Nothing to See Here

On 12 February 2026, the Tagesschau, the most widely-seen tv news show in Germany, covered the following topics: Trump decides that greenhouse gases don’t endanger public health, the ICE surge in Minnesota is coming to an end, Mercedes Benz’ profits declined significantly, an informal EU summit was held in Belgium, president of the Bundestag Julia Klöckner visited Gaza and was criticised for not speaking to Palestinians, 800 flights were cancelled due to strikes at Lufthansa, the record low sea levels in the Baltic Sea could have a positive impact on the ecosystem, a German luge team won gold at the Olympics, the Berlinale is starting and will be political, carnival parades are starting, the weather is rainy and snowy.

The clear message: regrettable things may be going on elsewhere, but – except for the ailing state of the German automobile industry and a bothersome strike – everything is fine over here. German politicians are observing the situation and engaging in diplomacy. The German public can continue to celebrate national victories at international sporting events and enjoy local cultural events like having carnival parades in awful weather.

Also on 12 February 2026, the German Federal Constitutional Court published a chamber decision finding the inadmissibility of a constitutional complaint by Abed J., a Palestinian from Gaza who was challenging German arms exports to Israel. The decision went unmentioned in the Tagesschau: apparently, the editorial team believed it was less important for their audience. To be fair, a German institution not curtailing the German government’s discretion to support the state of Israel as it engages in more and more atrocities is hardly out of the ordinary. It is just business as usual, and that is precisely what the decision itself conveys. Both the media coverage and the decision enact the same gesture: nothing to see here. The Tagesschau performs it by looking away entirely. The Court performs a different kind of looking away – by looking at the facts, at international law, at the substance of the complaint and deciding, at each turn, that there is nothing to see, nothing to decide, and certainly no need to act. We trace this logic through the decision.

Nothing to See in Terms of Palestinian Lives and Deaths

Right at the beginning of its decision, the Court already gives an indication of what is to come (para. 4). History begins, as it so often does in German narratives, with the “terrorist attacks of the Hamas of 7 October 2023 on Israeli territory, during which around 1.200 people were killed and around 250 persons were taken hostage”. The Court does not mention the decades-long occupation and several previous rounds of intense attacks in Gaza, all well-established as involving multiple violations of international law.

With a view to the period since 7 October 2023, the Court only speaks of “military attacks on the Gaza strip, including a ground offensive”, thus obfuscating the broader policies and practices of domination and extermination of which the military attacks form part. These broader policies and practices were acknowledged, for example, in the ICJ’s 2024 Palestine Advisory Opinion and in several UN reports, including by the Committee on the Rights of the Child, the Committee on the Elimination of Racial Discrimination, the Human Rights Council’s Independent International Commission of Inquiry on the Occupied Palestinian Territory, the Special Rapporteur on the situation of human rights in the Occupied Palestinian Territories, and of the Special Rapporteur on the right to food.

Regarding the effects of the Israeli military attacks against Palestinians in Gaza, the Court notes: “The number of victims and the consequences of the military offensive are, to date, difficult to measure. It is undisputed that there were a very high number of civilian casualties and massive destruction of civilian infrastructures.” Judith Butler had already remarked in relation to previous Israeli attacks in Gaza: “we can note how numbers are framed and unframed to find out how norms that differentiate livable and grievable lives are at work” (at p. xx). Framing lives and deaths as numbers at all can be a way of dehumanisation, but differential use of numbers can also indicate hierarchies of grievability. Here, we can observe how, unlike the victims of the attacks of 7 October 2023, casualties in Gaza are not even worthy of a numerical estimate, although such estimates of course exist. As in previous judgments, through its framing and unframing of numbers the Court gives a first indication of which lives matter: in this case, Palestinian lives do not.

Nothing to See in Terms of International Law

The logic of rendering Palestinian suffering invisible extends beyond the Court’s framing of the facts and into its legal reasoning. The context for that reasoning is last year’s Ramstein judgment. According to this judgment, when there is a sufficient link to the German state and a serious risk of systematic violations of international law, particularly of humanitarian law and human rights, the right to life under the German constitution will give rise to a duty of the German state to protect individuals abroad. International law, in other words, is established as the central standard-setter. While the Court granted the German government an (overly broad) margin of discretion in the Ramstein case, it highlighted the importance of international law documents and judgments of international courts for establishing systematic violations.

In the decision on arms exports to Israel, by contrast, the Court in its reasoning simply sidesteps international law entirely. At the beginning of the decision, it gives a brief overview of various international law documents and ongoing proceedings pertaining to Israeli actions in Gaza (paras. 5-12). Yet, none of this enters the Court’s legal reasoning. The Court instead holds that whether a duty to protect arises in the present case need not be decided (para. 102), since even if grave and systematic violations of international law gave rise to such a duty, the executive branch would retain a wide margin of discretion regarding how to fulfil it. The Court then finds that the applicant’s complaint was insufficiently substantiated to demonstrate that this discretion had narrowed to the point where only one measure, i.e. revoking the specific export licences he challenged, could satisfy the duty to protect (para. 114). By thus leaving the foundational questions of whether and on what basis a duty to protect exists undecided, the Court simply skipped over the international law documents it previously mentioned, ensuring that they did not become relevant to the outcome of the case.

This is putting the cart before the horse. Taking international criticism seriously would have entailed recognising that Israel routinely violates multiple fundamental norms of international law, including jus cogens; that a wide array of international actors including courts have indicated as much; and that these violations are rooted in racist policies that legitimate violence against Palestinians, and are thus systematic in nature.[1] The Court itself cites the principle of “Völkerrechtsfreundlichkeit” (para. 78), which involves interpreting German law, so far as possible, in accordance with international law. Given the extent of Israeli violations of international law, this would necessarily involve a different approach to the duty to protect, including its content.

Instead, the Court invokes its commitment to international law only to then ignore international law. One might think of this as nonperformative in the sense developed by Sara Ahmed: the commitment itself takes the place of any further action, it works by not bringing about the effect it names. Ignoring international law allows the Court to proceed on its usual doctrinal terms concerning the duty to protect, which are notorious for almost never involving findings of a violation of constitutional rights.

Nothing to See in Terms of Statutes and Government Practice

By ignoring international law, the Court allows for business as usual with regard to arms exports – and business it is, as the Court is well aware. The second part of the description of the facts starts with a paragraph comprised of a single sentence: “The Federal Republic of Germany is among the largest suppliers of weapons and military equipment to Israel” (para. 13). This sentence sits right after the list of international documents and proceedings that – even in the Court’s cursory treatment – clearly show that Israel has been gravely violating international law. The juxtaposition is stark, and the Court leaves it entirely unaddressed. It follows up (paras. 14-17) by reverting to the technical level and describing the specific amounts of military equipment authorised for export after 7 October 2023, the suspension of new authorisations in August 2025, and their resumption in November 2025.

Here, too, the frames used by the Court in its overview of the facts foreshadow its approach in terms of legal argument, which dodges the main substantive issue. The Court refuses to engage with the merits of the case, proceduralising and thus depoliticising it. There is no need to decide on the merits, the Court argues, because it had already clarified the law in previous decisions (para. 71) and because, given the broad discretion afforded to the executive with regard to foreign policy and alliance commitments (paras. 79-80 and 114), the applicant had failed to substantiate his complaint. Instead of facing up to the question of whether executive discretion can be upheld in the face of arms deliveries to a State systematically violating the most fundamental norms of international law, the Court approached the case in procedural terms: Business as usual not just for the arms trade, but at the Court itself.

In the first part of this proceduralised non-review, the Court makes reference to the detailed rules of the applicable statutory law – as though the existence of a regulatory framework were itself proof that arms exports are adequately controlled. It highlights statutory provisions mentioning international law and human rights and it argues that the legislative intended to regulate arms exports specifically with a view to the risks they pose (paras. 85 et seqq., esp. paras. 91 and 95).

Later, the Court refers to various “concrete measures” taken by the government specifically in the context of Israel’s military offensive in Gaza, including “regular exchanges” with the Israeli government and working towards the adherence of human rights and humanitarian law (paras. 110-111). It also mentions the assurances sought by the German government that Israel would only use the arms it receives in accordance with humanitarian law. As in its review of applicable statutes, the Court accepts lip service to humanitarian law and human rights as sufficient.

Reading this as a “process-oriented review” that has the potential to give effect to international law misses the point of these references, which throughout the entire decision refer only to obligations and assurances, but not to actual compliance with international law. Just as in Germany’s technical arguments in the ICJ case brought by Nicaragua, the body of statutory law and the government’s assurances thus act as a shield against substantive legal scrutiny that might result in stopping arms exports. Again, one might think of this as nonperformative: in the Court’s hands, the commitment to international law at the statutory level and at press conferences by the government take the place of any further action, viewed as sufficient and thus pre-empting the very scrutiny that the Court promises but clearly does not deliver on.

The Limits of What the Law Pretends to Be

Perhaps none of this is surprising. The law and the courts that apply it tend to uphold the status quo and to affirm state interests – in this case, for example, the so-called German Staatsräson of unconditional support for Israel as well as the economic interests behind arms exports. But the present case is not about a general critique of the law’s relation to power. Given how systematic and well-documented Israel’s violations of fundamental norms of international law are, even the very loose standards established by the Constitutional Court in the Ramstein judgment clearly pointed to a violation of the constitution. Yet even in this kind of case, the law functions as usual and the right to life that it so emphatically proclaims is emptied of meaning. Omer El Akkad describes the resulting disillusionment perfectly:

“In time there will be findings of genocide. There will be warrants issued, even. The structures of international law, undermined at every turn, will nonetheless attempt to operate as if law were an evenly allotted thing. […] It’s no use, in the end, to scream again and again at the cold, cocooned center of power: I need you, just this once, to be the thing you pretend to be.” (at p. 87)

The chamber of the Constitutional Court barely bothered to uphold pretence; its disregard for Palestinian lives and its willingness to overlook the atrocities Israel has been committing and continues to commit is clear throughout its decision. The Tagesschau was onto something, in the end. There was nothing to see here – nothing, at least, that German institutions have not already learned to look past.

[1] We develop these points in much greater detail (in German) in: Sué González Hauck and Jens T. Theilen, Deutsche Waffenlieferungen an Israel nach dem Ramstein-Urteil, Die öffentliche Verwaltung 7/2026, p. 300-311.