Doors Wide Shut

In February 2026, the Federal Constitutional Court of Germany (GFCC) did not admit for decision a constitutional complaint of a Palestinian from Gaza challenging German military export licenses to the State of Israel. This blogpost addresses the GFCC’s decision in light of the International Court of Justice (ICJ) advisory opinion in Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory including East Jerusalem, issued in July 2024 (Palestine Case) and its order in South Africa v. Israel (January 2024), focusing on the jus ad bellum aspect. This approach does not mean that International Humanitarian Law (IHL) obligations are irrelevant to the analysis. Rather, this post seeks to go one step back before going further.

In my analysis, I challenge two moves in the GFCC’s decision. First, the Court assumes, for the sake of the argument, that violations of IHL and international human rights have occurred and demands instead a high burden of proof for establishing why suspension of arms export licenses is the only available remedy (para. 107). Second, the GFCC dilutes the significance of the exports, treating them as ‘military goods’ rather than weapons, and as goods usable anywhere and for any purpose within Israel’s discretion, explaining that no link can be drawn between particular components and particular harms (para. 112).

These two points presuppose a purely jus in bello frame and rest on the premise that Germany’s duty becomes pronounced only once a further threshold set by jus in bello is cleared. This premise, however, is wrong. Once the illegality is located at the level of jus ad bellum, Germany’s duty of non-assistance under the framework of state responsibility arises regardless of whether either threshold is met. As such, the questions that the GFCC presents (why suspension is the only remedy and whether the goods can be tied to specific violations) displace the main question that should be asked of whether Germany may lawfully assist in maintaining the unlawful situation at all to avoid legal responsibility under Article 41 of the ILC’s Responsibility of States for Internationally Wrongful Acts (ARSIWA).

Preliminary Note

Before delving into a jus ad bellum analysis, it is worth dispatching the threshold framing on which the GFCC’s approach rests, that is, the duty to protect people abroad is weaker than the duty owed to people living in Germany (para. 107). The main provisions governing arms exports, like Common Article 1 of the Geneva Conventions, the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), Article 16 of ARSIWA, Articles 6 and 7 of the Arms Trade Treaty (ATT), do not deal with territoriality. In fact, Common Article 1 of the Geneva Conventions requires States to “ensure respect” for IHL by other states, without limiting it to specific victims. The same logic applies to the Genocide Convention. Indeed, the ICJ in Bosnia Herzegovina v. Serbia and Montenegro (2007) held that the duty to prevent genocide is triggered by a state’s capacity to influence, not by territorial jurisdiction. Article 6 and 7 of ATT likewise restrict authorization (albeit under different thresholds of knowledge) of exports without reference to territory. Similarly, Article 16 of ARSIWA concerns complicity rather than territoriality. Taken together, these provisions suggest that the GFCC’s territorial framing imports a limitation that the governing provisions do not contain. In other words, the heightened extraterritorial threshold the GFCC invokes can not be reconciled with the norms it purports to apply.

Jus ad Bellum Analysis

Debates over arms transfers are generally framed in terms of compliance with IHL and the risk that arms exports may facilitate international crimes. Much less attention is paid to the legal consequences of assisting a State that is waging an unlawful war. However, if the war is unlawful in its entirety (that is, the illegality lies in the conduct of the hostilities and in the resort, or continuation of, force) then any contribution to sustaining it, is also, in principle, unlawful. In other words, the legal inquiry in those circumstances should not only be grounded in whether arms exports can be linked to specific violations, but should also tackle whether third States may contribute to sustaining the unlawful use of force. In order to establish that, this post shows how Israel’s military operation in Gaza is an unlawful use of force, and how its continued presence there (in addition to its presence in the West Bank and East Jerusalem) is an unlawful situation. Both showings engage peremptory norms that cement Germany’s duty of non-assistance.

(1) Israel’s military operation in Gaza is [un]lawful

There are various reasons to question the legality of Israel’s military operation in Gaza since October 2023. First, it is doubtful whether Israel has a right to self-defense in the first place. Many have written that Israel’s war is the reformulation of aggression against an occupied population and its right to self-determination (see here, and here). Others have recognized that this question is complex and can not be easily answered (see here). More generally, the argument for self-defense against non-state actors, occupied or not, remains unsettled in international law.

Second, even if Israel has a right to self-defense, this right has lapsed because it no longer meets the conditions of proportionality and necessity. This argument has more merits, arguably, following the ICJ order in South Africa v. Israel (2024). There, the ICJ found a real risk of irreparable prejudice to the Palestinians’ plausible right to be protected from genocide. Although the ICJ did not order the suspension of Israel’s military operations (except later and partially in Rafah), that omission should not be understood as an endorsement of Israel’s self-defense claim. A possible explanation for this omission is that the Court avoided, rather than attempted to resolve, settling the normative clash between a plausible claim of genocide and a plausible claim for self-defense. As such, it did not pronounce a clear normative hierarchy between Israel’s claimed self-defense and the prohibition of genocide. A growing body of scholarship has argued that the war does not satisfy the requirements of proportionality and necessity (see here, here, and here).

Finally, even if we accept that the initial goal of Israel was to commence a serious and focused military operation of halting an ongoing attack and achieving defensive aims, that characterization is no longer applicable.  Senior Israeli officials have articulated (and moved closer to achieve) aims of the war, that consist of ethnic cleansing and colonial conquest pursued with the U.S. assistance. Therefore, if Israel’s war is unlawful under these conditions, then the most plausible conclusion is that any contribution to sustaining it is unlawful too.

(2) Illegal Occupation

The second wrong is the Israeli occupation itself, which I do not examine in depth here, as the ICJ determined that it is extending throughout the West Bank, East Jerusalem, and Gaza. The Palestine Case only dealt with the occupation before late 2023, but the occupation has further cemented its grip on Gaza ever since.

Consequences of jus ad bellum Violations

If Israel’s war is unlawful at the jus ad bellum level, or its presence an unlawful situation, the wrongs at stake are serious breaches of obligations arising from peremptory norms, such as the prohibition of aggression, the right to self-determination, the prohibition on the acquisition of territory by force, and the prohibition of genocide. The question is what that means for a third State that supplies arms.

Debates concerning the legal responsibility of third State for assisting an aggressor state arose in the context of arms assistance to Russia when it invaded Ukraine. Some of the arguments raised rely primarily on the fact that Russia’s war is an aggression that contravenes Article 2(4) of the UN Charter (see here, here, and here). These debates relied Article 6(2) of the ATT, which prohibits a state party from transferring arms “if the transfer would violate its relevant international obligations under international agreements to which it is a Party”, to argue that a state assisting a state in an unlawful war violates its international obligations according to Article 2(4).

One caveat worth noting here. Article 2(4) and the ATT concern force in inter-State relations. But that framing does not exempt this case. The breach of obligations arising from peremptory norms does not require the victim to be a “State,” and each of the ATT and Article 2(4) carries consequences under the law of State responsibility.

Breach of obligations arising from peremptory norms, including the prohibition of the use of force, the right to self-determination, and the Genocide Convention, implicates Article 41 of ARSIWA which sets out the consequences of such breaches, and outlines the duty of cooperation, non-recognition and non-assistance. The ICJ drew precisely these consequences in the Palestine Case, directing all States not to recognize the occupation as lawful, or to assist in maintaining Israel’s unlawful presence.

This framework differs from Article 16 of ARSIWA, which has been the center of wider discussions concerning arming Israel and Russia. Unlike Article 16 mentioned earlier in the blogpost, Article 41 does not require a connection between that assistance and a specific internationally wrongful act, which is the nexus the GFCC focuses on. Article 41’s duty of non-assistance attaches instead to the maintenance of the unlawful situation, and does not depend on tracing specific weapons to specific violations. Therefore, once the wrong is located at the level of the use of force and the unlawful situation it sustains, the GFCC’s points on seeking alternative remedies and dilution cannot withstand scrutiny.

Implications for the GFCC’s Judgment

Both the points identified at the outset of this blogpost presuppose the in bello frame, i.e., the point against suspension as the only remedy, which presupposes the viability of alternative remedies; and the dilution point that assumes that liability depends on linking particular ‘goods’ to particular harms. However, if the war is unlawful at the level of the resort to and continuation of force, then the duty of non-assistance prevails, and the connection between particular German components and particular IHL violations ceases to be decisive.

This also indicates how the GFCC should have proceeded. Read in light of the German Constitution’s openness to international law (para. 29), the duty to protect cannot be discharged in a way that places Germany in breach of its own obligations under international law. Where those obligations include a duty not to assist in maintaining an unlawful situation, the executive’s margin of appreciation is correspondingly narrowed, and the demand that the complainant prove suspension to be the only adequate remedy applies the wrong test. A non-assistance obligation is not satisfied by diplomacy, or by remedies that leave the assistance in place.

As a side note, it is worth mentioning how the GFCC declines to take an important step that the ICJ took in the Palestine Case. This case has also opened new fronts from which to explore the limits of jus ad bellum, thus arguably bursting the jus in bello bubble. There, the ICJ asked whether Israel’s policies and practice, including settlements, exploitation of natural resources, the systematic denial of basic rights across the West Bank, East Jerusalem and Gaza, have rendered its continued presence unlawful. Crucially, the ICJ held that this question cannot be answered within IHL at all (para. 109). Prolongation does not in itself change the occupation’s status under IHL, and the legality of the occupying power’s presence “must be assessed in light of other rules” (paras. 109), namely, the jus ad bellum rules concerning the prohibition of the threat or use of force, the prohibition on the acquisition of territory by force, and the right to self-determination. As such, the ICJ treated the in bello frame as insufficient to capture the wrong. It read the aggregate of Israel’s conduct as occupier as evidence of annexation. In other words, the legality of the situation could not be settled whether particular acts complied with the laws governing the occupation. The GFCC, on the other hand, used IHL to escape accountability, instead of addressing important questions that arise from the laws governing jus ad bellum.

Conclusion

This blogpost has sought to highlight the relevance of jus ad bellum when assessing state assistance provided in connection with Israel’s military operations, as well as the legal consequences arising from such assistance. It has further highlighted the possibility of aggravated state responsibility where such assistance contributes to widespread and systematic breaches of multiple obligations deriving from jus cogens norms. By locating illegality at the level of jus ad bellum, this blogpost has argued that there are preliminary questions that should be discussed, and that do not necessarily allow much room for maneuver. The GFCC has noted that there is room to intervene in the Government’s decision. But it also rendered the quest for remedy a much more ominous task, thereby effectively closing the door wide shut for seeking any remedy, even in the light of flagrant illegality.