Can Germany Remain Silent?

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