A quest for transparency in arms exports: The Berlin administrative court’s stance on exports of arms to Israel

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In May 2024, a German Berlin-based NGO, the European Center for Constitutional and Human Rights (ECCHR), the Gazan based Palestinian Center for Human Rights (PCHR) and the Al Mezan Center for Human Rights, as well as the Ramallah-based Palestinian human rights organization Al Haq and five Palestinian individuals from Gaza brought a case against the German government in an effort halt arms exports to Israel in light of the ongoing humanitarian plight in Gaza. The remedies sought included a request for provisional measures for ongoing and future as well as a request for judicial review for past exports since November 2023. This is yet another effort to cease arms exports to Israel after Nicaragua’s failure before the International Court of Justice and a similar but different case in the Netherlands concerning the shipment of F-35 Parts.

On June 10 2024, the Berlin Administrative Court (‘Verwaltungsgericht’) has rendered its decision to not provisionally prohibit the issuing of future export licenses for weapons to Israel (Order of 10th June 2024, Az. VG 4 L 44/24, VG 4 L 119/24 and VG 4 L 148/24). The case is interesting in several aspects. First how it was brought to Court and second how the applicants chose the German administrative law as an entry point to discuss Germany’s international legal obligations when exporting arms.

Applicable Legal framework

The relevant legal framework in Germany is the Foreign Trade and Military Weapons Control Act (MWCA) (‘Kriegswaffenkontrollgesetz’). The MWCA was enacted to implement the requirements by Art. 26 (2) of the German Constitution (Basic Law), that all weapon exports are to be regulated by law, and require authorization by the German government. This mechanism was designed to ensure a broader political responsibility and legal control by the German government prior to the issuance of an export license in this highly sensible field.

In practice, the decision on the export of war weapons is rendered by the Ministry for Economic Affairs, based on assessments by both the Foreign Office and the Ministry of Defence. Particularly problematic cases are decided upon in secret meetings of the Federal Security Council, where additionally the Federal Chancellery, as well as the ministries of finance, justice, interior and development cooperation are also represented. Reports on authorized exports are published on a regular basis (see here – only available in German). Although the government enjoys some discretion of what arms may be exported, the MWCA contains criteria, when arms exports must be prohibited. Notably Section 6 para. 3 no. 2 MWCA provides:

“Authorisation shall be refused if there is reason to assume that the granting of authorisation would violate obligations of the Federal Republic under international law or jeopardise their fulfilment”

This particular provision links the German domestic law to Germany’s international legal obligations. Using Section 6 the applicants before the Berlin Administrative Court claimed that authorizing potential export licenses to Israel would violate Germany’s “obligations under international law, as laid out in the Genocide Convention, the International Arms Trade Treaty and the Geneva Conventions” of 1949.

Decision of the Administrative Court

In its decision, the Court did not address the merits of the case given that the application was already considered not to be admissible. The Court stressed that it may only review executive action by the government that has either already taken place or that is at the very least imminent. The determining factor therefore is the predictability of an administrate act that might impair the applicants’ rights. In the Courts view, this would hold, even if there might be a human rights dimension underlying, e.g. a potential risk to the life and physical integrity of the applicants.

In applying this threshold, the Tribunal noted, that the German government did not authorize any shipment of arms to Israel since the beginning of 2024. Given that there were neither any export licenses currently being issued nor about to be issued by the German government, the requested measure would constitute not only provisional but ‘provisional preventive’ legal protection. Such provisional ‘preventive’ legal protection against merely expected or feared administrative orders is generally inadmissible and limited to exceptional cases. The Court noted that, under German administrative law it could therefore only exceptionally render a decision if two cumulative criteria are met, namely if there existed a sufficiently concrete indication that the German government will decide on an application for an export license under the MWCA in the very near future, and, secondly, further provided that such a decision would then run counter to Germany’s obligations under international law, as set out in Section 6 para. 3 no. 2 MWCA mentioned above.

Regarding the first issue, the Court found, that the applicants did not sufficiently demonstrate that potential authorization decisions under the MWCA were currently imminent, following the line of argument of the ICJ in its order on provisional measures in the case brought by Nicaragua against Germany. It highlighted that provisional measures may be indicated if informations over a possible export license come to light. Regarding the second criteria, the Court argued that there was no sufficient indication that Germany would violate Section 6 para. 3 no. 2 MCWA, even if asked to grant an export license.

The Court found it plausible, that the German government will render a well-informed decision on a case-by-case basis safeguarding Germany’s foreign and security policy concerns and most importantly its national and international legal obligations. Interestingly, the Court noted that this assessment is in line with the recent order rendered by the ICJ in the Nicaragua proceedings.

However, there are several shortcomings regarding the application of both of the two test criteria of the Court.

Arms export behind closes doors?

Following the reasoning of the court, that ‘preventive’ provisional measures are uncalled for, and that provisional measures could always be rendered once an export proceeding is imminent, implies that we know if, when and what weapons are to be exported. The Court found that the mere fact that Israel may have expressed a desire for further arms deliveries requiring authorization under the MWCA is insufficient to trigger provisional measures. German Arms export laws have long been criticized for their lack of mandatory data reporting rules and their lack of transparency with regard to decision making processes of licenses (see e.g. an analysis here and on the European level here). As a matter of fact, the public is informed afterwards and reports only contain the authorized cases (see e.g. the report by Forensis speaking to the number of authorization of war weapons until the 15th of February from the 21st of February, p. 22). Procedurally, this puts the burden of proof on the applicant.

It would not be the first time Germany delivered weapons to a war- or conflict-torn region  (see e.g. here) – in 2019 a network of journalists uncovered that German weapons, that were delivered to Saudi Arabia were used in Yemen, despite their pledges that this wouldn’t be the case. This leaves questions regarding to the justiciability of and effective remedy against potential export licenses in the past and the future.

Assessment of Germany’s international obligation regarding the export of military weapons

Under Section 6 para. 3 no. 2 MWCA Germany has a wide margin of appreciation on whether there are reasons to believe that the granting of an export license would eventually violate obligations of the Federal Republic under international law. It must therefore assess the probability of violations of international law by authorizing the exports (risk assessment).

As noted, the Administrative Court itself was quick to reference the decision of the ICJ in the Nicaragua v. Germany case. However, whilst the ICJ did not generally prohibit Germany to deliver arms to Israel, it did so on the basis of its finding “that the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures” (emphasis added; see the analysis by Wendtker and Stendel). This has been labelled by Talmon as “the victory that’s wasn’t”, taking the position that the Court did in no way imply that Germany may not be restricted in its delivery of weapons to Israel, rather that no decision had been made with regard to the future yet.

So, is this where the story ends? We would argue to the contrary. After all the ICJ is constricted regarding the international obligations it can rule on, keeping in mind both Art. 36 ICJ-Statute as well as other limiting principles such as (potentially) the Monetary Gold doctrine. On the other hand, the test under German national law is much broader, as Section 6 para. 3 no. 2 MWCA encompasses all obligations of Germany under international law.

This firstly includes the Arms Trade Treaty (ATT), more specifically Art. 6 and 7. Under Art. 6 para. 3 ATT, Germany may not authorize the transfer of arms, if it has knowledge at the time of authorization that the arms or items in question would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes. If the knowledge criterion is not met, Art. 7 para. 3 ATT provides for an additional risk assessment. The determining factor here is an overriding risk of “any negative consequence”. Equally, the EU Council Common Position on exports of military technology and equipment, imposes additional obligations. Under Art. 2 No. 2c). Member States shall deny an export license if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law. Art. 2 No. 6b) obliges the Member States to take into account the record of the buyer country with regard to its compliance with its international commitments, in particular with international humanitarian law (IHL) and human rights law (HRL).

In its decision, the Administrative Court avoided any specific engagement with HRL. This might have been the case for procedural reasons. Although it has been established by the German Constitutional Court in its Federal Intelligence Service decision, that under Art. 1 para. 3 of the Basic Law, German state authority is bound by fundamental rights and that this is not restricted to German territory, potential violations, e.g. of the right to life, might not fall under Germany’s jurisdiction when committed abroad in cases of arms exports (e.g. because of the question of control after export) and Germany has been reluctant to accept them with in these cases (Cf. Niebank, GSZ 2019, 146).

The Court could have easily however engaged with IHL. There has been much debate of the reach and external dimension of Common Art. 1 of the Geneva Conventions of 1949 (see Schmitt and Watts here or Milanovic here). States are also divided on whether Common Art. 1 of the Geneva Conventions of 1949 includes a negative action or positive action obligation, if it does have such an external dimension. In its decision on Nicaragua v. Germany however, the ICJ has seen it necessary to remind all the parties of their obligation to ensure compliance with IHL, whether or not they are party to the conflict in question (para. 23). Judge Cleveland highlighted that this includes “encouraging” IHL violations, where such a violation is “likely or forseeable” (para. 7). States must be proactive in that regard (para. 8). This means States must in any case conduct a risk assessment and refrain from measures that could predictably contribute to a violation of IHL. The EU Council takes a similar stance with regard to Common Art. 1 of the Geneva Conventions of 1949 in its User’s Guide to the EU Councils Common Position on exports of military technology and equipment, requiring the member states to exercise particular caution to ensure that their exports are not used to commit serious violations of IHL.

Reading all these criteria in light of the report issued by the UN Commission of Inquiry on Palestine just four days after the decision, which (unsurprisingly) found that both Hamas and Israel have committed violations of IHL and HRL, it begs the question why the Court did not engage with the above mentioned thresholds and applied them to the Case of Israel. Given Germany’s manifold international obligations in the field of arms exports ranging from the ATT and European Law to IHL and IHRL, one could have expected the Berlin Administrative Court to more properly engage with the different thresholds applicable under international law.

Case closed?

Despite these facts, the Court argued that it was neither in a position, nor was it necessary to engage with these standards. Procedurally, it boils down to the question of predictability and transparency. This purely administrative approach taken by the Berlin Administrative Court is quite surprising. It seems not to have taken into account relevant developments in international law, properly interpreting the decisions of the ICJ. To detach the domestic law from the international framework to such an extent is unfortunate. The decision thus stands in contrast to the one by the Hague Appeals Court. As will be recalled, the Court of Appeal in the Netherlands had relied on the ATT and the EU Common Position and had established a “clear risk” of violations of IHL under these frameworks (see an analysis by Castellanos-Jankiewicz). Arguably, in that latter case the Dutch government did not reassess their export decision after an original risk assessment had taken place in 2016, i.e. years before the current conflict in Gaza started. The government had contended, it was under no obligation to conduct a fresh appraisal. Keeping in mind the mounting evidence and reports in respect of Israel’s military strategy, the legal ‘wiggle room’ for the German government becomes smaller and smaller.

However, the last word is not spoken. For one, this decision only concerned the provisional measures stage of the proceedings pending a final decision on the merits. Second, in case the German government would decide to issue export licenses to Israel intended to be used in Gaza, this decision could still be challenged through ‘new’ provisional measures, as the Court noted itself. Lastly the applicants may still appeal the decision of June 10. Some of the lawyers have already signaled their intention to bring the case to the next instance.

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