“There is only one morally, legally and strategically defensible choice: an arms embargo”

The war in Gaza has escalated dramatically this week. Hundreds of thousands of suffering civilians in northern Gaza are bringing questions of international humanitarian law back into focus. Criticism of arms deliveries is also growing louder in several European countries, including Germany. We asked Janina Dill, Professor of Global Security at the University of Oxford, what role international law plays in the Gaza war, where it is under pressure, and what international legal responsibility the Federal Republic of Germany bears.

1. This week, once again, horrifying images have emerged from northern Gaza. Hundreds of thousands of civilians are trapped in Jabalia, many of whom are unable to comply with the IDF’s evacuation orders. At the same time, there are reports that the Israeli government is once more discussing plans to cut off aid to those remaining in northern Gaza who have not adhered to the evacuation directive. What international legal protection do those civilians have who have not left northern Gaza?

The demand of International Humanitarian Law (IHL) that attackers must issue an effective advance warning before an attack if an attack is expected to harm civilians (unless circumstances do not permit such a warning) is one of the most misunderstood legal rules for the conduct of war. The public and media discourse regarding repeated devastating attacks on Jabalia shows how.

First, not every utterance that announces an impending attack or military operation counts as a warning. An effective warning must have the function of allowing civilians to improve their protection. That does not mean an attacker can or must guarantee that civilians get to safety, but if warnings are repeatedly too late, too imprecise or displacement itself poses a significant risk to civilians, then whatever the announcement of an attack is, it is not an effective warning as conceived by IHL.

The second misunderstanding is that a warning or evacuation order somehow affects the status of civilians who do not heed it. Let’s be clear, if an attack is in expectation disproportionate before a warning and civilians do not leave when warned, that attack remains disproportionate and prohibited. Civilians do not “weigh less” in the proportionality calculation because they were warned. Similarly, deliberately starving an encircled civilian population to starve militants embedded within it remains prohibited and potentially criminal, even if the civilian population was ordered to evacuate. Not fleeing one’s home does not count as direct participation in hostilities, which is the only choice civilians can make that weakens the protections to which IHL entitles them.

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2. In a recent paper with Tom Dannenbaum, you wrote that the war in Gaza creates doctrinal pressure on certain concepts and frameworks of international law. Could you elaborate on this?

What is unusual, possibly unique, about this conflict is the coincidence of catastrophic civilian harm, on the one hand – on some measures, such as children killed per day of fighting, this conflict is more deadly than other recent wars – and Israel’s claim to be complying with international law. Many warring parties implausibly and pro-forma claim adherence to international law, but Israel’s compliance claim is proactive, detailed and it attracts support from some legal experts. This coincidence means there is a lot of public attention on international law and for many people it raises the question whether international law at all protects civilians. In short, in Gaza international law seems as relevant as it seems ineffective.

Tom and I argue that this creates pressure on doctrinal concepts that are critical for assessing hostilities “in real time” while a war is ongoing. For instance, polarized evaluations of Israel’s conduct in Gaza are partly due to doctrinal confusion about prohibited intent, specifically regarding the prohibitions on direct attacks against civilians/civilian objects and on starvation as a method of warfare. Neither violation – we argue – requires bringing about prohibited consequences with purpose, which is extraordinarily hard to infer from context. Rather, if prohibited intent is differentiated from the more contestable criminal intent standard, then it is possible to determine now, while hostilities are ongoing, that Israel’s conduct violates these bedrock obligations of IHL. Clarifying intent then allows assessment of hostilities in real time and IHL’s ability to guide such assessments is a critical component of its functionality.

3. Besides pressure on doctrine, the Gaza war has also brought the role of international courts back into focus. Typically, international courts rule many years after certain actions have been committed during wars. However, in recent months, the world’s attention has been focused on provisional measures that have been issued parallel to the ongoing conflict. Are courts equipped for this role?

The ICJ was not set up to play a direct role in constraining belligerent conduct or guide legal evaluation of armed conflicts in real time, but it must rise to the occasion. Courts’ provisional products are a critical resource helping third parties evaluate ongoing hostilities and calibrate their response. Tom and I make the case in the paper that the ICJ has the authority to illuminate how international law applies in a particular case context and thereby modifies the epistemic environment in which third parties – those not directly bound by an ICJ order or judgement – must discharge their own obligations in that case context. So yes, Germany should have taken the ICJ’s provisional measures orders in the case of South Africa v. Israel as an indication that continued material support of Israel risks violating Germany’s own legal obligations.

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4. Your last point seems to be particularly relevant to the question of arms deliveries, which is now being increasingly discussed again, for example in France or Germany. Given that much suggests Israel has violated the provisional measures of the ICJ: What obligations do these provisional measures create for third parties?

If Israel is violating the ICJ’s provisional measures orders, then Israel is responsible for an internationally wrongful act. In principle, if France or Germany provided material support for such a violation – for instance weapons for offensive operations in Rafah in violation of the third provisional measures order – they could incur secondary responsibility of aid or assistance in an internationally wrongful act. However, in the paper Tom and I map what we call “doctrinal contingencies”, so legal questions that have more than one plausible answer, and secondary state responsibility depends on which answer attracts consensus. These contingencies, and also vagueness in the Court’s provisional measures orders, weaken their action-guiding implications for third states. In the paper, we point out that it is doctrinally much clearer that material support for Israel’s offensive operations in Gaza violates the supporting states’ primary obligations under Common Article 1 of the Geneva Conventions and, if they are members, the Arms Trade Treaty.

5. A few days ago, a German newspaper reported that Germany had apparently asked Israel to sign a “genocide clause” in which the Israeli government is supposed to assure that it will not use German weapons to commit genocide. Is this a way for Germany to escape state responsibility?

Ideally, we would know what exactly this clause says, but for various reasons, I find even the idea of it alarming. Every war bears some risk of IHL violations. It is thus not surprising that arms trade agreements contain clauses trying to reduce the liability risk for the sending state, though there is a threshold at which a risk of IHL violations should lead to an arms embargo rather than an indemnification clause. Critically, not every war bears a risk of genocide and Germany has a duty to prevent genocide which is triggered when it “was aware … of the serious danger that acts of genocide would be committed.” Acts that risk being genocide, even if they ultimately end up not being found to constitute genocide, for instance by a criminal court, are very likely still illegal, even criminal as war crimes or crimes against humanity. If the Federal Government sees any risk of Israel’s conduct violating the Genocide Convention, there is only one morally, legally and strategically defensible choice: an arms embargo.

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Editor’s Pick

by MORITZ SCHRAMM

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The Week on Verfassungsblog

… summarised by EVA MARIA BREDLER

This week, we were still busy digesting the pile of landmark judgments the European Court of Justice delivered on 4 October 2024.

One of them stands as a clear 1:0 for freedom of the press: Le Monde would have to pay €330,000 to Real Madrid for defamation as to allegations of doping scandals. In Real Madrid vs Le Monde, the Court now held that excessive defamation damages may breach the freedom of the press. EMILIA SANDRI (EN) dissects what the decision means for national courts and the enforcement of fundamental rights across the EU.

In another judgment from 4 October, the Court effectively annulled the EU-Morocco trade agreement and acknowledged the legal standing of Front Polisario – the liberation movement representing rights of the people of Western Sahara (read also JED ODERMATT’s piece last week). KATARZYNA SZEPELAK (EN) applauds the Court’s flexible approach which improves the access to EU courts.

September has already brought some sensational judgments from Luxembourg. KAMYA CHAWLA (EN) considers Neves 77 Solutions and KS and KD as landmark rulings for the future of judicial review in the Common Foreign and Security Policy, with the Court advancing the integration of the CFSP within the broader EU legal order.

A key player in foreign policy itself, the EU Commission recently got a structural makeover – does this signal new priorities? MARIA PATRIN (EN) argues that the new Commission is likely to become more hierarchical and less coordinated, with a less green agenda.

And the agenda already looked little green to begin with – at least that’s what NGOs claimed when initiating an “internal review” under the EU’s Aarhus Regulation, in an effort to force the EU to adopt more ambitious climate targets. NIKLAS TÄUBER (EN) explains why this unusual yet innovative approach is likely to fail.

LORIN-JOHANNES WAGNER’s (EN) approach is also rather unconventional: Given that traditional means of enforcement – such as ECJ judgments – seem insufficient to foster compliance with the Common European Asylum System, he proposes enforcing the CEAS via horizontal state liability. Member States could sue their fellow Member States for financial damages in the latter’s domestic jurisdictions.

Poland might be a candidate for being sued that way, as a Member State not complying with the CEAS: This week, Poland unveiled plans to suspend the right to asylum “in the event of a threat to destabilize the country by an influx of immigrants.” LENA RIEMER (EN) argues that the proposal is not only unlawful but also poses a threat to the common European asylum system.

Right-wing populism not only disregards the law like that, but also uses it: SEBASTIAN WOLF (GER) shows how right-wing populists in Liechtenstein instrumentalise direct democratic procedures.

In the meantime, German populists used other legal avenues. They filed lawsuits against the pre-election coverage by public broadcasters that primarily relies on current polling data. MADELINE TRAPPMANN (GER) raises doubts about the new jurisprudence regarding equal opportunity and democratic diversity.

Equal opportunities may also be amiss when you’re a woman working at Daimler.

The Stuttgart Labor Court found a case of gender-based wage discrimination and awarded the claimant the difference between her salary and the median pay of her male peers. But to whose salary should the back pay be linked; how much pay is equal pay? The Regional Labor Court effectively ruled that it should never exceed the median salary of male colleagues. ANNA LEONI GROTECLAES (GER) explains why this cannot be correct.

There’s a famous quote (attributed to Otto von Bismarck) saying that “laws are like sausages – it is better not to see them being made.” FELIX AIWANGER (GER) disagrees:  The ongoing reform of the Animal Welfare Act demonstrates that one should indeed be present for the making of both, as the draft bill raises considerable legal concerns.

Seeing how laws are made is kind of the job description of legal sociologists, and this week, JULIA BÖCKER (GER) enriches the debate on maternity protection for women after miscarriages with a sociological perspective. She explores the discursive implications and warns that maternity leave after miscarriages would symbolically grant the status of “mother”. While many grieving parents seek this recognition, it could also reinforce fundamentalist discourses advocating the “protection of unborn life”.

Such fundamentalist discourse almost proved successful in Brazil: In May, the Brazilian Parliament introduced a bill that included a gestational age limit for performing abortions – even in cases where the pregnancy resulted from rape. But civil society and the Constitutional Court successfully pushed back. ELOÍSA MACHADO DE ALMEIDA (EN) illustrates how the Brazilian parliament has become a dangerous place for women’s sexual and reproductive rights and how an institutional dispute between Parliament and the Constitutional Court makes it worse.

Judicial intervention proved successful in Ecuador and Uruguay, too: While both countries used to be at the forefront of protecting the right to health, governments now often succumb to (tobacco, alcohol, sugar…) industry interference. Judicialization has thus emerged as an opportunity to defend progress achieved. VALENTINA CASTAGNARI AZNAR and SILVIA SERRANO GUZMÁN (EN) reflect on the potential of legal interventions in the face of powerful economic interests.

This is far from the only trouble Ecuador is facing now. After the chaotic events of 9 January 2024, when members of organized crime had attacked a live newscast, Ecuador declared an “internal armed conflict” and designated 22 organized crime groups as “military targets”. While the social and political repercussions keep unfolding, EFRÉN GUERRERO SALGADO (EN) reflects on the “nine months into chaos”.

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Jacqueline Peel, Melbourne Law School

“This volume, The Transformation of European Climate Litigation, skillfully elucidates the significance of the European Court of Human Rights’ recent rulings on climate change. By integrating perspectives from human rights law, environmental law and beyond, it offers a nuanced and in-depth analysis of how these landmark decisions will shape future litigation across Europe and around the world. A timely and essential resource for those navigating the intersections of climate change, human rights, and European legal frameworks.”

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And finally, this week was rich in debate on Verfassungsblog:

We’ve kicked off the symposium “Unmasking the Intractable: Exploring Anti-Racism and the Law” (EN) that we’re co-hosting with the africanlegalstudies.blog. The joint symposium critically addresses the enduring challenges of racial inequality within international and national legal frameworks. FAREDA BANDA, HATEM ELLIESIE and THOKO KAIME open the debate by exploring the ineffectiveness of anti-racism laws. JOHANNES SIEGEL looks into the role of the new federal police commissioner and his tools to address patterns of racial profiling. DANIEL-THABANI NCUBE analyses that anti-racism law’s apparent ineffectiveness stems from its reliance on the inherently vague concept of “race”. The debate continues over the next days.

We’ve continued last week’s symposium on the ICJ’s Advisory Opinion on the Occupied Palestinian Territory (EN) (which is now arranged into chapters).

ARIEL ZEMACH argues that some of the Court’s findings are not firmly rooted in international law, namely in the prohibition against the use of force and the Law of State Responsibility. JASMINE MOUSSA analyses the separation between jus ad bellum/in bello as arising from the Advisory Opinion. AEYAL GROSS sees in the Opinion a functional, more nuanced approach to occupation. SHASTIKK KUMARAN agrees, but doubts whether Israel was indeed capable of exercising its authority in Gaza sufficiently. YUVAL SHANY and AMICHAI COHEN discuss three possible rationales for the Court’s rejection of the relevance of Israel’s security concerns. For JINAN BASTAKI, the Opinion clearly affirms that security cannot justify illegal actions such as annexation or prolonged occupation. MATTHIAS GOLDMANN has a closer look at the paragraphs detailing the legal consequences of the Opinion for UN Member States, while YAËL RONEN observes that those third State obligations were not accompanied by any concretization. YUSSEF AL TAMIMI and ANDREAS PIPERIDES analyse the possible implications of the Advisory Opinion for the UK’s arms and surveillance support to Israel through its military bases in Cyprus. MARYAM JAMSHIDI analyses the possibility of unseating the Israeli Government from the UN General Assembly in case of non-compliance. MOHAMED M. EL ZEIDY focuses on the legal findings of the ICJ concerning the Oslo Accords and the Amici Curiae proceedings before the ICC in the Situation of Palestine. TAMAR HOSTOVSKY BRANDES  examines the relationship between the Advisory Opinion and Israeli law with respect to the duty to distinguish between Israel and the OPT. VICTOR KATTAN observes that, reading between the lines, the Court used the expression “systemic discrimination” as a synonym for “apartheid”.

Closing our symposium on Law and Political Economy in Germany (EN), MAX PETRAS argues that despite friction to the US LPE positions, the LPE Europe research agenda is theoretically sound and could reorganise important social infrastructures innovatively, and VICTORIA GUIJARRO SANTOS illustrates how law shapes and is shaped by the dominant economic system, using the case of Uber.

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That’s it for this week! Take care and all the best.

Yours,
the Verfassungsblog Team

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