The International Court of Justice should reject Germany's preliminary objection that the Monetary Gold doctrine bars jurisdiction over Nicaragua's case alleging German complicity in genocide in Gaza, according to a legal analysis published September 29 by Rutgers Law School professor Adil Ahmad Haque.

Germany filed preliminary objections arguing Nicaragua's claims are inadmissible because resolving them would require the Court to find Israel responsible for illegal conduct in Israel's absence and without its consent. Berlin relies on the ICJ's decisions in Monetary Gold (1954) and East Timor (1995), where the Court declined jurisdiction when ruling on the absent State's responsibility formed "the very subject-matter" of the dispute.

Nicaragua advanced an alternative argument in paragraphs 216–221 of its Written Statement. The argument rests on one premise: the Court can find Germany responsible for failing to prevent genocide committed by individuals without first finding Israel responsible for those acts.

Haque, Distinguished Professor of Law and Judge Jon O. Newman Scholar at Rutgers, writes that this alternative is correct because the Genocide Convention treats genocide as an act committed by individuals. States Parties undertake to prevent those acts when they become aware of a "serious risk." In the Bosnian Genocide case (2007), the Court did not find a State Party had itself committed genocide. It determined genocide was committed by individuals and groups, and that an obligation to prevent arose when a serious risk existed.

What does Nicaragua's argument actually propose?

Nicaragua wrote in its Written Statement that "the responsibility of another State for genocide or genocidal acts is not a condition for finding that a State is responsible for not preventing these acts." The Court could note that individuals committed genocide and then determine whether Germany provided aid or assistance, or failed to use its influence over those individuals.

How did Germany respond at oral argument?

Germany replied that Nicaragua's claims still target "the commission of genocide by Israel," and that supplying military equipment to Israel (not any other actor) is the alleged breach. Berlin noted that in Bosnian Genocide, the Bosnian-Serb army's acts were not attributable to Serbia or any other State, so the third-State problem did not arise.

Why does Haque say Germany is wrong?

Haque identifies two weaknesses in Berlin's reply:

• It is irrelevant that Nicaragua refers to Israeli commission in its primary arguments, since the alternative argument clearly shifts focus to individual perpetrators
• The non-attribution of the Bosnian-Serb army's acts to Serbia is beside the point; what matters is whether a third State used its influence over those individuals

Haque offers a hypothetical: if State A had influence over an armed group, knew of a serious risk of genocide, and failed to prevent it, State A would be responsible regardless of whether the group's acts are attributable to another State. Even if the armed group is a covert unit of State B, State A's responsibility depends on its own failure to use influence over the individual members.

In semi-formal terms, the argument runs as follows:

• P1: If a State fails to use its influence despite awareness of a serious risk, and individuals commit genocide, the State breaches the obligation to prevent
• P2: State A had influence over the unit
• P3: State A failed to use that influence
• P4: Members of the unit committed genocide
• C1: State A breached its obligation to prevent

This reasoning does not depend on attributing the unit's acts to State B through parallel premises P5 and P6. The two conclusions share premise P4 but neither depends on the other. C1 does not depend on C2, and C2 is not a prerequisite for C1.

What are the practical limits of this argument?

Haque notes the logic extends to Nicaragua's claims of complicity in genocide and failure to ensure respect for international humanitarian law. It likely does not extend to claims regarding denial of self-determination, racial discrimination, segregation, and apartheid, since those involve violations binding on States as such. The admissibility of those claims still depends on Nicaragua's primary arguments.

Will the argument actually persuade the Court?

The alternative argument occupies six paragraphs of Nicaragua's 132-page Written Statement and does not appear in the Memorial or in oral arguments. Haque concedes: "Its logic is sound, its meaning is not always clear. The Court may miss it entirely or simply not understand it. That would be a great pity, since Nicaragua's alternative argument is correct."

Practitioners watching the case should note the doctrinal stakes: a clean acceptance of the alternative argument would let the ICJ reach the merits on prevention and complicity claims without ruling on Israel's responsibility. A narrow ruling limited to the primary theory could leave the most provocative questions unresolved.

Haque teaches at Rutgers Law School and has written previously on the same claims on Just Security.