Prosecuting the Global North Over Gaza Continues, as Germany Faces Genocide Complicity

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North Gaza

To have South Africa haul up Israel in the International Court of Justice was a seismic shift in the manner in which the world order operates, as prior to the Global South nation filing the genocide case against Israel, such Global North nations weren’t usually the subject of atrocity trials.

And the consequences of western allies having lined up beside Israel in support of it, as it unleashed a wholesale massacre upon the 2.3 million Palestinians of Gaza early last October, which has shattered the basic concepts that had prevented such actions in the past, are coming home to roost. 

Right now, another Global South nation, Nicaragua, has a case before the ICJ, which this time charges Germany with complicity in the Israeli genocide upon the population of Gaza, as the European nation is the second largest supplier of arms to the Middle Eastern country, after the US.

Two days of ICJ hearings relating to the German case took place earlier this week. And it has much broader bearing, as, if Berlin is found to have breached the Genocide Convention, this could have implications for other nations that have been supplying weapons to Israel over the last six months.

And while governments, like this nation’s, are currently scrambling to put on a front of condemning Tel Aviv, not only over its mass extermination of tens of thousands of Palestinians, but also in regard to its recent targeting and killing of seven foreign aid workers, which included an Australian national.

A question of complicity

Nicaragua filed its claim against Germany on 1 March. The document asserts that the European nation has not followed its obligation, under article 1 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, as it requires state parties to do all they can to prevent it.

The 43-page document outlines that by early last November, Germany had increased its defence exports to Israel tenfold, and “185 out of 218 individual export permits were granted as a priority after the 7 October 2023”.

As for the proof that Germany is likely knowingly supplying weapons to facilitate a genocide, there is the 26 January ICJ ruling, which found that what Israel is perpetrating in Gaza is a “plausible” genocide, which is ongoing, and it then ordered Israel to immediately increase aid into the region.

But Germany and other nations, like Australia, then cut funding to UNRWA, which has long been the main aid channel into Gaza, where the entire population is suffering malnutrition due to a forced starvation program, which now sees the entire populace slipping into famine.

Former Human Rights Watch director Kenneth Ross has deemed the case against Germany to be a fairly straightforward one, and he added that the reason the US has not been bailed up as the number one arms supplier to Israel is that it only submits to ICJ jurisdiction on a case-by-case basis.

And Nicaragua has further asked the court to issue an order to Germany for provisional measures, which would involve immediately suspending weapons exports to Israel, and that it resumes support and financing to UNRWA in respect of its operations in Gaza.

A South African triumph

The impact of South Africa’s ICJ genocide case has been widespread, as, despite a final determination being years away, the labelling of the mass killings in the Gaza Strip as a “plausible” genocide has served to strengthen the movement against what western powers were denying.

That South Africa commenced the proceedings against Israel, a nation that has come under increasing charges of running an apartheid state over the last half decade, is significant as it had long suffered under a similar system that subjected the Black population to the domination of the white.

Fifteen of the 17 ICJ judges voted that a plausible genocide continues in Gaza on 26 January. And they provided a provisional order, with the most concrete measure being that Israel immediately increase the provision of basic services and humanitarian assistance into the site of mass starvation.

Yet, as Palestinian lawyer Diana Buttu told Al Jazeera this week, on the day following the issuing of the ICJ order for provisional measures, Israel immediately “overshadowed” it by propagating false allegations against UNRWA, which saw western nations cut funding to this vital aid body.

And this points to another factor at play in the trend of Global South nations utilising the UN international justice system to bring about a reckoning in terms of the transgressions of the west, and that is that if these cases fail to bring about adequate justice, the entire system may fall over.

Canberra complicity

If the case against Germany does succeed, it will set a precedent whereby other nations that have thrown unbridled material support behind the actions of the Netanyahu government over the last six months, which has long included Australia, will be open to similar charges of genocide complicity.

Of course, there is already a thoroughly established genocide case against key Australian parliamentarians in the hands of an International Criminal Court prosecutor, which was launched by Sydney-firm Birchgrove Legal. And although it may never get up, it certainly makes a statement.

The local lawyers have provided evidence that charges prime minister Anthony Albanese, foreign minister Penny Wong, defence minister Richard Marles and Liberal leader Peter Dutton with being complicit in genocide, chiefly via the supply of Australian parts to weapons manufactures.

A ruling in favour of Nicaragua, however, would set a precedent in terms of Germany being found to be complicit in the Gaza genocide, with one specific aspect of this alleged criminal behaviour being the cutting of funding to UNRWA, which Australian was actually one of the first nations to action.

The other key aspect of the case that would need to be established when charging this country with complicity in genocide is that Australia continued to supply the Middle Eastern nation with export goods used to facilitate its ongoing mass extermination program, which is a little harder to do.

However, journalist Michelle Fahey published an article in Declassified Australia on Wednesday that sets out that this nation is likely continuing to export deadly goods to Israel, although this is not so clear to the public as the federal government is doing its best to obscure these facts.

Over the time of the Gaza genocide, minister Wong has repeatedly stated in parliament that no weapons exports to Israel have taken place over the last five years, even when Greens Senator David Shoebridge has confronted her with figures posted to the Department of Foreign Affairs site.

Fahey outlines this week that what Wong has been leaving out of the equation when making these sweeping statements is “whether past export permits are still seeing weapons components being exported from Australia to Israel”.

The journalist notes that when making these statements, officials are referring to weapons, which, in official parlance means “whole systems”, such as a tank or a chopper, and it doesn’t cover munitions, like “ammunition, bombs and rockets… chemical agents, robots and… much more”.

And as she’s aware of this, Fahey has submitted particular freedom of information requests, which she began doing in regard to arms to Israel prior to the Gaza genocide, and she’s found recently that details released prior in a certain manner are no longer available which suggests concealment.

“My recent FOI establishes that the government has not granted any new defence export approvals to Israel since at least 1 November,” the journalist sets out.

“However, the federal government has not made clear whether holders of preexisting defence export permits have been requested to stop exporting items that may end up in Israel,” she continued.

“The Defence Department did not respond to my questions on this issue.”

And while the foreign minister is currently waxing lyrical about recognising Palestine as a state, after having backed Netanyahu to the hilt for half a year, there has not been any officially announced cutting of arms to Israel, even though nations, like Spain, Japan and the Netherlands, have done so.

Indeed, in terms of any precedent from the ICJ genocide complicity case against Germany being successfully set, Australia currently stands in a position that clearly leaves it open for a similar case of genocide complicity to be levelled against it.

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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.

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