and declarations of individual judges. The Court begins its legal reasoning in para. 13 by recalling its power under Article 41 of the Statute to indicate provisional measures to preserve the parties rights ’if it considers that circumstances so require’. One would now have expected the Court to assess the circumstances of the case against the conditions the Court has established in its jurisprudence for indicating provisional measures (namely prima facie jurisdiction, plausibility of the rights whose protection is sought, a sufficient link between these rights and the provisional measures requested, and ‘a real and imminent risk’ of irreparable harm to these rights). One may even have wondered whether the Court would use this case as an opportunity to tighten up its criteria as a reaction to the significantly increasing numbers in which States have made applications for provisional measures lately, as a way to manage its case-load (see also the observation in Judge Sebutinde’s separate opinion, para. 1).

Far from refining its criteria, however, the Court does not even apply the criteria, in fact, it does not even mention them. Instead, the Court takes a purely ‘factual’ approach. That is to say, the bulk of the ‘reasoning’ that the Court provides consists in recapitulating what it considers the key facts as they present themselves to the Court at this stage. The Court seems to place particular weight on the ‘significant decrease since November 2023 in the value of material for which the licences were granted’ and the very limited number of licenses Germany granted for ‘war weapons’ (para. 18), as well as the complex inter-agency process for licensing, which involves ‘by the German Government to ascertain whether there is a clear risk that the particular item subject to licensing would be used in the commission of genocide, crimes against humanity or grave breaches of the four Geneva Conventions’ (para. 17).

Without further reasoning, the Court then finds that ‘[b]ased on the factual information and legal arguments presented by the Parties’ the Court ‘concludes’ that the circumstances did not require indicating provisional measures (para. 20). The Court does not connect that ‘conclusion’ to any specific legal criterion from its jurisprudence. Nor does the Court refer to Germany’s submissions as assurances which could have rendered the request for provisional measures moot (see expressly declaration Tladi, para. 10), although Germany may now find it more difficult to change its position (see Becker).

Individual judges suggest that there was no irreparable risk of prejudice and urgency (declaration Cleveland para. 13, sep. op. Iwasawa para. 13, sep. op. Sebutinde para. 26, which also considers the Court to be lacking prima facie jurisdiction, para. 11); Judge Iwasawa even suggests that it is criterion that the Court’s reasoning ‘appears to be predicated’ on the lack of urgency (sep. op. Iwasawa para. 14). But the Court at no point explicitly says so and following Judge Tladi’s declaration, this was a deliberate choice (para. 5).

We can only speculate whether the members of the Court found it too difficult to agree on which condition was lacking (see also here), perhaps owing to varying understandings of the contours of the conditions (see Mike Becker’s analysis of diverging views on plausibility) and their delineation (see Tladi’s frustration with the ‘confusion about what element fits into which box’). Some disagreement between individual judges comes to the fore regarding whether there is a logical sequence between the criteria. While Judge Iwasawa argues that nothing would have prevented the Court from only addressing the lack of urgency (sep. op. Iwasawa para. 4) – on which there may have been agreement on the bench –, Judge Tladi notes that this condition only comes into play when the Court has prima facie jurisdiction and the infringement of rights is plausible (declaration Tladi para. 8). On Tladi’s account, the Court would have had to take a position on these points – which were potentially more controversial on the bench.

Tladi thus defends the Court’s factual approach as a flexible, pragmatic strategy to avoid getting lost in the intricacies of the conditions it has developed to specify its Article 41 power (declaration Tladi para. 11) and leave the ‘doctrinal housekeeping’ (Haque) for another day. And yet, as Judge Tladi acknowledges, the Court developed these conditions to avoid arbitrariness and ensure ‘some’ coherence in exercising its power to indicate provisional measures. So by failing to engage with these conditions here, and thus essentially failing to give any substantial legal reasoning, the Court inevitably does run the risk of its order being perceived as somewhat arbitrary. Even if Judge Tladi stresses that the Court intended to limit this approach to the facts “in this case” (declaration para. 1), without giving up its established conditions as such, Judge ad-hoc Al-Khasawneh has a point when he stresses the importance of such legal reasoning for the legitimacy of the Court’s decisions (diss. op. para. 1). On this point there is agreement on the opposite end of the bench with Judge Sebutinde’s criticism of the Court’s ‘scanty reasoning’ (sep. op. para. 3).

Just as the Court’s approach to reaching its finding is unusual, so is the wording of the operative part of the order. Departing from its usual practice (see eg Qatar v. UAE), it did not ‘reject’ the request (as Germany asked it to do), but only found ‘that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.’ While Judge Sebutinde fiercely critises this departure, Judge Tladi notes that ‘[t]he Court chose its words in the dispositif very carefully’ (para. 2). One may wonder about the specific legal significance to this wording. Since the Court has neither granted the requested (or indeed any) provisional measures nor rejected Nicaragua’s application, does this mean the request is still pending? If so, one may wonder whether the Court here signals its willingness to indicate provisional measures proprio motu if it deemed the circumstances to have changed (see also Stefan Talmon’s lucid analysis here). At any rate, the Court’s cautiously worded order signals that the Court remains vigilant, as it emphasises its grave concern with the immense human suffering in Gaza (para. 22). Indeed, the Court’s almost exclusive reliance on the factual circumstances as they – momentarily – present themselves to the Court suggests that the Court would be prepared to react flexibly to any change of these circumstances, notably changing patterns in granting export licences. As part of this communicative strategy, the Court explicitly reminds all States of their continuing obligations under Common Article 1 and Article 1 of the Genocide Convention.

Judge Tladi’s declaration makes considerable effort in communicating the Court’s rationale, as he sees it, perhaps also to manage the perception of the order amidst an increasingly critical stance towards support for Israel’s military operations within the international community. Sensitive to that sentiment, the Court seems to stress that its order should not be understood as a carte blanche for military support to Israel. Judge Tladi stresses that, in light of the proceedings, Germany could no longer claim that it was unaware of the risks involved in supporting Israel (para. 1). And the same would apply to other States providing support to Israel (it should be recalled that Nicaragua also notified the UK, Canada, and the Netherlands of its intention to hold them responsible for violating international law by supporting Israel militarily). To them, the Court’s factual approach and its great caution to confine its finding to the circumstances in light of the current German export licencing practice (as presented by Germany) at this very point in time gives limited comfort, as the facts regarding their own support might well differ. By contrast, had the Court found Israel to be an indispensable third party under its Monetary Gold rule and thus considered itself precluded from exercising its jurisdiction over (some or all of) Nicaragua’s claims against Germany already at the provisional stage (pro Sebutinde paras. 15, 17, 18; contra Al-Khasawneh paras. 12-17), this finding would have suggested that the Court would also be barred to exercise its jurisdiction over parallel claims against other States.

The Court underscores its posture of vigilance by reminding States’ of their substantive obligations under international humanitarian law and the Genocide Convention is are not prone to comfort State officials in States supporting warring parties. While the Court leaves open the scope of Common Article 1 by simply recalling its rather broad wording from the Wall opinion (para. 23), Judge Cleveland’s declaration specifies that the scope includes an external positive dimension to ensure respect by other States (paras. 6, 8), as Germany acknowledged in its pleadings. The extent to which other members of the Court share this view remains anyone’s guess, but the Court’s general reference leaves some room for manoeuvre should the case proceed to the merits.

Although Nicaragua failed to convince the Court that the circumstances are such as to require provisional measures against Germany, the case between the two States could continue for years. The Court declined Germany’s request to remove the case from the general list, which would have required the Court to find that it manifestly lacked jurisdiction and stressed that the order ‘in no way prejudges’ questions of jurisdiction and admissibility or the merits of the case (para. 25). Already now, however, the order might hang like a sword of Damocles over States providing military support to Israel.

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Pierre d'Argent says

May 4, 2024

Thanks for this useful comment.

The Order is a sober reminder that cases are won on the facts and that judges wisely do not decide legal issues unless they must. So much for the doctrinal expectations that arose from this filing...

The phrasing of the operative part is not so unusual: see the Order of 12 October 2022 and the Order of 6 July 2023 in the Armenia v. Azerbaijan case. Admittedly, the phrasing concerned each time the absence of circumstances requiring to exercise the Court's power to modify provisional measures previously indicated (rather than the absence of circumstances requiring to exercise the power to indicate provisional measures for the fist time), but the logic is the same.

Regrettably, the Order of 6 July 2023 was taken by Azerbaijan as a green light for the pursuit of its siege of Nagorno-Karabakh, leading to the dramatic events of September 2023 when more than 100.000 ethnic Armenians fled the advancing Azerbaijani army. Since then, the war in Gaza took over in the headlines and Azerbaijan sits on the last Order of 17 November 2023 that was supposed to allow the return to their homeland of the displaced Armenian refugees.

Maybe this led the Court to have second thoughts and be more careful when assessing the change of situation requiring the modification of previously ordered measures in the South Africa v. Israel case.

ICJ PM orders are useful but not panacea. We should not forget that the genocide in Srebrenica occured in July 1995 after the Court indicated pretty clear provisional measures in April 1993 and reaffirmed them five months later. Sure, this was prior to the clarification brought by LaGrand on the binding character of PM, but still...

Nicolas Boeglin says

May 4, 2024

Dear Professors Wentker and Stendel

Many thanks for your extremely interesting post.

May I just indicate a little error in your text:

You wrote:

"Without further reasoning, the Court then finds that ‘[b]ased on the factual information and legal arguments presented by the Parties’ the Court ‘concludes’ that the circumstances did not require indicating provisional measures (para. 20)"

The text of ICJ at Paragraph 20 includes the following words "at present" not quoted:

"20. Based on the factual information and legal arguments presented by the Parties, the Court concludes that, at present, the circumstances are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures."

Source: https://www.icj-cij.org/sites/default/files/case-related/193/193-20240430-ord-01-00-en.pdf

The words "at present" missed can be interpeted as an extremely clear warning to Germany (and others States exporting weapons to ISrael) that another request by Nicaragua could eventually be taken into consideration in the future by ICJ.

Yours sincerely

Nicolas Boeglin

Note: please find a short note on ICJ Order of April 30 that include this and some others points:

https://derechointernacionalcr.blogspot.com/2024/04/nicaragua-vs-alemania-decision-de-la.html

Nicolas Boeglin says

May 13, 2024

Dear Professors Wentker and Stendel

May I add to my previous message this note on recent decision of Colombia (May 2nd) to suspend its diplomatic relations with Israel.

It seems that this Colombia ´s decison has been taken 48 hours after ICJ decision between Nicaragua and Germany.

https://derechointernacionalcr.blogspot.com/2024/05/gaza-israel-colombia-anuncia-suspension.html

ICJ hearings between South Africa and Israel in January (11-12) were also followed by a joint referral from Mexico and Chile to ICC Prosecutor Office a few dys after (see the text available here: https://www.icc-cpi.int/sites/default/files/2024-01/2024-01-18-Referral_Chile__Mexico.pdf).

In other words, ICJ´hearings and decisions are followed by acts taken by some States in Latin America, while in Europe the inaction observed is collective with regards to the unspeakable drama in Gaza.

Yours sincerely

Nicolas Boeglin