The recent hearings before the International Court of Justice in Nicaragua v. Germany centered on preliminary objections, yet the arguments exchanged reached well beyond admissibility and repeatedly touched the merits. In a symposium contribution published October 1, Matthias Goldmann, Professor of International Law at EBS University and Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, argues that this should surprise no one — and that Germany's litigation strategy carries risks of its own.

A pyrrhic victory in the making

Goldmann contends that the German government knows the case is, first and foremost, about Germany's standing in world public opinion. Before that "invisible tribunal," Berlin cannot prevail through legal loopholes about whether a dispute exists or how far its declaration under Article 36(2) of the ICJ Statute reaches in time. Only a victory on the merits — a finding that Germany did not violate the laws of war or the Genocide Convention — can begin to repair an already damaged reputation. From that angle, the sheer volume of preliminary objections to jurisdiction and admissibility, most of them unconvincing with the possible exception of the Monetary Gold argument, risks a pyrrhic victory that would backfire on Germany and on the Court alike, in a manner reminiscent of the South West Africa case.

Counsel for Germany emphasized in her opening statement that the country is constitutionally bound to comply with international law, alluding to the doctrine of Völkerrechtsfreundlichkeit — the international legal openness of the German constitution in the wake of the Second World War. It would therefore be inconceivable for Germany to violate international law. Goldmann likens this to the poet Christian Morgenstern's narrator, who reasons away his own fatal accident because it resulted from a traffic violation: "for, he reasons pointedly, that which must not, cannot be."

The architecture of an empty promise

The claim deserves serious treatment precisely because it is so easy to dismiss with irony, Goldmann writes. Germany's fidelity to international law is not simply false; the promise is sincerely made but structurally hollow. In the field of arms trade, at almost every point where an affected person, an NGO, or a foreign state might hold Germany to account, the relevant legal or evidentiary standard turns out to be discretionary, indeterminate, or set impossibly high.

Start with the Arms Trade Treaty. Article 7 requires exporting states to assess whether there is an "overriding risk" that weapons might be used to commit or facilitate serious violations of international humanitarian or human rights law. In practice, the assessment is entrusted entirely to the exporting state itself. No independent international committee reviews the outcome, and Article 13 requires only summary notifications of licensed exports. Risk assessment therefore lies squarely in the hands of the very states — overwhelmingly Western arms exporters — whose conduct it is supposed to discipline.

A second discretionary opening compounds the first: states parties contaminate the required risk assessment with their own economic and strategic interests. Denmark has been explicit about this balancing; Goldmann cites a study showing the practice is common, with an illustrative example from the Netherlands. Such balancing sits uneasily with IHL and human rights, regimes that do not ask whether a recipient state has been the victim of an armed attack or whether the supplier has a strategic stake. Germany, Goldmann argues, is more ingenious still: its political principles for arms exports refer to strategic considerations only in the abstract, and the national security strategy adopted under the Scholz government reads like "a hotchpotch of platitudes, good intentions and wishful thinking." On the available evidence, it is not even possible to establish with certainty that Germany balances strategic interests with international law.

The Genocide Convention offers a structurally similar escape hatch. Its obligations to prevent, refrain, and punish are triggered by genocidal intent, and the dolus specialis requirement is notoriously difficult to prove. It remains unclear what an exporting state must do to establish there is no risk of genocide or to ensure its exports play no role in one — effectively requiring another Arms Trade Treaty-style risk assessment.

A weak standard, twice over

If treaty law leaves generous discretion, German constitutional law does not close the gap. Two decisions of the Federal Constitutional Court (Bundesverfassungsgericht) — the Ramstein decision of July 2025 and the February 2026 judgment on arms deliveries to Israel — suggest the opposite. The Court held that the Basic Law's fundamental rights guarantees comprise a protective obligation (Schutzpflicht) that can extend to Germany's involvement in third states' violations abroad. But that obligation bites only where a sufficient attributional nexus (Zurechnungszusammenhang) exists — and there the Court has built two independent discretionary filters.

The first concerns the standard applied to the ally's underlying violation. In Ramstein, the Court was willing to accept the United States' position that members of irregular groups can be targeted even when not deployed — a view the International Committee of the Red Cross rejects. Goldmann warns this indirect endorsement might help such standards harden into customary law, even where they contradict Germany's own policies, continuing a tradition of subjecting the constitution to a Northern Atlantic security agenda.

The second filter concerns the degree of German control required. In Ramstein, the Court was inconclusive on whether relaying satellite signals through German infrastructure suffices, suggesting something closer to a German act of decision-making is needed. In the arms deliveries case, export licenses supplied that act — yet plaintiffs faced an evidentiary burden impossible in practice to discharge. They had to show the government exceeded a wide constitutional discretion encompassing strategic considerations, the fundamental rights of arms recipients, and general security and foreign policy. The Court, Goldmann writes, "set up a standard that is almost by definition impossible to meet for any plaintiff."

Reversing the burden of proof

If the case moves to the merits, the ICJ faces a clear choice, Goldmann argues. It can follow the German narrative, under which any export-control framework, however low its standards, would suffice — stripping the Arms Trade Treaty and much of IHL of effectiveness and making the Court "a dog that barks but does not bite." Or it can establish standards of risk assessment that are not entirely discretionary, reassessing the burden of proof in line with its Corfu Channel jurisprudence: once the applicant establishes a prima facie case, the Court could rely on indirect inferences to examine matters under the respondent's exclusive control — an approach the European Court of Human Rights has already adopted in contexts such as detention conditions and custodial deaths.

Absent such a reversal, Germany's commitment to international law will remain what it has largely been: an empty promise "precisely because it is never tested against a standard the government could actually fail." This, Goldmann concludes, is not a German problem alone but the signature of a Western approach that speaks in the register of binding obligation while retaining discretion at every critical juncture — an order with no real future, and one in which Germany has yet to realize it stands on the outside.