Legally Binding Arms Export Regulations
Legally Binding Arms Export Regulations vs. Raison d‘État: An Assessment of Current German Arms Exports to Israel
Max Mutschler, Markus Bayer
In response to the attack on Israel on 7 October 2023, in which Hamas killed more than 370 Israeli soldiers and over 690 civilians and took 240 people hostage, German Chancellor Olaf Scholz confirmed the position that has been in place since 2008, according to which Israel's security is Germany's raison d’état. Since October, the German government has approved a large number of arms exports to Israel, increasing the financial volume of German arms exports to Israel tenfold by 2023 compared to the previous year.
According to media reports, the items approved include portable anti-tank weapons and ammunition for small arms. An analysis by the Forensis research team suggests that these include Matador anti-tank missiles and could also include engines for Israel's Merkava-4 main battle tanks. In 2024, the German government announced its intention to also supply tank ammunition from Bundeswehr stocks.
In the past, German arms exports to Israel have repeatedly been approved in the hundreds of millions. Most of these have been naval weapons systems, such as frigates and, in particular, submarines and their spare parts. These submarines play an important role in Israel's nuclear second-strike capability, as they can also launch missiles with nuclear warheads from the sea.[1] This makes them a key deterrent against Iran.
The fact that Israel is fighting Hamas militarily is understandable and justified in light of the 7 October attack. Israeli citizens are still in the hands of Hamas, and Israel continues to be targeted by rockets from Gaza. And, of course, the German government should support Israel in defending itself against attacks from Iran, such as those on the night of 15 April. With regard to Israel's military action in the Gaza Strip, however, the indications of violations of international humanitarian law (IHL) by Israel cannot be ignored. In particular, international humanitarian law obliges Israel to distinguish between enemy combatants and civilians and to ensure the proportionality of military means. Civilians do not lose their protection status even if enemy combatants are among them. Even the fact that Hamas does not abide by the rules of IHL (for example, by misusing civilians as "human shields") does not exempt Israel from abiding by these rules itself.
These obligations under international law are also reflected in the legally binding arms export regulations for Germany. According to the International Arms Trade Treaty and the EU Common Position on Arms Exports, arms deliveries must be prohibited if there is a clear risk that these military goods could be used for war crimes. In such a case, the export must be prohibited in accordance with the existing regulations on arms exports. Given what is known about the Israeli military's conduct of the war in Gaza, such a risk exists. According to calculations by Oxfam, the war in Gaza has the highest death toll of any violent conflict in the 21st century, with an average of 250 Palestinians killed every day. More than 33,000 people have been killed in the fighting in Gaza (April 2024), the majority of them women and children. While these figures should be treated with caution given their source—the Hamas-run Gaza health ministry, even the Israeli military considers the Gaza health ministry's figures to be fairly accurate according to a report in the Times of Israel in December 2023.
More important than casualty figures, however, is the extent to which they are linked to violations of IHL. There are numerous reports by independent civil society organisations such as Amnesty International and Human Rights Watch that provide clear indications that the Israeli military is committing war crimes in Gaza, including the use of unguided high-explosive bombs in densely populated areas, attacks on residential buildings without warning and without military targets nearby and the shelling of hospitals. Many of the allegations cannot be independently verified, and there are also repeated unsubstantiated accusations against Israeli forces. However, statements such as that of the Israeli defence minister, who announced at the start of the Israeli offensive in Gaza that he has "released all restraints", support the picture of warfare in which the supply of weapons that could be used in the Gaza war is accompanied by a clear risk that these weapons could be used in war crimes or help to facilitate them. Ultimately, it will be for the courts to decide whether these are indeed war crimes. But in light of the numerous warnings, there is no denying that there is a clear risk of this happening.
The German government should, therefore, urgently ban the export of arms that could be used in Gaza, such as small arms and light weapons or tank ammunition. Otherwise, it risks not only contributing to the suffering of the civilian population in Gaza but also to the further erosion of IHL and arms export control norms. A ban on the supply of military equipment that could be used in Gaza and the cancellation of export licences for war weapons to Israel issued since 7 October, as recently demanded by the European Centre for Constitutional and Human Rights (ECCHR) in a lawsuit before the Berlin Administrative Court, is not tantamount to a complete arms embargo against Israel. The export of submarines and their spare parts may raise other questions (e.g. related allegations of corruption) but would not be problematic in view of the war in Gaza, and may even be necessary in view of Israel's precarious security situation in the region, especially in light of the threat to the country from Iran.
Germany should continue to stand up for Israel's security, including through arms exports. German history urges us to do so, but it does not do so unconditionally. The applicable rules of international, European and national law must be the limit for arms exports. Otherwise, the dictum "raison d’état" would indeed be understood as the Italian princely advisor of the 15th/16th century, Niccolò Machiavelli, who coined the term, meant it, namely that the raison d’état takes precedence over all conflicting legally protected rights. Anyone who, like the German government, emphasises the strength of the law and the international rules-based order at every opportunity cannot afford such a policy.
[1] Officially, Israel has never confirmed or denied its possession of nuclear weapons and delivery systems. However, according to the Nuclear Threat Initiative, there are reports from former US State Department and Pentagon officials that Israel conducted nuclear-tipped cruise missile tests from Dolphin-class submarines in the Indian Ocean in 2000.