Arms Trade Litigation before the German Federal Constitutional Court

This blog post critically examines the February 2026 judgment delivered by the German Federal Constitutional Court, in which the Court did not admit for a decision a Palestinian’s constitutional complaint challenging German military exports to Israel. This entry examines the judgment through the lens of international law’s emancipatory promise, reflecting on how the Court has dealt with Palestinian plaintiffs and German and Palestinian human rights organizations’ attempts to halt the arms trade. Focusing on the NGOs behind the arms trade litigation in Europe as movements with emancipatory projects, the blogpost asks whether the Court has enabled the realization of the emancipatory promise of international law, or, instead, rendered it inoperable.

Constraining the European Arms Trade: The Broader Regulatory and Litigation Context in Europe

European states’ decisions to transfer arms abroad are not entirely discretionary. The decision-making process and its outcomes are constrained by international and European law, including the EU Common Position on Arms Exports and the Arms Trade Treaty. Moreover, established norms of international law may have implications for states’ decisions to transfer arms, as stated by the International Court of Justice (ICJ) in its 2024 Provisional Measures Order (para. 24) in the ongoing Nicaragua v. Germany case, where it referred, for the first time, to all states “international obligations relating to the transfer of arms to parties to an armed conflict”.

While the ICJ did not elaborate nor explicitly identify the source of these obligations, the order seems to imply that they stem from both Common Article 1 of the Geneva Conventions (the obligation to respect and ensure respect for the Conventions) and Article 1 of the Genocide Convention (the obligation to prevent genocide). Indeed, the preceding paragraph of the Order refers to states’ obligations under these two provisions. Similar interpretations of Common Article 1 had already been put forward by the ICRC (paras. 143-182) and included in the User’s Guide to the EU Common Position (para. 2.13).

Despite these legal developments, arms transfers have been on the rise globally. Many contemporary conflicts are fueled by a steady supply of arms (like Sudan, Yemen and Gaza). In addition, European arms and replacement parts are frequently found in areas where war crimes, crimes against humanity, and serious human rights violations occur. Given these facts,  NGOs and individuals across Europe have turned to domestic courts while mobilizing international law to challenge the lawfulness of arms transfers authorized by European governments. These cases have produced different decisions, yet litigation has remained largely unsuccessful. Judges have either not admitted the cases (like the February 2026 judgment delivered by the German Federal Constitutional court), refusing permission to bring a judicial review claim altogether, or deferring to governmental discretion even when accepting the legal challenge. Indeed, out of a total of 26 legal cases on European arms transfers, in only 5 have applicants been successful thus far, with courts calling for the suspension or annulment of the contested licenses or the retaking of the government’s decision as a result of litigation.

Reflecting on International Law’s Emancipatory Promise

Before proceeding further, it is necessary to explain the theoretical framework guiding my analysis of the judgment. International law’s emancipatory promise, as developed by Martti Koskenniemi, refers to the appropriation of international law by social movements seeking to challenge structures of domination and exclusion in pursuit of more universal forms of justice and solidarity. Koskenniemi argues that international law’s emancipatory promise can lie in acting as “an instrument through which particular grievances may be articulated as universal ones”. In this sense, “the project of universal justice appears as a horizon at the intersection of a public realm of states regulated by international law and the civil society reaching beyond sectarian interests” (p. 51-52).

The NGOs leading arms export litigation across Europe fit within this term. In their litigation efforts, civil society actors draw on international law and domestic institutions in the name and interests of individuals affected by armed conflict elsewhere, often framed under a sense of international solidarity. In other words, they are using the legal tools and institutions available in Europe to contest war and oppression abroad and, in turn, denounce European complicity in armed conflicts beyond the continent. By collaborating with affected individuals, NGOs mobilize international legal norms as counter hegemonic tools for articulating universal claims and common interests, such as justice.

German Constitutional Law and the Case Before the German Constitutional Court

In the case brought before the German Constitutional Court, the complainant argued that the issuance of export licenses by the German government violated a duty of protection in his favor arising from the constitutional right to life.

The German Basic Law contains an unwritten constitutional principle known as “openness to international law”. According to the case-law of this Court, this principle, in conjunction with the right to life and physical integrity under Art. 2(2) and with Art. 1(2) of the Basic Law (acknowledgement of inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world), entails a general mandate of protection with regard to international humanitarian law and the applicable human rights. Under certain conditions, this general mandate of protection can give rise to a specific duty of protection incumbent on the state. Although this duty does not, as a rule, entail an enforceable claim to concrete measures for individuals, ordinary courts may decide whether an exception to the rule is warranted in a particular case.

Prior to the Constitutional Court’s judgment of February 2026, the Administrative Court of Frankfurt held that the relevant provisions of foreign trade law did not convey actionable individual rights. The Hessian Higher Administrative Court in Kassel subsequently confirmed this finding. Following the submission of a constitutional complaint, it then fell to the Constitutional Court to examine whether the ordinary courts had failed to recognize the significance and scope of fundamental rights at stake, namely the constitutional duty of protection arising under Art. 2(2) of the Basic Law, or whether they denied such a duty in an objectively arbitrary manner. The Constitutional Court determined that neither was the case.

For the purposes of this blogpost, I focus on paragraphs 104-113 of the judgment. In these paragraphs, the Court examined the scope of the duty to protect and delimited the circumstances in which it may exceptionally give rise to an actionable individual claim.

Relying on previous case law, the court determined that in domestic cases, “a finding of a breach of duty to protect can only be considered if protective measures have either not been taken at all, if the regulations and measures taken are manifestly unsuitable or wholly inadequate, or if they fall significantly short of the protective objective or are based on an inadequate investigation of the facts or unreasonable assessments” (para. 105). It also found that “a right to specific measures enforceable by the individual does not arise from the duty to protect” and that “only under very specific circumstances may the discretion of the public authorities be restricted in such a way that a duty to protect can be fulfilled solely by means of a specific measure” (para. 106). The court further held that state organs hold a wide margin of appreciation in determining which measures to take when fulfilling the duty to protect. In this view, both the legislator and the executive possess a broad margin of assessment, appreciation, and design; and “this broad discretion can be reviewed by courts only to a limited extent” (para. 79).

The Court then went on to find that the content of the duty to protect is even more limited in matters involving foreign affairs, stating that “even in cases where the general duty to protect, arising from the protection of human rights and international humanitarian law, has crystallized into a specific duty to protect, a duty to protect persons living abroad need not (…) have the same content as that towards persons within the country” (para. 107). It determined that “under certain circumstances, its content may require modification and differentiation” or that some of the criteria applicable in domestic contexts “are to be restricted or do not apply at all” (para. 107).

The Court also found that, in the present case, the legislator and the executive had established a general framework of protection and taken “specific measures with regard to the Israeli military offensive and the catastrophic humanitarian situation in Gaza” (paras. 110-112) to effectively address the human rights risks associated with military exports and ensure compliance with international humanitarian law. For these reasons, the Court concluded that the case did not give rise to a claim requiring state organs to adopt any specific measure (para. 113).

The Constitutional Court thus endorsed “manifest unsuitability” or “wholly inadequacy” of governmental action as the standard for a finding of the breach of duty to protect (para. 105), while simultaneously granting a wide margin of appreciation to the executive in determining how to fulfil that duty. Moreover, it introduced additional restrictions to the duty to protect applicable in foreign affairs cases. Given that many situations involving the invocation of international law can be framed as foreign affairs, these limitations substantially narrow the scope of the duty for individuals living abroad who are affected by Germany’s conduct. Indeed, the Court’s reasoning restricts the duty to such an extent that it becomes extremely difficult to anticipate or determine when it would constrain governmental action or give rise to an actionable individual right.

(Lawfully) Evading International Law?

Returning to international law’s emancipatory promise, the Constitutional Court’s refusal to recognize an enforceable claim to concrete governmental action for individuals affected by German arms exports has shielded state action in the arms trade from judicial review. Consequently, despite the existence of both domestic and international legal regimes aimed at limiting governmental discretion in the arms trade, individuals are left with almost no avenue to invoke and enforce those constraints. Indeed, in the case under analysis, the Constitutional Court was satisfied with the mere existence of arms export regimes (paras. 55 and 98), abstaining from examining the content of the obligations they impose on the government when issuing arms export licenses. Nor did it review governmental conduct in light of those obligations. As a result, the legal restrictions on arms exports may be rendered essentially procedural. What matters is not whether arms transfers comply with international law, but whether risk assessment and the accompanying bureaucratic apparatus have been put in place.

This judicial approach is not unique to Germany alone. Across Europe, courts have frequently adopted a deferential attitude towards the government, negating their agency and leeway to review governmental conduct in accordance with the law on the arms trade. European courts have relied on doctrines that limit standing or on doctrines of non-justiciability and high standards of judicial review of foreign affairs to justify their non-engagement with international law and export control regimes. The latest decision by the UK Court of Appeal in November 2025 offers a recent example. In this sense, courts have undermined the relevance of these laws in times of increased rearmament. When thinking from the perspective of international law’s emancipatory promise, these judicial approaches limit social movements’ attempts to use international law to contest the arms trade. Therefore, they seriously constrain the emancipatory promise of international law by negating the possibility of using it in collective struggles that confront entrenched structures of domination and counter-advance projects of international solidarity.

I do not argue that domestic courts must “take a stand” in favour of international law. Nor do I deny that they are constrained by a political and constitutional framework that limits their judicial review powers and favours certain interpretational outcomes. Instead, I sought to demonstrate that the German experience suggests that, when given the opportunity to review governmental conduct in foreign affairs and to engage with international law, courts may side with governments and do so by leaning on doctrines whose content is unclear and ambiguous, invoking them to reject the claims of the plaintiffs and ultimately frustrating their projects of contestation and emancipation.

Indeed, the German Constitutional Court has relied on a doctrine on the scope of the duty to protect which it presented as legal and necessary. However, judges have discretion and room for manoeuvre since legal interpretation is not a linear activity. As Allan C. Hutchinson has argued, “questions of which rules are relevant and in play, what those rules mean, and what following them entails remain related and irredeemably contestable activities” (p. 156). Therefore, judges do possess a degree of interpretive discretion, even when operating within an established doctrinal framework.

The judgment of the German Constitutional Court suggests that the Court exercised that discretion in a manner that reinforces an existing political context in which governmental arms trade decisions remain largely unchecked and incapable of meaningful contestation. They have done so by limiting the scope of the duty to protect and privileging deference to government over engagement with legal rules aimed at limiting the arms trade, negating their leeway to take a stand and frustrating the mobilization of these rules. As Sharon Weill, Kim Thuy Seelinger, and Kerstin Bree Carlson have shown, political and social goals are often translated into legal doctrines and “as doctrine is developed and functions as an independent force, it can eventually facilitate or limit the achievement of certain socio-political visions through interpretation”. The German Constitutional Court’s construction of the scope of the duty to protect illustrates this dynamic. Although articulated in legal terms, its interpretation reflects a particular (and contestable) vision of the proper reach of judicial review in foreign affairs cases. By constructing the duty to protect as very restricted in these cases, while granting broad discretion to the executive and legislative in “foreign policy matters”, the Court may have coined a doctrine that will continue to limit the realization of international law’s emancipatory promise in future cases before German courts.