“What we are doing in Gaza now is a war of devastation: indiscriminate, limitless, cruel and criminal killing of civilians.” These are the recent words of former Israeli Prime Minister Ehud Olmert. The tone in Germany is also shifting. One reason for this is growing concern over Germany’s responsibility under international law and the potential criminal liability of individuals. What violations of international law might Germany be implicated in? Could German politicians, officials, and arms manufacturers face criminal prosecution for their role in arms exports to Israel? We spoke with Kai Ambos, one of the world’s leading experts in international criminal law and a judge at the Kosovo Specialist Chambers in The Hague.
1. The German government’s position on the Gaza war has clearly shifted in recent days. On Monday, Chancellor Friedrich Merz said Israel’s actions in Gaza could no longer be justified as a fight against terrorism. Within the Social Democratic Parliamentary Group, calls for halting arms exports to Israel are growing. And Felix Klein, the federal government’s antisemitism commissioner, stated that starving people cannot be part of Germany’s Staatsräson. Why is this shift happening now?
The images we see every day speak for themselves. No impartial observer can ignore the fact that Israel’s military campaign has long crossed any threshold of proportionality. The humanitarian law principle of distinguishing between civilian and military targets is being blatantly violated. On top of that, there are announcements to reoccupy and annex Gaza, and to expel the Palestinian population. How can we support a government that carries out collective punishment of civilians for the crimes of Hamas – before our very eyes? A government that is also being heavily criticised by its own citizens for this war? Nothing can justify this inhumanity, certainly not the hollow phrase of Staatsräson, which, as far as I know, no German politician claims overrides the Basic Law or international law. And let us not forget that a few kilometres east of Gaza, in the West Bank, the idea of a Palestinian state is being finally buried by the establishment of further settlements.
2. Many renowned legal scholars have long had little doubt that the Israeli Defence Forces (IDF) are committing severe crimes against humanity in Gaza. Since South Africa initiated proceedings at the International Court of Justice (ICJ), the claim of genocide is also on the table. That case is now nearly a year and a half old. Has your view on the genocide claim changed since then?
In January 2024, I rejected this claim. Since then, more and more scholars—including international law experts—see it as justified. As I recently outlined with Stefanie Bock, I remain sceptical due to the difficulty of proving the specific genocidal intent. But the evidence pointing to such intent is growing stronger with every day this brutal war continues.
3. Let us turn to Germany’s role. Even after reports of serious crimes against humanity, Germany continued to export arms to Israel. And even now – during what is described as one of the cruellest phases of the war – there is no sign of a halt in deliveries, despite concerns within the Social Democratic Parliamentary Group that Germany could be complicit in war crimes and “itself be held legally accountable by international courts.” What possible violations of international law could Germany be responsible for?
Under the Arms Trade Treaty (ATT), Germany is prohibited from exporting weapons if there is an “overriding risk” that they could be used to commit international crimes. This prohibition also follows from the law of state responsibility, since committing such crimes constitutes a breach of international law, an international wrong, and no state may assist in such a wrong – whether through arms exports or any other means.
An exporting state must maintain a control system that does not rely solely on assurances from the recipient state. It must independently and substantially verify compliance with international legal prohibitions.
The ATT establishes a preventive duty of risk assessment. This means a risk analysis must be conducted ex ante. What matters is not whether the respective weapons are eventually used in war crimes or serious violations of international humanitarian law (IHL), but whether such an “overriding risk” existed at the time the export was approved. Such a risk already exists if there are serious and plausible indications that the weapons will be used in the context of documented, systematic violations of IHL – even if no specific instance of use can be foreseen.
In the case of the Occupied Palestinian Territory (Gaza and the West Bank, including East Jerusalem), such indicators have been present for years – and in the current Gaza war, they have intensified to the point that an “overriding risk” must clearly be assumed.
A failure to conduct or inadequately conduct the said risk assessment constitutes a violation of international law – regardless of whether the weapons are later misused, or whether the exporting state was aware of a concrete intent to misuse them.
A proper risk assessment requires the use of binding reference documents, such as the EU Common Position (2008/944/CFSP) and the EU User’s Guide. These include specific risk indicators that either prohibit approval or demand particularly strict scrutiny. These indicators include past IHL violations by the recipient state, lack of independent investigations into alleged violations, insufficient accountability mechanisms, and an assessment of the material and its intended use. If the recipient state is involved in an armed conflict, this context is considered especially high-risk.
Despite Germany’s strong presentation at the ICJ in the case brought by Nicaragua over alleged complicity in an Israeli genocide, long-standing doubts remain about the effectiveness of Germany’s arms export controls, not to mention the transparency of the system (see critical evaluations here and here). The ICJ’s order of 30 April 2024 does not suggest that Germany’s export authorisations were deemed lawful. Rather, the Court reminded Germany of its international legal obligations to consider and avoid the risk of international law violations when exporting arms. What’s needed is a robust export control system—one that does not simply rely on Israel’s assurances that its conduct is in line with international law.
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4. You have just outlined Germany’s responsibility under international law. What about individual criminal liability? Could German officials – or even politicians – face prosecution?
Individuals involved in or enabling such arms exports could, in fact, be criminally liable for complicity (by assistance) in international crimes. This includes managers of arms companies, government officials involved in the approval process, and senior politicians who make arms export decisions – for instance, members of the Federal Security Council.
If there is an effective control system in place, company managers can usually rely on the official export approvals, as long as they did not deceive the authorities during the application process. A properly granted license generally shields them from criminal liability, as it establishes what is known as a “permitted risk,” which excludes criminal responsibility already at the offence level (actus reus).
For civil servants, liability depends on the scope and depth of the review and especially the subjective side (mens rea) of their participation: Did they know the weapons could be used to commit international crimes? Did they consider this possible and accept the risk? Did they fail to assess the risk or consciously ignore it (risk suppression)? Or could they at most be accused of negligent assistance (which would not be criminal under international or German criminal law), particularly by failing to exercise proper diligence in evaluating the export criteria? The same applies, in principle, to politicians who approved the exports.
5. What would prosecution look like in practice? Would German authorities be responsible for investigating officials and arms company executives? Or could individuals also face investigations in third countries?
If the International Criminal Court has jurisdiction – as it does for crimes committed in the Occupied Palestinian Territory – a complaint could be filed there for assistance in the alleged international crimes by the individuals in question. Prosecution could also occur under Germany’s Code of Crimes Against International Law (Völkerstrafgesetzbuch) in conjunction with § 27 of the German Criminal Code, with the Federal Public Prosecutor responsible for the investigation and prosecution.
Third states could also launch investigations. Their jurisdiction might be based on the principle of universal jurisdiction or on a classic link to a prosecuting state – such as the nationality of the victims (passive personality principle). The main obstacle would be securing custody of the suspects. In the case of German suspects, this is largely precluded by Article 16(2) of the German Basic Law, which prohibits extradition of German nationals except on the basis of a European Arrest Warrant or to international courts (like the ICC) recognized by Germany. However, the prosecuting state might allow for trials in absentia.
What’s clear is this: both Germany’s responsibility under international law for arms exports to Israel and the potential criminal liability of individuals are of serious concern. Civil servants involved in arms exports, in particular, must take the risk of prosecution seriously, given the gravity of the alleged crimes.
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Editor’s Pick
by MARIE MÜLLER-ELMAU
One of the digitised things I hold most dear is David Runciman’s Podcast “Past, Present, Future”. In it, the former Professor of Politics pauses twice a week to talk about ideas – good and bad, scripted and screened, philosophical and practical.
The current series reflects on political trials. From Socrates through Joan of Arc and Saddam Hussein to Marine Le Pen, Runciman not only delves into these stories and their reasons, but also poses the deeper theoretical question of how proceduralisation binds law and politics: how brute force can turn into bureaucratic procedure and vice versa; why process is important even when it doesn’t really matter; how even the most densely regulated process leaves room for coincidence; and how fragile judicial authority becomes when its power is met with a strategic challenge to its legitimacy. I banish you. You don’t get to banish me.
Sounds familiar. You can listen on https://www.ppfideas.com.
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The Week on Verfassungsblog
summarised by MAXIM BÖNNEMANN
Not only the Federal Republic of Germany but also individuals could be held accountable for serious violations of international law in Gaza, Kai Ambos explains in our interview today. The severity of the situation in Gaza is underscored by the ongoing debate over whether the Israeli government is committing genocide in the region. While numerous genocide scholars have, after months of war, now answered this question in the affirmative, legal scholars remain divided. In particular, the specific genocidal intent is considered difficult to prove. KAI AMBOS and STEFANIE BOCK (GER) argue: caution remains warranted in hastily labelling the situation a genocide. However, as the Israeli military campaign grows increasingly protracted and brutal, the evidence pointing to genocide is becoming more compelling.
This week, one of the most spectacular climate litigation cases culminated in an equally spectacular ruling: the Higher Regional Court of Hamm dismissed the climate lawsuit against carbon major RWE – while at the same time clarifying that major emitters can, in principle, be held civilly liable for climate-related damages. JAN-ERIK SCHIRMER (GER) explains why the ruling represents a “success without victory”: Although it marks a short-term defeat for the plaintiff, it offers valuable lessons for future climate liability litigation.
A different ruling could also shake up the legal landscape in another area: In Germany, it has long been the case that those seeking to protect themselves from injury during demonstrations can quickly find themselves criminally liable. The European Court of Human Rights (ECtHR) has now set human rights limits to this practice. CLEMENS ARZT (GER) explains why the ECtHR’s judgment demands a rethinking by German authorities, police, and courts – and places the protection of demonstrators at the centre of the right to freedom of assembly.
On April 14, 2025, the Hungarian parliament passed the 15th Amendment to the Fundamental Law, including new provisions allowing for the suspension of citizenship. GÁBOR MÉSZÁROS (EN) warns that alongside the newly introduced Citizenship Suspension Law, the framework’s vague and expansive criteria provide the government with a powerful instrument to strip political opponents of their right to vote ahead of the 2026 parliamentary election.
France, too, is grappling with questions of citizenship. The principle of jus soli has been progressively dismantled in France through the tightening of conditions governing access to French nationality in Mayotte – the 101st department of the Republic and an archipelago in the Comoros located in the Indian Ocean. This restrictive approach was reinforced by the adoption, on 9 April 2025, of a new legislative measure designed to further limit access to birthright citizenship. The Conseil constitutionnel upheld the constitutionality of the contested provisions in its decision of 7 May 2025. MARIE-LAURE BASILIEN-GAINCHE (EN) explains jus soli’s constitutional status and the ‘migrantisation’ of a humanitarian crisis.
The Court of Justice’s judgment in Commission v Malta has also been met with significant criticism – and some surprise. According to LORIN-JOHANNES WAGNER (EN), the judgment has caught so many legal commentators wrong-footed because both sides overwhelmingly come from the premise that Member States are sovereign to decide who their nationals are and that there is no such thing as a genuine link requirement for nationality.
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By contrast, a significant Supreme Court order that may pave the way for a dramatic expansion of presidential authority, overturning a 90-year-old precedent and weakening the independence of key regulatory agencies, gained less attention. AUSTIN SARAT (EN) explains why, in the hands of a would-be autocrat, the Supreme Court decision has delivered a serious blow to the constitutional system.
A letter that has been circulating since 22 May 2025 also has the potential to destabilise an entire system – namely, the system of European human rights protection. Nine leading EU politicians are calling for “a new and open-minded conversation about the interpretation of the European Convention on Human Rights,” with particular reference to migration. The signatories seek to explore whether “the Court, in some cases, has extended the scope of the Convention on Human Rights too far compared with the original intentions behind the Convention, thus shifting the balance between the interests that should be protected.” PETER HILPOLD (EN) explains why the letter raises not only political and ethical questions but also significant legal concerns.
Safe Access Zones (SAZ) in Great Britain, in force since autumn 2024, establish protective areas around abortion service providers and criminalise specific behaviours within these zones. However, ongoing anti-abortion protests raise questions about the practical enforceability of the new laws. EMILY OTTLEY (EN) examines whether SAZ laws can withstand these challenges and argues that the SAZ laws introduced in Great Britain in late 2024 strike a good balance between protecting clinic access and respecting protester rights under the ECHR.
On May 31, Georgia’s new Foreign Agent Law takes effect. MARIAM BEGADZE (EN) explains: as civil society organisations face the threat of criminal sanctions under the “Foreign Agent Law 2.0”, a rule of the European Court of Human Rights could become their last remaining remedy.
“Decent work in the platform economy” is one of the items the ILO will discuss during its upcoming 113th International Labour Conference from 2 to 13 June 2025 – a first in the ILO’s history. That proper classification of the employment relationship is fundamental to the application of fundamental rights was a critical point of contention among countries, employers and workers at the ILO, and thus brought the item on this year’s agenda. DEBADATTA BOSE (EN) unpacks the issue and suggests a creative approach: labour anti-avoidance rules.
Bulgaria’s civil society has much anticipated a key judgment by the CJEU as concerns over the entrenched capture and politicisation of the Inspectorate with the Supreme Judicial Council continue to cast doubts about judicial independence and accountability in the country. RADOSVETA VASSILEVA (EN) argues that, regrettably, the highly formalist ruling will hardly make a difference.
In its latest decisions following major policy shifts at Meta, the Oversight Board appears to be moving toward a more permissive approach to harmful or discriminatory content. JUHA TUOVINEN (EN) explains why such a trend could reshape the boundaries of acceptable speech online and raises pressing questions about the Board’s independence and role in an increasingly politicised content governance landscape.
The remarkable yet tragic victory of the Syrian revolution reached its turning point on December 7, 2024. The current de facto ruler, Ahmad al-Sharaa, has declared a five-year transitional period under a temporary Constitutional Declaration. SAMER ALNASIR (EN) argues that the new Declaration formally guarantees equality, but omits fundamental democratic safeguards and fails to ensure the separation of powers.
The German constitutional provisions on religion adopted from the Weimar Constitution have always contained a clear mandate: the obligation to abolish state payments to religious communities – meaning to terminate them through compensation. This mandate remained unfulfilled even during the 20th legislative period. The reason lies in a specific constellation of political and federal interests. RUBEN FABERS (GER) explains why the constitutional mandate to end these payments is not a toothless tiger.
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That’s it for this week.
Take care and all the best!
Yours,
the Verfassungsblog Team
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