Can a state become legally responsible for genocide simply by selling weapons to another state that commits it? For the greater part of the seventy-odd years since the adoption of the Genocide Convention, this was a question that could be found more in academic literature than anything else. It is a matter before the International Court of Justice today, in a case that poses, for the first time in such great detail, the limits of the doctrine of complicity in international law.

The Doctrinal Starting Point

Article III(e) of the Genocide Convention makes complicity in genocide a punishable act, alongside genocide itself, conspiracy, incitement and attempt. Since the convention does not provide a definition of complicity in genocide, this question was addressed by the International Court of Justice in the case involving Bosnia and Herzegovina against Serbia in 2007. In this case the court stated that complicity of the states in genocide should be interpreted in light of the customary international law of state responsibility, particularly in relation to the rules of Article 16 on the aid and assistance to an internationally wrongful act of the ILC's Articles on State Responsibility. As regards the specific facts of the case, the court acknowledged that Serbia provided financial and military support to Bosnian Serb forces committing the Srebrenica massacre; however, it was not proved that Serbian organs were aware of the intention to commit a genocide at the moment they provided such aid. Assistance should have been furnished to the genocidal principal with the knowledge of his intention. However, complicity does not necessarily imply the same genocidal intention.

This standard of knowledge is crucial to the consideration of any future instance of arms export. This means that the issue is not the intention of the state to have the genocide take place, but whether the state had knowledge of the occurrence of the genocide.

A Second, Independent Layer: The Arms Trade Treaty

Besides the requirements set forth by the Genocide Convention, the 2013 Arms Trade Treaty also has certain obligations which apply only to the 115 States which have acceded to it. According to Article 6(3), the State which is planning to export conventional arms should not authorize such export if it knows, at the time of authorizing it, that those weapons are likely to be used for perpetrating genocide, crimes against humanity, grave breaches of the Geneva Conventions or serious violations of international law. Article 7 of the ATT goes further and requires an exporting State to conduct an assessment of the risk of use of any item for committing or facilitating serious violations of international humanitarian or human rights law before each export, and to refuse export if the risk cannot be reduced. In that sense, the threshold of a violation in ATT is much lower than in the case of Genocide Convention as the former one does not require that there is ongoing genocide, but rather a risk that those weapons will be used in perpetration of the violation.

The Case Testing Both Frameworks

The complaint filed by Nicaragua against Germany before the International Court of Justice in March 2024 appears to be the best example of a legal action based on this framework so far. The plaintiffs argue that Germany violated the Genocide Convention and the Geneva Conventions by allowing export of arms to Israel and suspending contributions to UNRWA despite the fact that the Court had ruled in January 2024 in the South African case that there is a risk of genocide of Palestinians in Gaza. Nicaragua requested the Court to immediately order Germany to suspend arms supplies to Israel. The Court declined to do so in April 2024, The court, inter alia, pointed out that there had been fewer German exports and Germany possessed a national system to review export licenses. In particular, it is important to stress that the Court did not reject the claim and even emphasized in a special way the obligation of all countries, including Germany, regarding arms shipments to the parties of the armed conflict to prevent their possible use in violation of the provisions of the Geneva Conventions.

That That caveat, unique among orders that have otherwise denied the application of the party, has made some difference since then. Approvals for German exports to Israel dropped off sharply in 2025 but picked up again in 2026, and the German government has been obliged to explain, first to its own legislature and more recently to the Court, both the quantities of exports and the types of equipment that have been approved. The Germans have moved for dismissal of the entire case on the grounds of preliminary objection, on the basis that Nicaragua has not exhausted all procedural requirements of the Genocide Convention before bringing litigation, and much of the claim does not fit into the temporal restrictions of the German acceptance of the Court's jurisdiction. Judgment on that point is likely to come in the year ahead; a judgment on the merits is not expected before the end of the decade.

Two Different Obligations, Often Pleaded Together

It is worth separating two obligations that this litigation tends to blur. The first is the prohibition on complicity in genocide under the Bosnian genocide standard which entails proof of knowledge of genocidal intent at the time the assistance is rendered. The second distinct obligation is the obligation to prevent genocide under the Genocide Convention which is imposed on all States parties, regardless of whether they are directly assisting the perpetrators. It entails use of all means available to a State that are reasonably necessary following its knowledge, or awareness, of the real risk of genocide taking place. In the case of an arms exporting State, it may violate the prevention obligation without ever having breached the complicity obligation if it acts in the ordinary course of business when the risk becomes evident to it, including the plausibility findings made by the ICJ in cases where it is not a party. It is precisely this practical difference which explains why campaigns using the ICJ rulings on the Gaza issue directed at third States rely on the prevention obligation and the ATT risk assessment provisions.

Why This Extends Well Beyond One Conflict

The Significance of the doctrine of Nicaragua v Germany is not limited to Germany and Gaza alone. Any state that provides arms in any ongoing conflict where credible international organizations warn of a high possibility of commission of genocide or breaches of humanitarian laws by the recipient is faced with the same issue Germany was: when does a continuation of the existing arms trade in the light of such a risk become unlawful instead of being merely a matter of policy choice? Such a question is being considered in domestic courts too, in relation to individual cases of export licenses and components provided despite such risks, on the basis of failure of the government to conduct necessary assessments of risk based on the ATT or other domestic regulations of similar kind.

None of these resolves the issue of whether the behaviour of any one of the states concerned amounts to complicity or prevention, which is something that will have to be determined on the facts of each of the cases by those bodies that will be dealing with these disputes. What has happened as a result of the pending proceedings is that the core issue of law in question has left the seminar room. Arms exporting states can no longer regard the complicity doctrine of Article III(e) as a settled academic concept of 2007.

Author is a 2nd year Law student at CHRIST (Deemed To Be University) Delhi NCR. Views are personal.