Published: 23 July 2024 Authors: Stefan Talmon and Antonia Mirbach
In response to the terrorist attack by Hamas on 7 October 2023, Israel embarked on an extensive aerial bombardment of Hamas positions in the Gaza Strip, followed by a large-scale ground invasion of the territory. Israel’s military operation led to a large number of deaths and injuries among the Palestinian civilian population, especially women and children, widespread destruction in Gaza, and the internal displacement of more than 80 per cent of the territory’s population, a situation that has been described as ‘an ongoing human tragedy of semi-apocalyptic proportions’. Germany has been widely perceived as one of the countries offering unconditional support to Israel, including by supplying weapons and other military equipment. In 2023, according to reports, Germany was the second-largest weapons exporter to Israel after the United States. This led Nicaragua on 1 March 2024 to institute proceedings before the International Court of Justice (ICJ) against Germany, alleging breaches of certain international obligations in respect of the Occupied Palestinian Territory. Nicaragua requested that the Court order Germany, inter alia:
Immediately [to] suspend its aid to Israel, in particular its military assistance, export and authorization of export of military equipment and war weapons, in so far as this aid is used or could be used to commit or to facilitate serious violations of the Genocide Convention, international humanitarian law or other peremptory norms of general international law.
In its Order of 30 April 2024, the ICJ rejected Nicaragua’s request because arms exports had already been substantially reduced and neither the volume nor the types of weapons exported at that time warranted the indication of provisional measures by the Court.
In parallel to the proceedings in The Hague, three separate applications for pre-emptive interim relief were filed with the Administrative Court in Berlin by a number of Palestinians living in the Gaza Strip. Their applications were supported by several international NGOs, including the European Legal Support Center, Law for Palestine and the Palestine Institute for Public Diplomacy. The applicants requested that the Court order the Federal Government not to license any weapons exports to the State of Israel until hostilities in Gaza ceased. Citing numerous reports indicating that Israel’s actions in Gaza since 7 October 2023 were contrary to international law, the applicants argued that Germany, by approving the supply of weapons which could be used by Israel in these actions, might violate its own obligations under international law.
On 10 June 2024, the Berlin Administrative Court rejected all three applications as inadmissible on procedural grounds, finding that there was no basis for pre-emptive interim relief before any decision on export licences was actually taken. The applicants also lacked the required special interest in legal protection. The Court held that no order on pre-emptive interim relief could be made as long as it could not be foreseen with the necessary certainty what decisions the Federal Government – the respondent – would have to make in the future and under what factual and legal conditions its decisions would be made. This was true even if a violation of the most important legal interests, such as life and limb, were at issue. Such an order could be made only if a decision on a licence for weapons export to Israel were imminent and the Federal Government were likely to grant the licence in violation of its obligations under international law. Neither of the two conditions was fulfilled in the present case, the Court found.
The Court emphasised, in particular, that there was no indication that the Federal Government would violate its obligations under international law or jeopardise their fulfilment when issuing weapons export licences. For this finding, the Court heavily relied on the legal framework and factual conditions for such decisions as set out by the Federal Government. The Court summarised the framework as follows:
aa) The legal framework for this consists of the War Weapons Control Act, the Foreign Trade and Payments Act, the Foreign Trade and Payments Ordinance, the Common Position of the Council of the European Union of 8 December 2008 defining common rules governing control of exports of military technology and equipment, as amended by Council Decision of 16 September 2019 (in the following: Common Position), the Arms Trade Treaty (in the following: ATT), as well as in the Political Principles of the Federal Government for the Export of War Weapons and Other Military Equipment of 2000, in the version of 26 June 2019 (in the following: Political Principles). In particular, Criterion Two of Article 2 of the Common Position of the EU is part of the Federal Government’s mandatory assessment programme. According to that provision, the Member States assess the recipient country’s attitude towards relevant principles established by international humanitarian law instruments and deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used to commit serious violations of international humanitarian law. This is in line with the Political Principles of the Federal Government, which provide that the recipient country’s conduct in terms of whether it complies with international obligations, including international humanitarian law obligations applicable in international and non-international conflicts, is to be taken into account. When deciding on an export license application, the Federal Government further considers itself bound by Article 6(3) ATT, according to which a State Party shall not authorise any transfer of conventional arms within the meaning of the ATT if it has knowledge at the time of authorisation that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party. According to the above-mentioned requirements, the legitimate and – in terms of the UN Charter (Article 51) – inherent right of self-defence of the recipient country is also to be taken into account (cf. Number II.4 of the Political Principles). The general security situation in a region and the legitimate fight against terrorism are also mandatory components of the respondent’s binding assessment programme. According to Criterion Six of the Common Position, as well as Number III.9 [sic] of the Political Principles, the respondent also takes into account the recipient country’s record concerning matters such as the commitment to the fight against international terrorism whilst observing international human rights obligations and principles.
bb) The decision-making process is also complex in practical terms. Applications for the export of war weapons to third countries are reviewed by at least three ministries (the Federal Foreign Office, the Federal Ministry for Economic Affairs and Climate Action and the Federal Ministry of Defence) before a decision is made. According to its statements, the respondent takes into account a variety of sources in this process. These include the situation reports of the Federal Foreign Office and the accompanying security policy insights of the diplomatic missions of the Federal Republic of Germany. The review also includes information that the respondent has obtained through exchanges with other States. The respondent also has access to intelligence information on the predicted development of the situation. It is also in contact with Israel itself. In addition, the respondent takes into account reports from the United Nations on the situation in Israel and Gaza. The respondent also takes note of the activities of non-governmental organisations that report directly from Gaza, as well as general media coverage.
cc) According to the respondent’s submissions, the future licensing practice will continue to be carried out in strict compliance with international law obligations. The respondent explicitly stated that it will refrain from issuing licences if it has knowledge that the war weapons in question would actually be used by the Israeli armed forces in the commission of crimes against humanity, grave breaches of the Geneva Conventions or other war crimes (Article 6(3) ATT), or if there is a clear risk that the military goods intended for export will be used to commit serious violations of international humanitarian law (Common Position, Article 2 (2) (c)).
The Berlin Administrative Court expressed no doubt that the Federal Government would act within this legal and factual framework when deciding on arms export licences to Israel. According to the Court, this was confirmed by the fact that Germany’s licensing practice with regard to Israel had changed as a reaction to events in the Gaza war and that no new licences had been granted since the beginning of 2024. In submissions to the Court, the Federal Government had claimed that this was an expression of the case-by-case review of each individual export license application, taking into account foreign and security policy interests and legal requirements.
In the end, the Berlin Administrative Court, like the ICJ, saw no need to order pre-emptive interim relief: because, according to the information provided by the Federal Government, there had been no weapons exports to Israel for months; and because there was a legal framework in place that required the Federal Government to carry out an overall assessment in order to ascertain whether there was a clear risk that the weapons subject to licensing would be used in the commission of genocide, crimes against humanity or violations of international humanitarian law. The Federal Government welcomed the decision of the Berlin Administrative Court. A spokesperson for the Federal Ministry for Economic Affairs and Climate Action stated:
Human rights and international humanitarian law are taken into account in all export control decisions made by the Federal Government. The Federal Government sees itself as being encouraged in this practice by the decisions of the Berlin Administrative Court.
The applicants were clearly disappointed by the decision. A Palestinian father and his son from the Gaza Strip appealed the decision to the higher Administrative Court of Berlin-Brandenburg, but without success. On 8 August 2024, the Higher Administrative Court rejected the appeal for lack of a special interest in legal protection. In particular, the Court stated:
The respondent and the Administrative Court have set out in detail which rules and standards of public international, [European] Union law and domestic law must be taken into account when deciding on the export license for war weapons. As the respondent has further explained in detail, in its decision of 30 April 2024 the ICJ also considered these requirements to be sufficient to avoid violations of international law. The applicants do not claim that the requirements set out in these rules and standards are insufficient to ensure a decision in individual cases that meets the requirements of Section 6(3) of the War Weapons Control Act. They do not provide any substantive argument as to why it can be expected that the respondent will disregard these rules and standards in future decisions on arms exports to Israel.
Category: Arms Control and Disarmament
DOI: 10.17176/20240724-152228-0
