The Rules Have Changed: The German Arms Embargo and the War in Gaza

Germany's recent decision to impose an embargo on the export of military equipment to Israel is a key example of the changing landscape of international law applicable to armed conflict over the last two decades.

Friedrich Merz, Chancellor of Germany | Photo by REUTERS

The German Chancellor’s decision to impose an embargo on the export of military equipment to Israel, which could be used in the war in Gaza, is not just a symptom of Israel's declining diplomatic relations or of a growing anti-Israel sentiment across Europe. It also reflects a more profound shift in the rules of international law, which increasingly restrict states from exporting arms to countries involved in armed conflict, and even exposes those exporting countries to legal sanctions. As a result, even Israel’s closest allies, such as Germany, are finding it harder to continue supporting it in the current phase of the war in Gaza.

International law applicable to armed conflicts prohibits the use of certain weapons and imposes restrictions on how even lawful weapons may be used. For instance, militaries are forbidden from intentionally attacking civilian targets, and they are obligated to avoid attacks on military targets if the expected collateral damage to civilians would be excessive in relation to the anticipated military advantage—'the principle of proportionality'. Parties to the conflict are also required to allow humanitarian supplies into combat zones and to safeguard the civilian population in territories under their control.

In parallel with these rules, the past two decades have seen the emergence of legal norms governing the responsibilities of third-party states not involved in the combat itself. These states are now expected not to assist parties to a conflict that are violating international law. More concretely, they are prohibited from supplying arms to actors likely to use them in ways that contravene basic international legal norms.

In 2005, the International Committee of the Red Cross published a highly influential study asserting that third-party states are obligated to use their influence on warring parties to ensure compliance with the Geneva Conventions and other laws of war. In 2007, the International Court of Justice in The Hague ruled that third-party states must take reasonable steps to prevent acts of genocide by other countries or organizations. And in 2013, an international treaty regulating global arms trade was concluded, prohibiting arms exports when there is knowledge or overriding risk that the weapons may be used to commit serious violations of international law. Most of the world’s countries (116), including nearly all European states (Germany among them) joined this treaty, and many adapted their domestic laws to comply with its provisions. Israel, along with the United States and Russia, did not join.

The war following the October 7 attack and the mounting international criticism of Israel’s conduct—particularly regarding harm to civilians, destruction of civilian infrastructure, and restrictions on humanitarian aid—have led to increasing pressure on European states to use their influence to change its conduct and to halt or restrict arms exports to Israel. In recent months, that pressure has extended to the very continuation of fighting the war, which is increasingly perceived internationally as lacking legal justification. This is primarily because the civilian toll on Palestinians is seen as excessive relative to the military benefits which can still be achieved.

Beyond protests, petitions, and parliamentary debates, this pressure on foreign government is now also being felt in legal settings. In several European countries such as the Netherlands, Germany, France, and the UK, civil society organizations have filed legal petitions seeking to compel the local governments to prohibit military assistance that may contribute to violations of the laws of war. Most of these petitions were dismissed on procedural grounds. However, in one high-profile case (Netherlands), a court accepted a petition to halt the export of F-35I fighter jet parts to Israel. In another case (UK), the government imposed restrictions on arms exports to Israel just before a court hearing was scheduled.

Germany's position is particularly complex. Due to its military assistance to Israel, Germany has faced not only domestic lawsuits (which have so far been dismissed) but also a case brought against it before the International Court of Justice in The Hague by Nicaragua. The complaint alleges that Germany is complicit in serious violations of international humanitarian law, including genocide, by continuing to arm Israel despite credible concerns about the latter’s conduct. The case remains pending, and a ruling is likely years away. Still, the very existence of the proceedings puts Germany in an awkward position, to say the least: Across much of the world, Germany is now perceived as contributing to severe breaches of international law. This compels Germany to actively monitor Israel’s conduct in Gaza throughout the war in order to ensure that it does not violate international norms.

In this context, recent months appear to mark a turning point in how Germany and many of Israel’s other allies are approaching the conduct of the war. The suspension of humanitarian aid to Gaza for almost 80 days between March and May of this year, the collapse of the ceasefire in March, deadly incidents near food distribution centers, reports of growing hunger in Gaza, plans to establish a “humanitarian city” for Palestinian civilians, inflammatory statements by politicians about “erasing Gaza” and building settlements there, and, most recently, a cabinet decision to escalate the war and occupy Gaza City—all signal to the world that Israel is taking a less rigorous approach to its obligations under the laws of armed conflict.

This growing political pressure on friendly governments to distance themselves from Israeli policy is now accompanied by legal fears: that continued assistance to Israel may expose them to domestic and international legal liability. These concerns likely underpinned the German Chancellor’s decision to restrict arms exports to Israel. Indeed, in his speech he explicitly stated that the plan to conquer Gaza City does not serve the war’s objectives: self-defense, release of the hostages, and removing Hamas from power in Gaza. In other words, he is not convinced that further escalation is necessary or proportionate in pursuing the war’s original and legally justifiable goals.

In sum, international law now limits the freedom of action for third-party states to support warring parties when there are serious concerns about violations of the laws of war. This places Israel in a new political and legal reality. The fact that within hours of the Israeli cabinet’s decision to escalate the war, its closest European ally imposed sanctions in the form of limitations on arms sales, underscores how narrow Israel’s margin to maneuver has become. This consideration adds to the growing list of reasons for Israeli leaders to stay focused on its original war aims, work with its allies towards achieving them, strive to end the war when they are achieved or close to being achieved, and denounce actions and rhetoric that signal Israel's waning commitment to the laws of armed conflict.