Lawsuit before the Constitutional Court in Germany against arms exports to Israel fails – Middle East Monitor
The Federal Constitutional Court, the highest Court in Germany, has spoken. That sentence is the centre of gravity. It signals judicial restraint. It confirms that the Federal Government retains broad discretion in determining how it complies with its constitutional duty to protect fundamental human rights, including in the sensitive area of arms exports contributing to a warfare that is deemed genocidal by the United Nations.
This assessment is embedded in the legal framework governing German arms exports, including the relevant provisions of the War Weapons Control Act and the Foreign Trade and Payments Act, which define the procedural and substantive prerequisites for export authorizations and directly inform the court’s evaluation of the complainant’s standing. Beneath the formalism in its decision lies an act with profound political weight. The Court states: “However, how the state authorities fulfil their general duty of protection and any specific duties of protection is, in principle, their own responsibility to decide.”
The case concerns German-made transmission components for Israeli Merkava and Namer tanks, widely deployed by Israeli forces in Gaza and reportedly used repeatedly in violations of international law. Germany is one of the largest arms suppliers to Israel.
In concrete terms, this means the judiciary will not substitute its own assessment for that of the executive. It does not examine battlefield realities in Gaza – on the contrary, it states that it is unclear whether, when, and how the exported goods would be used in a way that directly affects the complainant, and therefore the complainant lacks a sufficiently concrete legal interest to claim constitutional protection. It will not determine whether particular weapons systems might contribute to violations of international humanitarian law. As long as the government can demonstrate that it has established a system to “effectively counter the risks” and has taken “concrete measures”, the constitutional threshold for intervention is not met. It remains unclear how the government counters risks. Just yesterday, Julia Klöckner, President of the German Bundestag, emphasised the friendship between Israel and Germany.
This evidently shows that the protection system referred to by the Federal Constitutional Court is ineffective in legal practice. When arms exports continue despite numerous indications of serious violations of international law, and affected parties are unable to challenge these decisions in court, the protection regime fails to provide meaningful legal safeguards.
“The Court acknowledges the duty to protect but only in the abstract and refuses to ensure its practical enforcement. For people whose lives are endangered by the consequences of German arms exports, access to justice remains effectively closed,” says Dr. Alexander Schwarz, Co-Director of the International Crimes and Accountability Program at the European Center for Constitutional and Human Rights.“Especially when life and death are at stake, the rule of law must allow for judicial oversight. Instead, this decision largely removes state action in this sensitive area from review. This is not persuasive.”
If courts do not intervene unless the state has entirely abdicated its duty of protection, then the decisive arena becomes merely political. This represents a discourse in Germany that constantly places Palestinian matters and rights in a political frame, even when they concern fundamental human rights.
The ECCHR is supporting the complainant together with Palestinian human rights organizations Al-Haq, Al Mezan, and the Palestinian Centre for Human Rights (PCHR). Shawan Jabarin, General Director of Al-Haq, commented:
“Germany remains bound by international law, including the Genocide Convention, and must not export weapons where there is a clear risk that they will be used to commit serious violations of international humanitarian law or contribute to genocide. Israel’s conduct throughout Palestine clearly violates international humanitarian law and the Genocide Convention. Germany’s continued adherence to a policy of ‘reason of state’ that defends Israeli crimes regardless of their scale and impact and trivializes the cost in Palestinian lives must be challenged. We will continue to pursue justice for the Palestinian people.”
Neither the legal landscape nor politics are abstract or neutral. The International Criminal Court has issued an arrest warrant against Israeli Prime Minister Benjamin Netanyahu on charges of crimes against humanity. The International Court of Justice, in proceedings concerning Gaza, has indicated that states have obligations to prevent genocide where there is a plausible risk and to ensure that their conduct does not contribute to such acts. In addition, proceedings have been brought before the International Court of Justice against Germany itself, alleging violations of the Genocide Convention in connection with its support and arms exports — directly linking Germany’s conduct to the duty to prevent genocide under international law.
The Constitutional Court’s ruling does not negate these developments. Nor does it declare German exports compliant with international law. It simply affirms that the assessment of risk lies “in principle” with the political branches.
If the government alone decides whether its general protection regime is sufficient in light of allegations of war crimes, crimes against humanity, or genocide, then accountability becomes a matter of parliamentary oversight and public scrutiny rather than constitutional adjudication.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.
