How Germany bends international law to continue selling arms to Israel
In a recent speech in the Bundestag to mark the anniversary of 7 October 2023, Germany's Chancellor Olaf Scholz denied that the country had decided to stop supplying arms to Israel.
The Federal Republic had made such exports and would continue to do so. However, as data published by the German government shows, there was a de facto ban on the export of weapons of war between March and August 2024.
The discrepancy between public positioning and actual practice reveals two things about German arms supply policy.
First, the German government itself assumes that Israel is breaking international humanitarian law in Gaza and has taken precautions to avoid legal liability.
Second, the debate on the legitimacy of arms exports in Germany is driven by domestic politics rather than by obligations under international law or considerations of conflict dynamics.
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Arms deliveries have become a test of political parties’ commitment to Germany’s Staaträson (the reasons of state), the more or less unconditional support of the Israeli state in the name of its security.
At the same time, however, the question of arms exports exposes the irresolvable tension between such a reason of state and Germany’s legal obligations.
Quasi-export ban
Scholz’s statement about continuous arms supplies is not factually incorrect - but it is misleading. The volume of German export licences for military equipment rose sharply after 7 October.
In 2023, approved arms exports to Israel increased tenfold compared to the previous year, and over 80 percent of licence applications were granted after 7 October. The licensing volume for war weapons amounted to over $21m in 2023, and as much as $344m for military equipment.
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However, there was already a significant decline from November 2023, followed by a drastic slump in export licences at the beginning of 2024.
German export law distinguishes between war weapons and other military equipment exports. By March 2024, the export of war weapons amounting to just $34,261 had been approved by the German government, which equals 0.02 percent of the annual average of approved exports to Israel since 2009.
According to the government, this figure remained unchanged as of 21 August 2024. There were also no actual exports of war weapons to Israel between January and June 2024. Between March and August of this year, there was therefore a quasi-export ban on war weapons to Israel.
Recently, arms exports have risen again. According to a report by the Ministry of Economics Affairs, arms worth around $33m were approved between 21 August and 13 October. Just one week after this report, this figure was corrected upwards by the Federal Foreign Office - it now says that arms exports worth $99m have been approved since August.
As of 17 October, according to the Ministry of Economic Affairs, this still did not include any weapons of war.
The turnaround in arms exports was accompanied by a discourse offensive by the foreign minister and several members of parliament, who continue to claim that Israel's military actions are part of self-defence and counterterrorism and that they are covered by international law.
But how can the steep decline in licences in 2024 be explained, and how does it fit the simultaneous and constant public reaffirmations of Germany’s commitment to arms exports?
Treaty violations
One important part of the answer is the numerous legal proceedings accusing Israel of international law violations and genocide in Gaza.
States bear secondary responsibility when supporting such violations materially.
In June, the Berlin administrative court rejected a lawsuit by Palestinians to halt arms deliveries, citing Germany’s months-long halt on exporting weapons of war to Israel.
Similarly, Nicaragua's bid to ban German arms exports through the International Court of Justice (ICJ) was denied for the same reason - Germany no longer exports weapons of war. The genocide case against Germany, however, is still ongoing.
Alongside the South African genocide case against Israel at the ICJ, these proceedings likely raised German concerns about treaty violations and obligations under the UN Arms Trade Treaty (ATT).
It is precisely against these legal risks of treaty violations, breaches of its secondary responsibility and the duty to prevent genocide that the German government has apparently attempted to hedge its bets in recent months.
Germany would then be in breach of its duty to prevent genocide, 'which is triggered as soon as it "had knowledge of a serious risk that acts of genocide might be committed"'
On 13 October, the German press reported that the government made Israel sign a clause as a precondition for further arms deliveries. This clause is said to demand a written assurance from the Israeli government that German weapons would only be used in accordance with international law - according to some reports, even that “arms exports from Germany would not be used for genocide”.
The exact content of the clause remains unknown. The German government explained to the Israeli side that its insistence on the clause is not an expression of mistrust, but a measure to prevent a general export ban. Courts could impose such a ban with the argument that German weapons could be used for acts contrary to international law.
As the Israeli government seems to have provided this assurance, the German government bets on not being held liable for Israeli war crimes.
The reports on the clause have revealed that the German government is aware of these crimes. If the clause actually ruled out the use of weapons for genocide, the German government would even consider it plausible that a genocide is unfolding - as do the ICJ and relevant genocide experts.
Germany would then also be in breach of its duty to prevent genocide, “which is triggered as soon as it ‘had knowledge of a serious risk that acts of genocide might be committed’”.
Deliberately deceived
The clause means that the German public has been deliberately deceived over the past few months. Instead of making public its doubts about the Israeli government's violence in Gaza, German politicians continue to support Israeli warfare unconditionally.
This lack of transparency undermines citizens' trust in state institutions and violates the basic principles of the democratic order. It also constitutes a serious breach of official duty.
Not only do representatives of the German government regularly leave the accusation of war crimes against Israel uncommented on, but the German government consistently claims that it has no knowledge that such Israeli war crimes were committed.
It also denies that genocidal acts are taking place in Israel. According to the federal chancellor, the accusation that Israel is committing genocide in the Gaza Strip is “entirely unfounded”.
These statements are difficult to reconcile with Germany's actual arms export practice of recent months.
They also contradict the numerous reports - including those submitted by the United Nations - which have repeatedly found war crimes and crimes against humanity committed by the Israeli army.
Why is the German government pursuing policies that aim to confuse the public? As a result, the German people are being led to believe that arms deliveries have taken place without interruption and are also unobjectionable under international law.
The confusion enables the German government to publicly uphold its commitment to the raison d'état, contain criticism from the opposition and continue to publicly and visibly support the Israeli government.
Internationally, the importance of this should not be underestimated, as Germany is one of the last remaining vocal supporters alongside the US given Israel's clear violations of international law.
The attempt to use bureaucratic tricks to dispense with obligations under international law and retreat to proceduralism belies the actually relevant question that can only be answered politically: does the German government want to provide military support to an Israeli government that, according to a growing number of assessments, is committing atrocity crimes and driving the regional escalation of the conflict?
The clear majority of the German population answers no to this question. In a similar vein, over 4,000 academics and artists have signed an open letter urging the German government to impose an arms embargo.
The issue of arms exports has taken on renewed significance in light of recent developments.
The German government must act in accordance with international law and fulfil its duty of care to inform the population of its findings
The International Criminal Court (ICC) has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant. The German government’s response has been marked by hesitation and ambiguity.
A government spokesperson stated that he finds it difficult to imagine that Netanyahu would be arrested in Germany, citing the need to "review domestic measures". Subsequently, however, the foreign minister emphasised that "no one is above the law".
A reconsideration of the German arms export policy has so far not entered the political debate – even though a reorientation of German foreign policy in this conflict is long overdue. This includes immediately enforcing an arms embargo.
On Friday, a federal press conference will be dedicated to the ICC arrest warrants and Germany's role, and will also address the question of Germany's past and future arms exports in particular.
Instead of further fuelling the escalating conflicts through new arms exports, the German government should focus on de-escalation. This includes immediately enforcing an arms embargo.
Such an embargo is also a logical consequence of the feminist foreign policy guidelines that the Federal Foreign Office has set itself.
Instead of continuing a despondent policy of blind solidarity and arms deliveries in the name of Staatsräson, the German government must act in accordance with international law and fulfil its duty of care to inform the population of its findings to the best of its knowledge and belief.
The views expressed in this article belong to the authors and do not necessarily reflect the editorial policy of Middle East Eye.
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