On 19 September, the Higher Administrative Court (VGH) in Kassel decided not to grant a Palestinian complainant interim legal protection against German arms exports to Israel. The decision is one of a series of rulings by German administrative courts that have thus far denied legal protection to people from Gaza – even though German armaments are also specifically being used against the civilian population in Gaza. Such a practice raises constitutional concerns: constitutional jurisprudence has now established that the fundamental and human rights of individuals must also be respected in foreign policy decisions.

The complainant is now considering filing a constitutional complaint to bring the violation of his fundamental rights before the German Federal Constitutional Court. The complainant is supported by Al-Haq, Al Mezan Center for Human Rights, the Palestinian Centre for Human Rights and ECCHR. Dr. Alexander Schwarz, Co-director of the International Crimes and Legal Accountability program at ECCHR, criticizes the decision:

Arms exports that enable attacks on the civilian population in Gaza in violation of international law are themselves in breach of international law. The decision of the court fails to recognize the meaning of fundamental rights. A state that approves arms exports to war zones must strictly adhere to international law and protect human rights. In the case of Gaza, the situation is clear: Israel's military conduct is systematically violating international humanitarian law, with no end in sight to these practices. And without spare parts from Germany, the Israeli tanks cannot operate. The numerous reports of systematic violations of international law by the Israeli army highlight the urgent need for judicial review of government decisions on arms policy. The courts' stance to date must be corrected by the Constitutional Court.

Background

This case concerns transmission parts for Israeli Namer and Merkava tanks. These tanks are used in significant numbers in Gaza. The Israeli armed forces' ground war could not be waged without these tanks, which are kept operational through the use of German spare parts. This, in addition to many other factors, endangers the life and limb of the complainant living in Gaza. Therefore, he turned to the administrative courts to seek a preliminary suspension of export licenses granted by the Federal Office for Export Control with the approval of the federal government.

The Higher Administrative Court in Kassel has now upheld a decision by the Administrative Court in Frankfurt am Main, which had denied the complainant a legal review of the export licenses. In the opinion of the court, German foreign trade law is not designed to confer any rights whatsoever to those who are endangered or even killed by German armaments; nor could the complainant invoke his fundamental and human rights before the Higher Administrative Court, as the export licenses in question were not directed against him personally. Furthermore, the court held that the Federal Republic of Germany could not exert any influence on Israel's military conduct, and the tanks equipped with the spare parts at issue in the proceedings might possibly be used elsewhere, for example in Lebanon or Syria. The Administrative Court thus found that there was no legally relevant connection between the export licenses and the complainant's exposure to danger as a result of Israel's military conduct in Gaza. The Higher Administrative Court therefore did not consider it necessary to address the issue of whether this military conduct was in breach of international law.

The Palestinian complainant himself suffered severe personal losses as a result of attacks by the Israeli armed forces: his wife and child were killed in an airstrike in February 2024. Shortly thereafter, his father and several brothers were also killed. As someone internally displaced multiple times, he now lives in inhumane conditions in a makeshift accommodation. He claims that Germany's continued arms shipments to the Israeli armed forces endanger his life and bodily integrity. And with good reason: reports document that Merkava and Namer tanks are being used against Palestinian civilians – most recently in tent camps and near food distribution points, and currently in the ground offensive on Gaza City.