Can Germany Remain Silent?
On the Legality of Statements on Israeli Warfare in Gaza
Germany’s stance on the current Israel–Hamas conflict has drawn significant attention. The persistent and sometimes apodictic reference by some to the Staatsräson in relation to Israel has been equally criticized.
As far as compliance with International Law (IL) was discussed within the Federal Government, the initial focus was predominantly on the jus contra bellum—the grounds on which a State may resort to the use of force. Later, when statements also extended to the jus in bello or International Humanitarian Law (IHL)—the rules of conduct during an armed conflict—important elements such as the principle of non-reciprocity were overlooked. On November 22, 2023, a Foreign Office spokesman for example said (own translation):
“Israel is defending itself against Hamas terror within the framework of [IL], and if there is one actor in this conflict that really does not abide by [IHL] at all, it is Hamas, which is hiding behind the civilian population in Gaza.”
On December 5, 2023, Annalena Baerbock adopted a somewhat more assertive stance, moving beyond Olaf Scholz’ reliance on good faith for compliance. Nevertheless, she abstained from explicitly condemning specific actions that may have breached IHL (own translation):
“Israel has a responsibility to comply with [IHL], to alleviate civilian suffering, and to protect the civilian population in the process. Because too many Palestinians have already fallen victim to this conflict.”
But is Germany legally obligated to do so? It was alleged on Verfassungsblog that the German “unreserved”, and “particularly affirmative position“ violates IHL. Elsewhere it was claimed that Germany, along with other States failing to utilize their full repertoire of diplomatic options (including “[calling] for a permanent ceasefire”), is in breach of its own IHL-responsibilities.
Admittedly, IL does have a say when organs of States speak. Nevertheless, the intricacies of this matter go beyond first impression. I submit that such a duty is not as easy to derive in the present case as is suggested by opposing views—especially those, that rely on (prominent) article-by-article commentaries as argumentum ab auctoritate (p. 1897). And ultimately, understanding the scope of these rules can help us decide how to approach (criticism of) Germany’s stance on Israel’s conduct in the ongoing conflict in Gaza.
“Free Speech”: What A State Can Do
While it may seem like a truism, it is important to emphasize this starting point: In the absence of international obligations, a State has almost (p. 99) unlimited freedom to engage in and abstain from virtually any action within its purview. This is a manifestation of their sovereignty and the principle that IL must be consensus-based. Under the Lotus principle, restrictions cannot simply be assumed (p. 18).
In the 21st century, we are further away than ever from this conceptual “state of nature” of IL. A multitude of treaties and customary international law (CIL) restrict the freedom of today’s States. However, they generally retain a very own domain reserved for independent action—a domaine réservé—that is an area in which they can assert their sovereign will without external interference through coercion (para. 205). This includes not only decisions over the organization of the internal system but also the formulation of foreign policy (supra). Consequently, States are prima facie free in their foreign policy and quite literally in its formulation.
What a State Must or Need Not Do
However, this right is not without limits and it must not interfere with another domaine réservé (as per principle of non-intervention, cf. Friendly Relations Declaration, p. 123). Under CIL, situations created by a serious breach of jus cogens must not be recognized as lawful (cf. Article 41 (2) ARSIWA). Similarly, the International Court of Justice (ICJ) identified a negative duty “not to recognize the illegal situation resulting from the construction of the wall” in the OPT (para. 159) in its Advisory Opinion, addressing the right to self-determination of the Palestinian people. But it is a duty not to perpetuate the wrong, not a duty to take measures that would per se be unlawful (cf. Article 54 ARSIWA).
In the advisory opinion on South Africa’s illegal occupation of Namibia, the ICJ spoke of an “obligation to recognize [this] illegality” (para. 119). The basis for South Africa’s presence had ceased to exist following the termination of her mandate by the General Assembly. After the Security Council (SC) also dealt with this matter and declared the continued presence illegal, the ICJ had to assess the legal consequences for other States arising from this situation. And it did acknowledge a positive duty of UN member States to recognize the unlawfulness but it based this on the preceding SC resolutions (supra: primarily S/RES/269(1969) and S/RES/276(1970)). Contrary, for States not members of the UN, and therefore not addressees of these SC resolutions, South Africa’s continued presence did not constitute an erga omnes obligation (para. 126).
Now what does that mean for Germany? Let us imagine that Israel were to consider annexing the Gaza Strip during her operations against Hamas. In this case, Germany would be prohibited from recognizing it as Israeli territory. Of course, this scenario seems unlikely, given that Germany considers Israeli occupation of territories outside the pre-1967 borders as “contrary to [IL], as an obstacle to peace, and as a threat to the foundations of the two-state solution” (own translation).
An Obligation to Condemn: What a State Must Do?
It was suggested on Verfassungsblog and elsewhere that Common Article 1 of the Geneva Conventions (CA1) imposes an obligation for one State to ensure another’s compliance with IHL. A view in line with the—in this regard controversial—ICRC’s 2016 commentary. While this general notion of CA1 containing an (external and positive) obligation towards another State has been widely discussed critically, I want to clarify that it is not a straightforward deduction and remains on uncertain footing.
CA1 undisputedly prescribes respect for the State itself (“respect”), and respect by individuals under its jurisdiction (“ensure respect”). Furthermore, the ICRC reads an inter-State obligation into the wording “ensure respect” (para. 154). What misses the mark, however, is concentrating on the ordinary meaning of “to undertake” by trying an analogy to the ICJ’s Bosnian Genocide Case. It is much more a yardstick for the obligations mentioned thereafter which stand on their own, and a matter detached from “the scope of the obligation [to prevent]” (para. 162).
For the derivation of such an inter-State obligation, reference is often (e.g., here and here) made to the ICJ’s Nicaragua Case (in particular para. 220). This, however, is not correct, as the judgment addresses the United States’ own conduct, particularly the CIA providing manuals to the Contra Rebels (para. 255). Additionally, the ICRC utilizes the Congo Case (para. 211 and 345(3)), which solely pertains to the obligations of an occupying power in occupied territory (cf. para. 218). There is no basis for deriving an external dimension from these references.
The Wall Advisory Opinion does reference CA1, and notably, the Court broadens its scope by asserting that “every State party to [Geneva Convention IV], whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with” (para. 158). It also emphasizes that all parties were obligated “to ensure compliance by Israel with [IHL] as embodied in that Convention” (para. 159), and thus agrees with the view that CA1 has an external and positive dimension.
This expansion may be more attributable to the strong impact of the ICRC’s commentary on the discourse (p. 425) than to genuine legal considerations. For instance, Judge Kooijmans questions its “correct[ness] as a statement of positive law” (para. 46 et seq.). And it would, of course, signify a grave misunderstanding of erga omnes obligations: the ICJ defines them as those in which the international community has a “legal interest” (para. 33). Therefore, consistent with CIL and Article 48 (1) (b) ARSIWA, all States have the right to invoke responsibility for a violation of IL, but they are prima facie not obligated to do so (p. 695).
When attempting to identify subsequent State Practice as means of interpreting CA1 (as per CIL, codified in Article 31 (3) (b) VCLT), it is key to note that urging another State to comply with IHL was not driven by extra-legal considerations, but by a perception of legal obligation (p. 690). The mere reference to the expertise on which the ICRC’s CIL Study is based does not exempt the assertion from being substantiated. After all, States play “the primary role in the development of IHL” (p. 41).
The SC’s interpretation in S/RES/681(1990) para. 5 remains ambiguous (pp. 155-6). But evidence comes from the resolution’s aftermath, or more precisely, the absence of such as the SC did indeed not reprimand contracting States for not encouraging compliance (supra). Furthermore, that promoting compliance with IHL is a political and not legal duty seems to be the understanding of the EU in its corresponding guidelines (para. 5).
Likewise, it is insufficient to simply rely on the fact that States did not object to this part of the CIL study (e.g., here, and here on p. 427). In reality, of the States that explicitly expressed their views on CA1 during an ILC session in 2022—Switzerland being the exception (para. 2.4)—all views were dismissive, namely from Canada (para. 10), Israel (para. 35), the UK (para. 8), and the USA (p. 5).
No Legal Obligation to Condemn
While it is often simpler to pinpoint an initial use of force as a breach of peace, measuring subsequent hostilities against IHL (especially in real time) and come to a clear conclusion is typically more intricate. At present, facts are opaque. This poses challenges in evaluating individual strikes, not to mention assessing an entire party’s military campaign. For the sake of our discussion, let us, however, consider the possibility that Israel is responsible for violations of IHL.
If one were to accept such an interpretation of CA1 (or CIL) despite the preceding arguments, in particular despite dismissive State Practice, a crucial question emerges: Are all States obligated to take all available measures to prevent each and every act that would constitute a breach of the Geneva Conventions? Logically (p. 145), after every IHL breach on this planet there would be (1) automatic violations by States taking no action, (2) potential violations by States whose actions are considered insufficient (although by whom?), and at the same time (3) no violations by States taking no action at all simply because they are allegedly unable to do so.
In the pursuit of justice, there is a temptation to formulate an erga omnes, universal, and de facto overarching provision, requiring each State, even uninvolved ones, to be accountable for complying with IHL in all conflicts, be they international or non-international. Nonetheless, it becomes evident that presuming such a clause is not practically viable and would certainly lack support from the international community.
Conclusion
Exceptionally, a “serious risk” (para. 431) of genocide entails a positive obligation under Article I of the Genocide Convention “to undertake to prevent”. To meet this criterion, there must be “active conduct aimed at precluding the occurrence of […] genocide” (p. 46). Whereas the October 7 attack unequivocally qualifies as genocide, breaching both the Genocide Convention and Article 6 Rome Statute, it is, contrary to some—in parts doubtful—assertions more controversial, whether this is also true for the Israeli military campaign.
In any circumstance, the condemnation of grave violations of IHL, especially when systematic, is an imperative dictated by human values. It may be challenging for some to accept, but Germany is capable to demonstrate this commitment, even when the reprimand is directed at Israel, as seen earlier this year regarding Israel’s “Law of Return”. However, International (Humanitarian) Law itself does not impose a general obligation to comment on IHL-compliance. Providing selective commentary likewise does not necessarily constitute a breach of IHL. In this regard, and as emphasized earlier, rigorous standards must be applied when wanting to deduce such duty.
So, to answer the question I posed in the title: Yes, in my view Germany can legally remain silent. The discourse surrounding Germany’s condemnation (or lack thereof) of Israeli (mis-)conduct in the present armed conflict should transcend a mere scrutiny of purported adherence to IHL and is better situated within an extra-legal realm. Evaluating this stance necessitates an examination through political and ethical lenses of a commitment to safeguard the existence of the State of Israel. Relying on IL merely as a means to kill an argument (p. 206) is certainly not the way to go.
Dear Eric,
Thank you for your valuable contribution. It certainly has some merit. However, there are a few points I’d like to touch on that you may want to consider.
1. In the light of the principle of systemic integration (under Article 31(3)(c) VCLT), a treaty is seen as a product of the international legal system and its operation is therefore based on that system. This means that the interpretation of a treaty must take into account other treaty-based rules in order to achieve a coherent meaning. I therefore disagree with the conclusion that the meaning given by the ICJ to the term “to undertake“ in the context of the Genocide Convention cannot be extended to CA1. Not only is the structure of the two provisions strikingly similar, but the very raison d’être of the two treaties is equally similar: With the overarching aim of protecting human life, both conventions deal with humanitarian issues. This is all the more reason to have regard to the ICJ’s interpretation of the term “to undertake“ in considering CA1.
2. Unfortunately, the interpretation of Judge Kooijmans’ separate opinion as presented here seems to have been taken out of context and misconstrued, as he stated (Israeli Wall opinion, sep. op., para. 50):
“Although I certainly am not in favor of a restricted interpretation of common Article 1, such as may have been envisaged in 1949, I simply do not know whether the scope given by the Court to this Article in the present Opinion is correct as a statement of positive law. Since the Court does not give any argument in its reasoning, I do not feel able to support its finding.“
It is clear that Judge Kooijimans criticises the ICJ for failing to carry out a rigorous legal assessment prior to concluding that CA1 has an external and positive component that obliges non-parties to induce parties to a conflict to respect IHL. However, he seems to implicitly accept that there has been a subsequent development which may have led to a change in the content of the provision from that originally intended by the contracting parties.
3. It is true that the violation of an obligation erga omnes entitles all States, even if they are not specifically affected by the violation, to require the responsible State to cease the wrongful act. This is not an obligation, but a a right. However, the relevant question here is not whether a State has a right or an obligation under CA1 to invoke the responsibility of the responsible State, but whether the latter has an obligation to take “lawful measures” against unremedied breaches in the interest of the beneficiaries of the breached obligation. In this respect, the applicable provision is not Article 48 ARSIWA, but rather Article 54 ARSIWA, which does not exclude such an obligation, but leaves the issue open for the further development of international law.
4. In assessing State practice, it is critical to ensure that there is a general and (geographically) widespread practice. Focusing on a small number of Western States and their allies is hardly sufficient to establish such a practice. To do otherwise would lead to a deeply troublesome situation in which the practice of Western States (and their allies) would dictate the interpretation of treaty provisions to the exclusion of the Global South, raising issues of legitimacy.
5. I also do not agree with the point raised in relation to the question of whether all States would be obliged to respond to each and every IHL violation committed. At first glance, this argumentum ad absurdum may seem convincing. Yet, it overlooks the fact that CA1 does not contain an obligation of result, which would require States to bring about the cessation of each and every IHL violation, but an obligation of due diligence. States are thus not required to do the impossible. In this respect, reference may be had to the standards developed by the ICJ in relation to the obligation to prevent genocide. The Court noted that (Genocide Convention case, para. 430):
“Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events.”
6. Finally, I must strongly disagree with the conclusion that the question of Germany’s reaction to Israel’s war campaign in Gaza “is better situated within an extra-legal realm“. Political and ethical considerations may vary greatly depending on the national interests of each State. International law does, however, provide a prism of shared values and principles through which we can begin to appraise State behaviour. In this respect, it is noteworthy that the meaning of the provisions of IHL has hardly been called into question, as it has been in the ongoing war. I do not believe that this should lead to the exclusion of such discussion from international law, but rather that it demonstrates the need for a more refined engagement and continued development of the respective provisions. A departure from the framework of international law would be a loss of the narrow ground for such a discussion.
Best wishes,
Khaled El Mahmoud
Dear Khaled,
Thank you so much for taking the time not only to read my post, but also to comment on it! You have also raised some interesting points, which I would like to address in more detail below. I hope that my reply still reaches you, after all, some time has passed since then, for which I must apologize.
1. I am familiar with systematic interpretation of treaties, having made reference to subsequent practice. However, for your comment to make sense, there must be a “relevant” rule that we can consult.
a) First, a quick remark: You make mention (also within your blog post) of the VCLT, which isn’t even applicable ratione temporis. It’s accurate to instead reference customary law when interpreting the Geneva Conventions.
b) You mention that both frameworks, the Genocide Convention and the Geneva Conventions, share a common raison d’être. I agree, although I am not sure about the scope of this commonality. After all, the LOAC always entails a competing rationale–military necessity–which simply does not apply to the Genocide Convention. In this respect, the latter is clearly more anthropocene in character. However, rules to be integrated systemically don’t need to be assigned to an (identically) shared corpus juris, as it is sufficient for systematic interpretation that these rules address the same legal situation. For this alone, we can take a look at the Genocide Convention.
c) However, the fact that textual arguments that revolve around rule A simultaneously apply to rule B is obviously not contingent where there are no corresponding points of reference. My problem with your analogy to the Genocide Convention is not a fundamental one, but a concrete methodological one, as you are confusing which term(s) can be considered “relevant”: It is the “respect” of Art. I Genocide Convention and the “respect” of CA1 of the Geneva Conventions, which are functionally equivalent. It is the nouns that are comparable (indeed, semantically the same). One can’t even compare “undertaking” of the former with “ensure” of the latter. After all, CA1 even imposes both (“undertake to respect [AND] to ensure respect”). Reflections on the Genocide Convention can therefore only be fruitful if we discuss the interpretation of “undertake to respect” under CA1–which we don’t. Rather, point of reference in the debate on inter-State obligations within common Article 1 is “ensure respect”. Or phrased as a question: Whose respect must be ensured to whom?
Insofar, perhaps it becomes clearer what I mean when I say: “It is much more a yardstick for the obligations mentioned thereafter […]”.
2. Furthermore, I do not believe that I have misinterpreted the quote from the separate statement or even taken it out of context. My reference to Judge Kooijmans is centered on his argument that the ICJ ruling lacks sufficient legal considerations, as you rightly acknowledge. It’s his legal opinion that is important here, not a brief (half-sentence) mention of his personal ambition, that an inter-State obligation needs to come into being. Kooijmans himself concedes the uncertainty surrounding the existence of this rule (incidentally, I am not suggesting something else with my blog post). I find it concerning to distort his statement so that he is actually suggesting a later development for which there is no evidence ibid. At best, one could find the opposite (in para. 48): “It is equally true that the Diplomatic Conference which adopted the 1977 Additional Protocols incorporated common Article 1 in the First Protocol. But at no moment did the Conference deal with its presumed implications for third States.”
Kooijman’s position should be seen for what it truly represents: skepticism regarding the correctness of the ICJ’s interpretation of common Article 1 in its Wall opinion.
3. I disagree. The relevant question is whether a third State has an obligation under CA1 to invoke responsibility. Don’t you concur that representatives of an inter-State obligation demand such measures aimed at compliance with the primary obligation? And thus describe Art. 48 (2) (b) ARSIWA?
4. Of course, State practice must be general (which is a truism). And of course, this means that, in principle, it must be geographically widespread. This is to be applied without restriction to the identification of new rules or the replacement of old ones, for example if we want to establish (1.) consuetudo in the context of determining customary law or (2.) desuetudo in the context of derogating customary law.
a) Our starting point is that an inter-State obligation can only arise through State practice, i.e. (1.). It did not exist in 1949 but was read into it at some point by the ICRC. But, as I pointed out above, consuetudo is only one part of the equation. We also need opinio juris. This can be determined if States explicitly take a position on the issue–see my comments on the ILC session in 2022. Which means that if (literally) 4 out of 5 States issue a negative statement, it is already sufficient to assume that no such rules will arise. As there is no general practice–although it would be necessary, as you rightly mentioned.
b) In this respect, it does not matter which hemisphere the countries belong to. Just as the Global North cannot unilaterally issue a rule for the Global South, neither can the South for the North… insofar as you want to imply that “the Global South” follows the ICRC’s view, which I disagree with and draw your attention, again, to the ILC meeting mentioned above, at which none of the States of the Global South made a corresponding statement.
c) From TWAIL’s perspective, too, it seems questionable to me whether the ICRC’s interpretation of CA1 could seriously benefit States of the Global South. After all, invoking a duty under CA1 could encourage a moralizing civilizing mission. I consider the danger that Western states could once again present themselves as “heroic agents of progress, security, order, human rights and democracy” (Orford) to be very real.
d) On this occasion, a further comment: Your two references in the blog post, which I interpret as attempts to prove corresponding practice of “the Global South”, are also erroneous, or in the second case at least ambiguous: Your AU reference cites the statement of an ICRC staff member, your OAS reference points to Geneva Law in general (para. 7 of the preamble).
e) At best and most recently, and even directly relevant to case at hand, is Nicaragua’s press release of February 2, 2024, in which it addresses violations of IHL by Germany (para. 1), which implies a corresponding reading (although without providing further reasoning). Nicaragua’s (presumed) view and that of Switzerland, however, may not by themselves constitute customary law.
5. You are right that by the standard you apply, not every single act on this planet can trigger a corresponding duty to an audible degree. However, I am not arguing that States must do the impossible, as I note that States that are unable to take action would not be in violation of the ICRC’s interpretation. But what is more important is that my argument remains valid insofar as each State would have to decide for itself on this opaque scope. In particular, because CA1 is not justiciable in the way that Art. I of the Genocide Convention is, this yardstick may only at first glance be a convincing one. And let’s not even start with the continuation of colonial power-structures in this context.
6. We are talking about one facet of one article, the former of which even being disputed. I am not questioning international humanitarian law as a whole, but I am question questionable interpretations.
Best,
Eric Rücker