The human rights organization ECCHR wants to legally prevent Germany from supplying weapons to Israel. The reason is the type of war in Gaza.

Destroyed houses in the Gaza Strip.

Destroyed homes in the northern Gaza Strip in February 2024 Photo: Mahmoud Issa/Reuters

taz: Mr. Schwarz, how did the idea come about to sue the Berlin Administrative Court over the supply of German weapons to Israel?

She is deputy program director at the European Center for Constitutional and Human Rights (ECCHR). The center has filed a lawsuit with the Berlin Administrative Court seeking to revoke export licenses issued by the federal government for arms shipments to Israel. The association, founded in Berlin in 2007, has in this case the support of the Palestinian Center for Human Rights (PCHR) in Gaza, the Al Mezan Human Rights Center in Gaza and the Al Haq human rights organization in Ramallah. filing the lawsuit on behalf of five Palestinians living in the Gaza Strip whose relatives were killed in Israeli rocket attacks.

Alexander Black: Enforcing human rights through legal means is at the core of our work as a human rights organization. This includes legally defending fundamental legal principles, such as respect for international humanitarian law. We have also been working against arms exports for several years and have repeatedly carried out legal interventions against arms exports to Saudi Arabia. Furthermore, our organization has been cooperating for years with Palestinian partner organizations in the West Bank and Gaza. Many of our Palestinian colleagues in Gaza have lost family and friends to the Israeli war, including many children. After the brutal crimes committed by Hamas on October 7 and the Israeli reactions, it quickly became clear to us that compliance with international law in the Gaza war must be legally upheld. It is very obvious that the Israeli army is violating international humanitarian law in Gaza. Therefore, we file the lawsuit on behalf of five affected Palestinians who are currently resisting in Rafah, but who have already been expelled several times and currently fear for their lives. The only thing we care about is the way Israel is fighting this war in Gaza. This does not affect either the right of self-defense or the right to exist of the State of Israel.

What are you legally accusing the federal government of in your lawsuit?

In our lawsuit we rely on the War Weapons Control Law. According to this, a license to export weapons of war must be denied if there are reasons to believe that the Federal Republic is violating its obligations under international law through the license. Germany has entered into European and international obligations regarding arms exports, which we consider violated in the case of exports of war weapons to Israel. Specifically, we see violations of the Arms Trade Treaty, the 1949 Geneva Conventions, and also obligations under the Genocide Convention. In essence, it is about the way Israel fights war. The international arms trade treaty stipulates that military equipment cannot be exported if there is an overwhelming risk of serious violations of international humanitarian law. According to our findings, there is clear evidence that the Israeli military is committing serious violations of international humanitarian law and even war crimes in Gaza. The War Weapons Control Law works as a lock in case of violations, which we now want to activate. Therefore, we have requested urgent legal protection to stop export permits from the federal government.

In the case of Nicaragua's lawsuit against arms shipments from the Federal Republic to Israel, the German representatives argue that they only deliver defensive weapons and control their use.

In fact, the German representative has argued before the International Court of Justice that the federal government has only issued four permits for the export of war weapons to Israel since October. Of these deliveries, 3,000 approved bazookas are particularly relevant to our litigation. The bazookas are intended for use in Gaza and are German-made. However, bazookas cannot be considered defensive weapons. Despite the designation as anti-tank weapons, bazookas are a type of weapon used in a wide variety of situations, such as ground warfare, urban areas, or attacks on buildings and infrastructure. Therefore, in our lawsuit we argue that the Israeli military uses rocket-propelled grenades of the same type as those manufactured in Germany in attacks that allegedly violate international law. As proof of this, we have collected, among other things, video clips shared on social networks showing the use of these weapons by the Israeli armed forces in Gaza.

Israeli army leaders say the number of civilians killed in the fighting is low compared to other urban battles, such as the expulsion of the Islamic State group from the Iraqi city of Mosul.

We see a completely different picture of the situation, confirmed by human rights organizations and reports from United Nations bodies. Between 70 and 80 percent of all buildings in the Gaza Strip were destroyed or damaged. According to our findings, these are mostly civilian buildings, including hospitals, schools, mosques, food production facilities and civil supply facilities. The Office of the High Commissioner for Human Rights, to whose reports we refer in our complaint, has documented several bombings by Israeli forces that have completely destroyed multi-story buildings, in several cases killing more than one hundred civilians in a single stroke. Furthermore, according to our investigation, no military objective was visible. Furthermore, the fact that there is a Hamas tunnel under a residential building does not automatically make the residential building a legitimate military target. Rather, it must be examined whether the tunnel building actually contributes to military actions due to its intended purpose or specific use. Finally, proportionality must be maintained. If the inevitable incursion of civilian casualties by bombing a military target is not proportional to a military advantage, combat operations should be avoided. We see significant evidence in the way Israel wages war that these rules are being systematically ignored and that the leadership of the Israeli military is obviously willing to accept large numbers of civilian casualties. To avoid misunderstandings: there is no doubt that Israel has the fundamental right to defend itself from attacks. However, this right should not be used to justify violations of international humanitarian law, so to speak as a blank check. In international law, the right to self-defense refers to the “if” of war, but with respect to acts of war it is about the “how.” Both areas of law must be strictly separated. However, this also makes it clear that targeted killings of civilians, disproportionate acceptance of civilian casualties, and indiscriminate destruction of property or starvation of the population are not covered by the right to self-defense.

Should German politicians expect to be held accountable?

No. Our lawsuit is an administrative lawsuit that aims to revoke the war weapons export licenses that have been issued. If the lawsuit is successful, this would mean that Germany would not allow further deliveries of weapons of war that have not yet been made and are covered by this authorization. Our lawsuit is not about the individual responsibility of individual people or actors.

Shouldn't war crimes be criminalized, as was the case in the war in the former Yugoslavia?

Those who commit, order or assist in the commission of war crimes or other international crimes in Israel and Gaza could be held criminally responsible. This applies to both members of the Israeli armed forces and Hamas fighters. If the German criminal justice system is serious about the promise of international criminal law, investigations on the basis of the German International Penal Code should be carried out immediately. Therefore, our organization publicly asked the Federal Prosecutor's Office last December to investigate both the murder of the Palestinian-German Abujadallah family from Gaza and the murder of Israeli-German Shani Louk as war crimes. However, so far the Federal Prosecutor's Office has announced that it sees no evidence of the commission of international crimes. A decision that cannot be understood, at least legally. Ultimately, according to the principle of legality, the Federal Public Prosecutor's Office is obliged to investigate each initial suspicion of a crime. And, of course, decisions on criminal prosecution should not depend on political consequences, even if there are contrary reasons of state. At the same time, we must get used to the idea that not only Hamas fighters, but in the not too distant future also Israeli soldiers and commanders may be the subject of investigations by the International Criminal Court in The Hague. Active investigations are currently being carried out there in both directions, evidence is being collected and witnesses are being heard. The World Criminal Court is particularly committed to the claim for universality and will hopefully not be guided by political expediency.

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