González Hauck, Sué; Theilen, Jens T.: Vertrauen und Vertretbarkeit: Das Ramstein-Urteil und seine Folgen für Waffenlieferungen an Israel [Trust and accountability: The Ramstein ruling and its implications for arms deliveries to Israel], VerfBlog, 7/21/2025, https://verfassungsblog.de/ramstein-voelkerrecht-verantwortung/, DOI: 10.59704/eca51e26067a2044.
In their analysis on the “Verfassungsblog”, Sué González Hauck and Jens Theilen begin by identifying the judgment’s problems. The Federal Constitutional Court does make it clear that Germany may have a duty, based in fundamental rights und the German constitution, to protect persons in third countries in the event of attacks by allied states. One of the prerequisites for this is a systematic violation of international law by the attacker. However, the Federal Constitutional Court uses an overly flexible standard to assess whether such a violation exists: any alternative readings of international law must be untenable within the bounds of legal reasoning. On this basis, it concludes that Germany has no duty to protect people in Yemen from the US drone attacks and that supporting the US attacks from German soil is lawful.
The flexibility inherent in this approach to international law has consequences: The Federal Constitutional Court’s handling of the tenability test means that it adopts those discursive frames that are hegemonic in Germany and in countries allied with Germany almost unquestioningly. Judith Butler’s analysis of “frames of war” has already shown that human lives are assigned different values and that some human lives do not count. The judgment of the Federal Constitutional Court adopts these “frames of war” of the current hegemonic discourse by implicitly constructing people in Yemen as the legitimate target of violence.
Butler’s analysis and other works on anti-Palestinian racism show that, within such frames, Palestinian life in particular does not count. The decisive factor for court proceedings concerning the supply of weapons to Israel will therefore be the extent to which the courts can free themselves from these frames. Despite the sobering outcome of the case concerning US drone attacks in Yemen, González Hauck and Theilen also see reference points in the judgment for those court proceedings challenging German support for Israel’s actions in Gaza. The idea of a constitutional duty to protect persons abroad in the event of attacks by other states at least offers a legal foothold to oppose German arms deliveries to Israel – because Israel’s systematic violations of international law, well documented by international courts and organisations, go beyond even the permissive limits of “tenability” as developed by the Federal Constitutional Court.
These questions remain relevant – despite the recent announcement that Germany will no longer issue export permits for military equipments that may be used in Gaza. This decision comes much too late, does not cover exports under already issued permits and in any case only concerns part of the arms deliveries to Israel. The court proceedings against the supply of weapons to Israel will continue.
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