After ICC Arrest Warrants: Must Ger­many halt arms deli­ve­ries to Israel?

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International law scholars found it likely that the International Criminal Court (ICC) would issue arrest warrants against Israel's Prime Minister Benjamin Netanyahu, former Defense Minister Yoav Galant, and Hamas leader Mohammed Deif. The German government, on the other hand, appeared stunned by the news of Thursday, 28 November: Should they arrest the prime minister of a state whose security was once declared "part of Germany's reason of state" and later Germany's reason of state? Or should they ignore the ICC, which they helped establish and have supported since?

How the German government plans to resolve this dilemma is something it apparently has not figured out in the six months between the request for and issuance of the arrest warrants. And even after a statement by government spokesman Steffen Hebestreit on 22 November and now four rounds of government press conferences, the situation remains unclear. "We will carefully review the internal steps," the statement reads. In the first press conference after the ICC decision, Hebestreit said he "would be inclined to say," that he has "difficulty imagining that we would make arrests in Germany on this basis." 

A diplomatic refusal to arrest would be conceivable. Legal reasons such as immunity could also be invoked, as the French government did, but most German national and international law experts reject this view. The signal to other contracting states and future German governments is fatal, however. The reputation of the ICC and international criminal law is at stake, wrote international law professors Aziz Epik and Julia Geneuss on LTO.

The debate over a potential arrest is of immediate practical relevance only if Netanyahu or Galant visit Germany soon. That is why, as Foreign Minister Annalena Baerbock (Green Party) described it, the issue is "hypothetical." Moreover, Israel is currently trying at the ICC to have the arrest warrants suspended or at least granted suspensive effect. However, the ICC's decision could have legal consequences for the approval of arms deliveries to Israel. Does it make these unlawful if they weren’t already?

ICC decision as "another piece of the puzzle"

Government spokesman Hebestreit evaded this question at the press conference on November 22: "Arms deliveries to Israel are always subject to an individual review—and that remains the case now." The Foreign Ministry referred only to this in response to an LTO inquiry. The Federal Ministry for Economic Affairs , which is primarily responsible for the approval of arms exports, did not respond to an inquiry by LTO. That means, everything remains as it was: no halt to arms exports—each case will continue to be decided individually. On Wednesday, chancellor Olaf Scholz (SPD) was asked by the opposition in Parliament where the weapons were, which Scholz had promised to Israel in October. He responded, the government had made decisions to allow arms exports. The public will be informed as soon as the delivery will have been carried out.

Given the ICC's clear statements, can this still be considered lawful? Or do the international and national rules of arms trade call for a de-facto embargo of weapons for military use in Gaza?

"The decision is not necessarily a game-changer. But it does make it more difficult for the German government to argue that the approval of arms deliveries for use in Gaza is lawful," says Stefan Talmon, a professor of international law at the University of Bonn. While reports from the UN and NGOs had already warned of the threat of famine in Gaza, the International Court of Justice (ICJ) had repeatedly pushed for adherence to humanitarian law in the South Africa vs. Israel case. "These are all elements that must be considered in the evaluation. The ICC's decision is another piece of the puzzle," Talmon said to LTO.

Janina Dill, a professor of Global Security at Oxford, is even more explicit. That Germany violated international law by approving arms exports to Israel "should have been clear much earlier," she told LTO. "But the arrest warrant, especially against Netanyahu, who is still directing the war in Gaza, makes this even clearer."

Like Talmon, law professor Kai Ambos sees the arrest warrants as "another building block." "They reinforce concerns about arms deliveries in light of the international legal standard of 'overriding risk'," says the Göttingen-based criminal and international law expert, thereby referring to Article 7, Sections 1 and 3 of the Arms Trade Treaty (ATT).

The mere risk of serious violations of international law is sufficient

According to these prescriptions, arms exports cannot be authorized if the state determines that there is an overriding risk that the weapons will be used to commit or facilitate a serious violation of international humanitarian law.

If arms deliveries are already prohibited due to an overriding risk of violations of international law, it would be too simplistic to argue that the ICC arrest warrants do not constitute convictions. The ICC finds ”reasonable grounds to believe” that Netanyahu and Galant are responsible for severe crimes in Gaza. The accusations have been thoroughly discussed by LTO: a central one is the war crime of starvation as a method of warfare. The civilian population in Gaza had been deprived of food, water, electricity, fuel, and medicine, which resulted in the death of civilians. Although the chamber could not determine that all elements of the crime of "extermination" were met, it did find reasonable grounds for other crimes against humanity such as murder and persecution.

The chamber also confirmed the necessary criterion that these alleged crimes were committed as part of a "widespread and systematic attack against the civilian population of Gaza." Moreover, the ICC found reasonable grounds to believe that these acts not only took place during the investigation period but are still ongoing.

"Only" killing by omission?

All these charges are mainly based on the accusation of failing to provide the necessary humanitarian assistance. The Chamber, however, does not explicitly criticize the use of weapons. According to Article 7, Sections 1 and 3 of the ATT, arms exports are only unlawful if there is an overriding risk that the weapons could be used "to commit or facilitate" violations of international law. Could one argue, then, that the ICC accuses Netanyahu and Gallant only of murder and starvation by omission, whereas the permissibility of arms deliveries concerns "active" military actions? Then the ICC decision would not impact the lawfulness of arms deliveries.

Dill, Ambos, and Talmon, however, clearly reject this point of view. "The various crimes against humanity also contain active elements," says Dill. The armed conflict against Hamas, conducted with weapons, puts the civilian population in distress. Evacuations are enforced with weapons, and humanitarian aid is controlled, allowed, or blocked with weapons. Therefore, the actions condemned by the ICC might indeed be classified as "facilitating" violations of international law. The three international law experts also point out that the ICC finds reasonable grounds not only for starvation and murder but also, in two incidents, of the war crimes of intentionally directing attacks against the civilian population. "How could that happen without weapons?" Talmon asks.

In addition, Germany's diplomatic and material support for Israeli warfare could also violate other international legal obligations. This is especially true of Common Article 1 of the Geneva Conventions. This article establishes the obligation of states to ensure compliance with international humanitarian law also by other states. According to Dill, this means: "Arms deliveries must be conditioned, even if the violations of international law are not committed with these weapons. This is the difference between the Arms Trade Treaty, which concerns the use of weapons, and Common Article 1 of the Geneva Conventions, which concerns the enforcement of international humanitarian law itself."

However, the scope of the obligation to prevent other states from breaching international law can be disputed in certain cases. "Supplying weapons to Israel is certainly not a clear violation of common Article 1, because Israel is basically acting in self-defence," says Talmon. In case of self-defence, other UN states are in principle allowed to help the attacked state, even using armed force. In this situation, two fundamental values ​​of international law collide.

But Dill, Ambos, and Talmon agree that the ICC’s decision is another important element in evaluating the legality of arms transfers. Neither the German Federal Security Council (Bundessicherheitsrat) nor the Federal Office for Economic Affairs and Exports Control BAFA can ignore it.

Weapons approvals likely not subject to judicial review

These are the two bodies responsible for deciding upon export licenses for weapons and military equipment. Weapons under the War Weapons Control Act, such as automatic small arms, grenades, tanks, and combat aircraft, are decided upon in secret meetings of the Bundessicherheitsrat, with the participation of the Chancellor, the Minister of Economic Affair, and other ministers. Arms exports are approved by the Ministry of Economic Affairs. Other defense equipment, such as radar and communication devices, vehicles, and some small arms, ammunition, torpedoes, and bombs, are approved by BAFA, a federal agency subordinated to the Ministry of Economic Affairs.

Since October 7, 2023, arms exports have fluctuated significantly. In 2023, Germany approved arms exports to Israel worth 326.5 million euros, including 20.1 million for war weapons. Most of the export permits were issued after the Hamas attack on Israel. In the following months, however, arms exports were significantly reduced. By October 13, 2024, the volume had reached 45.74 million euros. However, after Chancellor Olaf Scholz (SPD) announced in mid-October in the Bundestag that Germany would supply significantly more weapons to Israel, the volume increased sharply. It has now reached 131 million euros for the current year, according to a recent response to a parliamentary inquiry by BSW MP Sevim Dagdelen. However, these are currently only other military equipment, as weapons were last approved in February.

Will this course change after the ICC decision? Hebestreit’s and Scholz’s remarks clearly indicate no change in the government’s Israel policy. However, under international law, there is hardly any room left to justify further arms exports. Scholz’s nonchalant attitude – everything as usual – can possibly be explained by the fact that German administrative law gives neither those affected nor NGOs a clear opportunity to challenge the approval decisions of the BMWK and BAFA in court. Administrative courts in Berlin – in May and again on Thursday this week – and Frankfurt have already rejected urgent applications by several Palestinians from Gaza as inadmissible this year. In the first Berlin case, the decision was upheld by the Higher Administrative Court. The issue of whether Israel adheres to international law was not even addressed by the courts.

The Frankfurt Administrative Court granted the Federal Government a wide margin of appreciation in the assessment of arms exports under international law. This was partly due to the legal framework involved. Unlike the War Weapons Control Act, the Foreign Trade Act, which sets out the rules on other arms and equipment, does not adopt the restrictions on arms exports under international law. According to Section 6 (3) No. 2 War Weapons Control Act, exports of war weapons may not be authorized if ”there is reason to assume that the granting of the license would violate the Federal Republic's obligations under international law or jeopardize their fulfilment”. In its decision, the Frankfurt Administrative Court emphasized how ”robust” the German arms control system is, although the criteria applied internally are not known neither to the public nor to the court.

Any Potential Risk of Genocide Also Renders Arms Deliveries Unlawful

The International Court of Justice (ICJ) had similarly been impressed by the German control process when it rejected Nicaragua's request for provisional measures at the end of April. In the related main proceedings, Nicaragua accuses Germany, among other things, of complicity in genocide. Whether Israel is committing such an act is still unclear. This accusation was never part of the arrest warrant request at the International Criminal Court (ICC), even though it is also an individual criminal offense. Apparently, ICC prosecutor Karim Khan did not find sufficient grounds to believe that Israel is acting with the genocidal intent necessary to "destroy, in whole or in part, a national, ethnical, racial, or religious group."

This core accusation, however, is made by South Africa against Israel before the ICJ. The ICJ has already issued three provisional measures orders against Israel, obliging Israel to take all necessary measures to ensure that no genocide occurs in Gaza. The offensive in the southern Gaza border town of Rafah was particularly criticized by the court. However, the decisions remained cautious in their wording – likely for the purpose of having a wide majority within the court. This is because the judges are not united on whether Israel is truly acting with genocidal intent. The ICJ has not yet commented on this matter.

However, "acts that carry the risk of genocide [...] are very likely still unlawful and possibly even prosecutable as war crimes or crimes against humanity," said Janina Dill in an interview with Verfassungsblog. And this, according to her, holds true even if they are later not classified as genocide, e.g., by a criminal court. Stefan Talmon, too, pointed out to LTO that the permissibility of arms deliveries does not depend on whether the ICJ declares a genocide – "the worst crime one can imagine."

Thus, the ICJ orders are also important pieces of the overall assessment of the risk of serious violations of international law, which would render arms exports unlawful. After the ICC arrest warrants, only a few more pieces of the puzzle are missing – if any.

 

This text is a translated and slightly revised version of the article published in German on November 28, 2024.