Discretion Without Limits

“[…] the legislator and the executive did not fail to take action, but have created a general framework of protection in order to effectively address the risks of exports of military equipment for human rights and to ensure compliance with international humanitarian law.”

This article aims to demonstrate why this quote from the German Federal Constitutional Court’s (GFCC) press release on arms export licenses does not hold true in practice. What the court considers an effective framework for addressing human rights risks and international humanitarian law adherence in arms export decisions completely fails to achieve this purpose. This is particularly true if the evident lack of compliance with international law is excluded from judicial review.

The European Center for Constitutional and Human Rights (ECCHR) supported the constitutional complaint of Abdalrahman J., a Palestinian from Gaza, in his litigation efforts in cooperation with the Palestinian human rights organizations Al Mezan, Palestinian Center for Human Rights (PCHR) and Al Haq. The following analysis draws on this experience.

The Case of Abdalrahman J.

Abdalrahman J. sought to challenge the unwavering German militarized support to Israel, ultimately bringing a complaint before the GFCC. Israeli attacks killed his wife Nour, a lawyer for the human rights organization PCHR, his infant daughter Kinzi, and numerous other family members. Facing an ongoing threat to his life, he took legal action against the German government to halt further arms exports, arguing that German export licenses for tanks were linked to the risk to his life. He presented evidence about the IDF’s deployment of Merkava tanks across Gaza, including strikes in areas just kilometers from where Abdalrahman and his family were seeking refuge.

The transmissions of such Israeli battle tanks are produced in Germany, by the Bavarian manufacturer Renk, and licensed by the German government.

Second Best Friends: German Arms for Israel’s Attacks on Gaza

From October 2023 until December 2025, the German government licensed arms exports to Israel worth over 606 Mio. Euros, which amounts to around one third of Israeli arms imports. Together with the U.S., the two countries accounted for 99 percent of Israeli arms imports between 2021 and 2025.

Germany never banned arms exports to Israel and even lifted a limited restriction to new licenses announced in August 2025 just three months later. This practice is difficult to compute with countless reports by the UN and NGOs about Israeli war crimes, crimes against humanity and genocide in Gaza, giving the impression that the government took an “ostrich approach to Israel’s violations of international humanitarian law” in its continued licensing practice, ignoring evidence of international humanitarian law violations left and right.

A Framework of Protection for Whom?

When a system for arms exports licensing does not prevent these numerous approvals after two years of an unrelenting assault on Gaza riddled with violations of international law, one should question who this system protects: Not civilians like Abdalrahman, who stated in his affidavit to the court that “nowhere is safe in Gaza”. With nowhere to hide, Palestinian civilians are at the mercy of the Israeli army, which is heavily equipped with German arms.

As per the German legal framework, decisions on arms exports must observe European and international legal instruments such as the Arms Trade Treaty and the EU Common Position. Both prohibit transfers when an “overriding” or a “clear” risk exists that arms could be used in violations of international humanitarian law.

Due to the rejection of judicial review, whether or to what extent the German government applied this framework was left unanswered. German arms exports are licensed behind closed doors, and publicly available information about them remains extremely limited. Whatever information is disclosed retroactively is so abstract and fragmented that it hardly allows for critical review by parliamentarians, media, citizens– or, if they had been willing, courts.

The Road not Taken: A Missed Chance

The case brought by Abdalrahman presented the GFCC with a unique opportunity to address these evident violations of law. It also offered the opportunity to test criteria the same court had developed less than a year prior: whether a “duty to protect” existed, and whether Germany failed to fulfill it.

The GFCC’s Ramstein-Decision

The doctrine of the “duty of protection” in extraterritorial contexts was established in the GFCC judgment of July 2025, which concerned the repercussions of the use of the U.S. military airbase in Ramstein, Germany, for American drone warfare on Yemen.Supported by ECCHR, two Yemeni plaintiffs whose family members had been killed by U.S. drone strikes brought the lawsuit to halt the use of the airbase in carrying out drone attacks violating international law.

The plaintiffs based the lawsuit on their constitutional right to life. Although the GFCC ultimately held that the German government was not required to intervene, the court crucially recognized that German constitutional law may give rise to a duty of protection (para. 82) for foreign civilians in a foreign war zone. It made this contingent on two preconditions: first, a sufficient link to the German state, and second, a serious risk of systematic violations of international humanitarian law and international human rights law protecting life (para. 86).

Nevertheless, the court refrained from properly reviewing these standards, claiming that a serious risk of a systemic violation of the applicable law would not exist (para.120). While this assessment is questionable, the developed criteria in the Ramstein-case seemed to precisely fit the scenario of German arms export approvals to Israel during its assault on Gaza. In that respect, the case at hand could have offered a textbook example of applying and affirming the GFCC’s newly developed standard for the first time.

On (Not) Applying Ramstein

Yet, the court skirted any determination on whether a duty to protect existed by already dismissing the case on admissibility grounds. It simply but fatally denied the plaintiff had standing to challenge arms exports in German courts.

Access to German administrative courts is preconditioned on standing. Only in limited scenarios are “third parties” eligible to challenge administrative acts in court. In the context of arms exports, only the responsible licensing authority and the applying arms manufacturer are parties to this process. Meanwhile, civilians in Gaza, whose life such arms endanger post-export, are considered third parties. To litigate before German courts, they need to demonstrate that a legal norm protecting their rights may be violated.

Like the Yemini plaintiffs in the Ramstein-case, Abdalrahman invoked his right to life: By approving the export of tank components to Israel, a state repeatedly and systemically violating international law in Gaza, Germany jeopardized his life.

The GFCC rejected his argument. In its view, the existence of an objective “protective” legal framework for arms exports already fulfilled the German government’s general protection mandate (paras. 85, 95, 110). Seeing as this system allowed rubber-stamping arms exports to a country whose prime minister is wanted by the International Criminal Court and which has ignored multiple provisional measures orders by the International Court of Justice, the GFCC’s reliance on an allegedly comprehensive regulatory framework (para. 86) is striking. It treats the existence of laws as evidence of effective protection.

By dismissing the case as inadmissible, the court evaded engaging with the substantive scope of the duty to protect in the context of Gaza. This is particularly problematic as the existence of legal standing partly depends on whether the complainant can invoke a subjective right. In constellations of protective duties, such rights may arise precisely where the state is under an obligation to prevent serious risks to fundamental rights. The court’s dismissal created a self-reinforcing barrier to review, rendering the duty to protect non-justiciable by procedural design.

A more convincing approach would have required the GFCC to heed its own jurisprudence on the constitutional duty to protect, rather than decapitating it at the admissibility threshold. The court should have reaffirmed that the right to life under Art.2(2) of the German Constitution entails not just negative obligations but comprises a positive duty to protect against serious threats, including abroad.

Establishing a regulatory framework alone cannot protect anyone from harm. Applying it can. The court should have clarified that where the state creates or increases hazards to constitutional rights, particularly to the lives of people, it must prevent such hazards from materializing. By not doing so, the GFCC transformed a substantive guarantee into a formality. It voided it of meaning.

This approach of evading determinations on the duty to protect is even more blatant in the face of the facts. The first precondition, a sufficient link to Germany, is met: Germany is not only the second biggest exporter of arms to Israel, but also the only country capable of providing Israel with the tank components in question. Moreover, the Merkava tanks are crucial for Israel’s ground offensive in Gaza, and numerous reports documented the use of tanks in Israeli violations of international humanitarian law. The second precondition, a serious risk of systematic violations of international humanitarian law, is evident too, especially as this risk had already materialized in Gaza, and Israeli assaults on the civilian population, including genocide, continued even after the so-called ceasefire.

Unbounded Discretion

The court’s reasoning further relies on an overly expansive conception of governmental discretion. It deemed diplomatic talks, humanitarian assistance andIsraeli assurances as sufficient safeguards (para. 111). Yet they manifestly failed in preventing further Israeli violations of law in Gaza, a reality the court failed to meaningfully consider.

When there is a serious threat to life, discretion narrows, and, in especially dire situations, may be inapplicable altogether (para. 106 with further references). When only one specific measure can effectively implement the duty to protect, that measure becomes obligatory.

In Abdalrahman’s case, the threat to his right to life – a constitutional right of the highest rank – reduces the margin of discretion to zero. The same conclusion follows under international law: The Arms Trade Treaty prohibits arms exports when there is an overriding risk that exported arms could be used to commit serious violations. Additionally, the Genocide Convention and the Geneva Conventions stipulate a duty to prevent genocide and other violations of international law. Against this legal backdrop, revoking the contested export licenses was the only constitutionally permissible option in implementing the duty to protect. By not doing so, the GFCC failed to rectify a serious shortfall in the protection of fundamental rights in the high-risk area of arms exports, and instead allowed for unchecked, and by that, unbounded executive discretion.

No Limits, No Oversight, No Accountability

The decision of the GFCC leaves several questions unanswered: If under the current circumstances neither the government nor the courts will stop arms exports to Israel – something that UN experts already urgently called for in early 2024 – when would they? If affected civilians are denied legal standing in a human rights-sensitive area such as arms exports, where class-action rights are not available either, what are the consequences? Can governments just continue to openly disregard their own set of rules as well as binding international and European law? No limits, no oversight, no accountability? And what would that ultimately mean for the division of powers doctrine– a central pillar of democracy?

A protection regime that is a scaffolding set in law but disregarded in practice is ultimately not worth the paper it is written on. If courts refrain from intervening in cases of overt disregard for the law, an important corrective mechanism is lost. When even the Federal Constitutional Court, the “Guardian of the Constitution” refuses to take action, civilians in Gaza, the West Bank and beyond will bear the price of Germany’s adamant – and deadly – support, privy to the government’s unbound discretion.