Germany has a special historical responsibility towards the Jews. But according to international law expert Kai Ambos, after the Gaza war, Israel’s guiding concept of policy has reached its limits. Review by Ninon Colneric.
As chancellor in 2008, Angela Merkel declared in her famous Knesset speech that “Germany’s special historical responsibility for the security of Israel is part of my country’s sense of state.” The term thus became the guiding concept of German policy towards Israel. It is also playing an increasingly important role in domestic politics. International lawyer Kai Ambos says Germany is justifying its de facto unconditional support for Israel’s war in Gaza and beyond on grounds of state. His book, The Reason for State Existence after Gaza: German-Israeli Relations and International Law, was written in this context.
In the first part, Ambos analyzes the conceptual history of the concept and clarifies its relationship with the constitution and international law. Historically, this is a pre-constitutional and pre-republican concept that places the interests of the state above the interests of citizens. Neither the Basic Law nor international law is subject to state considerations. Ambos goes on to explain the role of reason of state in German-Israeli relations and highlights its growing legal force, which affects numerous fundamental areas of human rights sensitivity and leads to constitutional tensions, for example regarding the right of assembly and freedom of expression.
In the second part, Ambos explores the specific limits of German state arguments regarding the Gaza war. He examines in detail the main questions of international law that need to be answered in this context: What is the legal status of Gaza? Is Israel’s use of force in the Gaza Strip covered by the right of self-defense, and if so, to what extent? Is Israel’s conduct of the war in accordance with international humanitarian law and are the charges of war crimes justified? Were crimes against humanity and even genocide committed? What legal consequences arise for Germany, especially regarding arms transfers? And: Do Palestinians have the right to armed resistance?
Finally, he answers the key question of how to deal with governmental considerations in light of the Gaza war.
Appeals from Israeli international lawyers
Because Israel denies access to the Gaza Strip to conduct investigations and preserve evidence, Ambos uses letters and statements from Israeli international law experts as his main source. They are of particular importance because they apply abstract legal standards to concrete facts in Gaza and therefore – indirectly – contribute to the investigation of the facts. There are 23 documents with different lists of signatures addressed to the Israeli Attorney General, the Armed Forces Attorney General, Prime Minister Netanyahu, the Defense Minister and other politicians, members of the media and the Supreme Court.
The authors of these documents express criticism of many aspects of the war in Gaza from the point of view of international law. They are particularly critical of the lack of compliance with international humanitarian law. They describe blocking humanitarian aid not only as a violation of rights, but also as a “moral shame for the state.”
This historically and legally valuable material, interwoven with extensive quotations throughout the investigation, makes the book highly recommended reading for all German politicians.
Judicial discretion
Kai Ambos is not only a university lecturer, but also a judge at the Chamber of Kosovo Specialists in The Hague. This may explain the caution he sometimes displays, for example when answering a question that many experts have answered in the affirmative about whether Israel’s behavior in Gaza amounts to genocide.
Ambos explains the difficulty of establishing the necessary genocidal intent. He explains that in addition to this intention there may be other motives, but he sees the main problem of the requirement of intention in its procedural proof. Based on the available evidence – whether direct (statements by leading Israeli politicians and military officers) or indirect (indications based on patterns of behavior evident during the war) – there is at least a reasonable suspicion of genocidal intent.
However, the legally required conviction “beyond a reasonable doubt” cannot be achieved from a purely external point of view – without a comprehensive (judicial) assessment and evaluation of the evidence. As a former judge, I can understand this reluctance.
Who can exercise the right of resistance on behalf of the Palestinians?
Ambos takes a similarly cautious approach when discussing the right to armed resistance under international law, which is based on both human rights and the right to self-determination under international law. Ambos argues that the bearer of the right to resistance is the people or the affected population. Resistance may also arise directly from the affected population, as during the first Palestinian intifada in December 1987.
However, the question arises as to who can legitimately exercise the right of resistance on behalf of the affected population. There are no clear requirements in international law in this regard. Ambos tends to view the Palestine Liberation Organization (PLO) as legitimate; because the right of representation of the Palestinian people under international law is usually given to the PLO.
However, he rightly raises the question of how to deal with a situation where that formal representative (the PLO) suffers from a significant legitimacy deficit and the population may see itself better represented by another actor (Hamas). However, according to Ambos, this question “must remain open here simply because the premises – the real preferences of the Palestinian population – are too uncertain.”
But are they really like that? As for October 7, 2023, approval must be obtained at this time. It should be borne in mind that the attack was carried out not only by Hamas, but also by a number of other resistance groups under its leadership. This indicates widespread support. To avoid any misunderstanding, saying that Hamas can rely on the right to resist does not mean giving it carte blanche. Anyone authorized to exercise the right of the people of Gaza to resist must, of course, comply with international humanitarian law, which also applies to non-state actors.
Reason of state is not suitable as a guiding motive for German foreign policy.
Ambos concludes from his analysis that the concept of raison d’état is not suitable for expressing Germany’s special historical responsibility to Jews throughout the world. On the contrary, responsibility to the State of Israel is only a means to an end and exists only as long as that state actually guarantees the safety of the Jews. If this is no longer the case, Germany will have to withdraw its support. Because even well-intentioned “tolerance” towards a government that de facto compromises this security would in fact be a “betrayal” of Germany’s historical and moral responsibility.
At the same time, Ambos stems from the “violation of civilization” of the Holocaust and the German war of aggression and extermination to comply with international law and defend human rights throughout the world, including against Israel, and to protect the Palestinians.
As a reviewer, I can only agree with this conclusion. By opposing effective enforcement of international law against Israel at the EU level under the influence of the raison d’état doctrine, the federal government is doing Jews a disservice. Israeli behavior that violates international law not only leads to an increase in anti-Semitism throughout the world. Ultimately, as the Association of Israeli Law Professors for Democracy (ILPFD) warned in a statement on May 19, 2025, this threatens the existence of the State of Israel itself.
Kai Ambos, “The Reason for the State after Gaza – German-Israeli Relations and International Law”, published May 28, 2026 by Campus Verlag, 259 pages, €32, ISBN 978-3-593-52260-9
Ninon Kolnerik was Emeritus Professor at the University of Bremen, President of the State Labor Court of Schleswig-Holstein, Judge of the Court of Justice of the European Communities and European Co-Dean of the China-EU Law School in Beijing. Now she works as a freelancer.
Citation Suggestion
Review of The Mind of the State after Gaza: . In: Legal Tribune Online, July 3, 2026, (accessed: July 3, 2026)
Copy citation proposal information