After Victory in Domestic Litigations

This article examines how the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) deters illegal arms exports, focusing on the critical juncture where the international obligation to prevent genocide intersects with domestic procedural constraints. The recent decision by the German Federal Constitutional Court (BVerfG) on 3 February 2026 declined a constitutional complaint seeking to halt arms exports to Israel. This has sparked profound debates about constitutional duties and international law. There are similar dismissals by courts outside Germany, such as in the US, France, and India. At first glance, these widespread defeats for applicants make it seem as though governments have a free pass on arms exports, since stopping illegal arms exports appears exceptionally difficult under the prevailing legal framework.

While the situation appears bleak, domestic judicial dismissals of arms-export challenges are distinct from substantive legal endorsements. In this blogpost, I highlight how the Genocide Convention continues to influence state conduct through deterrent effects rather than immediate injunctions. To do so, I analyze three dimensions: the procedural nature of domestic dismissals, the administrative necessity of continuous risk assessments, and the potential for merits-based adjudication before the ICJ.

Procedural Dismissals vs. Substantive Legality

A strictly court-centric mindset often causes observers to conflate procedural dismissals with substantive legality, leading them to lament the perceived impotence of international law. In reality, government victories in domestic litigation are merely artifacts of administrative law, rooted in the separation of powers and judicial restraint.

The core legal issue here is when arms exports by states violate their duty to prevent genocide under the Genocide Convention. A state breaches this duty if it possesses the “capacity to influence” the perpetrators of genocide but fails to employ all reasonably available means to prevent genocide once it learns, or should have learned, of a serious risk. (paras. 430-431 of the ICJ’s Bosnian Genocide case judgment).

Despite this substantive legal framework, when the Conseil d’État, the California District Court and the Ninth Circuit Court of the U.S., as well as the Indian Supreme Court, dismissed claims to stop arms exports to Israel, they did not confirm whether the respondent governments violated their legal obligations. Rather, by citing the political question doctrine and the separation of powers doctrine, these decisions simply represented a refusal to adjudicate the merits of the claims. Therefore, the decisions neither affirmed nor denied the lawfulness of arms exports to Israel under national law and international law, including the Genocide Convention.

The Frankfurt Administrative Court’s decision on 11 September 2024 clearly illustrates this paradigm. In this case, Palestinian applicants sought interim relief against German arms exports to Israel, arguing that the authorizations violated Germany’s obligations, including the duty to prevent genocide. As the Frankfurt Court adopted a deferential attitude toward the political branches, it denied applicants’ standing due to the lack of blatant arbitrariness (para. 24). In its alternative assessment of the merits, the Frankfurt Court also noted that even if the government had relied on a legal view that the court considered “incorrect under international law”, such an error would not, in itself, warrant judicial intervention in matters relating to executive discretion (para. 27). Drawing on Article 32(1) of the Grundgesetz and Article 4(1) of the Außenwirtschaftsgesetz (AWG), the Frankfurt court emphasized that the federal government must be able to speak with a “single voice” in foreign affairs to ensure essential security interests and avoid significant disruptions to Germany’s foreign relations (paras. 27, 32).

Looking beyond these specific cases, a broader consensus emerges that is aptly captured by the UK Court of Appeal’s observation that courts cannot intervene in matters exclusively within “the domain of the democratically accountable executive” (para. 24), even when the export authorization is potentially questionable under the Genocide Convention. National courts have approached claims to stop arms exports to Israel through administrative and constitutional principles, such as the need for the executive to speak with a “single voice” in foreign affairs. Under these frameworks, courts have concluded that potential deviations from international obligations do not automatically satisfy the high threshold of arbitrariness required to breach the separation of powers and justify judicial intervention. Therefore, a procedural victory for governments does not automatically confirm the core question of whether military transfers to Israel breach the duty to prevent genocide.

Why Threat of Domestic Litigation Still Matters

This unresolved issue of substantive legality raises a critical question. If domestic courts generally dismiss claims to stop arms exports before reaching the merits, how does the Genocide Convention maintain its deterrent effect? One of the answers lies within domestic legal systems, specifically the threshold for judicial intervention which serves as an indirect form of pressure. Even when national courts, be it in Germany, India, or the UK, generally refrain from intervening in arms export matters as part of foreign policy, governments still need to demonstrate a rational, continuous policymaking process by assessing legal and factual developments on the ground, in order to prevent courts from intervening. In short, the deterrent effect of the Genocide Convention operates through the need for governments to maintain policies with sufficient procedural rationality to justify judicial deference under each country’s domestic law.

This domestic administrative necessity aligns with the structural requirements of the Genocide Convention. When conflict conditions in importing countries are highly volatile, the existence of a “serious risk” of genocide, one of the triggers for the duty to prevent genocide (the Bosnian Genocide case judgment, para. 431), cannot be assessed through a static snapshot and necessitates a continuous evaluation. Ignoring this treaty factor in controlling arms exports impairs the rationality of the administrative process and can invite judicial intervention in domestic courts. That is why the Genocide Convention exerts indirect pressure, even if domestic courts do not directly rule on the treaty itself at the pre-merits stage. Consequently, this indirect pressure compels the executive to continually integrate international signals, such as the ICJ’s provisional measures, into its arms export control.

Judiciaries in various countries explicitly demonstrate how this administrative process works to counter claims of arbitrariness. In the Al-Haq case, for instance, the UK High Court held that the government’s decision was not irrational or unreasonable partly because the Export Control Joint Unit (ECJU) conducted a rational, continuous evaluation. At first glance, it seemed plausible that Israel’s conduct amounted to genocide based on the ICJ’s provisional measures in South Africa v. Israel (e.g., the decision of the California District Court, p. 8). However, the UK High Court referred to the ECJU’s decision-making process which considered former ICJ President Donoghue’s clarification that the provisional measures affirmed the plausibility of rights, not genocide itself and found no “serious risk” of genocide (paras. 28-29). Demonstrating the system’s responsiveness, this same framework led the ECJU to acknowledge emerging risks under International Humanitarian Law (IHL) in July 2024. It prompted an arms export ban except for the F-35 program due to serious security concerns for the UK and its allies that would arise from the UK’s suspension of relevant exports.

Similarly, in Germany, the BVerfG dismissed the plaintiffs’ challenges while explicitly labeling the evaluation of the situation in Gaza as a “continuous task”. The BVerfG deferred to the executive on the basis that the government had established and actively adapted a “general protective regime” governing arms export decisions. The government secured its procedural victory by proving that its administrative review was dynamic and ongoing, rather than recklessly and arbitrarily ignoring risks.

Thus, the deterrent effect of the Genocide Convention at the domestic level extends beyond courts’ merits reviews. At the premerits stage, domestic courts do not directly apply the Genocide Convention but instead take it into account as a relevant rule for determining whether decision-making crosses the threshold for judicial intervention, a finding the government seeks to avoid at all costs. Then, to secure a procedural victory in domestic litigation, the executive branch is forced to internalize the Convention’s minimum level of requirements. That is an ongoing, rationally defensible process of risk evaluation. In this way, the Convention successfully makes willful blindness legally untenable. Mere unilateral declarations of compliance by the government are insufficient; it is the constant threat of judicial scrutiny that actively deters violations within the state’s administrative apparatus. Ultimately, maintaining pressure on decision-makers to ensure procedural governance is what keeps the Convention’s deterrent effect active, even when the judiciary has to step back.

Where Deference to the Executive Disappears

While domestic legal frameworks provide weaker deterrence due to their high threshold for merits, the more powerful deterrent effect of the Genocide Convention operates on the international level. This highlights the most critical distinction between the Genocide Convention and general obligations under IHL. Unlike the broader frameworks of IHL (para. 33 of the ICJ’s Provisional Measures for the Bosnian Genocide Case; Rikhof), the Genocide Convention possesses a jurisdictional mechanism in Article IX. In addition, the duty to prevent genocide has an erga omnes character, owed to the international community as a whole; any state party can, at least in theory, institute proceedings before the ICJ against another state. Crucially, this jurisdictional pathway can create a genuine and tangible possibility that state conduct regarding arms exports will be adjudicated fully on the merits.

In this international arena, the legal paradigm shifts fundamentally. As discussed above, domestic courts often treat the Genocide Convention merely as a relevant factor filtered through domestic administrative doctrines, such as the separation of powers, or the “single voice” principle, in order to avoid encroaching on executive prerogatives. Before the ICJ, however, this institutional deference disappears, and the Genocide Convention operates as the directly applicable substantive rule governing the dispute. In addition, unlike domestic review, the ICJ’s approach hinges on an objective, direct evaluation of whether the state breached its international obligations, in light of the interpretation and application of the duty to prevent genocide.

These structural realities serve as formidable international deterrence. Even if a government successfully navigates its domestic courts by demonstrating non-arbitrariness, the overarching threat of an ICJ ruling on the merits remains, as evidenced by Nicaragua v. Germany, with the possible caveat of the Monetary Gold principle. Any government hopes to avoid being labeled as a “Genocide Supporter” before the World Court. Through this mechanism, the Genocide Convention serves as a potent instrument of international deterrence, compelling states to align their export controls with their paramount duty to prevent genocide.

Conclusion

This contribution shows that, even after the victory of governments in many domestic cases, there is little reason to conclude that arms exports have become “unbound”. Though we cannot be optimistic, the Genocide Convention maintains more or less its deterrent effect within national and international legal systems. While domestic courts may adopt a posture of judicial restraint, they intentionally leave intact the reality that the substantive duty to prevent genocide remains structurally inescapable. It stands as a central pillar of Habermasian discourse in our global society, ensuring that governments’’ actions continue to be subject to communicative and legal scrutiny.

In the final analysis, we should reflect on Justice Felix Frankfurter’s enduring maxim: the history of liberty has largely been the history of observance of procedural safeguards. Even when the merits in domestic litigation remain unaddressed, it is the procedural rigor that keeps states bound to their most solemn duty to prevent genocide.