The Failure of German Courts to Address International Law in Relation to Arms Exports

This analysis examines how German administrative courts create a governance gap while assessing the legality of arms exports to Israel. Recent decisions by administrative courts (ACs) reveal a recurring pattern. Actions challenging licenses for exporting weapons of war to Israel were declared inadmissible on procedural grounds, leaving the core question unanswered: whether these licenses comply with Germany’s constitutional duties and its international obligations in light of the situation in the occupied Palestinian territory. A restrictive approach to standing and to preventive and declaratory relief, coupled with a broad understanding of a core executive autonomy in foreign and security policy, demonstrated the courts’ reluctance to examine the substantive issues, even if their compatibility with international law is highly doubtful. In the future, courts must act with greater confidence and ensure compliance with international law in cases of plausible systematic violations.

Procedural Architecture as a Judicial Shield

A closer look at recent decisions of the ACs Berlin and Frankfurt shows how procedural law is used as a shield against substantive scrutiny. In both cases, plaintiffs were Palestinians living in Gaza.

In November 2025, the AC Berlin rejected actions against licenses for weapons of war to Israel by denying both preventive legal protection and declaratory relief. It held that further export decisions were not “sufficiently probable”, relying in particular on a political statement by the Federal Chancellor Friedrich Merz stating that there were no current intentions by the government to approve additional weapons of war exports. The Court also stated that the situation in Gaza had “fundamentally changed” since the “beginning” of the conflict. It therefore concluded that no risk of repetition existed. Furthermore, it stated that future decisions on the supply of weapons of war would fall within the core area of executive responsibility and could therefore not be predicted with certainty.

In 2024, the AC Frankfurt likewise dismissed applications for interim measures against the export of weapons of war and dual-use goods (including tank gearboxes) to Israel in two different cases (here and here). It held that the plaintiffs lacked legal standing because the Foreign Trade and Payments Act (Außenwirtschaftsgesetz – AWG) does not confer third-party rights to the claimant and therefore does not protect individuals potentially affected by the use of exported weapons. Individual standing before the AC requires a possible violation of a third-party protective provision (drittschützende Norm); since none was found, the applicants’ action was inadmissible. Also, the court found that it had no constitutional duty to protect the applicant. Instead, it invoked Germany’s raison d’État (Staatsräson) regarding Israel’s security and the core executive autonomy in foreign and security policy.

Considering that a significant number of our readers are English speaking and do not have an extensive understanding of German law, you would need to explain this a bit further.

The Limits of Core Executive Autonomy

The first line of argument favored by the administrative courts, namely an expansive reading of a core executive autonomy in foreign and security policy, does not withstand closer doctrinal scrutiny in the present cases. A reference to a core autonomy is appropriate where the Constitution leaves political choices genuinely open to the executive, such as the conduct of diplomatic relations or high-level strategic assessments. In 2014 the German Federal Constitutional Court (Bundesverfassungsgericht – BVerfG) held that, to safeguard the functionality and autonomous responsibility of the government, the core area of executive autonomy includes a sphere of initiation, consultation, and action that is, in principle, not open to investigative scrutiny. This doctrine also applies to decisions in the field of arms export law (para. 142). At the same time, the BVerfG stated that a right to information must impair the government in the exercise of its assigned independent functions in order to infringe its autonomy (Rn. 137).

However, this reasoning cannot simply be applied to the cases before the AC. The arguments put forward did not relate to decision-making processes, internal processes within the federal government, or political considerations. At issue was rather whether the federal government indirectly supports systematic violations of international law. This question cannot be obscured by the concept of executive responsibility. This consideration is also reflected in the specific provisions of ordinary law, illustrated clearly by the War Weapons Control Act (Kriegswaffenkontrollgesetz – KrWaffKontrG). With Section 6(3) KrWaffKontrG, the legislature has deliberately subjected export decisions to a dense legal framework. The provision enumerates mandatory grounds for refusing licenses such as a violation of the Federal Republic’s obligations under international law and is formulated as an obligation (“the license shall be refused”) once its factual prerequisites are met. This does not eliminate all evaluative judgment with respect to the underlying facts and risks. It significantly narrows the space for purely political balancing. To the extent that courts invoke a vaguely defined core autonomy to avoid applying Section 6 at all, they break with the logic of the statute: the constitutional room for maneuver has already been specified and limited by the legislature.

Statements about future arms deliveries are also not covered by this core area, contrary to the indication by the AC Berlin. Courts cannot attach serious weight to such a political declaration of intent, if only because it does not remedy past violations of fundamental rights. If a breach of the duty to protect has occurred, the courts can still determine this. In addition, the Chancellor’s announcement has proven unreliable in practice: on 17 November 2025, the Federal Government stated that the restrictions on arms exports to Israel would be eased shortly. Export data released in October 2025 had already indicated that approvals for military equipment to Israel such as ‘other military goods’ with limited transparency as to their concrete end-use had resumed. Against this background, the likelihood is high that exports of weapons of war may once again follow.

Judicial Review of Human Rights Violations Abroad

The courts’ second line of reasoning is to treat constitutional duties of protection as largely inapplicable once the specialized export statutes (KrWaffKontrG, AWG) are found not to be third-party protective. This was apparent in the AC Frankfurt decision, which rejected the claim almost exclusively by reference to the absence of individual rights under the AWG.

The jurisprudence on extraterritorial duties of protection (Schutzpflichten) by the BVerfG, and in particular in its so-called 2025 “Ramstein” decision, sets the benchmark. In this case, the BVerfG evaluated Germany’s involvement in US drone strikes in Yemen. The BVerfG derived a duty of protection for human rights abroad from being bound by the fundamental rights of the Basic Law (para. 87 ff.). This duty can crystallize into a judicially reviewable obligation when two conditions are met: first, a sufficiently close link between the risk-creating conduct and German state action (para. 100) – regularly present where German authorities enable or facilitate the use of force by third parties, including through arms export licenses. Second, a qualified risk of serious and systematic violations of applicable international law (para. 103). The BVerfG does grant the bodies responsible for foreign and security policy broad discretion in assessing whether the actions of a third country constitute a serious risk of systematic violations of international law and human rights. According to the Ramstein ruling, the central criterion for limiting the German government’s discretion for assessment in foreign policy is the reasonableness of the legal opinion taken by Germany (and indirectly by the respective alliance partner, para. 109).

Even if this strict judicial standard is applied, the rulings by the AC are not convincing in this regard. At least the admissibility, i.e., a possible violation of fundamental rights, future cases cannot simply be dismissed in the case of Palestinian plaintiffs. Against this yardstick, there is a strong case that Israel’s conduct in Gaza meets the threshold of a serious risk of systematic violations of international law. The assessment of the situation in Gaza has undergone a qualitative shift through recent proceedings before the International Court of Justice (ICJ). To name just one reference, in its 2024 order on provisional measures in South Africa v Israel, the ICJ found the violations asserted by South Africa under the Genocide Convention to be at least plausible and held that there is a “real and imminent risk” of irreparable harm to the Palestinian civilian population (see recently here, para. 32, 47). These obligations are widely understood as binding towards the international community (erga omnes) and, in the case of the prohibition of genocide, as reflecting a peremptory norm (jus cogens). Even before Ramstein, the AC Frankfurt questions the evidentiary weight of UN reports by alluding to the allegedly ‘not uncontested’ approach of UN bodies to the Middle East conflict, this falls short of a serious engagement with the extensive factual record before it.

For arms exports, this shift has far-reaching consequences. In light of the ICJ’s case law, the courts must at least take the possibility seriously that Germany may be contributing to these violations and cannot dismiss them as implausible on the grounds of admissibility, even if the strict standard from Ramstein is taken into account. This applies regardless of the pending proceedings in Recent press reports, however, suggest that the information provided by the Federal Government on arms deliveries was apparently incomplete – both to the parliament and the broader public and, even more crucially, in the proceedings before the ICJ.

Future Arms Exports

In exceptional cases, such as those involving the most serious violations of international law, the courts could in future also rely on the provision in Article 41 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARISWA). While an act of assistance, such as the aid to genocide being heard before the ICJ against Germany, requires a subjective element under Art. 16 ARISWA, Article 41 ARISWA addresses a different, more structural situation: serious breaches of peremptory norms of general international law. In such constellations, all states are under an obligation not to recognize a situation created by such breach as lawful and “to cooperate to bring it to an end”, and they must not “render aid or assistance in maintaining that situation”. The 2024 Advisory Opinion on the Occupied Palestinian Territory explicitly recognizes that Israel’s prolonged occupation, settlement and annexation policies entail serious breaches of obligations arising under peremptory norms of general international law, thereby squarely engaging the co-operation and non-assistance duties set out in Art. 41 ARSIWA. This means that specific legal obligations may arise even below the threshold of state aid. It is not unreasonable to assume that the government’s discretion to contribute to remedying violations of international law is reduced to zero in cases of arms exports.

The analysis of current AC practice on assessing arms exports to Israel reveals a dual deficit: procedurally, courts rely on narrow concepts of standing, lack of risk of repetition and the unavailability of preventive relief to avoid engagement with the merits. Although a fragile ceasefire has ended the most intense fighting for the time being, which has allegedly been violated many times, the humanitarian situation remains undeniably “catastrophic.” The urgency of clarifying the legal status of German complicity in violations of international law therefore remains undiminished. Going forward, courts must insist on compliance with international law if German arms deliveries are potentially supporting serious violations of international law. In addition to obligations under international law arising from ARISWA, this obligation arises directly from German law.

Conclusion

Taken together, these strands of law indicate that decisions on arms exports can no longer be treated as belonging exclusively to the realm of political raison d’État. If serious and systematic violations of international law have been substantiated, considerations relating to the core area of executive responsibility and the lack of third-party protection cannot automatically mean that the right to bring an action is excluded. The still precarious risk of repetition cannot be further overshadowed by vague considerations of executive responsibility. Courts must therefore ensure that the substantive legal questions, rather than procedural hurdles, guide the assessment of future export decisions.