Process-oriented Review in German Arms Export Litigations: Beyond Victories and Defeats

The ongoing humanitarian situation in Gaza presents complex legal and ethical challenges. As the ICJ considers Nicaragua v. Germany, the international legal community is examining how German courts have assessed the legality of arms exports to Israel. This article aims not to present generalizable judicial principles but to demonstrate that procedural governance is key to navigating this intricate legal and ethical landscape.

Recent EJIL: Talk! Commentaries on Berlin and Frankfurt administrative court decisions characterize them as adopting a “hands-off” approach (Burck and Strobel) or erecting “almost insurmountable barriers” to judicial review (Hartmann, Köhne, and Widdig; Köhne and Widdig).

However, this narrative does not face the doctrinal basis of domestic administrative review. A careful analysis of the logic and reasoning of the lower courts and German Federal Constitutional Court (BVerfG) indicates that equating procedural reviews with judicial abdication is misleading, and that the German judiciary seeks to fulfill its responsibility to international law by translating it into domestic procedural constraints. Examining this review methodology, understood as a “process-oriented review”, brings to the surface the true message behind the German courts’ decisions.

Administrative Courts’ Decisions

Some critics argue that courts fail to enforce International Humanitarian Law (IHL) by erecting insurmountable procedural barriers—such as denying standing through restrictive interpretations of domestic and European human rights law—and by sidestepping the risk-based approach required by international frameworks in favor of overly deferential “arbitrariness” tests.

On the other hand, a closer reading reveals that the German judiciary does not ignore international law but rather translates these obligations and their legal interests into the domestic legislative and administrative process. This translation is inevitable, as export control is generally governed by domestic administrative law. In Germany, this system includes the Weapons of War Control Act (KrWaffKontrG) and the Foreign Trade and Payments Act (AWG). Within these frameworks, administrative courts regard national security and foreign policy as a “political process” assigned to the legislative and executive branches. Judges sit on the bench as specialists in law and not in national security or diplomacy. As the Frankfurt Administrative Court noted,  judicial self-restraint aims to guarantee “free policymaking space” (para. 18 of its decision on 16 December 2024).

Although all the decisions denied standing, the courts, in determining standing, did review the political and administrative processes. For example, the Frankfurt Administrative Court’s decision on 11 September 2024 required the German government to assess the legal situation, if necessary, in consultation with its EU and international partners, and to verify that the export requirements were continuously met. To ensure the government can speak with a single voice in foreign policy, judicial review becomes possible only if the government fails to base its decisions on reasonable considerations (para. 32). Likewise, the Berlin Administrative Court’s decision on 12 November 2025 confirmed that executive actions remain open to legal challenge, even when it could have simply dismissed the case as goods were already delivered to Israel. Though denying the plaintiffs’ legal interest, it analyzed changing circumstances, including the ICJ’s provisional measures in South Africa v. Israel, the ICC arrest warrants against high-ranking Israeli officials, and Chancellor Merz’s August 2025 statement halting arms exports (paras. 27-30), and reaffirmed that the executive must continually recalibrate its prognostic decisions in light of evolving circumstances (para. 31).

If critics perceive these attitudes as rendering domestic judges “bystanders”, German courts should be characterized as “active”, rather than “passive”, bystanders. They should remain bystanders unless the quality of decision-making process is unacceptably poor, as they are neither perfect actors nor muscular interveners.

Constitutional Court’s Decision

The BVerfG affirmed this administrative logic in its decision of 3 February 2026. It rejected a constitutional complaint by a Palestinian resident of Gaza seeking to annul two German tank parts export licenses (para. 70). Although this decision has been criticized as “pseudo-protection of fundamental rights”, close analysis of the Court’s reasoning elucidates its process-oriented character.

First, the Court distinguished between administrative standing and constitutional duties. It affirmed the lower courts’ interpretation that the AWG does not grant third parties individual standing to challenge specific export licenses (para. 82). Crucially, the Court also acknowledged that the constitutional right to life and physical integrity (Art. 2(2) of the Basic Law) and the principle of openness to international law create a general duty for the state to protect IHL and human rights, even extraterritorially (para. 78).

Second, it defined the standard of review. The BVerfG emphasized that the executive has a wide discretion in fulfilling the constitutional duty to protect, particularly in the highly sensitive realm of foreign and security policy (paras. 79-80). Therefore, the judiciary’s role is not to dictate specific foreign-policy outcomes or blanket export bans. Addressing the applicant’s argument that the government’s discretion was reduced to zero, the Court held that an individual claim for a specific protective measure arises only if the government has remained entirely inactive or has taken manifestly unsuitable measures (para. 105).

Third, the Court checked procedural rationality. It found the government had tried to fulfill its constitutional and international duties through systemic and procedural safeguards, such as:

• Establishment of a comprehensive legal framework to prevent relevant exports from posing excessive risks to human rights and IHL, incorporating obligations from the Arms Trade Treaty and the EU Common Position (paras. 94-95).
• Adaptation of its export practices to the evolving conflict in Gaza with continuous monitoring (paras. 110-111).
• Significant reduction of the overall export volume of armaments and eventual cessation of war-weapons exports to Israel (para. 111).
• Diplomatic assurances regarding compliance with IHL, continuous dialogue with Israel, and humanitarian aid (para. 111).

Furthermore, the exported items in question—tank gear parts—are classified as “other armaments” rather than “war weapons”. This weakens the causal link between the exported goods and IHL violations, giving the executive wider discretion (para. 112). Since the executive used its procedural tools to assess risks and adjust exports in accordance with the relevant rules, the BVerfG rejected the plaintiff’s challenge.

This ruling illustrates the overarching theme. German courts do not view international law as a tool for “judicial micromanagement” of foreign policy. Instead, they treat international obligations as imperatives that must be continuously evaluated and managed through domestic administrative procedures.

Beyond Victories and Defeats in Litigations

Ultimately, export controls are governed by administrative law, and domestic judicial review must conform to established principles of administrative review. Here, we should not naively expect that international human rights law or IHL have settled all value judgments. Export control often requires a nuanced balancing of competing interests and judicial deference to the expertise and policy value judgments of political branches. This respect for the policy-making process exemplifies not only the importance of the right to participate, directly or indirectly, in government, enjoyed by people with diverse beliefs but also the foundational aspects of the national implementation of international law and export controls.

This does not mean that international law is ineffective, nor that plaintiffs are left hopeless. In the German cases, plaintiffs lost because the government took considerable steps, such as continuous assessments in light of IHL. In cases like Gaza, executing these procedures is expected to—and indeed did—accompany substantive measures like large-scale export injunctions, though not an immediate blanket ban. Had the government failed to implement procedures, a victory for the plaintiffs would have been a distinct possibility. Indeed, in the Dutch F-35 litigation, both the Hague Court of Appeal and the Supreme Court also employed a process-oriented review and intervened in the political process by requiring the government to reassess risks.

Therefore, instead of lamenting the impotence of international law or the judiciary’s reluctance to micromanage, the authentic approach is to confront political and administrative decision-makers with persuasive discussion, even after the judiciary has to step back. It must include, for instance, why halting the export of just two licenses for specific tank gear parts is a critical intervention to prevent the destruction of human life in Gaza, rather than an abstract legal debate, and why the resulting mitigation of concrete humanitarian risks must override any competing interests.

Failing to engage in the public process strongly advocated by Habermas, and merely confining debates to academic circles, does not align with the idealistic outlook international legal scholars should have, as articulated by Oppenheim (pp. 355-356). While this process may be slow and stressful, the underlying message we should take from the German courts is that the key to resolving this issue lies beyond a strictly court-centric mindset and the short-term legal victories and defeats: better procedural governance. Extracting this message, applicable to most other states, may have been the most profound achievement of the plaintiffs’ legal challenge. Though winning or losing in court is by no means meaningless, litigation itself, not just victory, can be part of the social and political process toward better governance.

Given the devastating situation and the many lives lost in Gaza, whether to accept or reject this message remains an open question. We must continue to debate for a shared normative outlook.