UPDATE - Experts say Israeli assurances against genocidal use of its arms do not absolve Germany of responsibility in Gaza

UPDATES WITH MORE DETAILS, EDITS THROUGHOUT

By Selman Aksunger

THE HAGUE (AA) - Germany's demand for assurances from Israel that it will not use German-supplied weapons against civilians in Gaza does not relieve it of its duty to prevent genocide, experts warned.

According to German media reports, Germany recently requested that Israel provide assurances that it would not deploy German weapons against civilians in Gaza.

It was reported that the written assurance requested by Germany reached them on Oct. 10, enabling Chancellor Olaf Scholz to say in parliament: "We have supplied arms and we will continue to do so."

- Does Germany recognize genocide in Gaza?

German Foreign Ministry spokesman Sebastian Fischer said at a press briefing in Berlin: "We see no signs that Israel is committing genocide in Gaza."

Fischer reiterated Germany's official position, saying genocide refers to the intentional killing, destruction, or other forms of eradication of ethnic groups based on their ethnic or social characteristics, nationalities, or religious beliefs.

Linking arms shipments to this assurance, Fischer rejected the existence of genocide, despite the International Court of Justice's ruling on Jan. 26, 2024, which stated that it's "plausible" Israel committed genocide in Gaza.

- What does the 'condition of not committing genocide' mean?

This request is seen as a measure taken by Germany to avoid being held accountable for complicity in genocide if the weapons sold to Israel are used in a genocide in Gaza.

Although Germany does not officially acknowledge that genocide is occurring in Gaza, it is attempting to close off avenues that could hold it responsible for aiding the genocide committed by Israel through its provision of arms.

Experts say that Germany's request for assurances that "the weapons sold will not be used in genocide demonstrates serious concerns about Israel's actions, suggesting that Berlin is implicitly acknowledging the potential risk of genocide."

Mark Kersten from the University of the Fraser Valley commented on X: “If you need your partner to sign a ‘don’t-commit-genocide-with-our-weapons’ clause, you shouldn’t be sending and selling that partner weapons at all.”

Juliette McIntyre of the University of South Australia echoed these concerns, saying that Germany’s actions indicate recognition of the potential for genocide.

"This is really quite an extraordinary admission that (Germany) considers there to be a risk of such conduct occurring. Which in turn means Article 1 of the Genocide Convention applies, and I don’t think ‘please don’t do genocide with these particular arms’ counts as prevention,” she wrote on X.

- Why did Germany request such a declaration from Israel?

Article 16 of the 2001 "Draft Articles on Responsibility of States for Internationally Wrongful Acts," which is considered customary international law and binding, states that other states that assist a state in committing internationally unlawful acts, despite knowing about those acts, can also be held accountable for the violation.

Germany aims to eliminate the "awareness of illegality" condition outlined in this article by obtaining a written declaration from Israel, thereby seeking to prove that it was unaware of the use of the supplied weapons in the commission of genocide.

Additionally, Germany is trying to avoid responsibility for the actions outlined in Article 3(b) of the Genocide Convention, which addresses "complicity in genocide," and Article 3(e), which concerns "participation in genocide."

The ICJ, in its ruling on the Srebrenica genocide in Bosnia and Herzegovina on Feb. 26, 2007, stated that the crimes of collaborating in the commission of genocide and "participating in genocide" encompass not only individual criminal responsibility but also the international responsibility of states.

- Does Israel's written assurance protect Germany?

According to the "due diligence obligation" frequently applied by international courts, a violation that results in a state's international responsibility is assessed not by written declarations from other states, but by whether that state has exercised the necessary due diligence.

Established case law from international courts indicates that Germany is expected to fulfill its "due diligence obligation" not through Israel's statements, but by conducting its own investigation and assessment.

Accordingly, this legal maneuver is unlikely to exonerate Germany, as such a written stipulation itself indicates that Germany was aware of Israel's possible genocide.

- 'Germany also risks complicity in genocide'

International law experts say that Germany's written request will not be enough to absolve Germany of its responsibility under international law.

Janina Dill, an expert on international law from Oxford University, argued that Germany’s request for assurances implies awareness of the risk of genocide, triggering its legal duty to prevent such acts.

"Asking ‘promise not to genocide with our weapons’ is not a good way to discharge that duty,” she stated. "Less clear that this 'genocide clause' also implies knowledge of genocidal intent. In that case, Germany also risks complicity in genocide," she added.

Sergey Vasiliev from Open University added that Germany’s request for assurances from Israel does not absolve it of its obligation under international law. “Germany would still be responsible, and its officials will also bear responsibility,” he wrote on X.

- How will Nicaragua's lawsuit against Germany be affected by this development?

Nicaragua's lawsuit against Germany at the International Court of Justice (ICJ), initiated due to Israel's genocide and other violations in Palestinian territories, now allows for the accountability of not only the state directly committing genocide but also those that contribute to, participate in, or act contrary to the obligation to prevent genocide.

On March 1, Nicaragua filed a suit against Germany at the ICJ, claiming that Germany facilitated genocide by providing political, financial, and military support to Israel’s attacks in Gaza.

Nicaragua seeks an order for Germany to halt its military support to Israel.

In its decision on the request for provisional measures on April 30, the ICJ warned that states supplying arms to a region where genocide and other war crimes are being committed could be held responsible for those crimes.

Experts expect that Germany's condition regarding the non-use of weapons supplied to Israel in genocide and other human rights violations may be invoked in Nicaragua's lawsuit against Germany.

The continuation of military aid to Israel, which facilitates the perpetration of genocide despite its ongoing genocide, and the failure to fulfill its obligation to exercise due diligence in the prevention of genocide, are conditions for Germany to be referred to as a state aiding genocide.

- What is Germany's arms export policy?

Christian Tams, one of Germany's lawyers, stated that Germany has a strict arms export policy in accordance with its international obligations in the case brought by Nicaragua.

Exports of arms and military equipment are subject to parliamentary scrutiny to the extent possible, Germany's lawyers said, stressing that the federal government informs parliament about final licensing decisions passed by the Federal Security Council and the type and number of goods, the recipient country and the German businesses involved.

Despite all these rules, German deputy government spokesman, Wolfgang Buechner, stated that Germany has never imposed an arms ban on Israel.

"I would like to emphasize once again that there has never been a ban on arms exports to Israel," he added.

This shows that Germany is taking its own legal responsibility for supporting Israel.

- Which rules are Germany violating?

Germany, which provides weapons and military equipment to Israel, is acting contrary to EU and international law, particularly EU Common Position.

The second article of the Common Position, established in 1998 and made binding by the EU Council in 2008, states that if there is a clear risk that exported military technology or equipment could be used to commit serious violations of international humanitarian law, member states must refuse export licenses.

Additionally, Article 6 of the Arms Trade Treaty (ATT), to which Germany is a party, prohibits arms exports if there is knowledge that the weapons could be used in genocide, crimes against humanity, or war crimes.

*Writing by Muhammed Enes Calli in Istanbul