Symposium on Jurisdiction, Responsibility, and Temporality: Nicaragua v. Germany Before the ICJ – Setting the Record Straight: Germany’s ‘Robust Legal Framework’ on Weapons Export Licences

[Sué González Hauck is a postdoctoral scholar at Helmut Schmidt University Hamburg.]

In her opening statement, Germany’s Agent adamantly insisted that questions related to Germany’s actual breaches of or adherence to the fundamental rules of international law have no place in the Preliminary Objections phase (CR 2026/30, p. 15, para. 9 (Monar)). Yet, Germany spent a considerable portion of its pleadings on ‘setting the record straight’ on the scrutiny of weapons export licences under German domestic law. One could just as easily dismiss these arguments as belonging to the merits phase of the case. Nicaragua’s concern, however, that Germany is hiding behind a purportedly robust system (Written Statement of the Republic of Nicaragua, para. 35), is not unfounded. The German executive has successfully pointed to rules in the domestic legal system that are supposed to ensure weapons export licences are issued only when the weapons will be used in compliance with international law, to get legal cases dismissed. This tactic has worked both in the provisional measures phase of the present case and before the German Federal Constitutional Court (GFCC). It is, therefore, indeed important to set the record straight.

In its pleadings during the provisional measures phase, Germany more cautiously claimed that oversight of weapons export licences is ‘to some extent, judicial’ (CR 2024/16, p. 41, para. 39 (Peters)). Now, Germany puts forth a much stronger claim, arguing that the domestic review system is ‘comprehensive and careful’, that courts had found that the facts ‘did not support the claims’ and that there was no political question doctrine in German constitutional law (CR 2026/30, p. 19, paras. 22-23, fn. 19-21). Matthias Goldmann’s contribution to this series provides further detail on the dilution of responsibility that occurs through discretionary standards under German constitutional law, which could be compared to a political question doctrine. I will concentrate on providing some context on the purportedly comprehensive and careful judicial scrutiny of weapons export licences.

What German Courts Actually Did

The claims that Germany’s domestic review system is comprehensive and careful and that courts had found that the facts did not support the claims rest entirely on cases that never reached the merits. The most important decision is, of course, the Renk decision by the GFCC of 3 February 2026, in which it declined to rule on the merits of a constitutional complaint by Abed J., a Palestinian from Gaza who tried to challenge specific export licences for transmission components for tanks (see also the respective Völkerrechtsblog Symposium). The GFCC used several avenues to justify its inadmissibility decision. First, it argues that previous decisions had already clarified the constitutional questions underlying the case (para. 71). Second, it holds that the complainant had not sufficiently substantiated how the general mandate to protect fundamental rights under the German Basic Law, which the GFCC had recognised in its Ramstein judgment of July 2025, could have crystallised into a specific duty to protect vis-à-vis the complainant, given that the legislature and the executive had, in the view of the lower courts, established a ‘general framework of protection’ (paras. 102, 110, 113). Third, the GFCC specifically refers to the limited judicial authority in foreign policy matters (para. 80). The second and third reason, taken together, seem to be the ones carrying the decision, given that, in the last paragraph of the Chamber’s reasoning, it argues that the constitutional complaint ‘fails to address in a sufficiently differentiated manner the wide margin of assessment, appreciation and design granted to public authority and the standards of review that must be applied to it by the courts in light of the principle of the separation of powers’ (para. 114).

What the GFCC frames as an insufficiency of pleading is better understood as a deficiency the Chamber built into the standard itself. The Chamber explicitly leaves open the question that, under the test established in its Ramstein decision, logically comes first in deciding whether a duty to protect has arisen, namely whether there is a serious risk that Israel is systematically violating international law (para. 102). Instead, the GFCC proceeds to the downstream question of what such a duty would require and sets the threshold for an individually enforceable measure so high that successful constitutional complaints against arms export licences become virtually inconceivable. 

Constitutional Backing for Closed Doors

Formally, the Renk decision is only binding in the specific matter it decided (§ 31(1) BVerfGG). Germany could, therefore, say that the German courts remain open to future challenges. However, the Chamber’s reasoning confirms the two lines of argument on which the administrative courts had already relied in order to dispose of the cases brought before them without examining the lawfulness of a single licence. The first is the finding that the statutory provisions governing export licences do not protect individual interests and therefore do not confer standing on third parties (VG Frankfurt, 11 September 2024, 5 L 2333/24.F, para. 20; VG Frankfurt, 16 December 2024, 5 L 3799/24.F, para. 15; VGH Kassel, 19 September 2025, 6 B 2457/24). The second is the finding that future licensing decisions fall within the core area of executive responsibility and can therefore neither be anticipated with sufficient certainty nor prevented (OVG Berlin-Brandenburg, 8 August 2024, OVG 1 S 46/24; VG Berlin, 12 November 2025, VG 4 K 45/24, paras. 25-34, and VG 4 K 130/24). The GFCC has now held that neither of these findings is objectionable under constitutional law. Any administrative court that wanted to decide differently in a future case would therefore have to explain why the Basic Law requires something that the GFCC has said it does not require, and no administrative court is going to do that.

Which administrative court would be deciding is, in any case, not an open question. Under § 52 VwGO, the competent court is the one in whose district the defendant authority has its seat. Licences for weapons of war under the War Weapons Control Act are granted by the Federal Government, so that any challenge has to be brought before the Administrative Court of Berlin and, on appeal, the Higher Administrative Court Berlin-Brandenburg. Licences for ‘other military equipment’ under the Foreign Trade and Payments Act are granted by the Federal Office for Economic Affairs and Export Control in Eschborn, so that any challenge has to be brought before the Administrative Court of Frankfurt am Main and, on appeal, the Higher Administrative Court of Hesse. These are the same four courts that have been dismissing the cases brought since June 2024, in decisions that cite each other and that the GFCC has now confirmed. 

In practice, then, decisions on weapons export licences to Israel are no longer subject to judicial scrutiny in Germany. It bears repeating that this has come about without any court having looked at the merits. The dozen or so decisions handed down since June 2024 all turn on preliminary questions. The only court that so much as touched on the factual record, the Administrative Court of Frankfurt, did so by casting doubt on the reliability of United Nations reports on the situation in Gaza (VG Frankfurt, para. 31). Germany’s claim before the Court that courts had examined the conduct in question and found that the facts ‘did not support the claims’ (CR 2026/30, p. 19, para. 23) rests, according to Germany’s own footnote, on the two judgments of the Administrative Court of Berlin of 12 November 2025 (fn. 21). The facts that court examined, however, were not the facts concerning the use of German military equipment in Gaza. They were the facts concerning the likelihood of further licensing decisions, and the court found that no such decision could be predicted with the required degree of probability, given the fact that the situation on the ground had changed dramatically and that several international institutions had weighed in on their international legal assessment (VG Berlin, para. 31). 

A Framework That Does Not Constrain Practice

The licensing data compiled by ECCHR in its report Arming International Crimes suggest a broader pattern in which the German executive tactically suspends arms export licences during judicial proceedings and resumes a looser licensing practice after the courts have rendered their decisions.

Between April and September 2024, that is, in the months in which the first applications for interim relief were pending before the administrative courts in Berlin and Frankfurt, Germany authorised exports worth only some €4.5 million. The Higher Administrative Court Berlin-Brandenburg dismissed the Berlin appeal on 8 August 2024 and the Administrative Court of Frankfurt dismissed the first Frankfurt application on 11 September 2024. In the two months from late August to late October 2024, authorisations amounted to over €93 million, the highest figure of that year (ECCHR, p. 16 and fig. 4). The same sequence repeated itself in 2025. During the period in which the Federal Chancellor’s announcement of 8 August 2025 supposedly restricted exports of equipment that could be used in Gaza, licences worth some €10.4 million, including for tank parts, were nonetheless issued (ECCHR, fig. 12; BT-Drs. 21/1958; BT-Drs. 21/3774). Germany itself concedes before the Court that licences continued to be issued from mid-September 2025 onwards, on the basis of the Government’s own assessment that the items concerned could not be used in Gaza (CR 2026/30, pp. 18–19, para. 21). The Administrative Court of Berlin relied on that very announcement to find that there was no risk of repetition of any possible violation of fundamental rights (12 November 2025, VG 4 K 45/24). Five days later, the Federal Government announced that the restrictions would be lifted; unrestricted licensing resumed on 24 November 2025.

The most dramatic shift, however, followed the GFCC’s Renk decision of 3 February 2026. Between April and June 2026 alone, Germany licensed arms exports to Israel worth €735.8 million, almost four times the total for the entire year 2025; the figure for the first half of 2026, €799.3 million, exceeds that of any full year in the past 25 years (ECCHR, pp. 16, 20). For the first time in over two years, ‘weapons of war’ according to the War Weapons Control Act were licensed, worth €508.75 million. Roughly two thirds of the total is attributable to a single naval project, most likely a submarine. The remainder includes projectiles and propellant charges for artillery and anti-tank weapons (KWL nos. 54, 55) and fuses for artillery shells (KWL no. 57), as well as an increase in licences for other military equipment over the previous quarter (ECCHR, p. 20). Whatever the exact composition, this is difficult to reconcile with Germany’s assurance to the Court in April 2024 that ‘for every licence that is granted’ the Government carefully assesses whether there is a clear risk that the item in question would be used in the commission of genocide, crimes against humanity or grave breaches of the Geneva Conventions (CR 2024/16, p. 18, para. 17 (Tams)), an assurance of which the Court took note (Order of 30 April 2024, para. 17) and on which its conclusion that provisional measures were not required ‘at present’ expressly relied (paras. 18, 20).

Why it is up to International Fora

If the compatibility of Germany’s licensing practice with its obligations under international law is to be examined at all, this examination will have to take place before the ICJ and before other international bodies. That examination cannot stop at the domestic rules. The fact that German law provides that licences may be granted only where the weapons will not be used in violation of fundamental rules of international law is not in dispute. Whether those rules are themselves adequate, and whether the practice under them conforms to what international law requires, is what the merits phase is for. Hopefully, this time, Germany will not succeed in merely pointing to the existence of rules to avoid having to engage in proceedings on the merits.