Introduction: Facts and Background of the Case
On 15 July 2024, five individuals from Palestine applied for interim legal relief before the Administrative Court Frankfurt against the Federal Republic of Germany. They challenged arms export approvals by the German Government to Israel and claimed that these endangered their bodily integrity and life. The applicants argued that German arms control law should be interpreted in consideration of the duty to protect the right to life based on Art. 2 (2) 1 German Basic Law. They held that the export approvals violated several international law obligations and were thus unlawful.
Several human rights NGOs supported the applicants, the European Center for Constitutional and Human Rights (ECCHR), Palestinian Centre for Human Rights, Al-Haq and Al Mezan Center for Human Rights. This legal action is embedded in a wider array of strategic litigation cases relating to arms exports to Israel. The ECCHR already supported another case before the Administrative Court Berlin against arms exports to Israel under the War Weapons Control Act (WWCA). The Berlin Court dismissed the application together with two similar cases, finding insufficient need for legal protection due to uncertainties as to whether the German Government would approve future exports (discussed in detail here). The Berlin Court remained silent on questions of standing and the merits of the case.
German Particularities in Regulating Arms Exports
The German arms export control regime is split between two categories of exports: “weapons of war” and “other military equipment”. The former is regulated by Article 26 (2) German Basic Law and the aforementioned WWCA, which require authorization of all exports of items classified as weapons of war. The plaintiffs in the Berlin cases complained against potential harm created by exports under this regime. In contrast, “other military equipment”, i.e. military items not enumerated in the weapons of war list (e.g. certain munition, targeting equipment, spare parts, and software) are covered by the more permissive Foreign Trade and Payments Act (FTPA) and Ordinance (FTPO). These follow an assumption of general freedom of trade, with possible restrictions for certain goods, listed in an annex to the FTPO. These goods also require approval by (a different) national authority, albeit less stringently reviewed than goods under the WWCA. The plaintiffs in the Frankfurt case sought interim legal relief against export licenses provided under the FTPO, thus complementing the Berlin litigation under this differing regime.
The separation between categories of arms is a German particularity, at times leading to conflicts with European Union and international obligations. Especially the EU Council Common Position on Exports of Military Technology and Equipment (EUCP) and the Arms Trade Treaty (ATT) impose obligations on licensing authorities to evaluate several factors in their decision. This includes, among other issues, an assessment of whether a risk exists (risk-based approach) that such military items might be used in the commission of serious violations of international humanitarian law (IHL) (see exemplary Article 7 (1) b) i) ATT and Article 2 (2) c) EUCP), which would then require the denial of the license request. The FTPA in paragraph 4 (2) requires compliance with such international obligations and, therefore, implements these criteria into the German licensing procedure.
However, neither the WWCA nor the FTPA provide avenues for judicial review submitted by individuals or NGOs (unlike in for example the Netherlands), which is why the plaintiffs had to develop their case based on violations of their fundamental rights. The problematic effects of a lack of explicit regulation for such judicial review of German arms export decisions were pointed out by NGOs (including the ECCHR) in efforts to lobby the current Government to include relevant provisions within a unified Arms Export Control Act, which is currently in the drafting stages.
Decision of the Court: No standing of the Applicants and No Duty to Protect
On 11 September 2024, the Administrative Court Frankfurt dismissed the case as inadmissible due to lack of standing and as evidently unfounded on the merits. The Court followed the Government’s reasoning that the relevant rules of German arms export law do not protect individuals. The Frankfurt Court curiously further dismissed the plaintiffs’ standing based on Article 34 European Convention on Human Rights (ECHR). The Court cites the European Court of Human Rights (ECtHR) reasoning in its “Klimaseniorinnen”-decision, stating that standing before the Court requires a heightened level of personal affectedness. Yet, Art. 34 ECHR is solely limited to standing before the ECtHR and irrelevant to administrative proceedings before German courts. The ECtHR’s ruling may be used to interpret German administrative law but cannot serve in itself as an argument for the denial of standing. Unfortunately, the Frankfurt Court does not provide further elaboration and thus seemingly misinterprets the applicability of Art. 34 ECHR to this case.
The Court’s reference to Article 34 ECHR becomes even more concerning when it opines that the plaintiffs are not affected by the war and potential violations of IHL to a heightened personal level since they are “uninjured, working, middle-aged men” (para 22 of the decision) and therefore not the most vulnerable group affected “beyond the catastrophic scale” of the conflict. Such a position is troublesome since the right to life, and the application of IHL are not contingent on whether an individual is a member of the most vulnerable group in an ongoing armed conflict but are characterized by their universal nature.
The Court proceeds to interpret the duty to protect the right to life based on Art. 2 (2) 1 Basic Law in a questionable manner. First, the Court acknowledges that fundamental rights outside its territory also bind German state power and that foreigners abroad can invoke these (building on the German Constitutional Court’s decision relating to Federal Intelligence Service Powers). Yet, the Court denies that this finding of applicability of rights leads to standing in the case by citing parts of the Federal Administrative Court’s “Ramstein” decision. According to this doctrine, an extraterritorial duty to protect requires not only past patterns of violations of international law but also a predictable chance that such violations will occur in the future. This is highly problematic as it unreasonably undermines the protection of life by rendering the emergence of a duty to protect dependent on the unclear and coincidental requirement of sufficient prior violations of international law.
The Court concludes that the German state can only be required to cease activities if there was a comprehensive evaluation of all aspects of the conduct of hostilities, which goes beyond listing isolated occurrences of IHL violations. This position ignores the risk-based approaches applicable in arms control law (i.e. the EUCP and the ATT), which only necessitate a clear risk that violations could occur, not a full judicial review of the conduct of hostilities. Here again, the Court conflates different legal regimes instead of applying the appropriate standards.
A Wide Margin of Discretion for the Government and National Courts as Bystanders
ln contrast to the Berlin judgment, which refrained from engaging with arguments on the merits, the Court in Frankfurt proceeded to a cursory evaluation, concluding that these are wholly unsubstantiated. The Court holds that the Government enjoys an extensive margin of discretion on all matters of foreign affairs, and consequently, domestic courts are reduced to only review the legality of executive acts under international law in cases of blatant arbitrariness. The Court bases this position on the 1980 “Hess”-decision of the German Constitutional Court, which declared in that specific case that international affairs necessitate a unified national voice and, thus, legal review of executive acts by domestic courts would be a hindrance. However, the Constitutional Court adjusted this approach to international law over the past decades, moving towards an obligation for courts to judicially review compatibility of executive acts with international law (most poignantly in the “Varvarin” decision).
By relying on the outdated approach of the “Hess” decision, the Frankfurt Court concludes that export licensing decisions to Israel are not blatantly arbitrary and thus do not require judicial review. As evidence that such licensing decisions are not capricious, the Court cites Israel’s right to self-defense, the fact that Germany considers Israel’s security as part of its “Staatsräson” (raison d´État; on how this concept influences Germany’s position on international law see Ambos), finances the delivery of aid to Gaza and supports a peace process (all para 24). The Court does not elaborate further on why it considers these political arguments relevant for a decision on the merits. By limiting its review solely to the question of arbitrariness, the Court moreover, voids any sufficient remedies of the plaintiffs to their rights to life and to effective legal protection.
Lastly, the Court acknowledges that it lacks insights into the evaluation processes of export licenses (para 30). Nevertheless, it concludes that previous decisions of the Berlin Administrative Court as well as the International Court of Justice (ICJ) decision on provisional measures in the Nicaragua v. Germany proceedings are sufficient to assure the Court of the legality of Germany’s executive acts. This fails to recognize that the Berlin Court, by its own admission, only had some limited insights into the issuing processes of licenses under the WWCA but did not make any pronouncement on how licenses under the FTPO are handled. The Frankfurt Court additionally blatantly misrepresents the ICJ’s decision on provisional measures, which did by no means consider the question of whether German licensing processes are sufficient – it simply found that at this point, no provisional measures are necessary (mainly due to the German pleading that it already ceased arms exports to Israel).
In the last paragraphs, the Court felt compelled to question the validity of UN expert reports concerning violations of international law by Israel (para 31). It attests an anti-Israel bias to some UN organs, citing a non-academic popular book from 2018 and three German newspaper articles criticizing individual statements by Francesca Albanese, the UN Special Rapporteur on the Situation of Human Rights in the Palestinian Territories. Similar to the evaluation on the merits, the Court was not obliged to opine on this since it had already concluded that the complaint was inadmissible. In light of this, it appears even more concerning that the Court decided to blanketly call into question the evidence presented by numerous UN experts but was not bothered to expand on this beyond one paragraph or by citing at least a wider fundus of sources for its assertion.
Conclusion
In absence of a comprehensive and all-encompassing judicial organ on international law, domestic courts must play a prominent role in enforcing legally binding international norms. The various cases on arms exports to Israel have and will force European Courts to find a way to square international obligations with political realities. The Berlin Court took a purely administrative approach (as observed here), remaining silent on the merits and the role of international law before domestic courts. The Court in Frankfurt seemingly felt compelled to go beyond this, and even though it could have stopped after finding that the applicants had no standing, attempted to address the case on the merits. On the one hand, this consisted of a very restrictive reading of extraterritorial duties to protect the right to life. On the other hand, the Court managed to re-introduce an outdated doctrine, positioning domestic courts as mere bystanders, not involved in the enforcement of international law.
Apart from these questionable but somewhat legally arguable positions, the Court repeatedly conflated the applicable legal standard by ignoring the risk-based approach of arms control law, mixed ius ad bellum arguments into ius in bello questions and included a thinly veiled attack on the UN’s credibility without providing any serious substantiation. While the German Government seemingly halted a vast majority of arms exports to Israel since last March, this was not the result of stringent legal review by domestic courts. With the Frankfurt Court positioning itself as unwilling to enforce international legal obligations and the envisioned German Arms Export Control Act not containing more direct avenues for public interest litigation against arms exports, it seems that adherence to international law, at least when it comes to arms exports, will remain a courtesy of the respective Government (and their fear of losing at the ICJ).
An appeal is permissible and it remains to be seen whether the Higher Administrative Court will follow the “safe” route of Berlin by remaining silent on the merits, accept the Frankfurt Court´s questionable arguments, or comes up with an altogether new approach to ensure the rule of (international) law in Germany.
Disclaimer: This piece was originally published at EJIL:Talk and is accessible on their Website.
Kristoffer Burck
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