by SIDHAT SINGH
Can Germany’s arms exports to Israel be scrutinised by any court? As the International Court of Justice considers Germany’s preliminary objections in Nicaragua v. Germany, a parallel problem emerges before German courts: challenges to arms exports have repeatedly failed on procedural grounds. The first part examines the ICJ proceedings, the Monetary Gold principle, and the resulting gap in judicial review. Part II turns to Staatsräson, Germany’s jurisdictional strategy, and the prospects for effective judicial accountability.
On 10 September 2026, the International Court of Justice (“ICJ”) finished hearing Germany’s preliminary objections in Nicaragua v. Germany. The case concerns Germany’s supply of military equipment and arms to Israel. Germany argued that the ICJ cannot decide whether Germany’s arms exports are lawful without considering Israel’s conduct and legal position, even though Israel is not a party to the case. The issue is also connected to proceedings before German courts. In 2024, German administrative courts rejected applications concerning arms exports to Israel, stating that there was no specific export licence available for the courts to review. Nicaragua argues that this creates a situation where a legal duty based on the risk of unlawful conduct may not be properly examined by any court.
What happened at the ICJ?
The hearings before the ICJ, held from 7 to 10 September 2026, dealt only with jurisdiction and admissibility. The Court was not yet deciding whether Germany’s arms exports to Israel were lawful. Nicaragua stated that Germany had authorized military exports to Israel worth more than €1.15 billion between April 2024 and June 2026. It further stated that exports in the first half of 2026 alone were worth almost €800 million, around four times Germany’s total exports to Israel during 2025. Germany had partially suspended military equipment exports to Israel in August 2025, but this restriction was lifted in November 2025 following the Gaza ceasefire.
Germany’s arguments at this stage were mainly procedural. It argued that there was no legal dispute between Nicaragua and Germany when Nicaragua filed the case, that some of Nicaragua’s claims fall outside the period covered by Germany’s optional clause declaration, and that Israel is an indispensable third party whose legal interests would have to be considered before the Court could decide the case. Therefore, at this stage, the ICJ is dealing only with whether it can hear the case and whether Nicaragua’s claims are admissible. The Court has not yet decided whether Germany’s arms exports to Israel are lawful under international law.
The Monetary Gold objection
The Monetary Gold principle says that the ICJ will generally not decide a case when determining the legal responsibility of a State that is not a party to the case is essential to the Court’s decision. Germany argues that if the ICJ has to decide whether Germany failed to prevent genocide or failed to ensure respect for the Geneva Conventions, it would first have to decide whether Israel itself committed the underlying violations. Vice-President Sebutinde expressed a similar view in April 2024.
This is an important objection, particularly regarding Nicaragua’s genocide-related claims. However, the Monetary Gold principle may not apply to the entire case. In Bosnia v. Serbia (para. 431), the ICJ held that the duty to prevent genocide arises when a State knows, or should normally know, that there is a serious risk of genocide. This is an obligation of conduct. Therefore, the question could be whether Germany properly assessed the risk when it decided to grant arms-export licences. That question concerns Germany’s own conduct and decision-making, rather than Israel’s legal responsibility.
Similarly, in Certain Phosphate Lands in Nauru, the ICJ explained that the Monetary Gold principle applies when deciding the responsibility of the absent State is a necessary logical step before the Court can decide the case against the respondent State. A case based on whether Germany exercised due diligence in assessing the risk may not require such a determination about Israel.
Position of the German Courts
In 2024, Palestinians from Gaza, supported by the European Center for Constitutional and Human Rights (ECCHR), approached the Berlin Administrative Court seeking to prevent Germany from granting further arms licences under the Kriegswaffenkontrollgesetz. The court rejected the applications as inadmissible. It found that no relevant war weapons licences were being granted at the time, that a future violation of international law could not be predicted with sufficient certainty, and that the applicants had misunderstood the extent of the government’s discretion. The Higher Administrative Court of Berlin-Brandenburg (OVG) upheld the decision in August 2024. A later application sought to require the government to inform the applicants whenever a new licence was granted, allowing them to challenge it. This was also dismissed as „Rechtsschutz auf Vorrat“, meaning protection sought in advance before an actual decision exists. The courts held that arms licensing falls within the government’s core area of executive responsibility.
Timing, however, is not the only obstacle. A parallel line of cases has raised a separate problem of standing. In December 2024, the Frankfurt Administrative Court dismissed a challenge to licences issued under foreign trade law for tank transmission parts intended for Israeli Merkava and Namer tanks. The court held that the applicant lacked standing because the legislation was not intended to protect persons abroad who may be endangered by the use of the weapons. In September 2025, the Higher Administrative Court of Hesse confirmed that such licences do not constitute administrative acts with third-party effect. As a result, the legality of Israel’s conduct in using the weapons did not have to be examined. In February 2026, the Federal Constitutional Court declined to hear a complaint against that decision. It held that Germany’s arms export framework satisfies its duty of protection even though it does not confer individual rights. The Court did not decide whether any specific duty of protection was owed to the complainant and found no unreasonable restriction on access to court.
The Berlin court likewise left the standing question open in its 2025 judgments. Taken together, these decisions point to a gap in judicial review. Arms licences are not publicly disclosed in advance, which means that a preventive challenge often has no specific decision to challenge. By the time an export becomes known, the weapons may already have been delivered, making subsequent judicial review ineffective. Such a challenge may also be inadmissible because the persons endangered by the weapons have no individual right that the licence can be said to violate.
The Resulting Gap
Before the ICJ, Germany argues that its conduct cannot be assessed until Israel’s responsibility has been determined by a court with jurisdiction over Israel. Before the German courts, the government’s conduct cannot be assessed until a specific licence exists and is challenged in time, which the licensing procedure does not allow. Neither forum disputes that Germany is bound by its obligations. The ICJ’s Order of 30 April 2024 expressly reminded Germany of its obligations “in its supply of arms to Israel”. Both forums, however, locate the review elsewhere.
The applicable rules are all formulated in terms of risk. Article 7 of the Arms Trade Treaty requires an assessment, before export, of whether the goods could be used to commit serious violations. Common Position 2008/944/CFSP requires denial where there is a clear risk. The Federal Government’s own Politische Grundsätze contain the same standard. A standard based on risk cannot be effectively enforced by a court that waits for the outcome of the violation.
Citation: Singh, Sidhat, Between The Hague and Berlin: Who reviews German Arms Exports to Israel (Part 1), JuWissBlog Nr. 86/2026 v. 13.10.2026, https://www.juwiss.de/86-2026/
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